Reducing hurricane and coastal hazards through growth management a guidebook for North Carolina coastal localities

[From the U.S. Government Printing Office, www.gpo.gov]

REDUCING HURRICANE AND COAST,`tL HAZARDS
THROUGH GROWTH MANAGEMENT:
A Guidebook for North Carolina Coastal Localities

HT
393 David J. 13rower Timothy Costley David J-L 6,@`Iatt
, M -
B76
1987 Center for Urban and Regional Studl,@-
c.2
University of North Carolina at Chapel Hill July 1987

This doewment was produced through a or" oy the Federal amorgency Management Agency
under contract F.MA-K-0079 In Conjuation w1th the porth Carolina 01ohWon of Emergency Management.
The document does not nocesearfly refle-at the vie" of the Federal EmorgoncY Mnagement AGO"CY.

TABLE OF CONTENTS

Preface ..................................................................... vi

Chapter 1: Introduction ..................................................... 1

A. Hurricane and Coastal Storm Hazards on the North Carolina Coast ..... I
B. Focus on Growth Management ......................................... 10
C. Plan for the Manual ................................................ 16

Chapter 2: Using Growth Management to Reduce Hurricane and Coastal Storm
Hazards ......................................................... 18

A. Introduction ............ 18
B. Placing Hurricanes and Coastal Storms in a Risk Analysis Framework..18
C. Risk Evaluation: Assessing the Acceptability of Coastal Hazards ..... 19
1. Reduce hurricane risks to the greatest possible extent ............ 20
2. Balance hurricane risks against social benefits ................... 20
3. A maximum acceptable hurricane risk ............................... 22
4. An equitable distribution of hurricane risks ...................... 22
D* The Issue of Voluntarily-Borne Risks ................................ 23
E. Hurricane Hazard Mitigation Goals and Standards ..................... 24
F. Integrating Risk Reduction and Other Local Objectives ............... 26
G. Using Growth Management to Reduce Coastal Storm Risks ............... 27
H. Modifying the Characteristics of Growth ............................. 28
1. Location ......................................................... 28
2. Density .......................................................... 28
3. Timing ........................................................... 28
4. Type ............................................................. 28
I. Conclusion .......................................................... 29

Chapter 3: Institutional Context for Coastal Growth Management ............. 31

I. The Federal Government ............................................. 31
A. National Flood Insurance Program ............................... 32
B. Post-Disaster Aid .............................................. 35
C. Coastal Zone Management Act .................................... 37
D. Funds Cutoffs .................................................. 38
E. Environmental Regulation ....................................... 39

II. State Government .................................................. 41
A. Coastal Area Management Act .................................... 42
B. State Building Code ............................................ 43

III. Local Governments ................................................. 44
A. Police Power Regulation ........................................ 44
B. Non-Regulatory Authority ....................................... 47

Chapter 4: Identification and Analysis of Hurricane and Coastal Storm
Hazards ......................................................... 49

A. Hazard Magnitude and Location ...................................... 49
1. National Flood Insurance Program ............................... 49
(a) The 100-year floodplain .................................... 53
(b) Coastal high hazard areas .................................. 55
(c) Floodways .................................................. 56
2. SLOSH: Computer modeling of coastal storms ..................... 58
3. Coastal erosion ................................................ 63
4. Inlet hazard areas ............................................. 64
5. Producing composite hazards maps ............................... 68

B. Assessing Vulnerability and Exposure ............................... 68
1. Exposure of public and private property ........................ 69
2. Exposure of people ............................................. 79
(a) SLOSH--based evacuation studies ............................ 79
(b) Simple approaches to estimating evacuation capacity ........ 84

C. Conclusion ......................................................... 88

Chapter 5: Review of Specific Growth Management Tools and Technigues ....... 90

I. Development Regulation ............................................. 92

A. Zoning ............. : ........................................... 92
1. Conventional zoning ......................................... 92
2. Coastal setbacks ........................................... 102
3. Special use permits ........................................ 103
4. Bonus or incentive zoning .................................. 105
5. Performance zoning ......................................... 107
6. Population caps and annual development limits .............. 108
7. Interim or temporary development regulations ............... 112
8. Regulation of mobile homes ................................. 113

B, Subdivision Regulation ........................................ 114
1. Subdivision and site plan review ........................... 114
2. Clustering ................................................. 116
3. Exactions and development conditions ....................... 118
4. Planned unit development (PUD) ............................. 119

II. Land and Property Acquisition .................................... 121

A. Fee Simple Acquisition of Undeveloped Land .................... 121
B. Purchase of Development Rights/Donation of Easements .......... 127
C. Transfer of Development Rights ................................ 133

III. Taxation and Fiscal Incentives .................................. 136

A. Differential Taxation ......................................... 137
B. Special Assessments and Impact Fees ........................... 140

IV. Capital Facilities and Public Infrastructure Policy .............. 144

A. Policies to Prevent Location of Public Facilities in High Risk
Areas ......................................................... 145
B. Relocation or Strengthening Capital Investments After the
Storm ......................................................... 149

V. Information Dissemination ......................................... 150

A. Real Estate Disclosure Requirements ........................... 150
B. Community Awareness Programs .................................. 152

VI. Conclusion ....................................................... 153

Chapter 6: Mitigation During Reconstruction ............................... 155

I. The Federal Role in Post-Disaster Response and Reconstruction ..... 155

II. Local Approaches to Mitigation During Reconstruction ............. 156

A. Special Demands and Pressures Following a Hurricane ........... 157
B. A Post-Storm Reconstruction Plan ........... ; .................. 159
C. The Need for Additional Institutional and Decision-Making
Structures .................................................... 161
1. Post-storm damage assessment ............................... 162
2. Recovery or reconstruction task force ...................... 164
D. Regulating Development Following the Hurricane ................ 168
1. Delineation of damage zones: The Triage Concept ............ 168
2. Temporary reconstruction moratoria ......................... 169
E. Some General Strategies for Post-Hurricane Mitigation ......... 170
1. Moving development away from the hazard zone ............... 170
2. Reducing permissible density of development ................ 171
3. Prohibition of reconstruction at higher densities ...... ' -...171
4. Reconstruction according to more stringent building codes..172
5. Public acquisition of hazard area properties ............... 172

III. Conclusion ...................................................... 173

Chapter 7: Legal Considerations in Using Growth Management to Reduce
Hurricane and Coastal Storm Hazards ............................ 175

Introduction ........................................................ 175

Part 1. Challenges to Growth Management ............................ 176
1. Challenges Based Upon Inadequate Authority ..................... 177
II. Challenges Based Constitutional Limitations ..................... 178
A. Due Process ................................................ 1.79
1. Procedural due process .................................. 179
2. Substantive due process ................................. 180
a. Standard of review .................................. 180
b. Types of substantive due process challenges ......... 182

B. The Taking Claim ........................................... 186
1. Types of regulations challenged as takings ............. 191

C. Equal Protection ........................................... 194
III. Damages ...................................................... 196

Part 2. Liability .................................................. 200
I. Threshold obstacles ............................................. 201
A. Act of God ................................................... 201
B. Sovereign immunity ........................................... 203
C. Contributory negligence ...................................... 206
II. Theories of Liability .......................................... 208
A. Liability without Fault: Inverse Condemnation ................ 209
B. Negligence ................................................... 215
1. Elements of negligence liability .......................... 216
2. Negligent failure to warn ................................. 219
3. Negligence in public works ................................ 225
4. Negligent issuance of permits ............................. 226
C. FEMA Subrogation ............................................. 227

Conclusion ......................................................... 230
Chapter 8: Concluding Notes ................................................ 233

Appendix 1. The Nature of Hurricane and Coastal--Storm Hazards ............. 236

1. The Meteorological Event and its Characteristics ................... 236
A. Nature of hurricanes ......................................... 236
Hurr*lcane forces ............................................. 241
1. Winds .................................................... 241
2. Storm surge .............................................. 243
3. Wave action .............................................. 245
4. Rainfall and inland flooding ............................. 245
5. Tornados ................................................. 246

II. Effects of Hurricanes on the Built Environment ................... 246
A. Air generated forces applied to buildings .................... 246
B. Water forces ................................................. 247

Appendix II: Model Hazard Mitigation Ordinances ........................... 253

1. Baytown, Texas: Hazard Mitigation/Post-Disaster Policies .............. 254

2. Myrtle Beach, South Carolina: Coastal Protection Overlay Zone ........... 259

3. Kill Devil Hills, North Carolina: Ocean Impact Residential Zone ......... 275

4. North Carolina Division of Emergency Management: Model Flood Damage
Prevention Ordinance .................................................... 280

5. Model Amendments to DEM Flood Damage Prevention Ordinance ............... 299

6. Model Post-Storm Moratorium Ordinance ................................... 302

Index ...................................................................... 306

PREFACE

Whatever success is achieved by this guidebook is due to the efforts of

many people. First of all, without the help and encouragement of Larry

Zensinger of the Federal Emergency Management Agency, and Will Brothers, Joe

Meyers, and Bob Buchanan of the North Carolina Division of Emergency

Management, this project would never have become a reality.

Our Advisory Committee--Will Brothers, Bill Collins, John Crew, Dexter

Hayes, Allen McDuffie, and Berry Williams--gave patient and constructive

assistance, and made innumerable helpful suggestions. In addition, Carol

Campbell, Joe Pelissier, John Scheibel, Pat Stahlschmidt, and many others read

drafts and offered improvements. We are also extremely grateful to Carolyn

Jones, Barbara Rodgers, and Lee Mullis, who spent hours and hours on draft
10 after draft. Last but not least, we want to thank Stacy Guess, who in his
real life plays trumpet with the Pressure Boys, for his graphics and marvelous

art work. To all of you, and to the many others who helped us in untold ways,

our appreciation and gratitude.

DJB

DJLB

BRW

Chapter 1

Introduction

Hurricane and Coastal Storm Hazards on the North Carolina Coast

Hurricanes and severe coastal storms are major threats to people and

property in coastal North Carolina. Historically, only Florida exceeds North

Carolina in terms of the number of hurricane landfalls among Atlantic coastal
states.1 Between 1899 and 1985 North Carolina has experienced 24 hurricane

landfalls, for an average recurrence of one hurricane every 3.6 years. Table

1.1 provides an historical listing of these storms, and Figure 1.1 provides a

graphic depiction of previous hurricane tracks. While it has been lucky in

recent years and has received only glancing blows from hurricanes (Hurricane

Charley and tropical storm Andrew in 1986; Hurricanes Gloria and Juan in 1985;

Hurricane Diana in 1984), the North Carolina coast has not been so fortunate

in the past. Devastating Hurricanes Donna (1960) and Hazel (1954) are still

vivid memories for many older residents of the North Carolina coast.

While hurricane and coastal storm events are a part of the natural

coastal system and will continue, the risks associated with them has increased

as a result of the dramatic growth occurring in coastal areas, including the

North Carolina coast. Nationally, coastal areas are growing at a rate three

times that of the nation as a whole. Between 1970 and 1980, population in the

20 coastal North Carolina counties grew by approximately 17%, often with much

greater levels of growth occurring on the Outer Banks--the most vulnerable

lNeumann et al., Tropical Cyclones of the North Atl.antic Ocean, 1871-
1980, Washington, DC: NOAA, 1978; revised 1981.

Table 1. 1

COASTAL HURRICANES OF THE 20TH CENTURY

The following list represents those tropical storms which were of full hurricane strength at the time they
reached coastal North Carolina. The decayed stages of hurricanes reaching this area are not listed. Storms
passing close enough off shore to affect land areas are included even though they did not make landfall.

1901 July 11: Made landfall near Oregon Inlet. No 1924 August 25* Passed off shore just east of
record of damage. Hatteras. Two people drowned and Ocracoke
partially flooded.
1903 September 15: Passed off shore but affected the
norther. Outer Banks. 1930 SeRtember 12: Passed off shore c@using minor
wind damage from Atlantic Beach to Hatteras.
1904 Sep ember 14: Made landfall between Charleston,
South Carolina, and the North Carolina state line. 1933 August 22-23: Made landfall at Cape Hatteras.
Damage to crops in eastern and central North Carolina High winds and tides caused great damage in
from wind and rain. northeastern counties estimated at $250,000.

1904 November 13: Passed off shore near Cape Hatteras. 1933 SeRtember 15-16: Made landfall west of
Three wrecked schooners. Several persqns drowned on Hatteras. Storm surge in Pamlico and Albemarle
land and at sea. Sounds caused 21 deaths and $3 million in damage;
New Bern flooded.
1906 SeRtember 17: Made landfall near Myrtle Beach,
South Carolina. Property damage at Wrightsville Beach. 1936 SeRtember 18: Passed up the coast slightly
east of Hatteras. Estimated damage of $55,000 to
1908 July 30: Passed up the coast close to Cape the northern coast. Heavy damage to crops.
Hatteras. Heavy rainfall caused flooding in the
eastern counties. 1938 SeRtember 21: Passed off shore on its way
north where it did considerable damage and was
1913 SeRtember 3: Made landfall between Hatteras and called "The Great New England Hurricane of 1938."
Beaufort. Storm surge in Pamlico Sound washed away No damage or loss of life reported in North
railroad bridges at Washington and New Bern. Wind and Carolina.
rain caused severe damage to crops as far west as Durham..
1944 August 1: Made landfall near Southport.
1920 SeRtember 22: Made landfall between Wilmington Heavy damage to structures at Carolina Beach.
and Morehead City. One person killed and many injured Considerable crop damage in the southern coastal
in Pitt County. counties. Estimated total damage was $2 million.

1944 September 14: Passed a sLort distance east of coastal areas and around the sounds. Heavy beach
Cape Hatteras moving northward. On the central and erosion also occurred. No deaths were reported.
northern coastal are7as 108 buildings were destroyed Hurricane Diane followed in five days and made it
and more than 600 damaged. Estimated damage to crops impossible to a9sess the damage caused by Connie.
at $1 million. Heavy damage in Elizabeth City and
Nags Head. One person killed. 1955 August 17: Hurricane Diane made-landfall near
Carolina Beach and passed over Wilmington. Winds
1949 August 24: Passed off shore at Cape Hatteras caused crop damage as far west as Raleigh. Heavy
directly over the Diamond Shoals Lightship. An flooding occurred in Belhaven, Washington, and New
estimated $50,000 in property damage occurred, Bern. Crop damage in the eastern counties caused
mostly in the vicinity of Buxton. Two persons died. by this storm and Connie came to more than $20
million, much of it due to salt water flooding and
1953 August 13: Hurricane Barbara made landfall rivers overflowing their banks. No deaths
between Horehead City and Ocracoke. Estimated were reported.
property damage was $100,000 while the crop loss
was $1 million. One person died. 1955 SeRtember 19: Hurricane Ione made landfall
near Salter Path on Bogue Banks. In spite of high
1954 August 30: Hurricane Carol passed just to the winds, damage from this storm was minor. Heavy
east of Cape Hatteras. Widespread light damage came rains falling on already waterlogged soils were
to an estimated $250,000. responsible for the flooding of thousands of acres,
and in New Bern 40 city blocks were inundated.
1954 SeRtember 10: Hurricane Edna passed about 60 Hundreds of homes were washed away. Seven people
miles east of Cape Hatteras. Hinor but widespread died. Estimated property damage was about $88
damage was estimated at $75,000 for property and million.
$40,000 for crops.
1958 SeRtember 27: Hurricane Helene passed off the
1954 October 15: Hurricane Hazel made landfall right coast from Wilmington to Cape Hatteras * Very high
on the South Carolina line. From that point northward winds were responsible for damage to crops and
to Cape Lookout, the ocean front was ravaged by storm structures estimated at $11 million.
surge. At Long Beach 352 of the existing 357 buildings
were totally destroyed. Nearby beaches suffered 1960 SeRtember 11: Hurricane Donna made.landfall
similar damage, and miles of grass-covered dunes between Wilmington and Horehead City and moved up
disappeared. Flooding occurred in Washington, New the coast. Heavy damage was experienced by coastal
Bern, and Elizabeth City. Heavy wind damage communities from Wilmington to Nags Head. Beach
was felt all over eastern North Carolina, and record erosion was considerable, and the corn crop in the
amounts of rainfall were recorded. Nineteen people, coastal counties suffered severe wind damage. Eight
most of whom were in beach locations, died. Total people died, and damage was estimated at several
property damage amounted to approximately $125 million. millions of dollars.

1955 August 12: Hurricane Connie made landfall close
to Cape Lookout, causing severe flooding in low-lying

Table 1.1 (continued)

1964 September 1: Hurricane Cleo passed from .1986 August 17: Hurricane Charley barely reached
western North Carolina out to sea in the vicinity of hurricane strength as it crossed the Outer Banks.
Elizabeth City. Heavy rains caused flooding and Of five total storm-related deaths, one was a
damage to crops in the northeast. motorist attempting to cross a flooded causeway
near Manteo. Reported damage in North Carolina
1964 October 16: Hurricane Isbell made landfall near was relatively light, resulting primarily from
Morehead City and moved northward over the eastern tidal flooding and downed trees.
counties, causing some flash flooding and damage to
the peanut crop.

1968 October 20: Hurricane Gladys moved up the coast
and out to sea in the vicinity of Cape Hatteras.
Damage was light and the state benefited from two
days of moderate rainfall.

1971 SeRtember 30: Hurricane Ginger made landfall near
Morehead City and began to dissipate as it moved inland.
Tides were six feet or inore above norruall at 'Wash-ington,
Aurora, New Bern, and Cherry Point. Thousands of acres
of corn and soybeans in the eastern counties were
affected. Damage was estimated at $10 million.

1976 August 9: Hurricane Belle passed east of Cape
Hatteras on its way north. Beaches were evacuated
but only scattered minor damage occurred.

1984 SeRtember 11-14: Hurricane Diana crossed the coast
near Cape Fear and moved inland before turning back out
to sea. The storm spawned a tornado in Nash County and
caused three deaths. Total damage was estimated at
$65 million, $26 million of which was crop damage.

1985 SeRtember 27: Hurricane Gloria, with some of the
highest winds ever recorded, passed over Cape Hatteras
and moved northward up the east coast. Eight deaths
were attributed to Gloria, and total damage estimated
at $900 million. Severe beach erosion and coastal
flooding occurred along portions of the Outer Banks.

& = M M M M @= k M

Figure
HURRICANE CROSSING THE GULF OF MEXICO
AND ATLANTIC COASTS OR PASSING NEAR
THE MAINLAND

SOURCE:Bakor,1978

locations. For instance, the Town of Long Beach (Oak Island) has reported

that its population has grown by 20 times since 1960. Permanent population

figures substantially underestimate the number of visitors and tourists that

may be placed at risk during peak summer months. Concurrent with these trends

is the general acknowledgement that major advancements in the prediction and
forecasting of hurricane tracks is not likely.2

North Carolina has addressed the hurricane hazard within the framework of

its Coastal Area Management Program. The Coastal Area Management Act (CAMA)

was adopted by the State legislature in 1974 and contains both a regulatory
and planning program.3 Policy direction is provided by the Coastal Resources

Commission (CRC), a fifteen member group of citizens appointed by the

Governor, and advised by the Coastal Resources Advisory Council (CRAC), a

forty-seven member body primarily made up of local government representatives.

The Division of Coastal Management, within the Department of Natural Resources

and Community Development, is the State office in charge of implementing CAMA,

and serves as a staff to the CRC. In all, 20 coastal counties are involved in

the North Carolina program. North Carolina, as perhaps no other coastal

state, has expressed its commitment to the careful management of its coastal

areas and to reducing the long-term damages from hurricanes and coastal

storms.

The regulatory component of CAMA is contained in the state's permitting
control over Areas of Envi*ronmental Concern or "AECs. " While AECs include

sensi*ive environmental areas, several coastal hazard areas are included. The

principal non-regulatory management technique under CAMA is mandatory local

2Committee on Governmental Operations, "Federal Assistance to States and
Communities for Hurricane Preparedness Planning," House Report Number 98-557,
1983.
N.C.G.S. �113A-100 et seq.

land use planning. Each coastal locality must prepare a land use plan and

update it every five years, consistent with spec ific state standards and

guidelines. These standards address a wide range of resource and

environmental marlagement issues from the protection of estuarine areas to the

identification and protection of valuable mineral areas. As of 1984, the 20

coastal counties and 55 municipalities had state-approved comprehensive plans
in place.4

In May of 1983 the CAMA provisions were modified to require the explicit

consideration of hurricane and coastal storm hazards in local land use plans.

Localities were required not only to consider policies and actions to mitigate

storm hazards prior to the event, but also to prepare post-storm

reconstruction plans and policies to guide the redevelopment process following

such a disaster. The overriding objective of these provisions is to encourage

coastal localities to manage development and redevelopment in ways which

minimize future storm losses, both in terms of property and human life.

The new CAMA regulations require localities to prepare storm mitigation

policies for their land use plans with the following elements:

(i) A composite hazards map and brief narrative description of
hazardous areas located within the planning jurisdiction;

(ii) An inventory and analysis of the existing uses of the land in
hazard areas;

(iii) A description of the relative severity and type of risk or risks
and an indication of the monetary value of the losses that might
be susta-ined in each of the hazard areas;

(iv) Hazard mitigation policies which apply to all 5hazard areas,
including both public and private facilities.

4David J. Brower and Daniel Carol, Coastal Zone Management as Land
Planning, Washingr-)r., DC: National Planning Association, 1984; David Owens.
"Coastal Management in North Carolina: Building a Regional Consensus," Journal
of the American Planning Associatio , Vol. 51, No. 3 (summer): 322-329.
515 N.C. Admin. Code 07B.0203(b)(a).

8
le In developing these policies, localities are instructed to consider at
ast the following: I

(i) Separate policies which deal with the effects of high winds,
flooding, wave action, and erosion for those hazard areas where
such force& may be expected;

(ii) Means of dealing with structures and uses which do not conform to
the hazard mitigation policies;

(iii) Means of encouraging hotels, restaurants, and similar large
commercial structures to locate outside of erosion-prone areas;

(iv) Policies which deal with the acquisition of parcels located in
hazard areas or rendered unbuildable, for the purpose of public
access.

The guidelines also require the preparation of a post-disaster

reconstruction plan which implements the above policies and explicitly

distinguishes between immediate cleanup and repair and longer term recovery

issues. Specifically, reconstruction plans must include, among other things,

the establishment of post-storm reconstruction guidelines, including: "the

timing and completion of damage assessments; the timing and imposition of

temporary development moratoria; and the development standards to which
repairs and reconstruction shall conform.'16

Localities are to establish schedules for reconstruction "according to

established priorities assigned to the restoration of essential services,
minor repairs, major repairs and new development."7 Localities are also to

prepare policies to guide the repair or reconstruction of public facilities,

and to consider their possible relocation outside of hazard zones. The

locality is also required to consider the establishment of a "reconstruction

task force," to oversee post-storm recovery and to deal with the policy

questions which arise during the reconstruction phase.

615 N.C. Admin. Code 07B.0202(a)(b)(iv).
715 N.C. Admin. Code 07B.0202(a)(b)(v).

Evacuation is also a strong concern in the CAMA guidelines. Indeed, some

of the strongest language (in the revised 1985 version) concerning the

management of local development is found here. The locality, in consultation

with the county (where relevant) and the State Division of Emergency

Management, must consider the adequacy of the local evacuation plan. "If the

required evacuation time exceeds the standard warning time as provided by the

National Weather Service, the local government should consider adopting

policies which would improve the capacity of evacuation routes, or limit the

level of development in areas to be evacuated, or otherwise reduce the amount
of time needed to safely evacuate.'18

While these CAMA regulations are relatively specific in their

identification of the required content and coverage of local plans, they

provide little concrete or practical guidance as to how to go about developing

and implementing these hurricane and post-storm reconstruction components.

Consequently, a strong need exists for the development of a detailed guidebook

which will assist North Carolina coastal localities in developing and

implementing hurricane mitigation and post-storm reconstruction programs. Its

preparation will hopefully assist coastal localities in achieving the long-

term hazard reduction objectives established by the CAMA guidelines, and will

result in a substantial reduction in the long term losses--both to life and

property--from hurricanes and coastal storms.

815 N.C. Admin. Code 07B.0203(b)(c).

Focus on Growth Management

Localities and states use a number of alternative approaches to

mitigating hurricane and coastal storm hazards. Several approaches have

become popular: the provision of flood insurance under the federal

government's National Flood Insurance Program (NFIP); the provision of post-

hurricane disaster assistance, usually by state and federal agencies; efforts

to reinforce the coastal environment through the construction of seawalls,

revetments, and groins, and the renourishment of beach sands and dunes; and

building codes and construction standards which encourage or require that

coastal buildings and facilities are better able to withstand hurricane and

storm forces. Another approach to these hazards is simply to reinforce the

warning and evacuation system in place and generally to find ways to protect

people, such as by evacuating and sheltering them, from storm forces. While

localities and states typically rely heavily on one or more of these

approaches, there are serious limitations to each which must be recognized.

While we do not advocate abandonment of other techniques, we do wish to point

out the limitations and how these limitations can be overcome through the

supplemental use of growth management techniques.

Structural approaches to mitigation--either by strengthening the

shc_r,[email protected] through seawalls, groins, jetties, and so on, or by strengthening

buildings and facilities themselves--are conventional approaches and are

dominant in many coastal regions. These approaches have important

limitations. In North Carolina, localities are not permitted to adopt

building standards more stringent than those contained in the State Building

Code, unless they obtain formal approval from the State Building Code

Council.9 And, although the Building Code Council has recently modified the

code to more adequately address hurricane conditions, building standards can

go only so far in protecting property and human lives. Requiring "hurricane-

proof" structures is inappropriate and economically infeasible. Engineered,

multi-family structures are better able to withstand storm forces, but their

location in high hazard areas (e.g., close to an eroding beach) creates the

need for structural protection. Moreover, while such structures are certainly
stronger, they are not immune to hurricane destruction.10 Permitting

shoreline development pell-mell with the understanding that seawalls and other

protective structures will be built to guard against hurricane and storm

forces is an extremely expensive approach, and one which is likely to have

limited effectiveness. The 17-foot seawall built in Galveston, Texas, for

example, despite its immense cost, is only designed to protect against a
medium-sized hurricane (a category 3 on the Saffir-Simpson indexil) and has

served to reduce much of the beach seaward of it. In North Carolina, the

option of this kind of structural reinforcement has been eliminated. In 1984 a

ban on all permanent shore bordering structures along the North Carolina coast

was imposed. Those wishing to build structures in hazardous and highly

erosive areas will now have to do so under the assumption that future

structural protective devices will not be permitted.

9With the exception of ordinances adopted to comply with new NFIP
regulations, which are now more restrictive in some areas than the State
Building Code.
loOrrin Pilkey et al, Coastal Design: A Guide for Builders, Planners and
Homeowners, New York: Van Nostrand Reinhold; Jack Salmon "Vertical Evacuation
in Hurricanes: An Urgent Policy Problem for Coastal Managers," 12 Coastal Zone
Management Journal No. 2/3.
"Neumann et al, Tropical Cyclones of the North Atlantic Ocean, 1871-
1980, Washington, DC: NOAA, 1978; revised 1981.

Beach nourishment or replenishment is another form of structural

reinforcement and another response to hurricane and coastal storm hazards.

However, this strategy is very expensive and suffers from very limited

effectiveness. New Hanover County, North Carolina, has estimated that the

total annual cost to replace all of the sand eroded from county beaches would
be over $5.2 million dollars.12 Great expense and effort can be expended to

replenish beach materials only to find that a substantial amount of this

material is lost during the next winter storm.

Exclusive reliance on emergency response and evacuation measures will

also be inadequate. Such an approach does nothing, of course, to protect

public and private property, and the shar,p increases in coastal population is

serving to dwarf existing evacuation capacities. Moreover, as already noted,

there has been little improvement in our scientific and technical ability to

predict and forecast hurricanes. One much discussed response to these

problems is to evacuate coastal residents vertically--that is, in private

engineered structures on the coast. There are, however, a host of legal and

practical problems with this idea which have yet to be resolved (e.g., the

legal liability of the owners of these structures) and a basic question
concerning the safety of residents.13 Vertical evacuation, or refuge, as it

is sometimes called, can create potentially catastrophe situations where a

single building failure may lead to a high loss of human life.

Heavy reliance on federal programs, specifically flood insurance and

disaster assistince, may also be inappfopriate. In both programs the federal
government appears to be moving away from private subsidies to a position of

12New Hanover County, N.C., County Involvement in Be ach Erosio (1982).
13Jack D. Salmon*, "Vertical Evacuation in Hurricanes: An Urgent Policy
Problem for Coastal Managers," 12 Coastal. Zone Management Journal, No. 2/3.

greater financial responsibility for states, localities, and individual

property owners. It seems apparent that future federal disaster aid will be

strongly contingent on the good faith efforts of states and localities to

mitigate hurricand and coastal storm hazards. In short, local and state

governments can no longer turn to the federal government for a carte blanche

on recovery and reconstruction. Instead, they must act in ways which

responsibly prevent or reduce these potential losses in the future or be

willing to suffer the losses in an increasingly unilateral manner.

Any effective mitigation program must be founded on a full understanding

of the natural dynamics of the coastal environment. As noted, in recent years

much of the coastal development has been occurring on extremely hazardous and

environmentally-sensitive barrier islands, and much of the focus of this

report is on management approaches which can be undertaken in this context.

Barrier islands have been shown to migrate and are composed of a complex set

of natural dynamics (e.g., washover processes, littoral drift, inlet

formation, dune and beach dynamics) which are in turn modified by hurricanes
and storms.14 Coastal erosion, whether a result of normal offshore littoral

patterns, the occurrence of hurricanes and storms, or the general rise in the

sea level, makes development along the shores of barrier islands particularly

tenuous. Effective mitigation approaches, and the approach adopted in this

manual, build upon an understanding of, and are sensitive to, those natural

A dynamics.

14Wallace Kaufman and Orrin Pilkey, The Beaches are Moving: The Drowning
of America's Shoreline, Garden City, NJ: Doubleday Book, 1977; Stephen
Leatherman, The Barrier Islands Handbook, Baltimore: University of Maryland,
1979; Orrin Pilkey et al, From Currituck to Calabash: Living with North
Carolina's Barrier.lsla.tds, Durham, NC: Duke University Press, 1980.

This mitigation manual is concerned primarily with the use of growth

management as a strategy for reducing coastal storm hazards. Growth

management can be defined as a conscious attempt on the part of government to

influence, either directly or indirectly, the location, density, type, and
timing of quality of urban growth and development occurring in a community.15

This can be accomplished through a number of specific programs and policies

described in this report, including the direct regulation of coastal

development (e.g., through zoning and subdivision ordinances), land and

property acquisition, capital facilities policies, and taxation and fiscal

incentives. These techniques have in cornmon the objectives of reorienting or

redirecting urban development away from the most hazardous coastal locations.

While the focus of the manual is on the use of growth management

techniques, we do not wish to imply that this is the singular approach that

localities should adopt. Just as the previously-described techniques have

limitations, so also does growth management. For instance, growth management

approaches, as we have described them here, can do little to mitigate the wind

hazards generated by hurricanes. These hazards are best addressed through

local and state building codes. We present growth management as a tool to be

used as a supplement to other mitigation programs--to correct for the

limitations of other techniques. Each locality will have to decide on the best

overall strategy and combination of mitigation approaches.

15David J. Brower et al, Managing Development in Small Towns, Chicago:
APA Planners Press, 1984; David R. Godschalk, David J. Brower et al,
Constitutional Issues of Growth Management, Chicago: APA Planners Press,
1979.

1 15
1 Ffgure 1.2
10 DISASTER RESPONSE STAGES
I
I
I
I
I S to rrn
I
I* re C? o7ess
I
. gjot4
MliTIG
ecovery

0 Se
les
storm
preparedness
14

As Figure 1.2 indicates, there are several key phases in the disaster

process or cycle. Two of these, pre-hurricane mitigation and post-hurricane

reconstruction, are of concern to us here. The growth management approach to

mitigating coastal storm hazards, and the specific programs and policies

described in the chapters to follow, can find effective application in both of

these stages of the disaster cycle. In the pre-storm phase, growth management

seeks to influence the normal patterns of development--both new development

and normal redevelopment of older developed areas. During reconstruction, and

depending upon the magnitude of the event and level of destruction,

opportunities will exist to mitigate future losses by rebuilding in safer

locations and through safer development and building designs.

Plan for the Manual

The following chapters seek to provide local officials in coastal

jurisdictions with a clear understanding of the concept of growth management

and of the specific programs and policies which can be used to mitigate storm

hazards both in advance of and following a hurricane or storm. Chapter 2

introduces more fully the concept of growth management and discusses in detail

the various community goals and objectives which can be advanced through such

programs. It places hurricane and coastal storm hazard mitigation within a

broader, multi-objective framework and discusses ways in which local goals and

objectives can be dovetailed. It also introduces the concept of risk and

discusses theoretical issues in determining acceptable local levels of

hurricane and storm risks. Chapter 3 describes the intergovernmental and

institutional context in which hurricane hazard mitigation and local growth

management occur. Included are, for instance, a discussion of the nature and

extent of local powers and a description of relevant federal and state laws

and administrative procedures which have some bearing on local mitigation

efforts.

Chapter 4 provides a methodology for identifying, mapping, and evaluating

the different risks associated with hurricanes and coastal storms. It focuses

on practical approaches and on identifying readily available sources of data

and information. Chapter 5 provides a detailed review of the alternative

growth management tools and techniques that can be employed in reducing local

hurricane risks. Examples of their use in North Carolina and in other states

and localities are provided. In addition, Chapter 6 describes the unique

needs and decisionmaking pressures evident in the aftermath of hurricane or

major storm. A number of alternative institutional approaches to managing

reconstruction and redevelopment during this period are reviewed (e.g.,

moratoria on redevelopment, reconstruction task forces).

Chapter 7 provides an overview of the legal issues pertaining to this

subject. It discusses the legality and constitutionality of the various

growth management tools and techniques described earlier. It also discusses

other legal issues of relevance to the hazard mitigation area, such as the

liability of local governments to prevent development in dangerous coastal

locations. Chapter 8 adds a final summary and concluding note on the

necessity of local leadership in coastal hazard mitigation. Finally, two

appendices contain background information on the nature of hurricanes and

coastal storm hazards., as well as model mitigation ordinances. It is our hope

that this guidebook can serve as a reference and a resourc6 to help local

officials in the adoption and effective implementation of growth management

programs.

Chapter 2

Using Growth Management to Reduce Hurricane and Coastal Storm Hazards

Introductio

This chapter introduces the concept of growth management and places it in

a risk assessment framework. Growth management is an effective approach to

mitigating hurricane and coastal storm risks, yet before this technique should

be applied, the locality must make the determiziation that collective risks,

existing or future, are in some sense unacceptable. Accordingly, the first

section of this chapter will present a broad theoretical framework in which

local officials can consider the relative hurricane risks in their particular

locality, and the extent to which mitigation or reduction of these local risks

is considered desirable.

Placing Hurricanes and Coastal Storms in a Risk Analysis Framework

As Appendix I discusses in detail, hurricanes and severe coastal storms

generate physical forces which put property and human lives at risk. This is

an endemic threat in coastal living. The existence of such threatening

physical forces does not automatically suggest that we retreat from the coast.

On the contrary, coastal environments are increasingly attractive places in

which to reside and work. The question is one of balancing the dangers of

coastal living against the benefits derived from it, and of deciding what

constitutes an acceptable or unacceptable level of risk. Where risks are

determined to be unacceptably high, certain actions (e.g., exit, mitigation,

risk-sharing, etc.) are then called for.
Figure 2.1 presents a general framework for understanding the process of
risk analysis and in which to place hurricane and coastal storm risks. Two

primary components of risk analysis can be identified: risk determination and
risk evaluation.1 In the first determination stage, the primary task is to

identify and estimate the range and extent of the risks involved. The second

element concerns whether to accept the risk, and, if so, to what extent. Risk

determination involves quantifying the risks associated with hurricanes and

coastal storms, and risk evaluation involves deciding whether, and in what

ways, individuals and collective bodies should respond to these risks.

Chapter 4 deals with the identification and quantification of hurricane risks

and reviews a number of methodologies and techniques by which to accomplish

this. The discussion which follows in this chapter deals with issues involved

in risk assessment.

Risk Evaluation: Assessing the AcceRtability of Coastal Storm Hazards

When a locality has identified the existence and extent of hurricane and
coastal storm hazard*s, it must determine whether these risks are acceptable.

In most cases the question will be one of degree: that is, to what extent are

they acceptable and beyond what 2oint are they no longer acceptable? Once

these questions are answered, then appropriate actions and policies can be

taken which bring levels of risks in line with decisions about acceptability.

From a philosophical point of view, several policy positions might be
taken when defining "acceptability."2

lWilliam D. Rowe, "Governmental Regulation of Societal Risks," 45 Geo,
Wash. L. Rev. 944-968 (1977).
4This discussion is taken largely from Beatley, Influences on the
Priority. Adoption, and Effectiveness of Local Coastal Storm Hazard
Mitigation, Chapel Hill, NC: UNC Center for Urban and Regional Studies, 1986.

Death and personal injury, destruc-
Interaction with tion of buildings (homes and indus-
natural and man- try), public facilities, natural
environment environments, and amenities.

Exposure to Value of 0
Hurricane Hurricane Hurricane Hurricane Loss/ 13
Event Characterist ics Impacts Damage Damage
C)

3C@
'00

Wave surge and I [on, type, vulner- individual and
wind effects ability of built environ- collective
ment; evacuation, assignment* of
availability of shelters, value.
search, rescue, and
medical services.

Source: Beatley, Brower and Codschalk, 1984
@ NEXDO@MUreto

mom M M M M M M

1. Reduce hurricane risks to the greatest 2ossible extent. This

position would argue that no degree of coastal storm risk should be accepted

and that every possible mitigative action, no matter what its cost, should be

undertaken- This appears an untenable position and would seem to call for a

complete retreat from the coastline altogether. This position does not

acknowledge that taking risks may yield significant social benefits and that

complete mitigation may tend to be very costly from a social point of view.

2. Balance hurricane risks against social benefits. A more moderate

position would argue that the acceptability of social risks must be balanced

against the benefits obtained from taking or permitting these risks. For

instance, the social benefits derived from building a high-rise hotel in the

500-year flood zone ("B" zone) might be deemed to far outweigh the storm or

flood risks associated with this location. On the other hand, if the building

were proposed for a location in a high velocity wave zone ("V" zone), the

risks may be judged to exceed the benefits derived and that preventing its

location here is then justified.

In assessing these costs and benefits, a number of factors must be
considered.3 An important consideration is whether there is a reasonable

alternative to the risk-creating action in question. Even though it may be

determined that the benefits of permitting development in a hazardous location

exceed the risks, can such development yield the same level of benefits but at

a location which involves fewer risks? It can be convincingly argued, for

instance, that coastal setbacks do not reduce the overall benefits from

coastal development but rather move them back from the ocean, in turn reducing

the level of storm risk and increasing the net benefits produced.

3William W. Lowrance, Of Acceptable Risk, Los Altos, CA: William
Kaufman, Inc.

3. A maximum acceRtable hurricane risk. A standard such as the previous

one may lead to a utilitarian maximizing of net social benefits, regardless of

the actual impacts on individuals. For instance, it might be argued.under the

balancing approach that, even though a number of individuals are likely to be

killed should a hurricane hit the locality, the social benefits of permitting

hazardous development (e.g., levels of development in excess of evacuation

capacity) exceed these social costs. This is clearly unacceptable from the

point of view of individuals losing their lives in these circumstances.

Consequently, a "maximum acceptable risk standard" would not be acceptable.

For instance, we may establish that, Ift&trdless of the level of net social

benefits that might result from such a practice, no additional coastal

development will be permitted to occur if it raises required evacuation time

beyond 12 hours (or whatever is deemed the maximum risk that any average

evacuating individual should have to face.).

4. An ecuitable distribution of hu:ricane risks. Hurricane and coastal

storm risks can be distributed in many different ways, even when satisfying

some of the above standards. This evaluatory standard or principle would

suggest that an existing risk may be unacceptable because it is distributed

unfairly. For instance, a locality may assess developers or homeowners for

th.- 'Full costs of public facilities located in particularly hazardous sites

because it feels that it is unfair for the larger public to subsidize such

private activities. A locality may take certain risk-reducing actions, for

instance the building of new storm shelters, because it determines that

hurricane risks are unfairly high for elderly and lower-income residents.

The Issue of Voluntarily-borne Risks

An important value question which policy makers dealing in this area will

undoubtedly confront is the extent to which local governments in their

attempts to reduce coastal storm risks are usurping the risk-taking authority

of the individual. Is it legitimate for the locality to judge as unacceptable

a risk which the individual has judged to be acceptable (e.g., building a home

on the water)? Response to such arguments hinges in large part upon empirical

understandings of the risk. Most individual risk-taking behavior is not

strictly "exclusive"; that is, one person's risk-taking behavior affects the

welfare of others in the community. With respect to coastal storm hazards,

this non-exclusivity occurs in numerous ways. Homes built in high hazard

areas can turn into battering rams, destroying homes in other locations.

Construction too close to the ocean, and the protective works which usually

follow, are highly erosive and may serve to undermine the beach and dune

system which protects other homeowners. Structures built in high hazard areas

may also comprise a significant portion of the local tax base, so that the

cumulative effect of individual risk-taking could endanger the fiscal health

of the whole community. In terms of lives, when residents must be rescued

from hazardous locations, rescue workers risk their own lives and public

;-gencies expend their resources. One coastal resident's need to evacuate

reduces the ability of other coastal residents to do so. The list of such

public effects" is extensive.

However, even if an individual's risk is in fact completely internalized

(i.e., does not affect someone else or the public in general), there may
remain legitimate reasons for public risk-reducing actions.4 Individuals

4Timothy Beatley, Development Management to Reduce Coastal Storm Hazards:
Policies and Processes, Chapel Hill, NC: UNC Center for Urban and Regional
Studies, 1985.

often lack the time, resources, information, or specific cognitive abilities

to engage in risk calculations. For instance, the adoption of a jurisdiction-

wide building code is clearly justified in that the average coastal homebuyer

would not have the necessary information or expertise to adequately evaluate

the ability of the structures to withstand hurricanes. Moreover, it can be

convincingly argued that the public sector has strong ethical obligation to

protect the health, safety, and welfare of individuals, an obligation founded

on democratic consent.

Hurricane Hazard Mitigation Goals and Standards

Judgments about the acceptability of coastal hurricane and coastal storm

hazards will in turn lead to the consideration and adoption of hazard

reduction goals and a specific ordering of these goals. Such goals then serve

to guide the development of more specific programs and policies to implement

them. These goals might be generated by the following questions which

summarize earlier discussion:

A. Are existing risks acceptable?

o No --4P- 1. Reduction of human injury and loss of life.
2. Reduction of damages; to existing development.
3. Reduction of damages to existing public
facilities and structures.

0 Yes

Do nothing.

B. Are future risks acceptable (given best available knowledge of
the future)?

o No --Om- 1. Reduction of human injury and loss of life.
2. Reduction of damages to future development.
3. Reduction of damages to future public
facilities and structures.

o
Ye
Is
Do nothing

These goals can then be ranked, depending upon the specific priorities

and concerns of the locality. For instance, in a barrier island locality

where most development is located in the least hazardous locations and yet

where evacuation off the island is difficult, reducing the level of risks to

human life may be of greatest importance. In a locality where evacuation is

relatively easy, yet where development has and continues to occur in the most

hazardous locations, priority may be given to the reduction of damages to

property. It should be remembered, however, that which goals receive priority

will depend upon judgments about the nature of the local risk. Reducing risks

to human life may be the most important goal even in the locality where

evacuation is relatively easy, if officials believe that substantial numbers

of residents will remain in their homes during a hurricane and that prevailing

building practices are not adequate to prevent major catastrophes from

occurring.

Once these relatively general goals are established, it is advisable that

a locality seek to develop more specific risk-reduction standards. These can

then serve as operational standards of what is or is not an acceptable level

of risk and will provide specific guidance in selecting appropriate policies

and programs to achieve them. Some examples of such standards might include:

o Total required evacuation time for the locality shall not exceed 24
hours;

� No more than 25 percent of the total value of taxable private property
shall be located in the 100-year floodplain;

� No future residences or other structures shall be located in Coastal
High Hazard Zones (V zones);

� Development in areas in the community where the storm hazard is
greatest will not be permitted until development capacity in safer
locations has been reached;

� Residential development shall not occur seaward of the beach road,
unless a protective dune exists to shield it from storm forces;

� Etc.

Integrating Risk Reduction and Other Local Objectives

The relation of storm hazard reduction goals and the programs designed to

advance them to other community objectives should always be considered. Among

these non-mitigation goals might be some @of the following:

� The protection and enhancement of the natural environment and
ecosystem;

� The enhancement and improvement of the local economy and the adequate
provision of employment and income for residents;

� The availability of sufficient and affordable housing stock for
existing and future residents;

� The protection of aesthetic and scenic characteristics of the coastal
environment;

� The preservation of the high quality of life and small town atmosphere
of the community;

� The achievement of efficiency in the provision of public services and
facilities.

If, for instance, the protection of coastal wildlife areas is an
important local goal, this may be accomplished through the public acquisition
of such lands, which are likely also to tie areas susceptible to hurricane and
storm forces. Acquisition of these lands in these cases serves multiple local

goals. Certain mitigation policies, such as setbacks and density restrictions

for instance, may also serve to advance local goals of preserving aesthetic

resources and ensuring the economic attractiveness of the area. It is

important to inteirate mitigation goals with other pertinent local goals and

objectives. This will almost certainly tend, as well, to enhance the

political and financial acceptability of such measures.

Using Growth Management to Reduce Hugricane and Coastal Storm Risks

This section discusses the use of growth management tools and techniques

as an effective approach to reducing many of the risks and hazards associated

with hurricanes and coastal storms. Growth management has been defined to

include programs and policies which serve to influence the location, density,
timing, and type of development occurring in a community. 5

Growth management programs, as we define them, have historically

been designed to address a number of social and economic objectives. Primary

among these objectives has been the promotion of compact and contiguous urban

development, the provision of cost-efficient sewer, water and other public

services, and the protection of the natural resource base (e.g., productive

farmland and forestland). Growth management programs have in more recent

years attempted to address such problems as the availability of affordable
housing6 and the protection of aesthetic and visual resources.7

5David J. Brower et al, Managing Development in Small Towns, Chicago: APA.
Planners Press, 1984; David J. Godschalk et al, Constitut12nal Issues of
Growth Management, Chicago: APA Planners Press, 1979.
6W. Dennis Keating, "Linking Downtown Development to Broader Community
Goals: An Analysis of Linkage Policy in Three Cities," 52 Journal of the
American Planning Association 1986, No. 2 (summer): 133-141.
'Christopher ---.-Duerksen and Mary C. Bean, "Land and the Law 1985: A Run
on the Bank," 17 The Urban LaLwyer No. 4, 827-870 (1985).

Modifying the Characteristics of Growth

Growth management programs and policies can accomplish goals of hazard

mitigation as well as the range of social. and economic goals identified above,

by seeking to influence or modify one or more characteristics of urban growth

and development. These key characteristics or dimensions of growth include

the following:

1. Location. A primary strategy for reducing hurricane and coastal

storm hazards is to avoid the location of human activities in close proximity

to the source of these hazards. This may, suggest, for instance, that high

hazard coastal storm surge zones be left in an undeveloped state.

2. Density. An important determinant of the extent of risk from

hurricane hazards is the density of development which occurs in high hazard

locations. Actions may be taken, for example, to ensure that low development

densities occur in these high hazard areas, such as low density residential.

The overall density of development in a community may be controlled or

influenced, for example, to ensure the ability of residents to evacuate in the

event of an approaching hurricane.

3. Timing. The phasing or timing of growth may be desirable in order to

ensure that local planning capacity and local services and facilities crucial

to responding to hurricane and coastal storm. disasters are not outstripped.

Future development on a barrier island, for example, may be phased according

to the capacity of the local street and bridge system to accommodate

evacuation in the event of a hurricane.

4. T
,)Me. The type of growth or development refers-to the actual uses to
whichland and space is'put. Typical uses include commercial and industrial,
single family residential, multifamily, open space and recreational uses, and

so on. The presence of storm hazards may suggest that certain uses are more
ko appropriate than others in certain high hazard areas. For instance,
recreational and marina areas may be the most appropriate uses for high hazard

flood zones, because they involve low levels of property, and do not serve to

undermine the preexisting protective features of the natural environment

(e.g., dunes, vegetation, etc.).

