Macbeth, and King Richard the Third

• How the characteristics of growth can influence local vulnerability to hazards

• Recognize the land use policies and tools of local governments that can be used to increase community resilience

• Identify the most effective way to promote hazard mitigation and climate change adaptation policies within the structure of a local government

• Evaluate the degree to which principles of resiliency and sustainability are implemented in a community

This chapter offers a broad understanding of the types of powers that local governments can wield to manage hazard areas within their jurisdiction. The chapter opens with a discussion of why local government is often the most appropriate level to deal with the impacts of hazards and climate change. We then introduce the topic of local policy with a short discussion of the sources of local government authority, as well as a brief discussion of growth management. The chapter further develops the discussion of local policy with a description of the kinds of powers that states have delegated to their local governments, including the broad powers of regulation, acquisition, taxation, spending, education, and planning. The chapter then describes some of the basic forms of local government that are prevalent in the United States in order to provide an idea of the organizational structure where local hazard mitigation and climate change adaptation policies are developed and carried out. Within the boundaries set by state and federal constitutions and legislation, the authority to manage hazards and adapt to climate change is often limited only by local decision-makers’ creativity and willingness to be proactive. The chapter concludes with a discussion about the political willpower required to create a resilient community.

When we think of large scale disasters, we might have images of a massive government response taking place that includes officials from the FEMA in their blue windbreakers, reservists in fatigues, and national Red Cross volunteers in their red vests hauling ice, setting up emergency shelters, and conducting search and rescue operations. We may picture active state agencies, too—for example, we may envision the Governor ordering an evacuation, calling up the National Guard, and requesting a disaster declaration from the President. But the reality is that the local community takes on the lion’s share of all of these activities, and state and federal governments only step in when communities become overwhelmed by natural disasters, acts of terrorism, or other emergencies that are of a magnitude that exceeds the capacity of the local government to deal with effectively. After all, it is at the local level that disasters are felt most directly and acutely—it is where streets are blocked by flooding, buildings are damaged by earthquake, and homes are destroyed by wildfire. And it is at the local level where responsibility to take action to prepare and mitigate the impacts of disasters lies.

Local governments are also at the heart of adapting to climate change. However, when we think about the causes and consequences of climate change, it can seem like a vast global phenomenon, one that is so daunting that people give up in despair thinking there is nothing to be done. We may want to rely solely on international organizations such as the Intergovernmental Panel on Climate Change, or national agencies such as the Environmental Protection Agency to explain and prepare for climate change. Yet the phrase “Think Globally—Act Locally” is more than a cliché. All levels of government, the private sector, and ordinary citizens can take action to reduce the effects of climate change. In fact, local governments are particularly well positioned to promote adaptation and reduce risk through land use planning, infrastructure improvements, building codes, floodplain management, energy conservation, and more. Local governments have the authority and a variety of tools to address many of these issues, and are in the best position to take meaningful, community-driven action.

Communities can be impacted by any number of calamities. The shutdown of a mill or factory can result in massive unemployment. The contamination of a river or lake can make water supplies undrinkable. Unchecked growth can bring about urban sprawl, leading to air pollution, traffic congestion, and inefficient use of land and public resources. A lack of equal access to quality education, affordable housing, health care, and job opportunities can lead to crippling poverty and foster social unrest. Sustainable communities are those that face these issues head on and take proactive measures to combat the economic, environmental, and social problems that come their way.

In its most widely used definition, sustainable development is development that “meets the needs of the present without compromising the ability of future generations to meet their own needs.”¹ Sustainable development implies that those who are living on Earth now will not lessen the opportunities of future generations, but will strive to pass on a natural, economic, and social environment that ensures a high quality of life for all to come. Sustainability envisions a wise use of resources and a fair chance for all community members to live meaningful, productive lives both now and in the future. Sustainability also calls for seeing beyond our own borders and realizing that we are all interconnected in a complex system of natural processes.

But sustainability policies are largely futile if a community is exposed to natural and human-made hazards and does nothing to reduce vulnerability. Earthquakes, hurricanes, ice storms, tornadoes, floods, wildfires, technological disasters, and other types of hazard events can be economically devastating, ecologically damaging, and socially disruptive. The occurrence of a natural or human-made hazard highlights existing vulnerabilities, and can exacerbate the problems a community was experiencing before the disaster hit. With the approach of a changing climate, these preexisting conditions become even more apparent. As we experience increased storm intensity, higher temperatures, more frequent droughts, sea level rise and other climate-related changes, local communities will feel the brunt first—from issues of public health to heightened demands placed on local facilities and services. A truly sustainable community must also be a hazard-resilient community, one that considers disaster prevention and climate adaptation along with issues of environmental stewardship, quality of life, economic vitality, and a fair legacy for future generations, with a sensibility of the changes yet to come. Local communities are in a unique position to promote resiliency as they strive to become more sustainable.

How we develop our land and where we build our homes and businesses determines how vulnerable our communities are to all sorts of hazards. Patterns of growth that emphasize sprawling development place intense pressure on the natural environment, as we modify the landscape and encroach upon floodplains, forestlands, and seismic risk zones. This type of development is unsustainable and makes us more vulnerable to natural hazards than ever before.

Later in this chapter we will delve into the activities that local governments are authorized to undertake to deal with these issues of unsustainable land use practices. In cases where it is in the best interest of the community at large, these actions may involve regulating the use of private property. These two concepts may seem to be in a tug of war—community resilience versus private property rights—but hopefully we will demonstrate that public and private interests can coincide rather than clash in the realm of reducing risk.

As noted by Professor Timothy Beatley, who has written extensively on issues of resilience and sustainability, we are fortunate in that many of the local decisions and actions needed to move communities toward greater resilience will also enhance long-term livability and quality of life and can be strongly justified on economic and environmental grounds. Conserving and restoring coastal ecosystems, for instance, will not only enhance resilience but will also yield many other benefits such as biodiversity, recreation, and tourism. Designing homes, schools, and offices so that they are survivable and livable in the aftermath of a hurricane means that they will also require less energy to operate, be less costly to heat and cool, and yield living and work environments (e.g., by incorporating natural daylight and natural ventilation) that are more enjoyable and productive. Strengthening social networks will not only make a community more resilient but also will result in richer human relationships, a stronger sense of community, and potentially greater meaning in life, all things that are intrinsically valuable.²

In the effort to become more resilient, we must remember that each local community is unique, and there is no one-size-fits-all solution to every community’s hazard problems. Even within a single state there is considerable variation among communities in terms of demographics, topography, climate, economies, natural resources, hazard exposure, and political and cultural character. There are large affluent metropolitan areas that are experiencing growing pains and unchecked sprawl. There are also isolated rural communities whose agricultural economic base is crumbling and whose populations are shrinking. There are mountain communities that must deal with the challenges of a steep terrain, and coastal communities that experience frequent violent storms. Some communities are progressive and promote a liberal agenda, while others are more conservative and espouse traditional values. Some local governments aggressively regulate land uses within their jurisdictions, and others vehemently oppose government interference with private property rights. While this diversity contributes to the richness of our nation’s culture, it also means that every approach to increasing resiliency must reflect the community’s individual hazard mitigation and preparedness needs, as well as its capacity to adapt as climate conditions change.

Fortunately, there are many ways to increase resilience that are available to local communities both large and small, ways that fall well within the power of local governments to pursue. Local policy to cultivate resilience indicates a community’s commitment to reducing damage from high-risk hazards and provides the authority and guidance for mapping, regulation, planning, spending, and other local hazard mitigation and preparedness activities. These tools are increasingly being used by proactive local governments to adapt to specific impacts of climate change that are anticipated or are already being felt by people in communities nationwide.

Disaster prevention is more than a soapbox issue for politicians and community leaders—it is also an affirmative duty of local governments to protect the health and safety of community residents. Development decisions that do not take into account known risk factors such as flooding, earthquakes, sinkholes, high winds, storm surge, erosion, chemical spills, toxic wastes, and other natural or human-made hazards could place people and property in danger. In light of climate change, this means taking steps to protect citizens from the risk of more intense hurricanes, the risk of higher temperatures, the loss of property from sea level rise and much more. It is in the best interests of the community at large to ensure that residents and property owners are fully aware of the inherent risks of building in hazard locations, and for the authority of the local government to be directed toward mitigating those risks.

Not only are local governments under a duty to protect the health and welfare of their residents, actions to reduce risk may also be spurred by the prospect of legal liability. When individuals experience damage from flooding or erosion, for example, they might file a lawsuit against the government claiming that the government has caused the damage, contributed to it, or failed to prevent or provide adequate warnings of the hazard. Such lawsuits are expensive for the public sector not only because court-ordered damage awards are growing, but also because of large attorney and expert witness fees.³

THE DUTY TO PROTECT: HOW FAR DOES IT GO?

A family from Syracuse, New York, who purchased oceanfront property in North Topsail Beach, North Carolina, enjoyed a single weekend at their vacation home before Hurricane Ophelia washed away 60 feet of beach in front of the house in September, 2005. When the town condemned the building because of structural damage and because water, sewer, and power lines were no longer connected to the house, the new owners wondered why no one had told them of the dangers of oceanfront erosion. No state law required the sellers to disclose the house’s history, even though the home had been condemned after previous storms. In the meantime, the family was still responsible for paying the mortgage on the home, even though it was legally uninhabitable.⁴ Under its duty to protect the public health and safety, should the local government take responsibility for warning new residents of the potential risks in hazard areas, or is this simply a case of caveat emptor, or “let the buyer beware?”

We have touched on the fact that local governments have the authority, and even the duty, to protect their citizens from risk of harm. But where does this power come from? Under the Tenth Amendment to the U.S. Constitution, every state government has authority to protect public health and safety through what is known as the state’s police power. The states, in turn, delegate some of these powers to local governments. According to a principle known as Dillon’s Rule, local governments cannot act without the proper delegation of authority.

The derivative authority granted to local governments under Dillon’s Rule varies from state to state; however, most local governments are given a fair amount of autonomy to enforce their police power, particularly with regard to public safety functions such as emergency management. Typically, localities are authorized (and in some states are required) to adopt basic land use management measures, for example, comprehensive plans and zoning ordinances, some of which may be used to address hazards and adapt to climate change.

Home Rule: In Home Rule States, general police power is delegated by the state legislature to local governments to enact laws and to adopt and enforce regulations that are necessary for it to govern. In these states, the local governments have predominant power over local matters within their jurisdiction. In states that do not follow the Home Rule principle, local governments are only allowed to exercise powers that have been expressly granted to them in the state constitution or by other state laws. However, even in non-Home Rule States, the authority to regulate for disaster prevention and climate change adaptation is quite broad.

Extraterritorial Jurisdiction: The authority granted to local governments to regulate behavior and land use is limited to the area within the boundaries of that local government. However, most states establish extraterritorial jurisdiction as a way to give municipalities control over development just outside the town or city limits and over areas that eventually could be annexed. The extraterritorial jurisdiction typically extends one mile beyond city limits. In some states, with approval of the county governing board, a city may extend its extraterritorial land use planning jurisdiction to three miles. Extraterritorial jurisdiction can be an effective way for municipalities to broaden the geographic reach of their control over land uses in ways that help reduce hazard vulnerability. This is particularly effective to mitigate hazard risks that are widely distributed and cross-political boundaries, such as flooding.

