NOTE: What follows is not and cannot be legal advice. For legal advice, see an attorney licensed in your jurisdiction.
Managing coastal floodplains is a challenging endeavor that sometimes is incorrectly thought to put local government’s duty to protect people and property in direct conflict with property rights. Most local officials want to reduce the harm and costs associated with coastal storms, and recognize that unwise development can worsen the situation. Unfortunately, as our society has grown more litigious, it may seem harder for municipal governments to stay out of court when preventing or conditioning development projects, even when there is good evidence that these projects may create problems for others. However, the No Adverse Impact (NAI) approach to land use management is an appropriate way to protect people, property, and property rights.
Why NAI is Legally Sound
- NAI doesn’t take away property rights—it protects them.
- NAI prevents one person from harming another’s property.
- NAI is not an arbitrary or inflexible “no” to construction. It is a performance-based standard. It is neither pro- nor anti-development.
- Courts consistently favor public entities performing their fundamental function of protecting people. The NAI approach can help communities create fair and legally strong regulations.
While nothing can prevent all legal challenges, following the NAI approach can help to: 1) reduce the number of lawsuits filed against local governments, and 2) greatly increase the chances that local governments will win legal challenges to their floodplain management practices. The legal system has long recognized that when a community acts to prevent harm, it is fulfilling a critical duty. The rights of governments to protect people and property have been well recognized by the legal system since ancient times. Courts at all levels (including the US Supreme Court) have consistently shown great deference to governments acting to prevent loss of life or property, even when protective measures restrict the use of private property. This “prevention of harm” principle is the foundation of the NAI approach.
The goal of this section is to provide local officials with information on how to use the NAI tools to confidently protect people and property in a fair and effective way, while avoiding lawsuits (even those alleging takings). Two key points:
- Communities have the legal power to manage coastal and inland floodplains.
- Courts may (and often do) find that communities have the legal responsibility to do so.