Conclusio

How should communities go about deciding how to respond to hurricane

hazards? Risk analysis is a good first step in developing a growth management

policy to reduce coastal storm hazards. This chapter suggests that local

governments focus the policy debate on community attitudes towards coastal

hazard risks--the extent to which risks should be reduced, the levels of risk

that balance out against the benefits of development, the maximum risk

acceptable, and which elements of the community bear the risks. Local

governments cannot necessarily escape responsibility by relying on

voluntarily-borne risks, because the external effects and unintended

consequences of individual risk-taking often call for public intervention.

Once a community generates overall hazard reduction goals, it can then

rank and operationalize its objectives, specifying such standards as an .

evacuation time limit or restrictions on the type and level of development to

be allowed in high hazard areas. These mitigation planning guidelines can

often be integrated with other local policies, such as protecting the coastal

environment or preserving a distinctive atmosphere and quality of life.

In many cases local governments can best achieve their hazard mitigation

goals through growth management, which reduces risks by reducing the exposure

of lives and property to coastal storm hazards. Growth management limits and

guides new development by modifying its location, density, timing, and type,

thereby reorienting intensive development away, from hazardous locations.

Chapter 5 specifies the growth management tools and techniques available to

implement local mitigation strategies, following Chapter 4's discussion of

the tools which local governments can use to identify hazard location and

exposure.

Chapter 3

Institutional Context for Coastal Growth Management

Though growth management, like all land use regulation, is traditionally

a local government responsibility, coastal local governments must operate in

an interlocking framework involving all three levels of government-federal,

state, and local. The interrelated programs and agencies affecting coastal

area management present a complex web of legal requirements and political

pressures with which local governments shoul d become familiar in designing and

implementing their own hazard mitigation policies.

1. The Federal Oovernment

Perhaps the originating impulse for coastal area management in general

and storm hazard mitigation in particular comes from the federal government,

especially in terms of funding and setting the policy agenda. Because of the

Commerce Clause of the U.S. Constitution, which empowers Congress to regulate

navigation and interstate commerce, the federal government has always had a

strong presence on the coast. The regulation of navigation led to a direct

involvement in coastal development, through the activities of the Army Corps

of Engineers (COE) in constructing breakwaters, dredging channels, regulating

private construction, and otherwise promoting navigation and commerce. More

recently, other federal agencies such as EPA have regulated private

development activities under the authority of environmental legislation, to

protect coastal waters from pollution and coastal environments from

degradation. Currently, the federal presence on the coast is confusing and

multifaceted: different federal agencies play the roles of developer,

financier of private development, regulator, and facilitator of state

government programs. These forms of federal involvement in coastal

development regulatory policies are in addition to the background role of the

National Weather Service in providing the hurricane monitoring, forecasting,

and modeling services which yield the raw data for coastal area management.

Though the federal government's commerce power is so extensive that it

could theoretically pre-empt all state and local coastal management, federal

coastal policies have been described as a paradigm of the New Federalism, in

which the federal government does not directly regulate state government or

private activity, but engages in program support and institution-building,
usually through categorical grants.1 The lure of federal dollars, even with

complicated procedural and legal strings attached, has been effectively used

to create agencies and procedures at the state and local levels rather than to

mandate substantive coastal policy. The New Federalism model aptly describes

the two federal programs with the greatest effect on coastal hazard

mitigation: the National Flood Insurance Program (NFIP) and the Coastal Zone

Management Act.

A. National Flood Insurance Progra

A significant factor in coastal development as a whole and a major

impetus for local mitigation programs, the NFIP was established by the

National Flood Insurance Act of 1968. The program is intended to reduce the

magnitude of flood disaster losses and federal disaster aid by providing

federal flood insurance to floodplain residents, in return for building codes

and land use control measures by the appropriate local government. Since

1
G. Finnell, Intergovernmental Relationships in the Coastal Zone. 25 Nat.
Res. J. 31 (1985).

private-sector flood insurance is often unavailable, local governments would

be encouraged to qualify for the program in order to make the insurance

benefits available to their residents. At the same time, the required

development regulations would ensure that new construction would be better

protected from flood hazards, thus diminishing the necessity for flood

insurance claims payments and federal disaster aid expenditures.

The program is initiated when the Federal Insurance Administration (FIA),

a division of the Federal Emergency Management Agency (FEMA), identifies a

flood-prone community, generally one which contains a 100-year floodplain.

After FIA prepares a Flood Hazard Boundary Map for a community, the local

2The New Federalism approach of the NFIP was upheld in Texas Landowners
Rights Ass'n v. Harrii, 453 F.Supp. 1025 (1978), aff'd 598 F.2d 311 (1979),
cert, den. 444 U.S. 927 (1979). The court found that conditioning flood
insurance benefits on enactment of development restrictions was not an
unconstitutional interference with state sovereignty.

government can enroll in the emergency phase of the NFIP, instituting

preliminary development regulation and making limited insurance coverage

available to its residents. Except for communities identified as minimally

flood-prone, before a jurisdiction enters the regular phase of the program,

FIA undertakes a detailed flood hazard SILLrvey which delineates and categorizes

the geographical extent of potential hazZLrds and is graphically represented by

a Flood Insurance Rate Map (FIRM). As its name suggests, the FIRM provides

the basis for setting flood insurance premiums for particular properties, but

it also determines the extent and level of required development regulations,

usually elevation requirements. For instance, the 100-year floodplain in a

community is basically divided into A-zones and V-zones. The latter, being

subject to wave action as well as storm surge up to the 100-year flood level,

necessitates stricter elevation and construction standards for new development
in an enrolled community.3

In terms of widespread participation, the NFIP has been a great success

in attracting local governments to enroll, but it has been rather less

successful in controlling development in vulnerable coastal areas:

The benefits to communities and their citizens are so great that most
coastal communities do participate in this program. However, the program
has not been successful in discouraging development in hazardous coastal
areas . . . The availability of federally subsidized flood insurance has
4
eliminated much of the economic risk involved in coastal development.

Even though the availability of subsidized insurance has to an extent

perpetuated the disaster/federal aid/rebuilding/disaster cycle the NFIP was

3Specific technical provisions of the NFIP are discussed in Chapter 4.
4Hildreth, Legal Aspects of Coastal Hazards Management, in Edge (ed.),
Coastal Zone '80, Vol. II, Proceedings of Second Symposium on Coastal & Ocean
Mgmt., Am. Soc. of Civil Engineers (1980), at 1374. The extent to which the
NFIP has contributed to coastal development is controversial. A GAO Report,
Flood Insurance: Not a Significant Facto- in Fncouraging Coastal and Barrier
Island Development, August 1982, concluded that subsidized flood insurance was
only a marginal added incentive to development.

designed to interrupt, the program has had significant positive effects on

coastal hazard mitigation planning. The work done by FIA in delineating flood

hazard zones, preparing detailed maps, and promulgating development

requirements has provided the technical basis for state programs, such as the

designation of flood hazard AECs under CAMA, and for the design of local land

use plans. NFIP funds and regulations have brought coastal hazard mitigation

to the attention of local governments and have suggested methods to approach

the problem. Federal grant requirements have provided a constituency for

mitigation and an incentive for cautious reconstruction at a time when many

coastal local governments and property owners may think only of rebuilding the

status quo ante as soon as possible.

B. Post-Disaster Aid

FEMA has also sought to encourage local government hazard mitigation in

the context of its post-disaster aid programs. Federal financial assistance

has long been a familiar feature of the aftermath of storms and other natural

disasters, and there are a wide variety of aid programs available for both
individuals and governments.5 The institutional structure of federal disaster

assistance has been codified under the Disaster Relief Act, which made FEMA
the lead agency for all federal disaster relief efforts.6 Under the Act,

most federal aid is contingent on a Presidential declaration of an "emergency

or major disaster." The Presidential declaration is promulgated after the

governor of the affected state formally requests federal aid and certifies

that state and local resources are inadequate. The governor's request must be

5See generally Chapter 6; also Propst, Federal Programs Providing
Disaster Assistance to Coastal Local Governments Following a Hurricane: A
Handbook for Local Government officials, Chapel Hill, NC: UNC Center for
Urban6and Regional Studies, April 1984.
42 U.S.C. �5121 et seq.

sent to the FEMA Regional Director and forwarded through the Director of FEMA

to the President for a decision. Once the President issues a declaration, the

governor and the FEMA regional director sign a. Federal-State Disaster

Assistance Agreement which specifies how federal funds are to be used.

Pursuant to �406 of the Act, the federal-state agreement also includes a

condition that state and local governments must evaluate applicable natural

hazards and develop a hazard mitigation plan "including safe land use and

construction practices" for the disaster area in order to receive further

federal funds. The �406 plan must be submitted to FEMA within 180 days after

the President's proclamation, and is often based on the initial work of a

federal/state/local survey team and the Federal Interagency Regional Hazard
Mitigation Team.7

Another post-disaster program which FEMA employs to reduce potential

disaster losses is the damaged property purchase and relocation program of

�1362 of the NFIP. In many cases, it would be cheaper for the FIA to purchase

properties in particularly hazardous locations and leave the land vacant

rather than continue to pay periodic flood insurance claims and allow

reconstruction after a regular cycle of floods, especially if local floodplain

regulation forbids or restricts reconstruction. Until 1983, FIA used the

r1constructive total loss" approach where frequently-flooded properties which

were damaged, but not destroyed, in the latest: storm were deemed total losses

and their owners paid off up to the flood insurance policy limits, with the

damaged property dedicated to the local government as open space. Section

1362 systematized this process by allowing FIA to purchase insured properties

7D. Brower, D. Godsrhalk, & T. Beatley, Implementin@ Coastal Storm Hazard
Policy, Center for Urban & Regional Studies, UNC-Chapel Hill, 1986, Ch 4.,
�2.3.5.

which were either damaged beyond repair, had been flood-damaged for three of

the past five years, or were legally prohibited from being reconstructed. FIA

uses eight "community selection factors" to allocate its �1362 funds. The

�1362 program, though it has worked effectively in several cases and is

considered an effective mitigation measure, is vastly underfunded when
compared to the estimated number of eligible structures.8

C. Coastal Zone Managem2nt Act

The exemplar of the New Federalism, the Coastal Zone Management Act of

1972, did not mandate any specific coastal land use politics, but instead
sought to institutionalize "management" of coastal resources.9 The Act sought

to encourage state coastal programs, within a specified format, to establish

planning and permitting procedures which would balance the conflicting

residential, recreational, economic, and environmental uses of the limited

resources of the coastal zone, while local governments would retain

substantial responsibility for land use regulation.

To be approved under the CZMA, state coastal plans had to conform to

certain structural and procedural requirements, such as defining the

boundaries of the coastal zone, establishing standards for permissible land

and water uses, and designating areas of particular concern, including storm

hazard areas. Once approved by the office of Coastal Zone Management in NOW

states became eligible for federal grants for both program development and

program implementation and administration. This attractive funding incentive

was probably the major factor in the widespread acceptance of coastal zone

BBrower, Godschalk, Beatley, Implementing Coastal Storm Hazard Policy,
Ch.4, �2.3.4.
9M. Wolf, Introduction and Overview, Accommodating Tensions in the
Coastal Zone, 25 Nat. Res. J. 7 (1985).

planning by coastal states, but the CZMA also provided another incentive in

the form of its federal consistency provisions, which was very important to

some states. In states with approved coastal plans, federal public works,

development projects, permitting, or other programs must conform to the
maximum extent practicable to the state coastal policies and guid e lines.10

D. Funds Cutoffs

Federal involvement with coastal development policies is not restricted

to grants and incentive programs. In addition to the strings attached to

federal aid carrots, the federal government is at times willing to use the

stick--a cutoff of funds for unrelated programs in order to achieve coastal

management objectives. These programs go beyond denying NFIF benefits to

communities which don't abide by its restrictions, because the NFIP, like the

CZMA, is entirely optional (though financially very attractive). The Coastal

Barrier Resources Act, by contrast, forbids any federal expenditures which

assist in developing designated barrier islands (infrastructure, mortgage
financing).11 Because certain undeveloped stretches of barrier islands,

including portions of the Outer Banks, were found to serve as natural storm

barriers and were unsuitable for development, CBRA prohibits federal aid for

road and bridge construction, disaster relief, or flood insurance on

str-..c.'Tures within the designated barrier areas. The effects of CBRA on

shoreline development are still being debated, but the Act points out a

potential new approach in the use of the federal spending power--withdrawing

financial support which local governments and developers may have taken for

1016 U.S.C. �1456.
1116 U.S.C. �3501 et seq. CBRA was recently upheld against a
constitutional due process challenge that the designation of part of Topsail
Island as an undeveloped barrier beach was irrational. Bostic v. U.S., 753
F.2d 1292 (1985).

39 12
granted--to accomplish federal coastal policy.

Prior to CBRA, President Carter in 1977 issued two executive orders

directing federal agencies to avoid supporting development in floodplains

(E.O. 11988)- and wetlands (E.O.11990). Agencies were required to refrain from

financing or permitting development projects in flood hazard areas or wetlands

unless "no practicable alternatives" exist. The executive orders and the

regulations adopted to implement them are designed to undertake a consistent

federal policy to discourage wetland and floodplain development. Executive

orders do not have the full force of law in terms of binding the agencies to

third parties, but are binding on the agencies within the Executive Branch.

In other words, insofar as federal agencies have discretion to allocate or

withhold funds under the appropriate statutes, they are required by the Chief

Executive to exercise that discretion to avoid wetland and floodplain

development. In practice, the E.O. 11988 and 11990 regulations have evolved

into a set of procedural requirements for environmental impact statements

13
similar to those of the National Environmental Policy Act (NEPA).

E. Environmental Rezulation

As part of its plenary commerce power, the federal government is able to

regulate activities which affect the nation's air, water, and environment. Of

the major federal environmental statutes and programs of the late 1960's and

early 1970's, the measure most significant for coastal zone management is the

Federal Water Pollution Control Amendments of 1972. The FWPCA, codified at 33

U.S.C. �1251 et seq., contain numerous complex water pollution initiatives

12R. Kuehn, The Coastal Barrier Resources Act and the Expenditures
Limitation Approach to Natural Resource Conservation: Wave of the Future or
Island Unto Itself?, 19 Ecol. L.Q. 583 (1984).
LiSee, e.g., County of Bergen v. Dole, 620 F.Supp. 1009 (1985); Sierra
Club v, Hassell, 636 F.2d 1095 (1981).

(including the �401 Water Quality Certification and the �402 National

Pollution Discharge Elimination System permits), but the most salient

provision for coastal management is the �404 permit process. Section 404 of

FWPCA directs the COE to regulate and grant permits for the discharge of

dredged and fill material into the nation's waters and wetlands. The scope of

the �404 program is extensive, comprising not only the navigable waters which

COE had been accustomed to regulating in the interests of navigation, but also

all waters which affect navigable waters, their tributaries, and adjacent

wetlands. Consequently, almost any development activity in the coastal area

which involves dredging or filling waters or wetlands will require a �404

permit.

Unlike the NPDES and other environmental permit programs, the authority

to administer the �404 program has not been sought by the State of North

Carolina , but the COE has agreed with North Carolina agencies to institute a

joint permitting process, with a single application form for all activities

requiring both state and �404 permits (including major development permits in

AECs under CAMA). The �404 process comes under the CZMA's consistency

provision, so that the �404 permit applicant must either obtain a Certificate

of Consistency from the DCM or a CAMA permit, which itself serves as an
indication of consistency with state coastal policies.14

14See Gale, Propst, & Sappie, 404 Feasibility Study Final Project Report,
Raleigh, NC: Center for Environmental Studies, May 1985.

II, State Government

In the American federal system, states are independent sovereigns, and

powers not granted to the federal government under the U.S. Constitution
remain with the states.15 This residual sovereignty includes above all the

police power, the authority to regulate private conduct and property in the

interests of the public health, safety, and general welfare. State police

power is the ultimate legal basis for zoning and other forms of development

regulation, while taxing and spending authority is another attribute of

independent sovereignty. Subject to the supremacy of federal law, states can

regulate development, tax, and spend as they see fit.

State governments are also intimately concerned with coastal issues as

owners of much of the-shoreline. Under the common law doctrine of the public

trust, states hold title to submerged lands and tidelands in perpetual trust

for public use in navigation, commerce, fishing, etc. In North Carolina and

most other coastal states, the state's ownership extends landwards up to the
mean high water line.16 In this shore area the state can exercise all the

normal powers of private ownership as well as governmental authority.

A. The Coastal Area Management Act

Since the state is the ultimate source of police power authority, it,

like the federal government under the commerce power, could entirely pre-empt

coastal area management if it chose to do so. Instead, through the framework

of the Coastal Area Management Act of 1974, North Carolina has established a

cooperative planning program which respects the traditions and political

15See 10th Air.-Imt., U.S. Constitution.
16Consequently, the boundaries of the beach area to which the state has
title can shift with beach erosion and accretion. See Carolina Fishing Pier,
Inc, v. Town of Carolina Beach, 277 N.C. 297 (1970).

potency of local control of land use regulation, while simultaneously

advancing broader interests in more comprehensive coastal management:

This Article establishes a cooperative program of coastal area management
between local and State governments. Local government shall have the
initiative for planning. State government shall establish areas of
environmental concern. With regard to planning, State government shall
act primarily in a supportive stand4Lrd-setting and review capacity,
except where local governments do not elect to exercise their initiative.
Enforcement shall be a concurrent State-local responsibility.17

In some ways the North Carolina CAML is it CZMA brought down to the state
level.18 CAMA is administered by the COZLStal Resources Commission,

representing a variety of public and private interests, aided by the Coastal

Resources Advisory Council, which includes local government representation,

and staffed by the Division of Coastal M4Lnagement in the State Department of

Natural Resources and Community Development. The CRC has promulgated overall

state guidelines for public and private land use in the coastal area, to which

all local land use plans and state and local permits must conform.

The CAMA framework seeks to achieve these guidelines through two basic

approaches. First, each county within the coastal area is required, and

municipalities encouraged, to adopt local. coastal land use plans for CRC

approval. The DNRCD may furnish grants (:originally federal funds from CZMA)

and technical assistance to help develop local planning capabilities.

Regulations issued under CAMA specify the procedures, content, and format of

local plans, and now require specific attention to coastal storm hazard
mitigation.19 The Act's second major approach, as contemplated by the CZMA,

is the designation and special state regulation of Areas of Environmental

17N.C.G.S. �113A-101.
18CAMA was upheld against State constitutional challenges that it was an
uncontrolled delegation of power to the CRC and that it was local legislation
in Adams v. DNER and Everett v. DNER, 295 N.C. 683 (1978).
'@'15 N.C. Admin. Code �.07M.0700.

Concern. The various types of AECs include natural hazard areas.20 Within an

Area of Environmental Concern, any development project must secure a CAMA

permit, with "major" developments (those of a certain physical size or

requiring another state or federal permit, such as a �404 permit) being

permitted directly by the CRC, and "minor" development being permitted by

approved local governments.

Although the local plans and permits and the state permits are required

to conform to overall state guidelines and policies, there is no direct way

for CRC to enforce its guidelines or force local governments to adopt any

specific substantive coastal policy. By contrast, coastal landowners are

given a special, expedited judicial review procedure to determine whether a
permit denial or other CRC order constitutes a taking without compensation.21

Nonetheless, CAMA has been very successful in institution-building at the

local level, introducing local governments to coastal issues and providing

technical and financial aid to help localities, many of which had little

experience with comprehensive land use planning or regulation. In addition,

CAMA's state guidelines and planning requirements provide a convenient form of

compulsion which helps overcome local opposition to coastal land use planning

and regulation.

B. State Building Code

The other major state government program pertaining to coastal hazard

mitigation in North Carolina is the State Building Code. Building codes,

which set standards for construction design, materials, and practices, are an

established subset of the police power used to protect the public health and

20N.C.G.S. �113A-113(b)(6).
21N.C.G.S. �113A-123(b).

safety from dangerous building conditions. In some states building codes are

predominantly delegated to local governments, but in other states, like North

Carolina, there is a uniform statewide code. The North Carolina State

Building Code, administered by the Building Code Council, applies throughout

the state, and local governments must receive Council approval for any

deviation, in order to ensure uniform standard.,; for the state's construction
industry.22 Local variations are frowned on, even though local governments

are expected to actually enforce the Code through building inspection and
permit programs.23 The Code does, however, contain provisions for structures

to withstand higher wind loads in high-wind areas, the designation of which

includes the coastal zone.

III, Local Governments

A. Police Power Regulatio

Local governments, with the greatest historical and political attachment

to land use regulation, have no inherent legal authority for such regulation.

Both counties and cities, or municipal corporations, are legally creatures of

the state and can exercise no governmental. power--police power, taxing, or

spending--without an express delegation from the state, usually by general

statute or home-rule charter. But the U.S.'s historical concern with local

control over land use, and the profound inability of a central state (much

less federal) government to monitor and regulate a multitude of widely varying

local conditions, have led to a widespread delegation of policymaking as well

as implementation and enforcement authority to local governments.

22N.C.G.S. �143, Art. 9. Because of federal supremacy, local ordinances
enacte pursuant to NFIP requirements would supersede the state building code.
21N.C.G.S. �160-411 et seq. (cities),; N.C.G.S. �153A-350 et seq.
(counties).

In North Carolina, the basic statutory authorities for cities and towns

are compiled in N.C.G.S. �160A, and for counties in N.C.G.S. �153A. Both

cities and counties have been given a general delegation of the full

ordinance-making police power to "define, prohibit, regulate, or abate acts,

omissions, or conditions, detrimental to the health, safety, or welfare of its

citizens and the peace and dignity of the city (county) and may define and
abate nuisances."24 So long as the local ordinance is not inconsistent with

or pre-empted by federal or state law, local ordinances may require a higher

standard of conduct or condition than state or federal regulation.

In addition to the general otdinance-making power, many specific subjects

are authorized for local regulations, but the statutes state that this

enumeration is not exclusive and does not limit the general ordinance-making

24N.C.G.S. ��160A-174(a); 153A-121(a).

25 46
power. Among the important specific regulatory powers delegated to local
governments are: zoning,26 which is the major -tool of hazard mitigation

through building lot size, elevation, setback, density, and other
requirements; subdivision regulation,27 which can require hazard disclosure,

setbacks, and other mitigation measures for new developments; building
inspection;28 and pollution control.29

The grant of regulatory authority to local. governments does not mean that

localities have a free hand in coastal hazard mitigation or any other form of

policy. As independent legal entities kno-wn as municipal corporations, local

governments have all the rights and responsibilities of a legal person,

including the ability to make contracts and to sue and be sued. Consequently,

home-rule powers carry with them a corresponding legal responsibility to

higher levels of government and to local c-itizens. Any city or county

enactment in general is invalid if inconsistent with state or federal law, and

local coastal planning and regulation in p4Lrticular must be approved by the
state under CAMA.30 If cities or counties breach the conditions attached to

federal-local grant programs such as the NFIP and post-disaster aid, they

25N.C.G.S. ��160A-177; 153A-124.
26N.C.G.S. ��160A-381 et seq.; 153A-340 et seq.
27N.C.G.S. �160A-371 et seq.; 153A-330 et seq.
28N.C.G.S. ��160A-411 et seq.; 153A-350 et seq.
29N.C.G.S. �160A-185.
30According to McOuillin's Law of Municipal CogRorationi, (Callaghan and
Company 3d ed. 1981), �4.107:
The exercise of 'local,police powers of a municipality with a home rule
charter is ordinarily invalid if in conflict with general statutes of the
state, home rule charters being subject to the police power of the state,
except, perhaps, insofar as police powers have been delegated to
municipal corporations by the constitution of the state. The state, even
though it has delegated to a municipality the right to exercise such
power, does not thereby surrender any part of such powers, and may itself
exercise such power,not withstanding its delegation, without regard to
whether the matter concerns the state at large or the municipality alone.
(citations omitted]

would not violate the law per se but might find themselves barred from further
federal largess and possibly become liable for damages.31

B. Non-Regulatory Authority

Local governments have also been delegated many non-regulatory fiscal,

executive, and taxing powers which could be employed in a hazard mitigation

program. In general, all local government authority must be exercised for a

public purpose, but taxing authority is the most restricted, with very

specific statutory delegations of the property which may be taxed and the

purposes for which the taxes may be levied. Police power authority is less

restricted, and local governments have the most freedom to exercise the

spending power.

Supplementing state and federal land acquisition programs, North Carolina

local governments can acquire property for public use as recreational open

space and/or a coastal storm buffer. In addition to the general authority to

acquire interests in land and to use the eminent domain proceedings of
N.C.G.S. �40A,32 and the authority to acquire property for redevelopment,33

counties and cities may acquire a fee simple or lesser interest in land to be

used for open space, which the legislature has declared a proper public
purpose for the expenditure of public funds.34 In addition, property taxes

may be specifically earmarked "to provide for shoreline protection, beach
erosion control, and flood and hurricane protection."35 This is ample

authority for local funding of hazard mitigation programs; otherwise, new
.types of taxes must be specifically authorized by the state legislature.36

3lSee the subrogation suits discussed in Chapter 7.
32N.C.G.S. ��160A-240.1; 153A-158.
33N.C.G.S. ��160A-457, 153A-337.
34N.C.G.S. �160A-401 et seq.
35N.C.G.S. ��160A-209(c)(7); 153A-149(c)(7).
36N.C.G.S. ��160A-206; 153A-146.

North Carolina localities have not undertaken the assessment of development
impact fees without authorization by Special Act of the legislature.37 Given

the limited delegation of taxing authority and the derivative nature of all

local government powers, many local governments may be reluctant to attempt

innovative development management programs (especially those involving

taxation) such as TDRs or development moratoria which have not been used

before in North Carolina and the legality of which has not been established.

In any case, local governments do not need to chart an independent,

untried course in developing coastal hazard mitigation programs. Counties and

cities have been delegated extensive powers, especially regulatory powers,

which they can exercise within a framework of state and federal programs.

Higher authority can offer both binding 'Legal requirements, such as CAMA's

mandatory planning, or conditional incentives, such as the strings attached to

the federal NFIP and disaster aid programs. Local governments should be fully

aware of state and federal programs when designing a hazard mitigation plan to

meet their unique local conditions.

37See, e.g., Ch. 536, Sess. Laws 1985 (authorizing-the municipalities of
Dare County to impose facility fees); Ch,. 498, Sess. Laws 1985 (amending
Raleigh's charter to allow the city to impose drainage and open space project
fees on new developments).

Chapter 4

Identification and Analysis of Hurricane and Coastal Storm Hazards

A. Hazard Magnitude and Location

Coastal planners can use a number of existing techniques and data bases

for identifying the location and extent of storm hazards. This section

examines those which involve the nature and extent of the storm forces

themselves; that is, the wind, wave and surge effects that hurricanes and

severe coastal storms can be expected to generate.
1. National Flood Insurance PrUram (NFIP)l

Established by Congress in 1968 through passage of the National Flood

Insurance Act, the National Flood Insurance Program is a nationwide program to

provide property owners in floodplains with federally subsidized flood

insurance in those communities which implement ordinances to reduce future

flood losses. In 1973, Congress passed the Flood Disaster Protection Act

making the purchase of flood insurance mandatory in the identified Special

Flood Hazard Areas (SFHA).

Administered by the Federal Insurance Administration, within the Federal

Emergency Management Agency, the program begins by identifying communities

which are considered to be flood-prone. The flood insurance studies are based

on a flood having a probability df a one percent chance of being equaled or

exceeded in any given year. This is often referred to as the 100-year flood

event or Base Flood Elevation (BFE) level. FIA has identified well over

lPortions of this section were contributed by Carol S. Campbell,
Emergency Management Program Specialist, FEMA Region IV.

20,000 communities which are flood-prone, 17,500 of which are participating in

the NFIP.

The program is s'tructured in two phases, the Emergency Phase or initial

stage and the Regular Phase of the program. After the initial flood-prone

identification, the next step in the process is for a locality, if it chooses,

to join the Emergency Program. For Emergency Program participation, a

locality normally has been issued a Flood Hazard Boundary Map (FHBM), which

provides the general boundaries and outline of the locality's Special Flood

Hazard Area (SFHA). Once a Flood Hazard Boundary Map has been formally issued

to a locality, it has 12 months in which to adopt a flood damage prevention

ordinance to qualify for participation in the Emergency Phase of the program

or be placed under the sanctions of nonparticipation.

The effects of nonparticipation, as well as the benefits of the program,

generally encourage the majority of communities identified as flood-prone to

participate in the NFIP. A community's nonparticipation will have the

following effects:

1. Flood insurance will no longer be available. No resident will be

able to purchase a flood insurance policy.

2. No Federal grants or loans for buildings may be made in identified

flood hazard areas. Includes all Federal agencies such as HUD, EPA, SBA, and

HHS.

3. No Federal disaster assistance may be provided in identified flood

hazard areas for permanent restorative'construction and grants.

4. No Federal mortgage insurance may be provided in identified flood

hazard areas. This includes FHA, VA, Farmers Home Administration, and other

federally insured lenders.

5. Recent legislative changes to FDPA: Restriction on conventional

loans in nonparticipating communities replaced by requirement that lenders:

a. must notify buyer or lessee that property is in flood hazard area;

and

b. must notify buyer or lessee that property in flood hazard area is not

eligible for Federal disaster relief in a declared disaster.

6. The Flood Insurance Rate Map and appropriate actuarial rates go into

effect regardless of whether or not a community participates in the program.

Lacking a local ordinance, unsafe construction today may result in

prohibitively expensive insurance rates tomorrow.

In order for floodplain property owners in a community to qualify for

insurance during the Emergency Phase the local government must agree to

regulate new development in floodplains in a way which minimizes future flood

losses. More specifically, communities are required to issue permits and

review all proposals for development in floodplains and require that such

development, using the best available information, be elevated to a point at
or above the base flood elevation.2 Mobile homes must include an adequate

tie-down and anchoring system. Proposed subdivisions must be modified in any

way which will reduce future storm damages. The amount of federal flood

insurance provided during this phase of participation is less than that

eventually available under the regular program. Figure 4.1 shows the amounts

of coverage available.,

2The N.C. Division of Emergency Management Model Flood Damage Prevention
Ordinance in Appendix 2 is an example of an ordinance designed to comply with
the NFIP.

FIGURE 4.1

THE NATIONAL FLOOD INSURANCE PROGRAM

EMERGENCY PROGRAM RECULAR PROCRAM

Total Amount Subsidized Actuarial Rate Total Amount
Available Rate of $100 Per $100 of Available
(First Layer.) of Coverage Second Layer Coverage Ist & 2pd Layer

Single Family
Residential 35,000 $ .45 $150,000 Rate varies $185,000
with risk
Other
Residential 100,000 .45 150.000 Rate varies 250,000
with risk

Contents
Residential 10,000 .55 50,000 Rate varies 60,000
with risk Ln
Small Business 100,000 .55 150,000 Rate varies 250,000
with risk

Contents
Small Business 100,000 1.10 200,000 Rate varies 300,000
with risk

Other
Nonresidential 100,000 .55 100,000 Rate varies 200,000
with risk

Contents, Other
Nonresidential 100,000 1.10 100.000 Rate varies 200,000
with risk

FEMA-NTHD-RIv
October 1983

Normally, before a locality can enter the Regular Phase, the FIA must

conduct a detailed engineering analysis with a study text and accompanying

Flood Insurance Rate Map (FIRM), which delineates the one percent chance flood

more precisely and provides detailed base flood elevation information. These

maps then become the basis for establishing insurance rates for floodplain

property owners. In riverine areas a Flood Boundary Floodway Map is also

prepared to delineate the floodway in which no encroachments that would

increase base flood level discharges are permitted.

Following a FEMA presentation of the preliminary maps, each community is

given a formal 90-day appeal period. At the end of the appeal period or

following the resolution of any appeals, whichever occurs later, a Notice of

Final Determination of the base flood elevations is published in the Federal

the Notice of Final Determination in which to adopt an ordinance meeting the

more restrictive requirements to qualify for participation in the regular

phase of the program or be suspended from the NFIP.

As noted, for regulatory and insurance rating purposes, the floodplain is

divided into different hazard zones on the FIRM. Table 4.1 provides a summary

of these different classifications. Following are brief descriptions of the

major zones of interests and the more restrictive relevant building and

regulatory requirements.

(a) Al-A30 and AE Zones: The 100-year floodplai . The A-zones

repre@ent those areas subject to the 100-yedr flood, or put'differently, areas

with at least a one percent chance of being flooded in any given year. As

noted, for floodplain property owners to be eligible for -flood insurance,

Table 4. 1
ACTUARIAL RATE ZONES

The symbols used to designate the Actuarial Rate Zones are are follows:

ZONE
SYMBOL CATEGORY

A Area of special flood hazards in which no base flood elevations
are determined and an estimated BFE is optional.

Al-A30,AE Area of special flood hazards with base flood elevation
determined. Zones are assigned according to flood hazard
factors.

AH Area of special flood hazards that have shallow flood depths
(from one to three feet) due to ponding. Base flood depths are
shown on the FIRM.

AO Area of special flood hazards that have shallow flood depths
(from one to three feet) due to sheet flow. Base flood depths
are shown on the FIRM.

A99 Area of special flood hazards where enough progress has been made
on a protection system, sucb as dikes, dams, and levees, to
consider it complete for insurance rating purposes.

V Coastal high hazard area with wave action velocity waters that is
inundated by tidal floods. Base flood elevations have not yet
been determined.

Vl-V30,VE Coastal high hazard area with wave action velocity waters that is
inundated by tidal floods. Zones. are assigned according to flood
hazard factors. Base flood elevations are shown on the FIRM.

B,C, and X These areas have been identified in the community flood insurance
study as areas of moderate or minimal hazard from the principal
source of flooding in the area. However, buildings in these
actuarial rate zones could be flooded by severe, concentrated
rainfall. The inadequacies of the local drainage systems are not
normally considered in the community's flood insurance studies.
The failure of a local drainage system creates areas of high
flood risk within these rate zones. These rate zones indicate
flood areas where insurance is not required but can be purchased
in a participating community.

D Area of undetermined, but possible, flood hazards.

M Area of special mudslide hazards.

N Area of moderate mudslide hazards.

P Area of undetermined, but possible, mudslide hazards.

their localities must first meet certain basic construction and land use

regulatory requirements.

For Al-A30 and AE zones, construction of new residential structures must

have the lowest floor, including basement, elevated to a level at or above the

BFE (elevation of the 100-year flood). New commercial structures must be

either elevated or adequately flood-proofed to the BFE, with floodproofing
certification by a registered professional engineer.3 ,As-built" lowest floor

certifications must be obtained by the developer or builder and monitored by

local enforcement officials. The lowest floor certifications may be completed

only by a registered surveyor, architect, or engineer. Flood resistant

building materials are to be used, structures are to be adequately anchored to

prevent flotation or lateral movement, and construction practices should

minimize the flood hazard. Also, sewer and water systems must be designed to

prevent infiltration and contamination during flooding. New mobile homes must

contain an adequate tie-down and anchoring system.

These requirements also extend to substantial improvements of existing

structures. Substantial improvements are defined by FIA as including repairs,

reconstruction, or improvements which amount to 50 percent or more of the

current fair market value of the structure prior to the repairs,

reconstruction, or improvements taking place.

(b) Coastal high hazard areas -- velocity or V, V1-V30 and VE-zones.

These are areas where the stillwater storm surge is sufficient to support a

minimilm three-foot wave and consequently have special higher insurance rates

3Federal Insurance Administration, Elevated Residen-tial Structures,
Washington, DC: Housing and Urban Development, 1976; American Institute of
Architects, Design Guidelines for Flood Damage Reduction, Washington, DC: AIA,
1981.

attached to them.4 Initially, the elevation requirements in these zones were

based only on still water surge heights. Since about 1979, FIA has been

calculating an additional wave height, Which is added to the still water

elevation in these zones.

Special building standards are required for construction in velocity

zones. New residential and nonresidentiaLl structures including mobile homes

must be elevated on pilings or columns so that the bottom of the lowest

supporting horizontal structural member is at or above base flood elevation

(BFE). "As-built" elevation certificates; are required. The use of fill for

structural support is prohibited. Areas below the lowest habitable floor must

be free of obstructions or enclosed with breakaway walls. An engineering

certification that the structure is designed to be adequately anchored is

required. New construction must not alter existing dunes or mangrove stands

and must be built landward of mean high tide.

The floodway zone pertains mainly to inland riverine flooding situations,

but does have implications for riverine floodplains near the coast which could

be affected by hurricanes and coastal storms. The floodways represent the

main riverine channel and the land area ELdiacent to it where the water flow

will be extensive. For designated floodway areas, localities must not permit

activities and uses, such as the placement of fill or new construction, which

will obstruct water flow such that the biLse flood elevation would be increased

by any amount. Prior to any development in the floodway, the builder or

4U.S. Army Corps of Engineers, Guid.,lines for Identifying Coastal High
Hazard Zones, Galveston,'T@: Galveston District, June 1975.

developer must present an engineering certification that no increase in flood

levels will occur.

NFIP maps, in sum, can provide the basis for identifying the range and

magnitude of inland and coastal flooding risks.

2. SLOSH: Modeliny- Coastal Storm Forces Through Computer Simulation
Maximum gurge Penetration Estimac-es

In recent years more sophisticated computer models have been developed to

estimate the predicted wind and surge effects of potential hurricanes. Two

models have been developed by the National Weather Service for this purpose:

SPLASH (Special Program to List the Amplicudes of Surge from Hurricanes) and

SLOSH (Sea, Lake and Overland Surge from Hurricanes). SPLASH can be used for

predicting hurricane forces along relatively unbroken coastlines, where no

significant bays or sound areas exist. S]'.OSH is a refinement of SPLASH and is

able to take into consideration the effects of bays and sounds and
irregularities in coastlines.5 SLOSH has essentially replaced SPLASH. These

computer simulations differ fundamentally from the models used to delineate

flood hazard zones under the NFIP in that they are non-probabilistic and do

not assume, as the NFIP zones do, a specified return frequency based on

historical data (i.e., the 100-year flood zone).

Applying the SLOSH Model to a coastline occurs in several steps. First,

the model must be "fitted" to the coastline under study, which means that it

must be fine tuned to take into consideration the numerous specific natural

and manmade features of the coastline which have some effect on surge

penetration. This is undertaken through inputting of data onto geographical

grid points. Next the model is "run" for the study area. This usually

involves conducting an average of 250 simulations based on different hurricane
scenarios (e.g., different'hurricane tracks, forward speeds, size, and

intensities). The output from these runs is the following:

5Karen Allenstein, Land Use ARRlications of the SLOS-H Model (Sea, Lake,
and Overland Surges from.H r,,icanes, Chapel Hill, NC: University of North
Carolina, Department of Cicy and Regional Planning, 1985.

surface envelope of the highest surges above mean sea level;

2) time histories of surges at selected grid points;

3) computed windspeeds at selected grid points;

4) computed-wind directions at selected grid points.

'While the SLOSH model has traditionally been used primarily as a

preparedness and evacuation tool, its potential utility as a foundation for

development management is great.

From the perspective of development management, perhaps the most useful

output are the maps indicating areas of maximum surge penetration under

different hurricane intensity assumptions. Figure 4.2 presents such a maximum

surge map for the New Hanover County area. Notice that according to the SLOSH

simulation, most of the barrier island and beach communities would be

inundated under the assumption of a relatively small hurricane (category 2).

Thus, the SLOSH methodology can generate inundation maps which permit the

identification and designation of areas particularly vulnerable to hurricane

forces under different assumptions about the expected hurricane event.

In a sense these different hurricane intensity assumptions provide

different break-off points for establishing acceptable or unacceptable levels

of risk. A coastal jurisdiction might conclude, for instance, that it does

not wish to plan for the worst possible event--the category 5 hurricane. This

type of decision then dismisses as unnecessary the consideration of zones

inundated under this.level of intensity but not under smaller, less intense

hurricane events. A locality might, as a further example, establish that it

will take mitigative actions only in those areas where the cumulative forces

appear greatest--e .9. , those zones where the surge effects would occur even

under the weakest hurricane, and where surge impacts are likely to increase
10 exponentially in the case of stronger hurricanes.

Figure 4. 2
POTENTIAL HURRICANE FLOODING
in New Hanover Countiv

Legend
El Areas flooded by SCSI" 1,2,3,4 and 5

Areas flooded by scales 3,4 and 5

Sourc@:New Hanover County Additional we" flooded by scales 4 and 5

Saffir-Simpson hurricane

damage potential scale

Because SLOSH modeling does not incorporate past flooding or storm

histories it provides no information about how frequently each type of

hurricane can be expected, Instead, its task is to estimate the likely

physical forces that would be generated, if such a hurricane occurs in the

future. Rather detailed climatologies are available from the National Weather

Service which provide information about the frequency of hurricane and

tropical storm occurrences for relatively small segments of the Gulf and

Atlantic coasts. Figure 4.3 provides this information in probability terms
for the North Carolina coast.6 It should be remembered that accurate data on

hurricane frequencies is only available for approximately one hundred years.

This is a relatively short period of time from which to make assumptions about

their future occurrence.

6Simon Baker, Storms, PeoRle. and Property in Coastal North Carolina,
Raleigh, NC: North Carolina State University, UNC Sea Grant, August 1978.
For the most recent complete climatology, the reader is referred to R. H.
Simpson and Miles B. Lawrence, Atlantic Hurricane Freguencies Along the U.S.
Coastline, (June 1971).

Figure 4 . 3
ANNUAL PROBABILITY
OF HURRICANE OCCURRENCE
ALONG THE NORTH CAROLINA COAST

2 2

ELIZABETH CITY

WASH iNGTON

14EW BERN*
00

MOREHEAD CITY is

WILMINGTON*
14

2
`13 TC-All tropical cyclones (40 MPH or higher
TC 6 H-All hurricanes (74 MPH or higher
14 2
GH GH Great hurricanes (125 MPH or higher

Source:13aker 1976

3. Coastal Erosion

In 1971, the Corps of Engineers National Shoreline Study indicated that

more than 20,000 miles of our nation's shorelines are experiencing significant
erosion.7 Coastal erosion is caused by a number of factors: changes in

patterns of littoral drift, waves and surge effects of hurricanes and coastal

storms, the location of man made structures in sensitive coastal areas, and
the general rise in sea level.8 Obviously, erosion represents an important

component of the hurricane coastal storm risk--erosion is both caused by

storms, and once it occurs (regardless of its course), also heightens the

vulnerability of people and property to future storms. Consequently, efforts

to document coastal erosion patterns are seen increasingly as a necessary part

of coastal natural hazards planning.

Coastal states and localities are increasingly making efforts to

scientifically calculate the extent of erosion (or accretion) for specific

segments of the coastline. The State of North Carolina has been a leader in

this area, and has established, for regulatory purposes, the annual rate of

erosion for its entire coastline. This established rate is then used as the

basis of an ocean hazard zone setback. For instance, new multifamily

structures located in these areas, must be set back from the ocean a distance
of 60 times the average annual rate of erosion.9

7John H. Sorensen,et al, Coastal-Erosion Hazard in the United States: A
Research Assessment, Boulder, CO! Institute of Behavioral Sciences, University
of Colorado, June 1975; U.S. Army Corps of Engineers, Guidelines for
Identifying Coastal High Hazard Zones, Galveston, TX: Galveston District, June
1975.
8Michael Barth and Jones G. Titus, Greenhouse Effect and Sea Level Rise:
A Challenge for This Generatio , New York: Van Nostrand Reinhold, Inc., 1984.
9David Brower and Daniel S. Carol, Coastal Zone Management as Land
10 Planning, Washington, DC: National Planning Association, 1984.

4. Inlet hazard areas

Tidal inlets are natural waterways which separate barrier islands and
serve to connect the ocean and back barrier lagoons-10 They are the major

route by which sand is transported from beach areas to back barrier areas.

Inlets can shift dramatically over time, in turn wreaking destruction on homes

and structures built too closely to them. Figure 4.4 shows the changes

undergone by the Lockwood Folly Inlet (N.C.) since 1956 (the base photograph
was taken in 1974).11 This type of "active" inlet hazard area can be

distinguished from "incipient" inlet hazard areas. The latter represent the

location of potential or probable inlets, should a hurricane or severe coastal

storm occur. Both types represent significant coastal hazard areas.

The State of North Carolina has perhaps the most extensive program for

documenting the movements of existing inlets, delineating inlet hazard areas

as part of its coastal area management program, and instituting special

development restrictions in these areas. To compute inlet movement, a grid

system (300-feet spacing) was established, and historical trend data plotted

on it. Linear and quadratic regression techniques were used to calculate the

best fit trend of inlet location. The inlet hazard area was delineated by

using the landward most point expected to occur over a ten year period (1978-
1988).12

loStephen Leatherman, Barrier Island Handboo , College Park, MD:
University of Maryland, 1982.
IlSimon Baker, The Citizens Guide to North Carolina's Shifting Inlets,
Raleigh, NC: University of North Carolina Sea Grant, March 1977; Jay
Langfelder, et al, A Historical Review of Some of North Carolina's Coastal
Inlets, Raleigh, NC: Center for Marine andCoastal Studies, North Carolina
State University, January 1974.
12North Carolina Division of Marine Fisheries, Inlet Hazard Areas, Final
Report and Recommendatior.-; to the Coastal Resources Commission, September
1978.

Under the N.C. Coastal Area Management Act (CAMA), inlet hazard areas

must be delineated on maps and approved by the Coastal Resources Commission.

Moreover, state-imposed restrictions limit the potential development density

that is permitted to occur in these areas. Permanent structures are not

permitted at a density greater than one unit (residential or commercial) per

15,000 square feet, and structures cannot exceed four units in the case of

residential structures, or 5,000 square feet total flood area in the case of

commercial buildings.

Incipient inlets--that is, areas where future inlets are likely to form

in response to storms--are also identifiable and should be incorporated into

the risk analysis. A number of factors, such as island width, erosion rate,

and elevation will influence the likelihood of an inlet formation and can be
used to delineate incipient inlet zones.13 Perhaps the most important source

of data to be used in this process is historical records of present inlets.

While an inlet may currently be closed, it should be considered a prime

candidate for reopening should a severe storm strike. The recently popular

practice of excavating finger canals perpendicular to the ocean on barrier

islands can serve to increase substantially the possibility of a future inlet,

and these areas should also be identified as hazardous zones. The mapping of

incipient inlet areas is necessarily imprecise. Figure 4.5 presents an

example of how the Town of Nags Head (1984) has delineated two incipient inlet

areas in its hurricane mitigation and reconstruction plan.

13Lisa Lynch, Potential Inlet Zones on the North Carolina Coast, Durham,
NC: Duke University, School of Forestry and Environmental- Science, December
1983.

Figure 4 .4
CHANGES IN LOCKWOOD FOLLY INLET

A?ItA,Vr,C OCIF
AJV

Legend

1976
1966
Source: Lmgf older 1974 1956

Figure 4. 5
HURRICANE VULNERABILITY

ROANOKE SOUND

TOWN OF NAGS NEAD
A

ATLANTIC OCEAN

Legend

300 ft.lini
as A NFIP flood zones
*nt Inlet sits
Incipi
Sourc*:Tovm of Nags Head

5. Producing composite hazard maps

To the extent possible, localities may wish to present these various

hazard zones in an overlay fashion. Such a composite map or maps permit

policymakers to view the cumulative effects of different elements of the

hurricane and coastal storm hazard, and to identify particularly hazardous

locations. Figures 4.6 and 4.7 illustrate how one locality--Surf City, North

Carolina--has attempted to present coastal storm hazards in a composite

format.

B. Assessim Vulnerability and Exp)sure

The physical forces of hurricanes and severe coastal storms would not

pose a problem or concern if they did not threaten to destroy something of

value to coastal inhabitants. Because high hazard coastal zones contain

people and property, risks from hurricanes and storms do exist. The extent of

this risk will naturally vary with the extent of exposure of people and

property. In this section we will briefly address approaches to assessing the

extent of a community's exposure.

1. Exposure of public and private_j)roDertv

An assessment of the public and private property at risk can be

undertaken for each of the hazard areas delineated in the hazard mapping

process. For instance, Table 4.2 below provides summary information on the

I
J59

Figure 4. 6
OCEAN ERODIBLE A.E.C.
k* AND ESTUARINE SHORELINE A.E.C.

TOWN OF SURF CITY

ATLANTIC OCEAN

Legend
m Oceen erodible A.E.C.
as Sourc*:Tawn ot Surt City Estuarine shoreline A.E.C.

