Managed Retreat: Remedial “ Design with Nature” and Some Implications for Planning

1. Managed Retreat:  Remedial “Design with Nature” and Some Implications for Planning Thomas Jacobson, JD, MCP, FAICP Dept. of Environmental Studies & Planning Sonoma State University

2. Research assistance: Carey Batha, MESM (2013) Donald Bren School of Environmental Science & Management University of California, Santa Barbara

3. Sea level rise as a planning challenge • US has almost 55,000 miles of tidal coastline, not including Alaska • Urban, rural, agriculture, infrastructure, etc.

4. Sea-level rise and storm surge • Incremental sea-level rise • Compounded by severe weather events • E.g., “Super Storm” Sandy, October 2012

5. One reaction … • Post Sandy, New York state proposed spending $400,000,000 to buy homes damaged by Sandy and turn land to habitat, parks, etc. • Voluntary program • Could acquire about 1,000 homes

6. Another reaction … • “Jail the Planners for Not Preventing Sandy” • Article by Ed Blakely, University of Sydney, in Planetizen, Nov. 5, 2012 • “Planners and city officials approved developments on the New York, New Jersey and Carolina coast in areas of known high risk. Why shouldn't they go to jail?”

7. Consequences of sea level rise • Existing development destroyed • Environmental cleanup required • Infrastructure destroyed • Economic dislocation • Social dislocation • Ecosystem services lost • Lost “protective” function along our coastlines

8. Adaptation strategies • Hard armoring (e.g., seawalls, bulkheads, new techniques) • Soft armoring (e.g., beach renourishment, dune restoration) • Structure adaptation (buildings on stilts, movable structures) • Managed retreat

9. Managed retreat • Move development back from the shoreline, with corresponding restoration of coastal area • “Remedial Design with Nature”

10. Design with Nature, Ian McHarg (1969) • Limit development on lands critical to natural systems, e.g. • groundwater recharge areas • prime agricultural land • wetlands • Avoid natural hazards (e.g., lands subject to flooding, fires, landslides)

11. Implementing managed retreat on private coastal property • Acquire fee interest to some or all of property • Acquire development rights to some or all of property • Do nothing • Traditional land use regulation • Rolling development restrictions

12. Acquire fee interest • Results in some or all of property being conveyed to public ownership • E.g., program in New York state, post-Super Storm Sandy • Voluntary or by eminent domain

13. Acquire development rights • Land remains in private hands but ability to develop some or all of it is acquired • Or, could acquire a promise to remove some or all development in the face of certain conditions

14. Do nothing Under the law of most states, as rising seas move Mean High Tide line inland: • private ownership of affected coastal property is reduced • public ownership is increased

15. Regulate land use • Use traditional tools (e.g., zoning) • Developed areas can be rezoned, creating “nonconforming uses”

16. Nonconforming uses • Zoning ordinances make provision for uses that were legal but became nonconforming when new zoning was adopted • Two approaches: • Amortization • Attrition

17. Amortization • Nonconforming use allowed for a defined time based on various factors • California courts have not required that the nonconforming property have no economic value at the end of the amortization period • Rather, they use a weighing process of public benefit from removal v. private loss

18. Attrition • Nonconforming use allowed to continue until it “goes away,” based on damage to the property, abandonment, etc.

19. Rolling development restrictions • Restrictions are imposed now but only come into play “as needed” based on sea-level rise • This addresses uncertainty about how fast sea-level rise will occur

20. Where are rolling development restrictions imposed? • Area expected to become Public Trust Lands as Mean High Tide line moves inland • Areas upland of Mean High Tide that may be subject to storm surge, etc.

21. How is RDR imposed? • Can be acquired, like development rights, but effect is delayed, so cheaper • Can be imposed as a development condition (“you can develop now, but …”) • Can be imposed after development; development treated as a “nonconforming use”

22. Conclusions • The issue is potentially enormous • Approaches will need to be varied, some old and some new • There will be resistance • Effective responses will need to be creative, grounded in science and economics

23. And may require a re-thinking of how our property rights protections operate “… for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions that are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.” Euclid v. Ambler Realty Company, U.S. Supreme Court (1926)

24. tom.jacobson@sonoma.edu