Development Permit Conditions

Introduction to Development Permit Conditions

States and local governments can set conditions for new development and redevelopment (e.g., above a certain threshold) through coastal, environmental, natural resources, and land-use and zoning permits. Permit conditions are often recorded with a property’s deed to bind future owners. Permits can include many types of terms and conditions, such as requiring private property owners to pay impact fees, dedicate portions of their land for specific purposes (e.g., conservation), or restrict the use of their land;^{See footnote 1} however, this subsection on regulatory tools is focused on one type of condition that requires property owners to remove or relocate structures, as described in the next section.

Development Permit Conditions in a Managed Retreat Context

In a managed retreat context, state and local governments can require the owners of private properties covered by a permit condition to remove or relocate vulnerable or damaged structures upon the happening or occurrence of a “triggering” event (e.g., minimum beach width, a permanent movement of the tidal line demarcating public versus private lands like mean high or low water). This type of condition allows landowners to develop property but with the expectation that development will eventually have to cede to future coastal climate impacts. These tools can require moving physical structures out of harm’s way and can facilitate the inland migration of changing coastlines and ecosystems, like wetlands, in response to sea-level rise, flooding, and erosion. 

While the specifics of these types of conditions will vary, the general public purpose would be to remove or relocate development to protect the coast, people, and property from the threats of sea-level rise, flooding, and erosion. The condition to remove or relocate the structure would be tied to a physical or environmental impact trigger. By being written into coastal management regulations and local land-use and zoning ordinances, in addition to the permits themselves, these conditions would have the effect of putting property owners on advanced notice to plan for these requirements. For example, in Big Lagoon in Humboldt County, California, the California Coastal Commission — the state’s coastal management agency — conditioned a development permit by approving the permit with adaptive measures instead of denying a permit application for a new home being built on a high eroding bluff.^{See footnote 2} The commission determined that, based on sea-level rise and erosion rates, the house had about 50 years before it would need to be removed to avoid falling onto the beach below.^{See footnote 3} Accordingly, the commission is allowing the property owners to live in their home until bluff erosion reaches a point at which it is no longer safe to live there; it then has to be removed or relocated.^{See footnote 4}

It is important for governments to consider who is responsible for the costs associated with enforcing removal and relocation conditions. These conditions would likely place the removal or relocation costs on private property owners — barring any other legal arrangements to the contrary provided for in the permit. For larger structures or privately owned infrastructure (e.g., septic systems) in vulnerable coastal zones, state and local governments could go further and explicitly require a permittee to obtain a bond or other types of financial assurances to proactively ensure that these actions will be funded once a future condition occurs. These types of measures can preclude those costs from being passed on to the public-at-large, which could help to address concerns about public subsidies for people that may choose to live in areas prone to flooding and disaster events, like severe storms. 

However, governments should evaluate and seek ways to minimize the potential disproportionate effects permits could have on frontline communities and residents who would likely be unable to afford the costs associated with removing or relocating structures. Moreover, some of the people living in vulnerable coastal areas may not be there by choice, but may instead lack the financial resources to be able to voluntarily move away. Without potential mitigating measures, this type of permit condition could exacerbate or compound economic and social inequities on the coast. 

Policy Tradeoffs of Development Permit Conditions

Legal Considerations for Development Permit Conditions

Jurisdictions can draft development permit conditions to withstand potential regulatory takings challenges. The Fifth Amendment of the U.S. Constitution and analogous provisions of state constitutions prohibit governments from “taking” private property without just compensation.^{See footnote 5} While there are different types of takings, courts apply a “per se” test to physical occupations^{See footnote 6} and regulations that deprive a private property owner of all or essentially all of his/her property’s economic value;^{See footnote 7} however, in a managed retreat context, most regulations designed to protect people, property, and the coastal environment will be evaluated under a case-by-case-specific balancing test.^{See footnote 8} Removal and relocation permit triggers are analyzed under the general Penn Central regulatory takings framework because they are conditions on land use and do not involve the transfer of an interest in property.^{See footnote 9} State and local governments considering removal and relocation conditions can succeed in takings claims if the property covered by a permit maintains some economic value and the regulatory purpose of the condition serves a legitimate public interest. To satisfy these legal requirements, governments should, at a minimum, clearly justify the need for triggering conditions based on best available science; articulate the purpose for these conditions in planning and other documents so as to put affected private property owners on sufficient notice; and apply the permits on a spatial scale that is proportionate to the coastal hazard being mitigated. For more information on takings and recommendations to minimize legal risk, see the Crosscutting Legal Considerations>Takings section of this toolkit. 

