Flood Regulations Not a Taking

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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.

Stars Stars Again

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Nearly two years ago, in what was only my third blog post on this site, I reviewed what I thought was a class-act restaurant in Charleston, South Carolina. I have been to this fascinating historic city several times in recent years, mostly due to involvement in the Digital Coast Partnership, a creation of the National Oceanic and Atmospheric Administration’s Coastal Services Center, which has now been absorbed into NOAA’s Office for Coastal Management after merger with another section of NOAA. In that time, the Digital Coast Partnership has grown from six national organizations, including the American Planning Association, which I represent, to eight. Just last year, the Urban Land Institute and the National Estuarine Research Reserve Association joined. I later discussed the value of this unique enterprise in an article I posted here on September 1, 2014, “Digital Coast: A Model for Progress.”

Much of the Digital Coast Partnership was represented at the 2015 Coastal GeoTools Conference, held in North Charleston March 30-April 2. In addition to being a devoted, professional crew dedicated to making geospatial technology more widely available and valuable for potential users, this is a fun group that socializes well, which leads to the real point of this article. About 20 of us, including the NOAA staffers, visited Stars, the restaurant I reviewed two years ago. Wondering whether I may have overestimated the place after seeing some customer reviews online, I was prepared for possible disappointment. Sometimes restaurant service declines over time, or the kitchen becomes less imaginative. Excellence does not always last forever.

I am happy to report, however, that excellence is still alive and thriving at Stars. Both my good friend and colleague Chad Berginnis, executive director of the Association of State Floodplain Managers (ASFPM), and I ordered the pork chop off the evening’s special menu, accompanied by roasted cauliflower and corn in an unbelievably tasty sauce. There appeared to be numerous other options, many involving seafood, that satisfied other palates at the table. I was soon engrossed in one of the best meals I had had in months, when Chad, having polished off his, turned to me in an almost ecstatic mood and asked:

“Was that the best pork chop you have ever had in your life?”

Chad Berginnis and I discuss what we both agreed was a superb meal.

Chad Berginnis and I discuss what we both agreed was a superb meal.

I quickly agreed. I had to. I spent six and a half years of my life in Iowa, a place that knows pork chops with a passion, and have been back many times over the subsequent 30 years, and I still could not recall a pork chop even there that could pass the high bar set by the chefs at Stars. But the story does not stop with the food, or even the wine, for which Stars had outstanding suggestions.

It continued with the service, personified by our own server, Austin Doyle, who was not only engaging and enthusiastic about his mission, but visibly anxious to ensure he was doing as much for us as he possibly could. I am almost embarrassed it has taken me another month to produce the review I promised him, but I am sure he will feel his patience has paid off. I learned that he was leading an operation to train other restaurant servers (#serverchopped), an indication that he indeed takes his calling seriously.

Austin Doyle (to my left) takes a moment to pose with his customers at Stars.

Austin Doyle (to my left) takes a moment to pose with his customers at Stars.

It is always a pleasure to find such a restaurant in a city that itself is so charming. You can see much of it from the rooftop bar at Stars, if you need to bide time before your table is ready, or just want to enjoy the weather on a pleasant night. I understand that, before the sun goes down, the rooftop can become rather toasty on a warm summer night, perhaps even a bit much to handle, but it’s worth a visit to check out the skyline, even though Charleston is, for the most part, a relatively low-rise city with many buildings in its commercial core dating back to colonial or at least antebellum days. Few serve the same purpose, as many have been converted to storefronts or other restaurants, but the street grid and many of the facades survive, even as the city has added other attractions such as the South Carolina Aquarium and several quirky and idiosyncratic museums. At the same time, a number of historic churches survive and still serve their own intended functions.

Digital Coast advocate Allison Hardin, a planner for Myrtle Beach, S.C., enjoys a laugh amid the views on the Stars rooftop.

Digital Coast advocate Allison Hardin, a planner for Myrtle Beach, S.C., enjoys a laugh amid the views on the Stars rooftop.

It is a city fascinating enough that I persuaded my wife that we should spend our upcoming 30th anniversary there. For her, the visit will be her first, but she was sold when I showed her online what Charleston has to offer. I will be interested in her reaction when she actually gets to walk the streets of the historic quarter and judge for herself. I already understand why Travel Advisor recently rated Charleston the nation’s third most attractive city for tourists, right behind New York and Chicago, quite an achievement.

 

Jim Schwab