Agenda - Council - 03/12/1984 - Laserfiche WebLink

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10. II. 12, 13. Q. Do slate programs on floodplain or wetland management violate local home rule powers? A. Courts have universally held that state flood- plain and wetland regulations do not violate local home rule powers. Floodplain and wetland pro- tection have been considered "greater than local significance" and, therefore, not exclusive}y a matter of local concern. Q. Which constitutional provisions limit the exercise of floodplain and wetland regulations hy public authorities? A. The principal constitutional limitations on floodplain and wetland regulations are: 1. The due process clause (U.S. Constitution, Fifth and Fourteenth Amendments); 2. The equal protection clause (Fourteenth Amendment); 3. The taking clause (Fifth Amendment). Most state constitutions contain provisions similar to these. "Constitutionality" thus refers both to federal and state constitutions. Q What is the ~neaning of "due process"? A. The Fifth Amendment says "that no person shall be... deprived of life, liberty, or property, without the due process of law..." The Four- teenth Amendment repeats the same language as a limitation upon state power. Court decisions have distinguished two different forms of "due process" protection. "Procedural Due Process" requires that the adoption of any public regulation shall be strictly in accordance with the require- ments of the applicable statute, including provi- sion for public notice and hearing. Procedural defects may nullify any otherwise valid regulation. "Substantive Due Process" requires that a reg- ulation be fair and reasonable in its application. The meaning of "reasonable" is the subject of many judicial opinions. Basically, a regulation is considered "reasonable" if it (a) addresses a proper public concern such as the reduction of flood losses, and Co) the measure is fairly perceived to accomplish the objective in question and is not unnecessarily restrictive. Q. Wha! arc valid purposes and goals of flood- plain and wetland regulations? A. Regulations must serve legitimate public goals. Courts have strongly endorsed regulations designed to prevent increased flood heights or velocities which may be caused by inadequate drainage facil- ities, obstructions in floodplains, or unsafe dams. They have also upheld tight regulations in coastal areas subject to extreme hazard to life and prop- erty damage from storms and hurricanes. Preven- tion of water pollution has also been strongly endorsed. Less weight has been given to the pro- tection of wildlife and aesthetic values, although this is changing. Courts have usually held that reg- ulations may not be used to depress property values prior to acquisition. Nor can regulations obtain public access to private property without payment of "just compensation." 14. Q. What is the meaning of "equal protection"? A. The Fourteenth Amendment declares: "... nor shall any State... deny to any person within its jurisdiction the equal protection of the laws." This clause is normally interpreted to mean that property owners which are "similarly situated" must be treated alike. Thus owners of property with a similar risk of flooding should be zoned in the same manner: But where properties differ in their elevation, ground water table, proximity to a water course, wetland values, or state of devel- opment, regulations may impose different degrees of restriction upon such properties without deny- ing "equal protection." Several courts have sus- tained statutes applying one type of regulatory control to coastal wetlands and another to inland areas. No court has held that all streams in a com- munity, region, or state--or even all reaches of a certain stream--must be studied and regulated simultaneously. However, one court has invalidated floodway restrictions which were applied to one side of a stream but not to the other. Courts tend, in most cases, to defer to legislative judgment concerning priorities based upon available budget, urgency of problems, and other administrative factors. 15. Q. May new development in floodplains and wet- lands be regulated more restrictively than existing development? A. Courts have permitted more restrictive control of new development than existing activities. The latter are usually protected as "legal nonconform- ing uses" subject to limitation on expansion or change of use.