Sea-level Rise and Law: Local Government Infrastructure & Other Challenges

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1 Sea-level Rise and Law: Local Government Infrastructure & Other Challenges Click to edit Master title style Click to edit Master subtitle style Thomas Ruppert Coastal Planning Specialist

2 SLR, Drainage: Where the Water Hits the Road Click to edit Master title style Click to edit Master subtitle style

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4 Drainage & Local Gov t No duty of local gov t to provide drainage As with many services, authority or power to provide, but not duty (fire, police, etc.) However, if provided, duty to maintain arises Maintenance must be done with reasonable care Liability for failure to maintain

5 Local government has immunity from damage that occurs as a result of a local government s policy decision not to upgrade a drainage system Christopherson v. City of Albert Lea, 623 N.W.2d 272, 276 (MN Ct. App.2001) Failure to upgrade is a failure of design and construction, for which political subdivisions enjoy immunity, and not a claim based on a failure to properly maintain, for which there may be liability Coleman v. Portage Cty. Eng'r, 975 N.E.2d 952, 960 (Ohio 2012)

6 Maintenance vs. Upgrade Why the difference? For existing, people now depend on it No right to depend on what hasn t been built Separation of gov t powers & protect discretionary power of the legislative branch Immunity through planning vs. operational distinction Immunity for planning as this is legislative No immunity for operations as everyone has a duty to act with reasonable care to avoid harm to others

7 The Miami Beach Example

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10 Jkl; To Charge or Not to Charge?

11 Click to edit Master title style SLR, Roads, and Click to edit Master subtitle style Local Governments

12 Jordan et al. v. St. Johns County Special thanks to Patrick F. McCormack, Esq., St. Johns County Attorney 12 12

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17 Photo: St. Augustine Record newspaper

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19 Some Key Facts 3 residences when County acquired in 79 All owners that testified acquired after 1980 Sporadic County maintenance County frustration expressed at meetings Too expensive to maintain; study proving same More $ from FEMA in 2000 $2.3 M from ; avg. of $244K/yr/mile 2008 study: ~$13.1M plus $ M/3 yrs Responded to all emergency calls

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21 Same house after Hurricane Matthew October 2016

22 Claims: Taking Duty to maintain road 5 th DCA Discretion not absolute County must provide reasonable level of maintenance that results in meaningful access How can County fight the ocean?

23 Issues with Jordan v. St. Johns County Created new duty Used maintenance in a new way Created new law in Florida that inaction can form the basis for a takings claim Potential for holding to undercut doctrine of separation of powers In light of sea-level rise, court holding created potential for massive liability for local governments

24 Overview of Ordinance Sets financial criteria thresholds Exceptions to LOS for environmentally compromised road segment Must add signage to designated roads Assistance in negotiation if a lack of meaningful access MSBU option for additional funding Abandonment procedures outlined

25 Environmentally challenging location Envt ly Compromised Local Rd. Segment (avg. cost over 3 yrs > 4x usual cost OR 1 yr. cost more than 6x usual) Financial threshold Envt ly Compromised Collector Rd. Segment (avg. cost over 3 yrs >than 5x usual cost OR 1 yr. cost more than 8x usual) Notice and signage posted. Maint. stds based on cost rather than LOS. Spend equivalent max of designation threshold plus 25% subject to limitations. Option for landowners to seek MSBU to increase funding for maintenance. If no meaningful access, property owners request assistance to negotiate access. If not successful, local gov t disavows liability for lack of access. Varying processes for abandonment.

26 Definitions LOS: County-defined level of service for roads Envt lly challenging location: typical road constr., maint., or stds. infeasible to meet due to naturally occurring conditions Repeatedly damage or threaten road to extent that not safe; Repair, maint. requires materials, processes, or techniques not standard for other roads in county; Presence, maint. or repair has detrimental impact on natural resources; or Location of road requires permitting or mitigation from federal or state authorities for activities that otherwise are considered routine maintenance.

27 Definitions (cont.) Envt lly compromised local road segment Annual per-mile cost avg. over 3 yrs. for typical maint. is 4x or more usual cost per mile; or Annual per-mile cost in 1 yr. for typical maint. Is 6x or more usual cost per mile Envt lly compromised collector road segment Annual per-mile cost avg. over 3 yrs. for typical maint. is 5x or more usual cost per mile; or Annual per-mile cost in 1 yr. for typical maint. Is 8x or more usual cost per mile

28 Purposeful Design Focus on PROCESS fiscal backstop minimize risk of successful legal claims Possible sovereign immunity from tort claims Takings claims difficult; only court decides

29 Limitations No guarantee against lawsuits or judgments Varies in how appropriate it is for roads Best for smaller roads and those that have some other route available More difficult when only access or main thoroughfare

30 [A] foolish man... built his house on sand. The rain came down, the streams rose, and the winds blew and beat against that house, and it fell with a great crash. Matthew 7: Thomas Ruppert Coastal Planning Specialist Florida Sea Grant College Program TRUPPERT@UFL.EDU