While local governments generally have broad authority to regulate development within their jurisdiction, including regulation that controls development in hazard areas, there are defined limits on how far the police power can go in restricting the actions of private citizens. There is always a balancing act between protecting the general public from hazard risks, and restricting the rights of private property owners to use their land as they wish. Of course, no private property owner is allowed unfettered use of their land. For example, under the ancient legal doctrine of “nuisance,” courts have followed the maxim “Sic utere tuo ut alienum non laedas,” or “so use your own property that you do not injure another’s property.” In particular, this has been extended to mean that no landowner (public or private) has the right to use their land in a way that substantially increases flood or erosion damages on their neighbor’s property.

In addition to abiding under the law of nuisance, private property owners are also subject to zoning, building codes, taxation, environmental laws, and a whole host of regulations and restrictions. But both federal and state constitutions assert that land use controls such as zoning cannot be exercised arbitrarily or capriciously, that restrictions on use cannot be unreasonable, and all regulations must be applied uniformly upon all landowners in similar circumstances. These and other rules are found in Equal Protection and Due Process clauses of state and federal constitutions. Additionally, the government cannot restrict the use of private property to such a degree that the property is effectively “confiscated,” as we will discuss in more detail below.

We have noted that state and federal constitutions place limits on the power of local governments to restrict the use of private property. In addition to the rules of equal protection and due process, if a court determines that a government has gone too far in regulating private property, then the government must pay the owner just compensation, which is usually determined as the fair market value of the property. This principle is found in the Takings Clause of the Fifth Amendment of the U.S. Constitution, and applies to all levels of government. States have parallel requirements in their own constitutions.

Before we go further, a little background about the takings rule may provide some context for our discussion. At the heart of the matter is the legal authority of eminent domain, one of the most potent government powers. Eminent domain, or condemnation refers to the power of the government to “take” (condemn) private land for public purpose. Eminent domain is commonly used by local and state governments to obtain rights-of-way for highway construction, and to acquire property to build public facilities such as schools and government facilities. These are instances where the public purpose is well accepted and recognized as within the authority of local governments, so long as the condemnation process is carried out within the limits of the Equal Protection, Due Process, and Takings rules, including payment of just compensation to the property owner.

It is clear that physical occupation of private property requires payment of just compensation under the Fifth Amendment Takings Clause. However, the takings rule also applies when the government “takes” an owner’s land by severely restricting its use. Although it is the duty of the landowner to obey all applicable laws and regulations in the jurisdiction where the property is located, occasionally, those regulations may amount to a “taking.”

The state courts and the U.S. Supreme Court have developed a range of legal tests to determine when a regulation reaches the point that it has gone too far. Many of these tests have multiple prongs or parts that deal with a variety of issues, some of which are illustrated in the following list:

• The physical occupation of private land by the government is almost always a taking.

• Even a temporary loss of use that does not have a valid purpose and a rational connection is a taking.

• A regulation that deprives the owner of all economically beneficial use of the property is a taking.

Many cases involve a balancing of factors, including the character of the government action, the economic impact of the action, and whether the regulation interferes with the owner’s expectations.

Under their police power, and within the bounds of constitutional law, local governments typically have authority to manage many features of growth and development within their jurisdiction, and to implement a wide range of mitigation, preparedness, and climate change adaptation programs. Later in this chapter, we will provide some examples of the types of actions local governments can take to increase resilience. However, authority to act does not necessarily ease the decision-making process. Regulation of private property can be contentious, and a full range of conflicting issues may arise when local authorities attempt to restrict land use or implement risk reduction measures, many of which may take years to become fully effective. Local politicians are often pressured to meet the immediate needs of their constituents, and the short election cycle of most local governments may make some elected officials hesitant to put forth risk reduction strategies that could be construed as a limit to growth or costly to taxpayers. Yet, when viewed in the context of the overall wellbeing and sustainability of the community as a whole, some of these competing interests may actually be complementary, rather than at odds.

On the one hand, local governments must govern land use for the public good. We have already discussed the fact that protecting public health and safety is a paramount duty of local government. Regulations targeted toward reducing damage to property and protecting residents are essential to carry out this duty. On the other hand, local governments are also responsible for providing a full range of services to their citizens, including education, police and fire protection, water and sewer facilities, health care and social services, public transit, parks and recreation, libraries, recycling and refuse disposal, and other critical needs of the community. State and federal governments provide some funding for these services, but much of the financial burden falls on the local government, and the pressure to provide quality services is an ongoing struggle for many communities; this pressure can be especially acute during a regional or national economic downturn.

A major source of revenue for local governments lies in their land—property taxes represent a significant portion of most local budgets. In general, developed property is more valuable, and therefore, more lucrative in terms of local taxes, as it can be taxed at a higher rate. In many communities, there is a strong incentive to allow growth and development to occur in order to increase the local tax base. In their eagerness to attract new growth to the area, local jurisdictions may overlook the hazards that pose a risk to the built environment, and may allow or even encourage development in vulnerable locations. Furthermore, many communities, particularly those located in highly desirable areas such as the coast, are already intensely developed, adding to the tensions and conflicting interests at the local level. Avoiding hazard land uses is much more difficult when investments have been made and construction has already taken place.

Although these local concerns are significant factors in the creation of policies and regulations that concern land uses in hazard areas, many communities have come to realize that the interests of protecting public health and safety and promoting sound growth and development are not mutually exclusive. In fact, a safe, resilient community that is proactive and thoughtful about reducing risk and exposure to natural hazards can ultimately attract rather than repel future growth and development in safe locations, where it can contribute to the long-term economic health of the area. We will read about some of the specific techniques that local governments can use to manage development in the next section of this chapter.

SELF-CHECK

• What is the police power and how is it conferred on local governments?

• What are some of the limits on a local government’s authority to regulate?

• Explain how unsustainable land uses can lead to hazard vulnerability.

• Discuss the conflicting goals that many local governments face when managing land use to reduce hazard vulnerability.

As we discussed in previous sections, public controls on private property are not a recent innovation. Land use laws existed in various forms in England long before the United States existed, and even extend back into the ancient Roman past. The earliest code of Roman law, the Twelve Tables (451–540 BC), required setbacks for structures from parcel boundaries and regulated the distances between trees and lot lines. From the time the concept of private ownership arose in our legal tradition, property has literally been subject to the “law of the land.”

What the law of the land means for the average landowner has been variously interpreted over the years, vacillating between times of expansion and retrenchment depending on the societal and economic conditions of the day. Early on, judge-made law, such as the law of nuisance, was sufficient to handle land use conflicts. In its simplest form, under the nuisance law, a property owner who uses his or her property in such a way that it causes annoyance, inconvenience or danger to the public or to another property owner can be ordered by a court of law to put an end to the “nuisance.” But as our society became more complex and populous, and as increasing demands were placed on limited natural resources, there was a need for more extensive public land use controls. Today, these land use controls are adopted by state and local governments under the police power to manage the characteristics of growth.

RATES: In this section, we will examine some of the fundamental powers that local governments possess under their basic police power authority. These powers are popularly referred to by the acronym RATES: Regulation, Acquisition, Taxation, Education, and Spending. We will also discuss planning as a very powerful tool that can help create a cohesive framework for all other local powers in the context of mitigating the impacts of natural hazards and adapting to climate change (see Table 8.1).

Managing Growth in Hazard Areas: The powers available to local governments that fall under “RATES” can be used—separately or in tandem—to manage the characteristics of growth in a community. This management authority can be used by local governments to deter development in identified hazard areas, and to steer growth into desirable locations with the jurisdiction. Growth management tools can also be used to exact conditions or make changes in proposed development plans so that new construction is sited and built to standards that do not increase exposure to hazard risks.

Local land use management tools and techniques influence one or more of the following characteristics of growth:

• Quantity: The total amount of development, such as the number of buildings, facilities, and structures; the amount of acreage developed; and the percentage of total land area that is developed.

• Quality: Soundness of construction in terms of safety, energy efficiency, hazard resilience, aesthetics, etc.

• Type: The class of development. Major types include residential, commercial, government/religious/nonprofit, industrial, and open space. Subtypes can include single family/multifamily residential, light industrial/heavy industrial, or strip commercial/mall commercial, etc.

• Location: The area within the local jurisdiction where development of various types is allowed.

• Density: Intensity of development in terms of distance among structures, lot size, building height, and number of people and structures per acre.

• Timing and Rate: When and how fast growth will be allowed. Control of the timing and rate of growth is critical to ensure adequate public facilities (e. g., water and sewer, public schools) and infrastructure (e. g., road capacity) are in place to meet new levels of demand.

• Cost: Expenses borne by the public as a result of development, for example:

• Economic costs: Water/sewer, schools, emergency/local services, and infrastructure

• Distribution costs: Issues of who will pay, property taxation and assessments, efficiency of public services

• Environmental costs: Water quality degradation/water resource depletion, increased impervious surfaces/stormwater flows, loss of open space/damage to habitats/decline in biodiversity, clear cutting/slope modification/changes in topography, waste management/landfill capacity, traffic congestion, or air/noise pollution

• Social costs: Stratification of incomes/class, deterioration of city centers, urban sprawl, overburdened/inadequate services, segregation by race, ethnicity, culture, etc.

All of these characteristics of growth determine the level of vulnerability in a community. When undertaken thoughtfully, growth management can be used to control development in hazard-prone areas of the local jurisdiction. As a general rule, local governments have used growth management techniques more frequently to control factors such as pollution, traffic congestion, aesthetics, and to make sure that adequate public services are available to serve new development, rather than for hazard mitigation purposes directly.

However, communities throughout the country are coming to realize that many of the impacts of climate change can be lessened by sound land use practices that factor in future as well as current conditions, both in terms of population growth, as well as changing levels of precipitation and flood patterns, increased drought, more severe heat waves, more frequent and intense hurricanes and rising sea level. These factors should be part of all siting and design decisions for new development.

GUIDING GROWTH TO MEET NEW DEMANDS ON WATER SUPPLIES

Expansion into rural areas of Medina County, Ohio placed new demands on county water supplies. Some homebuilders initially wanted to develop large plots that would require filling in existing wetlands and natural flood-plains. The building plans also required firefighting services to truck in large amounts of water in the event of an incident. A broad-based coalition that included the local government, county floodplain manager, planning commission, homebuilders association, and emergency manager came together to spearhead a process to promote development in the county while protecting water supplies and preserving wetlands and ponds. The partnership achieved a building standard that allowed builders to develop their desired housing design but also required them to build ponds and wetlands within each housing subdivision in an effort to sustain water supplies and allow for improved fire protection and floodplain management. The zoning and land use mitigation efforts promoted and protected the health, safety and welfare of the residents by making the community less susceptible to flood and fire damage.⁵

Regulatory powers granted by the state to local governments are the most basic way that a local government can control growth and development within its jurisdiction. Local governments regulate private property to protect the natural environment, to encourage economic development, and to protect the public’s health and safety. Some of the most common types of regulatory powers available to local governments include the following:

Before zoning became widespread, the police power was used by local governments for relatively simple controls, such as fire safety, or for making sure incompatible uses did not encroach on neighboring property (such as prohibiting a brickyard in a residential neighborhood). Once zoning came into judicial favor, it allowed governments to protect certain uses in certain districts, or zones. We discuss zoning in more detail next.

