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Local governments have the primary authority to regulate land uses in their communities through zoning and floodplain ordinances. In particular, zoning ordinances provide the legal framework that governs the use and development of land in a municipality according to different districts based on the uses that are permitted (e.g., residential, commercial, industrial).See footnote 1 Overlay zones or districts can impose additional regulations on an existing zone based on special characteristics in that zone, such as for natural, historical, or cultural resources protection.See footnote 2 One advantage of overlay zones is that they enable local governments to address area-specific needs or requirements without disrupting underlying zoning classifications. To establish an overlay zone, local governments must: (1) establish the purpose for creating the district; (2) map the district; and (3) establish regulations to achieve the purposes for creating the district.See footnote 3 Before implementing any zoning or land-use changes, however, local governments must ensure that they have the authority to utilize a tool under state law.
Local governments can use zoning and overlay zones to support a variety of purposes and goals related to managed retreat including to:
Zoning and overlay zones can be combined with other planning, acquisition, and regulatory tools to facilitate larger-scale or layered retreat strategies. Notably, local governments should seek to coordinate zoning decisions with coastal zone regulations (at state and/or local level; it varies by state) that can overlap with and serve similar purposes to balance human coastal uses and conservation. Moreover, local governments should look at managed retreat strategies comprehensively to ensure that one type of tool or legal or policy decision will not undermine or conflict with another. For example, after conducting a neighborhood-wide buyout of 200 homes, Woodbridge Township, New Jersey rezoned the 120-acre buyout area from Residential to Open Space Conservation/Resiliency in order to, among other requirements, prohibit new development and only allow for passive recreational amenities like trails and open space uses to preserve the floodplain. Regulations can also be combined with incentives through acquisition or market-based tools (e.g., tax benefits, conservation easements) to remove or relocate structures in vulnerable coastal areas or floodplains.
Although zoning is inherently a local government power, the state may also serve as a regulator in the coastal zone in some jurisdictions. In addition to their regulatory authority, states can be engaged in local land-use and zoning discussions and provide funding, technical, or other types of support to facilitate these managed retreat decisions. For example, states can consider working with local governments to fund and pilot the development of retreat-related overlay zones and create template language that could be adapted and replicated in other jurisdictions (e.g., Florida Adaptation Action Areas). In addition, states can play a key role in coordinating regional or cross-local government policies or actions that would require independent actions in more than one county or municipality. Local governments may also choose to work with state legislatures to amend or supplement zoning authorities — particularly in Dillon Rule states — where necessary.
Zoning decisions and overlay zones can vary in terms of purpose and scope, among other factors; therefore, it is difficult to assess the policy tradeoffs of these tools generally. There are, however, some overarching policy considerations for local governments.
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By amending zoning ordinances, the most common legal challenge governments may face is takings claims. Jurisdictions can design zoning changes in ways that can withstand potential regulatory takings challenges and minimize potential legal risk. 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 occupationsSee 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 zoning regulations designed to protect people, property, and the coastal environment will be evaluated under a case-by-case-specific balancing test.See footnote 8 Generally, courts will uphold zoning changes that restrict or limit development in vulnerable coastal areas and floodplains if an affected property maintains some economic value and a regulation serves a legitimate public interest, such as safety or to offset ecological impacts resulting from the use of private property.
Governments can avoid or mitigate potential takings risk by ensuring that zoning changes and overlay zones are informed by relevant data and plans, particularly local comprehensive plans. At a minimum, governments should: clearly justify the need for zoning amendments based on best available data; articulate the purpose for new development and redevelopment requirements in planning and other documents that put affected private property owners on sufficient notice; and design and implement zoning decisions on appropriate spatial scales that are not greater than the spatial area necessary to achieve their stated purpose (e.g., establishing lower density development requirements only in a municipality’s coastal areas most vulnerable to sea-level rise and erosion to protect people and property from these physical threats). For more information on takings and recommendations to minimize legal risk, see the Crosscutting Legal Considerations>Takings section of this toolkit.
When implementing zoning changes and overlay zones in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different legal and policy tradeoffs:
Endnotes:
1. Jessica Grannis, Georgetown Climate Ctr., Adaptation Toolkit: Sea-Level Rise and Coastal Land Use 19 (Oct. 2011), available at View Source; Indraneel Kumar, Purdue Extension Land Use Team, A Planning and Zoning Glossary 5 (Sept. 2017), available at View Source (Zoning is a “way of putting the comprehensive plan to work. A zoning ordinance contains regulations designed to implement the comprehensive plan. It includes, but is not limited to, permitted activities, setbacks, signs, parking, landscaping, environmental restrictions, density, and site plans. It provides for allowable land uses. Zoning is comprised of districts, ordinances, and the zoning map.”); Black’s Law Dictionary (11th ed. 2019) (Zoning is “The legislative division of a region, esp. a municipality, into separate districts with different regulations within the districts for land use, building size, and the like.”). | Back to contentBack to content
2. Jessica Grannis, Georgetown Climate Ctr., Adaptation Toolkit: Sea-Level Rise and Coastal Land Use 19 (Oct. 2011), available at View Source. | Back to contentBack to content
4. E.g., “Substantial damage applies to a structure in a Special Flood Hazard Area (SFHA) or floodplain for which the total cost of repairs is 50 percent or more of the structure’s market value before the disaster occurred, regardless of the cause of damage.” FACT SHEET: What Does “Substantial Damage” Mean?, Fed. Emergency Mgmt. Agency (Nov. 20, 2018), View Source. | Back to contentBack to content
5. U.S. Const. amend. V. Back to contentBack to content
6. J. Peter Byrne & Jessica Grannis, Chapter Nine: Coastal Retreat Measures, in The Law of Adaptation to Climate Change: U.S. and International Aspects 274–75 (Michael B. Gerrard & Katrina Fischer Kuh eds., 2012). Back to contentBack to content
7. Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992); J. Peter Byrne & Jessica Grannis, Chapter Nine: Coastal Retreat Measures, in The Law of Adaptation to Climate Change: U.S. and International Aspects 275–76 (Michael B. Gerrard & Katrina Fischer Kuh eds., 2012). Back to contentBack to content
8. Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978); J. Peter Byrne & Jessica Grannis, Chapter Nine: Coastal Retreat Measures, in The Law of Adaptation to Climate Change: U.S. and International Aspects 276–77 (Michael B. Gerrard & Katrina Fischer Kuh eds., 2012). Back to contentBack to content
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