Flood Regulations Not a Taking

In a ruling on August 12—just four days ago—the South Carolina Supreme Court, in Columbia Venture v. Richland County, did the nation a great favor that, I suspect, stands little if any chance, in my opinion, of being overturned by the U.S. Supreme Court even if it is appealed by the developer that filed the case against Richland County. The Association of State Floodplain Managers is happy with the decision, as well they should be, having played a role by filing a significant amicus curiae, or “friend of the court” brief on behalf of the county, which includes the state capital of Columbia.

The essence of the case is that Columbia Venture, a joint venture firm led by Burroughs & Chapin, a developer based in the Myrtle Beach area, sued over Richland County’s application of floodplain regulations based on an expansion of the floodway and regulatory floodplain by the Federal Emergency Management Agency (FEMA) while the firm was acquiring the property from an area farmer about a decade ago. Curiously, Columbia Venture argued that the taking of its property that it alleged began in 2002, at the time FEMA revised its flood maps, as the date the taking occurred, even though it was suing the county for its regulatory actions.

Columbia Venture was clearly hoping to produce a major development in acquiring 4,461 acres of land along the Congaree River for $18 million, although the Columbia Venture was an attempt to muster adequate investment when Burroughs & Chapin had commitments of only $11 million. The farmer selling the property was persuaded to take $6.65 million in shares as part of this process. Columbia Venture was also relying to some extent on public investment in levees under a county resolution that included a number of contingencies that failed to materialize. Those facts helped persuade the court that the company’s investment-backed expectations were unrealistic.

Ultimately, prior to the state high court decision, Columbia Venture sold about two-thirds of its land, mostly to State Rep. Kirkman Finlay, R-Richland, who farms in the area and say he has no plans to develop it. Land that began as farmland apparently will remain in farm use.

Among other points, Columbia Venture alleged that the county’s regulations prohibiting development in the floodway as newly defined by FEMA constituted a flood easement across its property without compensation. Both the trial court referee and the state high court disagreed, noting that any financial losses experienced by Columbia Venture were outweighed by “the important public purposes of mitigating the social and economic costs of flooding” served by the county’s ordinances, which also “further the important federal purposes” of reducing flood losses. Moreover, all county taxpayers and residents benefited “by reducing the County’s potential liability incurred in emergency response, rescue, evacuation, and other actions taken during a flood.”

Indeed. One might think that, in light of all the experience with flood damage of recent decades, this point would not even need to be argued anymore, but apparently some developers are still wont to try. Most, unlike Columbia Venture, are more inclined to recognize a bad or speculative investment in flood-prone land when they see one.

Frankly, the case also recognizes good planning. Rather than elaborate further, I encourage readers to explore the decision and resulting news coverage for themselves. But I will note that a footnote early in the decision quotes the testimony of former Richland County Planning Director Michael Criss with regard to the public safety benefits of the county’s regulations:

The federal flood maps do not account for the continued urbanization and development of the corresponding watersheds and the resulting increase in stormwater runoff and potential flooding . . . . The federal flood maps are not retrospective. They rely on historical flood records and don’t project th potential of increased flooding in the future from urbanization or from the possibility of more intense storms due to climate change.

This is a victory for good floodplain management, sensible planning in the interest of public safety, and for common sense. Supporters of effective hazard mitigation have reason to celebrate.

Jim Schwab

Postscript: The day after I first posted the above article, APA posted on its Recovery News blog my video interview with Chad Berginnis, the executive director of ASFPM, about the new Federal Flood Risk Management Standard. View it here.

One thought on “Flood Regulations Not a Taking

  1. Pingback: Free Piano

Leave a Reply