Zoning is the traditional and nearly ubiquitous tool used by local governments to control future uses of land within its jurisdiction. At its core, zoning continues the basic protections of nuisance law, the ancient legal doctrine still in effect that prohibits property owners from using their land in ways that interfere with the rights of adjoining property owners or inflict injury on the general public.

While nuisance law provides long-standing protection against general harms, it is retroactive in practice and cumbersome to enforce. Zoning, on the other hand, is a more direct method of governing land uses, and allows the local government to impose more specific restrictions on property owners than were available under the law of nuisance. Furthermore, zoning’s true beauty is that it enables the government to predetermine uses that will be permitted in particular locations, before development occurs.

Zoning regulates the permissible uses of property in a jurisdiction by dividing the community into different districts (or zones). Zoning maps identify the location of the various districts. An accompanying zoning ordinance or code defines the type and intensity of uses that are allowed within each district. The code is enforced through the permitting process, which requires landowners to apply for and receive a zoning permit from the local government for all uses and structures. Zoning districts are labeled according to the dominant use that will be permitted in that zone. Some communities have more elaborate systems of zoning than others, but the most basic zoning districts include Residential, Commercial, Industrial, Government, Open Space/Conservation, and Religious/Nonprofit.

The local zoning ordinance specifies standards that must be met in each zone, such as lot size, building height, floor area or footprint, setbacks (minimum/maximum distance of structures from property lines as well as the amount of space between structures), parking spaces, density of residents, and so forth. For hazard mitigation purposes, local zoning maps may be accompanied by regulations that restrict inappropriate uses in designated hazard areas. This presupposes that the locality has mapped the locations of likely hazards (e.g., flooding) and has incorporated this spatial information into the zoning process (Figure 8.1).

Most zoning codes allow for prior uses to continue as nonconforming uses after changes in the code are made. As these buildings are replaced or destroyed, the former use becomes illegal. Over time, this process reduces the number of buildings that are out of compliance with a city’s zoning code. Communities with less patience can require that nonconforming structures be replaced within a certain time period under a process known as amortization. For example, a community may require a homeowner to relocate his or her beachfront home outside the beach erosion zone by a specified date. The length of time over which amortization takes place must approximate the expected depreciation of the building or it could be challenged as an unconstitutional taking.

Some local zoning ordinances include overlay zones, which apply conditions to development in addition to, or in place of, the standard zoning ordinance for a certain area. Overlay zones can be effective in high-hazard areas. For example, floodplain overlay districts have been used to regulate development in mapped flood areas. Overlays have also been used in coastal high-hazard areas such as beachfront, storm surge, and highly erodible areas.

Overlay zones can be triggered by a certain specific event, such as a hurricane that causes substantial damage. Until the event occurs, the overlay zone remains “transparent” and has no effect on the property located in the overlay zone. Recovery overlay zones can include temporary regulations that restrict reconstruction in an area impacted by a disaster until a thorough damage assessment has been made or require any new development in the zone to include hazard mitigation techniques.

Bonus and/or incentive zoning is the practice of allowing developers to exceed the limits of current regulations, such as building height, floor area, or density, in return for certain concessions. This technique is generally used in metropolitan areas, where land is scarcer, and the market benefit to the developer is more easily realized. When used as a hazard mitigation tool, communities offer bonuses to developers who avoid building in hazard-prone areas or who incorporate mitigation into their building designs, for example, elevating homes above the expected flood height, or using fire-retardant roofing materials. In return, the developer is allowed to build more intensely than is normally allowed on other portions of the property or elsewhere in nonhazard areas within the community. Bonus and incentive zoning have been used to encourage developers to provide on-site mitigation facilities, such as dune walkovers and sand fencing to reduce beach erosion, and retention ponds to reduce flood risk.

There are notable strengths associated with zoning when used for mitigation purposes: Zoning can be used to keep inappropriate development out of hazard-prone areas by down-zoning, or decreasing density. Down-zoning can be accomplished by increasing minimum lot size, or reducing the number of dwelling units permitted per acre. By reducing density, fewer people and buildings are located in high-hazard areas. This, in turn, helps protect the local tax base, matches the population with the capacity of local emergency shelters, lowers the amount of time needed to evacuate the population before a hazard strikes, and can prevent large, hard-to-relocate structures from being built in high-hazard zones like beach erosion areas. Safer areas can be zoned for higher-intensity uses including small-lot residential structures, apartments, and commercial businesses.

While zoning can be used to keep intensive uses out of hazardous areas, it can also designate hazardous areas for more appropriate low-intensity uses including parks, open space, greenways, resource conservation, wildlife habitat, agriculture, or beach access that benefit the entire community and add to local aesthetic and environmental quality. Zoning can help preserve natural areas that mitigate against hazards such as wetlands, floodplains, and dunes. “As a rule of thumb…wetlands, floodplains, and slopes…take first priority for designation as open space, as they represent highly sensitive environmental resources that are generally considered to be unbuildable in a legal sense, in a practical sense, or for reasons of common sense.”⁶ Zoning can also prohibit the storage or handling of hazardous chemicals or other dangerous materials in floodplains, seismic zones and other hazard areas.

8.5.1.7 Weaknesses of Zoning for Hazard Mitigation and Climate Change Adaptation

There are also some weaknesses or limitations to using zoning for hazard mitigation and climate change adaptation purposes. Zoning primarily applies to new structures and vacant land rather than existing buildings and property that is already developed (except through nonconforming use provisions, which often take years to become effective). As a result, zoning is a poor way to make current development more hazard resilient. Also, zoning is a spatial control and is primarily suited to hazards that are spatially defined or clearly mapped (e.g., flooding, but not tornadoes). Furthermore, zoning can be subject to legal and political challenges: down-zoning that decreases density may also increase the cost of providing public services, including mass transit, water and sewer lines, waste collection, and fire protection, all of which tend to become more expensive and less efficient when spread out over large land areas. Less dense areas may also mean lower tax revenues for the local government. Additionally, zoning regulations are subject to a fluctuating political climate; as new leaders assume local elected and appointed positions, decision making can change to suit the current administrative agenda. Lastly, zoning is limited in its ability to adapt to climate change because most zoning maps are drawn based on the current understanding of hazard risks (if the maps incorporate hazard risk at all). For example, shoreline erosion areas shown on zoning maps often underestimate flood heights or storm surge levels that may occur in the future because of more intense rainfalls, more frequent coastal storms, and sea level rise.

These weaknesses of using zoning for hazard mitigation and climate change adaptation usually preclude a blanket prohibition of development in hazard areas; however, they do not preclude the careful and precise application of the zoning ordinance to meet specific hazard problems, now and in the future.

Subdivision ordinances govern the partition of land for development or sale. In addition to controlling the configuration of parcels and lot layout, subdivision ordinances set standards for developer-built infrastructure, such as roads and storm drains. The local government must approve the subdivision plat (map) prior to the division and sale of the land into individual lots. It is at the point of subdivision review that many communities impose conditions on the developer in exchange for plat approval. Local governments often charge exactions and fees to help pay for the demands that new construction will place on local facilities and services, such as schools, water and sewer, fire and police protection, and garbage pickup. Developers may also be required to pay for impacts on the community and the environment, such as traffic congestion, air and water pollution, excess noise, stormwater runoff, and similar burdens that result from increased development in a community. Many local governments also require dedication of land to build needed public facilities as a condition of subdivision approval.

Subdivision regulations can be used for mitigation and climate change adaptation purposes in several ways, and are most commonly applied to prohibit the subdivision of land subject to flooding, wildfire, or erosion. When hazard zones can be identified on a parcel map, communities may require minimum distances between those zones and the site of construction. For instance, coastal communities may require the configuration of deep lots on the oceanfront. These lots allow homes to be relocated further inland on the same parcel if erosion, sea level rise, or coastal storms threaten the structure.

If the subdivision layout does not keep entire lots out of the flood-prone area of a parcel, buffers can help minimize the amount of development exposed to flooding. A buffer is typically a setback of a specific distance, such as 25 or 100 feet, from a channel, floodway, wetland, or other water feature. In that area, no cutting of vegetation, clearing of ground cover, or alteration of natural features is allowed, but the rest of the lot can be graded and built on. In the state of Maryland, for example, a 25-foot buffer is required next to all wetlands and a 100-foot buffer is required for “wetlands of special state concern.” Subdivision ordinances may also allow developers to cluster homes in greater densities away from hazard-prone sites, and require dedication of unbuildable lots to green space or parkland for use by all the residents.

Subdivision regulations can also require that infrastructure meets standards that address known hazard risks. For example, the installation of adequate drainage and stormwater management facilities, as well as limits on impervious surfaces, can be required in flood-prone and landslide-prone areas. In order to reduce fire risk, subdivision ordinances may require wide building spacing, installation of firebreaks, drought-resistant or indigenous vegetation and landscaping, on-site water storage, multiple access points, and streets built wide enough to accommodate fire trucks and emergency vehicles.

Building codes are laws, ordinances, or regulations that set forth standards and requirements for structural integrity, design, and construction materials used in commercial and residential structures. In most states, the building code is established by the state legislature, but permits and enforcement are the responsibility of the local government (see Chapter 7 for discussion of state building codes). The issuance of a building permit is a ministerial function of the local government, so that if building plans meet code requirements, a building permit must be issued; there is no discretion allowed in this decision. If the plans do not meet code, however, the local government can reject the proposal or require revisions before granting approval. Local building inspectors conduct site reviews during the construction process to ensure that construction complies with the approved plans. Studies have found that regulations can be effective when supplemented with economic incentives. Local communities can help build public support for strict enforcement of building codes by initiating publicity campaigns with this objective in mind and alerting citizens about ways to strengthen structures beyond code requirements.

HURRICANE SANDY LEADS NEW YORK CITY TO STRENGTHEN BUILDING CODE

In response to damage wrought by Hurricane Sandy, Mayor Michael Bloomberg convened a Building Resiliency Task Force to study potential changes in the New York City building code to help reinforce existing structures and more effectively floodproof new projects. The resulting rules increase the required minimum floodproofing elevation so that substantially damaged buildings and other new construction must be built to withstand greater flood risk. The measures are also intended to help New Yorkers limit the cost of future flood insurance premiums by better protecting properties in flood-prone areas from risk and damage. In addition to the changes in the building code, Mayor Bloomberg issued an Executive Order to waive height restrictions as defined in the zoning ordinance so that buildings can meet higher flood standards without sacrificing the size of the structure.^*

* http://www.icleiusa.org/climate_and_energy/Climate_Adaptation_Guidance/the-importance-of-climate-adaptation.