Figure 4. 7
NFIP FLOOD HAZARD ZONES

TOWN OF SURF CITY

7:7

ATLANTIC OCEAN

Legend

8 Zon@:Areas between 100 and 500 year floods

V Zone:Areas of 100 yew flood with Ngh velocity
wave action
SOURCk:Town of Surf City A Zone Areas subject to 100 Year flood

Table 4-2

Summary of Private Property at Risk by Flood
Hazard Area. Town of Nags Head, N.C.

Number of Number of
Buildings Value ($) Parcels Value Total Value

V-zone 544 26,951,000 722 25,321,100 52,272,100

A-zone 1,126 60,835,300 1,968 47,230,100 100,073,400

B-zone 563 33,194,500 674 29,929,800 63,124,300

C-zone 329 18,740,000 640 15,286,000 34,026,000

Source: Brower, Collins, and Beatley, 1984

amount of private property at risk in the Town of Nags Head, North Carolina,
according to NFIP zone. 14

Some 544 structures, valued at over $25 million, are located within the

V-zone, for example. This information can generally be obtained from local

taxation and revenues departments. The U.S. Army Corps of Engineers may be an

additional source of information on extent of property at risk. A 1982 survey

of Surf City buildings, for instance, indicated that some $5.5 million in

damages to residential structures could be expected under a 100-year storm, as
well as some $1.7 million in commercial damages.15

Public facilities, such as roads and sewer lines, are also at risk and

should be included in a community's vulnerability assessment. Facilities

should at least be identified, if not estimated and valued in the same way

14David Brower, William Collins, and Timothy Beatley, Hurricane Hazard
Mitigation and Post-Storm Reconstruction Plan. NaZs Head, North Carolina,
Chapel Hill, NC: Coastal Resources Collaborative, Ltd., 1984.
15Town of Surf City, North Carolina, Hurricane Evacuation, Hazard
Mitigation and Post-Disaster Reconstruction Pla , prepared by George Eichler
and Associates, 1984.

that structures at risk are. Tables 4.3 and 4.4 indicate, for instance, the

extent of roads and sewer mains at risk in the Town of Nags Head. Included

also should be an inventory of publicly-owned structures located in different

hazard zones.

Table 4-.3

Public Investment Vulnerable to Storm Damage
Water Mains in FlooL Zone (in feet)

Size of Main

Zone 24" 1410 1211 8" 611 4" 211

V 0 0 0 0 6850 1650 6500

A 33070 230 26200 32110 57880 5440

B 0 0 8350 250 0 0 200

300 0 0 0 0 2300 250 1330

Source: Brower, Collins, and Beatley, 1984.

After collecting this type of information, and placing a monetary value

on the property, different assumptions about expected losses can be used. A

worse case scenario might be assumed, in which all value of property in a

flood or hazard zone is lost. A more reasonable, yet somewhat more

sophisticated, approach is to apply some form of damage algorithm, which

probably changes with the severity of the hazard zone, and the type of

property involved.

Table 4.4

Public Streets in Flood Zones, Nags Head, N.C.

Zone Street Length (feet)
V 10500

A 134300

B 3100

Source: Brower, Collins, and Beatley, 1984.

Figures 4.8 and 4.9 provide useful guides for making such calculations.16

Figure 4.8 indicates that a two-story structure with a basement can be

expected to incur an average around 50% damage when subjected to a 10-foot

surge (height above first floor). Figure 4.9, as a further example, indicates

that a metal one-to-three story commercial/industrial structure will be about

30% damaged when subjected to wind speeds of 150 mph. From this type of

information, more accurate estimates of actual predicted damages can be made.

Table 4.5 presents some basic calculations which illustrate how predicted

losses can be adjusted under such assumptions. Assume that in this particular

sector, only two types of damage components exist: residential structures

subject to surge damages and commercial structures outside of the flood zone

but subject to storm winds.

16From William Petak & Arthur Atkisson, Natural Hazard Risk Assessment
and Public Policy, N.Y.: Springer-Verlag, 1982.

741

Figure 4. 8
STORM SURGE DEPTH VERSUS DAMAGE

n 100 mobile home 1.67 riverlins

go-
Q on@ story (with basement)
"I
Ino story (no basement)
Uj Go- 7
C -00

two story (with basement)

o- 40-
two story (no basement)
z

cc
us
CL 20-

0
-2 0 2 4 6 8 10 12 14. 16 is

HEIGHT ABOVE FIRST FLOOR
,no

Sourco:Loe at mi.1978,as found In Petak and Atkisson 1982

Figure 4.9
DAMAGE VERSUS WIND SPEED
(One to three story commercial -industrial)

.100 -1.0

wood frame

go- metal 0.8

w
0 concrete

-0.6
Ul
60-

0.4 z
U1 40-
a.
z

LLI

20- -o.2

0 so 75 100 125 150 ITS 2tO 2t5 250 275 300

WIND SPEED (MPH)
L
@ I-L

gourco-Harl 1976,as found In Petsk and Atkisson 1982

Table 4-5

Illustration of Damage Calculations

Assessed Damage Predicted
Valuation @oefftcient Loss

Residential Property $1,000,000 .5* $ 500,000

Commercial/Industrial
Property $2,000,000 .3*A,* 600,000

Total Predicted Damages $1,100,000

*assuming two story structures, no basement, and a surge of
10 ft. above first floor.

**assuming 150 mph winds, metal structures

These estimates should also consider any other local or site-specific

information that may be available concerning the vulnerability of private and

public property. For instance, how old are the structures located in the area

under study, and how will this adjust the probable extent of damages? Of what

quality of construction are buildings in the area--either new or old--and how

should the damage coefficients be adjusted to take these factors into

consideration?

The SLOSH simulation can also be used to estimate probable damage losses.
Berke and Ruch illustrate the only such SLOSH application to date.17 The

entering of data on people and property in grid cell format is a central

feature of this system. The size of the grid cells used is variable depending

upon the level of geographical detail needed. Once basic information about

17Philip Berke and Carlton Ruch, "Application of a Computer System for
Hurricane Emergency Response and Land Use Planning," 21 journal o
Environmental Manazement 117 (1985).

the location of people and property and the expected location and intensity of

storm forces has been entered, high and low damage and casualty estimates can

be generated for a particular location or region. A number of methodological

components, some of them discussed above, enter into these calculations.
Damage algorithms18 for different types of structures subjected to storm

forces are incorporated, with damage estimates adjusted for elevation

requirements at particular locations.

Not only can current potential damages and casualties be estimated, but

future losses can also be devised by entering information about future

patterns of development and economic growth. Berke and Ruch use a land

development allocation model which estimates future economic growth or decline

for a region and allocates this growth among specific census tracts according

to how attractive they are to such activities. A number of factors such as

access to transportation facilities and quality of the natural environment

serve as inputs to this allocation model. Table 4.6 presents current and

future hurricane losses for Nueces County, Texas, and several districts within

this county. Note that these are damages and casualties that would be

generated for a Category 5 hurricane, with a certain landfall range.

18L.T. Lee and J.D. Collins, "Engineering Risk Management for
Structures," Journal of the Structural Division, 1977; William Petak and
Arthur Atkisson, Natural Hazard Risk Assessment and Public Policy, New York:
Springer-Verlag, 1982.

Table 4-6

Fw: Stm loffalltV 30 miles rW uf Ptit kvsu to 2D miles left of Pat kwG" wfth sotained wtd of 155 W. ad Ovw

OWmIte Sw7 ad VW Owditim EsOmites by Murity wd hm

IUMEWIAL wHomoinot MWTIES

StVle Fadly "bile "wes Miltiple Fadly Como-cial-lidwitrUl Peum Injurw

kodw k1lb" Mirber Daffft 4wM.
DMOM VOW (IIMD) Dmmged Value (SIODD) ove* value (Slow) DM"W Value (SIOOD), 3.5% of toUl

Zwe "ip Low MO LOW "10 LOW High LOW High Lad NO Lim LOW MO UN High LOA

M
(119M) 19.156 14.M 0.118 SM.903 I.W9 72B U" $%I 4.M 4,= $4 J64 $3.= 1 Z7 1.004 $V.MO S6.tG6 34 16
(199D) 22.729 I7.ffi2 S* X $24.239 1 M 9W $2.317 $I.MD 5.737 4 W $4.798 S3.V4 1.476 I.M $22.06 16.495 37 17
00

(M) 192 177 $1.735 S%4 1 1 slo IS 19066 173 M-P *MK W1 is **M $1104 0 0
199D) M 209 $2.612 $1,467 2 2 $2D III M4 262 $732 W 3D 10 $262 $107 1 0

N3
Q906) IAO I.3D5 132 AN $18,790 264 264 $3,102 S2.VI 1.184 1.153 $5,43 $2.N7 M6 23 $U,748 $6,756 11 5
(1990) 1.%4 1.%3 $eA& $27,M 396 396 $4.653 $3.397 1.766 1,716 $9,313 $4,417 2DI L97 SI2.5N S7.M4 17 8

(19M) I.IS9 675 $791 $3D7 0 102 $148 $78 U2 III SM $13 75 46 $M1 164 2 1
(199D) I.3V 774 $915 w M IV $193 $102 169 IM w $14 w 47 $266 $66 2 1

N M.
(M) 22,817 16.945 $M,503 $41 A52 I V9 I.W $5.702 $3-135 6.431 5.475 SIOW %.M 1 A48 1.250 $34jn SUP9 48 22
(1990) 26,11 20.063 SM,S19 S54.051 1.181 1 AM $8,00 $4.470 8,M6 6AW $13^5 S8.M2 1.71U I.M3 SA,704 S13,W2 59 26

Source: Berke and Ruch (1985)

2. EUosure of PeoRle

(a) SLOSH-based evacuation studies. As noted earlier, SLOSH is basically

used as an input to evacuation planning. Consequently, it is only one of the

necessary ingredients. A first step in SLOSH-based evacuation planning is to

delineate evacuation zones, based upon SLOSH-generated surge penetration data.

In the ongoing North Carolina Hurricane Evacuation study, zones in each

coastal county were designated for areas where storm surge would penetrate
under various hurricane categories.19 The idea here is that providing such a

delineation will permit those areas most vulnerable to storm forces to

evacuate first. Figure 4.10 indicates the evacuation zones for Carteret

County, with the smaller numbers representing the most vulnerable areas.

For emergency management officials to know how much time they have before

they must issue evacuation notices and to pinpoint particular evacuation

trouble spots, evacuation times must be calculated for each of these

designated evacuation and contingency zones. Such a calculation requires a

range of assumptions about how local residents will behave under emergency

conditions. The North Carolina study feeds this information into a traffic

computer model (traffic assignment algorithm), which selects appropriate

evacuation routes and tabulates the number of vehicles using particular parts

of the evacuation roadway. Assuming that all people in affected zones must be

evacuated, the model calculates a range of "clearance times" based on

different sensitivity parameters. Clearance times include the time required

19
Transportation Analysis Chapter, North Carolina Hurricane Evacuation
Study Technical Data Report, prepared for COE by Post, Buckley, Schuh &
Jernigan, Inc., December 1986.

HUM 4.lU

23
2-2
24

@/,34

36
42,- 7
AN2,
52
y
y
1 @, VL- -I dY2
9 PO
10

6
.8 2 w
9 L A T C

LIG(ND
MM S10-- -W TRAFF
$C(--W'g
570- SCA '""o 1C IRANSPOnIA]ION ANALYSIS
IWAC@7" JOPA I&AWA NORTH CAROLINA HURRICANE EVACUATION STUDY

by evacuees to secure their homes and prepare to leave, the time spent

traveling, and the time spent waiting along the road network due to traffic

congestion. As shown in Table 4,1, clearance times in Cartere t County range

from 5 1/2 to 12 1/2 hours, depending on hurricane scenario, speed of

response, level of seasonal occupancy, and critical roadway segment used.

Local officials must take clearance times into account in deciding when to

issue evacuation orders, so that coastal residents can be evacuated safely

before roadways are inundated and gale force winds rise.

SLOSH-generated evacuation plans could also be used to test the marginal

effects of proposed future land uses or patterns of development. For

instance, what loss in evacuation capacity (increase in required evacuation

time) will result from an increase of 1,000 new dwelling units in a particular

location, assuming no improvements in the road system? From SLOSH-modeled

assessments, local officials can then establish whether the resulting levels,

of risk are acceptable or not, and if not, what types of mitigative action are

warranted. For instance, if a locality decides that any evacuation time over

12 hours is an unacceptable risk, the SLOSH-based evacuation model can then

provide information about at what threshold and pattern of future growth this

unacceptable level will be approached.

Because development management measures can be used to ensure that a

locality has sufficient evacuation capacity, time histories of surge and

wind forces at particular evacuation points also provide hazard analysis

information with development management implications. A Houston/Galveston

SLOSH study developed a model which yields critical information about

potential storm hazards at key evacuation points (for example, Galveston

Causeway), as a hurricane moves landward over time under particular

assumptions.20 This model predicts that a slow moving category 4 hurricane,

moving in a 320-degree direction, with a landfall 20 miles west of Galveston,

would flood the causeway some seven hours before the storm hits land. Under

high tide conditions this inundation would occur 8.5 hours before landfall.

Moreover, wind gusts would exceed 65 mph--wind conditions in which vehicle

operation is dangerous--13.5 hours before landfall.

This type of information is used by evacuation officials to determine

when evacuation notices must be issued. If we assume a situation where it

takes 17 hours to evacuate Galveston Island (as determined by the model) and

13.5 hours before winds on the causeway prevent safe vehicle movement (65 mph

gusts), a decision to evacuate must be made more than 30 hours prior to

hurricane landfall. Further development on the island can substantially

increase the evacuation time, which in turn increases the time before landfall

that an evacuation notice must be issued, and thus the chance that sufficient

time for evacuation will not be available. Usually 16-24 hours of warning

time are provided by the National Hurricane Center, but sometimes this is as

little as ten hours in the case of storms forming close to land. If a

locality established that it was going to make a decision to evacuate no

earlier than this 24-hour pre-landfall warning and planned to control

development accordingly, these time history data points would play a crucial

role. If this locality had a causeway like Galveston's (i.e., 65 mph gusts

13.5 hours before landfall under above circumstances), it would have to

restrict the extent of development such that its residents could be evacuated

in 10.5 hours or less.

20Carlton Ruch, Hurricane Relocation Planning for Brazoria. Galveston.
Harris, Fort Bend. and Chambers Countie , College Station, TX: Texas A&K
University, Sea Grant College Program, June 1.981.

mmmmm mm4r mmmmm lob==

TABLE 4-7

CLEARANCE TIMES (IN HOURS)

Eastern North Carolina Hurricane Evacuation Study - Transportation Analysis

Carteret County

Low Seasonal Medium Seasonal High Seasonal
Occupancy Occupancy Occupancy

Category 1-2 Hurricane
Rapid Response 5 K/4 K/ 7 % 8 / 4 Y21 9 9 /4 --%/ 9 Y2
Medium Response 6 %/6 K/ 8 K 9 Y4/6 Y4/ 9 Yz 10 /6 Y4/10
Slow Response 9 Y4/9 Yll/ 9 YZ 11 /9 Y41 10 Y2 11 %/ 9 X/ 11

Category 3 Hurricane
Rapid Response 7 Y2/4 Y21 8 Yz 8 K/4 Y21 9JA 9 /4 X/ 10 K OD
Medium Response 9 Y216 K/ 9 Y4 9 K/6 Y4/10 K 10 /6 K/10 A Lj
Slow Response 10 K/9 Y4/10 Y, 11 /9 K/11 Y2 11 @4/9 K/ 12

Category 4-5 Response

Rapid Response 7 Yi/4 K/ 9 Yz 8 X/4 Y2/10 Y2 9 /4%/Il
Medium Response 8 Y216 K/10 9 Y4/6 K/11 10 /6 K/l I Y2
Slow Response 10 K/9 Y4/11 11 /9 Y4/12 11 A/9 K112 Yz

U.S. 70 at Havelock critical roadway segment.
Ntlantic Beach Bridge - 2 lanes from beach.
Atlantic Beach Bridge - I lane from beach.

(b) Simple (non SLOSH-based) approaches to estimating evacuation

capacity. In recent years, simple methodologies have been developed for
estimating hurricane evacuation capacity.21 In areas where SLOSH has not yet

been applied, or is not yet operational, 'these methodological approaches will

be more appropriate. This section briefly describes this simpler methodology

and applies it to one particular North Carolina barrier island area.

An analysis of evacuation capacity was conducted for Hatteras Island,
North Carolina, as part of a larger carrying capacity study.22 Hatteras is

located in Dare County, and currently contains approximately 2,600 dwelling

units. The effects of several different 'build-out scenarios were tested.

In this particular locale, evacuation capacity is essentially a function

of Route 12 (main highway) and the Oregon Inlet bridge. A first task was to

determine the capacity of this transportation system under ideal conditions.
This system was estimated to be capable of handling 2,000 vehicles per hour.23

This figure was then adjusted to consider lane and shoulder widths, the

presence of vacation vehicles on the road, storm conditions, possible
obstructions, and the use of emergency vehicles.24 This yields a maximum

hourly capacity of 1,795 vehicles (see Table 4-8). The-time available for

2lJohn R. Stone, Hurricane Evacuation Pl.nning: Estimating EHacuation
Times for Non-MetroRolitan Coastal Communitie., Raleigh, NC: University of
North Carolina Sea Grant College Program, Working Paper 83-2, April 1983.
22Department of City and Regional Planning, A Carlying Capacity Study of
Hatteras Island, 1984; and Currituck Co ty Outer Banks Carrying Capacity
Study Chapel H111, NC: University of North Carolina, June 1983.
23Highway Research Board, Highway C pacity Manual, Washington, DC:
National Academy of Sciences, National Research Council, 1965.
24 See Stone, Hurricane Evacuation Planning: Estimating Evacuation Times
for Non-Metropolitan Coastal Communities, Raleigh, NC: Un*iversity of North
Carolina Sea Grant College Program, Working Paper 83-2. April 1983; Rogers,
Golden, and Halpern, Hurricane Evacuation and Hazard Mitigation Study for
Sanibel. Florida, November 1981.

Table 4.8

Calculation of Existing Evacuation Capacity of Hatteras Island, N.C.

a. ((2,000 veh/land/hr) + (2,000 veh/land/hr x 0.9 emergency vehicle
factor))

x (0.9 land width/lateral clearance)

x (0.95 RV and boat trailers) x (0.65 storm factor)

x (0.85 obstruction factor) - 1,795 vehicles/hour

b. The evacuation period was calculated:

(12 hours warning) (4 hours hazard cutoff time) - (3 hours
mobilization time) 5 hours

C. Total evacuation capacity is:

(1,795 vehicles/hour) x (5 hours) + 8,975 vehicles

Source: Department of City and Regional Planning, supra n.23, 1984

Table 4.9

Calculation of Evacuation Demand for Existing Residents.
Hatteras Island, North Carolina

2,648 Existing DUs x 1.25 vehicles/DU - 3,310 vehicles

522 Existing motel units x 1 vehicle/unit - 522 vehicles

3,170 Total DUs - 3,832 total vehicles

3,832 total vehicles x 0.8 (since an estimated 20% leave prior
to the evacuation order) - 3,066 vehicles to be evacuated

Source: Department of City and Regional Planning, sMRra n.23, 1984

evacuation is calculated to be five hours, assuming 12 hours of warning and

subtracting from that'a four hour hazards cutoff time (beyond which evacuation

is not possible) and three hours mobilization time (i.e., time required for

warning, preparation of residents, and for establishing an evacuation system).

Multiplying these five available hours by 1,795 indicates that only 8,975

vehicles can be safely evacuated.

Table 4.9 indicates how evacuation demand is estimated. It is assumed

that for each dwelling unit 1.25 vehicles will be evacuating, and 1.0 vehicles

for each motel unit. It is also assumed that 20% of the evacuating population

will leave before the evacuation order is issued. Under existing development

conditions (1984), this indicates that an excess evacuation capacity of 6,179

vehicles, or 3.3 evacuation hours, currently exists.

Tables 4.10 and 4.11 calculate evacuation. demand and capacity shortfalls

under three different future development scenarios. Under the worst case--

Scenario III--total evacuation demand would reach almost 43,000 vehicles,

yielding almost a 19 hour shortfall between available evacuation time and the

time actually needed to evacuate these vehicles. These estimates provide a

quantitative measure of the relative evacuation risks that the locality will

face if it permits certain future levels of development to occur.

Table 4. 10

Evacuation Demand for Future Development

Scenario Grand Totals
Current
Situation I Ii III

Total DUs 3,170 18,238 20,512 44,380

* 1.21 Vehicles per DU 3,832 22,068 24,820 53,700

* .8 remaining after
evacuation order is given - .8 .8 .8 .8

------------------------------------------------------------------------------

Demand in Vehicles 3,066 17,654 19,856 42,960

Source: Department of City and Regional Planning, suRra n.23, 1984

Table 4.11

Evacuation Capacity Under Future Development
Current Scenarios
Situation I II III

Total Evacuation Capacity
(Vehicles) 8,975 8,975 8,975 8,975

Total Evacuation Demand
(Vehicles) 3,066 17,654 19,856 42,960

Excess Capacity (+) or Demand
(-) (in Vehicles) +6,179 -8,679 -10,881 -33,985

Evacuation Period Needed
(Hours) 1.7 9.8 11.1 23.9

Total Evacuation Time Needed
(Hours) (Evacuation Period +
3 hrs. mobilization + 4 hrs.
to inundation) 8.7 16.8 18.1 30.9

Excess (+) or Shortfall (-)
in Hours +3.3 -4.8 -6.1 -18.9.

Source: Department of City and Regional Planning, supra n.23, 1984

C. Conclusion

, The damage a community suffers from hurr-icanes and other coastal hazards

has two necessary components--the natural. forces of wind and wave action, and

the exposure of people.and property. Local governments must understand both

elements in order to implement an appropriate mitigation plan, and this

chapter has presented a number of readily available methods for calculating

hazard magnitude, location, and exposure.

To determine the location of particularly hazardous areas, planners can

start with the Flood Insurance Rate Maps of the National Flood Insurance

Program. The FIRMs, based on historical data and probabilities, show

elevations and delineate zones of wave actions and flooding. A more

sophisticated tool is the computerized SLOSH simulations of potential

hurricane paths, which can be used to create a map of inundated areas. For

the non-hurricane threats of coastal erosion and inlet hazards, communities

can turn to the state CAMA program for erosion setback lines and inlet

formation maps. Cumulating all three sources, local planners can then compose

a composite hazards map.

The second component, exposure, represents the independent variable in

the hazard equation. Unlike the natural forces themselves, local governments

can influence the location and concentration of people and property through

growth management and other policies. To determine the extent of property at

risk, planners can use tax,maps and other data to locate and value public and

private property, and then can apply damage algorithms to calculate the amount

of potential damage.

To understand the exposure of people to coastal hazards, planners must

use a different approach', focusing on evacuation. Evacuation demand,

evacuation routes, route capacity, warning times, and traffic bottlenecks are

among the factors to be considered. SLOSH simulations under the North

Carolina Hurricane Evacuation Study are being developed for all coastal

counties, and will enable localities to establish "clearance times" for

hurricane evacuation. If SLOSH data is unavailable or inapplicable, local

governments can apply simple manual methods to calculate evacuation demand and

capacities. Once a community has prepared a thorough hazard analysis and

mapping, it can specify its mitigation policy in terms of specific areas and

development objectives. Next, the.locality can begin to implement its

objectives through the tools and techniques of Chapter 5.

Chapter 5

Review of SRecific Growth Management
Tools and Techniaues

As discussed in the Introduction, gi-owth management programs are designed

to affect the location, density, timing, and/or type of development in a

community. The tools and techniques of growth management are well adapted to

implement a strategy of coastal storm haZard mitigation, but should not be

applied in an arbitrary, cookbook fashion. Individual ordinances or devices

will accomplish little unless enacted in the context of an overall policy or

plan, such as the hazard mitigation plan required by CAMA regulations. With a

plan, local governments can select an appropriate mix of growth management

tools to achieve a variety of related objectives. Many of the devices

discussed here can be used to complement each other or to achieve non-hazard-

related community goals.

Ideally, coastal localities should seek to find that package of growth

management programs and policies particularly suited to their political,

social, and economic conditions, and which implement the policies embodied in

their land use plans. This chapter will discuss specific development

management techniques, indicating the range and diversity of different tools
and approaches available.1 Categories ofteChniques include development

regulation, land acquisition, taxation and fiscal incentives, capital

facilities policies, and programs for information dissemination. Table 5.1

displays eAch technique and summarizes the ones which have been employed and

which are legally feasible in North Carolina.

iThis chapter builds on Beatley, Development Management to Reduce Coastal
Storm Hazards: Policies and Processes, Chapel Hill, NC: UNC Center for Urban
and Regional Studies, 1985.

Table 5. 1

Applicability of Growth Management
Tools and Techniques in North Carolina

Tool or Used in Authorized
Technigue NC under NC law

Zoning Yes Yes
Open Space/Agricultural No Unlikely
Downzoning/Density Reduction Yes Yes
Minimum Lot Sizes Yes Yes
Floating Zones Yes Yes
Nonconforming Uses Yes Yes
Coastal Setback Yes Yes
Special Use Permits Yes Yes
Bonus/Incentive Zoning No Uncertain
Performance Zoning No Probably
Population Caps No Uncertain
Interim/Temporary Moratoria Yes Probably
Mobile Home Restrictions Yes Yes

Subdivision Regulation Yes Yes
Clustering Yes Yes
Exactions/Development Conditions Yes Yes
PUDs Yes Yes

Land/Property Acquisition
Fee Simple Acquisition Yes Yes
Advance Acquisition No Probably
Official Mapping No Probably
Right of Ist Refusal No Unlikely
Funding Aid Yes Yes
PDR/Donation of Easements Yes Yes
Transferable Development Rights No Uncertain

Taxation/Fiscal Incentives
Differential Taxation Yes, for farmland preservation
Special Assessments No Yes
Impact Fees Yes Needs Special Legislation

Capital Facilities/Infrastructure
Utility Extension Policy Yes Probably
Capital Improvements Plan Yes Yes
Post-Storm Relocation No Yes

Information Dissemination
Real Estate Disclosure No May Need State Legislation
Community Awareness Programs No Yes

1. DeveloRment Regulation

The primary development management tools are those which directly

regulate and control the location, amount, density, and type of development in

a coastal community. Regulations which restrict development can reduce the

exposure of people and property to hurricane and storm risks, and can enhance

the protective features of the natural environment. Basic types include

zoning,and subdivision regulations and various specialized applications of

these standard tools.

A. Zoin
Z

1) Conventional Zoning: Reducing th quantity of development exposed

Conventional zoning ordinances control the type of land uses allowed in

particular parts of a community (e.g., residential, commercial, industrial) as

well as their intensity (e.g., bulk, height, floor area ratio, setback

provisions). As a result, zoning provisions can control the amount and type

of property exposed to hurricane and storin hazards. For instance, open space

and recreational uses may be the most appropriate activities to be permitted

in high risk areas, such as Ocean Hazard AECs and NFIP V-zones. Restricting

such areas to commercial or public recreational activities would substantially

reduce the amount of property at risk and in turn the property losses to

accrue from future hurricanes and storms.

Zoning, with its emphasis on separation of uses, predictability of land

development, and regulation of building height, bulk, and land area is the

most common regulatory device for guiding land development in North Carolina.

Authority to zone is granted in N.C.G.S. �153A-340 et seg. to counties and in

�160A-381 et seg. to cities. This enabling legislation is based upon the U.S.

Department of Commerce Standard State Zoning Enabling Act, which is the basis

for zoning enabling legislation in most of the states. Local zoning
ordinances must be in accordance with a comprehensive plan-2 The zoning

enabling legislation establishes the permissible purposes for zoning as

lessening congestion in the streets; securing safety from fire, panic, and

other dangers; promoting health, safety, and the general welfare; providing

adequate light and air; preventing overcrowding of land; avoiding undue

concentration of population; and facilitating adequate provision of

transportation, water, sewerage, schools, parks, and other public

requirements. Zoning purposes and variations which are found not to serve

these purposes are ultra vires and invalid unless authorized by other

legislation.

Zoning has been upheld as constitutional and a legitimate exercise of the

police power since the United States Supreme Court decision in City of Euclid

v. Ambler Realty Co., 272 U.S. 365 (1926), but the application of specific

provisions is still subject to challenge. In North Carolina, the Supreme

Court has held that a zoning ordinance is valid unless "it has no foundation

in reason and is a merely arbitrary or irrational exercise of power having no

substantial relation to the public health, the public morals, the public
safety, or the public welfare in its proper sense."3 The court grants zoning
ordinances a presumption of validity.4

2N.C.G.S. �160A-383 (municipalities); �153A-341 (counties).
31n re Parker, 214 N.C. 51, 55 (1938).
4State v. Joj@er, 286 N.C. 366, appeal dismisse 422 U.S. 1002 (1975).

One zoning option for coastal communities is simply to designate hazard

areas as an open space or conservation zone in which all future development is

prohibited. Even if this were a politically feasible option, in coastal areas

where agriculture and other non-developed uses do not yield reasonable

economic returns it invites the constitutional challenge of a "taking" of

private property without just compensation (see Chapter 7). Depending on the

characteristics of the site, a prohibitory approach is not likely to be

defensible unless some economic use, such as agricultural, forestry, or

commercial recreation, can be supported.

Land which is not suitable for agricultural uses cannot be designated for

such use simply to prevent further growth in an area. If undeveloped land,

which is in fact not agricultural land-but in reality land suited for

development, is zoned exclusively agricultural, the courts will probably

invalidate the ordinance as a taking without just compensation. The same

problem is encountered in any attempt to zone an area exclusively industrial

or for other exclusively non-residential uses. However, North Carolina zoning

enabling legislation does provide for the use of exclusive non-residential

zoning, and a zoning ordinance which excludes residential use from certain

areas can serve a variety of purposes beyond protecting lives from hurricane

hazards. Residential exclusion prohibits subdivisions from expanding into an

area and serves, in effect, as a holding zone to contain urban development, to

protect agricultural areas from increased demands for commercial and

residential development, and to prevent scattered residential development

which is difficult to serve with public improvements and services.

In most instances, in the absence of land acquisition or some substantial

form of landowner compensation, large scale prohibition of new development,

including residential, in hazard areas is not likely to be feasible. A more

pragmatic approach is one which seeks to reduce the overall guantit@E of

development at risk. While a residential zoning designation in an oceanfront

area may still permit considerable development to occur at high risk to

hurricane damage, this quantity may still be considerably less than what the

unregulated market would support. Moreover, reducing a zoning designation

from relatively dense multi-family development to single family uses may

reduce substantially the amount of property and the number of lives at risk.

However, the strategy of hazard risk reduction through decreasing

development density is contingent to some extent on the quality and type of

structures to be built. Multi-family structures, designed by engineers and

architects, may be able to withstand the forces of hurricanes and storms much

more effectively than builder-designed single-family structures. While

limiting development to the latter type may reduce the quantity of property at

risk, this property may be more vulnerable to storm damage.

Reducing development densities is a very common approach, and examples

of conventional downzoning along high hazard coastal shorelines are not hard

to find. In its recent hurricane hazard mitigation and post-disaster

reconstruction plan, the Town of Emerald Isle, North Carolina, notes its

efforts to reduce storm hazards by keeping down hazard area densities:

The Town's growth policy encourages relatively low density residential
development; high rise developments along the ocean are not typically
found in Emerald Isle. The Town has also downzoned lands that originally
allowed up to 13.5 dwelling units per acre to 8 dwelling units per acre.
This may reduce the ultimate number of units by 2,200 or about 7,300
seasonal sites (Town of Emerald Isle 1984, p. 10).

The hurricane hazard mitigation and reconstruction plan for Onslow County,

North Carolina, recommends that future permissible densities be lowered

considerably in West Onslow Beach (Topsail Island) to facilitate evacuation.

Moreover, while the plan recommends a reduction in overall density, it also
recommends more extensive reductions where the hurricane hazard is greater.5

The Onslow County-plan illustrates that zoning can be used to reduce the

amount of property at risk in coastal hazard areas in proportion to the extent

and nature of the storm-related hazards in various locations. The quantity of

development permissible could be a function of the aggregate risks at a

particular site. For instance, less development may be permitted in an area

subject to both wave velocity action from storms and a potentially shifting

inlet than in a location subject only to velocity effects without the inlet

hazard. Different hazard zones can be designated with varying degrees and

combinations of hazards, with the density of development adjusted accordingly.

Proximity to ocean and sound waters may serve as a good proxy for storm risks,

with the most extensive new development permitted on locations farther inland.

An important factor to remember is that in a typical coastal community there

will be gradations of hazard risk, with the primary (mitigation) objective of

50nslow County, N.C., Hurricane Storm Mitigation and Post-Disaster
Reconstruction Plans, prepared by Henry Von Oesen and Associates, Inc., April
1984.

zoning often being to orient future development away from high hazard areas to

lesser hazard areas.

As with many of the other development management techniques discussed

herein, it is important to utilize zoning provisions to preserve, to the

extent possible, the protective features of the natural environment. It may

be desirable, for instance, to permit only very low densities of development

(where permitted at all) around wetlands. Development in close proximity may

threaten the health and vitality of these areas and in turn reduce their
utility in absorbing storm forces.6

Density of development can be reduced in several ways. One approach is

to raise the minimum lot size required for structures. For instance, in a

high hazard zone, the zoning ordinance may be modified so that new residential

structures here must be situated on a minimum lot size of 50,000 square feet
rather than the previous 25,000 square foot minimum.7 A complementary

approach is simply to reduce the number of dwelling units permitted per acre

in high hazard areas. An existing permitted density of 10 dwelling units per

acre may be reduced to that of 5 dwelling units per acre. Either approach

serves to reduce the overall quantity of permissible development in a

particularly hazardous location.

On the other hand, this type of zoning may produce an inefficient form of

development, which increases the cost of providing services within the area.

Minimum lot sizes also tend to drive up land and housing costs. Extensive

minimum lot size requirements are likely to face legal difficulties where it

6Conservation Foundation, Flood Hazard Management and Natural Resource
Protection, prepared for FEMA, October 1980; Arthur R. Benton, Carolyn A.
Clark and Wallace W. Snell, Galveston Island-A-Changing Environment, Texas
A&M University, January 1980.
7See Kill Devil Hills Ocean Impact Residential Zone, Appendix II.

appears that the primary purpose of the ordinance is exclusionary (to prevent

certain groups of people from residing in a community) rather than related to

a valid governmental purpose such as protection from septic tank pollution or
protection of environmentally fragile or scenically important areas.8

Where an existing zoning ordinance already exists, a reduction in

density may be most expediently accomplished by rezoning hazard areas to

existing zoning designations which exclude higher density uses. For instance,

the hurricane mitigation and post-storm reconstruction plan for the Town of

Nags Head, North Carolina, recommends that the town consider rezoning certain

portions of its beachfront from CR to R1 or R2, in order to prevent the
location of high density hotel and motel uses.9

Reductions in the densities of development permitted by zoning in high

hazard areas can occur in either the pre-storm stage or during recovery and

reconstruction. It may be difficult to overcome the political obstacles to

downzoning in the pre-storm stage, while storm devastation may present unique
mitigation opportunities.10 Of course, to fully realize post-storm mitigation

opportunities, localities should develop a reconstruction plan in advance,

based on the elements required in the CAMA regulations. Without a detailed,

thoughtful plan, post-storm rebuilding may proceed haphazardly to replicate or

worsen the pre-storm condition.

As one element of the post-storm plan, the community might decide in

advance that certain pre-determined density reductions will be activated

8See Salamar Builders v. Tuttle, 29 N.Y.2d 221, 325 N.Y.S.2d 933 (1971)
(upholding large lot zoning to protect against septic tank pollution) and
National Land and Investment Co. v. Koh , 419 Pa. 504, 215 A.2d 597 (1965)
(striking down large lot zoning intended to prevent the overburdening of
existing municipal services).
9Town of Nags Head, N.C., Hurricane Hazard Mitigation and Post-Storm
Reconstruction Plan, prepared by Coastal Resources Collaborative, Inc., 1984.
'USee Chapter 6.

according to the extent of overall property damage occurring in particular

areas of the locality. For instance, in areas where multi-family structures

have been damaged by 101, or more of their market value on average,the

community may automatically imposed a density reduction of, say, 25%. This

would permit some structures to be rebuilt but would simultaneously reduce

substantially the amount of future property at risk. The pre-specified

restrictions would likely be tied to the damage zones delineated during the

early stages of recovery and reconstruction and would resemble a sort of

floating zone which would become binding only upon the occurrence of certain
damage conditions.11

Floating zones are shown in the text of the zoning ordinance but not on

the zoning map. This technique is used when a local government recognizes

that a particular activity is desired for a general area, but the specific

site has not been located in advance. The floating zone may be applied to a

site if the conditions in the ordinance are met. A floating zone therefore

"floats" in the text of the zoning ordinance and waits to be affixed to an

appropriate parcel of land. Typically employed for such uses as shopping

centers, light industry and mobile home parks, floating zones are not

explicitly authorized by enabling legislation in North Carolina. A floating

zone ordinance may have legal difficulties as a form of spot zoning. The

North Carolina Supreme Court has defined spot zoning as arising "where a small

area, usually a single lot or a few lots, surrounded by other property of

similar nature, is placed arbitrarily in a different use zone from that to
which surrounding property is made subject." 12 Conversely, legal problems

llSee the triage discussion in Chapter 6, and the Model Moratorium
Ordinance, Appendix II.
l2ZoPhi v. City of Wilmingto , 273 N.C. 430 (1968).

100

with the floating zone concept may be avoided if it is viewed as a form of a

special exception, with more detailed requirements and conditions to be met
before the use is permitted.13

Another traditional zoning concept that can be readily applied to density

reduction is the doctrine of nonconforminlL_Usel. A nonconforming use is

created when a land use or activity formerly permitted by right is

prospectively invalidated by a new zoning ordinance. The ordinance's

restrictions do not apply retroactively, so the former use is "grandfathered

in." That is, the use is permitted to continue, yet is generally not allowed

to expand beyond a certain extent, and, if destroyed or discontinued, is not

permitted to re-establish itself. For instance, a commercial establishment

may become a nonconforming use in a new exclusive residential zone. While the

business may continue operating in the short term, it may not expand its size,

and, if destroyed by a fire or other catastrophe, will not usually be
permitted to rebuild in this zoning district.14

Nonconforming uses can be used to reduce-storm hazard in several ways.

Certain high density uses in high hazard areas can be zoned out and declared

nonconforming uses through changes in zoning districts, and in time a slow

process of land use change might be expected. A shorter-term approach uses

the nonconforming use concept as a way of preparing for and managing

reconstruction after a hurricane or storm occurs. For instance, while a major

hotel or condominium complex may be tolerated in a high hazard zone because it

already exists, storm destruction provides an opportunity to change allowable

land uses and start over with a clean slate. Local officials should try to

13Rogers v. Village.of.T-irrvtown, 302 N.Y. 115, 96 N_.E.2d 731 (1951).
14See Myrtle Beach Coastal Protection.Overlay Zone �2, Model Amendments
�2, Kill Devil Hills Ocean Impact Residential Zone �20-10.10, Appendix II.

101

rezone hazard areas before the storm so as to give notice of nonconforming use

status and to prevent the reconstruction of nonconforming structures before

the locality has a chance to change the zoning after the storm. Older

structures which are nonconforming may also be required to be brought "up to.

code" in the event they are faced with substantial repairs.

Several issues are raised when rezoning for hazard reduction creates

nonconforming uses. The first concerns the financial and economic impacts of

declaring an existing use to be nonconforming. To what extent, for example,

does the zoning change lower the fair market value of a property and the

ability of its owners to secure continued financial backing? Furthermore,

will a loss in market value result in lower tax assessments and reduced

property tax revenues for the locality? Another issue is the extent or degree

of damage required before a storm-damaged nonconforming use is considered

destroyed and is barred from being reconstructed. The National Flood

Insurance Program has used a 50% fair market value loss criterion to

distinguish between damaged structures which do or do not have to be repaired

to NFIP standards (i.e., elevation to the 100-year BFE).

Localities which are not content to wait for storms to remove their

nonconforming uses might employ the concept of "amortization." Amortization,

typically employed to restrict signs and billboards, permits a nonconforming

use to continue for only a specified period of time. The amortization period

is often tied to the economic depreciation of particular types of property and

must be reasonable in order to be upheld as a legitimate exercise of the

police power. The North Carolina Court of Appeals has upheld amortization
provisions in sign control ordinances.15 The use of amortization might be

15Goodman Toyota v. City of Raleigh, 63 N.C. App. 660 (1983); Givens v.
Town of Naas Hea , 58 N.C. App. 697 (1982).

102

expanded to situations where it is considered equitable to provide owners of

relatively short-lived property in high hazard areas with a definite

amortization or compliance period. For instance, a locality might require a

single-family homeowner in a high erosion area to relocate his home to a safer

parcel by some reasonable period of time.

2) Coastal Setbacks

The concept of a development setback has long been part of zoning and

land use control. Setbacks are used in urban settings to ensure that

sufficient land is available for future roads and other public improvements,

and to ensure adequate light, access, and separation of structures. Setbacks

in coastal hazard areas are an extension of this zoning technique and have

become relatively popular as a means for both minimizing the impact of

development on beach and dune systems and reducing exposure to storm
hazards.16 Setbacks can be required from the ocean itself (i.e., from the

mean high tide line), the first line of vegetation, or the dune ridge. Such

setbacks may be state-mandated or local option. North Carolina, under CARA

regulations, requires small coastal developments to be located landward from

the first line of vegetation (or crest of dune), or a distance 30 times the

annual rate of erosion for that particular segment of coast, whichever is

gr.-a..-e-. This setback is 60 times the annual rate of erosion in the case of

multi-family structures of four units or more and structures of more than
5,000 square feet in size.17

16
Kusler, Innovative Local Floodplain Mallagement: A Summary of Local
Experience, Boulder, CO: Institute of Behavioral Science ` 1982; UNC Center
for Urban and Regional Studies, Review o! State Programs and Policies to
Reduce Coastal Storm Hazards, Chapel HilL, N.C., 1984.
'-'15 N.C. Admin. Code 07H.0306. The Myrtle Beach Coastal Protection
Overlay zone, Appendix II, establishes a "Building Control Line."

1
103

3) Special Use Permits
ko Many localities across the country have felt constrained at times by the
rigid classifications of conventional zoning. In order to gain flexibility or

acquire desirable developments, some communities have resorted to directly

bargaining with developers to exchange zoning rules for some form of benefit.
Such an exchange is referred to as contract or conditional zoning.18 However,

contract and conditional zoning have been ruled invalid in North Carolina, as
in the nature of spot zoning.19 Amendments to the zoning ordinance designed

to give preferential treatment to select landowners are referred to as "spot

zoning" and are almost always struck down by the courts if they are
challenged.20

Even though pure contract zoning is illegal, localities have many other

options to enhance the flexibility of land use controls. One of the most

18Under the concept of contract zoning, the jurisdiction agrees to allow
a land use activity not normally permissible in a particular area, such as a
rezoning from low-density residential to commercial or higher-density
residential, in exchange for a certain desirable feature provided by the
developer, such as a deed restriction or public improvements. Conditional
zoning is similar to contract zoning, but without the community selling or
bargaining away its regulatory authority. Here, zoning changes are permitted
only if they satisfy the stipulations laid down by the community at the time
of project review. For example, a locality may agree to rezone low density
residential to commercial uses in a high hazard zone, only if the developer
agrees to ensure that his structures can be used for sheltering the public-in
the event of a hurricane threat.
19Allred v. City of Raleigh, 277 N.C. 530 (1971).
20The invalidity of spot zoning consists of isolating a select parcel for
preferential treatment and relieving the parcel of restrictions to which
surrounding property is subject. Blades v. City of Raleigh, 280 N.C. 531
(1972@; Godfrey v. Union Countl Board of Commissioners, 61 N.C. App. 100
(1983). The North Carolina Court of Appeals has explained that rezoning must
be effected by the exercise of legislative power rather than by special
arrangements with the owners of a particular parcel of land. Rose v. Guilford
County, 60 N.C. App 170 (1982). See also Brough, "Flexibility without
Arbitrariness in the Zoning System: Observations on North Carolina Special
Exception and Zoning Amendment Cases," 53 North Carolina Law Revie 925
(1975).

104

common devices in North Carolina is the conditional or special use permit,

also called the special exception. This technique is employed in areas where

certain activities are permissible but require special scrutiny to screen out

or minimize the particular problems individual developments may present.

Generally, the special use is permitted as a matter of right within a given

zone if the proposed development meets certain conditions and criteria. These

criteria, which must be objectively stated in the ordinance, most often relate

to the provision of municipal services or to -the reduction of adverse
environmental impacts.21

Special use permits are distinguished from contract or conditional zoning

in two ways. First, criteria that must be met before a special use permit is

issued are expressly stated in the ordinance and apply equally to all property

owners within a given zone. Second, special use permits require no

concessions or commitments from the community. The applicant for the permit

needs only to demonstrate that the proposed development meets the required

conditions for the permit to be granted. Also, the special use permit is

entirely different from a variance, which is a departure from the terms of the

zoning ordinance and is granted where enforcement of the terms of the

ordinance would result in undue hardship. The special exception is a

permitted use under the terms of the ordinance in contrast to a departure from
the ordinance in the case of a variance.22

Authority for the use of special exceptions or conditional use permits is

granted to municipalities in N.C.G.S. �1150A-3,91 et seg. and to counties in

211n re Ellii, 277 N.C. 419 (1970); Coastal Ready-Mix Concrete Company v.
Board of Commissioners of the Town of Nags Head, 299 N.C. 620 (1980).
22Jackson v. Guilford County Board of Adjustment, 2 N.C. App. 408 (1968),
aff'd 275 N.C. 155 (1969).

105

�153A-340 et seg. The North Carolina Supreme Court has upheld the use of

special exception ordinances against an improper delegation of legislative

authority challenge so long as specified conditions are met. The special

exception ordinance is valid when the standards set forth in the ordinance

provide adequate standards for the delegation of legislative authority, form

the basis for the decision of the board of adjustment, and follow the
applicable procedural safeguards.23

4) Bonus or Incentive Zoning

Bonus or incentive zoning allows developers to exceed limitations,

usually height or density limitations, imposed by conventional zoning in

exchange for developer-supplied amenities or concessions. For example, a

builder may be permitted to exceed a height restriction if the developer

provides open space adjacent to the proposed building. Incentive zoning has

been used for some time in large urban developments. In New York, for

example, a developer can obtain a 20% increase in permissible floor area for

projects which incorporate a legitimate theatre. Density bonuses have been

given to encourage the incorporation of low and moderate income housing into.
development projects.24 In the case of coastal hazard areas, developers may

be granted additional development units if projects incorporate hazard-

reduction features. These features may include the purchasing and deeding to

the public of high hazard lands, or the provision of design features which may

increase the ability of structure@s t6 withstand storm forces. It may

23Humble Oil and Refining Company v. Board of Aldermen of Chapel Hill,
286 N.C. 170 (1974).
24G.M. Fox and B.R. Davis, "Density Bonus Zoning to Provide Low and
Moderate Cost Housing," I Hastings Con, L.Q. 1011 (1171),

106

counteract other hazard mitigation strategies, however, to encourage or permit

additional densities in coastal hazard areas, even if public amenities and

hazard-reduction features are provided as compensation.

Moreover, bonus or incentive zoning is not explicitly permitted by North

Carolina zoning enabling legislation. The legality of this zoning variation

in North Carolina is uncertain because of its resemblance to contract and

conditional zoning. Legal problems might arise for two reasons. First, when

used without traditional zoning, incentive zoning deals primarily with

density, and not use, in classifying landuses. There may be questions as

whether this is within existing enabling legislation. (Apparently no

municipalities have used this tool without also using conventional zoning.)

Secondly, if used in combination with traditional zoning, the technique might

be attacked as unlawful contract zoning. On the other hand, incentive or

bonus zoning is similar to dedication, and the use of dedication has been

upheld when used as part of a subdivisionregUlation and in other contexts.

The relationship between the amenityprovided by the developer and the

bonus allowed in return may be important for judicial approval of incentive

zoning. For example, an incentive ordinance may allow a smaller lot size in

subdivisions in return for more open space than is ordinarily-required. There

is an obvious relationship between allowing smaller lots and providing more

open space. A more difficult situation arises, when an ordinance allows

smaller lots in return for,the provision of an amenity such as bikeways. It

may be that incentive ordinances for non-controversial purposes are not likely

to be challenged, and perhaps even a tenuous relationship between the amenity

and the bonus will justify the ordinance.

