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Julie LaBranche

LOCAL SOLUTIONS: Northeast Climate Change Preparedness Conference Manchester, NH - May 19-20, 2014. “You Have the right to……”: Understanding the Legalities of Climate Change. Peg Elmer CommunityResilience.org. Julie LaBranche. CLIMATE CHANGE Economy Growth/Development

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Julie LaBranche

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  1. LOCAL SOLUTIONS: Northeast Climate Change Preparedness Conference Manchester, NH - May 19-20, 2014 “You Have the right to……”: Understanding the Legalities of Climate Change Peg Elmer CommunityResilience.org Julie LaBranche

  2. CLIMATE CHANGE Economy Growth/Development Resource Consumption Public Health

  3. Types of Legal Challenges • Municipal Liability • Enabling Statutes, Laws • Use of Climate Data and Maps • Takings Mapping and Legal Implications of Future Flooding in the Lamprey River Watershed of New Hampshire Due to Changes in Land Use and Climate [Vermont Law School] Community Options • Planning Tools • Regulatory Tools • Non-regulatory Tools

  4. Challenges - Technical Information and Takings What is the potential regulatory takings exposure of New Hampshire communities if they impose regulatory controls that are designed at least in part to address anticipated future climate and environmental conditions?  Recommendations: • Make the basis and reasonable justification for floodplain regulation clear in local plans (master plan, comp. plan, hazard mitigation plan) • Provide flexibility in zoning and regulations - preserve some economically viable use of land - include a mechanism for providing minimum relief from standards (zoning/regs)

  5. Themes to keep in mind….. Prevention is more cost effective than mitigation or restoration. Regulate for the purpose of protecting public health, safety and community prosperity. Most cost-effective way to address hazards is avoidance: limiting human presence and investments in high risk areas. Plan and Design For “New Normal” - Existing and Future Conditions.

  6. Municipal Finance +Economics • Cost of repair and replacement of roads and infrastructure • Cost of repair and replacement of building and facilities infrastructure • Emergency response access, cost and maintenance • Loss of business revenue due to closings • Property value impacts • Loss of recreation and tourism base • Environmental/health and quality of life impacts Purpose of protecting public health, safety and community prosperity

  7. What if….a new river? Abandoned old channel and cut a new channel through excavated gravel pit and agricultural lands Suncook River, Epsom (2006)

  8. What’s been happening, and what are we preparing for? Example: Example: Total: $194.2 million Total: 688 Source: Spatial Hazard Events and Losses Database for the United States (SHELDUS)

  9. Irene- altered political perspective

  10. Buyouts for Catastrophic Loss Example: 76 buyouts in VT so far, more to come 1300 homes affected by flood and erosion damage

  11. Adapting to the “new normal” within the “old” regulatory framework

  12. Municipal Enabling: States Differ

  13. Municipal Policy and Implementation • Based on legally defensible data, research and sound rationale (public health and safety) • Public participation and engagement • Outreach and education • Coordination across plans • Regulatory actions • Non-Regulatory strategies

  14. Public Participation and Engagement Key to building: • Trust and understanding • Political foundation to prevent polarization, legal appeals • True community resilience - shared values and challenges

  15. State Enabling Statutes/Laws • Powers and Duties of Municipality, County • Duties of Land Use and Environmental Boards Planningand Zoning Boards, Conservation Commissions • Master Plan, Comprehensive Plan, Capital Plan • Resource and Environmental Protection • Public Health and Safety

  16. State Enabling Statutes/Laws • Floodplain Zoning, Fluvial Erosion Hazard Zoning • New Hampshire, Vermont • Flood Hazards (minimum NFIP-floodplain standards) • FEMA Flood Insurance Rate Maps (FIRMs) • Innovative Land Use Controls • Environment, Mixed Use/Village, Incentive-based • Shorelandand Coastal Protection Standards • Water Management and Protection • Wetlands, Surface Waters, Groundwater

  17. Master Plan or Comprehensive Plan Unpredictable future conditions Importance of taking action despite uncertainty • Establish broad goals for • - Public health and safety • - Adaptation/Resilience • Environment/Resources • Municipal Assets • Protection of property

  18. Zoning Ordinances and By-Laws • Floodplain Standards (NFIP) • Flood Hazard Overlay Districts • land uses, development standards • Design-Performance Standards • setbacks, building height, coverage • Environmental Protection • Buffers, open space, preservation • Protect life, property, health

  19. Site Plan and Subdivision Regulations • Design-Performance Standards • landscaping, impervious surface coverage, stormwatermanagement (low impact development, maintenance), site design, road standards • Open Space preservation (i.e. high risk areas, buffers) • Environmental Protection • Ecosystem services, water quality, habitat protection, recreation, cultural and historical resources

  20. Shoreland, Coastal, Wetland Standards • Adjacent uplands provide critical flood storage, water quality benefits and ecosystem services • Setbacks and buffers • Impervious surface cover • Stormwatermanagement • Elevated structures/utilities

  21. Land Preservation and Easements • Preserve strategic lands where erosion or flooding is severe via acquisition or protective easements • Prevention is a cost-effective tool for minimizing risk and vulnerability • Critical flood storage • Public access • Saltmarsh migration • Coastal ecosystems

  22. Hazard Mitigation Plan Plans for construction of sustainable, disaster-resilient infrastructure Goal to reduce loss and damage of public and private assets and resources New! Response and Recovery Plan Identifies existing and future flood hazard areas Provides a clear pathway for safe and comprehensive planning and redevelopment (reuse) after an event

  23. and Investment Capital Improvement Plan Management plan for existing and future infrastructure and assets - reduce risk and vulnerability Plan municipal investments over long-term (replacement, relocation) Apply new designs, data, technology and models/maps

  24. No Adverse Impact Performance Standard Protecting the Property Rights of All Asserts that no new development can increase the likelihood or magnitude of flooding or damage to other properties “Courts will uphold community floodplain regulations which contain a No Adverse Impact standard against “takings” and other Constitutional challenges to regulations….” (consistent with common law rights and duties) Association of State Floodplain Managers www.floods.org

  25. Peg Elmer CommunityResilience.org Ph: (802) 522-3844 Email: elmer.peg1@gmail.com Julie LaBranche Rockingham Planning Commission Ph: (603) 778-0885 Email: jlabranche@rpc-nh.org

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