Some communities have enacted moratoria to deal with the construction in the post-storm environment. A moratorium is a short-term suspension of the right to develop, usually accomplished by a refusal of the local government to issue a building permit. Moratoria are only effective if they are ready to be activated by a pre-determined trigger, such as a hurricane, earthquake, or flood, and are an official part of the local regulatory code prior to the event. Moratoria give local officials more time to assess damage and set priorities for response, planning and mitigation efforts. They are often used to prevent property owners from rebuilding damaged structures before a complete damage assessment can be made or an acquisition program can go into effect. Moratoria can also allow officials to expand high-hazard designated areas to reflect the actual damages from a hazard event.

Structures built in the floodplain are subject to damage from rising water. In addition to increasing the number of properties at risk, development in the floodplain reduces the flood storage capacity of these areas, resulting in greater flood heights. Local floodplain regulations can keep people from locating in the most dangerous areas and require safe building designs for other flood-prone areas.

Local flood damage prevention codes prohibit or establish conditions for development in high-risk areas. Conditions can include a variety of requirements, including setbacks, floodproofing, and elevation. In some communities, these conditions are imposed in addition to or in place of other zoning, subdivision, building codes, or other local regulations.

Many local flood prevention ordinances are enacted according to minimum standards issued by the NFIP, a program administered by the FEMA that provides the opportunity for residents in participating communities to purchase federally backed flood insurance. Development in the floodplain is regulated based on FIRMs published by FEMA that show the boundaries of the 100-year flood zone (known as Special Flood Hazard Areas), as well as other types of flood areas in the jurisdiction.

There are several critical issues involved in local floodplain management. A significant problem in many communities involves inaccurate flood maps that do not reflect actual flood risks in the jurisdiction, often because new development has changed stormwater flows, which can increase flood levels dramatically. Gradual shifts in the likelihood and severity of hazards due to climate change, such as increased precipitation, earlier snowmelt, and sea level rise can also contribute to inaccurate flood maps.

Floodplain management programs can be foiled if development pressures in a community are heavy and there is insufficient leadership to honor mitigation goals. This is especially problematic in communities with a lack of suitable building sites located outside the floodplain. Flood hazard risk reduction has often focused narrowly on the protection of structures in the floodplain rather than the preservation of the floodplain’s natural functions. Restoration and conservation programs that protect wetlands and floodplains can help alleviate these limitations.

Since floodplains rarely fall within a single jurisdiction, floodplain management is often best addressed through multijurisdictional collaboration or regional governing bodies. A river basin-wide approach to flood management can be more effective than local regulatory programs enacted by individual communities. Collaborative agreements acknowledge that development in one community can affect neighboring communities both upstream and down stream. However, such multijurisdictional management agreements can be difficult to achieve, especially if left solely to local initiative.

The types of land use regulations discussed above allow a local government to control development within the jurisdiction without changing title or ownership patterns in the community. However, regulation of private property is not the only method available to local governments for controlling growth; the authority to acquire property through purchase or condemnation is a very important government power. Public land ownership and conscientious management of public lands provides direct control over the use of property. This control can be used to implement hazard mitigation and climate adaptation policies that keep development out of hazard areas.

At times, a local government must use its power of eminent domain to condemn property for certain community needs, such as schools and roads. Eminent domain is less frequently used, however, to acquire land for hazard mitigation purposes (and may never be used if federal funds are involved). More common is government purchase of land from a willing seller. Through an acquisition program, the local government offers to buy a home or business that the owner voluntarily agrees to sell. Often, when property owners have experienced multiple hazards over the years, such as repetitive flooding, they are more than willing to participate in a local buyout program. Acquisition programs for hazard mitigation are most successful when the program is fully explained to the property owner, the purchase price reflects market value, and an affordable housing alternative is available. After the sale, the local government assumes title to the property, demolishes any structures on it, and the former owner can use proceeds from the sale to move to another, safer location. Some acquisition programs include relocation rather than demolition, when the owner’s house is moved to an alternative lot out of the hazard area.

Through a buyout program, the local government becomes the new owner of the formerly hazardous property. The local government must be able to maintain the property in perpetuity (forever) so that it will never again be used in a way that poses a risk to people or structures. For some impoverished communities or those located in rural areas, being responsible for maintaining the property can be burdensome. However, local governments can transfer title to other government agencies (the state or county, for example), or the local government can deed the property to a nonprofit agency, such as a conservation land trust or environmental protection organization. This option has allowed some communities to benefit from removal of people and buildings from hazard areas without the burden of continual property maintenance.

Public acquisition serves to effectively “disaster-proof” a particular piece of property. The property is removed from the private market, and the possibility of inappropriate development is reduced. Although acquisition is typically one of the most expensive mitigation tactics, in the long run it is often less expensive to acquire and demolish a building than to repeatedly provide for its reconstruction. See Chapter 12 for a discussion of ways acquisition can provide long-term cost-savings for a local government.

In addition to reducing the public cost of recovery and reconstruction, acquisition can be a tool for accomplishing other community goals, such as increasing floodplain storage capacity; preserving wetlands, maritime forests, estuaries and other natural habitats; protecting aquifer recharge zones and riparian buffers; and providing open space, beach access, and parks and recreation areas.

Land ownership is often described as a “bundle or rights,” or interests, of which the right to develop is only one. A local government may acquire the entire bundle of rights to a piece of hazard-prone property, or it may acquire a lesser interest such as an easement or right-of-use.

When a single owner has all the rights associated with a parcel of land, that owner is said to hold the land in fee simple. Acquiring property in fee simple provides a local government with the greatest level of control over the use and disposition of a parcel.

Fee simple purchase is usually the most expensive method of land acquisition. Acquiring land that is not yet developed may be significantly less expensive to purchase than developed parcels, and has the added advantage of preventing damage to structures before a hazard event occurs. Conversely, after a disaster, high-density, repetitive loss properties may drop in price and become a better long-term investment for mitigation purposes.

As an alternative to fee simple acquisition, a local government may acquire a lesser interest in hazard-prone property, such as an easement. The owner of an easement has one or more of the rights in a property, leaving the rest of the rights in the hands of the landowner. Easements either grant an affirmative right to use the property, such as a right of access, or can restrict the landowner’s right to use the property in a particular way. Local governments can prevent development in hazard areas by purchasing a negative easement that prevents building on the land.

Easements that prevent development may be nearly as expensive to acquire as fee simple rights. Many governments also prefer to own land in fee simple because easements must be policed, and the terms of the easement must be enforced, often at considerable expense. Many governments offer to lower the tax burden for properties that cannot be developed due to an easement. However, the local government could see its property tax revenues decrease with each donated easement. For these reasons, easements have not frequently been used for hazard mitigation purposes.

Purchase of a property’s development rights is similar to acquiring a negative easement against development. Local governments can use this technique as an alternative to fee simple purchase or easements when the only purpose is to prevent building on the land. The purchase of development rights (PDR) may not be significantly less expensive than fee simple acquisition, but by owning development rights the government assumes a very high level of control over property without being responsible for its maintenance. PDR is particularly suited to land in forestry or farming, where the current use is compatible with hazard mitigation goals. In this case, PDR can prevent the land from changing into a higher-risk use, while allowing the landowner to benefit from harvesting crops or timber.

Like PDR, transfer of development rights (TDR) programs treat development as a commodity separate from the land itself. The local government first awards the property owner in the “sending area” a set of development rights based on the value or acreage of land. The sending area contains land the local government seeks to protect. The government then establishes a “receiving area” for the development rights. The receiving area is located some distance from the sending area and is a more preferable site for development. Landowners in the sending area are typically prohibited from developing their land, but they can realize the value of their property by selling their development rights to developers in the receiving areas. Developers who acquire development rights can build to higher densities than would otherwise be permitted in the receiving zone.

TDR is a complex system, which often makes it difficult for local governments to implement and for landowners to understand and accept. However, by designating high-hazard areas as “sending zones,” and more appropriate, safer areas of the community as “receiving zones,” the local government can effectively shift the location of development without reducing the overall property value of the jurisdiction. Of course, to be successful, suitable receiving zones must be available outside of the hazard area, but since a large area of the community can be designated (not just specific individual parcels), TDR provides some flexibility to developers who put the purchased development rights to use.

Hazard loss reduction is less pronounced and mitigation less effective when isolated parcels are purchased, creating a patchwork effect. Such a checkerboard pattern of purchases is also more costly and difficult for the local government to manage and maintain. Relatively few large-scale acquisition projects undertaken with federal funds to date have been conducted in the context of a comprehensive management program to avoid a disorderly land use pattern; instead, local governments have generally acquired an inventory of scattered empty lots. However, some communities are beginning to proactively address this issue by prioritizing groups of structures or neighborhoods for acquisition projects, rather than focusing only on specific sites. For example, in 2012, Charlotte-Mecklenburg Storm Water Services developed an Orphan Property Floodplain Acquisition Plan to complement the ongoing Flood Risk Assessment and Reduction Plan. The Plans put more emphasis on acquiring groups of properties, referred to as “Project Areas,” rather than individual properties for mitigation purposes.

Like other government powers, the local government’s authority to raise revenue is dictated by state law. Taxes, especially property taxes, have traditionally been the largest single source of revenue for most local governments, sometimes providing more than half of all receipts. Local governments are also granted the power to charge user or administrative fees, make special assessments, issue bonds, and receive grants-in-aid. It is important to note that the power to levy taxes, assessments, and fees extends beyond merely the collection of revenue, and can have a profound impact on the pattern of development in the community.

By assessing certain areas of the community with differential tax rates or assessments, the local government can influence the affordability of development. The community can thereby steer development to desirable, safe areas, while providing disincentives for developers to build on lands identified as hazardous or environmentally sensitive. Tax abatements may also be used by local governments to encourage property owners and developers to integrate mitigation measures into new construction and to retrofit existing buildings. Incentives have been applied to promote storm proofing, flood proofing, wind strengthening, and seismic retrofitting. This is similar to programs that use taxation as an incentive for property owners to carry out energy conservation, historic preservation, and other activities of value to the community.

Real property taxes are based on the assessed value of property, including the value of the land along with any improvements, such as structures. Differential assessment is a technique for reducing the tax burden on land facing development pressure by recognizing that undeveloped properties require fewer public services. This technique can moderate the pressure to develop land at its best use by reducing the tax rate applied to land so that payments are equal to the cost of essential services. Tax assessments may also reduce the assessed value of land to a percentage of urban land, or assess the land based on its income-producing capacity, as opposed to its market value.

Preferential taxation has been used to preserve land that is valuable to the community in ways other than monetary, such as farmland, forestland, historic properties, and wildlife habitat. Although preferential taxation has not been used extensively for mitigation purposes per se, local governments can apply differential assessments to reduce the development pressure on hazard-prone lands such as floodplains. This is especially effective where hazard areas overlap other sensitive lands such as wildlife habitat or aquifer recharge areas, effectively linking multiple community goals.

Many local governments levy special assessments against property owners who receive a direct benefit from a public improvement. This technique shifts the financial burden from the general public to those who gain the most. Local governments often levy special assessments for public improvements such as streets, sidewalks, water and sewer systems, storm sewer and drainage systems, and watershed improvement projects.