107

IWI

5) Performance Zoning

Performance zoning sets standards for each zone based on permissible

effects of a development rather than specifically enumerating the types of

uses, dimensions, or densities permitted. If the prescribed standards are

met, any use is allowed in the zone. This technique has been extensively used

in industrial zoning to set standards on noise, dust, emissions, and glare.

More recently, the technique has been used in broader applications, with

standards keyed to demands on public services such as water supply, waste

water treatment, and roads. Application may involve protection of the

environment by specifying maximum levels of permissible stress on natural

,systems. For example, a community may specify the amount of permissible

disturbance of vegetation in a given zone, and any use would have to meet that

standard before development could take place. Performance controls for

sensitive lands may work as a system to protect natural processes in

environmentally sensitive areas, such as wetlands, floodplains, and dune

108

systems. Performance controls are most often used in conjunction with

traditional zoning ordinances, or as an overlay to the conventional zones.

The power to zone by the use of performance standards is not explicitly

granted in North Carolina enabling legislation, and no court decisions

expressly address the validity of the technique. The North Carolina Supreme

Court has, however, upheld the use of performance standards in a municipal
floodplain ordinance against taking and equal protection challenges.25 it

seems that performance standards, if rationally devised and consistently

applied, could qualify as a comprehensive plan, and zoning in conformance with

those standards could be upheld under the broad grant of zoning authority.

6) PoRulation CaRs and Annual Development Limits

One approach to addressing the hurricane threat is simply to restrict the

number of people permitted to reside in the community. Population caps may be

particularly appropriate in barrier island communities where only limited

numbers of people can evacuate safely should a. hurricane or severe storm

threaten. It may also be true that a strategy to reduce future property

damage is actually aimed at restricting the amount of development permitted in

the community. Usually, however, such restrictions are employed for other

purposes, such as to protect the aesthetic quality of a community or to ensure

th:7t.,a'natural resource is not overtaxed.

Two basic approaches have been identified. One approach is to establish
an absolute "cap" on the amount of future growth permitted in the community.26

The cap ma@ be assessed in terms of overall population or development or

25Responsible Citizens in Opposition to the Flood Plain Ordinance v. Cit@y
of Asheville, 308 N.C. 255 (1983).
ZbFor a general review and comparisoh of these, see Bureau of Government
Research and Service, Local Government Policies for.Urban Development: A
Review of the State of the Art, University of Oregon, 1974.

109

dwelling units. The City of Boca Raton, Florida, has become a classic example

of an attempt to use this approach. Citizens here voted in 1972 to enact a

charter amendment restricting the absolute number of dwelling units in the

jurisdiction to 40,000, with a series of downzonings to implement this
provision.27 The Boca Raton ordinance was found to be constitutionally

deficient as a violation of state and federal due process and as having no

28
rational relationship to a permissible municipal objective. It is highly

unlikely that such an ordinance would survive judicial scrutiny in North

Carolina unless some dire circumstances were exhaustively documented or

undisputed.

A second and more legally acceptable approach is to limit growth on an

annual basis. The City of Petaluma, California, is a prime example of the use

of this approach. Here provisions were enacted which restricted the issuance

of building permits to roughly 500 residential units per year. Development

applications are evaluated according to the Petaluma General Plan and
environmental design plans.29

A program of restricting the amount of annual growth, or enacting a

temporary building moratorium, may have several advantages for a storm-

vulnerable coastal locality. It will reduce the speed of new development and

growth and consequently the reduct the extent of lives and property at risk in

27David Godschalk, David J. Brower, et al, Constitutional Issues of
Growth Management, Chicago: APA Planners Press, 1979; and Toni I. Meador,
"Managing Growth on Florida's Gold Coast: Boca Raton and the Growth Cap,"
Fla. Environmental and Urban Issues, February 1979.
28City of Bo a Raton v. Boca Villas Corp., 371 So.2d 154 (Fla. App.
1979),9cert. denied, 381 So.2d 765 (1980).
Godschalk, Brower et al., Constitutional Issues of Growth Management.-
supra. The Petaluma ordinance was upheld in Construction Industry Association
of Sonoma County v, City of Petaluma, 522 F.2d 897 (9th cir. 1975), cert. den.
424 U.S. 934 (1976).

110

the short run. In the long run, however, the absolute level of development

may remain unchanged. Timing growth in this way may afford a community more

time to plan for the storm hazard, and MaLy Place the community in a better

-r decisions which can eventually
position to make intelligent land use and othe

reduce the extent of local storm hazards. As a further example, a community

may need additional time to finance and put in place certain public facilities

critical to the safety of people and property, such as a new bridge to the

mainland or a detailed hazard map.

No communities in North Carolina have enacted annual permit limitations

like Petaluma's. A similar, although not: so rigid approach, is to dictate

stringent conditions which must be met before a permit will be issued. North

Carolina's building laws set various standards; for structures in pursuance of

the public health, safety, and general welfare. Absolute limitations on the

number of permits, however, are not mentioned in the building code enabling

legislation. The issuance of a building permit is conditional upon compliance

not only with the state building code, but with all applicable local laws such
as the local zoning regulations.30 Local. regulations may not modify the state

building code, which governs construction standards. The enabling statutes do

not state how stringent the conditions sett by local government for permit

issuance may be, with respect to the provision of public services and the

protection of the environment and neighboring property owners.

The population cap and permit limitation techniques suggest the

possibility of closely tying permitted new growth to the capacity of a coastal

locality and its residents to respond to a storm hazard. Such an approach has

been employed in the growth management system adopted by Sanibel Island,

30N.C.G.S. �160A-417.

Florida. Shortly after the island was incorporated, a moratorium on new

development was initiated and a comprehensive plan based explicitly on the

capacity of the island's natural and built environments to sustain new growth

was developed. Evacuation is calculated to take five hours, assuming 12 hours

of warning and subtracting from that a four hour hazards cutoff time (beyond

which evacuation is not possible), and three hours mobilization time (i.e.,

time required for warning, preparation of residents, and for establishing an
evacuation system).31

The Sanibel case illustrates the use of the concept of "carrying

ran
capacity." Carrying capacity means the natural and ma 32 ade limits to
development beyond which significant harms will occur. Carrying capacity

can be used to assess the effects of development on such natural factors as

ground water supply and wetlands productivity, and manmade factors such as

sewage treatment and roadway capacity. This concept has been applied in
practice to a number of coastal localities.33 Several implications for storm

hazard reduction arise from the application of carrying capacity analysis.

The first is that, as in Sanibel, carrying capacity is particularly relevant

3lSee Godschalk, Brower et al., Constitutional Issues of Growth
Management, supra; J. Clark, The Sanibel Report: Formulation of a
ComRrehensive Plan Based on Natural Systems, The Conservation Foundation 1976;
City of Sanibel, Florida, Comprehensive Land Use Plan 1980.
32 David Godschalk and Francis H. Parker, "Carrying Capacity: A Key to
Environmental Planning?" 30 (4) J. of Soil and Water Conservatio 160-165,
1975; Devon M.Schneider, David Godschalk and Norman Axler, The Carlying
Capacity Concept as a Planning Tool, PAS Report 338, 1978; David Godschalk,
et al., Carlying Capacity-A Basis for Coastal Planning? Department of City
and Relional Planning, University of North Carolina at Chapel Hill, June 1974.
3 See, e.g., Department of City and Regional Planning, Currituck County
Outer Banks Carrying Capacity StuU, University of North Carolina at Chapel
Hill, 1983; Town of Nags Head, N.C., Hurricane Hazard Mitigation and Post-
Storm Reconstruction Plan, prepared by Coastal Resources,Collaborative, Inc.,
1984.

112

to assessing evacuation capacity.34 Second, natural and manmade limitations

on coastal development may provide a rational means to regulate the location

and quantity of new growth, which in turn may serve to reduce storm hazards.

Carrying capacity objectives, in other words, may be used to reinforce and

complement efforts to reduce storm hazards generally.

7) Interim or TemRorary Develorgent Regulations

Interim or temporary regulations are designed to substantially retard

development for a limited period. These -regulations often take the form of a

complete temporary mo ratorium on certain types of development or all

development in certain locations. Temporary development moratorium can be of

at least two types. First, a planning moratorium may be used to slow or to

freeze development in a certain area until a plan can be drafted and a

permanent scheme of growth management controls implemented. Temporary

development control serves three functions: it permits planning and ordinance

writing to proceed relatively free of development pressures; it prevents uses

that will be incompatible with the eventual regulatory and planning scheme

from being initiated before the scheme is operational; and it allows time for

public debate on issues relevant to development of the permanent control

system.

Second, an environmental moratorium -restricts development during a period

in which community facilities are over-pressured. Environmental moratoria are

most commonly called for during rapid community growth and, to be effective,

must be generally tied to programming of facilities related to the

environmental problem. The most common example of such a moratorium involves
supra 34See particularly Currituck County Outer Banks Carrying Capacity Study

113

inadequate capacity of a sewage treatment facility. For example, in the early
ko 1970's, Currituck County instituted a 15-month moratorium on approval of new
subdivisions in order to provide time for land use planning and replatting of

unrealistic subdivisions.

The power to impose an interim moratorium on development is not granted

explicitly to local governments in North Carolina zoning or planning enabling

legislation. Reasonable interim controls, if related to pressing community

problems, however, are likely to be upheld. Judicial decisions in several

other states have upheld interim moratoria as constitutional and as within the
scope of standard zoning enabling legislation.35

8) Reaulation of Mobile Homes

Because of their relatively fragile construction and lack of adequate

foundations, mobile homes present particular dangers in the event of a

hurricane. Both the occupants and the neighbors of mobile homes would be

endangered by wave and wind action destroying or uprooting the home and

battering it into nearby structures. Coastal communities may employ several

specific methods to regulate mobile homes, including licensing, inspection,

taxation, and zoning. The most obvious technique would be to prohibit mobile

homes from locating in high hazard areas or to confine them to mobile home
pArks in sheltered locations.36 Uniform standards regarding the construction

and sale of mobile homes are contained in N.C.G.S. �143-144 et seg. and rules

promulgated by the Building Code Council thereunder. Local building

inspe@tors are charged with enforcement of these rules.

35See Westwood Forest Estates v, Village of South Nyack, 23 N.Y.2d 424,
244 N.E.2d 700 (1969).
36See N.C. Division of Emergency Management, Model Flood Damage
Prevention Ordinance Article 5, �B(4)(c), Appendix II.

114

The authority to regulate mobile homes stems from the North Carolina

general zoning and public power enabling legislation and from legislation

granting counties and cities the power to enact ordinances which protect the

general health and safety. Mobile homes are considered sufficiently different

from other types of housing that there is a rational basis for placing
different requirements upon them.37

B. Subdivision Regulation

1) Subdivision and Site Plan Revie

Subdivision regulations govern the conversion of raw 1.1hd into building

sites or developed uses and the type and extent of improvement made in this

conversion. Subdivision regulations can control-the density, configuration,

and layout of development. They operate in ways similar to zoning to control

the amount and density of development on a particular site. They can also

establish effective requirements and standards for public improvements,

including streets, drainage pipes, sewer outlets, and so forth. The

requirement of minimum lot size can reduce the amount of new development

exposed to storm hazards. Site plan review and other requirements of

subdivision approval can provide'the opportunity to orient the location of

development sites in ways which minimize storm. risks. For instance,

subdivision regulations may require that new single-family dwellings on lots

37Currituck County v. Willey, 46 N.C. App. 835, review denied 301 N.C.
234 (1980). Mobile homes may not be absolutely prohibited from a city, Town
of Conover v. Jolly, 27TN.C. 439 (1979), but they may be restricted to mobile
home parks. City of Asheboro v. Auman, 26 N.C. App. 87, cert, denied 288 N.C.
239, 217 (1975); Duggins v. Town of Walnut Covi, 63 N.C. App. 684 (1983).

115

in hazard areas be sited so as to maximize distance from high hazard

oceanfront areas.

The authority to regulate subdivisions is granted to both municipalities

and counties. Both are authorized, among other forms of regulation, to

require dedication or reservation of recreation areas adequate to serve the
residents of the immediate neighborhood within the subdivision.38 Dedications

of a specified amount of land (usually for parks or schools) or money in lieu

of land force the developer of the subdivision to provide for needs generated

by the subdivision. When the developer is allowed to pay in cash instead of

in land, the community is given additional flexibility in meeting the needs of

the subdivision. If, for example, a good park site is not available on the

land owned by a developer, the cash contribution can allow the local

government to purchase a nearby park site for the neighborhood.

Standards have recently been broadened in scope, and a subdivision plan

may be refused approval where there is a fair or substantial showing that the

subdivision will cause undesirable off-site problems such as creating hazards,

environmental degradation, or increasing the burden on already overloaded

public facilities, such as roads and sewers. In this newer form, subdivision

regulations can facilitate orderly municipal growth in accordance with a

comprehensive plan by controlling the sequence and time of development.

Subdivision approval might also be made contingent on mitigation actions,
such as the protection of dunes, wetlands, or natural vegetation.39 For

instance, subdivision and site plan provisions may require that structures be

located a sufficient distance from protective dunes. This may, in fact,

38N.C.G.S. �160A-371 et Aseq. (cities); N.C.G.S. �153-A-330 et seg.
(counties).
39See Model Amendments �4(b).

116

amount to a setback over and above the CAHA requirements, but not necessarily.

Subdivision approvals may also be made contingent upon the planting of certain

vegetation and the restoration and repair, to the extent feasible, of existing

dunes. Another promising alternative is to preserve the option of moving a

structure back from the ocean by requiring lots which are sufficiently deep

for this purpose. The additional depth could be considered analogous to the

"repair" areas often required for septic tank use. If necessary, a structure

could then be moved to the landward portion of' the lot, in a safer location.

2) Clusterinz

Perhaps some of the most promising subdivision regulation techniques from
a storm mitigation perspective are clustering provisions.40 Clustering may

either be required generally or be presented to developers as an option.

Applied either way, these provisions would not: affect the overall density

permitted on a particular site, but would seek to concentrate or cluster a

higher density of structures on portions of the site which are less hazardous

(e.g., outside of the flood zone, at a distance from velocity zones and active

inlets). By directing density to a particular portion of a site, clustering

can both permit and encourage development to locate on the less-hazardous

portions of a site, while preserving hazard-prone areas in an undeveloped

state.

A prime opportunity for accomplishing such a reorientation of development

could occur during reconstruction following a damaging storm. For instance,

post-storm development regulations could encourage clustering new development

on the landward side of the ocean highway', with parking and recreational open
1968. 40See William Whvt.p,,Tbe Last Land cape, Garden City, NY: Doubleday,

117

space areas on the seaward side. Undeveloped beachfront areas may typically

include features such as wetlands or vegetation which in themselves serve to

protect against storm forces. Clustering may also encourage the construction

of buildings which are more structurally resistant to storm forces, and may

provide a more economical provision of certain storm protection improvements

(e.g., bulkheads). Clustering can, as well, economize on the public

facilities, such as sewer, water, and roads, which must accompany development,
In turn reducing the amount of property at risk.41 Clustering may offer

further advantages in the provision of community storm shelters and evacuation

services.

4lReal Estate Research Corporation, The Costs of Sprawl, Council on
Environmental Quality, 1974.

118

3) Exactions and Development Conditions

Traditionally, subdivision approval is contingent upon the provision by

the developer of certain land or facilities, or monetary contributions in lieu

of such dedications. Referred to as "exactions," these conditions have often

taken the form of requirements to constru,,ct and dedicate, or to pay for the

construction of, such immediate facilities as sewer and water lines, curbs and

gutters, and roads. Typically included as well are requirements that the

developers contribute a certain amount of' land for open space, parks and

recreation, and future school sites. These are generally needs directly

related to the new development.

The exactions process offers potential for storm hazard mitigation in

several ways. It may require, for instance, that when private developers

build and dedicate public facilities, these facilities be constructed in ways

which are hurricane-resistant (floodproofing sewer and water lines, elevated

roads, etc.). Moreover, in the dedication of lands, or fees in lieu of such

dedications, the community can require that lZLnds which are particularly

hazardous be dedicated--in turn ensuring that such areas are used for non-

developed or non-intensive uses. An in-lieu land acquisition fund may allow

the community to combine resources and to acquire in a more aggressive way

lar1qP tracts of high-hazard land. Consideration of public reconstruction

requirements may also be appropriate. For example, the community may wish to

make subdivision approval contingent uponthe contribution of the developer to

a "reconsti-uction fund," which would be used to finance both immediate

recovery and longer-term reconstruction costs.

Some communities have attempted to tie subdivision approval to the

adequate provision of off-site community facilities and s ervices, such as

police, fire, and schools. Subdivision regulations which take into account

119

off-site facilities recognize that new development requires more services than

those which are on-site. These regulations protect the revenues of the

municipality and force the development to carry its own financial burden.

They also promote development in areas where there can be orderly and

efficient extensions of municipal services and where major expenditures for

new roads, schools, and other public facilities are not required.

The state enabling legislation for subdivision regulation by municipal

and county governments recognizes as legitimate objects of regulation the

provision of community service facilities, the dedication of parks and

recreational areas, and the reservation of school sites. Similar reasoning

applies to hurricane hazard reduction. Subdivision approval might be

contingent, for instance, on adequate community-wide evacuation capacity, or

the provision of community storm shelters. It seems apparent that a city or

county has the authority to condition its subdivision permits on the provision

of off-site facilities.

4) Planned Unit Development (PU

Planned unit developments combine elements of zoning and subdivision

regulation in permitting flexible design of large- and small-scale

developments which are planned and built as a unit. Specific plans for the

development are required in'advancii and must be approved by the administrative

body. This concept eliminates the lot-by-lot approach common to zoning and

subdivision regulation and can be used as an incentive for better development

by enabling complete development proposals to be planned and approved.

In its simplest form, planned unit development takes the shape of cluster

development. An example might involve a developer with 100 acres of land

which he could divide into 400 quarter-acre lots accordin g to existing local

ordinances. Cluster zoning would give the developer the alternative of

120

clustering units closer together in one part of the site, provided that the

overall number of units does not exceed 400. The open space saved by

clustering is left for the common use of the residents. From this simple

"density transfer," planned unit development builds into complex forms. In

its most advanced stage, planned unit development allows a variety of housing

types as well as commercial, agricultural, and industrial uses. Typically,

developers are permitted to develop under PUD provisions when the proposed

development exceeds a minimum specified number of acres or housing units.

Planned unit developments are usually subject to zoning ordinances, although

they are not actually mapped, and must therefore comply with the use

restrictions within the zones where they occur. Increasingly, however, some

mixing of uses and increases in density are permitted.

The PUD technique provides flexibility because the final design is a

matter of negotiation between the developers and the planning authorities.

PUDs are generally attractive to developers of' large tracts of land. Planned

unit development projects can be provided with urban services and facilities

more economically than conventional development. They also allow

environmental protection of sensitive areas while allowing residential and

commercial development. PUD project design can enhance storm hazard reduction

by, for instance, permitting deviation from normal zoning and subdivision

requirements when the developer's plans incorporate storm hazard reduction

features, such as protective land and vegetation buffers and the provision of
on-site storm shelters.42

42 Robert Burchell (ed.), Planned Utit D!velopment, Rutgers University:
Center for Urban Policy Research, 1972; Robert Burchell (ed.), New Frontiers
of Planned Unit Development: A Synthesiss of ExT)ert Oi)inion, Rutgers
University, 1973.

121

Planned unit deve1opment ordinances are not specifically authorized by

enabling legislation in North Carolina, nor has their validity been tested in

the courts. The use of this technique would probably be upheld as an

extension of the special exception procedure, which is permissible under the

existing enabling legislation. Most recent decisions in other jurisdictions

have upheld the validity of such ordinances. Many North Carolina

municipalities have such ordinances, and specific enabling legislation would
remove doubt as to their validity.43

II. Land and Property Acguisition

The acquisition of land and property, or interests therein, may in many

cases be the most effective approach to reducing the extent of exposure to

storm hazards. Several acquisition approaches are discussed here: 1) fee

simple acquisition of undeveloped land; 2) acquisition of less-than-fee-simple

interests in undeveloped land; and 3) fee simple acquisition or relocation of

existing development.

A. Fee Simple Acguisition of UndeveloRed Land

Fee simple acquisition entails the public's obtaining the full "bundle of

rights" associated with a parcel of real property. With respect to the storm

hazard, acquisition may have several immediate functions. The first is to

secure in public hands high hazard areas, thus in turn preventing the future

exposure of lives and property to storm hazards. On a larger scale public

acquisition of land can serve to influence the direction and timing of growth

43See Patterson, ."Planned Unit Development and North'Carolina Enabling
Legislation," 51 North Carolina Law Review 1455 (1973).

122

and development in a locality. Urban land banking programs, particularly

popular in Europe, have attempted to regulate growth by preventing development

in undesirable locations while strategically releasing other land more
suitable for development.44 On a smaller scale, single parcels of land may be

purchased to prevent the location of certain growth-attracting activities such

as a shopping center, boat marina, or manufacturing complex. Land acquisition

can also be used to secure, in advance, and typically at lower prices, land

that will be needed at some point in the future for public facilities and

services. The primary focus of the following discussion will be on the

acquisition of undeveloped high hazard parcels; as an attempt to reduce the

level of risk to lives and property.

As a basic legal requirement, land acquisition by a local government must

meet the "public purpose" test. Early North Carolina decisions required that

land purchased by a governmental unit meet a narrow "use by the public"
formulation of the public purpose test.45 More recently a broader "public

benefit" application of the public purpose test has been applied in judicial
review.46 The general statutory authority to acquire property or interes-ts in

property is granted to North Carolina counties; and municipalities in N.C.G.S.

��153A-158 and 160A-11, respectively. Specifically, counties and cities may

44See Ann L. Strong, Landbanking: European Reaiity. American Prospect,
Baltimore: Johns Hopkins Press, 1979; Sylvan Kamm, Landbanking: Public Polic
Alternatives and Dilemmas,.Washington, DC: Urban Institute, 1970; Kermit C.
Parsons, Public Land Acguisition for New Communities and the Control of Urban
Growth: Alternative Strategies, Cornell University, Center for Urban
Develo@ ment Research, March 1973.
4 Cozad v. Kanawha Hardwood Co., 139 N.C. 283 (1905).
46State Highway Commission v. Asheville School, Inc., 276 N.C. 556
(1970). See also Note, "Eminent Domain--The Public Use Requirement," 46 North
Carolina Law Review 663 (1968).

123

acquire fee simple or other interests in land in order to acquire open space,
which has been declared a proper public purpose.47 Municipalities in Dare

County have been authorized to buy land for "open space and water access
projects" by special community service facility fee legislation.48

The use of fee simple acquisition as a hazard mitigation technique poses

a number of practical if not legal questions. Perhaps the most significant

problem for coastal localities is the cost and means of financing

acquisitions.. Outright purchase of land in coastal areas experiencing

moderate or high levels of market demand will tend to be very expensive--

prohibitively so for most localities. The purchase of already-improved land

will be even more expensive, although damaged properties purchased in the

aftermath of a storm may reduce these expenses substantially. The locality

must be prepared, however, to take advantage of "bargain salesn after the

storm, when some property owners may wish to vacate the hazard area. It may

also be possible to obtain reduced acquisitions costs through the use of

eminent domain authority.

The expenses associated with fee simple acquisition can be reduced in a

number of other ways besides waiting for a post-disaster bargain. First, a

locality may seek to acquire land several years in advance of development,

when its current market value is relatively low. This form of "land banking"

enables local governments to preserve the most suitable sites for public use

and to avoid paying inflated prices for land needed for public facilities. It

47N.C.G.S. �401 et seg In addition, municipalities are authorized to
purchase property in fulfillment of urban development and growth management
policies under N.C.G.S. �160A-457, which authorizes cities to acquire property
by voluntary purchase for historic preservation, for the beautification of
urban land, for sound community development and growth, for scenic area
conservation, and for other growth management oriented purposes.
48Chapter 536, 1985 Session Laws.

124

also provides advance notice of where public facilities are to located, which

can influence the location of private development. Courts have generally

supported cities' right to acquire land in advance of need. Condemnation for
a future use was upheld by the United States Supreme Court in 1923.49 In

North Carolina, there is no specific enabling legislation for advance site

acquisition, but the concept does receive support from statutes which allow

the reservation of school sites in accordance with a comprehensive land use
plan as part of a subdivision regulation ordinance.50 Advance site

acquisition for other purposes has never been directly challenged in North
Carolina courts, but has received some judicial support.51

Official mapping is another technique for keeping acquisition costs down.

An official map is a legislatively adopted map which reflects a municipality's

decision to locate streets, parks, and other -public facilities at the places

marked and to acquire the property for the facilities. The map is implemented

by a prohibition against improvements in areas earmarked for acquisition and

may be enforced by injunctive relief and denial of the rights to compensation

for unauthorized improvements, though there is generally a variance procedure.

This technique can significantly reduce a municipality's expenditure for land

acquisition by suppressing rising development expectations which lead to

higher market values for the earmarked-parcels. North Carolina enabling

legislation does not expressly authorize-the -use of official mapping; however,

49Rindge v. Los Angeles County, 262 U.S. 700 (1923).
50N.C.G.S. �160A-373 (cities), �153A-331 (counties).
5lVance County v. Royster, 271 N.C. 53 (1967), upheld the condemnation of
land for construction of a public airport. The holding stated that it is
immaterial that only a small segment of the public will be likely to make
actual use of the airport in the immediate future, since the airport is
necessary for projected future demands.

125

the use of mapping and land reservation is authorized in conjunction with
subdivision regulation for school sites.52

The costs of fee simple acquisition might also be reduced through the use

of preemption of "right of first refusal." This mechanism would essentially

allow the local government to insert itself in the place of a property buyer

in any local land transaction. In other words, the locality would

automatically be in a position to oversee all land transactions and to spend

its limited resources in acquiring only those lands which are truly threatened

by development (actually in the process of being sold for development uses).

This technique has been used extensively in France and by the State of Oregon,

but would probably require enabling legislation before it could be implemented

in North Carolina.

Another method for reducing acquisition costs is to purchase properties

and resell them with restrictive covenants attached. Placing publicly owned

land back into private hands, where possible, may do much to reduce the

overall costs of the transaction while the covenant maintains restrictions on

the use of the land. However, localities which acquire land should examine

other public goals and objectives, such as parkland and recreation, before

disposing of parcels acquired to reduce storm hazard exposure.

Acquisition costs may also be reduced by taking advantage of all

available outside funding sources, especially state and federal government

grants. Historically, where acquisition has been used most extensively as a

mitigation tool, there has been substantial federal and state financial
contribution.53 For instance, �1362 of the Federal Disaster Assistance Act

52N.C.G.S. �160A-372 (cities); N.C.G.S. �153A-331 ("counties).
53jon A. Kusler, Floodplain Acquisition: Issues and Options in
Strengthenina Federal Policy, Washington, DC: U.S. Water Resources Council,
October 1979.

126

provides for federal funds for the purchase of federally-insured properties

damaged by a storm, under certain conditions and subject to funding

constraints. A locality may also be able to coordinate its acquisition

efforts with private organizations, such as the Nature Conservancy and the

Trust for Public Land, that are actively involved in land acquisition for

conservation. These organizations are often better able to undertake

extensive acquisition programs than are single jurisdictions of local

government. Although their acquisition decisions are typically based on non-

hazard objectives, a community may be able to influence these private

conservation purchases in several ways. This may be done, for instance,

simply by better communicating the local I;over-.ment perception of what

acquisitions will be in the public interest or by convincing the private group

that purchasing parcels in hazard areas will serve multiple social objectives.

The locality may also be able to negotiate a cost-sharing arrangement, in

which the local government, through some form of financial contribution, is

entitled to share in specific decisions concer-ning acquisition or management

of land.

Even when acquisition costs can be kept down through one of the above

methods, the community must address the issue of how to finance the inevitable

local expenses involved in acquisition. The direct approach is simply to

finance these expenses through general revenue funds, but of course either

local taxes must be raised,, or funds diverted from other local needs, to pay

for acquisition costs. Because acquisition of hazardous lands reduces overall

or community-wide damage exposure and potential consequent legal liability, it

can be argued that general revenue financing makes sense from an equity point
of view. Alternatively,'the funds could 'be raised by special means, including

the collection of an impact fee from new development or through special

127

district levies and assessments. Both of these methods are discussed in

Section III (b) below.

B. Purchase of Developmelit Rights/Donation of Easements

Where the fee simple purchase of hazardous lands is, for various reasons,

not feasible, a locality may consider the purchase of less-than-fee-simple

interests in land. One such approach is to acquire the rights to develop

high-hazard parcels. Under this arrangement, a local government would pay the

landowner the fair market value of the development right in exchange for

agreeing to leave the land in an undeveloped state for a specified period of

time, but often in perpetuity. The transaction is usually accomplished

through a restrictive covenant which runs with the property. Throughout this

section we will refer to this technique as the Purchase of Development Rights

(PDR).

PDR is equivalent in legal terms to the community acquiring a negative

easement over a property, a property right which forbids the landowner from

making certain uses of his land. The Historic Preservation and Conservation
Agreements Act of 197954 facilitates the use of negative easements by

municipalities and private non-profit organizations for the protection of

special lands. The statute applies to agreements for the preservation of

historic structures and to agreements to retain land substantially in its

natural condition foragricultural, forestry, outdoor recreation, or natural

uses. The Act states that "[njo conservation or preservation agreement shall

be unenforceable because of 1) lack of privity of estate or contract, or 2)

lack of benefit to particular land or person, or 3) the assignability of the

14N.C.G.S. �121-34 et seg.

128

benefit to another holder..."55 The statute recognizes conservation

agreements as interests in land and makes such agreements enforceable by the

holder by injunction or by other equitable, remedy. Property subject to PDR

agreements is to be assessed on the basis of the true value of the property,

reflecting the reduction in value caused by the loss of the land's development

rights.

As with fee simple acquisition, the legal status is clear, but a number

of immediate practical questions arise. First,, in what manner are development

rights to be acquired? Does the jurisdiction use its powers of eminent

domain, or instead simply bargain for them on the open market, acquiring

deve lopment rights only from those who wish to sell them? This question may

have significant implications for the ability of PDR to protect large blocks

of high hazard land. For instance, relying on voluntary sales may permit

substantial development in an otherwise undeveloped high hazard area, or it

may do little more than shift new development from some parcels to other

parcels within the hazard area. Through the use of eminent domain over the

entire area, this potential "checkerboard effect" may be prevented.

There is, as well, the question of exactly what development rights are

being purchased by a locality. Clearly, extensive residential development

should be precluded, but should this inclUde private recreational uses and

developments which do not place substantial amounts of public and private

property at risk? The greater the economic use which remains for the property

owner, the greater will be the parcel's remaining fair market value, and the

less costly will be the development rights purchase. Exactly what uses are

permitted after development rights have been purchased may also influence

55N.C.G.S. �121-38.

129

overall property at risk in other areas. For instance, if private

recreational activities are permitted in PDR circumstances, this may in turn

induce further residential and other development in adjacent areas where

development rights have not been purchased. These types of development

influences and side effects should be considered when defining the rights to

be purchased and the types of uses and activities that will be permitted.

While a leading reason for preferring development rights acquisition over

fee simple acquisition is that public expense will be less, PDR may still be a

very expensive mitigation approach. In areas where market demand for

developed uses is high, the purchasing of a development right will constitute
the major portion of the parcel's fair market value.56 Because of this fact,

PDR may be no more financially feasible than fee simple acquisition. A

locality can, however, investigate alternative techniques for keeping down the

costs of PDR. For instance, the Maryland Agricultural Land Foundation, a

state-funded agency which purchases development rights from farmers, seeks to

get the most from its limited funding by giving preference to parcels where

the following ratio is the highest: (development rights (easement) value -
asking price] / development rights value-57 Under this arrangement farmers

wishing to sell their development rights submit bids to the state foundation,

which in turn gives preference to high value parcels with low sale prices. A

similar procedure might be applied in coastal communities. A jurisdiction

might designate a general area of high storm hazard from which it will accept

56Robert E. Coughlin and Thomas Plaut, "Less-Than-Fee Acquisition for the
Preservation of Open Space: Does It Work?" AIF Journal, October 1978.
570wen J. Furuseth and John T. Pierce, Agricultural Land in an Urba
Society, American Association of Geographers, 1982; C.A. Nielson,
Preservation of Maryland Farmland: A Current Assessment'," 3 Univ. o
Baltimore L. Rev. 429 (1979).

130

bids for development rights sales--in turn maximizing local monies by

purchasing those rights which consist of the "best deals." A system could

also be developed by which to evaluate the extent of relative storm hazard for

each parcel (e.g., distance from the ocean) and then incorporating this

information into the evaluation procedure! so as to get the largest hazard

reduction for the dollar.

The period of time for which development rights are purchased will also

have significance for the cost of a PDR program. The Maryland program

requires that development be restricted for a minimum of 25 years. A shorter

period of time may serve the needs of the locality (in directing growth to

certain areas) and preserve for the landowner a greater portion of the market

value of the land, thus*reducing the overall cost of development rights to the

local government. In other words, instead of purchasing the development

rights in perpetuity, the locality may find it more economically efficient to

"lease" them for shorter periods of time,,

PDR can be used effectively in collaboration with development regulation.

On the one hand, restricting development in a particularly hazardous area of

the jurisdiction may prevent the checkerboard effect that sometimes results

from a voluntary PDR. In turn, PDR may serve to soften the economic effects

of. e.-vilopment regulations and reduce as well the political oppositions

typically engendered by regulatory progr;uns.

While not widely used, the prime ex4imple of PDR has been in protecting
farmland. *Suffolk County, New York, King County, Washington, and the State of
Connecticut have used the PDR concept to protect farmland,58 and a PDR program

58MYrl E. Duncan, "Toward a Theory of Broad-based Planning for the
Preservation of Agricultural Land," 24 liat'l Res. J. 61 (1984).

131

has recently been proposed for Forsyth County, North Carolina.59 Under this

proposal the county would spend $1 million each year to purchase development

rights to prime farmland in the county. These lands could not be developed

for at least 25 years. At the end of this period, the landowner would be

given the option of buying back the development rights at their new current

market value. As currently proposed this program would be completely

voluntary.

As an alternative to the purchase of development rights, a locality might

investigate encouraging the donation of scenic or conservation easements.

Landowners can be encouraged to make such donation in large part because of

the income tax deductions permissible under �170 of the Internal Revenue Code.

For easements to qualify as charitable deductions, the development

restrictions must run with the land in perpetuity and bind all subsequent

owners.. Under regulations promulgated in 1980, the IRS is now required to

make a determination that the easement "will yield a significant public

benefit." This does not appear, however, to be a significant impediment to

receiving the federal charitable deduction. In addition, Chapter 793 of the

1983 North Carolina Session Laws encourages the donation of easement interests

in real property, or the donation of fee simple interests, to state or local

governments. This new law allows' state tax credits for certain conservation

donations.

The locality can take either an active or a passive role in soliciting

easement donations. It may, for example, actively search out and encourage

these donations by landowners in hazard areas. By contrast it may simply

59Cyril Zaneski, "Preserving Farmland: County Questions Proposal for
Slowing Urban Sprawl," Winston-Salem Journal, January 29, 1984.

132

await landowner's voluntary offers of easement donations. In either case, the

jurisdiction must carefully evaluate the significance of each easement

donation for local storm hazard mitigation. Accepting easements located in

the wrong places simply because they are free may do more harm than good in

the long run. Perpetual negative easements may lock the locality into land

use and development patterns that it may later find inappropriate or

undesirable. In the case of extreme coastal hazard areas, this is unlikely to

be a significant problem, but in certain situations it may prove to be an

important consideration.

If an easement is accepted, the jurisdiction and donating party should

seek a clear understanding of the precise restrictions which will be applied

to the use of the land. Experiences of the U.S. Park Service and others with

easements indicates that substantial difficulties can arise where
misunderstandings about easement restrictions exist.60 This possibility

highlights the importance of educating liLndorAn-iers about easement restrictions

both at the initial time of donation and during any subsequent sale or

transfer of the land. The locality should ensure that the instrument granting

the easement is immediately recorded in the county land records so that

subsequent purchasers or creditors are placed on notice and the community's

easement rights are protected. These rights should include specific, positive

rig hts of entry in order to facilitate public inspection and ensure compliance

with easement provisions. Administrative processes need to be devised to

detect these violations at an early pdint.

60Coughlin and Plaut, "Less-Than-Fee Acquisition for the Preservation of
Open Space: Does It Work?" AIP Journal, October 1978.

133

C. Transfer of Development Rights

One potentially effective approach to reducing the amount of property

subject to coastal storm hazards is to permit the transfer of development

rights from a high storm hazard zone to a non-hazard or "safe" zone in another
part of the jurisdiction.61 The transfer of development rights (TDR) is an

innovative approach to development management which is being used in only a

few cases in the country. The basic concept underlying TDR is that ownership

of land includes a right to develop the land, a right which may be separated

from other ownership rights and transferred to someone else. For example,

under a TDR system, an owner can sell this development right to another

property owner who under the system must collect a specified number of

development rights before developing his or her property at a desired density.

There is considerable variation in the goals sought to be achieved and in the

procedure used to administer transfer of development rights systems; the

system has been used for historic preservation, farmland, and open space

preservation, as well as managing growth.

Commentators have theorized that the use of TDR can substantially

eliminate the value shifts and inequities of zoning by allowing the market to

compensate owners who under a normal zoning scheme would have the development
potential of their land restricted with no compensation.62 Transferable

6lSee generally O.M. Carmichael, mTransferable Development Rights as a
Basis for Land Use Coxitrol," 2 Fla. St. L. Rev. 35 (1974); John Costonis,
"Development Rights Transfer: An Exploratory Essay," 83 Yale L. J. 75 (1973);
Jerome G. Rose, "The Transfer of Development Rights: A Preview of an Evolving
Concept," 3 Real Estate Law Journal 331 (1975); Rose, Transfer of Development
Rights, New Brunswick, NJ: Center for Urban Policy Research, Rutgers
University, 1975.
62For further discussion, see Rose, "Transfer of Development Rights: A
Preview of an Evolving Concept," 3 Real Estate Law Journal 331 (1975); and
Merriam, "Making TD'R Work," 56 N. C. L. Rev. 77 (1978).

134

development rights have not been used in North Carolina, and enabling

legislation would probably be necessary in order to implement a TDR system.

However, because of the publicity TDRs haire received elsewhere, an explanation

of the concept should prove informative. First, a TDR system could be either

voluntary or mandatory. Under the latter:, a locality would simply zone the

storm hazard area so that fewer units of development are allowed (or prohibit

new development entirely), and the owner of land within this zone would then

be permitted to transfer all or some of this unused development density to

parcels in designated safe areas or to sell the TDRs on the open market to

others who own land in areas designated for development. The locality would

then permit increased levels of development in the "safe n zone as a result of

possessing extra development rights, thus creating a natural market for

transferable development rights. A voluntary approach would simply present

the transfer as an additional option for the landowner--a way of maintaining

the land in its undeveloped use if the landowner wishes. The landowner in

this case would still have the option of developing his land or selling it for

development purchases.

The TDR approach raises a number of sticky practical issues. First,

there are several alternative institutional arrangements for operating a TDR

program. On one hand, the transfer of development rights can be left entirely

to market dynamics, with the locality only involved in designating "sending"

and "receiving" zones and determining the number of rights to be allocated.

Whethe.r a selling landowner receives a fair price for his rights will depend

simply on what the market will provide. While there are policy decisions

which must be made in the initial allocation of rights, the local government.

adopts an essentially hands-off stance once the system is created. An

alternative institutional structure would have the jurisdiction play a more

135

direct and active role in the development rights transaction itself, perhaps

serving as a broker--buying and selling rights as needed. This in turn helps

to ensure that an adequate price is obtained, thereby overcoming short-term

market fluctuations. While the latter approach would permit greater control

over the price and quantity of rights sold, it would also require greater

government expense and oversight. An intermediate position might permit the

local government to enter the market at occasional critical points while

leaving the bulk of development rights transfers to the dynamics of the local

market.

Another initial difficulty is devising a methodology for assigning

rights. They might be allocated strictly according to acreage (e.g., one

right per acre) or according to the market value of the property. Eventually

the question will arise as to whether additional rights should be allocated.

If new supplies of development rights are needed, a practical and fair

procedure for allocating additional TDRs must be devised.

The locality must also decide how rights transferred from hurricane-prone

sites can be used. If a developer purchases ten development rights from land

in a high hazard area and seeks to apply them in a less hazardous receiving

zone, what rights is he or she entitled to? Each additional TDR, for example,

might translate into a certain amount of additional floorspace or square

footage allowed in the receiving zone. In the case of residential

development, these additions may be measured in terms of additional dwelling

units'or bedrooms.

The use of TDRs can also be viewed as a form of compensation when

restrictions are placed on development in storm hazard areas. For instance,

although an oceanfront landowner may be prevented from developing his land (by

an open space or recreational zoning classification), he or she may be able to

136

realize a portion of its development potential by transferring allocated

development rights to areas of the jurisdiction less susceptible to storm

hazards. Viewing TDR as primarily a form of compensation raises several

questions; chief among them is the extent of compensation deemed to be

desirable or equitable. At what point will the market value of a development

right be unacceptably low as a form of compensation? If full or substantial

compensation is a goal, this may require a more active role for government in

the development rights market, say, by entering the market to buy rights at

times when demand is low.

A large-scale TDR program requires extensive information and knowledge

about local market conditions and land development trends, and this can

represent a major limitation. How large, for example, should the receiving

zone be, and by how much should the locality raise permissible densities, to

ensure an adequate demand for development rights? How readily will landowners

in sending zones sell their development rights and under what conditions? One

reasonable approach to these empirical limitations is to develop a modest TDR

pilot program, with relatively small receiving and sending zones which can be

monitored closely over time.

III. Taxation and Fiscal Incentives

The specific mitigation provisions included in this broad category are

designed primarily to affect indirectly the use of hazardous parcels and the

quantity and type of development to occur in storm hazard zones. In contrast
to the public acquisition of storm-prone 'Lands, a taxation policy might seek

to reduce development by decreasing the holding costs of open space and vacant
land, in turn reducing the opportunity cost .s of not developing such lands for

137

more Intensive uses. While taxation and fiscal policy can encompass numerous

specific tools and mechanisms, primarily attention is focused on differential

property taxation and special assessments and impact fees.

A. Diffegential TaLcatio

The use of differential taxation is based on the theory that, by reducing

the property tax burden on undeveloped parcels of land, pressures to convert

the parcels to more intensive uses will be reduced by decreasing holding costs

and increasing the profitability of current uses. Almost every state now has
a provision for some form of preferential assessment.63 The uses which are

typically eligible for property tax relief are farm and forestland, open

space, and recreational uses. These are all uses which could occur in coastal

high hazard areas and by their presence reduce the amount of property and

people exposed to the storm threat.

Three basic variations of differential assessment are currently in use:
pure preferential assessment, deferred taxation, and restrictive agreements.64

Under the first type of program, preferred land uses are assessed for local

property tax purposes not at their fair market value (i.e., the potential

development value), but rather at their value in their current uses. If the

land is in farmland, for instance, it is assessed according to its

agricultural use value, usually based on a state-determined capitalization

formula. If the benefitted landowner decides after several years of receiving

63Robert Coughlin and John Keene (eds.), The Protection of Farmland:
Reference Guidebook for State and Lgcal Governments, USGPO, 1981; John Keene,
et al., Untaxing Open Space, Washington, DC: Council on Environmental Quality,
1976.
64Keene, Untaxin& Open Space, Washington, DC: Council on Environmental
Quality 1976.

138

the lower assessment that he wishes to develop his land, he is still permitted

to do so, without having to repay the property taxes foregone as a result of

the use-value assessment. In contrast to this pure approach is that of

deferred taxation. The difference here is that the landowner changing the use

of his land is required to repay a portion of the tax benefits he has

received. However, the recapture period is typically not very long, with five

years perhaps the average. In addition, most states using this approach

require the landowner to pay interest on the -recaptured fund, usually at a

below-market rate. A third approach, the use of restrictive agreements, is
best exemplified by California's Williamson &ct.65 Here, in order for

qualifying landowners to obtain lower twx assessments, they must be willing to

enter into written agreements to keep their land in its current use for a

minimum period of ten years. This contract is a "rolling-front" agreement

which is self-renewing each year unless the landowner explicitly notifies the

locality of an intention to change the use. There are also provisions which
permit the landowner to break his contract subject to certain penalties.66

Legislation permitting preferential assessment of farmland and forestland
has been enacted in North Carolina.67 Since preferential assessment may

provide a haven for the land speculator who holds farmland or forestland at a

lower interim cost while waiting for the land. to appreciate, North Carolina

uses a deferred taxation system to increase the likelihood that the tax will

65
Gustafson and Wallace, "Differential Assessment as Land Use Policy,"
of the American Institute of Planners, 1975.
OoSee Coughlin et al., Saving the Garden: The Preservation of Farmland
and Other Environmentally Valuable Landlcape., Philadelphia: Regional Science
Research Institute, 1977.
67N.C.G.S. �105-277.2 et seg.

139

have the effect of permanently holding the land out of development. Under

this deferred taxation policy, the land is taxed at use-value assessment until

the land is converted to a non-agricultural use, when the difference between

the amount paid under the use-value assessment and the amount that would have

been due under a market value assessment, for the past five years, becomes

due. Under this provision, only commercial farm and forest land is eligible

for preferential assessment, but N.C.G.S. �105-278 provides a separate tax

break for historic properties, which are assessed at 50% of market value.

While differential taxation has been used in most states as a technique

to preserve farmland, its effectiveness at retaining land in undeveloped uses
is generally found to be low.68 Preferential assessment may indeed reduce

holding costs somewhat or even substantially, but in the-face of high market

prices, and thus high opportunity costs of maintaining land in open space, the

69
pressures to develop will generally far outweigh the tax incentives.

Consequently, differential assessment is likely to be most successful in

situations where development pressures are slight to moderate and where

landowners are actively interested in maintaining the present undeveloped use

of the land.

Differential assessment will also be a more effective tool at reducing

development of hazardous sites when used in collaboration with other

68See Henke, "Preferential Property Tax Treatment for Farmland," 53
Oregon L. Rev. 117 (1974); Keene et al., Untaxing Open Space, Washington, DC:
Council on Environmental Quality, 1976; Coughlin et al., Saying the Garden:
-The Preservation of Farmland and Other Environmentally Valuable LandscaRes,
Philadelphia: Regional Science Research Institute, 1977; Coughlin and Keene
(eds.), The Protection of Farmland: A-Reference Guidebook for State and Local
Governments, Washington: USGPO, 1981.
b9J.H. Dressler, "Agricultural Land Preservation in California: Time For
a New View," 8 Ecol, L. 0.& 303 (1979); Myrl E. Duncan, "Toward a Theory of
Broad-based Planning for the Preservation of Agricultural Land," 24 Nat'l Res.
J. 61 (1984).

140

approaches, such as the regulation of new development, the fee simple purchase

of land, and the transfer of development rights. For instance, reducing the

permissible development density in a hazard location together with

preferential assessment may reduce opportunity costs to the landowner enough

to reduce actual conversion of hazard lands to developed uses.

To maximize the effects of these tax benefits, a locality could consider

establishing mechanisms for funneling tax benefits to those lands with the

greatest hazard reduction potential. This might entail, for example, the

reduction of local assessments/rates of taxation in excess of what is provided

under uniform state differential assessment provisions, thus providing greater

tax benefits for parcels of open space, forest, and farmland which are

designated as particularly hurricane-prone. These additional tax benefits

would be tied directly to the zones delineated on hazard boundary maps.

Obviously, this particularized approach would require state enabling
legislation. B. Special Assessments and. ImRact Fees

People who build in and inhabit coastal hazard areas often impose

substantially greater costs on the public than those who dwell elsewhere.

These costs are realized when a hurricane or coastal storm strikes or

threatens to strike a locality. As mentioned in Chapter 2, there are public

cos ts of evacuation, search and rescue, temporary housing, debris clearance,

and the reconstruction of public facilities such as roads, utilities, water

and sewer Iines, and so on. One public policy approach is to acknowledge that

additional public expenses will be entailed by permitting development in

hazardous areas and to assess those who will ultimately benefit from the

expenditures. This approach can be accomplished through several means.

141

One technique is to attempt to tie more closely benefits received and

costs incurred through the use of special benefit assessments. A special

assessment, while not technically a tax, is a method of raising revenue in

which all or part of the cost of a facility (such as a road improvement,

sewer, or water system) is charged to a property owner who is so situated in

relation to the facility as to derive a special benefit from the improvement.-

The tax charged each property owner is usually proportionate to the frontage

along which the facility abuts his property, the area of the land served by

the improvement, or the value added to the land served by the project.