Practice Tips

When implementing permits conditions in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different legal and policy tradeoffs: 

• Develop place-based laws and policies for permit conditions: Among other factors, policymakers should consider environmental conditions and historical land-use patterns that will affect the physical and legal success and viability of these requirements and their political and community acceptance and compliance. Notably, governments should seek ways to balance permitting flexibility to meet the needs of individual property owners and changing environmental conditions with the aim to implement a coherent, consistent permitting program to maximize economic, environmental, and social benefits. However, governments can only ensure flexibility to the extent that they are compliant with federal and state constitutional equal protection requirements that require them to equally apply laws to similarly situated parties.^{See footnote 10} Moreover, governments can undermine the effectiveness of these programs if they grant too many exemptions or variances or do not sufficiently adhere to a consistent set of permit terms and conditions to the greatest extent practicable. 

• Invest in data at an appropriate scale: Physical impacts from sea-level rise, storm surge, different types of flooding (e.g., precipitation), and coastal erosion are the impetus or drivers for state and community decisions to retreat. Accordingly, governments will need the best available scientific data and information on an appropriate scale to effectively develop and implement different types of permit requirements. This data must be highly place-based. While some governments may already have the necessary data, others will have to invest in or look for opportunities to obtain data before they can consider these tools. Federal agencies (e.g., National Oceanic and Atmospheric Administration, U.S. Geological Survey) and conservation nonprofits (e.g., The Nature Conservancy) may already have data on an appropriate scale that governments can use to inform the development of permit conditions and setbacks and buffers. Alternatively, state and local governments may have to consider grant or other funding opportunities to initiate partnerships to collect this data from scratch.
  
  While scientific data is important, community residents — particularly those who have lived in an area for a long time or have historical or cultural ties — can provide additional types of data or information based on historical or lived experiences that, among other things, can help governments better understand cyclical or long-term changes on the coast to inform climate adaptation discussions. Governments, therefore, should aim to make data collection processes as comprehensive as possible and reach out to more than just scientific and coastal experts. Complementary datasets will be key to crafting well-rounded, interdisciplinary approaches for managed retreat.  

• Evaluate how permit conditions can be combined with other legal and policy tools for managed retreat: State and local governments can consider coupling permit conditions with other planning and regulatory tools to implement more comprehensive retreat strategies that support one another. Plans and data are necessary preconditions to implement permit triggers. In particular, coastal management, hazard mitigation, wetland migration or ecosystem-specific, and local comprehensive plans are of particular relevance for justifying and coordinating decisions around permits. Moreover, other regulatory tools, like zoning and overlay zones, could be layered to implement permit requirements over an appropriate spatial scale, for example in areas prioritized for wetland migration or in a community’s most vulnerable, highly erosive coastal areas. Removal/relocation triggers could also be coupled with setbacks to facilitate the natural movement of shorelines. 

• Work with state legislatures: Given the emerging interest in using permit conditions in a managed retreat context, state agencies and local governments may choose to work with their state legislatures to update or amend statutes affecting coastal uses and development to ensure that they have the explicit or clear authority to impose these types of restrictions in vulnerable coastal areas and specify what types of corresponding actions may be required.^{See footnote 11} At the local level, differences may apply in home rule versus Dillon Rule states.^{See footnote 12} In some home rule states, existing authorizations may be broad enough to cover this type of permitting condition; however, clear statutory authorizations can encourage governments to consider this type of regulatory tool by eliminating uncertainty about a local government’s legal authority. Generally, local governments in Dillon Rule states can impose “reasonable” permit conditions through their zoning powers. To the extent that removal/relocation triggers are considered reasonable in fact, local governments would be acting within their existing authority; if not, additional or explicit authorization may be needed.