There are a number of ways to apply this technique for mitigation purposes, from one-time assessments that raise revenue for a specific improvement to long-term assessments that fund ongoing projects. Special assessments for hazard mitigation can include the following:

• Construction of structural projects, such as seawalls, retention basins, dikes, berms, and so on

• Creation of a special storm services district, where funds go toward mitigation, disaster recovery, and response activities in that district, including replacement of damaged infrastructure

These charges may or may not have the effect of discouraging development in the assessment district. However, they do transfer some of the cost of living or doing business in environmentally sensitive or hazard-prone areas to those who choose to do so.

PAYING FOR HARD SURFACES

In the Charlotte–Mecklenburg County, North Carolina metropolitan area, a storm water fee program pays for local efforts to reduce flood risks, improve drainage and reduce water pollution. The cost of the program is funded completely by a user fee because it charges property owners for a service—it is not a “tax on rain water.” In contrast to property taxes, which are calculated based on the value of property, the tiered storm water fee system used in CharMeck is based on: (1) how much each property contributes to storm water runoff and (2) the cost of providing storm water services. The rate structure is based on the size of each property’s impervious area (hard surfaces). During a rain storm, a house or commercial property with more impervious surface will send more rainwater into the storm system. Impervious areas include parking lots, sidewalks, driveways, rooftops, patios, tennis/basketball courts, swimming pool aprons, and any other area that does not allow rainwater to soak into the ground. The size of a parcel’s impervious surface is determined by aerial photos taken during the winter and early spring when leaves have fallen off the trees. Computer software is used to draw around the edges of the hard surfaces shown on the photo to calculate the impervious square footage for each parcel.

In addition to maintaining the county and city’s vast system of pipes, catch basins, grates and culverts, the storm water fee also pays for maintaining and improving named creeks, mapping flood risks and regulating floodplain development, and monitoring and improving water quality in creeks and lakes (Figure 8.2).

FIGURE 8.2 Many techniques can be used to reduce impermeable surfaces that increase stormwater runoff, including rain gardens, vegetated swales, and green roofs. These permeable pavers can be used for low-intensity parking while also allowing rainwater to filter into the soil.

In order to provide the services that their residents need, local governments have the authority to spend public funds for public purpose. There are basically two types of expenditures that local governments make on a regular basis. We will discuss both operational budgets and capital improvement spending in this section.

Most local government spending involves a considerable amount of discretion. Ideally, spending decisions are made within a broader policy context, so that spending authority is used to accomplish broader development goals for the community. It is also important to note that local governments have the power to withhold spending when it is in the best interest of the public at large. This authority to make or reserve expenditures can be a powerful tool for communities to mitigate the impacts of some types of hazards and adapt to climate change.

Each year, local governments set an operating budget to pay for ongoing services, such as waste collection, fire and police protection, drainage maintenance, and the like. These types of expenditures are usually covered in the annual operating budget of the municipality. The operating budget is not generally used to pay for large, one-time mitigation projects, but there is ample opportunity within a municipality or county’s operating budget to insert risk reduction and climate change adaptation strategies into day-to-day activities. Some of these strategies involve no extra money at all, just a rethinking of how and where local funds are spent to perform routine tasks. For example, regular trimming of tree limbs over power lines can help reduce a community’s risk of outages during high winds and ice storms. Keeping enough money in the operational budget is crucial to maintaining these programs.

The second type of local expenditure involves major one-time capital improvement projects. The definition of a capital improvement differs from community to community. The common meaning includes new or expanded physical facilities that are relatively large in size, expensive, and permanent, such as streets and bridges, schools, public libraries, water and sewer lines, water treatment plants, parks and recreational facilities, and government offices. In smaller communities some expenditure, such as the purchase of a fire engine, may also be considered a capital expenditure.

Most communities make plans in advance to help guide decisions about how, when, and where public spending for major projects will occur. A capital improvements program (CIP) is a multiyear schedule of public physical improvements. The scheduling is based on projections of available fiscal resources and the choice of specific improvements to be constructed for a period of 5–6 years into the future. The capital improvements budget usually refers to facilities that are programmed to come on line during the next fiscal year.

An important distinction between the capital improvements budget and the capital improvements program is that the 1-year budget may become a part of the legally adopted annual operating budget. In contrast, the longer-term program does not necessarily have legal significance, nor does it necessarily commit a local government to a particular expenditure in a particular year. It merely serves as a planning tool to guide future decisions about upcoming expenditures.

When local governments build new structures and facilities or renovate old ones, they have the opportunity to build them according to hazard-resistant standards. These standards can be incorporated directly into local capital improvement policies, along with features that call for sustainable building practices such as the use of natural lighting, water reclamation systems, and efficient heating and cooling systems that use renewable energy sources. At a minimum, public buildings should conform to the standards set for private development. Ideally, government structures should be built to even higher standards if the risk of loss is significant.

The decision of where to locate public facilities is also critical. By locating public facilities outside of hazardous areas, local governments can reduce the costs of repair and replacement following a disaster. Locating lifeline services such as fire, police, hospitals, emergency operations centers, and rescue stations outside of hazard areas is especially important to ensure that the response capability of the local government is not impaired during a disaster. Building public facilities to high standards and in non-hazard areas also makes the local government a good leader in mitigation and sustainable building practice, setting the example for private property owners.

In addition to being directly involved in the siting and construction standards of public buildings, ideally capital improvement programs can be used to influence private development. Public spending decisions have long been considered a growth management tool, since growth and development tend to follow the availability of public services. In particular, highways and water and sewer utilities have been called “growth shapers.” The conscientious withholding of public spending can also impact patterns of development in the community. By establishing certain areas where the local government will not extend essential services, such as water and sewer systems, growth may be limited in those areas. Local governments can use policies about where (and where not) to provide public infrastructure to discourage development in identified hazard areas.

Withholding public spending to discourage private development is less feasible in areas that have already reached build-out, or where private developers are able to front the cost of the infrastructure necessary to support new construction. In localities where soils and other topographical conditions can support on-site sewer (septic tanks) and potable water (wells), the refusal to extend public infrastructure has little influence as a hazard management tool. Public health laws may restrict the use of septic systems or private wells in some areas, but often these laws are not based on hazard risks (although some local and state laws do restrict septic tanks and wells in areas subject to frequent flooding because of the risk of contamination).

A key component of a resilient community is the location of public infrastructure. This is particularly true following a disaster. The placement of roads, water, sewer, schools, libraries, and other public facilities is crucial during the rebuilding phase to guide overall community development patterns. Following a hazard event, where and how capital improvements are built and rebuilt can dramatically shape future vulnerability of the community. Some communities have made use of the window of opportunity following a disaster to revamp their public investment policies. For example, Nags Head, North Carolina, implemented a policy not to expend public funds to repair any private road that is damaged or destroyed as a result of a severe storm, except in conjunction with the repair of the town’s water system.

Despite the theoretical potential, in practice capital improvement programs are not widely used for hazard mitigation. Furthermore, jurisdictions often ignore their own capital improvement programs. Studies have shown similar ineffectualness for policies that locate public facilities to discourage development. Such policies tend not to alter the basic spatial pattern of private development in hazard areas.⁷ Moreover, restricting public services is usually unpopular with property owners who require the infrastructure in order to develop their land. Local governments may feel obligated to limit the geographic scope of the program to make it more politically acceptable. Local governments may also count on receiving federal support to rebuild public facilities in the event of a disaster and therefore have little incentive to spend their own funds on protecting them. Generally, these policies are much more effective when linked with complementary land use regulations and tax policies.

Although local governments are responsible for providing much of the infrastructure and many of the facilities that support community development, a significant number of spending decisions are not within the control of local governments. Federal and state agencies, as well as many regional entities often enact legislation or carry out programs and policies that trump local government authority. For example, most major highway projects are funded with federal and/or state funds, with little local influence on road capacity, location, or even maintenance and repair.

Water resource development in many parts of the country is also controlled by state and regional agencies, with relatively little local input. Some federal land management programs, such as beach nourishment undertaken by the U. S. Army Corps of Engineers, provide additional stimulation for growth in vulnerable coastal areas. State law can also dictate that local governments provide necessary infrastructure to developed land within their jurisdiction. These adequate facilities laws can make it difficult for local governments to control growth by withholding spending.

Among the powers held by local governments is the authority, and perhaps even the duty, to provide public access to reliable data and accurate information about the community. An informed and educated citizenry is an integral part of managing hazards at the local level. It is arguably equally important to educate the public about the effects of climate change, which in many areas is a less immediate concern, but one which will have long-lasting implications for the resiliency of the community. Local residents often assume that current building codes, zoning regulations, subdivision review, and permitting processes will adequately protect them and their property from the impacts of hazards, but this is not always the case. Making the public aware of the hazards it faces is the first step toward making the community safer, and overcoming a lack of awareness should be an integral part of any local mitigation or adaptation program.⁸

Many local governments have carried out programs to alert residents to natural hazards—both the dangers as well as the opportunities to lessen hazard risks. Other communities have focused on educating visitors about fragile ecosystems, sensitive natural areas, endangered wildlife and plant species, or other natural wonders that need to be protected and conserved. In addition to residents and tourists, local target audiences for education and awareness include a wide range of community members, such as lenders and insurance agents; builders, architects, and realtors; and local elected and appointed officials and public staff, including the governing board, building inspectors and zoning officials, and emergency first responders.

It is not uncommon that the prevailing perception of risk in a community is skewed, even in areas where natural hazards have occurred in the past. Information regarding hazard frequency is often misunderstood. For example, the common understanding of the 100-year floodplain is that this area will only be flooded once in a century. Residents also often fail to grasp the extent of past hazard events, such as flood heights. The understanding and acceptance of climate change also varies widely, and many citizens may have unclear or incorrect information about the expected impacts on a community’s vulnerability. Such misperceptions highlight the need for publicizing accurate information.

There are several different methods that local communities can use to promote community awareness, including real estate disclosure, community awareness campaigns, hazard maps, and disaster warnings. These are discussed in more detail in Chapter 12.

Local government planning provides a cohesive framework for managing all aspects of growth and development in the community. Most large and midsized municipalities and county governments in the United States carry out some sort of planning function. In some states, local planning is mandated, and all regulations and ordinances must be consistent with the plan. Even in states that do not mandate local comprehensive planning, communities may be required to prepare plans in order to be eligible for certain funding programs. These include federal programs such as the CDBG—administered by the U.S. Department of HUD; grants under the Clean Water Act from the EPA; and grants provided under the Disaster Mitigation Act administered by FEMA, among others. These federal programs establish planning criteria that must be met in return for local access to grant funds.

There is a wide variety of plan types, some of which are narrow in scope and deal with only one particular topic (such as transportation plans or beach management plans), while other local plans are broader and combine multiple objectives. Some local plans are freestanding documents, others are included as part of a wider community management program. Some communities have officially adopted all their plans and view them as regulatory devices, while other communities merely use plans as policy guidance without the force of law. The degree to which plans are actually implemented and the level of their effectiveness for influencing land uses also varies widely.