Special assessments are typically confined to a geographical district in which

property owners are determined to recleive a direct and substantial benefit in
excess of the general benefits received by the public at large-70 N.C.G.S.

70Donald Hagman and Dean Misczynski, Windfalls for 'Wipeouts: Land Value
Capture and Compensation, Chicago: ASPO, 1978.
n n

142

��160A-217 to 236 grant cities the authority to levy special assessments and

govern the exercise of the authority. Litigation attacking special
assessments is usually based upon procedural grounds.71 Challenges to special

assessments face little chance of success unless the plaintiff can show that
the improvement does not confer a special benefit on the assessed property.72

Applying the special assessment concept to storm hazard management, a

locality would thereby designate an area in which "special storm services" are

provided, and in which residents would be subject to the special assessment.

This approach raises a number of issues. The first is how the extent of the

special assessment is determined and justified. Imposing a special assessment

may require a number of assumptions, and rather rough estimates, about exactly

what public costs are associated with an actual or potential hurricane. The

magnitude of these costs will, of course, depend on the assumed size and

severity of the storm event, among other things. It would also be difficult

to determine what "special storm services" would be needed, upon whom the

special assessment should be levied, and upon what basis the assessment is

calculated, an ad valorem property tax or a levy on the number of dwelling

units.

A variation on the theme of requiring private parties who impose public

costs to pay for them is the im-pact fee. IMPaLCt fees are becoming very

popular with local governments in North Carolina and around the country. In

theory, the impact fee levy is designed to recoup and mitigate the overall

"impacts" of a project or development Gn the community at large--impacts that

7lSee Broadway v. City of Asheboro, 250 N.C. 232 (1959).
72See Southern Railway v, City of Raleigti, 9 N.C. A p. 305 (1970), and
City of Raleigh v. Mercer, 271 N.C. 114 (1967).

143

may extend beyond the immediate environs and requirements of a discrete

project or development. For instance, while a special assessment may be

levied to cover the immediate costs associated with the floodproofing of sewer

and water service, an impact fee would cover broader and more diffuse

consequences of development in a hazardous area, less clearly related to

services or benefits received directly by a specific site or development. An

impact fee is not designed to cover the costs of a specific improvement by

which a particular development will reap a special benefit, but is designed to

require the developer (and future residents who purchase these properties) to

compensate the public for the additional costs of these consequences.

The impact fee may be instituted as a separate instrument, or more

typically attached to the exactions process during development review and

73
approval. In some states, the impact fee may also represent a way of

getting around legislative and court-imposed limitations on the extent of

exactions permissible (e.g., restricted to the installation of roads, sewers,

and other facilities, or the donation of open space, school sites, and other
land).74 In North Carolina, however, impact fees are considered beyond the

authority of a local government to impose without specific enabling

legislation, which in turn restricts the purposes and extent to which impact

fees may be assessed. For instance, the municipalities of Dare County (Kill

Devil Hills, Kitty Hawk, Manteo, Nags Head, and Southern Shores) have been

authorized to impose,"facility fees" on new development to recover the capital

costs of community service facilities. "Community service facilities" have

73Hagman and Misczynski, Windfalls for Wipeouts, Chicago: ASPO, 1978.
74Nancy Stroud, "Impact Taxes: The Opportunity in North Carolina,"
Carolina Planning, Fall 1978.

144

been defined narrowly: only "streets and drainage projects, open space and

water access projects, emergency refuge shelters and fire department capital

improvements" qualify, and the amount of the fees must be directly related to
the specific, quantified additional costs of the new development.75 if

authorized, however, the impact fee's promise of a formal procedure for

calculating and assessing impacts may present a greater level of certainty for

developers than currently exists under the highly negotiated exaction process.

Adjusting the expectations of the development community and creating a

relatively clear and consistent set of public storm safety obligations may

well be an important local objective.

IV, CaRital Facilities and Public Infrastructure Policy.

Coastal development--its type, location, density, and timing--is highly

influenced by capital facilities such as roads, sewer, and water services.

Such public investments have been aptly -termed "growth shapers." In this

section we will briefly review the potential role to be played by the

location, type, and timing of capital facilities in reducing local storm

hazards. Issues relating to the financing of these facilities have been

discussed in a general way in the taxation and financial incentives section

above. The use of particular pricing policies may also significantly affect

patterns of development, but this strategy is not discussed here.

75Chapter 536, 1985 Session Laws. See also Chapter 488, 1985 Session
Laws, allowing the city of Raleigh to impose impact fees to purchase open
space and drainage improvements.

145

.'r-Policies to Prevent Location oL_Pj@@lic Facilities in Hiah Risk Areas

There are two primary dimensions of capital facilities which have

implications for local storm hazard management; one is geographical--where

capital facilities are placed, and the other is temporal--when they are put in
place.76 With respect to the first dimension, a locality can develop an

explicit set of capital facilities extension policies designed to avoid high

hazard areas, thus reducing the amount of development and property which will

be attracted to the area and reducing the potential threats to lives and

property. This approach can only become an effective deterrent, however, if

development in high hazard areas is dependent upon (or deems highly

attractive) the existence of public facilities. If, as is often the case in

resort areas, coastal development is able to obtain water through individual

site wells and dispose of wastewater through septic tanks, a reorienting of

sewer and water facilities by the locality will do little to impede growth in

hazardous zones. It may then be necessary for the locality to foreclose other

service/facility options available to developers by restricting the issuance

of septic tank permits, for example. But without valid health reasons,

foreclosing such alternative options for development may be legally

problematic.

Utility extension policy, in and of itself, is only subject to legal

challenge if it fails to meet the procedural requirements of the Local

Government Finance Chapter (Chapter 159) of the North Carolina General

Statutes. The use of public infrastructure policy in order to restrict or

76See Michael Nugent, "Water and Sewer Extension Policies as a Technique
for Guiding Development," 2 Carolina-Planning, Winter 1976.

146

direct the growth of a city, however, may be subject to a variety of

challenges. Within the city limits, a city may be required to provide equal
service to all its residents, once it provides a service to any of them.77

The city may extend utility services beyond the city limits, but only within
reasonable limits and for the public benefit.78 The city, when considering

the extension of services beyond its limits, must consider the amount of

territory to be serviced, its distance from the city, and the effect that

extension will have on customers' rates and the city's capital debt
structure.79 If the city extends services beyond the city limits, it has some

discretionary power to condition the provision of the services. The agreement

to provide extraterritorial services is contraLCtual in nature, subject to the

usual rules of bargain and contract. Rates may be higher for extraterritorial

customers.

Redirecting capital facilities, and the development which accompanies

them, into "safer" areas of the locality can be facilitated through several

means. One is the clear delineation of an urban services area or district in

which the jurisdiction agrees to provide certain facilities or services. The

service district might also entail a temporal dimension, for example,

including sufficient land to accommodate ten or twenty years of future growth

under various assumptions.

The urban services area technique has several advantages. It provides a

long-term perspective on growth and development and permits developers,

residents, and the local government to visualize where and when public

77Fulaham v. Town of Selma, 238 N.C,. 100 (1953); Abbott v. Town of
Highlands, 52 N.C. App. 69 (1981).
"Town of Grimesland v, City of Washingt(2n, 234 N.C 117 (1952).
79Public Service Co. of North Carolina v. City of Shelby, 252 N.C. 816
(1960).

147

facilities will become available in the future, and where they cannot be

expected. This, in effect, modifies long-term expectations about where future

development will and will not be acceptable to the community. Development

pressures may tend to shift naturally as a result of this public designation,

as developers, landowners, and others realize that certain facilities will not

be made avai-.able.outside the designated areas. However, restriction of

public facilities, which curtails the overall amount of development which can

take place in a community, may raise suspicions of "no growth" objectives.

Consequently, the local government should make a good faith effort to

designate a service area in "safer n parts of the locality which are sufficient

to satisfy growth demands, so as to enhance the political and legal

acceptability of the urban service area approach.

In more intermediate terms, the locality needs a policy instrument by

which to systematically identify, finance, and sequence specific capital

improvements. This is generally the function of a capital improvement program

(CIP). Ideally, the CIP follows closely designated service boundaries, as

well as the comprehensive plan, zoning, and other regulatory and planning.

provisions. The CIP provides a specific framework for making short-term

(annual) decisions about which improvements to make and where. Avoidance of

storm hazard areas can easily be incorporated into this instrument and

decision framework as a specific CIP policy.

A close connection between the designation of service areas, the capital

improvement program, and the overall planning process (including the local

comprehensive plan) in a jurisdiction is essential. Such a close functional

linkage will tend to enhance the combined effectiveness of each policy or

technique in advancing overall local objectives and will emphasize their legal

authority. From a practical standpoint, the concept of guiding growth through

148

capital facilities should be closely linked to the objective of reducing the

public costs of such facilities and the extent of public investment at risk in

high storm hazard areas. The latter constderation is, by itself, a legitimate

argument for denying facility extension into hazard areas and provides a sound
legal rationale for a hazard-sensitive capital facilities extension policy.80

Several recent hurricane hazard mitigation planning efforts illustrate

the potential role of capital facilities in guiding growth into less hazardous

areas. The recent Surf City, North Carolina, hurricane hazard mitigation plan

suggests the use of sewer service extensions as a means to divert growth to

less hazardous areas of the locality:

The Town should actively encourage development in the southern section of
the town. Specifically, it is the area where future high density
development should be concentrated. Additionally, if an actual sewer
system is developed in the near future, it should be designed to serve
these areas rather than another section of the community where 81
development in hazard areas would be encouraged by such a system.

The hurricane hazard mitigation and reconstruction plan for the town of

Nags Head contains similar recommendations, particularly in an attempt to

discourage further growth in an incipient inlet area:

In the short term, the Town will explore the possibility of limiting
future water service extension in the largely undeveloped area in the
Whalebone incipient inlet area. While this does not preclude future
growth, it ensures that the town will not: be a willing participant in
placing property at risk.82

80Nugent, "Water and Sewer Extension.Policies as a Technique for Guiding
Develo ment," 2 Carolina Plannin , Winter, 1976.
8TTown of Surf City, North Carolina, Hurricane Evacuation. Hazard
Mitization. and Post-Disaster Reconstruc:ion Ila , prepared by George Eichler
and Associates, 1984, p. 13.
82Town of Nags Head, N.C., Hurricane HaZLrd Mitigation and Post-Storm
Reconstruction Plan, prepared by Coastal Resources Collaborative, Inc., 1984,
p.57.

149

It should be remembered that public investments encompass more than

sewers and roads, and include numerous structures and buildings from town

halls to schools to police and fire stations. Again, it may be possible to

locate these investments in areas which are less susceptible to storm forces,

in turn serving to reduce the quantity of actual public property at risk and

discouraging the location of other private development. By locating public

structures in specific strategic location, and by constructing them to certain

specifications, it may be possible to use them as storm shelters.

B. Relocation or Strengthening CaRital Investments After the Storm

Opportunities may exist after a storm has occurred to implement a

community's capital facilities objectives. It may be possible, if the

facilities are sufficiently damaged, that roads and sewers can be rebuilt in

areas which are less susceptible to damage from the next storm. Even if the

facilities are not relocated, they may be repaired and reconstructed in ways

which make them stronger or less susceptible to storm forces. Roads and

sewers can be elevated, for instance, and sewer and water lines can be

floodproofed. Also, placing power and telephone lines underground after the

storm will help ensure safer evacuation when the next storm threatens.

It may be possible as well that public facilities can be reconstructed in

ways that not only reduce the possibility of their own damage but which reduce

other storm-related hazards. As before, the presence of certain public

facilities will influence development patterns. If certain facility repairs

are not permitted to occur after a storm has hit, this may preclude or

discourage the private redevelopment of this area. This technique was used
subtly in the Baytown, Texas, case.83 The option of selling out and leaving.

83
See Baytown, Texas, Hazard Mitigation/Post-Disaster Policies, Appendix

150

the Brownwood Subdivision was made much more attractive to homeowners because

they were uncertain that sewers and roads would be restored or maintained.

A similar approach might be taken with the rebuilding or reconstruction

of damaged public buildings such as town halls and fire stations. If

sufficiently damaged, it may be logical to move these structures to safer

sites in the community. After Hurricane Camille, for instance, the Pass

Christian Town Hall was rebuilt on higher ground, and consequently much more

protected from future storm damage than it would have been if rebuilt in the

same location. When structures are not relocated, it may be possible to

repair or rebuild them in ways that reduce their susceptibility to future

storm damage, such as through elevation. It may be desirable as well to

rebuild public structures in ways which permit their usage as storm shelters.

V. Information Dissemination

Classical economic theory supposes that the more informed consumers are,

the more rational and allocatively-efficient their market decisions will be.

This implies an additional set of mitigation strategies which aim primarily at

suDplementing and enlightening individual market decisions regarding the

hu rr icane and storm threat. Several approachas can be taken in this vein.

A. Real Estate Disclosure: Reguirements

The f*irst approach is to seek mechanisms and processes which facilitate

the effective informing of potential buyers of the actual risks associated

with location in a high hazard district. Hazard information can be provided

in several ways. State legislation might require that real estate agents

inform prospective buyers about the potential dangers from storm forces.

151

Exactly this approach was proposed in Texas, but was not enacted due to stiff
opposition from real estate and development interests.84

While no other examples of real estate disclosure can be cited with

respect to storm hazards, this technique has been used in California in an

attempt to inform prospective homebuyers of the risks of living near
earthquake fault lines.85 Under the Alquist-Priolo Special Studies Zones

Act, a real estate agent or individual selling property must disclose to the

prospective buyer the fact that the property lies in a "special studies zone"

(earthquake fault zone). A study by Risa Palm indicates, however, that this

requirement has had little measurable effect on the market behavior of housing

consumers. Among the problems identified are a tendency for homeowners to

place a low priority in the earthquake threat, the issuance of the disclosure

in the latter stages of a home purchase, a downplaying of the importance of

the earthquake hazard zones, and a disclosure technique (a single line that

says simply "in Alquist-Priolo zone") that conveys little or no real

information about the earthquake risk. As Palm observes, "At present, real

estate agents are disclosing at the least sensitive time in the sales

transaction, and are using methods which convey the least amount of
information about special studies zones."86

Consequently, if a similar disclosure approach is to be applied to

hurricane and storm hazards in an effective way it must learn from the

California experience. Specifically, the disclosure must be provided early in

84Texas Coastal and Marine Council, Model Minimum Hurricane Resistant
Building Standards for the Texas Gulf Coast, Austin, Texas, June 1981.
6:@Risa Palm, Real Estate Agents and SRecial Studies Zones Disclosure: The
ResRonse of California Home Buyers to Earthguake Hazards Information, Boulder,
CO: Institute of Behavioral Science, University of Colorado, 1981.
86Palm, supra at 102.

152

the sales transaction, preferably during the initial agent-purchaser meeting,

and the disclosure must convey real and accurate information about the

location and nature of the hazard. Not only should the disclosure form or

process be labeled in a meaningful way (i.e. , the home is in a "storm hazard

zone" as opposed to an ambiguous "special studies zone"), it must provide a

full description of the nature of storm related risks. Strong resistance from

the real estate industry in coastal areas can be expected, and efforts to

convince them of the utility of a disclosure process may well be essential to

its success. More passive types of hazard disclosure might also be useful.

Included in this category are requirements that hazard zone designations be

recorded on deeds and subdivision plats and that public signs be erected

indicating the boundaries of storm hazard areas (and perhaps the location of
past storm damage).87

B. Community Awareness Programs

A different approach is to institute programs which attempt to directly

educate the housing consumer about storm risks. These programs might take the

form of brochures and other materials distributed to new and prospective

residents of the community, informing them of the nature and location of storm

hazards and information about what to look for in a new home or business

structure (such as elevation and floodproofing). For existing residents, this

approach may be one of educating them about actions they can take to enhance
the integrity of their existing struciures (such as installing "hurricane

clips") and reducing future property damages.
A locality might also attempt to disseminate hazard information on the
"supply side." This technique might take the form of construction practice

87See Model Amendments, �4(c), Appendix II.

153

seminars for coastal builders and developers, introducing both conventional

and innovative approaches to building and designing structures and to siting

and planning the orientation of buildings in vulnerable locations. This

information approach was proposed as a primary mitigation strategy following
Hurricane Alicia in 1983.88 The success of such a strategy, however, depends

essentially on the integrity of builders and developers, and those who are

conscious and conscientious about storm threats are probably already planning

their projects accordingly.

Perhaps the most significant impediment to this type of private sector

mitigation is that real estate development is a competitive industry in

coastal regions, and the incurring of substantial mitigation costs by one

developer may place him at a competitive disadvantage. This is a major reason

why building codes, subdivision restrictions, zoning ordinances, and other

legally binding jurisdiction-wide requirements are to be preferred--they set

general rules for all developers to adhere to and in this sense create a

common set of expectations which place all developers on an equal footing.

VI, Conclusio

This chapter has sought to demonstrate that no hurricane hazard

mitigation program should lack readily available tools and techniques for

implementation. By using a growth management approach to mitigation,

locallties can select from a variety of devices ranging from the simple and

88FEMA, Interagency Hazard Mitigation Report, covering Brazoria,
Chambers, Fort Bend, Galveston, Harris and Matagorda Counties, September 1-
1983; FEMA, lnterigei@cy Post-Flood Recovery Progress Report, Denton, Texas,
December 1983.

154

familiar to the complex and exotic. Ordinary downzoning, for example, can

significantly reduce the exposure of people and property in high hazard areas.

But North Carolina coastal communities should not limit themselves to

traditional and less flexible devices, since many innovative techniques are

easily applicable. Special use permits, performance zoning, and planned unit

developments can increase local control over the characteristics of each new

development and help ensure that it meets local needs. Incentive zoning,

exactions, and impact fees allow the public to receive hazard mitigation or

other benefits as a byproduct of development pressures. Public interests in

hurricane protection, as well as open space and beach access, are even more

firmly secured through one of the land acquisition strategies. Transferable

development rights, taxation, and capital facilities programs can work to

guide overall patterns of growth without site-by-site review. Finally,

information dissemination may be the most cost-effective, yet,least used,

mitigation technique. There is much that could be done towards informing

residents, developers, and homebuyers of potential coastal hazards, at little

cost to the local government. Moreover, even if information dissemination

cannot halt continuing development of the coast and increased hazard exposure,

public education can only help promote awareness of and cooperation with other

hazard mitigation programs.

Chapter 6

Mitigation Duging Reconstructio

While the occurrence of hurricanes and coastal storms may bring

substantial death and destruction, there is the positive p
otential that future

risks can be reduced through conscientious planning during reconstruction and

recovery. The mitigation opportunities following such a disaster will tend to

be more far-reaching than those which normally exist. Unfortunately this

"window of opportunity" is brief, and coastal localities are typically not

prepared to take advantage of these mitigation opportunities.

This chapter seeks to provide local officials with information that may

assist them in preparing for reconstruction and recovery in advance of the

storm event. I t begins with a review of the federal context in which recovery

from hurricanes and severe coastal storms will occur, then goes on to

introduce a number of concepts and planning techniques that may be useful in

promoting mitigation at the local level following such a disaster.

I. The Federal Role in Post-Disasteg Response and Reconstruction

The primary role played by the federal government following a disaster is

the provision of disaster assistance as provided for under the Disaster Relief
Act of 1974.1 A wide range of financial assistance is available both to

individuals and state and local governments. The Federal Emergency Management

Agency (FEMA) has the primary responsibility for overseeing the administration

IP.L. 93-288, 42 U.S.C. �5121 et seq.

156

of these post-disaster assistance programs, which come into effect following a

presidential declaration of an emergency ar major disaster.

Many of the federal disaster assistatice programs--the �406 Hazard

Mitigation Plan, the Interagency Hazard Mitigation Team, Disaster-Proofing

Requirements, and Relocation Programs such as �1362, for instance--have been

mentioned in previous chapters. Local governments will need to make

themselves aware of the details and requirements of these programs, but it

would not be appropriate for this Guidebook to attempt to explain them here.

Though FEMA should be consulted for relevant details, the thrust of the

disaster assistance regulations reinforces the necessity for state and local
hazard mitigation planning.2 Coastal governments can no longer count on,

federal disaster aid to bail them out, because disaster assistance will be

subject to increasingly stringent cutbacks, needs tests, and local

contribution requirements. Accordingly, 'Local governments should approach

post-disaster reconstruction with a focus on their own resources.

II. Local Approaches to Mitigation During Reconstruction

This section will describe approaches that localities themselves can

take, both prior to and after a burricane has occurred, to ensure that future

storm damages and loss of life are reduced. Many of these concepts have been

introduced and suggested in the new CAMA land use planning guidelines. What

follows seeks to elaborate substantially on how, more precisely, coastal

localities can implement these concepts. Again, as in other chapters of this

report, emphasis is placed-On growth management as a mitigation strategy.

244 C.F.R. Subpart M. See, e.g., FEKA, Llaking Mitigation Wor"
Handbook for State Officials, DAP 12, June 1986.

157

A. S2ecial Demands and Pressures Following a Hurricane

While most of the development management techniques described above are

equally relevant to post-storm circumstances, there are certain factors which

make the post-storm situation unique and its decision making demands special.

The first of these factors is the multiplicity and magnitude of the tasks

which must be undertaken in the post-storm context. They range from such

immediate concerns as the clearance of debris, the location of adequate water

supplies, and the restoration of public utilities, to less immediate questions

about redevelopment and reconstruction. An additional factor is that even

those activities which are not immediate do require relatively rapid actions

and decisions (and even more rapid analysis and information-gathering) before

the decisions can be made. A locality recovering from a hurricane or severe

storm should be prepared to effectively manage this process and should have

the appropriate institutions and tools available to bring this rational

management about. It should be reiterated that we are not concerned here with

the emergency management or immediate recovery issues (e.g., clearing debris

from roads, securing earth moving equipment, securing uncontaminated drinking

water, etc.). Rather we are concerned here with questions of how the

jurisdiction rebuilds and redevelopS following the disaster.

Following a hurricane or severe coastal storm, a local jurisdiction will

typically confront a number of economic, political, and social pressures which

affect redevelopment. Disaster research indicates that there is often a

strong desire on the part of local residents to return to pre-disaster

normalcy, and that redevelopment and reconstruction actually occurs quite

rapidly. It is not uncommon for property owners to return to their homes

immediately following a storm to begin cleanup and repairs. Concomitant with

this desire, property owners often apply substantial political pressure on

158

local officials to facilitate quick reconstruction. Unless daunted by the

prospect of legal liability for storm damage as discussed in Chapter 7, local

officials often feel compelled to loosen normal building and regulatory

requirements and, to ttLe extent that they can, to "grease the wheels" for
storm victims.3

Elected officials often define their political obligation during the

recovery phase in this way--as essentially facilitators. A dramatic influx of

redevelopment funds into the community, including federal disaster assistance

and insurance payments, has often served to fuel a sense of urgency concerning

reconstruction. The implications of these redevelopment pressures for

mitigation are several. First, it will often be politically and

psychologically difficult for local officials to resist the role of

"facilitators" and assure a role as a "regulator" or "mitigator." This

suggests the need to plan in advance for such disasters, preparing postr.storm
40
redevelopment plans, for instance, which make tough redevelopment decisions in

advance and away from the immediate demands of disaster events. Moreover, the

existence of these pressures to rebuild quickly indicates that local officials

concerned about taking advantage of mitigation opportunities must themselves

act quickly.

In many post-disaster circumstances not only are certain mitigation

opportunities lost (e.g., relocating residential structures back from the

water) but the resulting @orm of redevelopment serves to increase the extent

of future hurricane and storm risk. Research indicates that, following major

destructive events, reconstruction will tend to permit those economic forces

3See, e.g., Kathleen Levden, Recove.ZE ani Reconstruction after Hurricane
Camille: Post-Storm Haza'rd-Mitigation on the Mississipy)i Gulf Coast, Dept. of
City & Regional Planning, UNC-Chapel Hill., 19135.

159

in existence prior to the disaster to reappear at an even more rapid rate.

The hurricane may serve to clear certain private development sites (i.e.,

older, low density residential uses) and typically prompt the construction of
higher density/more intensive forms of commercial and residential uses.4

While normal economic pressures may have brought these changes about slowly

over time a destructive hurricane can speed up the growth process

dramatically. If post-storm redevelopment forces are not managed, however,

the result will only be a greater amount of property at risk to future

hurricanes and storms. The institutional approaches presented below represent

methods by which local governments can plan in advance to control and direct

redevelopment impulses.

B. A Post-Storm Reconstruction Pla

A locality should, to the extent possible, foresee alternative damage

scenarios from hurricanes and severe storms and have in place a set of

policies or planning instruments which will facilitate post-storm decision-

making. In this way, a substantial portion of the reconstruction decision-

making can be undertaken prior to the actual storm event. Advance planning

permits a less pressured, more deliberative set of decisions concerning

reconstruction options and allows government officials to devote their post-

disaster time and energies to unexpected or ncontingent" issues which could

not be completely fo.reseen prior to the event. The locality should always be

4Ralph D. Cross, Impact of Hurricane Tidal Surges on Subseguent Land Use
Changes and Water Resource Allocation, Mississippi State University, Water
Resources Research Institute, July 1976; Jane L. Hegenbarth, Gulf Shores-.
Alabama From 1979 to 1984: Its Redevelopment 8nd Growth Following Hurricane
Frederic, Chapel Hill, NC: UNC Center for Urban and Regional Studies, June
1985.

160

prepared to take stock of factors and circumstances that have not been

considered (or not considered fully) in pre-storm planning.

The actual product of pre-storm reconstruction planning can take several

forms. On the one hand the jurisdiction may develop very specific and

detailed reconstruction/redevelopment plans, indicating sites and locations

which should not be re-developed, areas where changes in uses and activities

should occur during redevelopment, where certain capital improvements should

take place, and so on. Such a detailed plan would provide a blueprint for

reconstruction decisions after the storm. Its primary advantage is that it

reduces the information-gathering and decision making pressures on local

officials after the storm (assuming that local officials generally concur with

the substance and content of such plans). One of the disadvantages of such a

detailed redevelopment plan is that for it to be accurate it must be updated

frequently (i.e., land use circumstances change). A second limitation is seen

in the fact that it must make specific assumptions about the extent, location,

and nature of damages, as well as the political and economic opportunities

which may emerge after the storm (e.g., the nature of demands to rebuild,

amount of external disaster relief). These are factors which undermine any

very precise program or design for reconstruction.

. A contrasting approach is the development of a set of general policies
concerning reconstruction following the storm.5 A policy-oriented plan would

provide general guidance to more specific reconstruction decisions. For

instance, a reconstruction policy may state that rebuilding shall not occur in

areas where homes have been destroyed an average of 50% or more. This policy

5Timothy Beatley, DeveloRment Management to Reduce Coastal Storm Hazards:
Policies and Processes, Chapel Hill, NC: UNC Center for Urban and Regional
Studies, 1985.

1
161

would not attach itself to a particular location or site until after the storm
ho occurred. Such policies would simplify public decisions, but would depend
heavily upon contingent factors and an analysis of the relationship between

reconstruction and other community objectives. Such an approach has the

advantage of being more flexible and sensitive to the numerous contingent

factors which will exist in the aftermath of the event. Such a plan or set of

policies (whether a detailed redevelopment plan or more general reconstruction

policies) should address at least the following issues:

o Identification and mapping of coastal hazards, identification of high
hazard areas (presumably occurring prior to the event), and a process
for updating this information following the storm.

o A process for identifying the extent and nature of actual damages from
the storm event, by geographical location and zone.

o Identification of instruments and tools that can be applied in the
post-storm context to address hazard reduction goals. In the case of
a detailed redevelopment plan, these mechanisms may be designed to
11spring into place" following the event. More general policy plans
may simply identify the range of alternatives, leaving for post-storm
decision makers to choose which are most relevant.

o Identification of redevelopment opportunities (in addition to hazard
reduction) that may be present should certain locations, types, and
magnitudes of damage result. Again, the extent of detail and advance
precision can vary tremendously.

o Description of a post-storm decision-making process by which potential
reconstruction decisions are structured and organized in logical
fashion, and in which relevant actors and decision makers are brought
together to solve reconstruction problems.

C. The Need for Additional Institutional and Decision-making Structures

As we have established, post-storm reconstruction places unique decision-

making pressures and requirements on local officials, which in turn require

special institutional and decision-making arrangements to cope effectively

with them. Several of these specific arrangements are described briefly

below. This discussion is meant to be exploratory and not necessarily

162

intended to be recommendations for organizing reconstruction--rather, as

possible approaches which may or may not be relevant in particular situations.

1. Post-storm damage assessment,

Critical to public decisions concerning redevelopment and reconstruction

is a clear understanding of the magnitude, type, and causes of damages from

the storm. Moreover, the assessment of local damages must occur quickly. A

sensible approach is to prepare for this need by creating, in advance of the

storm, a damage assessment team. Such a team would be organized so as to come

into existence immediately following the emergency phase and should be

comprised primarily of individuals with appropriate technical expertise.

Procedures for estimating and documenting the extent and nature of storm

damages should be established in advance Of the storm (e.g., damage assessment

forms, base maps, field guides). The local government must invest adequate

local resources and authority in this group for an expeditious damage

assessment process to work.

More specifically, the damage assessment team might be assigned the

following responsibilities:

a) to assess the extent and location of storm damage, both to public and
private structures and facilities and the natural environment;

b) to document the type and location of storm forces, including the
identification of the following:

1) incipient inlet areas

2) high wave action areas and areas of" high erosion

3) high flooding and overwash zones

6David J. Brower, William E. Collins, and Timothy Beatley, Hurricane
Hazard Mitigation and Post-Storm Reconstruction Plan for Nags Head, North
Carolina, Chapel Hill, NC: Coastal Resources Collaborative, Ltd., 1984.

163

c) from the above information, to determine, to the extent possible, the
likely causes of damage (e.g., faulty construction, proximity to an
incipient inlet).

The damage assessment team(s) would collect this information and present

it to the recovery task force, preferably in graphic form and consistent with

the damage area delineation scheme suggested below. The damage team should

also be asked to compare the actual damages incurred in the community with the

hazard maps available prior to the storm and to adjust the delineation of the

hazard areas accordingly.

The precise composition of this damage assessment team will depend upon

the resources and expertise available in the locality. It might include some

of the following individuals:

o town (county) planning director

o town (county) building inspector

o town (county) engineer

o town (county) tax assessor

o town (county) public works director

o town (county) health department director

o local real estate agents/appraisers

o environmental scientist/individuals familiar with coastal

dynamics and processes

o local CAMA permit officer

It is important that this group of individuals be appointed before the

storm, so that they may organize and develop appropriate damage assessment

forms and procedures without post-storm pressures. The assessment team will

also serve as an ex'pe'rt advisory group during the period in which specific

reconstruction decisions are being made. For instance, in the case of a

164

proposal to prohibit reconstruction in a particular portion of the town, they

may be called upon to provide more detailed information about the degree of

damages.

As an example, the storm hazard mitigation plan for Ocean City, Maryland,
proposes the creation of three different sets of damage assessment teams.7 An

initial damage assessment team is the first in the field, providing initial

inspection of damage (to be completed in a Couple of hours) and is responsible

for determining whether an emergency should bet declared,.whether a

redevelopment moratorium should be enacted, and whether state and federal

disaster aid should be requested. The second stage of damage assessment would

involve more detailed records of damages, and different teams would be

organized to assess different types of damages; (e.g., private residences,

mobile home, etc.). A third team will accompany federal and state damage

assessment teams and will assist in the preparation of damage survey reports

required for obtaining disaster assistance.

2. Recovely or reconstruction task force:

The creation of a special task force to deal with the unique issues and

problems of reconstruction has occurred in a number of disaster circumstances

and is a result of recognition that normal local decision-making capability

often needs to be supplemented. Under the North Carolina program, coastal

localities are required to consider the creation of such a group. For

instance, the Onslow County hurricane hazard m itigation and .post--disaster.

reconstruction plan proposes a recovery task force with the following

responsibilities; it shall:

7Stanley M. Humphreys and Larry R. Johnston, Reducing the Flood Damage
Potential in Ocean City. Maryland, prepared for the Maryland Dept. of Nat'l
Resources, April 1984.

165

(1) Review the nature of damages, identify and evaluate alternate
program approaches for repairs and reconstruction, and formulate
recommendations for handling community recovery.

(2) Recommend to the County Commissioners the declaration of a
moratorium on repairs and new development.

(3) Set a calendar of milestones for reconstruction tasks.

(4) Initiate orders for repairs to critical utilities and facilities.

(5) Recommend the lifting of a moratorium for "minor" repairs.

(6) Recommend the lifting of a moratorium for "major" repairs to
conforming structures.

(7) Evaluate hazards and the effectiveness of mitigation policies and
recommend the amendment of policies, if necessary.

(8) Initiate negotiations for relocations and acquisitions of property.

(9) Recommend the lifting of moratorium on "major" repairs (with
approved changes to conform).

(10) Participate in federal hazard mitigation planning.
(11) Recommend the lifting of moratorium on new development.8

Thus, a primary function of such a body is to receive and review damage

reports and other analyses of post-storm circumstances and to compare these

circumstances with mitigation opportunities identified prior to the storm to

discern appropriate areas for post-storm change and innovation. Where needed,

it can review in a more specific fashion alternative mechanisms for bringing

these changes about and go about harnessing internal and external resources

for achieving these ends. Essentially, then, a primary function of this group

is comparing contingent factors and circumstances (physical, economic,
political) with pre:storm mitigation opportunities, to arrive at and implement

a set of post-storm changes. Such a task force would also ideally undertake a

80nslow County, N.C., Hurricant._Storm Kitigation and Post-Disaster
Reconstruction Plans, prepared by Henry Von Oesen and Associates, April 1984.

166

similar process for non-mitigative local objectives and opportunities. Among

these other goals which would be considered during reconstruction decision-

making might be the following:

(1) enhancement of local recreational and. open space opportunities;
enhancement of public access to beach. and ocean;

(2) enhancement and restoration of local natural ecosystems;

(3) reduction of traffic congestion, noise, and other transportation-
related problems;

(4) enhancement of the long-term economic: vitality of the local
commercial and industrial base;

(5) others.

The composition of the reconstruction task force also presents a

question, to which several answers exist. One possibility is to assign these

responsibilities to a completely new group of individuals, with a broad-based

representation of community interests. Such a group might be composed of the

following:

� one or more elected officials

� planning director or planning department representative

� public works official

� one or more representatives of the business community

� representatives of adjoining communities.

Such a group would have the advantage of a fresh perspective on

development opportunities in the localityas well as perhaps a stronger

political base. A major issue in using a. citizens' task force for

reconstruction planning is the extent to which this body is directly

accountable to the elected governing body, or has some degree of independent

decision-making authority.

167

A second option is to assign reconstruction planning responsibilities

primarily to the local planning board. Allocating responsibilities to this

group would consequently have the advantage of capitalizing on the existing

knowledge and expertise of the development process and the actions involved in

it. Unlike the creation of a new recovery committee, commissioners would

generally not have to be brought up to speed on development issues. Moreover,

using the planning board would still serve to insulate the elected local board

or council from many reconstruction decisions (at least at a detailed level of

consideration), a highly desirable feature given the number and gravity of

decision-making requirements local officials are typically faced with in the

aftermath of a hurricane.

Another option is simply to place these reconstruction opportunities

squarely and completely in the hands of elected officials, with this body

serving the function of the task force. This option has the advantage of

placing reconstruction issues and decisions in the hands of those officials

who will be ultimately responsible for their ramifications, and may also be

more politically expeditious. A major disadvantage is that elected officials

are typically faced with myriad and numerous decisions in the storm aftermath,

and it may seem appropriate to reduce rather than add to their decision-making

responsibilities,

The storm mitigation plan for Ocean City again proposes several different

recovery and reconstruction committees to more efficiently address all the

necessary issues. A Disaster Recovery Task Force would oversee recovery

decision-making and would perform many of the supervisory tasks mentioned

above. In addition, a Property Acquisition Committee would be established

which would have the primary responsibility for identifying and recommending

properties for acquisition after the storm. A Permitting Task Force would be

168

established principally to inform non-resident property owners of damages

incurred by the property and post-disaster conditions and requirements imposed
by the city.9

D. Regulating De-41opment Followin the Hurricane

It is important that coastal localities establish, in advance of a

hurricane, a set of reconstruction permitting procedures by which to control

and manage post-storm redevelopment demands. Control over the issuance of

building permits typically represents an effective way for local governments

to manage the timing and sequence of reconstruction. Development moratoria

and the concept of triage are important supplements to this process and are

described below.

1. Delineation of damage and hazard zones: The "Triage" Concept

A primary task of the local damage assessment team, in conjunction with

the reconstruction task force, is to graphically designate damaged areas in

the community by severity level. A three-tiered delineation would function

much like a "triage" does in emergency medicine: "major," "moderate," and

"minor" damage areas would be designated, perhaps according to the following

damage criteria:

(a) major damage areas: where buildings experience damages-amounting to
50% or more of their market value;

(b) moderate damage areas: where buildings experience damages amounting
to over 25% but under 50% of their fair market value;

9Humphreys and Johnston, Reducing the Flood Damage Potential in Ocean
City. Maryland, prepared for the Maryland Dept. of Nat'l-Resources, April
1984.

169

These damage cut-off points are largely for illustration and, of course,

could be considerably different. The triage suggests that a community

prohibit reconstruction in major damage areas (at least in the short term) and

permit immediate rebuilding in minor damage areas. The bulk of the task

force's immediate attention should be directed to determining whether

structures in moderate damage areas ought to be allowed to rebuild and if so,

under what conditions. In addition, existing designation of local hazard

zones (e.g., flood hazard areas) should be reviewed and modified to reflect

changes in natural processes and topography and new knowledge gained about

these processes. For example, if a new inlet has been created, this should be

designated and considered by the task force or governing body when making

reconstruction decisions.

The triage damage zone concept, while largely untested, has been

incorporated, in one way or another, in a number of local disaster planning
programs.10

2. Temporagy reconstruction moratoria

After the storm a locality may be swamped with requests by individuals to

rebuild their structures immediately. Typically the pressure to rebuild is

great, and local governments are not prepared to say "no" to such requests.

One effective approach to this problem is the immediate declaration of a

temporary moratorium*on rebuilding. This would provide sufficient time for

the local damage assessment team to do its job and the task force to consider

appropriate mitigation opportunities. Once the damage assessment is

loRogers, Golden and Halpern, Hurricane Evacuation and Hazard Mitigation
Study for Sanibel, Florida, November 1981; J. Eugene Haag, Robert W. Kates,
and Martyn J. Bowden (eds.), Reconstruction Following Disaster, Cambridge, MA:
MIT Press, 1977.

170

completed, the moratorium can be lifted for minor damage areas. A time limit

to the moratorium, such as thirty or sixty days from its initial designation,

is probably advisable. As well, the jurisdiction may wish to permit the

immediate rebuilding of certain "lifeline" structures and facilities, such as

hospitals, regardless of the damage zone they are located in.

E. Some General Strategies for Post-Hurricane Mitigation

What follows below is a very general description of several key

reconstruction and redevelopment strategies which could be ado pted to promote

hazard mitigation. This is by no means a complete listing, but is

illustrative of the kinds of strategies Vhich could be pursued. What follows

represents to a large degree the types of issues and policies which should be

developed and contained in a community's -post-hurricane reconstruction plan.

1. Moving develoRment away from the hazard zone following the hurricane

Under this strategy, local officials would seek to encourage or require

substantially damaged structures to rebuild at greater distance from the ocean

or other hazard zones. This could be accomplished in several ways. Property

owners might be permitted to build at greater densities or permitted to

circumvent certain building requirements (e.g., sideyard requirements), in

exc'-7ige for locating at a greater distance from the hazard area. An

alternative approach would be to amend the local zoning ordinance to make

existing development seaward of a certain desired setback line nonconforming

uses. Oncd substantially damaged, the ordinance would prohibit the

redevelopment of such structures seaward of this line.

171

2. Reducing Permissible Density of DeveloRment in Hazard Zone

This strategy would seek to accomplish similar objectives. It would

permit redevelopment in the hazard zone, but only at reduced intensity. Such

an approach would seek to reduce the extent of people and property at risk.

For instance, following a devastating hurricane a locality might rezone an

inlet hazard area so that permissible residential densities were reduced from

10 dwelling units per acre to one dwelling unit per acre. As with the setback

strategy above, this lowered density could be accomplished in several ways.

The community could simply rezone such areas following the disaster, or it

could permit the transfer of development potential to some other more

acceptable location in the community (e.g., where elevation is higher and

flooding potential lower). This would act as a form of compensation for the
lower permissible potential." As in the setback case above, the locality

could also make certain high density uses nonconforming prior to the

hurricane. For instance, the locality could designate high-rise hotels and

condominiums in oceanfront zoning districts as nonconforming uses, prohibiting

their reconstruction following a hurricane.

3. Prohibition of reconstruction athigher densities

As observed earlier, the political and economic pressures following a

major disaster may work towards increasing the intensity of development in

hazardous areas. One strategy a locality may wish to adopt in advance of a

hurricane is that while it will permit redevelopment to pre-existing

densities, any increases in the intensity of hazard zone development will not

be acceptable.

liSee Model Amendment 1 (3), Appendix II.

172

4. Reconstruction according to more--stringent building and construction

standards.

One strategy is to permit redevelopment of the same intensity and type,

but require that the structures and accompanying facilities are built to more

stringent construction standards. This has been the primary approach

expressed in many of the original hurricane hazard mitigation and post-

disaster reconstruction plans prepared under the new North Carolina Mitigation
Guidelines.12 To a great extent this strategy may constitute an aggressive

local effort to ensure that reconstruction adheres to existing NFIP and state

building code standards. However, a locality may wish to impose additional

requirements, for instance requiring additional elevation for structures or

certain design features which make roads, sewer and water lines, and other

public facilities less vulnerable to future hurricanes.

5. Public acguisition of hazard alea Dr Derties

As we have seen in Chapter 5, one of the most effective approaches to

hazard mitigation is public acquisition of hazard zone properties--acquisition

both of undeveloped parcels and damaged structures. A primary local strategy

might be to systematically prepare for post-storm opportunities to acquire

high hazard areas. A locality coul d identify in advance where priority areas

are located and develop in advance as well decision-making and funding

mechanisms to ensure rapid acquisition. In conducting a pre-disaster site

analysis, the locality could identify acquisition areas which would satisfy

multiple community objectives, for instance giving higher priority to

12Timothy Beatley, Development Management: to Reduce Coastal Storm
Hazards: Policies and Processes, Chapel Hill, NC: UNC Center for Urban and
Regional Studies, 1985.

173

acquisition in areas where public beach access is badly needed. For

acquisition of damaged structures, the locality could identify in advance

areas in the jurisdictions where relocation could from the hazard area occur

(either actual relocation of damaged structures or relocation of people into.

new structures).

III. Conclusio

The post-storm aftermath can be an opportunity to achieve substantial

progress in hazard mitigation, but only if a community is prepared to take

advantage of it. Because local governments can no longer rely on federal aid

to bankroll reconstruction efforts, they must plan in advance to facilitate

orderly rebuilding. Whether the reconstruction plan is s pecific or general,

it should recognize the unique pressures of the post-storm period, guarding

against piecemeal and haphazard redevelopment at pre-existing or even greater

densities.

To carry out the mitigation mandate of the reconstruction plan in the

tense post-storm atmosphere, a local government will often require special

institutions and authority in order to act quickly and decisively. A

previously constituted damage assessment team can examine the extent, causes,

and location of storm damage immediately after the storm, in time for the

information to be of use to local officials. Correspondingly, the

Reconstruction Task Force can pinpoint areas requiring special attention or

offering particular opportunities for mitigation. The Task Force could

recommend or exercise regulatory control over rebuilding, including such

special techniques as triage to delineate damage zones and a temporary

reconstruction moratorium. Triage and moratoria are designed to allow a

174

breathing space in which to take advantage of the clean slate offered by the

storm. By starting over in a planned, orderly fashion, a coastal locality can

.implement mitigation strategies such as reconstruction at lower densities and

in different locations and public acquisition of land, thereby emerging from

the storm's destruction as a safer and more attractive community.

Chapter 7

Leeal Considerations in Using Growth Management
to Reduce Hurricane and Coastal Storm Hazards

Introduction

Legal constraints on local government growth management programs can work

both to help and to hinder coastal storm hazard mitigation. On one hand, the

constitutional rights of private property owners and limits on local

government authority set an outer boundary on how and how much localities can

restrict coastal development. On the other hand, if local governments do not

act properly to protect private property from natural hazard damage, they

could in some circumstances be legally liable for the resulting harm. These
two forms of liability have been described as "a dilemma for local managers."l

Litigation claiming that local government is responsible for the loss of
private'property values can arise before the storm, with challenges to the

constitutionality of development regulation, or after the storm, when property

owners claim government actions contributed to storm-related physical damage.

It may seem that a locality is open to suit no matter what it does, but a

well-designed hazard mitigation program can avoid both horns of the dile a

without great difficulty. The following catalogue of potential legal

challenges should not be construed as indicating that all or any of them are

likely to arise. This chapter will outline the most prominent landmarks along

the legal boundaries of permissible growth management and hazard mitigation,

iKusler, Liability-as a Dilemma for Local Managers. Pub. Admin. Rev.,
Special Issue 1985, p.118.

176

starting with challenges to the validity of development regulations and then
addressing potential local government liability for hazard damage.2

PART 1. CHALLENGES TO GROWTH-MANAGEMENT

Local growth management programs designed to reduce community exposure

and vulnerability to hurricanes and coastal storms must operate within various

constitutional and statutory parameters surrounding the protection of private

property rights. However, it is important to recognize at the outset that

development management measures designed specifically to reduce hurricane and

coastal storm hazards are at the heart of the police power rationale of

protecting the public health, safety, and welfare, and courts give much weight

to the objectives of a growth management program in evaluating its validity.

The inherent importance and urgency of reducing damage to life and property

from coastal storms, emphasized by the CA31A hazard mitigation planning

requirements, will help assure local development programs of a favorable

judicial reception, so long as the policy and implementation techniques are

reasonable.

A growth management program must overcome potential challenges based on

several types of constitutional or statutory limitations. First, an action

may be challenged as unauthorized by existing delegation of authority from the

state. Second, a growth management program is subject to several potential

challenges based on constitutional provisions: due process, taking of private

2The chapter draws on C. Luther Propst, I:xamination of Constitutional and
Statutory Con�traints on the Use of Development Management to Reduce Hurricane
and Coastal Storm Hazards (1985), and David Blatt, The Shadow After the Storm:
Local Government Liability for Coastal H,zard Damaga (1986), Chapel Hill, NC:
UNC Center for Urban and Regional Studies.

177

property without just compensation, and equal protection. These challenges

most often arise out of both federal and state constitutional provisions, but

may arise out of a provision found only in either the federal constitution or

the constitution of a state. The range of remedies available for successful

challenges to development regulations is currently an unsettled question and

may be a controversial element in a growth management challenge. The

traditional judicial remedy of invalidation may be supplemented by financial

liability under certain circumstances.

I. CHALLENGES BASED UPON INADEQUATE AUTHORI

Growth management techniques available to local governments to reduce

hurricane and coastal storm hazards can be broadly divided into four

categories: land and property acquisition, public spending, taxation, and
development regulation.3 Municipalities and other units of local government,

however, have no inherent authority to acquire property, to levy taxes, to

make expenditures, or to exercise regulatory powers. As discussed in Chapter

4, all units of local government are creations of the state and possess only
those powers delegated to them by the state.4 The question of whether a

locality has adequate authority to take an action therefore presents itself as

a threshold issue in any challenge to a local development regulatory action.

There are two elements in a challenge to the authority of a local

government to take action: 1) whether the proposed purpose is within the

3D. Brower, C. Carraway, T. Pollard and L. Propst, Managing Development
in Small Towns, (Planner's Press 1984).
7McOuillin's Law of MuniciRal Corporations, section'44.05 (taxation),
section 24.07 (regulatory powers), section 39.17 (expenditures), and section
21,02 'acquisition), (Callaghan and Company 3rd ed. 1911).

178

authority of a locality, and 2) whether the specific technique or method is

within the local government's authority. Delegations of authority from the

state usually authorize local governments; to act for any legitimate
governmental purpose,5.and the protection of life and property from coastal

storm hazards is recognized as an eminently valid public purpose,

Consequently, a challenge to the use Of aL specific growth management tool or

technique is more likely to arise than a challenge to the purpose of a hazard

mitigation program. The legal authority for the use of particular tools and

techniques has been discussed in Chapter 5, and should be investigated and

established by each local government in the process of developing a hazard

mitigation program. In addition to having proper statutory authorization,

local regulations must also not conflict with state or federal laws. Overall,

invalidation of a local ordinance for lack of sufficient enabling legislation

is rare, but not unheard of. Invalidation on these grounds can be overcome by

amendment to a municipality's home rule charter or by enactment of specific

enabling legislation by the state.

II. CHALLENGES BASED UPON CONSTITUTIONAL LIMITATIONS

The use of local government authority to manage development is subject to

several constitutional provisions which limit government action affecting

private property rights. Provisions in either the United States Constitution

or state constitutions may provide the basis for constitutional challenges to

local actions. The federal constitution establishes minimum guarantees

applicable to the federal government and made applicable to state and local-

5McQuillin, supra, �10.31.

179

governments by the Fourteenth Amendment. State constitutions may provide

additional provisions limiting local growth management actions or state courts

may interpret state constitutional limitations more rigorously than the
federal provisions.6

The principal constitutional limitations to local growth'management

efforts are found in three major constitutional provisions: due process,

taking of private property without just compensation, and equal protection.

A. Due Process

The U. S. Constitution guarantees all citizens due process of the law.

The Fifth Amendment applies the provision to federal actions and the

Fourteenth Amendment applies a due process guarantee to actions by the states.

As creations of the state, local governments are subject to the Fourteenth

Amendment due process clause, which reads: "nor shall any State deprive any

person of life, liberty, or property, without due process of law."

Article I, Section 19 of the North Carolina constitution contains a

similar provision to the federal due process clause known as the "law of the

land" clause. The North Carolina Supreme Court has generally interpreted this

provision as having the same breadth and effect as the federal due process
clause.7 However, interpretation of other state constitutional provisions
sometimes varies significantly from the corresponding federal interpretation.8

1. Procedural Due Process

Due process of law provides two independent guarantees: procedural due

process and substantive due process. Procedural due process requires that

6ResRonsible Citizens in Opposition to the F ood Plain Ordinance v. City
of Asheville, 308 N.C. 255 (1983); see also Constitutional Issues, supra at
34.
7Lea ComRany v. N.C. Board of Transportatio , 308 N.C. 603, 610-11
(1983k
See Board of SuRervisors of Fairfax County v, DeGroff EnterRrises, 214
Va. 235, 198 SE2d 600 (1973) for a taking discussion.

180

citizens be given: 1) adequate notice of governmental action, and 2) a

reasonable opportunity to be heard by an impartial tribunal when affected by a

governmental action. -Procedural due process plays an important role in

administrative rule-making and in administrative and judicial decision-making.

The procedural requirements for local government activity and decision-

making are usually specified in administrative procedures acts or state land
use control legislation.9 To ensure procedural due process, courts generally

require close compliance with these statutory requirements. If no statute

specifies the procedures to be used in local actions, courts review the

procedures used directly under the constitutional due process clause to ensure
adequate notice and opportunity to be heard.10

2. Substantive Due Process

a. Standard of review

A claim based upon substantive due process challenges the fundamental

fairness of governmental action. Growth management ordinances will usually

withstand substantive due process challenges under a standard of review which

upholds ordinances if they bear a reasonable relationship to the

accomplishment of a legitimate governmental objective, and are not unduly

oppressive in application to specific landowners. Aside from the taking

claim, which is related to substantive due process but is a distinct

constitutional challenge, an ordinance may encounter due process challenges if

either its-objective or the means chosen to effectuate the objective are

deemed invalid.

9See, e.g., CAMA, N.C.G.S. ��113A-117 to 113A-123.
loProcedural due process is discussed in K. Davis, Administrative Law,
(West Publishing Co. 3d ed. 1972), and Gellhorn and Boyer, Administrative Law
and Process in a Nutshell, (West Publishing Co., 2d ed. 1981).

181

In response to a challenge to the per se validity of zoning, in Village
of Euclid v. Ambler Realty Compa=,ll the United States Supreme Court upheld

the facial validity of zoning as a proper exercise of the police power. This

decision established the standard of judicial review applied in most

challenges to land use regulations n[i]f the validity of the legislative

classification for zoning purposes be fairly debatable, the legitimate

judgment must be allowed to'control." This standard, which grants local

ordinances a presumption of validity, remains the standard of review commonly

applied in challenges to growth management actions. To overcome-this

presumption, the party challenging an ordinance must show that the ordinance
is clearly invalid.12 This standard of review upholds ordinances unless they

liVillage of Euclid v. Ambler Realty Company, 272 U.S. 365 (1926).
12Constitutional Issues, supra at 46.

182

are "clearly arbitrary and unreasonable, having no substantial relation to
public health, safety, morals, or general welfare."13

The leading North Carolina Supreme Court decision on the validity of

growth management is Responsible Citizens in Opposition to the Flood Plain

Ordinance v, City of Asheville, 308 N.C. 255 (1983), which upheld a floodplain

ordinance enacted pursuant to the requirements of the NFIP, against due

process, taking, and equal protection challenges under the federal and state

constitutions. The Court explained its substantive due process analysis as

follows:

In short, then, the court is to engage in an "ends-means" analysis in
deciding whether a particular exercise of the police power is legitimate.
The court first determines whether the ends sought, i.e., the object of
the legislation is within the scope of the power. The court then
determines whether the means chosen to regulate are reasonable.
[T]his second inquiry is really a "two-pronged" test. That is, in
determining if the means chosen are reasonable the court must answer the
following: (1) Is the statute in its application reasonably necessary to
promote the accomplishment of a public good and (2) is the interference
with the owner's right to use his propert T4 as he deems appropriate
reasonable in degree? (citation omitted]

The Asheville opinion continued by equating the "reasonable in degree"

analysis (the second prong of the means analysis) with the analysis in a
taking claim.15

b. Types of substantive due process challenges

Potential challenges to a growth management ordinance alleging a

violation of substantive due process fall into three categories: 1) a

governmental action has an improper objective; 2) a governmental action

utilizes a means with no reasonable relation to a legitimate objective; and

3) a governmental action is unduly oppressive in its application to specific

13
14 Id., at 395.
Responsible Citizens in ORROsition to the Flood Plain Ordinance v. City
of Asheville, 308 N.C. 255, 302 SE2d 204, 208 (1983).
1-"'Id. at 263, 302 SE2d at 209.

183

property. Since the Supreme Court upheld the validity of zoning in Euclid,

the facial validity of most land use regulations has been upheld. The most

important state and federal statutes relating to coastal growth management
have all been sust@ained against facial constitutional attack.16 Consequently,

most suits focus their challenge on the alidity of a particular ordinance as
applied to a specific parcel. In a succvessful challenge to the validity of an

ordinance as applied to a specific parcel, the court generally prohibits

application of the ordinance to the claimant's property, or grants other

remedies to the property owner, rather than invalidating the entire ordinance.

In terms of the objectives of growth management, regulations aimed at

protecting lives and property from coastal hazards are on solid legal ground.

No recent decision has struck down floodplain or storm hazard regulations for
lack of authorization by general zoning or police power enabling statutes.17

Courts almost always uphold regulations against challenges to the legitimacy

of the objective when a legitimate purpose of the regulation is protection of

the public health and safety from natural hazards. The United States Supreme

Court has aptly summarized the judicial deference given local governments to

enact regulations to protect the public health and safety. The Court stated

that when threats to human life are involved a legislature may adopt "the most
conservative course which science and engineering offer."18

There are purposes potentially related to hurricane hazard reduction

programs which courts,may deem invalid. For example, courts have often

16Texas Landowners Rikhts Ass'n v. Harris, 453 F.Supp. 1025 (1978)
(National Flood Insurance Program); Bosti v. U.S., 753 F.2d 1292 (1985)
(Coastal Barrier Resources Act); Adams v, DNER and Everett v. DNER, 295 N.C.
683 (1978) (Coastal Area Management Act); Issuance of CAMA Minor Development.
Permit to Ford S. Worthy v. Town of Bath, 82 N.C. App. 32*(1986) (Coastal Area
Management Act).
17American Land DeveloRment Company v. City of Keene, 41 F.2d 484 (Ist
Circuit 1930) is an early decision upholding floodplain regulations.
180ueenside Hills Realty Co, v. Saxi, 328 U.S. 80, 83 (1946).

184

invalidated attempts to restrictively regulate an area until public purchase

is possible. Restrictive or open space zoning designed to reduce the market

value of property and discourage development prior to public acquisition may
be deemed impermissible.19 However, the presence of long-term plans for

public acquisition in an area will probably not undermine the legitimacy of

regulations based upon valid objectives independent of reducing the market
value of a parcel for acquisition.20 In addition, large-lot zoning and other

restrictions on density or population growth which are intended to exclude

low-income housing or racial minorities have also been found unconstitutional
by some state courts.21 Unless hazard mitigation is used purely as

camouflage, a growth management technique; reasonably related to real coastal

hazards should not be affected by an exclusionary zoning challenge

In terms of the means chosen to accomplish growth management goals,

courts rarely inquire into the relationship between the means selected by a

legislative body and the objective of an ordinance. The choice of methods to

achieve a legislative objective generally withstands challenge if to "any

degree or under any reasonable circumstances, there is an actual relation
between means and the end."22

There are, however, a few situations in which courts may inquire into the

rationality of the relationship of the means to the objective of an ordinance.

Ordinances that contain patently flawed or inaccurate technical data or

19See, e.g., Burrows v. City of Keene, 432 A.2d 15 (N.H. 1981).
20J. Kusler, Our National Wetlands Heritage: A Protection Guidebook,
(Environmental Law Institute, 1983) p.85; See Turner v. County of Del Norte,
24 Cal App.3d 311, 101 Cal. Rptr. 93 (1972).
2isee, e.g., Southern Burlington County NAACP v. T@M. of Mt. Laurel, 67
N.J. 151, 336 A.2d 713 (1975), Surrick v. Zoning Hear-ng Bd, of Upper
Providence, 476 Pa. 182, 2382 A.2d 105 (1977).
"SteRhenson v. Binford. 287 U.S. 2.51, 272 (1932); See also Plater, "The
Takings Issue in a Natural Setting: Floodlines and the Police Power", 52
Texas Law Review 201, 226 (1974).

185

standards that bear no rational relation to the stated objective of the

ordinance have been successfully challenged, but invalidation of land use

ordinances on these grounds is rare. Most decisions recognize that

imperfections are inherent in hazard area mapping and flood data collection

and accept that approximations must be used. '[W]here the susceptibility of a

site to flooding is in question, courts will apply the presumption of validity
and uphold the locality's determination unless it is clearly erroneous.1123

The claim that an ordinance violates substantive due process because it

is unduly oppressive as applied to a specific parcel is closely related to and

may overlap the claim that an ordinance results in a taking of private
property without just compensation.24 Substantive due process challenges are,

however, separate and distinct from claims alleging that an ordinance

constitutes a taking of private property without just compensation. One

commentator has stated that: "(d]espite chronic confusion in judicial

language in cases where zoning or other land use regulations are challenged

under the due process clause of the Fourteenth Amendment, it is clear that

such regulations may be held invalid on substantive due process grounds
without a finding that they amount to a de facto taking . . . ."25 In "as

applied" substantive due process cases, the usual remedy for the injured

landowner is invalidation of the ordinance or other regulation as applied to

his property, essentially a judicially-imposed variance, while the regulation

in general remains in force.

23The Conservation Foundation, Flood Hazard Management and Natural
Resource Protection: Community Action Guide. p.VII-13. (Prepared for FEMA,
1980). See also Dingman and Platt, "Floodplain Zoning: Implications of
Hydrologic and Legal Uncertainty," 13 Water Resources Research 519 (1977).
24See Responsible Citizens v. Asheville, 308 N.C. 255 (1983).
25Cunningham. "Inverse Condemnation as a Remedy for 'Regulatory Takings',"
8 Hastings Constitutional Law Quarterly 517, 518 (1981).

186

In sum, invalidation of land use ordinances on any substantive due

process grounds is unusual. Development management actions legitimately

enacted and implemented to prevent and reduce damages from hurricanes and

other coastal storms and having any logical relation to that objective should

have no trouble withstanding substantive due process challenges.

B. The Taking Clai

The most controversial and misunderstood'limitation to local growth

management actions is the constitutional prohibition against the taking of

private property for public use without just compensation. The Fifth

Amendment to the United States Constitution--which states "nor shall private

property be taken for public use without just compensation"--prohibits federal

actions which have the effect of confiscating private property. The

Fourteenth Amendment to the United States Constitution--providing "nor shall

any state deprive any person of life, liberty, or property without due process

of law" -- extends the Fifth Amendment talking prohibition to state and local
actions.26 The North Carolina constitution contains a similar prohibition

26Chicago, Burlington. & Quincy R.R. v. hicago, 166 U.S. 226 (1897).
The taking issue in land use reg .ulation-is widely discussed, including the
following books and articles: F. Bosselman, D. Callies, and J. Banta. The
Taking Issue, (Washington, D.C.: Council on Environmental Quality, 1973); D.
Mandelker, Land Use Law, (Charlottesville, Va.: Michie Publishing Co. 1982);
Freilich, "Solving the 'Taking' Equation: Making the Whole Equal the Sum of
its Parts," 15 Urban jayyer 447 (1983); Note, "Open Space Zoning and the
Taking Clause: A Two-Part Test," 46 Missouri Law Revie 868 (1981); Kusler,
"Open Space Zoning: Valid Regulation or Invalid Taking," 57 Minnesota Law
Review 1 (1972); Plater, "The Takings Issue in a Natural Setting: Floodlines
and the Police Power, 52 Texas Law Review 201 (1974); Berger, "A Policy
Analysis of the Taking Problem," 49 New York University Law Revie 165 (1974);
Siemon, "Of Regulatory Takings and Other Myths," 1 Florida State University
Journal of Land Use and Environmental Law 105 (1985).

187

against the taking of private property without just compensation in the "law

of the land" clause.

It is settled that actual seizures of private property for public use and

physical encroachments upon private property resulting from governmental
actions or ordinances violate the taking prohibition.27 For example, the New

Jersey Supreme Court has ruled that public construction of a sand berm on

private property along the oceanfront to protect against storm damage without
permission of or compensation to the landowners constituted a taking.28

The most frequent and controversial application of the taking issue in

growth management is the taking of private property by regulation, rather than
by physical occupation.29 In Pennsylvania Coal Co. v, Mahon,30 the Supreme

27Pompolly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871) established
that the flooding of private land by a public dam effected a taking of that
land. More recently, the United States Supreme Court has affirmed that
government-authorized "permanent physical occupations" must be compensated,
even when damages from the invasion seems rather trivial. Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, (1982).
"Lorio v. Sea Isle City, 88 N.J. Super. 506, 212 A.2d 802 (1965). But
see Carolina Beach Fishing Pier v. Town of Carolina Beach, 277 N.C. 297, 177
S.E.2d 513 (1970), in which the Town constructed a berm along the shore where
private lots had earlier existed. The property owner alleged that the town's
actions constituted a taking of private property without just compensation.
Since the seaward extent of plaintiff's lots in North Carolina is the mean
high tide line and had been completely below the mean high tide line before
the town constructed the berm, the court held that plaintiff's lot had been
taken by the sea, and title thereto had vested in the state. The sea washed
_Zway -the entire lot, so title to the lot was divested and the landowners
takin 19C laim against the town therefore failed.
Important decisions upholding ordinances include the following: San
Diego Gas and Electric Company v. City of San DiUo, 450 U.S. 621 (1981) (open
space zoning); Agins v. City of Tiburon, 447 U.S. 255 (1980) (low density
zoning); Penn Central Trans2ortation Company v. New York City, 438 U.S. 104
(1978) (landmark preservation); Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970)
(wetlands protection); Turnpike Realty Company, v. Town of Dedham, 362 Mass.
221, 284 N.E.2d 891 (1972), cert denied 409 U.S. 1108 (1973) (floodplain
regulation); Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972)
(wetlands protection). Major decisions finding a taking include the
following: Kaiser Aetna v. United States, 444 U.S. 164 (1979) (navigational
servitude doctrine); Morris County Land Improvement Company v * Township of
Parsippany-Troy Hills, 40 N.J. 539, 193 A.2d 232 (1963) (wetlands regulation);
Lorio v. Sea Isle City, 88 N.J. Super. 506, 212 A.2d 802 (1965) (physical
invasion); Seidner v. Town of IsliR, 56 N.Y.2d 1001, 439 N.E.2d 352, 453
N.Y.S.2d 636 (1982) (oceanfront setback).
30Pennsylvania Coal Company v, Maho , 260 U.S. 393 (1922).

188

Court established the most commonly cited analysis in taking challenges to

land use regulations. In a frequently quated opinion of Justice Oliver

Wendell Holmes, the Supreme Court held thZLt: "(T]he general rule at least is,

that while property may.be regulated to a certain extent, if regulation goes
too far it will be recognized as a taking."31

Judicial review in regulatory taking challenges involves application of

several potential factors, including the degree to which regulated property

retains economic value, the purpose of the regulation, and its effect on

investment-backed expectations. These factors may be categorized into two

fundamental inquiries which the United St4Ltes Supreme Court recently has

indicated constitute the essence of regULLtory taking analysis: 1) the

character of the governmental action in question, and 2)the economic impact
of the regulation as applied to the specific property.32 Courts thus balance

the public purpose served by the regulation against the extent and nature of

the restriction imposed on the individual parcel.

In evaluating the character of the governmental action, a useful

distinction often drawn is whether a regulation seeks to prevent a harm to the

public or to confer a public benefit. Courts are more likely to uphold land

use regulations which they perceive as designed to prevent a public harm, such

as a nuisance or a threat to the public safety, than regulations perceived to

confer a public benefit. In the former type of ordinance, courts hold that

landowners have no right to threaten public safety or to maintain a public

311d., at 415.
32Penn Central TransRortation ComRanr v, City of New York, 438 U.S. 104,
124 (1978).

189

nuisance. These ordinances may be sustained even if a landowner is left with
no economically beneficial use of a parcel.33

With respect to the burden imposed upon the specific parcel, the primary

factor is whether the restriction leaves the landowner with an economically

feasible use of the parcel. The difference in the value of the property after

the regulation compared to the value before the regulation is not dispositive,

so long as some economically reasonable use remains. The general rule is that

a diminution in property value, even a substantial one, resulting from a
regulation does not constitute a taking.34

Most regulations designed to reduce hurricane damages do not fall clearly

into either the prevention of public harm or the conferral of public benefit

category. If a court views a regulation primarily as preventing a public

harm, the regulation's probability of being sustained is quite high. If a

court perceives a regulation primarily as conferring a public benefit and

views the objective as valid, its analysis turns to the impact of the

ordinance on the value of the parcel in question.

In summary, courts are almost certain to uphold a regulation designed to

reduce community vulnerability and exposure to coastal storm damages when the

regulation does not deny a landowner all economically reasonable use of a

parcel. Regulations which do have the effect of denying a landowner all

economically reasonable uses of a parcel present a much closer question. If no

reasonable use of the parcel remains, the decisions are divided as to the

33Goldblatt v, Hempstead, 369 U.S. 590 (1962); also see Consolidated Rock
Products v, Los Angeles, 57 Cal.2d 515, 370 P.2d 342 (1962), appeal dismisse
371 U.S. 36 (1962); and Hadacheck v. Sebastian, 239 U.S. 394 (1915), both
upholding ordinances which prohibited uses of land considered to be a
nuisance.
34See Kusler, "Open Space Zoning: Valid Regulation or Invalid Taking,"
51 Minnesota Law Review 1, 33 (1972),

190

validity of the ordinance. The importance the court places upon the

regulatory objective; the reasonableness of the expectations of the landowner

given the size, the location, and the character of the specific parcel; and

the equities of the particular facts in controversy, rather than the

application of any clearly enunciated principles, seem to determine the

outcome of these cases.

Most regulations addressing important public needs and showing

sensitivity to landowner's property rights will be upheld. According to

Daniel Mandelker, "[a] court following the Supreme Court's lead will declare a

land use regulation unconstitutional only in an especially harsh and

insupportable set of circumstances. The court must be willing to discredit

the municipality's justification for its land use program. It must be willing

to believe that the benefits conferred by the program do not justify the

burdens it imposes. Finally, a landowner must have demonstrated through

application to the municipal authority that no constitutionally permissible
land use is allowable."35

Courts are more likely to invalidate land. use regulations--either as a

taking, a violation of substantive due process, or on various other grounds--

when enactment or enforcement of an ordinance involves procedural

irregularities or ad hoc and post hoc planning, and land regulation rather than
even-handed implementation of an approved hazard mitigation plan.36 However,

if a hazard mitigation development restriction is challenged in court, local

governments should take care to document the hazards to be avoided by the

35Mandelker, "Land Use Takings: The Compensation Issue," 8 Hastings
Constitutional Law Quarterly 491, 504 (1981).
3bBurrows v. City of Keene, 432 A.2d 15 (N.H. 1981); Mandelker, "Land Use
Takings: The Compensation Issue," 8 Hastings Constitutional Law Quarter-1-Y
491, 501-02 (1981).

191

regulations in order for courts to appreciate the importance of hazard

mitigation when balancing community interests with the often more immediate

impact an ordinance may have on an individual landowner.

1. T@Mes of Regulations Challenged as Takings

Though the setback requirements promulgated under CAMA have not been

challenged, courts without exception have upheld restrictive oceanfront

setback ordinances which limit the use of oceanfront parcels in order to limit

storm damages, to protect public beach processes, and to prevent damaged or

abandoned structures from becoming public nuisances, so long as the ordinance
does not prohibit all construction on an entire parcel.37 On the other hand,

oceanfront setback ordinances which prohibit any construction on an entire

beachfront lot have received mixed judicial response. New York, for one, has

struck down oceanfront setback ordinances as applied to specific parcels in
situations where the ordinance prohibits construction on an entire parcel.384(:.,.
Many state courts permit oceanfront setback ordinances which render

entire parcels unbuildable when the necessity of the construction setback is

37For example, see Rolleston v. State, 245 Ga. 576, 266 S.E.2d 189
(1980), which upholds a refusal to allow a beachfront property owner to
construct bulkhead for erosion control because of nuisance effect on
neighboring landowners; and Godson v, Town of Surfside, 150 Fla. 614, 8 So.2d
497 (1942). In a related area, the U.S. Supreme Court recently held that the
conveyance of a lateral easement for beach access as a condition of granting a
development permit was an invalid taking, since the need for the easement was
not related to the impact of the development or to the State's purported
policy justification. Nollan v. California Coastal Commission, 55 U.S.L.W.
5145 @June 23, 1987).
8Seider v. Town of Islip, 56 N.Y.2d 1001, 439 N.E.2d 352, 453 N.Y.S.2d
636 (1982). See also Lemp v. Town of Islip-, 90 Misc.2d .360, 394 N.Y.S.2d 517
(Sup.Ct. 1977).

192

well-documented.39 The sum of the holdings in most states, according to one

coastal management authority, is that "courts will be willing to uphold

regulations prohibiting location of permanent structures on hazardous

oceanfront lots, provided there is adeqWLte evidence showing that: 1)

improper development of such lots can harm neighboring properties and natural

features; 2) there are important public benefits to be met by proper

management, such as protecting public safety in storms and reducing disaster

relief, infrastructure repair and other public. costs; and 3) practical uses of

the property that are compatible with its natural character can be carried
out, such as beach access, camping or recreation."4o

Floodplain and wetland development controls have become well established

in law, as federal and state statutes such as the NFIP have authorized and

encouraged local governments to establish floodplain and wetland zoning.

Court decisions now almost unanimously uphold restrictive floodplain and

wetlands regulations. Responsible Citizens v, Asheville is, of course, a

prime example of the judicial approval of floodplain ordinances. This

attitude represents an evolution from early decisions which often struck down
floodplain and wetlands ordinances.41

39Decisions upholding oceanfront setbacks which prohibit construction on
entire parcels include the following: Si3eigle v. Borough of Beach Haven, 46
N.J. 479, 218 A.2d 129 (1966) gert, deni$3d, 385 U.S. 831 (1966), 166 N.J.
Super. 148, 281 A.2d 377 (App. Div. 1971); Inhabitants of Town of Boothbdy
Harbor v. Russell, 410 A.2d 554 (Me., 19130); McCarthy v. City of Manhattan
Beach, 41 Cal.2d 879, 264 P2d 932 (1953), cert denied 348 U.S. 817 (1954); see
Maloney and O'Donnell, "Drawing the Line at the Oceanfront: The Role of
Coastal Construction Setback Lines in.Reigulating Development of the Coastal
Zone," 30 University of Florida Law Reviaw 383 (1978); Shows, "Florida's
Coastal Setback Line--An Effort to Regulate Beachfront Development," 4 Coastal
Zone Management Journal 151 (1978)
4UD. Owens, Coastal Law (North Carolina Division of Coastal Management).
4lSee Dooley v. Town Plan and Zoning Commission, 151 Conn. 304, 197 A.2d
770 (1964); Bartlett v, Zoning Commissio:n, 161 Conn. 24, 282 A.2d 907 (1971);
Sturdy Homes. Inc. v, Township of Redfor4, 30 Mich. App. 53, 186 N.W.2d 43
(1971); Morris County Land ImRrovement Co. v. TownshiR of Parsippanny-Troy
Hills, 40 N.J. 539, 193 A.2d 232 (1963).

1
193

Courts almost always sustain large minimum lot size zones which are

legitimately related to a valid public purpose, such as hurricane and coastal

storm hazard reduction or environmental protection, rather than to invalid
exclusionary objectives.42

Recently, several decisions have upheld regulations which prohibit land

uses that threaten public health and safety or that have substantial

detrimental impacts on the use and enjoyment of nearby lands or bodies of
water.43 These decisions, which essentially involve prevention of harm to the

public, indicate that courts often sustain certain regulations that prevent

44
essentially all income producing development on a parcel. Restrictive

regulation of floodways, coastal high hazard areas, public trust lands and

waters, and sensitive environmental systems such as wetlands--when accompanied

by a showing that development will increase the flood hazard, impair disaster

relief and recovery efforts, endanger nearby proper ty in a storm, or destroy

the ecological integrity of important natural systems--may well be sustained.

In summary, the taking challenge to growth management actions need not be

treated as an absolute or overwhelming limitation to effective local

regulations implemented to reduce hurricane and coastal storm damages. The

spectre of the taking clause may be more of a limitation to effective action

than the clause itself.

42See Steel Hill DeveloRment, Inc, v. Town of Sanbornton, 469 F.2d 956
(1972); County Commissioners of Queen Anne's County v. Miles, 246 Md. 355, 228
A.2d 450 (1967).
43See Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972) and
Graham v, Estuary ProRerties. Inc., 399 So.2d 1374, 1380-81 (Fla. 1981).
ko 44j . Kusler, Our National Wetlands Heritage, supra p92.

194

C. Egual Prot-ction

The Fourteenth Amendment of the United States Constitution provides in

part: "nor (shall any State] deny to any person within its jurisdiction equal

protection of the laws." The Constitution of North Carolina, like that of

most states, also contains provisions guaranteeing equal protection of the

law. State courts generally construe these state provisions as having the
same force and effect as the Fourteenth Axiendment's equal protection clause.45

Any local government action which creates a classification raises equal

protection questions. The doctrine requires that legislative and

administrative classifications give SiMilZLr treatment to similarly situated

persons with respect to the purposes of a statute or ordinance. Unless

fundamental rights such as voting or "suspect" classifications such as race

are involved, equal protection requires only that classifications have a

rational basis and bear a reasonable relationship to a permissible
governmental objective.46

Challenges alleging equal protection violations are closely related to

and often overlap substantive due process challenges. The judicial standard

of review is similar. Recognizing the similarities between the two

constitutional doctrines, the Supreme Court has called equal protection a
"more explicit safeguard of prohibited unfairness" than due process.47

In the growth management context, equal protection requires that valid

reasons support regulatory classifications and that property which is

similarly situated be treated similarly. Courts generally defer to

45N.C. Const., Art. 1 �19; Godschalk, Brower, McBennett, and Vestal,
Constitutional Issues of Growth Management, suRra pp. 77-78.
40 See Village of Belle Terre v. Borgal, 416 U.S. 1, 8 (1974).
47Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

195

BRW

`11A &

wholly irrelevant to the achievement of the state's objective.1148 For

example, courts usually sustain regulations which apply only to parcels

undeveloped at the effective date of the regulation or which apply only to

proposed uses and not existing uses. The equal protection clause requires
only that there be a legitimate reason for such distinctions.49

Equal protection does not require that all areas subject to a regulatory

program come under regulation at once. For instance, courts permit the

mapping and regulation of different areas or natural systems as sufficient
data for the areas or,natural systems is generated.50

Classification of land based upon vulnerability to hurricane and coastal

storm damage is valid against an equal protection challenge. Land use

48Constitution,-il.I-sues. supra at 77, quoting McGowan v. Maryland, 366
U.S. 420, 425 (1961).
49E.g., Zahn v, Board of Public Works, 195 Cal. 497, 234 P. 388 (1925),
S'

affirmed 274 U.S. 325 (1927).
:)V Sensitive Lands. suDra at 159.
J. Kusler, Regulating

196

classifications have been struck down only in cases of patently unfair or
unreasonable classification.51 The North Carolina Supreme Court stated in the

Asheville floodplain case: "It is clear that an ordinance which regulates only

the use of'land in a hazardous area and does not regulate the use of property

outside the hazardous area is a reasonable classification. Indeed, to do
otherwise would be unreasonable."52

III. DAMAGES

Three recent judicial developments could provide the basis for federal

courts awarding money damages as a remedy for invalid local growth management

measures, in addition to the normal remedy of overturning the local ordinance.

First, the Supreme Court has ruled that municipalities are subject to the

federal antitrust laws. The threat of financial judgments against local

governments and local officials led Congress to intervene with enactment of

the Local Government Antitrust Act of 1984. This act removes the specter of

huge damage awards against local governments but not that of invalidation on

antitrust grounds. Second, the Supreme Court has indicated that land use

regulations may subject localities to damages under Section 1983 of the Civil

Rights Act of 1871. Third, the Supreme Court has finally held that money

damages may be available as a remedy for a temporary regulatory taking.

Recent federal court decisions indicate that land use regulations, like

other local ordinances, promulgated as part of' a conspiracy to enrich

municipal officials or to unfairly restrain competition a re not immune from

5lIn City of Welch v. Mitchell, 95 W.Va. 377, 121 S.E. 165 (1924), for
one, the court invalidated a floodplain ordinance which regulated development
on one side of a stream but not the other.
52ResRonsible Citizens in Opposition to the Flood Plain Ordinance v. City
of Asheville, 308 N.C. 255, 302 S.E.2d 204, 212 (1983).

199

Evangelical Lutheran Church of Glendp-le v. County of Los Angeles,62 the Court

held that the Constitution required compensation when regulations temporarily

deprived a landowner of all use of his land.

The Lutheran Church case did not reach the merits of the floodplain

issue, thus leaving open the question of whether there had actually been a

taking, but the majority opinion "realize(d) that even our present holding

will undoubtedly lessen to some extent the freedom and flexibility of land-use

planners and governing bodies of municipal corporations when enacting land-use
regulations."63 The extent to which land use regulation will be constrained

in the future suggests many troubling and unanswered questions for local

governments: how long a denial of use must be to constitute a.taking; when the

damages meter begins to run; and especially, how much economic value may be

reduced before creating a regulatory taking.

The decision is much too recent to be able to assess its impact, and

opinions vary as to its effect on local governments. Justice Stevens' dissent

foresees a flood of litigation, with "a significant adverse impact on the

land-use regulatory process." The prospect--no matter how unlikely--of having

to pay money damages if a challenged land use restriction is later found

unconstitutional might have a chilling effect on future land use regulation.

On the other hand, it is important to remember that successful taking claims

are quite rare, and may become rarer still if courts hesitate to strike down a

regulation because they know a local government would have to pay dearly for a

mistake in judgment.

6255 U.S.L.W. 4781, No. 85-1199, (June 9, 1987).
6355 U.S.L.W. 4786.

PART 2: LIABILITY

Many analysts are becoming increasingly concerned over potential local
government liability for coastal hazard damages.64 Municipal liability for

torts and antitrust violations has already created a palpable threat to local

government insurance coverage and fiscal solvency, so the prospect of legal

liability for hurricane damage or other coastal hazard injuries cannot be

welcome news. Nonetheless, governments are being warned that they face a

trend of increasing coastal hazard liability. The asserted causes for this

trend are twofold, scientific and legal.

Scientifically, hurricanes, coastal wind and wave processes, beach

erosion, and other natural processes have become better understood, to the

point that coastal hazards and their effects on the natural and built

environments are not random factors, but can be effectively identified,

predicted, and mitigated. Legally, local, governments have become increasingly

subject to suit as they become more involved in coastal area management while

the traditional impediments to government: tort liability are bein g steadily
eroded.65 As one commentator states:

The law of local government liability for hazards is complicated and
rapidly evolving and yet the trend ELcross the nation is unmistakable.
Local governments are liable for damages resulting from natural or
technological hazards where the 10CELl government had or should have had

64Kusler Liability as a Dilemma fo, Local Managers, Pub. Admin. Rev.,
Special Issue 1985, p.118; Platt, Local Qovernment Liability Regarding Coa-5tal
Hazards, in Preventing Coastal Flood Disasters: The Role of State and Federal
ResRonse, Ass'n of State Floodplain Managers (Proceedings of a Symposium,
Ocean City, Md., May 23-25 1983); Somerville, Government Tort Liability, 10
Urban Lawyer 376 (1978); "Storm-Torn Coast to See Gust of Suits," Nat'l. L. J.
3/10/80; Conference Report, Legal Issues in Emergency Management, Senior Exec.
Polic Center, FEMA, August 1984.
@5Huffman, Government Liability for Harm Resulting from Disaster
Mitigation: A Com2arative Study, Government Liability Project, Lewis & Clark
Law School (1985) at i.

201

knowledge of the potential hazards and participated in some wa (even if
quite passively) in an action which resulted in hazard losses.L

Nonetheless, the situations in which governments can find themselves

legally liable for coastal hazard damage are many and varied. The conceptual

danger is unmistakable, and commentators unanimously warn that the floodgates
of litigation are about to open.67

I. Threshold Obstacles

Though legal trends may have opened the floodgates, th4 resulting storm

of litigation has struck local governments with all the force of Hurricane

Gloria. Liability suits simply have not been a common characteristic of the

post-disaster aftermath, possibly because of the legal hurdles a potential

plaintiff must surmount before even presenting his case. There are three sets

of factors which may help explain the relative infrequency of hazard damage

suits against local governments, one rooted in social attitudes, one in the

lingering legal immunities of government, and one in the legal disabilities of

particular potential plaintiffs.

A. Act of God

From one perspective, the notion that a lawsuit against the local

government should be the response to lives and property lost to natural

hazards seems bizarre and peevish. Though acts of the Deity are often invoked

to mask human failings, it is indisputable that no damage and no loss would

occur without the destructive cooperation of nature. Consequently, many

66Kusler, supra at 120. See also Hildreth, Legal AsRects of Coastal
Hazards Manazement, in Edge (ed.), Coastal Zone '80, Vol. II, Proceedings of
Second Symposium on Coastal & Ocean Mgmt., Am. Soc. of Civil Engineers (1980),
at 1370. -
67,Storm-Torn Coast," supra; Platt, supra at 119-120; Hunter, "The
Liability of State and Local Government for Emergency Management," in Legal
Issues in Emereency ManaF-ement. supra at 18-20.

202

coastal residents and landowners tend to bear a stoic, fatalistic attitude,

that coastal hazards are an inevitable part of life, and the damage that

results is not anyone's fault.

Moreover, in the aftermath of a coastal disaster, reconstruction and

rebuilding, rather than recrimination, are likely to be uppermost in many

residents' minds. Coastal residents and property owners may feel the need to

put the past behind them and unite to get: on with the job of putting their

lives and homes back together, especially- since help is likely to be

forthcoming after the storm. In most cases, either federal flood insurance or

disaster assistance will be available, so that: litigation is unnecessary as a

source of immediate compensation for property losses. Residents who consider

themselves lucky to escape a storm with their lives, or without more extensive

property damage, may be more than happy to accept insurance proceeds and

68
emergency loans without a thought of suing local government.

The extent to which attitudes of fatalism and community solidarity

actually inhibit hazardous damage litigation is an empirical question, and

there are some indications that friendly attitudes toward local government

either fade away in time or are changing entirely, at least in California.

With such a litigious population, plaintiff-oriented courts, and a plethora of

dang.-!rous natural hazards, local governments its well as builders, lenders,

developers, and insurers--and almost anyone having anything to do with the

coastal development process--have been mentioned as possible defendants in
California'coastal hazard damage litigation.69

68Wendell, Legal Aspects of Flood Warning and Evacuation in Baker (ed..),
Hurricanes & Coastal Storms. Papers Presented at a National Conference,
Florida Sea Grant College, April 1980, at: 28.
69Somerville, suRra at 389; "Storm-Torn Coast," supra.

203

In addition, the notion that a hurricane is an Act of God has independent

legal significance as well. According to some legal theories, exceptional

natural hazards of sufficient magnitude are a form of force majeure, absolving

governments and other potential defendants from liability since nothing human
effort did or did not do could have avoided the damage.70

B. Sovereign Immunity

Even in plaintiff-oriented courts like California's, suing local

government is not as simple as suing a private party, thanks to the

monarchical anachronism of sovereign immunity. In its barest form, sovereign

immunity means that the state (including its municipal subsidiaries), as an

independent sovereign, cannot be sued in its own courts without its consent.

As a practical matter, sovereign or, more accurately, governmental immunity

has been severely eroded in most states by statute or judicial decision.

An early distinction arose between immune governmental activities--those

inherently governmental functions such as legislation and adjudication which

only governments could perform--and non-immune proprietary functions--those

like transit and utility services which private firms or persons could do.

The governmental/proprietary distinction understandably began to break down as

state and local governments assumed more diverse functions. An alternate

distinction developed between discretionary and ministerial functions, in

70This theory was used by a Louisiana appellate court to overturn the
trial court's finding of local government liability for flood damage in Gabler
v. Regent Development Co., 470 So.2d 149 (La. App. 1985). The North Carolina
Supreie Court also adopted this view in Midgett v. N.C. 5tate Highway Commn.,
260 N.C. 241 (1963), which held that an inverse condemnation plaintiff must
show that a flood damage was a foreseeable result of highway construction and
not an Act of God. A later case, Leg Company v, N.C. Board of Transportation
308 N.C. 603 (1983), overruled Midget@t on this point, adopting the Black's Law
Dictionary definition of Act of God as an event occurring wholly without human
agency. According to the Lea Company court, foreseeability of the damage was
the important factor, not the relative contributions of man and nature.

204

which the government is liable for injuries caused in routine, technical, or

executory activities, but is immune from 'Liability for losses resulting from

policy or legislative functions involving elements of judgment, choice, or

discretion on the part of public officials who are accountable to the voters
and not to the courts.71

Whatever the formulation of sovereign immunity, the scope of immune

activities has been steadily shrinking. "It is pretty standard throughout all

fifty of the United States that every state court that has looked at it has
said that governmental immunity is anachronistic."72 In North Carolina, the

state government has legislatively waived its immunity through the procedures

of the Tort Claims Act, which makes the state and its agencies liable for
torts to the same extent as a private party.73 Local governments, unless

acting as agents under the control of the state--which courts might consider

to be the case when exercising CAMA permitting authority--are not subject to

the Tort Claims Act but are protected by the governmental/proprietary
distinction.74 Counties and cities are not liable for negligent torts

committed in the performance of a governmental function, unless they choose to

waive this immunity by purchasing liability insurance, in which case
localities are liable up to the amount of their coverage.75

7lSchwartz, Legal References on Eartaguake Hazards and Local Government
LiabilitX, Ass'n of Bay Area Govts. (1978) at 1-19; Platt, sui)ra, at 303-4;
Hunter, sLiRra.
72Richman, "St ate/Local Cases in Tort Claims," in Legal Issues in
EmerzencX Management, suDra at 7.
" N.C.G.S. �143-291 et seq.
74Guthrie v. N.C. State Parks Auth., 307 N.C. 522 (1983); Koontz v. City
of Winston-Salem, 280 N.C. 513 (1972); HLiggins v. CitX of Monroe, 73 N.C. App.
44 (1985); Note, Local Goverranent Sovereign ImmunitX: The.Need for Reform, 18
Wake Forest L. Rev. 43 (1982).
75N.C.G.S. ��153A-435 (counties), 160A-485 (cities).

205

The distinction between which local government activities are

governmental and which are proprietary is by no means clear. At one extreme,

the government as a landowner or constructor of public works can clearly be

held liable for dangerous conditions or negligent behavior since its position

here is most closely analogous to a that of a private party. On the other

hand, local governments have a legal monopoly on land planning and development

regulation and often have an effective monopoly of access to studies and data
about local coastal processes and hazard conditions.76 If government actions

in regulating coastal development can be analogized to pure legislative

policy-making, then immunity is likely. But even in regulatory areas,

governments could find themselves owing a legal duty to their citizens and

residents, the breach of which can make them liable in tort.

Although it is generally considered a matter of immune policy whether or

not to adopt flood control measures--and governments are not liable for having

none at all--once a government does embark on flood control it must do so with
all reasonable care and is liable for negligent implementation.77 The

government is responsible for implementing whatever coastal development

policies it decides to adopt in a manner which does not risk unreasonable

harm, and here there is a direct analogy to private tort liability. Under

�323 of the Restatement of Torts, a person who voluntarily undertakes to

provide a duty or service can be held liable for negligently performing that
task.78 Negligence in policy implementation will depend on case-by-case

judicial interpretation, but it has been interpreted to include a faulty

76Richman, "State/Local Cases in Tort Claims," in Legal Issues in
Emergency Management. suDra.
/'Shoaf & Aklufi, A Summary of the Rules of Liability in Water Damage
Cases, November, 1980 Cal. State Bar J., at 459-461; Platt, supra at 304-5;
Kusler suRra at 120.
78Restatement of Torts 2d, �323; Shoaf & Aklufi, supra; Hunter, sMgra.

206

warning of expected flood levels,79 failure to clean out a catchbasin, 80 and
failure to safely accommodate foreseeable stonn runoff.81 North Carolina

cases indicate that localities can be liable for negligent operation of sewer
or drainage systems.82 . I

C. Contributory Neeligence

It is hard to imagine that a person who loses life and property in a

coastal hazard is always completely without fault while the local government

is made to bear the cost. Even the most stubborn coastal resident or

developer knows that hurricanes, storms, and wave action batter coastlines and

have often destroyed lives and property. If people want to take the risk of

building on the coast, then why should they not bear their own losses
entirely?83 The intuitive appeal of this argument is reflected in the

affirmative legal defenses of contributor- negligence and its cousin,

assumption of risk. The negligence of a plaintiff which is a proximate

contributing cause of his injuries (not necessarily the major cause) is a
complete bar to recovery in North Carolina and a partial bar in most states.84

Contributory negligence is undoubtedly a major reasons why there are not

more coastal damage suits against local governments. The developer who plans

79Connelly v. State, 3 Cal. App.3d 744; 84 Cal. Rptr. 257 (1970).
80Carlotto, Ltd. v. City of Ventura, 47 Cal. App.3d 931; 121 Cal. Rptr.
171 (1974).
8lMyotte v. Village of Mayfield, 54 Ohio App.2d 97; 375 N.E.2d 816
(1977); Accurate Die Casting Co. v, City of Cleveland, 2 Ohio App.2d 386, 442
N.E.2d 459 (1981).
82
Ward v. City of Charlotte, 48 N.C. App. 463 (1980); Mitchell v, City of
Hieh Point, 31 N.C. App. 71 (1976).
"See the discussion of voluntarily borne risk in Chapter 2.
84Bigelow v. Johnson, 303 N.C. 126 (1981); Wallsee v. Carolina Water Co.,
265 N.C. 291 (1965). Most states effectively employ comparative negligence,
whereby if a plaintiff is 40% at fault he recovers only 60% of his damages
from the defendant (in some iurisdictions if a plaintiffls over 50% at fault
he recovers nothing). W.'Pt'osser, Handbook of the Law of Torts, �67 (4th ed.
1971).

207

a coastal complex, the contractor who builds it, the bank who finances it, and

the owner who purchases it are all likely to be aware of the general hazards

of coastal development, and may even be aware of site-specific dangers if this

information is available. Thus, in many or even most cases, where -negligence

or fault has contributed to losses from coastal hazards, the fault belongs to

the injured parties themselves.

If contributory or comparative negligence winnows out builders,

developers, and owners of coastal properties, who is left as a potential

plaintiff to sue local government? One possibility is the adjacent landowner

or resident who suffers injury from beach erosion, wave action, or other

gradual coastal processes as a result of development activity sanctioned or

undertaken by the local government. Another likely possibility is a second

buyer, renter, or guest, or a successor in title to the original developer or

owner who takes possession with little or no knowledge of the vulnerability of

the property to catastrophic or gradual coastal hazards. One commentator

states that the recipient of a development permit would be barred by

contributory negligence from bringing suit against the issuing government, but
his successor in title could maintain an action.85

However, for the conduct of private parties to be considered

contributorily negligent, they must act unreasonably in the face of some

actual or constructive knowledge of the coastal hazard risks. Individual
landowners and even @evelopers are not accustomed to taking all the risks of a

site upon themselves, but are used to relying on arguably proprietary

government functions such as hurricane warnings and weather forecasts, flood

hazard maps, and structural hazard mitigation programs to help protect them

85Platt, supra at 307.

208

from coastal dangers. Consequently, lOC4L1 governments may want to require
developers and buyers to sign disclaimers; of government liability. "Such

disclaimers can help reduce potential liability suits by successors in title

to the permittee although disclaimers are no panacea, particularly where
negligence is involved."86 A more effective strategy would be to require the

investigation and disclosure of hazards to investors, borrowers, purchasers,

and residents of potential coastal hazards at particular sites, to put
potential plaintiffs on notice of the risks they are encountering.87

II. Theories of Liability

If potential storm-damaged plaintiff's could surmount the obstacles of the

Act of God notion, sovereign immunity, and contributory negligence, how would

they formulate their legal claims? The legal theories which have been and

might be applied to coastal hazard liability suits can be divided into two

broad classifications: liability without fault, predominantly inverse

condemnation; and negligence, or fault-based liability. These doctrines tend

to overlap when applied to actual fact situations, and their coastal

incarnations are often speculative extrapolations from inland contexts. There

are very few cases in which local governments have been sued for coastal

hazard damages, and the similar cases which do exist-tend to involve periodic

88
riverine flooding and drainage systems. These precedents, however, lack

only imaginative litigants and jurists to apply them to the coastal

environment.

86Kusler, supra at 121.
87Hildreth, suRra at 1379.
88Platt, suRra at 300.

209

A. Liability without Fault: Inverse Condemnatio

As its name suggests, inverse condemnation is a cause of action for a

property owner who-se property rights have been impaired or destroyed--,'taken"

or condemned--by government without paying for it first as provided for in
state and federal constitutions' just compensation clauses.89 Since inverse

condemnation is a constitutional cause of action and necessarily involves

deliberate, discretionary government policy, sovereign immunity is generally

not applicable. The Fifth Amendment and the "law of the land" clause are

basic limits on the power of government, since government can only regulate

and not take private property under the police power. Whether a land use or

development management regulation amounts to a compensable taking or is a

valid, noncompensable exercise of the police power is a question that defies

easy categorization and provides perennial fodder for litigation.

Consequently, local governments, especially those in areas like the coast

which have tried to limit or manage development, are very familiar with

inverse condemnation as a means to challenge development management as a

regulatory taking.

Inverse condemnation liability can arise when government promotes or

facilitates development wh ich later causes permanent, physical injury to

private property. Most inverse condemnation cases are inland, involving

either physical appropriation of property or the diversion of floodwater onto

it by government public works, usually road or highway construction. However,

North Carolina boasts one of the few reported cases where government was sued

for actual coastal hazard damage, Midgett v. N.C. State Highway Commn.. 260

N.C, 241 (1963) (Midgett I), which established the contours of North

Carolina's inverse liability doctrine.

89D. Mandelker, Land Use LAWK �8.19 (1982).