Among the types of plans that local governments commonly use are hazard mitigation plans, post-disaster recovery plans, land use plans, comprehensive plans, floodplain management plans, capital improvement plans, emergency operations plans, transportation plans, economic development plans, parks and recreation plans, and open space management plans, to name but a few. Many communities have come to realize the value of incorporating principles of hazard resiliency in their current planning efforts. Still others have begun to consider climate change impacts and have crafted adaptation action plans to deal with growing implications of climate change. However, some communities continue to compartmentalize the various planning functions and have yet to consider a sustainable development approach to planning and growth management.

In many jurisdictions, a land use plan serves as the basis for much of the regulation of property use. A comprehensive plan also addresses economic development, environmental, transportation, and social concerns. City and county planners study the physical characteristics of the land. Where are the steep slopes? Where are the waterways—rivers, streams, and lakes? They map existing streets, rail lines, water lines, sewers, schools, parks, fire stations, and other facilities that can support development. They also note current uses of the land. Where are the factories, the warehouses, the stores and offices, the residential neighborhoods? Ideally, the comprehensive plan also surveys the hazard locations in the community: what areas are subject to flooding? Where might wildfires occur?

On the basis of their studies, planners prepare maps showing how various areas might be developed to make use of existing public facilities and to avoid mixing incompatible land uses. The maps may also indicate where new water lines and sewers might be built most easily. These maps are then presented to the public for comment. After the public has reviewed the maps, the planners prepare a detailed set of maps showing current and possible future uses of the land. The local governing board might review and vote on this final set of maps itself or delegate planning authority to an appointed planning board. The approved maps and supporting narrative become the official land use plan for the community, called a Comprehensive Plan.^*

Local officials can use land use plans to guide their decisions about where to locate new public facilities. Some governments use them only for these nonregulatory purposes. A land use plan also establishes a basis for regulation of property uses. However, the plan itself does not set up a system of regulation. Zoning and subdivision ordinances are systems of regulation based on a land use plan.

The main advantage of land use or comprehensive plans as a hazard mitigation tool is that they guide other measures, such as capital improvement programs, zoning ordinances, and subdivision ordinances. Comprehensive planning requires local governments to collect and analyze information about land’s suitability for development. This process helps policy-makers and local residents understand the limitations to development in hazard-prone areas. In turn, land uses can be tailored to the hazard risk, typically by reserving dangerous areas for less intensive, hazard-compatible uses such as parks, golf courses, backyards, wildlife refuges, or natural features.

Planning is the key to transforming mitigation from a reactive process to a proactive one. Hazard mitigation planning is the comprehensive and orderly process of determining how to reduce or eliminate the loss of life and property damage resulting from natural and human-made causes. However, in the past, many communities have undertaken mitigation actions with good intentions but with little advance planning. In some cases, decisions have been made on the fly in the wake of a disaster. In other cases, decisions may have been made in advance but without careful consideration of all options, effects, or contributing factors. Chapter 12 discusses hazard mitigation planning in detail.

The primary purpose of hazard mitigation planning is to identify community policies, actions, and tools for implementation over the long term that will result in a reduction of risk and potential for future losses community wide. Under the Disaster Mitigation Act of 2000, local and state governments are required to prepare hazard mitigation plans in order to receive federal mitigation funds in the future. As a result, many more communities are now preparing mitigation plans than ever before, and it is an exciting time for those in the planning and emergency management fields as they find ways to work together to bring these plans to life (the Disaster Mitigation Act is discussed in more detail in Chapter 6). Effective planning forges partnerships that will bring together the skills, expertise, and experience of a broad range of groups to achieve a common vision for the community, and can also ensure that the most appropriate and equitable mitigation projects will be undertaken. Hazard mitigation planning is most successful when it increases public and political support for mitigation programs, results in actions that also support other important community goals and objectives, and influences the community’s decision making to include hazard reduction considerations.⁸

All counties and many municipalities (depending upon size) develop and adopt an EOP, which predetermines actions to be taken by government agencies and private organizations in response to an emergency or disaster event. EOPs typically describe the local government’s capability to respond to emergencies and establish the responsibilities and procedures for response. To keep plans up to date, local governments conduct exercises based on actual risk scenarios. Issues that emerge from post-disaster scenarios often draw attention to pre-disaster activities that can be undertaken now to prevent future losses. FEMA makes available post-disaster mitigation and recovery exercises for flood, earthquake, and hurricane disaster scenarios, as do many state emergency management agencies.

One of the most effective adaptation tools used by local governments is the power to plan communities. Through land use planning, local governments can increase resiliency to major climate shifts and ensure that our communities are equipped with built-in mechanisms to face and mitigate such changes.⁹ Traditionally, local plans have drawn on past experience to direct decisions for both present and future growth. But with the advent of climate change and the need to plan for adaptation, a dramatically different approach to community development planning is called for.

Climate adaptation planning requires decision making to account for changes that are projected to take place in the future. Further, climate change differs both in scale and in type from past challenges faced by communities, and, as such, will compel local governments to explore new concepts and new planning tools and approaches. For instance, because the rate of change along some coastlines is rapidly increasing due to heightened intensity of storm activity and sea level rise, coastal local governments may be unable to rely on traditional methods for identifying the safest locations for transportation, housing, commerce, industry, recreation and essential public facilities. Methods such as erosion studies based on erosion rates of the last 30 years, or flood maps that have not incorporated potential sea level rise onto flood zones, are quickly becoming outdated. In other regions of the country, where changes in water availability due to climate change-induced higher temperatures are occurring, communities are experiencing higher frequency of drought and wildfire. These local governments will need to consider future water demands that exceed current resource supplies to come up with ways to plan for new conditions involving less water.^*

Planning for a range of strategies and actions can help local governments reduce the negative impacts of climate change, and maximize any positive impacts. What makes climate adaptation planning strategies so appealing are their numerous co-benefits: saving money, decreasing energy use, increasing community livability, enhancing public health, and creating more robust and just communities.⁹

A critical component of emerging adaptation plans is the consistent use of metrics, baselines, and assessments. These tools can help local governments understand their climate change vulnerabilities; identifying metrics allows for an effective measurement of climate change impacts relevant to the local community; and establishing baselines for each metric helps communities track ecological, economic, and social changes: “Collecting the evidence” is the first step to effectively creating an adaptation plan and creating a foundation for delivering adaptation actions. Finally, assessing changes in the selected metrics will require communities to put the data to work by comparing opportunities, threats, and assets.⁹

For example, the City of Chula Vista, California recognized rising temperatures as a relevant climate changing condition and proposed eleven adaptation strategies to address this condition. The City identified “potential metrics that could be tracked and reported on an ongoing basis to quantify the City’s performance” in preparing for changing conditions. Some of those metrics include the following:

• Number of surveys performed to monitor shifts in local species range and diversity

• Number of habitat restoration areas where climate change impacts were incorporated into designs

The adaptation plan drafted by the City of Lewes, Delaware provides another good example of how communities can benefit from the use of metrics, baselines, and assessments. The City identified key metrics, established baselines, and then honed in on two key vulnerabilities through an assessment process. Those vulnerabilities—saltwater intrusion into the aquifer and property damage from increased flooding—were then given priority in seeking methods to adapt to these changing conditions. This process provided a basis upon which Lewes could measure indicators of local importance (thereby keeping adaptation planning relevant to the community) and fashion response plans in the most effective way.¹⁰

New York City’s “PlaNYC” integrates an extensive adaptation strategy through its far-reaching comprehensive plan, based on a thorough assessment of the City’s climate change vulnerability. The plan mandates standards based on a variety of areas of concern, including the following:

• Precipitation, flooding, and storm water runoff to ensure potable water and to protect the wastewater infrastructure.

• Increased energy demand during heat waves and designating public buildings as emergency cooling centers.

• Emergency power generators to supply energy when peak demands arrive during heat waves or in case of electric outages.

• Underground energy and telecommunications infrastructure to withstand flooding and sea level rise.

• Energy, building, and sewer codes to adapt buildings to high wind conditions, flooding, and high temperatures.

• Transportation infrastructure to accommodate flooding, saltwater damage, increased power demands and power outages, overheating of subway platforms, and increased stress on infrastructure.⁹

These examples illustrate the range of climate adaptation planning that is taking place in communities large and small. Using metrics and assessments to gauge progress toward resiliency, along with moving beyond exclusive reliance on historical patterns and trends is helping local governments to retool their planning processes. This approach of integrating new science and new technological and policy opportunities is pushing communities to be truly prepared for climate change.

SELF-CHECK

• Define building codes, zoning maps, cumulative impact assessment, capital improvement, and lifeline services.

• Name the five basic local government powers.

• List four regulatory powers of local governments.

• Name two ways local governments are changing their planning processes to develop climate change adaptation plans.

So far in this chapter we have reviewed the authority of local governments under the police power to make communities more resilient to the impacts of natural hazards and adapt to climate change. To understand how these powers are executed during the day-to-day business of the community, we must be aware of how local governments are organized and the political machinery that is necessary to implement mitigation strategies.

The type of organization dictates where emergency management and planning fit into the local government structure. This can have direct bearing on the ease to which hazard mitigation, preparedness, and climate change adaptation can be integrated into the policies and programs of the community. For example, in communities where the manager wields significant authority, the manager can direct department heads to consider hazard risk reduction as part of their regular duties. This can be as simple as ensuring the public works director understands the importance of keeping storm drains cleared as part of routine stormwater management system maintenance so as to avoid flooding during minor or major precipitation events. In any case, no matter which type of local government is in place, it is critical to have a champion, or a visionary figure who is willing to take a stand on issues that may be politically contentious—such as climate change adaptation or land use regulation—that can determine the future resiliency of the community.

Definition of Local Government: For purposes of federal disaster assistance and mitigation planning under the Disaster Mitigation Act of 2000, FEMA defines a local government as

any county, municipality, city, town, township, public authority, school district, special district, intrastate district, council of governments…regional or interstate government entity, or agency or instrumentality of a local government; any Indian tribe or authorized tribal organization, or Alaska Native village or organization; and any rural community, unincorporated town or village, or other public entity.^*

In the following sections of this chapter, we will describe how units of government are typically established, the processes by which decisions are made, and how policy is formulated and adopted at the local level. As you read this material, consider how resiliency and risk reduction might be implemented in each type of government structure.

There are roughly five basic types of local government in the United States, which can be grouped into general-purpose and single-purpose governments. General-purpose local governments perform a wide range of government functions, and include counties, parishes, municipalities, towns, and townships. Single-purpose local governments such as school districts and special districts have a specific purpose and perform one function.

All states, except Connecticut and Rhode Island, are divided into counties (in Alaska these subunits of government are called boroughs and in Louisiana they are called parishes). Counties can be urban or rural. They can combine municipalities within them or can have no incorporated communities within their borders.

Counties were originally created to act as an administrative unit of the state and to perform activities of statewide concern at the local level. Today counties often have more policy- and decision-making responsibility. Basic county functions include property assessment, revenue collection (taxation), law enforcement, jails, elections, land records, road maintenance, and emergency services. Counties may also provide additional services, including health care, social services, pollution control, mass transit, and industrial and economic development.

1. A County Board is made up of “Supervisors” or “Commissioners.” This is the most common type of county government in the United States, where the board is elected by voters in the county. The board serves as the central policy maker, approves the county budget, and appoints other officials. In some counties, the board shares power with other elected officials, including the sheriff, public safety officer, county prosecutor or district attorney, county tax assessor, coroner, and the county clerk or clerk of court.