210

Midgett originated in the Ash Wednesday Storm of March 1962. The

plaintiff, a Nags Head landowner, claimed that the State's construction of an

elevated roadway on the soundward side of his property formed a dam which kept

storm overwash from draining away, thus taking his property by creating a

permanent, intermittent floodway. The State's demurrer was sustained at

trial, but the Supreme Court held that the plaintiff had stated a cause of

action in inverse condemnation. According to 1.11idgett I, the plaintiff could

recover damages for a taking if he could show that the flooding was reasonably

foreseeable and directly resulted from a permanent structure built by the

government. The right of natural water overflow was a property right, which,

if interfered with as alleged, would amount to a taking as a permanent

nuisance.

Unfortunately for Mr. Midgett, upon retrial he was nonsuited and appealed

again to the State Supreme Court. The court found, in Midgett v. N.C. Stata

Highway Comm'n., 265 N.C. 373 (1965) (Midgett II), that the plaintiff had made

a prima facie case that the storm overwasti and the subsequent damages were

foreseeable and not an Act of God, but hail not shown that the construction of

the highway had actually caused substantial, permanent damage to his property.

It turns out that drainage culverts under the 'highway had been blocked with

debris at the time of the storm, and the Court suggested that, unless the

drainage system was inherently insufficient as constructed, the plaintiff had

suffered no taking but a "mere injury" through the negligent omission of state

employees in not!cleaning out the culverts, for which the State was not then

liable under the Tort Claims Act.

A more recent case has refined and updated the inverse condemnation

doctrine, though in an inland flooding context. In Lea Co. v. N,C. Board of

Transportation, 308 N.C. 603 (1983), the plaintiff owned an apartment complex

211

near an interstate interchange which backed up floodwaters and damaged the

property. In affirming the plaintiff's condemnation judgment, the Court

reinforced Midgett I's holding that an easement for periodic flooding can be a

taking, and found that the plaintiff had demonstrated that the flood damage--

up to the 100-year flood level--was a direct and foreseeable result of the

road construction.

As the cases demonstrate, there are two key elements in a North Carolina

inverse condemnation suit: foreseeability and causation. A hypothetical

coastal plaintiff must be able to show that hazard damage to his property was

the reasonably foreseeable result of government activity. Given the

sophistication of hurricane forecasting, hazard mapping, and coastal

hydrography, not to mention empirical experience with storm-wrought

devastation, it should not be too difficult to demonstrate that most if not

all of the damage resulting from coastal hazards is reasonably foreseeable by

a local government. In fact, the Lea CompaU court determined that the

212

widespread use and recognition of the 100-year flood concept rendered the 100-

year flood level foreseeable as a matter of law, so that a government

defendant would be deemed to understand the dangers of a 100-year flood, even

if it had no actual knowledge. By contrast, the decision also held as a

matter of law that flooding above the 100-year level was too remote and

speculative to be foreseeable.

Proving causation presents the potential plaintiff with a harder nut to

crack. In the context of a hurricane or other coastal hazard, it is not easy

to segregate damage caused by government projects from the overall havoc of

the storm. The showing of proximate cause will always present a difficult set

of obstacles for a plaintiff damaged by a natural hazard, especially where the

hazard was widespread and affected many people, while the damage was randomly

concentrated on a few specific people and properties. Nonetheless,

governments cannot be liable for any proportion of damages beyond that which
they have been proven to cause.90 In the Lea Company case, the trial court

found that flood damage resulting from waters up to the 26-year flood level

would have occurred anyway, while the inadequate highway culvert was

responsible for causing flood damage from the 26-year to the 100-year flood

levels.

Inverse condemnation suits could become more of a threat to coastal

governments if California inverse condemnation doctrines were more widely

applied. In a line of cases beginning with Albers v. County of Los Angeles,

62 Cal.2d 250, 42 Cal. Rptr. 89 (1962), the California courts abandoned the

foreseeability element and held local governments liable for property damages

which happened to result from a conjunction of' natural hazards and public

90See City of Kings Mountain v. Goforth, 283 N.C. 316 @1973).

213

works, In a standard approaching strict liability. For instance, local

governments have been held liable in inverse condemnation for such acts as

approving subdivision plans in Sheffet v. Los Angeles County, 84 Cal. Rptr.

11, 3 Cal. App.3d 720 (1970), and Blau v. City of Los Angeles, 32 Cal. App.3d

77, 107 Cal. Rptr. 727 (1973), where the street pattern in Sheffet resulted in

the flooding of the plaintiff's land and in Blau was said to have caused a

landslide. The local government can be liable for increased risk resulting in

eventual property damage even if the risk was unforeseeable and the government

used all reasonable care, because "The traditional tort concepts of

foreseeability and fault have been eliminated from inverse condemnation
actions."91

According to the California doctrine, a local government engaged in

construction, infrastructure improvements, or any form of physical development

takes a,"calculated.risk" that no damage to private property will result. If

damage does result, and if the government action is a proximate cause, the

government is liable. Though the factual backgrounds of several inverse

condemnation cases resemble negligence, courts have considered property damage

to result from the normal operation of public improvements rather than

negligent maintenance or repair in order to enable recovery by injured
?roperty owners.92

To apply the California doctrine to coastal hazards, if the government

approved a subdivision, as in Sheffeg and Blau, where the plan involved dune

leveling, canal construction, or other alterations increasing the chances of

overwash and storm surge damage in the event of a hurricane, the government

9lYee v. City of-Sausalito, 141 Cal. App.3d 917,921 (1983).
92For a discussion, see Blatt, The Shadow Before the Storm, supra, pp.
21-28 and cases cited therein.

214.

would assume the calculated risk that a storm large enough to cause

substantial damage will not strike. If the hurricane does in fact strike and

the development configuration can be shown to have been a proximate cause of

damage to other property, the government would be liable. The developer and

builder of the subdivision, by contrast, as private parties could only be

liable for negligent damage to other property (unless nuisance or trespass

were somehow applicable).

If the inverse condemnation theory :is taken to its logical coastal

conclusion, any local government which approved, permitted, contracted for,

constructed, or was in any other way involved in coastal development which can

be shown to have contributed to natural hazard damage would be forced to

compensate the injured landowner. Even in North Carolina, any coastal public

works or infrastructure which have the potential for increasing the

foreseeable risk of natural hazard damage (to the extent of being a legal

proximate cause) could be the basis for liability in inverse condemnation.

For instance, a municipal seawall or groin which erodes an adjacent

landowner's beach would create an inverse condemnation claim for the value of

the lost beach, even though the construction of the seawall was entirely

reasonable and worth far more to the public as a whole than the value of the
landowner's private cost.93 However, the North Carolina courts seem far less

hospitable than their California brethren to natural hazard inverse

condemnation claims, and are likely to require strong showings of both the

foreseeability of the damage and its proximate causation by the government

improvement.

93C.f. Carolina Fishing Pier. Inc. v. Town of Carolina Beach, 277 N.C.
297 (1970), where the town's construction of a berm might have given rise to a
suit in inverse condemnation had the plaintiff actually held title to the
disputed property.

215

The two other forms of liability without fault, trespass and nuisance,

also involve only damage to property, Trespass is the actual physical

invasion of another's property, while nuisance is the unreasonable
interference with the use and enjoyment of another's property.94 The North

Carolina courts have indicated that neither of these common-law causes of

action are available against local governments; where property damage such as

creating a floodway easement would be trespass as against a private party, an
action against a government defendant must sound in inverse condemnation.95

B. Negligence

Since inverse condemnation for natural hazard damage may not be very

significant outside California, most analysts of local government liability

96
for coastal hazard damage have focused their attention on negligent torts.

Aside from the essential element of fault, coastal hazard liability in the

negligent tort framework has two features which set it apart from inverse

condemnation and other aspects of liability without fault. First, sovereign

immunity, to the extent it has survived Tort Claims Acts and the

governmental/proprietary distinction, is still applied extensively, and almost

exclusively, to tort claims. Secondly, tort liability is not restricted to

damage to property. Local governments could conceivably find themselves ,

liable for causing personal injury and even death, for even with the best

prediction, evacuation, and mitigation plans, the possibili ty of hazard-

94Prosser, supra ��13, 86-91
95City of Kings Mtn. v. Goforth, supra; Lea Co. v, N.C. Board of
TransRortation, supra; Ward v. City of Charlotte, 48 N.C. App 463 (1980).
'jo"Negligence--Are You Guilty," 12/23 the Flood Report, Vol. 1, No. 5,
p.1; Kusler, supra; Platt, supra; Conference Report, Legal Issues in Emergency
Management, supra.

216

related fatalities is real.

1. Elements of Nezligence Liability

At the basic conceptual level, the tort of negligence has three elements:

a legal duty or standard of care owed by the defendant to the plaintiff, the

defendant's breach of this duty, and the breach proximately causing damage to
the plaintiff.97

Insofar as they are not immune, local governments, like other legal

persons, owe a duty of reasonable care under the circumstances. But to whom

the duty is owed and how far it extends are critical limitations. The concept

of foreseeability is applied to keep everybody from being liable to everyone

for everything, and it could be used to restrict government liability for

coastal hazard damage. "There is no negligence in the air, so to speak," said

Justice Cardozo in the famous PalsSraf case, meaning that the duty of care and

thus liability could only extend to persons and things that would be
foreseeably injured by the defendant's canduct.98 A local government owes no

duty to protect its citizens against a completely overwhelming and

unpredictable coastal hazard--one which would constitute an Act of God in the

traditional Midgett I sense--but, as this; Guidebook demonstrates, most coastal

hazards can be anticipated and planned for.

This raises the question of when a duty of care is imposed by the law of

negligence. Two exceptions have largely swallowed the traditional rule that

there could be no liability if a government undertook no action. First, the

theory of the Restatement of Torts �323 and its specific application in

riparian law (once a government has undertaken a flood control project, it

97Prosser, supra �30..
98Palszraf v. Long Island RR, Co., 248 N.Y. 339, 162 N.E. 99 (1928).

217

must exercise due care) may establish a duty on the basis of the government's

conduct in operating flood control and other public works projects.

Secondly, local government may be under a mandatory statutory duty to

implement hazard mitigation, which automatically negates the governmental

discretion aspect of sovereign immunity and may render a local government
subject to the standard of reasonable care.99 The origin of such a duty

might be found, for example, in CAMA's requirement that local plans and
permits conform to state guidelines,100 in state laws requiring the
development of a building inspection program,101 or even in the land use

regulation conditions attached to participation in the National Flood
Insurance Program.102 State-mandated coastal programs can help bolster local
land-use restrictions against takings challenges,103 but if state standards

and guidelines are not followed, the local government's neglect could be
actionable as a proximate cause of increased exposure to coastal hazards.104

Though private parties probably cannot directly force local governments to

comply with CAMA, noncompliance with statutes and regulations can at least be

evidence of negligence or unreasonable conduct if lives and property are

damaged as a result.

For a person injured by a coastal hazard to recover from a local

government, he must prove not only that the government owed him a duty, but

that the duty was breached, causing him injury. The breach of a duty of due

99Schwartz, supra at 18; Hunter, supra; Kusler, supra at 120.
100N.C.G.S. �113A-108.
101N.C.G.S. ��160A-411 et seq.;153A-350 et seq.
102The extent to which the NFIP regulations create a binding legal
obligation, either in tort or contract, was at issue in the U.S. v, Parish of
St. Bernard case, 756 F.2d 1116 (1985).
1"Ross, "Legal Issues in Land Use," in Legal Issues'in Emergency
Management, supr .
IU4 Hunter, supra; Kusler, supra at 118-119.

218

care, or fault, requires that the government defendant do something wrong, and

unreasonably wrong as measured by the appropriate standard of conduct (usually

the "reasonable man" standard, or what a reasonable person would do under the

circumstances in question).

What standards would courts use to assess a local government's reasonable
conduct in coastal management or in implementing a statutory duty 'to mitigate

coastal hazards? If they analogize from what a reasonable government would do

under the circumstances, the courts might look at such factors as CAMA

guidelines, NFIP regulations, practices in other coastal communities, and the

defendant jurisdiction's own plans and regulations, to give content to the

reasonableness standard. Consequently, governments may need to think twice

before consigning consultants' reports, development guidelines, and the like

to the usual round file, for such documents (in addition to placing the

government on notice of the extent of potential hazards and of possible

mitigation measures) could be tied into a noose of reasonable care from which

to hang the negligent government in a lawsuit.

Consequently, local government negligence liability for damages hinges to

a great extent on how much leeway (beyond sovereign immunity) courts will

allow for policy judgments on coastal development, and to what extent coastal

development management is a technical function to be measured by applying

objective standards of reasonableness given by statute or regulation. This

question manifestly overlaps with the governmental/proprietary dichotomy of
sovereign immunity and cannot be answered in the abstract. The binding legal

standard of care to which coastal governments can be held will have to await

developments in future coastal liability litigation.
In addition to proving unreasonable conduct, which the inverse
condemnation plaintiff need not do, the negligence plaintiff must bear the

219

same burden of showing causation. The injured party must show that the

government's negligent conduct--for example, not warning of the extent of a

storm hazard or allowing overbuilding in a sensitive area--was the proximate

cause of his.injuries. For instance, a plaintiff would have to show not only

that his property would not have been damaged if the government had enforced

setback and elevation requirements on the developer, or that he would have

been able to leave the danger zone in time if the government had not permitted

development which overloaded the capacity of evacuation routes, but that

government negligence substantially contributed to his injuries.

A government defendant, on the other hand, would probably respond that

there was no proximate or logical causation; that even if it was negligent,

the plaintiff would have suffered damage anyway. Jefferson Parish, Louisiana,

has succeeded with this very argument, convincing an appellate court that any

negligence it or the developer may have committed was causally overwhelmed by
unusually severe flooding in an Act of God.105

It may be possible to better understand the interactions between the

elements of a negligent tort and potential coastal factual situations by

examining three likely hypothetical contexts for local government hazard

damage liability: a negligent failure to warn, negligence involving public

infrastructure or development projects (including negligent construction and

maintenance), and negligent permitting or approval of a private coastal

development which increases exposure to natural hazards.

2. Neglizent Failure to Wa

105Gabler v. Rezent DeveloRment Corp. et al,,, 470 SO.2d 149 (La. App.
1985), cert. den., 476 So.2d 346 (La. 1985).

220

A negligent failure to warn of the existence or extent of natural dangers

is probably the most likely situation for coastal government liability, and

can be further divided into two stages--failure to warn the general public of

a specific imminent hazard (such as an approaching hurricane), and failure to

warn specific parties of the general risk of natural hazards in a particular

location.

In the first sense, many governments have already assumed a duty of

providing hurricane warnings and flood evacuation plans and programs. In

implementing this duty, they must exercise reasonable care, while considering
that weather and hazard forecasting are still an inexact science.106 The

problem of to whom the duty is owed raises the question of the foreseeability

of the injuries resulting from a failure to warn. Plaintiffs would generally

have to prove that the y specifically relied on the government's warning or

lack thereof, and that the government knew of their reliance.

It may seem difficult to make such a proof in practice, but it has been

done. The lead case in the area of failure to warn of an imminent hazard is
probably the oft-criticized Connelly v. State.107 In Connelly, the plaintiff,

a marina owner on the Sacramento River, phoned the State Department of Water

Resources for information on expected flood levels, indicating that he would

secure his boats so as to be safe at that water level. The Department gave

the owner incorrect information, the higher-than-expected floodwaters damaged

his property, and he brought suit alleging negligence. The California

Appellate court overruled the trial court's sustaining of the the State's

demurrer and held, over a vigorous dissent, that the general public duty rule

did not bar Connelly's claim since he specifically relied on a government

106See Wendell, supra.
107-
3 Cal. App.3d 744, 84 Cal. Rptr. :257 (1970).

221

warning. Moreover, neither did governmental immunity bar his claim, since,

once the State had undertaken the policy decision to furnish flood warnings,

the negligent administration of the program was actionable under ordinary

negligence principles. Though Connelly was allowed to proceed with his

negligence claim, he lost on retrial, and the case is sometimes considered an
anomalous aberration.108

However, another Western state court found a similar cause of action to

exist in Brown v. McPherson's, Inc., 86 Wash.2d 293, 545 P.2d 13 (1975). In

that case, the plaintiffs sued a developer and real estate broker as well as

state officials, claiming that the state officials had negligently withheld

information that the development was in a high-risk avalanche area, causing

the broker and dealer to believe that there was no danger, and separately

inducing a concerned outside avalanche expert to assume that the state would

deliver a warning. The trial court dismissed the claim against the state, but

the Washington Supreme Court reversed the dismissal in a 5-4 decision, holding

that the state could be sued for negligence, including inducing reliance by

the avalanche expert on the state's assurances, once the duty to give a
warning was undertaken.109

More recently, a federal district court has held the National

Oceanographic and Atmospheric Administration liable for the deaths of

fishermen who had ventured out into a storm in reliance on a faulty weather
forecast.110 In a suit brought under the federal Suits in Admiralty Act (as

opposed to a state wrongful death statute), the court found that NOAA had

undertaken a duty under Restatement �323 to provide weather forecasts and had

108See Schwartz, supra at 24-5.
109For a discusr'ion see Schwartz, supra at 24-5.
110Brown v. U,S., 599 F.Supp 877 (1984).

222

negligently breached this duty by failing to repair a data-transmitting buoy,

thus proximately causing the mariners' deaths.

The controversial nature of these few warning cases indicates a judicial

reluctance to impose liability for an inherently inexact state of knowledge,

but it also reflects an extreme reluctance to burden emergency management

activities with the specter of legal liability--a policy argument which will

carry even more weight if more governments begin to be held liable in
increasing numbers.111 But from a local government perspective, liability for

weather forecasts and predictions of imminent hazards conditions is not a real

problem since those aspects of emergency management are commonly dealt with at

the state or federal levels of government, as in the three cases above.

However, the existence of Connelly, Brown v. McPherson's, and Brown v.

U.S. portends the possibility of tort liability for more focused local

emergency management activities such as the evacuation of hazardous areas.

The most likely such situation is the negligent conduct or implementation of

an evacuation plan, where personal injury and wrongful death could arise and

ordinary negligence principles and familiar standards of care could be
applied.112 Such situations could include the police and fire departments

forgetting to check to see that no one remained in certain isolated houses,

misdirecting traffic to underwater roads, or failing to barricade dangerous

areas.

The familiar and tractable negligence applications in the context of

conducting evacuations opens up a larger area of potential liability. Just as

evacuation conduct and procedures are to a large extent subject to standard

illHogan, "Overview of Legal Issues in Emergency Management," in Legal
Issues in Emergency Management, SUDra.
112Wendell, supra.

223

operating procedures and ascertainable standards of care, overall coastal area

hazard prediction and planning has reached a level of sophistication which may

allow negligent tort liability to be imposed for such things as overloading

the evacuation capacity of coastal areas through overdevelopment. Carrying

capacity studies and similar analyses have frequently been used to calculate

the maximum population densities and levels of development which will allow a

population to be safely evacuated in the event of a hurricane, given a normal
warning time.113 In some places such as the Nags Head area, the population of

a barrier island or other isolated coastal area may already strain or exceed
the estimated evacuation capacity.114 If a local government, relying on

inadequate evacuation plans and ignoring carrying capacity constraints, allows

increased population through overdevelopment, it may actually be taking an

unreasonable risk with the residents' lives.

An equally significant possibility is liability for failure to disclose

the general dangers of coastal hazards at a specific site. Just as the

implied warranty of habitability and other doctrines protecting buyers have
replaced caveat emptor,115 local governments may also have a duty to disclose

the range of.potential coastal hazards to developers and residents at a

particular location. A necessary precondition to claiming contributory

nsgligence and assumption of risk is to make builders and owners aware of the

hazard risks. If potential plaintiffs are not made aware, they can claim that

the governments negligently failed to disclose significant risks, thus

113See the evacuation capacity studies discussed in Chapter 4. See also
Dept. of City & Regional Planning, Currituck County Outer Banks Carrying
Capacity Stu!fty (1983), and A Carrying Capacity Study of Hatteras Island
(1984), Chapel Hill, N.C.: University of North Carolina.
114Town of Nags Head, 1985 Land Use Plan Update, Ch. 7.
115Hildreth, suRra at 1373; Platt, supra at 301-2.

224

inducing them to build in a vulnerable location which they otherwise might
have avoided, consequently causing them injury.

Local governments can no longer claira that it is none of their business

if a developer wants to take the risk of encoui.-itering coastal hazards because
the developer may not understand the risk as well as the government does.116

At a minimum, local governments seem to owe a duty of disclosure, arising from

their greater access to knowledge about coastal hazards and mitigation

measures. This type of negligent failure to disclose a known risk has arisen
in California inverse condemnation casesll.7 and can be analogized to the Brown

v. McPherson's case, where the government knew about the potential avalanche

danger.

The duty of disclosure can be easily met at little cost to the local
government by recognizing high-risk zones in official land records118 or by

requiring developers or permit applicants themselves to investigate site-
specific hazards.119

116Kusler, supra at 121; Richman, "State/Local Cases in Tort Claims," in
Legal Issues in Emergency Management. SUDr-a.
""'Storm-Torn Coast," supra.
118Hildreth, supra at 1379. See also Model Amendments �4(c), Appendix
119The owners of bluff-top land in Kopetzke v. County of San Mateo, 396
F.Supp 1004 (N.D. Calif. 1975) found that the facts disclosed by their
investigation would make their property unmarketable--the cost of developing
according to applicable standards would cost more than the land was worth--and
they sued in inverse condemnation. The federal district court rejected the
takings claim, stating, "To the extent plaintiffs' losses result from any
inherent geologic defects in their properties,'the ancient rule of caveat
emptor must apply. And to the extent their losses result from the regulatory
activities of the Board based on the geologic findings of the (consultant's]
report, they constitute the unequal burden which citizens are frequently
called upon to bear in the interests of the general welfare(citation
omitted)." 396 F.Supp at 1010. More importantly, had the plaintiffs gone on
and developed the property, and later suffered natural hazard losses, the
County would have been insulated from liability by the owners' contributory
negligence.

225

3. Negligence in Public Works

The second likely context of coastal hazard negligence liability is the

construction, maintenance, and inspection of public works or facilities.

Holding local governments liable for improperly constructing or maintaining

jetties, seawalls, beach nourishment, and dredging channels is a natural

coastal counterpoint to the inland flood control jurisprudence which holds
governments liable for negligent flood control projects.120

It is important to remember that the standard of conduct to be applied to

local government infrastructure may be judicially supplied by reference to

NFIP flood zone construction standards, state coastal statutes and regulation,

the practices of other coastal communities, and a local government's own

coastal management and development plans. The neglect of such standards was

an important allegation in Gabler v. Regent Development Co., 470 So.2d 149

(La. App. 1985), and in St. Bernard Farish. In Gabler, the trial court

overcame all the obstacles of contributory negligence, sovereign immunity, and

uncertain causality to find Jefferson Parish and the developer liable in tort

for hurricane-related flood damage to private property. However, the

Louisiana Appellate Court overturned the verdict, finding that the flooding

was an overwhelming Act of God. Consequently, the negligence of the developer

120See, e.g., Lea Co. v. N.C. Board of Transportation, 308 N.C. 603
(1983); Ward v, City of Charlotte, 48 N.C. App. 463 (1980); Mitchell v. City
of High Point, 31 N.C. App. 71 (1976). California's landmark case, Hayashi v.
Alameda County Flood Control District, 167 Cal. App.2d 584, 334 P.2d 1048
(1959), involved a landowner adjacent to a levee who warned the flood control
district that the levee had been breached. But the district did nothing, and
the plaintiff's property was damaged in the subsequent flood. The court held
that the defendant could be held liable under the tort claims statute, not
inverse condemnation, since the negligent maintenance and disrepair of the
levee breached a duty to maintain flood control facilities. It was the
negligent breach of an assumed duty, not the deliberate planning of public
works, which caused the damage.
ko
I

226

could not be a proximate cause of the plaintiffs' injuries, and the Parish was

found to be not negligent at all. According to the appeals court, the parish

government had made good-faith efforts to improve its drainage systems within
the constraints of funding and COE regulations.121 Moreover, even had the

Parish fully adopted the consultant's recommendations which furnished part of

the trial court's determination of a standard of reasonable care, it would not
have made any difference with such a devastating storm.122 The Louisiana 123
Supreme Court refused to grant a writ of certiorari, over three dissents.

But the same Parish of Jefferson is not yet off the hook, for it is also

a defendant in the $130 million FEMA subrogation suit of St. Bernard Parish.

Part of the government's case is based on the NFIP insurance contract between

FEMA and the Parishes, but much of it is also based on ordinary negligence in

conducting flood control and managing floodplain development, and would

therefore establish an important precedent for associating the legal standard

of coastal care with NFIP regulations.

4. Negligent Issuance of Permits

One count in the St. Bernard Parish suit is based on the third major

context for local government coastal liability, negligent or improper

permitting of coastal development. As this case show s, negligent permitting

of development overlaps with failure to disclose hazards and the negligent

operation of public facilities. Holding local government liable for issuing

permits alone has been considered problematic, but some cases have hinted that

121470 So.2d at 160.
122470 So.2d at 161-2.
123476 So.2d 346 (1985)

227

it might be possible.124 If a local government tried to avoid hazard

liability by letting developers worry about coastal hazards and giving only a

cursory inspection to development plans, the government might be liable for

increasing the exposure of persons and property to a known risk, even if the

developers are also aware of the risk. Governments owe a duty of reasonable

care in regulating development, aside from full disclosure of hazards, so that

in allowing a development known to be hazardous (even if the developer knows

it too) would be actionable by later residents or adjacent landowners unaware

of and exposed to the coastal hazard risk.

C. FEMA Subrozatio

The importance of the St. Bernard Parish case warrants a separate

discussion of the possible effects of the subrogation claim as an adjunct to

local government negligence liability. An injured person or property owner is

not the only person with standing to bring a damage suit. If the plaintiff is

insured, the insurer can pay off the claim and then sue the responsible party

itself in order to recoup its claim payment. The insurer as subrogee is said

to step into the shoes of the insured, inheriting all appropriate causes of

action, rights, and remedies while subject to all defenses, such as
contributory negligence, which would have been good against the insured.125

124Kusler,supra; Platt, supra at 307-8; County of Clark v. Powers, 96
Nev. 497, 611 P.2d 1072 (1980). One North Carolina case, Phillips v, Hassett
Mining Co., 244 N.C. @7 (1956), in holding that the issuance of a state permit
did not absolve the mining company from liablity for flood damage caused to
another landowner, stated, "The General Assembly is without authority to take
the property of one citizen and give it to another for private gain." The
question of whether the government itself would be liable for damage resulting
from the issuance of a development permit is an open question.
125Scheibel, suRra.

228

The federal government, as an insurer under the NFIP, is suing the Louisiana

Parishes as the subrogee of insured individuals. Until recently, FEMA had

been reluctant to enforce NFIP conditions by suspending noncomplying

governments from the program, thus injuring individual homeowners through
denial of insurance coverage.126 Consequently, as flood insurance claims

payments became an increasing drain to the Treasury in an era of budget

deficits, not to mention the continuing eXpOSUre of more people and property

to coastal hazards, FEMA decided to counterattack the local governments
directly.1127

In 1981 the federal government initiated the first in a series of suits

which grew to comprise a consolidated $130 million claim in damages against
the Louisiana Parishes of Jefferson and St. Bernard, as well as the state, 128
associated levy districts, and various builders, engineers, and surveyors.

The government claimed that the Parishes had exacerbated damages in four

separate flooding events (including the overwhelming "Act of God" at issue in

the Gabler case) through such transgressions ES the negligent planning and

design of drainage systems, failure to correct known defects, alterations

which made drainage worse, violations of NFIP regulations, failure to inspect

and maintain drainage systems, and the negligent approval of new development
in-a.-eas known to be subject to flooding.129

The suit was not just a subrogation of tort claims, however; the

government also claimed the breach of a contract based on the NFIP
regulationil3O:.

126Scheibel, supra at 17.
127Scheibel, supra at 12-13. Flood insurance claims are thought to be
75% subsidized by general federal revenues, with only 25i of the costs covered
by premium payments.
128756 F.2d at 1119; Justice Dept. Petition for Rehearing en banc in U.S.
v. Parish of St. Bernar , May 21, 1985, at 4.
1 4'J
130 Scheibel, supra at 13.
FEMA also asserted a nuisance claim which was dropped on appeal. 756
F.2d 1119.

229

The conditions which the Parishes were alleged to have breached were two
in number. First, they failed to implement and enforce the specific land
use and control requirements which they had obligated themselves to
enforce. As a result, a number of buildings were built below the flood
level elevation requirements which the Parishes promised to meet.
Secondly, even more specifically, the Parishes failed to carry out
unequivocal promises concerning the establishment of ade uate drainage
systems involving pumps, canals, levies, and culverts.13Y

On the basis of this breach of contract, FEMA sought a mandatory

injunction which would force the Parishes directly to adopt sound flood

control policies. The contract claims and its associated injunctive remedy

were the government's major hope from the start, because the subrogation

remedy to recover money damages in tort would not accomplish the goal of NFIP

compliance and would be harder to win at trial due to problems of proof.

After a complicated series of legal maneuvers, U.S. v. St. Bernard Parish

eventually reached the Fifth Circuit Court of Appeals for a decision on the

legal remedies available. The Court of Appeals hold that the FEMA had no

right under the NFIP and could not pursue a contract claim. Subrogation,

however, was endorsed as a viable cause of action, over the Parishes'
objections.132 FEMA was disturbed by the loss of its most promising legal

theory, and both the federal government and the Parishes petitioned

unsuccessfully for a rehearing en banc. The Parishes, not willing to face

even subrogation liability., then petitioned the U.S. Supreme Court for

certiorari--which was denied--while the government decided not to seek review
of the contract issue.133

As it stands now, the federal government cannot sue local government

directly to force compliance with NFIP regulations, but can proceed in

131756 F.2d at 1129 (Williams, J., dissenting).
132756 F.2d 1116. The dissenter on the three-judge'panel thought that
the Parishes were liable for breach of contract, but that no injunctive relief
was available since FEMA could simply drop them from the program. 756 F.2d
1128-30.
133Parish of St. Bernard v. U.S.. cert. den,, 106 S. Ct. 830 (1986).

230

subrogation. St. Bernard Parish will now either be settled or go back to the

District Court for trial on the tort issues of negligence and causation, which

carry their own set of uncertainties. The enforcement tools left to FEMA are

at this point twofold: it can suspend noncomplying communities from the

program, or it can seek out noncomplying communities which have suffered flood

damage, sue them each, and try to prove specific elements of negligence and

causation for each case. The complexity and cost of hurricane damage

negligence litigation, the case-by-case variations in factual situations and
legal rules,134 and the uncertainty of recovery mean that subrogation is not

likely to be an effective remedy for nationwide program enforcement.

CONCLUSION

Local governments can never be absolutely certain that their coastal

hazard mitigation measures are immune from legal challenge, either before or

after the storm. Nonetheless, a hazard mitigation strategy firmly based on

appropriate technical data and tested legal techniques will find strong

judicial support against constitutional attack and damage claims. It is

possible to steer clear of both horns of the liability dilemma, but only if

local governments are aware of the legal as well as the natural constraints on

coastal development and development regulation.

On the one hand, hazard mitigation measures can restrict the development,

use, and value of private property in an effort to protect the whole community

from coastal storms. The property owner may seek to have the local ordinance

invalidated on statutory or constitutional grounds or seek damages for a

1342,508 local governments are estimated to have jurisdiction over
coastal shorelines, including the Great Lakes. Platt, supra at 299.

231

regulatory taking. However, the constitutionality of land use regulation has

long been established, and the judicial construction of development management

is fairly well settled. Under most circumstances, given the intrinsic

importance of coa4tal hazard mitigation and CAMA's regulatory mandate for

mitigation planning, courts will uphold any reasonable local ordinances under

the rational basis test.

On the other hand, the prospects for local government liability for storm

damages are much less certain. Many writers on the liability issue sound -

notes ranging from cautious warning to alarm. Governments are told that they

must take measures now to protect themselves against the specter of liability,

since possible future suits cannot be avoided by doing nothing. " . . . can

you take reasonable steps to prevent damage? If you can-and you don't do it,

you're going to be negligent, and this is one of those cases where government
inaction can lead to liability!"135

But despite the dangers of liability awards at a time of municipal

insurance crises and tight budgets, government liability for coastal hazard

damage does not seem imminent, The North Carolina courts have not decided any

cases which are directly on point, so that potential plaintiffs would have to

blaze a new trail and surmount many existing legal and factual obstacles in

order to collect. Before even being allowed to present their case, plaintiffs

must overcome the barriers of Act of God, sovereign immunity, and contributory

negligence. They mus,t then prove that some government act or omission

proximately caused their injuries and establish the legal elements of the

appropriate cause of action.

Finally, even if a local government were permitted by the CAMA and NFIP

regulations to "do'nothing," it can still take fairly modest measures which

135Richman, supra (emphasis in original); Kusler, LUp_r_a_; Platt, su2ra.

232

may fully or partially insulate it from constitutional challenge and damage

liability. For instance, instead of tryii.-ig to assess and balance the risks of

increased development, local governments may be more inclined to try shifting
the risk onto the private sector. Proposals such as requiring disclaimers136

and mandatory hazards disclosure in advertisements, sales contracts, and land

records are aimed at forcing developer, builder, and buyer to make the

calculation of what is "reasonable" themselves, and at little or no cost to

the local government. This information dissemination strategy can help

establish a possible contributory negligence defense for later litigation, as

well as providing a factual basis for restricting hazardous developments.

136See N.C. Division of Emergency Management Model Flood Damage
Prevention Ordinance, Article 3, �G, Warning and Disclaimer of Liability,
Appendix II.

Chapter 8

Concluding Notes

Local coastal governments in North Carolina face many pressures in

planning for and responding to growth. Reviewing development proposals,

providing sufficient public services for an expanding population, and meeting

health, safety, and general welfare requirements all tax the time and

attention of local officials. With such insistent daily demands, it is easy

to put aside the uncertain and intangible threats of hurricanes. However,

hurricanes are a statistical certainty along the North Carolina coast; they

are bound to strike somewhere, sometime. Thus, an out of sight, out of mind

approach to coastal storm hazard policy is irresponsible and dangerous while

the long-term exposure of people and property continues to increase with

accelerating coastal development. Planning and policies to mitigate hurricane

hazards must precede the storm, or it will be too late.

Moreover, local governments cannot rely on existing state or federal

programs to protect their residents, lives and property. True, many existing

efforts help soften the hurricane's blow: the North Carolina Coastal Area

Management Act regulates development in Ocean Hazard Areas of Environmental

Concern, the National Flood Insurance Program protects against property loss,

and federal disaster aid helps rebuild communities after the storm. But

neither these nor any other state or federal programs have the authority or

resources to understand local conditions and meet every local need. CAMA

leaves most development decisions in the hands of local government; and

federal programs, both for pre-storm flood insurance and post-storm disaster

aid, are having their budgets slashed and new strings attached. Unless local

governments take an active role in hazard mitigation, the upward spiral of

destruction, reconstruction, and destruction will only continue.

234

This guidebook has advocated a strategy of growth management to mitigate

coastal storm hazards. Based on the simple proposition that the people and

property associated with new development should be located away from hazard

areas, a growth management program is well within the capabilities of every

local government and can be tailored precisel- to suit local conditions. By
Y

using the guidebook, a coastal government can work through the complete

process of applying growth management to coastal hazard mitigation and can

fully implement the hazard mitigation sections of its CAMA-mandated land use

plan.

Though a community's land use plan should already form the basis of any

hazard mitigation program, the guidebook provides some basic background on

two contexts of policymaking: Chapter 2 presents the natural hazard context of

risk assessment, which determines the value a community places on reducing

hurricane risks; and Chapter 3 outlines the intergovernmental context of

state, federal, and local programs, within which hazard mitigation must fit.

Working from this background, communities can then use Chapter 4 to determine

the how and where of coastal storm hazards--what areas are subject to

flooding, storm surge, and other hazards, and.which are most vulnerable and

difficult to evacuate.

once a local government has analyzed what and where its hazard zones are

and the degree of development restrictions to be applied to them, it must then

develop a combination of instruments to achieve its hazard mitigation

objectives. Chapter 5 presents a wide variety of tools and techniques, from

the simple and familiar (zoning, subdivision regulation) to the complex and

exotic (transferable development rights, performance zoning). Appendix II

presents examples of some of these techniques.. Most of them are meant

primarily to reduce hazard exposure before the storm, but the post-storm

235

reconstruction period presents particular pressures and opportunities for

mitigation. Chapter 6 discusses how local governments can plan in advance to

ensure orderly rebuilding and take advantage of post-storm conditions.

In any type of development regulation, legal considerations are never far

from the surface. Local governments have often hesitated to restrict or

manage growth for fear of legal challenges, but failiag to take action may in

some cases risk more dangerous challenges. However, a properly designed

hazard mitigation program should have nothing to fear from either a "taking"

or a liability suit, and Chapter 7 provides a detailed discussion of what

situations to avoid.

Though this guidebook is a fairly lengthy reference, the contributors

hope that one theme stands out: increasing exposure to storm hazards is not an

inevitable cost of coastal development, because a growth management system can

help make the North Carolina coast safe for all to enjoy. The guidebook has

shown that hazard mitigation is both technically and legally feasible; the

rest is up to local communities.

Appendix I

The Nature of Hurricane and Coastal Storm Hazards

I. The Meteorological Event and its Characteristics

A. Nature of Hurricane

A hurricane is a cyclonic storm formed and fueled through the release of
latent heat from ocean water condensation.1 Its primary characteristics are

strong circular (counter-clockwise) winds, ranging from 75 mph to as much as

200 mph, and a significant drop in barometric pressure. Atlantic hurricanes

(those forming the the Atlantic Basin) generally develop during the period

from June to November, with the majority of hurricanes forming in the months

of August, September and October (see Figure I.1). The magnitude of

hurricanes is rated according to the Saffir-Simpson Scale (see Table 1.2) with

a category 1 hurricane being the least severe and category 5 the most severe.

Between the years 1899 and 1980, there have been 138 hurricanes which have

crossed the United States coastline, for an approximate annual average of
1.7.2 (See Table I.1.) Of these, 56 have been classified as major -- that

is, hurricanes which are classified as a category 3 or larger. Florida has

received the largest number of hurricane landfalls followed by Texas,

Louisiana and North Carolina.

lRobert Simpson and Herbert Riehl. The Hurrigane and its Impact. Baton
Rouge, LA: Louisiana State University. 1981.
2Charles Neumann et al. Tropicgl Cyclones of the North Atlantic Ocean.
1871-1980. Asheville, NC: National Glimatic Center. 1981.

237

Table 1. 1

Number of Hurricanes (Direct Hits) Affecting U.S. and
Individual States. 1899-1980, AccordinF to ;affir/Simpson Hurricane Scale

Category Number Major
Area 1 2 3 4 5 All Hurricanes

U.S. (Texas to
Maine 49 33 41 13 2 138 56
Texas (TX) 9 9 8 6 0 32 14
(North) 4 3 2 4 0 13 6
(Central) 2 2 1 1 0 6 2
(South) 3 4 5 1 0 13 6
Louisiana (LA) 5 5 7 3 1 21 11
Mississippi (MS) 1 1 4 0 1 7 5
Alabama (AL) 4 1 4 0 0 9 4
Florida (FL) 16 14 15 5 1 51 21
(Northwest) 9 6 5 0 0 20 5
(Northeast) 1 7 0 0 0 8 0
(Southwest) 5 3 5 2 1 16 8
(Southeast) 4 10 7 3 0 24 10
Georgia (GA) 1 4 0 0 0 5 0
South Carolina (SC) 6 4 2 1* 0 13 3
North Carolina (NQ 10 3 7 1* 0 21 8
Virginia' (VA) . 1 1 1* 0 0 3 1
Maryland (MD) 0 1* 0 0 0 1 0
New Jersey (NJ) 1* 0 0 0 0 1 0
New York (NY) 3 0 4* 0 0 7 4
Connecticut (CT) 2 1* 3* 0 0 6 3
Rhode Island (RI) 0 1* 3* 0 0 4 3
Massachusetts (MA) 2 1* 2* 0 0 5 2
New Hampshire (NH) 1* 0 0 0 0 1 0
Maine (ME) 4 0 0 0 0 4 0

Notes: Asterisk (*) indicates that all hurricanes in this category were
mov-trg in excess of 30 miles per hour. (Data derived from Hebert and Taylor
(42)).

Source: Neumann et al. 1981.

239

Table 1. 2

The Saffir/Simpson Hurricane Scale

Scale No. 1 - Winds of 74 to 95 miles per hour. Damage primarily to shrubbery,
trees, foliage, and unanchored mobile homes. No real damage to other
structures. Some damage to poorly constructed signs. And/or: storm surge 4
to 5 feet above normal. Low-lying coastal roads inundated, minor pier damage,
some small craft in exposed anchorage torn from moorings.
Scale No, 2 - Winds of 96 to 110 miles per hour. Considerable damage to
shrubbery and tree foliage; some trees blown down. Major damage to exposed
mobile homes. Extensive damage to poorly constructed signs. Some damage to
roofing materials of buildings; some window and door damage. No major damage
to buildings. And/or: storm surge 6 to 8 feet above normal. Coastal roads
and low-lying escape routes Inland cut by rising water 2 to 4 hours before
arrival of hurricane center. Considerable damage to piers. Marinas flooded.
Small craft in unprotected anchorages torn from moorings. Evacuation of some
shoreline residences and low-lying island areas required.
Scale No. 3 - Winds of 111 to 130 miles per hour. Foliage torn from trees;
large trees blown down. Practically all poorly constructed signs blown down.
Some damage to roofing materials of buildings; some window and door damage.
ome structural damage to small buildings. Mobile homes destroyed. And/or:
storm surge 9 to 12 feet above normal. Serious flooding at coast and many
S

smaller structures near coast destroyed; larger structures near coast damaged
by battering waves and floating debris. Low-lying escape routes inland cut by
rising water 3 to 5 hours before hurricane center arrives. Flat terrain 5
feet or less above sea level flooded inland 8 miles or more. Evacuation of
low-lying residences within several blocks of shoreline possibly required.
Scale No. 4 - Winds of 131 to 155 miles per hour. Shrubs and trees blown
down; all signs down. Extensive damage to roofing materials, windows and
doors. Complete failure of roofs on many small residences. Complete
destruction of mobile homes. And/or: storm surge 13 to 18 feet above normal.
Flat terrain 10 feet or less above sea level flooded inland as far as 6 miles.
Major damage to lower floors of structures near shore due to flooding and
battering by waves and floating debris. Low-lying escape routes inland cut by
rising water 3 to 5 hours before hurricane center arrives. Major erosion of
beaches. Massive evacuation of all residences within 500 yards of shore
possibly required, and of S'ingle-.ttory residences on low ground within 2 miles
of shore.
Scale No. 5 - Winds greater than 155 miles per hour. Shrubs and trees blown
down; considerable damage to roofs of buildings; all signs down. Very severe
and extensive damage to windows and doors. Complete failure of roofs on many
residences and industrial buildings. Extensive shattering of glass in windows
and doors. Some complete building failures. Small buildings overturned or
blown away. Complete destruction of mobile homes. And/or: storm surge
greater than 18 feet above normal. Major damage to lower floors of all
structures less than 15 feet above sea level within 500 yards of shore. Low-
lying escape routes inland cut by rising water 3 to 5 hours before hurricane
center arrives. Massive evacuation f residential areas on low ground within 5
to 10 miles of shore possibly required.

Source: Charles J. Neumann et al., 1981.

239

Figure 1. 1
TROPICAL STORMS AND CYCLONES 1886-1980

Number of tropicai storms aid hurriewas

observed on each day,May 1-06c*mber 31,1886 through 1960
100

go-

so-

70-

60-
102
(A so-
U. Ll
0
cc 40-
Uj
30-
z 20- "A

10.

MAY JUN JUL AUG SEP OCT NOV DEC

Legend

storms and hurricanes
Source:Nsuenann at al,im. hurricanes

240

A number of attributes of the hurricane phenomenon influence its effects

on the natural and human environments, including: storm intensity, storm
speed, storm size, and path or track of the storm.3 Typically estimated in

terms of barometric pressure and wind speed, the intensity of the storm is a

critical component for predicting its influence on man. Specific elements of

storm intensity include surge flooding, and wave and wind impacts. Each of

these is discussed in more detail below. A second attribute is the speed at

which the storm is moving. This will have several effects. For example, a

faster moving storm may create hazard conditions in a particular location for

a shorter period of time, with implications for the vulnerability of people

and property. Also, faster moving storm has an influence on wind

characteristics, as it increases wind speed in the direction the storm is

moving, while decreasing the speed of wind moving in the opposite direction.

Storm size is also an important factor and refers to its spatial magnitude.

While intensity and size are clearly related, there can be much spatial
variation for a given intensity.4 The size of the storm clearly affects the

range and extent of its impact. The orientation of the path of the hurricane

to the coastline is also critical to predicting its potential impact, as well

as the curvature of its track. A hurricane may strike land from a number of

different orientations, with significantly different effects. The track of

the hurricane will also have implications for its duration.

3
Don G. Friedman. CoMuter Simulation in Natural Hazard Assessment.
Boulder, CO: Institute for Behavioral Science, University of Colorado (1974).
4Friedman, suRra.

241,

B. Hurricane Forces

1. Winds

High winds is often the first image people have of a hurricane. By

definition a hurricane has winds of at least 74 mph, and may reach over 200

mph (see Table 1.3). Hurricane-force winds for the average hurricane are

approximately 100 miles in diameter and some 350-400 miles across in gale
force winds.5 For instance, Hurricane Hazel of 1954 packed hurricane winds

for a diameter of 120 miles and gale force winds (40 mph) for widths of

approximately 300 miles).

Wind circulation can be divided into three zones: (1) the outer zone

with wind speeds as low as 20-30 mph, extending to within 20- to 30-miles of

the center where winds may be as high as 120-150 mph; (2) a region of maximum

(and constant) winds surrounding the eye; and (3) the eye itself, which is

relatively calm. The average diameter of the hurricane eye is approximately
15 miles, commonly extending to 25 miles in larger, mature hurricanes.6

In addition to high sustained winds, hurricanes can generate gusts from

25 to 50 percent higher than sustained levels. As we have said, the highest

winds are found in the upper right-hand quadrant of the moving hurricane

directly surrounding the storm eye. The magnitudes of wind speed once the

hurricane has reached landfall will depend on local characteristics of the

natural and built environments. For example, trees and other natural features

can slow sustained winds and in turn provide protection for people and

property.

5Gordon E. Dunn and Bonner I. Miller. &-tlantic Hurricanes. Baton Rouge,
LA: Louisiana State University Press.

6
Dunn and Miller, suRra.

242

Table 1. 3

Maximum Winds Recorded in Hurricanes

1. *Jan. 11, 1878 Mt. Washington, N.H. +186 mph Robinson
+140 mph true velocity

2. Sept. 18, 1926 Miami Beach, Fla. 128 mph for 5 min.
123 mph true
138 mph for 2 min.,
132 mph true

3. Sept. 13, 1928 San Juan, P.R. 150 for 5 min., 135 true;
estimated 160, 1 min.,
144+ true

4. *April 12, 1934 Mt. Washington, N.H. 188 mph gusts 229, extreme
231, true 225 mph

5. Sept. 21, 1938 Milton, Mass. ++121 for 5 min., 186 for
shorter period

6. Sept. 21, 1938 Mt. Washington, N.H. 186 mph

7. Oct.. 18, 1944 Havana, Cuba 163 mph

8. Sept. 17, 1947 Hillsboro Lighthouse, Fla 155 mph, extreme 121
maximum

9. Aug. 26, 1949 Jupiter Lighthouse, Fla. 132 mph, extreme 153

10. Sept. 27-28, 1955 Chetumal, Mexico 175 mph

*The Mt. Washington velocities were not observed during hurricanes
+Extreme
++Probably some orographic effect

Source: Dunn and Miller, 1960.

243

2. Storm Surze

Storm surge is the most significant effect of hurricanes and the element

of a hurricane most responsible for loss of life. The surge represents the

"amount of water pushed upwind ahead of a hurricane advancing landward from a
large body of water."7 Surge is created through several key physical effects

associated with hurricanes:

1. the pressure effect

2. the direct wind effect

3. the effect of the earth's rotation

4. the effect of waves

5. the rainfall effect.