2. In the County Council-Elected Executive form of local government, the board and all executive officers are elected by the county voters. In these counties, the board performs legislative (rule-making) functions, adopts the budget, sets policy, and performs financial audits. The executive officer performs executive functions such as preparing the budget, implementing policy, and appointing department heads.

3. In the County Council-Administrator form of local government, the board is more hands off in the day-to-day running of the government. In these counties, the board performs legislative functions such as setting policy and adopting the budget, whereas a professional administrator hired by the Board manages government affairs.

Municipalities are incorporated units of government, formed by the state through charter or other means. Throughout the United States, municipalities are variously referred to as cities, towns, hamlets, villages, or boroughs. These are the most frequently used terms to describe urban areas, which, in general, are more densely populated than unincorporated areas (areas outside municipal boundaries). In some states, the various terms have no special legal meaning, while in others different status is afforded to each type. In all states, municipalities are authorized to make decisions for the community and to implement policies and programs that fall within their delegated powers and responsibilities. Like counties, municipalities are general-purpose units of government. Unlike counties, they generally have greater decision-making authority and discretion, especially in home-rule states.

There are three main types of municipal government: (1) Mayor-council, (2) City commission, and (3) Council-manager.

1. Mayor-council is the older and most common type of local government in both the smallest and largest of cities. There are two varieties, depending upon the strength of the mayor:

a. In the strong mayor-council, the mayor is elected by the voters and is the source of executive leadership. The mayor prepares the budget, hires and fires top-level city officials, performs daily administrative duties, and has veto power over the council.

b. In the weak mayor-council, power and authority are fragmented. The council is the source of executive power, while the mayor is considered an executive figurehead (“ribbon cutter”). The council appoints city officials, develops the budget, and elects the mayor.

2. In the city commission plan, the legislative and executive functions are merged. Each commissioner, who is a politician, tends to be an advocate for his or her department (usually by asking for a larger share of the city budget). The commissioners generally make policy and lead major departments. One commissioner serves as mayor, presiding over commission meetings.

3. The council-city manager form of municipal government predominates in cities of 10,000–50,000, especially in suburban communities and cities of the Sunbelt. In theory, the politics and policy-making functions of government are separated from the administration and execution of policies. The City Manager serves at the pleasure of the council, appoints and removes department heads, oversees delivery of services, prepares the budget, and makes policy recommendations to the council. In many communities, the manager is quite powerful, and can play an activist role in local affairs. Because of the heightened level of professionalism and degree of coordination between departments that this organizational structure involves, local governments conducted under the council-manager plan are more likely to infuse mitigation into all local government operations, from keeping new school buildings away from the dangers of landslides, to designating stream banks as recreational greenways, to constructing safe rooms in all government buildings.

Most local governments carry out the day-to-day business of running a municipality or county through local government employees located in individual government departments. The number, size, and organizational complexity of the various departments depend on the size, relative wealth, and geographic location of the community itself, but there are a few basic types of departmental functions that are typical nationwide. For instance, most local governments have an administrator or manager’s office, as well as a budget and financial office. Local governments may have their own building code enforcement and inspections departments, or may share such functions among several smaller municipalities in a single county. These offices are often combined with planning and zoning, as well as floodplain management. Local governments must have an attorney on staff, and counties are required to have an emergency management or preparedness department or agency, as well as fire protection, public safety, medical emergency agencies, and hazardous materials management. Most counties and municipalities also have departments that deal with day-to-day services, such as mass transit, housing, and sanitation and public works. Increasingly, municipalities have offices that deal specifically with sustainable development, resiliency, and climate change adaptation.

HURRICANE RESPONSE GALVANIZES A NEW GALVESTON ADMINISTRATION

The city commission plan of municipal government was largely created as a reaction to the mayor-council form of government. In Galveston, Texas, in 1900 the then mayor-council government was viewed as ineffective in its response to a hurricane disaster that killed 6000 people and demolished the city. The Texas legislature authorized the creation of the commission, and by 1904 the new city government had entirely rebuilt Galveston, running the city more like a business.

Towns and townships are general-purpose units of local government, distinct from counties and municipalities. In some states, towns and townships have broad powers, acting like other general-purpose units of government. Examples of this type of township can be found in New England, New Jersey, Pennsylvania, Michigan, New York, and Wisconsin.

In other states, towns and townships have more limited authority. These tend to be more rural in nature, offering limited services such as roads and law enforcement. These townships are found in Illinois, Indiana, Kansas, Minnesota, Missouri, Nebraska, North Dakota, Ohio, and South Dakota.

Special districts are single-purpose local governments that are authorized to perform one function or to meet the service needs of one particular area. Special districts are created to address specific issues in the community such as fire protection, sewage and water management, mosquito control, drainage and flood control, soil and water conservation, school districts, mass transit, and even redevelopment and disaster recovery, among others.

Special district officials may be elected or appointed by another government, such as the county. Budgets and staff of special districts range from very large to minimal. Examples of powerful special districts include the Port Authority of New Jersey, the Chicago Transit Authority, and the Los Angeles County Sanitation District.

Service districts can extend services beyond the borders of a generalpurpose local government and can tackle regional problems that transcend political jurisdictions. For example, a flood control district can deal with flooding of a river that runs through several counties. Service districts are often used to provide services that are inefficient to provide on an individual basis, based on economies of scale. For example, electric power can often be provided more efficiently to several counties than one single county’s population. Regional utilities may also be better equipped to handle power outages and other emergencies.

In many respects, local governments act as freestanding, autonomous units, each with its own power base, its own basic governmental structure, and its own decision-making and policy-formulation processes. Yet while a strong identity and unique character are essential to a community’s sense of place, many of the challenges that face communities are broader in scope and are best addressed with a regional approach. Natural hazards clearly fall into this category of issues that communities must deal with, because many types of hazards do not strike solely within clearly defined political boundaries and their impacts can be experienced over a wide geographic area. This is particularly true of flooding, which can be exacerbated by communities living in the same watershed or river basin. A parochial view is not uncommon among local governments, and cooperative, joint-venture activities are not entered into lightly. Nevertheless, finding solutions to hazard-related problems in a collaborative way can often be more effective than individual local governments working alone.

Regional agencies are often based on ecosystem boundaries, such as a river basin or watershed. Other regional governments consist of multi-jurisdictional collaborations, such as councils of government that operate within a state, or multistate compacts and alliances. There are many different approaches to implementing regional or ecosystem management. In some areas, management has been undertaken by a regulatory agency. This may take the form of a free-standing body spanning local or state borders, or it may operate within a state government, either as a separate entity or as a division of an existing department or agency. Such regulatory agencies are usually created by the legislatures of the state(s) and may be given both regulatory and enforcement powers.

Other regional management bodies are more administrative in nature, and may perform coordinating functions or act as advisory boards to state and/or local governments. Many states have legislation that enables localities to voluntarily form councils or federations to study regional resources and problems, and to promote cooperative arrangements and coordinated action among their member governments.

The success of regional organizations in tackling concrete problems such as development in hazard areas has been spotty at best. Some observers have argued that fragmentation among levels of government within a federal system is a fact of life that cannot be changed. The function of regional entities in governing land use in areas prone to natural hazards is likely to remain limited to broad-brush planning, intergovernmental coordination, and capacity-building functions of providing information, education, and technical assistance to local governments. Special purpose regional organizations have been more successful when they have been granted authority to directly implement or compel implementation of their plans and policies.

SOUTH FLORIDA HAS A VISION

The Strategic Regional Policy Plan for South Florida, adopted in 2004, contains specific and extensive guidance on natural hazard reduction. The plan presents an overall vision for South Florida that emphasizes achieving a livable, sustainable, and competitive regional community. The Plan includes a range of policies relating to Coastal High-Hazard Areas as well as Emergency Planning that focus on hazard mitigation and preparedness for public and private development in Southeast Florida.^*

* http://www.sfrpc.com/ftp/pub/srpp/SRPP%2006-07-04.pdf.

In its administration of the DMA, FEMA encourages communities to cooperate with one another when preparing their mandatory local hazard mitigation plans.⁸ Planning on a broader scale can bring additional resources, such as staff, funding, technical ability, and experience to the effort, and can help mitigate hazards that originate outside of a community’s jurisdictional boundaries. For example, a multijurisdictional planning area may include several towns located along the same fault line whose main hazard is earthquake, or communities that lie within the same watershed. Multijurisdictional plans may also be created by communities that are contiguous to one another (e.g., a tri-county plan), or by a county government and the municipalities and townships within it.

In some regions of the country, local governments band together to form Councils of Government, or COGs. The voluntary organizations of county and municipal governments provide services that are handled on a regional basis rather than by individual local governments. Some COGs are fairly small, consisting of a pair of local governments working together, while other COG-like structures are much larger. In Washington, DC, for example, the local COG in essence covers three states, while a four state partnership exists in the eastern panhandle of West Virginia.

Typical services provided by COGs include programs for senior citizens, land use planning, economic development, environmental protection, and other types of collaborative efforts. Member governments pay dues to support the work of the regional council and appoint representatives to discuss problems they share and to work out ways to deal with issues of mutual concern. Frequently, areas of a state that are least advantaged and that have fewer resources (often rural counties) rely on COGs to help administer federal and state programs, write grants, and provide assistance with plan writing and other local functions. Although some COGs have successfully addressed hazard risks that span the region, in general COGs have not typically been used to deal with natural hazards or climate change impacts on a larger than local scale. More commonly, COGs have assisted local communities to carry out federal disaster recovery programs and develop local hazard mitigation plans.

Legislation in some states allows municipalities and counties to enter into interlocal agreements to cooperatively perform any function that can be carried out as an individual local government. Many of these mutual aid agreements enable local governments to work together to provide emergency services. The agreements establish a means through which signatories can offer and receive assistance in times of disaster. Mutual aid agreements address logistics, deployment, compensation, and liability issues, and can also assist in faster reimbursement of federal disaster aid. The pre-established policies and procedures of a mutual aid agreement make intragovernment cooperation more expansive and efficient, serving to protect property, minimize costs, and save lives.

SELF-CHECK

• Define general-purpose local governments and single-purpose local governments.

• Discuss the role of the city or county manager.

• List three issues that might be addressed in a mutual aid agreement.

• Describe two types of local collaborative activities.

In this chapter we have seen that local governments have a range of powers that allow them to control growth and development in ways that can decrease the risk of natural hazards, adapt to climate change, and establish policies to increase overall resiliency. In all cases, no matter which type of local government is in place, what the local hazards are, or what level of resources is available, it is critical to have a champion, or visionary figure who is willing to take a stand on issues that may be politically contentious—such as climate change adaptation or land use regulation—that can determine the future resiliency of the community. In other words, the capacity of the community to tackle these challenges depends on a certain level of political willpower. The immediate and midrange fiscal benefits of intense growth must be weighed carefully against the long-term costs associated with that growth, including increased vulnerability when development occurs in hazardous locations or when new homes, buildings and public facilities are built on the cheap, without incorporating high standards to withstand high winds, floods, wildfire, storm surge, or earthquake. These are issues that require foresight and long-range thinking and should be addressed holistically, even in a political climate that might sway with each election cycle. The local champion—whether it be the manager, mayor, citizen advocate, local business leader or community activist—is the one who will step up to the plate to make sure that climate change is considered and hazard risk is minimized with each public development decision that is made.

Local governments represent only one of the many layers of management in hazardous areas, but they are arguably the most critical for creating resilient communities. It is at the local level that land use patterns are determined and other development issues are decided. It is also at the local level where hazards are experienced and losses are suffered most directly, and where local knowledge can help inform the various approaches to minimize those losses. This chapter discussed the powers delegated to local governments by the states, powers that can be used to reduce hazard risk. These powers include regulation, acquisition, taxation, education, spending, and planning. The chapter also described some of the legislative and constitutional limitations on these powers. The chapter next presented the types of local government structure most prevalent in the United States, and some of the ways that local governments relate to one another within the state or across regions. The chapter summed up the key to successful long-term risk reduction by observing the need for a local leader who will champion the cause of community resiliency, even when it may be politically unpopular to do so.

1. Sustainable communities are those that reduce opportunities of future generations to meet their own needs. True or False?

3. Keeping people and property out of hazardous areas is one of the main goals of mitigation. True or False?

4. Development of environmentally fragile areas decreases a community’s resiliency. True or False?

5. A building code is an example of a local government’s taxation powers. True or False?

6. Which of the following is an example of a local government’s regulatory powers?

7. A zoning ordinance defines the types and intensity of uses allowed within a designated zone. True or False?

10. Local governments require developers to provide infrastructure in subdivisions according to the highest profit margin. True or False?

11. New developments share in the financial burden that they impose on a community through

12. A regulation that deprives an owner of all economically beneficial use of the property is an unconstitutional

13. A special district is an example of a single-purpose government. True or False?

14. Emergency management is the sole responsibility of county governments. True or False?

16. Special districts can tackle regional problems that transcend political jurisdictions. True or False?

1. Consider a community that has been affected by a natural hazard. In what ways are hazard mitigation and preparedness linked to the sustainability of a local community?

2. A sustainable community must be hazard resilient. What are four other issues that a sustainable community must consider?

3. How does suburban sprawl affect a community’s sustainability and vulnerability to hazards?

5. How can local government powers be used to manage a community’s growth to mitigate the impacts of natural hazards or adapt to climate change?

6. How is acquisition a long-term solution to the problem of repeatedly paying for rebuilding?

7. Give reasons why easements should and should not be used for hazard mitigation purposes.

9. What are the five types of local government structures in the United States? Which are general-purpose and which are single purpose?

10. Counties were originally created as an administrative unit of the state. Name the two states that are not divided into counties.

11. Special districts are single-purpose governments created to meet service needs in a particular area. List five types of special districts.

12. A community that seeks hazard resilience must be willing to invest in the capability for developing and carrying out mitigation programs and policies. List five government activities that demonstrate this principle.

1. Keeping in mind the considerations of a sustainable community, assess the sustainability of where you live. Is there a particular unsustainable land use that has increased the vulnerability of your community to hazards?

2. In what ways could a local government use zoning to try to manage the impacts of growth associated with the arrival of a large communications company that plans to build an industrial park in the area? In particular, consider ways that address traffic concerns, pollution, and housing issues.

3. How might special assessments discourage development in areas vulnerable to hazards? Identify a type of special assessment at work in your area.

4. If you were the emergency manager in a midsized municipality, what would be some of the advantages to having a council-manager type of local government for pushing a hazard mitigation agenda through the local policy-making process?

5. Explain ways that local governments manage the risk of human-induced hazards versus natural hazards.

To determine how best to protect a community from disaster, it is necessary to first identify the local hazard risks. Hazard maps can dramatically illustrate where areas of development overlap with areas of hazards such as floods, landslides, earthquakes, and hurricanes. Using the Internet or other resources, find hazard maps of your area, determine the distance between your home and the hazard(s), and assess your risk of experiencing a disaster event.

States empower local governments to control the use of land. How are the four regulatory powers of zoning ordinances, subdivision regulations, building codes, and flood damage prevention ordinances at work in your community?

What are some of the principles of resilience and sustainability that you would need to employ when crafting a hazard mitigation program for your local community? Which activities are in place in the community’s capability for developing mitigation policies?

1. United Nations World Commission on Environment and Development. 1987. Our Common Future, p. 43, Oxford University Press, Oxford, United Kingdom.

2. Beatley, T. 2009. Planning for Coastal Resilience: Best Practices for Calamitous Times. Washington, DC: Island Press.

3. Kusler, J. A. 2004. No Adverse Impact: Floodplain Management and the Courts. Madison, WI: Association of State Floodplain Managers.

4. Barrett, B. 2005. Topsail homes in no man’s land: Condemned houses leave owners few options. Raleigh, NC News & Observer, November 7, 2005.

5. Woodruff, S. C. et al. 2013. Adapting to Climate Change: A Handbook for Local Governments in North Carolina. Chapel Hill, NC: Coastal Hazards Center at the University of North Carolina at Chapel Hill. Available online at: coastalhazardscenter.org/adapt.

6. Arendt, R. G. 1996. Conservation Designs for Subdivisions. Washington, DC: Island Press, p. 42.

7. Olshansky, R. B. and J.D. Kartez. 1998. Managing land use to build resilience. In: Cooperating with Nature: Confronting Natural Hazards with Land Use Planning for Sustainable Communities. J. Burby, Ed. Washington, DC: Joseph Henry Press.

8. FEMA. 2013. Local Mitigation Planning Handbook. Publication 302-094-1. FEMA.

9. Hirokawa, K. H. and J. D. Rosenbloom. 2012. Land use planning in a climate change context. Research Paper Legal Studies Research Paper Series, Research Paper No. 12-33. Drake University. Electronic copy available at http://ssrn.com/abstract=2168925.

Regulation	Local governments have the power to control land use through regulations such as zoning, subdivision ordinances, floodplain regulations, etc. Regulation also includes building codes and standards to make structures more hazards resilient
Acquisition	Local governments are authorized to acquire and hold property for public benefit and use. Removing at-risk property from the private market can be a useful mitigation tool
Taxation, Fees and Special Assessments	Taxes, impact fees, and special assessments can be an important source of revenue for governments to help pay for mitigation activities. In addition, the power of taxation can have a profound impact on the pattern of development in local communities. Special tax districts, for example, can be used to discourage intensive development in coastal hazard-prone areas
Education	Public awareness and understanding of hazards that face the community are essential for effective hazard management activities. Education and information dissemination are important functions of local governments to protect the health and safety of the community
Spending	Spending is a fundamental power of local government. Local governments can choose to pay for public facilities that are placed in nonhazardous areas and are built to withstand known hazard impacts. Local governments can also influence private development by withholding spending for public infrastructure and capital improvements in known hazard areas
Planning	Local governments are authorized to make and carry out plans through the establishment of goals, policies, and procedures for a social or economic purpose. Planning provides a context for all other local government activities, ensuring that policies and actions are carried out according to a conscientious, organized, and rational process

Acquisition	The government authority to acquire property, including privately owned property, through purchase or condemnation. Public land ownership and conscientious management of public lands provides direct control over the use of property. This control can be used to implement hazard mitigation and climate adaptation policies that keep development out of hazard areas.
Amortization	Process that requires nonconforming structures to come into compliance with local zoning regulations or be removed from the property within a certain time period.
Annual operating budget	The amount of money a local government sets aside each year to pay for ongoing services, such as police and fire, trash and recycling pickup, maintenance of roads and parks, etc.
Buffer	A setback of a specific distance, such as 25 or 100 feet, from a channel, floodway, wetland, or other water feature. In that area, no cutting, clearing of ground cover, or alteration of natural features is allowed.
Building codes	Laws, ordinances, or regulations that set forth standards and requirements for structural integrity, design, and construction materials used in commercial and residential structures.
Buyout program	Public acquisition of privately held property located in hazardous areas.
Capital improvement	New or expanded physical facilities that are relatively large in size, expensive, and permanent.
Capital improvements budget	Schedule of public facilities to be constructed in the current or next fiscal year.
Capital improvement program	A multiyear schedule for public physical improvements.
Cumulative impact assessment	An evaluation that looks at the total effect of all development in a particular environment.
Differential assessment	A technique for reducing the tax burden on land facing development pressure by recognizing that undeveloped properties require fewer public services.
Down-zoning	Provisions in the zoning code used to keep inappropriate development out of hazard-prone areas; can be accomplished by increasing minimum lot size, or reducing the number of dwelling units permitted per acre.
Due process	Constitutional provision that the rights of private citizens must be protected during all legal proceedings.
Easement	A type of property ownership that grants an affirmative right to use a particular piece of property, such as a right of access; may also restrict the landowner’s right to use the property in a particular way.
Emergency operations plan	Establishes responsibilities, actions, and chain of command for responding to emergencies at the state or local level.
Eminent domain	Also known as condemnation, the power of the government to “take” (condemn) private land for public purpose.
Equal protection clause	Constitutional requirement that laws must be applied uniformly upon all persons in similar circumstances.
Fee simple	When a single owner has all the rights associated with a parcel of land.
General-purpose local government	Type of local government that performs a wide-range of functions; examples: counties, municipalities, and towns and townships.
Impact fee	A one-time, up-front charge against new development to pay for off-site improvements, including schools, fire stations, community centers, and other local facilities.
Just compensation	The constitutional requirement that property owners are paid fair market value for private property that is confiscated by the government.
Lifeline services	Services provided by local governments that are essential to protect human life and safety, such as fire, police, emergency medical services, and search and rescue operations. Also applies to critical municipal or county services such as hospitals, power generation, telecommunications, transportation, water and sewer, etc.
Moratorium	A short-term suspension of the right to develop, usually accomplished by a refusal of the local government to issue building permits during a defined period, such as following a major disaster.
Police power	The basic authority of governments to make laws and regulations for the benefit of the public. The Tenth Amendment to the U.S. Constitution confers the police power to states, which in turn delegate the power to their political subdivisions, allowing local governments to enact measures that preserve and protect the public’s safety, health, and welfare.
Relocation	Removal of privately owned structures from hazardous areas and relocating them to nonhazardous sites; most often used in combination with acquisition.
Singlepurpose local government	Type of local government that has a specific purpose and performs one function; example: school district.
Subdivision ordinance	Local regulations that govern the partition of land for development or sale. In addition to controlling the configuration of parcels, subdivision ordinances set standards for developer-built infrastructure, including drainage and flood control.
Sustainable development	Growth that meets current needs without compromising the ability of future generations to meet their needs. Sustainable communities require a high level of resiliency to hazards.
Takings clause	Provision of the 5th Amendment to the U.S. Constitution that applies when the government takes an owner’s property by physical occupation or by severely restricting the owner’s use of the property. Requires the government to pay the owner just compensation for the taking.
Zoning	The traditional tool available to local governments to control land use; zoning maps divide the jurisdiction into zones where various regulations apply as described in the zoning ordinance.
Zoning map	Divides the area under local government control into zones where various development regulations apply.