The pressure effect results from the dramatic reduction in barometric

pressure that accompanies a hurricane, causing an upward suction action on sea

level. It is estimated that for each inch reduction in barometric pressure,

an accompanying foot of sea level rise will result. The direct wind effect is

the most significant influence on surge. Hurricane winds generate surface

currents that, when confronted by a coastline, create tremendous wind "set-up"

effects and result in high surge levels. The extent of this set-up effect is

highly dependent upon the configuration of the coastline. For example, the

existence of bays and estuaries may serve to "funnel" wind-driven surges,
increasing the natural set-up, and creating a "piling-up" effect.8

Consequently, the shallower the water close to shore, the greater will be the

piling-up of surge. Because the area of greatest winds is found in the upper

7Simon Baker. Storms, People and Property in Coastal North Carolina.
Raleigh: UNC Sea Grant. 1978.
8Don Friedman. "The Storm Surge Along the Gulf and South Atlantic
Coastlines." Hartford, CT: The Travelers Insurance Company (1971).

244

right quadrant of the moving hurricane, the area of greatest surge tends to be
from 10 to 35 miles to the right of the hurricane track.9

The influence of the earth's rotation in the Northern Hemisphere is to

increase any current's movement to the right, and the effects of this factor

will depend on the precise configuration of the coastline.

The character of the surge as felt on the coast will be dependent upon a
number of factors, including the following:10

1. Shoreline configuration

2. existence of bays and estuaries where waters can converge

3. off-shore bottom conditions (bathymetry)

4. land elevation (topography)

5. the characteristics of the storm itself (see previous sections).

It is clear that shore bottom configuration has much to do with the kind

of surge experienced, and in turn the type of damages experienced. A sloping

seabottom, shallow close to shore, will tend to generate, for example, a high

degree of surge run-up. This run-up effect will be even more extensive in

circumstance where bays and estuaries exacerbate the run-up by funneling it,
thus flooding areas at greater elevation.11 On the other hand, steeply

sloping shorelines, in which water is deeper closer to shore, will reduce the

surge run-up effect, but will permit breaking waves closer to shore, i.e.,

with attendant structural damages to buildings on the immediate shoreline.

Land elevation is a key element in predicting extent of surge effect, and

where land has been subsiding, for whatever reasons, we can expect more

extensive effects. Evidence suggests that sea level has and will continue to

ise, making the surge effects of a hurricane even more significant.

9Friedman, "The Storm Surge," s_upra.
10Friedman, "The Storm Surge," supra.
liFriedman, "The Storm Surge," gupra.

245

The extent and damage from hurricane. storm surge is also influenced by

the existence of high or low tide when the storm comes ashore. In areas along

the coast where the size of the tide is substantial, this factor can sometimes

mean the difference between a minor surget or a devastating surge,

3. Wave Action

Along with storm surge hurricanes C4Ln create severe wave action. The

effects of waves during hurricanes can bet extreme. A breaking wave carries a

large momentum and can "run up" on a sloping shore to elevations considerably

higher than the height of the wave itself. The extent of wave action will

depend on the direction and speed of the wind and upon coastal configuration.

The deeper the ocean bottom is close into shore, the greater will be the

magnitude of wave action. The height of waves are estim ated to be

approximately 50% of the depth of the storm surge. For instance with a static

storm surge of 8 feet, 4 foot waves could be expected to occur on top of this

surge. In this case the total combined surge and wave height would be 12

feet. The influence of waves in generating coastal property damages has in

recent years been appreciated. The National Flood Insurance Program now

incorporates wave height into its computation of base flood elevations in

coastal areas.

4. Rainfall and Inland Floodina

Although hurricanes can vary dramatj'cally in the amount of rainfall they

generate, this is an addiiional hazard associated with such storms. Large

amounts of rainfall can induce major flooding in inland areas not otherwise

vulnerable to hurricanes and coastal storms. Hurricane Agnes in 1972, for

instance, produced tremendous property damage and loss of life in inland areas

far removed from the coastline. Hurricane Camille in 1969, left over 100 dead

246

in Virginia and West Virginia as a result of flash flooding created by its

rainfall.

5. Tornados

It is also common for hurricanes to spawn tornadoes. These are most

likely to be generated by the forward right hand quarter of the hurricane in

advance of the eye. Tornadoes generated by hurricanes are generally less

severe than regular tornadoes, and are shorter in duration and involve
shorter, narrower paths.12 Hurricane Beulah holds the record for the largest

number of tornadoes generated by a hurricane -- some 115 confined tornadoes in
Texas.13

II. Effects of Hurricanes on the Built Environment14

There would be little cause for concern about hurricanes if not for the

location of people and property in the direct path of these natural forces.

The hurricane characteristics and forces described above create a number of

different forces on buildings and facilities and these are briefly reviewed
below A. Air Generated Forces Appligd to Buildings

Figure 1.2 presents graphically the different physical forces created by

hurricane winds working against coastal buildings. Two primary types of wind

forces depicted are: direct and suction (or negative), each working either

12Joe R. Eagleman. Severe and Unusual Weather. New York: Van Nostrand
Reinhold, Company. 1983.
13Eagleman, suRra.
14This section is drawn heavily from John Hodges-Copple, A Review and
Analysis of Building Codes and Construction Standards to'Mitigate Coastal
Storm Hazards. Chapel Hill: UNC Center for Urban and Regional Studies.
July, 1985.

247

laterally (horizontally or sideways) or on roof and floor systems.15 Direct

lateral forces, for example, are those that act on windward (the direction

'from which the wind is coming) vertical surfaces, such as walls or piles.

Negative or suction lateral forces act on the leeward (the direction toward

which the wind is blowing) side of vertical surfaces, and also on surfaces

which are parallel to the direction of air flow. Forces are also exerted

against interior walls as a result of rapid drops in outside air pressure (not

illustrated on Figure 1.2).

Wind forces can also lead to the destruction of certain public facilities

and infrastructure. Hurricane winds typically damage power and telephone

lines. Hurricane Diana which struck the North Carolina coast in 1984 resulted

in the destruction of the public water tower in Carolina Beach, as a further

example.

B. Water Forces

Figure 1.3 depicts the various watez-generated forces exerted against a

structure. These forces include both hydrostatic forces (caused by the

pressure of still water bearing against one side of a surface) and

hydrodynamic forces (caused by the movement of a flowing water pushing against

or flowing around a surface). Other forces include the battering-ram effects

that may be exerted by water-borne debris, and the scour and erosion which can

result in the undermining of building foundations.

Water.forces created by hurricanes and coastal storms also wreak havoc on

certain public facilities and infrastructures. Roads and highways can

experience severe erosion and scour, for instance. Public sewer and water

lines can also be destroyed or damaged from flooding.

15Hodges-Copple, supra.

248

Finally, Figure 1.4 provides a summary of the primary types of building

damages which can result from the wind and water forces generated by

hurricanes.

249

Figure 1. 2
WIND GENERATED FORCES

windward leeward

1.01rect lateral pressure against windward surfaces of walls and plies.

2.Suction on leeward surfaces of walls and plies and an surfaces parallel to the wind direction.

3.DIroct downward pressure on windward root slop*.*

4.Uplift suction on leeward roof slope.

s.DIr9ct uplift pressure an floors and docks.
6.01roct uplift pressure on save&

7.Latoral Impact pressure from debris.

S.Dlrect uplift pressure on interior root surf&ct.**

9.DIroct lateral pressure on Interior walls.**

*Dowding an roof slope md building shape.

**If wind penetrates to Interior of building. downward force Id also affect floor.

250

Figure 1. 3
WATER GENERATED FORCES

WATER GENERATED FORCES ACTING ON STRUCTURES.

WATER GENERATED IMPACTS ACTING ON SOILS WHICH CAN WEAKEN STRUCTURES.

4
2 3

1.UplIft pressure on foundation.

2.UplIft pressure an floomdecks and bracing.
3,4.Latoral pressure from storm surge.*
S.Lat*ral pressure from waves.

6.1mpact from debris.
7.Hydrodynonic suction or drag on piles and other vertical surfaces.**
$.Oscillation caused by rhythmic wave action.
6

3*
401

9.Scour/orosion.

1O.Liquitaction.
*Aff *cts all vertical surfaces with dfff erent water levels on opposite sides.

**Aff*cto all wailspiles and other surfaces around which water flowiL

251

Figure 1. 4
EFFECTS OF STORM FORCES ON BUILDINGS

Structutal collaPse Caused by wind or waves.

Overturning caused by wind or waves.

Lateral movement caused by wind or waves.

Unonchored structures float off foundation.

Collapse due to racking and twisting.

252

Figure 1.4 continued
EFFECTS OF STORM FORCES ON BUILDINGS

Debris battering 1)y wind or wave driven oblscts.

Structural collapim caused by failure of underlying soil,

either through occur, llquif action or shoreline retreat.

Structural failure cioused by connection separation caused

by wind or water forces

low pressure
Failure due to atmospheric pressure diff orOnC46
high
77:@ @high caused by hurricane spawned tornado.
pressure

SOURCEPlikey,ot al,1963.

APPENDIX II
MODEL HAZARD MITIGATION ORDINANCES

1, Baytown. Texas: Hazard Mitigation/Post-Disaster Policies

2. tyrtle Beach, South Carolina: Coastal Protection Overlay Zone

3. Kill Devil Hills. North Carolina: Ocean Impact Residential Zone

4. North Carolina Division of Emergency Management: Model Flood Damage
Prevention Ordinance

5. Model Amendments to DEM Model Flood Damage Prevention Ordinance

6. Model Post-Storm Moratorium Ordinance

254 HAZARD MITIGATION/POST-DISASTER POLICIES: BAYTOWN, TX
Monday, Sept. 12, 1983
ATTACHMENT 2 Tuesday, Sept. 13, 1983

ORDINANCE NO. 3675

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
BAYTOWN DECLARING THE EXISTENCE OR OCCUPANCY OF
STRUCTURES WITHIN THE BROWNWOOD HAZARD AREA A NUISANCE;
PROHIBITING THE REPAIR, ERECTION, AND/OR CONSTRUCTION OF
STRUCTURES WITHIN THE BROWNWOOD HAZARD AREA; PRO-
HIBITING THE OCCUPANCY OF STRUCTURES WITHIN THE
BROWNWOOD HAZARD AREA; CONTAINING A SAVINGS CLAUSE;
REPEALING INCONSISTENT ORDINACES; CONTAINING A PENALTY
CLAUSE; AND PROVIDING FOR THE PUBLICATION AND EFFECTIVE
DATE HEREOF.
*********************************************************************

WHEREAS, Hurricane Alicia has effectively destroyed all of the structures
within the Brownwood Hazard Area, as this area is described in Ordinance No. 3669;
and

WHEREAS, due to the extremely low elvation within the hazard area,
repeated future flooding with resulting damage will definitely occur; and

WHEREAS, since houses elevated on piers received substantial damage from
Hurricane Alicia, it is likely that even elevated structures would be damaged by
future hurricanes; and

WHEREAS, City Council has determined that any structures built within the
designated area would be a safety hazard, and dangerous for persons to occupy; and

WHEREAS, many of the homeowners within the area have indicated their
intent to relocate outside the area; and

WHEREAS, it has been determined would take in excess of four million
dollars to rehabilitate the water and sewer system within the Brownwood area to a
properly funcitoning system; and

WHEREAS, the City has in the past prohibited the subdivision of flood-prone
areas where the cost of providing utilities and governmental service would pose an
unreasonable economic burden; and

WHEREAS, allowing the rebuilding of structures within the hazard area would
create an unreasonable economic burden upon the remaining taxpayers of Baytown;

255 HAZARD MITIGATION/POST-DISASTER POLICIES: BAYTOWN, TX

Monday, Sept. 12, 1983

costs of reconstruction of the public water and sewage systems and renders
doubtful the advisability of construction upon piers; and

WHEREAS, it would be in the public interest, and would promote public
safety and the public welfare to prohibit rebuilding of structures within the hazard
area; and

WHEREAS, the property within the said area will still have many useable
open-space purposes that will not be affected by a ban on building permits; and

WHEREAS, the existence of occupancy these highly flood-prone structures in
the Brownwood Hazard Area is declared to be a nuisance, due to the safety and
health hazard these structures pose, due to the unreasonable expense of maintaining
service to them, and due to such other reasons as listed above; NOW THEREFORE,

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:

Section 1: The existence or occupancy of structures within the Brownwood
Hazard Area is declared to be a nuisance.

Section 2: That the repair, erection, and/or construction of structures within
the Brownwood Hazard Area as described in Ordinance No. 3669, is prohibited, and
building permits shall not be issued for the repair, erection, and/or construction of
any structure within said area.

Section 3: The prohibition of occupancy of any structure within the
Brownwood Hazard Area as adopted by Ordinace No. 3669 is extended indefinitely,
and the occupancy of any structure within the Brownwood Hazard Area is hereby
declared unlawful.

Section 4: All ordinances or parts of ordinances inconsistent with the terms
of this ordinance are hereby repealed, provided however, that such repeal shall be
only to the extent of such incosistent, and in all other respects this ordinance
shall be cumulative of other ordinances requlating and governing the subject matter
covered by this ordinance.

Section 5: If any provision, section, exception, subsection, paragraph,
sentence, clause, or phrase of this ordinace of the application of same to any

256 HAZARD MITIGATION/POST-DISASTER POLICIES: BAYTOWN, TX

person or set of circumstances, shall for any reason be held unconstitiutional, void
invalid, such invalidity shall not affect the calicity of the remaining provisions of
this ordinance or their application to other persons or sets of circumstances and to
this and all provisions of this ordinance are declared to be severable.

Section 6: Any person who shall violate any proveision of this ordinance shall
be deemed quilty of a misdemeanor and upon conviction shall be punished by a fine
of not more than Two Hundred and No/100 ($200.00) Dollars.

Section 7: This Ordinance shall effect immediately from and after its
passage by the City Council of the City of Baytown, except for the penalty
provision, which shall take effect from and after ten (10) days from its passage by
City Council. The City Clerk is hereby directed to give notice hereof by causing
the caption of this ordinance to be published in the official newspaper of the City
of Baytown at least twice within ten (10) days after passage of the ordinance.

INTRODUCED, READ, and PASSED by the affirmative vote of the City
Council of the City of Baytown, this the 8th day of September, 1983.

MARY ELIZABETH WILBANKS,
Mayor Pro Tempore

ATTEST:

LYNDA KILGORE, Deputy/City Clerk

APPROVED:

RANDALL B. STRONG, City Attorney

257 HAZARD MITIGATION/POST-DISASTER POLICIES: BAYTOWN, TX

RESOLUTION NO. 897

A RESOULTION OF THE CITY COUNCIL OF THE CITY OF BAYTOWN
PLACING THE PUBLIC ON NOTICE THAT A PORTION OF THE
BROWNWOOD SUBDIVISION IS A FLOOD-PRONE, HAZARDOUS AREA,
TO WHICH THE CITY IS UNABLE TO PROVIDE CERTAIN SERVICES;
AND PROVIDING FOR THE EFFECTIVE DATE.
....................................................................

WHEREAS, certain properties within the Brownwood Subdivision in Baytown,
Texas are within a special flood hazard area, to-wit:

1) All of Blocks A, B, C, D, F, X, Y, AA, BB, XA, XB, XC, XD, XF,
XH, XI, XJ, Lots 9, 10, 11, 12, and 13 of Block V, Lots 12, 13, 14,
15, 16, and 17 of Block Z, Lots 1 through 36 in Block XE, and Lots 3
through 29 in Block XK, of the Brownwood Subdivision, a subdivision
located in Baytown, Harris County, Texas.

2) All of Block K and Lots 1, 2, and 3 of Block 1 of the Wooster
Subdivision, a subdivision located in Baytown, Harris County, Texas.

3) The tracts known as Wooster Outlot 4; Wooster Outlots, Block 7;
and Wooster Outlet, Block 9, all located in Baytown, Harris County,
Texas.

4) All of Linwood Park, a subdivision located in Baytown, Harris
County, Texas.

all of which is hereinafter referred to as "Brownwood," and

WHEREAS, these properties are within, and have been within for many years,
the 100-year floodplain; and

WHEREAS, the Federal Emergency Management Agency has identified
Brownwood as a Coastal High Hazard Area; and

WHEREAS, these designations, combined with the City of Baytown's desire to
participate in the National Flood Insurance Program, places numerous restrictions on
construction and repair of structures within Brownwood; and

WHEREAS, Brownwood has suffered servere flooding on repeated occasions in
the past, resulting in millions of dollars in property losses; and

WHEREAS, the water and sewer systems within Brownwood have been
damaged to the extent it would require millions of dollars to restore these systems
to acceptable levels; and

WHEREAS, such an expenditure for the purpose of serving a small number of
people would not be an appropriate expenditure of tax money; and

WHEREAS, the roads and drainage ditches are subject to flood damage
causing the need for costly repairs in order to maintain them; and

258 . I
HAZARD MITIGATION/POST-DISASTER POLICIES: BAYTOWN, 7X

WHEREAS, the City wishes to lillow development of flood-prom woes Wdy
when such deveJopment 1) is BMIDPri8te in light Of the probability of future flood
darnage and the need to reduce flood losses, 2) is an acceptable social and

economic use of the land in relation to the hazards involved, and 3) does not

increase the danger to human life; and

WHEREAS, the Brownwood area does not contain adeQuate vehic ular access

and escape routes when normal routes are blocked or destroyed by flooding
.; and

WHEREAS, the City of Baytown desires to provide public notice that there

are numerous problems with using property in the Brownwood area for other than

open space use; NOW THEREFORE9

BE IT RESOLVED BY THE: CITY COUNCIL OF THE CITY OF BAYTOWN,

TEXAS:

Section 1: That the public be notified that the Brownwood area, as specified

above, is within the Coastal High Hazard Area and subject to severe flood hazards.

Section 2: That because Erownwood area is a high flood risk area, there are

significant hazards to using property there for residential purposeL

Section 3: That the City of Baytown has determined that funds are not

available at this time provide water or sewer service to this area, and if funds were

eve0ablet such an expenditure would be an imprudent expenditure of tax money.

Section 4: That the City of Baytown reasserts its stated policy of strict

enforcement of its flood hazard regulations.

Section 5: This resolution shall take effect immediately from and after its

passage by the City Coiurcil of the City of Baytown.

INTRODUCED, READ, and PASSED by the affirmative vote of the City
Council of the City of Baytown, this the 13th day of December, 1984.

ATTEST-. ALLEN CANNON, Mayor

EILEEN P. HALL, City Clerk
Wd',

APPROVED-

-R-ANDALL B. STRONG, C ttorney

259 OVERLAY ZONE: MYRTLE BEACH, SC

ORDINANCE NO. 84-47

STATE OF SOUTH CAROLINA
COUNTY OF HORRY
CITY OF MYRTLE BEACH
AN ORDINANCE TO AMEND ZONING
ORDINANCE SECTIONS 32-3, 32-4
32-S AND 32-6 TO PROVIDE FOR A
COASTAL PROTECTION OVERLAY ZONE,
SUPPLEMENTARY REGULATIONS, AND
TO AMEND OCEANFRONT DEVELOPMENT
STANDARDS

WHEREAS, a technical study of beach erosion was conducted

through the South Carolina Coastal Council and by a summary report

dated January 1984, it was clearly shown that it would be in the

public interest to adopt revised regulations g.overning land use

and erosion control seaward of the projected 50-year shoreiine.

NOW, THEREFORE, THE COUNCIL OF THE CITY OF MYRTLE BEACH HEREBY

ORDAINS that the Zoning Ordinance for Myrtle Beach be amended as

follows:

(1) SECTION 32-3: ESTABLISHMENT OF ZONING DISTRICTS is amended
by adding:

CP - Coastal Protection (overlay zone)

(2) SECTION 32-4: USE GROUPS is amended by adding:

28. OCEANFRONT ACTIVITIES, LIMITED

Principal Uses: Elevated sundecks, patios, walkways,
gazebos, sta7r-s, lighting, fencing, landscaping, Iiieguard
stands, safety equipment, sanitation receptacles, picnic
tables and seating, sand dunes and vegetation.

(3) SECTION 32-5: USE, DIMENSIONAL, PARKING AND SIGN REGULAi'IONS
is amended by adding:

ZONING DISTRICT

CP, Coastal Protection (overlay :one)

260 OVERLAY ZONE: MYRTLE BEACH, SC

OBJECTIVES

To provide supplementary regulations for oceanfront
property seaward of the projected 50-year shoreline to
control erosion, preserve and maintain a recreational
beach, safeguard propery and promote public safety. The
"CP" designation is not a primary district classification,
but is to be attached to existing district designations
as an overlay which subjects affected property to supple-
mentary regulations.

USE GROUPS PERMITTED

No. Name

27 Pool Related Activities, Limited
28 Oceanfront Activities, Limited

Existing uses permitted in primary zoning classifications
are subject to Oceanfront Development Standards contained
in Section 32-6, subsection 27 of this ordinance and Coastal
Protection (CP) Supplementary Regulations contained in
this Section.

Special Exceptions: When permitted by the primary zoning
designation, amusement rides, miniature golf courses and
similar open air amusement uses may be permitted seaw,;rd
of the Building Control Line by the Zoning Board of Adjust-
ment upon such conditions as may be necessary to promote
the purposes and objectives of 'the "CP" regulations.

DESIGNATION OF CP ZONES

All existing zoning districts lying east of Ocean Boulevard-
(State Highway #73) or Beach Drive are hereby designated as
Coastal Protection Zones. A Building Control Line is estab-
lished on those portions seaward of the projected 50-year
shoreline (50-year future dune crest) as shown on the follow-
ing Table of Coastal Protection Zones Building Control Line.
The Official Zoning Map is hereby amended to show the bound-
aries of said Coastal Protection Zones and Building Control
Line. The designation "CP" is added to the primary zoning
classification (eg., AC-l-CP).

COASTAL PROTECTION (CP) SUPPLEMENTARY REGULATIONS

1. Building Control Line
The projectc-.' 30-year shoreline shall be a building controL
line and no new structures shall be crected on the sca,,;.,ird
side of that building control line in a CP zone aft@--r the
effective date oE this ordinance except those specificallY
listed as permitted uses in Use Group 23.

-2-

MMM MM Ism MMM MM Mir

TABLE OF COASTAL PROTECTION ZONES BUILDING CONTROL LIME

DISIAIICE VISTAIICE DISIA11CE FADII CEIIIERLIIIE
F11011 BE I 11CE11 OCEAU 00III-EVAIII) (ft)
fiEcloll ZOI(E STREET 11011111EQ14 A0JACEur
1-11111 SIRFETS Present 50-Year
Ideal Future
Oune Crest DAina Crest

II. Limit 0 613

82nd Ave. H. 613
SA 75 1,090 1,056
81st Ave. H. Gas 317 1,062 1,0118
1,025 380 1.0hi 1,007
80th Ave, I'm 306 1.001 960
79th Ave. 11. 1,799 0\
391, 961 929
78th Ave. #1. 2,191 191 924 890

2 77th Ave. 11. 2,504 805 851
6A 2,663 79 617
323 041
76th Ave. u. 2,90G 390 811h 010
7A 75th Ave. 11. 3,3016 300 700 7511
3.684 90 694 660
74th Ave. u. 3,7711 613 579 rn
73rd Ave. 11. 4,165 191 500 466
72nd Ave. 11. 391
4,556 197 370 336
4,753 337 303
71st Ave. 11. 4,946 191 341 307
70th Ave. 11. 315
9A 332 114 300
5,653 31 329 295
69th Ave. 11. 5,684 329 295
Bridge on
Ocean Blvd. 6,159 472 368 334

Pago I-
-CP Table

DISMICE DISTMICE DISTAUCE FROlf CEIHERLIIIE
1`11011 11E)WIFIl OCEAll 11DULEVAIII) (it)
RIC1018 ZOISE STAIIOIJ STREET flull I 110111 ADIALE1111' -Year
1.11111 sill FEIS Present 50
fit) fit) ideal Future
Oune Crest Oune Crest

florth 67th Ave. It. 6,631 472 341 309
40
(culit. 98 6,611 350 3141 307
66th Ave. It. 7,021 375 317 283
65th Ave. It. 7,396 302 292 258
64th Ave. 11. 7,770 312 2GG 232
0,090 66 245 211
63rd Ave. 11. 6.156 240 206
sod

Highland Circle 8,744 394 200 166
Sunset Terrace 9.130 172 138
162
12A 9,300 1,103 121
13A 10,1101 so 98 fill
Seaside Place 10.1153 1,151 nn 54

5 )%A Beach Place 11.606 78 44
14C Ilamptop Circle 12,550 91,16 125 91 0-4
1,350
16A 13,90U 411 391 0

6 52nd Ave. It. 11,930 360 429 395
51st Ave. Il. 14.30G 354 1109 375
50th Ave. It. 111,6GO 3GS 391 357
49th Ave. It. 15,025 371 331 03
301 rr)
4001 Ave. 11. 15,40G 351 317 >
47th Ave. It. 15,900 37 320 206
17A 16,U25 310 20'j
46th Ave. 11. 16, 3 so 325 301) 215 0
44th Ave. It. 17,OGA 361 290 1 256
19A 43rd Ave. .11. 17 "M 360 200 24G
331
MGM = m m M m A? m m m m

pagb 3.
-CP Table

DISTAIICE 1`11011 CEIIIERLIIIE
I)ISTAIICE DISMICE OCEAIi DOULEVAIII) JI'Ll
1`11011 OMEN
REGIO11 ZOIIE STATION STREET 110111111-1111 ADJACEIII Present 50-Year
LIM I SIRFEIS Ideal rtittire
M) Duna Crest Dima Crest

6 41nd Ave. 11. 17,763 312 271 237
(culit. (cont.) 41st Ave. 14. 18,125 3G? 206 172
190 18,430 111 177 I'll
40th Ave. 11. 10,1108 50 171 141
39th Ave. 11. 18,050 162 !08 151,
30th Ave. 11. 19.211 361 100 151,
37th Ave. It. 19.S75 362 200 166
375
36th Ave. ?L 19,950 265 211 ON
15th Ave. It. 20,306 356 2911 260
21C 34th Ave. 11. 20,fiGI 351 352 318
33rd Ave. It. 21,013 350 3fil 329
315 3fil 329
32nd Ave. H. 21,300
362

Centfal 7 list Ave. 11. 21,750 25 169 135
22A 21,775 130 169 135
30th Ave. 11. 22,113 312 175 141
23A 22 .425 50 100 1@6
29th Ave. It. 22,475 179 1115
20th Ave. 11. 22,631 35G 171 137
138
27tis Ave. 11. 23,169 1611 130
23C 21,231 62 1133 129
26th Ave. It. 23,794 561 101 11,9
240 23,031 37 184
361
25th Ave. 11. 211 .194 lot, 150 M
- 162 w

Page 4,
-CP Table

DISTANCE DISTAUCE DISTAIICE FROIl CEIIIERLIIIE
DEIWI-fll OCEAN 1101ILEVARD (f t
BECIOIJ ZOIIE STATIOll STREET 111JI(IIIIIIII ADJAC1111'
5 1111 E I S Present 50-Year
(11) Ideal ruLure
Dune Crest Dune Crest

162
Central 0 281C 24,35G 225 27G 2112
(ciblit. 2%tlt Ave. It. 211.501 so 305 271
25A 24,611 625 300 266
23rd Ave. It. 25,25G 100 233 199
25C 25,156 275 222 100
22nd Ave. If. 25.631 375 226 192
.%21st Ave. 11. 26,OOG 3114 232 190
20th Ave. 11. 26.350 237 203
31
260 26,301 330 237 203 4-
119tl% Ave. 11. 26.719 375 224 190
18th Ave. 11. 27.0911 209 175
litio Ave. It. 27.450 156 195 161
27C 27,606 213 109 155
ifith Ave. H. 27.019 250 1 1ju i56
270 20,069 50 191 157
15Lh Ave. It. 20,119 191 157
14LIi Ave. 11. 2 0. )10 354) 193 159 rxI
2en 28,51JG 37 193 159
219

0
9 28C 20,725 531 197 M
200 29,25G US 177 Iq3
I I th Ave. It. 29.531 319 102 Ilia
110th Ave. 11. 29,050 101 153
29A 30,175 325 191 159
119
9Lh Ave. U. 30,294 195 Ifil
30A 30.730 44q 200 166
100

Page 3

-CP Table

DISMICE DISTAUCE VISMICE FA011 C17111011-111E
f Wit BENCIFIl OCEAll 1301JI-EVAND (ft)
pfc1oll 1014E STATION STREET lion I I if fill ANACE111' Present 50-year
L 11111 SWEETS
Ideal future
Duna Crest Duna Crest

100
Central 10 Otis Ave. 11. 30.830 375 202 Ifis
(cunt.) 308 11.113 too 201 171
7th Ave. if. 31,311 512 207 173
fth Ave. It. 31.025 363 206 172
IIA 32,180 106 205 171
5th Ave. It. 3 2. 2 94 1101 206 172
4th Ave. It. 32.775 238 212 176
31C 33,013 215 Ifil
268 0\
3rd Ave. It. 31.2al 401 234 200 U1
328 2nd Ave. It. 33,761 243 269 235
32C 34,006 2A 240
219
Ist Ave. 11. 34 , 2 2 5 206 219 105

South 11 Ist Ave. S. 311,1131 369 150 116
2nd Ave. S. 311,800 125 luo 66 0
33A 311,925 981 60 <
3rd Ave. S. 35,100 175 100 66 M
550

Withers Swash 35,650 156 122
so
3ho 35,700 725 167 133
M 6th Ave. S. 36.425 338 304 270
Mi Ave. 5. 3 6, 1 c3 100 330 29G
35A 36,663 lio 30's
2G2 M
fith Ave. S. 31,125 350 VoO 31@
9th Ave. S. 37,1175 362 320
25
350 37.500 261 361 329

Page 6
-CP Table

DISMICE DISIA11CE DISIAIICE FAOII CUITERIA11E
F111111 BE IWITII OCEAII UOUIEVARD (ft)
Accloll ZUIJE STATIOll STREET 11ORML1111 AI)JA('f 11 f
silit:EIS Present SO-Year
(ft) Ideal Future
Dune Crest Dune Crest

263
South 11 10th Ave. S. 37,761 362 367 333
lcoiit. Iltis Ave. S. 30,125 350 373 339
36C 12th Ave. S. 30,475 375 378 344

13th Ave. S. 30.050 356 322
l4th Ave. S. 3!),108 330 31fi 302
87
37A 39.275 311 297
250
15Lh Ave. S. 39,525 361 321 291
l6th Ave. S. 39,060 362 321 207
l7th Ave. S. 40.250 115
- 211
30A 46,461 ISO 311 277
10th Ave. S. 4O.G13 cl-I 304 270
19th Ave. S. 41.150 75 277 210
300 41,225 363 271 239
20th Ave. S. 161,560 275 2G3 229

390 OG3 255 221
21st Ave. S. 012,013 ISO 252 210
031
400 Williams Ave. 42.050 OG9 237 203 0
4 oil 43,719 250 216
25Lh Ave. S. 113,015 15G 255 221
41A 1116,119 2101 262 228
26th Ave. S. 44,375 256 266 232
475 r,
27th Ave. S. 4'i,B',O 272 230 M
1916 w
2001 Ave. S. 115,330 279 216
375

Pago 7

-CP Table

V IS I MICE 11151AUCE DISMICE 1`11011 C11111714.111E
1-11011 flu I V11111 OCEAII IJOIJILVAtill (1.)
HIG1011 ZOIIE STA11011 STREET 1101i I I It fill Ali JAMIT
I till] 5 1 Iff E I S Present 50-Year
I. Ideal rutiffe,
Duna Crest Duno Clest

375
soistis 16 42A 45,711 2114 250
(Cusit. 29th Ave. S. 45,763 so 207 253
43A lifi,G25 OGI 361 327
250

S. Umli 46,675 -- --

Ln
C)

268 OVERLAY ZONE: MYRTLE BEACH, SC

2. Existing Uses Non-Conformi:ng
The regulations in this section shall apply to CP zones
in lieu of the provisions of Section 322-8 for only those
structures made non-conforming by the applicati,)n of the
CP zone designation. Section .32-8 shall apply to struc-
tures which were non-conforming under the primiary zone
designation.

All permanent structures iiacluding, but not limited to
buildings, swimming pools, and parking lots located,
under construction, or permitted seaward of the building
control line on the date of-enactment of this provision
are non-conforming structures in any CP zone. Use of
these non-conforming structures may continue in their
present locations. However, the non-conforming structures
will be subject to the following regulations:

(a) Reconstruction (including replacement) of existing
buildings and swimming pools shall be allowed as
long as the structures are not enlarged or expanded,
do not exceed the gross square footage (excluding
enclosed parking) which existed on the lot before
the enactment of this ordinance, and do not require
erosion control structures prohibited by applicable
regulations. No reconstruction of a non-conforming
building may be seaward of the existing building
line. In addition, such -reconstruction or replace-
ment of structures is allowed only if such new struc-
tures conform to all design standards, landscaping
requirements, parking requirements and drainage
regulations applicable at the time of reconstruction,
redevelopment, or replacement. The intent of this
section is to allow the existing buildings to be ro-
placed without exceeding the total gross square foot-
age and setback encroachment existing on the lot
prior to the passage of this ordinance.

(b) Conforming principal use buildings hereafter con-
structed which exceed 25 feet above grade or additions
to existing conforming buildings which exceed 25
feet above grade will not be allowed if the building
control setback area of said lot contains a principal
use building or portion thereof.

(c) In the event that a hurricane, explosion, fire or
other disaster shall damage any parking lot so that
the repair cost of the parking lot exceeds sixtN (60)
percent of its replacement- cost, reconstrucrion will
only be allowed if design standards, landscaping re-
quirements and drainage regulations are met SUbject
to the primary zoning requircments.

_10-

269

(d) Nothing in this provision is intended to prevent or
limit the ability of a property owner to make normal
repairs or to perform maintenance necessary to keep
non-conforming structures in a safe and sound condi-
tion in their present location.

3. Erosion Control Structures

Construction and maintenance of temporary or permanent
erosion control structures are subject to Oceanfront
Development Standards in Section 32-6, subsection 211 of
this ordinance.

4. Pool Special Exception

A new swimming pool may be permitted seaward of the build-
ing control line as a special exception granted by the
Zoning Board of Adjustment pursuant to the procedures of
Section 32-9 upon the following conditions:

(a) No pool shall be constructed nearer than twenty (70)
feet to the present ideal dune crest established by
this ordinance, measured from the vertical portion
of the pool exceeding six (6) inches.

(b) No pool related structures except decks shall be
allowed.

(d) The Board of Adjustment shall impose such addi-
tional requirements as it shall deem necessary and
appropriate in order to insure that the purposes
and objectives of this ordinance are promoted.

(e) No variance of any requirement@ of the primary dis-
trict regulations or the "CP" overlay regulations
shall be granted in connection with allowance of a
pool special exception.
S. Vested Risht Development
There are two types of vested rights development which
are defined and permitted through these regulations.
They arc addressed as follows:

270

(a) For a structure proposed to be constructed seaward
of the building control line to have a vested right
to proceed with construction following the passage
of these Coastal Protection (CP) Supplementary Regu-
lations, the following conditions must be met:

1. A set of building and structural plans must have
Veen submitted prior to the effective date of
this ordinance. Such plans must comply with the
zoning ordinance and. building code and must in-
clude a site plan, exterior building elevations,
room or unit designs, floor design, amenities
design and if a parking deck is involved, all
layout and exterior elevations must be shown.
2. Construction of the project must be initiated
no later than December 4, 1985.
3. Once construction is initiated work must be
continuous on the project. However, if mul-
tiple phases are! approved pursuant to 5.(a)l
above, a period of not more than one year can
elapse between the issuance of a certificate
of occupancy for that phase and the initiation
of construction on a subsequent phase.

(b) For a structure which is non-conforming as a resuit
of these regulations to have a vested right to pro-
ceed with construction for a planned expansion, the
following conditions must be met:

1. The owner of the property must submit plans to
the Building Department by April 1, 1985 which
reflect the intent of the existing building to
be expanded at the time of its initial construc-
tion. The building must have been structurally
designed and constructed to accommodate the planned
expansion. Specifically, the following criteria
must be met.
� electrical wiring must be appropriately
located in the existing building to tie
in to the proposed addition;
� plumbing lines and stub-ups should be in-
stalled for the planned addition;
certification from a structural engineer
that the existing building is designed and
constructed to allow for the planned expan-
sion horizontally and/or vertically; and
0 fire systems of the existing building must
'be designed and installed to accommodate
additional expansion (including Cire pumps,
standpipe systems and alarm systoins)
2. Const-ruction of the planned and approved expan-
sion must be initiated by April 1, 1967.

-12-

271

6. Setback Impact Allowance

To relieve some of the development burden which may re-
sult from the application of the 11CP" regulations and
to promote removal of non-conforming uses from the Coastal
Protection area, minimum sideyard requirements imposod
by the primary zoning district regulations, are modified
according to the impact of the Building Control Line upon
the useable lot area.

For lots being redeveloped in the A-S, A-5-1, and A-S-2
zoning districts which are impacted by the Coastal Pro-
tection Overlay Zone, Base Figures for building heights
permitted before imposing additional sidevard setbacks
have been increased to allow the property owner greater
building flexibility with the remaining buildable area
during the redevelopment process.

To provide for a setback impact allowance the schedule
below indicates Adjusted Base Figures which proportionally
compensate the property owner for the amount of his prop-
erty impacted by the Coastal Protection Overlay Zone if
redevelopment of the lot occurs in a manner in complete
conformance with all codes of the City of Myrtle Beach.

Percentage of Remaining
Lot Impacted by
Building Control Line Height Adjusted
After Deduction of Compensation Base Base
Minium Yard Requirements in Feet Figure Figure

0-14 10 40 so

15-25 20 40 60
26-35 30 40 70

36-45 40 40 so

46 and more 50 40 90

Base Figure: The maximum height a building is permitted to be
constructed in the A-5, A-5-1 and A-5-2 zoning districts before
additional sidevard setback requirements (in excess of 7.S feet)
are imposed in those primary zoning districts.
** Adjusted Base Figure: The adjusted max imum height n buildin,',
is permitted to be constructed in the A-59 A-5-1 and A-5-2 ::on-
ing districts before additional side),lard setback requirciTicnts
(in excess of 7.5 feet) arc imposed in those primary zoning
is applicable only to
districts and those lots impIcted by the
"CP" overlay zone which redevc1opc in a nianner in comple te C011-
formance with all codes of the City of 'Myrtle Beach.

272

(4) SECTION 32-6: EXCEPTIONS AND SUPPLEMENTARY REGULATIONS,
Subsection 27 is hereby amended to read as
follows:

Section 27 Oceanfront DevelOpMenc Standards

27.1 Purpose and Sco)e

27.1.1 Purpose

The purpose of this oceanfront development
ordinance is to provide regulations that will
control erosion, eliminate confusing, cluttered
and haphazard development on the oceanfront,
to provide standards of development that will
preserve and protect the public beach and at
the same time, protect adjacent private prop-
erties and to establish a review procedure.

27.1.2 Scope

The provisions of this ordinance shall apply
to the construction, erection, alteration,
use, location, size and materials of any sea-
wall, bulkhead, revetment or other erosion
control structure or any alteration to the
primary sand dune or beach.

Section 27.2 General Provisions

27.2.1 No vertical bulkheads, seawalls or other per-,ia-
nent erosion control structures shall be permitted
except when erosion eminently threatens permanent
improvements, buildings and swimming pools, which
existed on the subject property on the date this
regulation was adopted, or which are constructed
landward of the predicted fifty (50) year shore-
line.

27-2.2 Before any erosion control structure is permitted,
the applicant must demonstrate to the Coastal
Council and the City of Myrtle Beach that all
reasonable soft erosion control measures, such as
sandscraping, sandbagging, and renourishment from,
an approved external sand source, have been at-
tempted and will not. protect the property identi
fied as being eminently threatened. Every effort
must be made to renourish the beach and sand dune
system from an external sand source approved hN
the South Carolina Coastal Council and the Cit%
of Myrtlc Beach.

273

27.2.3 Any permitted erosion control structure shall be
designed and constructed conforming to guidelines,
methodology and standard criteria outlined in the
"Shore Protection Manual", U.S. Army Coastal Engi-
neering Research Center, U.S. Government Printing
Office. For the purpose of this ordinance the
design storm shall be the ten-year storm.

27.2.4 All applications-for an erosion control structure
shall be prepared and stamped by a South Carolina
Registered Engineer in the field of Civil, Struc-
tural, or Coastal Engineering.

27.2.5 No beach sand shall be used for backfill material
during construction of any erosion control structur

27.2.6 Any erosion control structure must be located on
private property.

27.2.7 Any sun deck in conjunction with the erosion contro
structure must be located on private property.

27.2.8 No storm drains or pool drains shall be allowed
on the beach.
27.2.9 The applicant must provide stairs to the beach
when an erosion control structure is built.

27.2.10 Sandscraping shall be considered as an appropriate
temporary solution to erosion, in lieu of strLIC-
tural control measures. However, sandscraping
must be conducted in accordance with the beach
scraping plan approved by the City of Myrtle Beach
and the South Carolina Coastal Council.

Section 27.3 Plan Submission and Review Procedures

27.3.1 All applications for-erosion control structures
shall be submitted in triplicate to the City
Building Department. At the same time, applica-
tion must be made to the South Carolina Coastal
Council using the appropriate forms.

27.3.2 All applications shall be reviewed by a Cit,@
Staff Committee consisting of: the City Manager,
Planning Director and Public Works Director.

27.3.3 The City Staff Committee shall evaluate the re-
quest to see that it conforms to the general
provision. They shall report their findings to
the Building Official, the applicant and the
South Carolina Coastal Council. They may rccom-
mend alternatives to the applicant.

274

27.3.4 The Building Official shall not issu e a build-
ing permit without the approval of both the
City Staff Committee and the South Carolina
Coastal Council. Any appeals shall be to the
Zoning Board of Adjustment.

Section 27.4 Existing Erosion, Control Structure

27.4.1 Permit for Repa r

A permit is requir-od. to repair existing erosion
controi structures. However, if the cost of re-
pair will exceed. fifty (50) percent of the value
of the structure at the time of the application,
the criteria in the general provisions will apply.
A written request to repair must be submitted
to the Building Officials.

(5) Ordinance No. 84-16 adopted on April 17, 1984, is hereby repealed.

(6) This ordinance shall not become effective- until March 4,
1985.

dav of
SIGNED, SEALED AND ADOPTED BY CITY COUNCIL this

1984.

Ma(yor
Ic
,ouncil Mem r-\

7ouncil Membtr
*on zc' U Al N 10e mg 70C
ATTEST: -council Member

City Cler. Nunc7l 114ember
r @)
lst Reading:
-0 Un CT-1-TI-emb e r

2nd Reading:

275

Ordinance Number

AN ORDINANCE AMENDING THE KILL DEVIL HILLS TOWN CODE

CHAPTER 20 - ZONING

BE IT ORDAINED by the Kill Devil Hills Board of Commissioners that
Chapter 20 - Zoning, Article IIA, OFRA-6 Residential Zone shall be amended
by deleting and repealing Article IIA and adopting in lieu thereof the
following:

CHAPTER 20 - ZONING

ARTICLE IIA

OCEAN IMPACT RESIDENTIAL ZONE

Section 20-10.1 INTENT

In an effort to promote health, safety, and welfare and to limit the level
of peril to the public welfare associated with dwellings and other structures
located in that part of Kill Devil Hills that borders on the Atlantic Ocean
and which is subject to tropical storms, storm surge, hurricane, extra tropical
storms, and shoreline migration, the guidelines of this section are hereby
established.

Section 20-10.1 (a) PERMITTED USES

In the OIR Zone, buildings and or land shall be used for the following
purposes and none other:

a) Single-family dwellings;

b) Multiple family dwellings

c) Hotels, motel and on-site accesory uses

d) Accessory buildings;

e) Home occupations that meet the guidelines of Section 20-16 (a);

f) Publically owned access area, beach bath-houses and recreational
parks shall be permitted uses;

g) Fishing Piers

Section 20-10.1 (b) PROHIBITED USES

a) Cottage courts, mobile homes, trailers, trailer parks, and modular
homes in excess of duplex structures, as defined in Section 20-1,
shall not be permitted use in this zone.

1
276
Section 20-10.2 BUILDING HEIGHT LIMITS 41
a) No structure in this zone shall exceed a living space height
of thirty-five feet, regardless of the type of construction
used. Any space resulting from the -addition of the roof of
such structures shall not be utilized foT living space or
anything other than storage.

b) No structure shall have more than three levels in height of
living space.

c) No structure shall exceed a total height greater than forty-
two feet above the finished grade. (6-5-81, 1 2.)

d) Building height shall be measured as defined in 20-1.

Section 20-10.3 SITE REQUIREMENTS

a) A minimum building site shall be fifteen-thousand (15,000)
square feet in area. Such parcels shall have a minimum
width of fifty (50) feet.

b) Duplex structures - structures designed for two independent
dwelling units per building shall have a lot size of at least
twenty-thousand (20,000) square feet.

c) All land developed for multi-family use in excess of a duplex
shall not exceed a maximum density of six units per acre or a
density factor of 1/6 acre per independent living unit.
(7260 sq.ft.)

d) All land developed for hotel or motel use shall conform to
the following guidelines:

1) Hotel/Motel Unit Defined - a hotel or motel unit shall be
defined as one room or rooms connected together constituting
a separate, independent housekeeping establishment for rent
or lease on a daily, weekly, or longer basis and not contain-
ing independent cooking or kitchen facilities.
2) Hotel/Motel Density - the maximum allowable density for hotel/
motel land use shall be 24 units per acre or 1/24 acre per unit.
e) Exceptions - Where a lot or parcel of land having a width of fifty
feet and a depth of not more than one hundred feet was of record
at the time of passage of the ordinance from which this chapter is
derived, such lot may be occupied by one family; provideds that
minimum side, front and rear yard requirements set out in sections
20-14 to 20-16 are complied with., (6-5-81

277

f) Lot Coverage - All land use in the Ocean Impact Residential
District shall be limited to a maximum lot coverage of not more
than 65% of the site west of the first line of stable vegetation.

g) All minimum lot size requirements and site measurements shall
be based on the amount of useable land. Useable land is defined
as the entire amount of land extending to each property line on
the north, south, west and on the east to the rear lot line, whicfi
is the first line of vegetation west of the high water mark.

Section 20-10.4 YARDS - SIDES

The following regulations shallapply to side yards in the OIR-II Zone;

a) The minimum side yard setback requirement on a lot of fifty (50)
feet or less in width shall be ten (10) feet from each side.

b) For all lots seventy-five (75) feet to ninety-nine (99) in width
the minimum side yard widths shall be as follows:
1) Single level construction - 10 feet each side

2) Double or triple level construction - 12 feet on each side

c) For all lots 100 or greater feet in width the minimum side yard
setback shall be as followst

1) Single level construction - 10 feet on each side

2) Double level construction - 12.5 feet on each side

3) Triple level construction - 15 feet on each side

d) Side Yard Buffer - All multi-family dwellings in excess of a
duplex and hotels and motels shall install and maintain a vegetative
buffer of evergreen, salt tolerant species along the side yards of
useable property in conjunction with multi-family development in this
zone, and such may be located with-in the area of the required set-
back lines.

e) Side Yard Parking Prohibited - The use of side yard setback areas
for parking of vehicles is not permitted.

S4ction 20-10.6 YARDS - FRONT AND REAR

a) All oceanfront lots shaILfront on Highway 12 (Viriinia Dare Trail)
and all structures erected on these lots shall be set back from the
front property line a minimum of 30 feet. Fo -nt yard parking shall
be a permitted use provided all parking areas maintain a 30' setback
from the front property line.

278

b) Lots that border the Atlantic Ocean shall be designated as
having a rear yard on the Atlantic Ocean.

c) For each lot developed that has a rear yard on the Atlantic
Ocean, the rear yard shall be determined by the setback
multiplier established for ocean hazard areas of environmental
concern (AEC) as administered by the local permit officer re-
presenting the N.C. Office of Coastal Management, (N.C.Coastal
Area Management Act of 1974).

Section 20-10.7 CORNER LOTS

The following regulations shall apply to corner lots in the OIR-II Zone:

a) The side yard setback for corner lots on the OIR-II Zone shall
be fifteen (15) feet, on those sides that abut a street.

Section 20-10.8 SIGNS (See Sec. 20-59)

Section 20-10.9 OFF STREET PARKING (See Sec. 20-73)

Section 20-10.10 EXISTING STRUCTURES

All structure 11 ' and development projects officially in the planning process
and submitted to the Planning Director's office and recorded as received prior
to l2tOO p.m. o'clock on December 9, 1985 or under construction, or completed
prior to December 9, 1985 at l2tOO p.m. o'clock shall be considered existing
non-conforming uses and in the event that a natural disaster or accidental
occurence leads to extensive damage or destruction of an existing, non-conform-
ing use, that structure or use may be repaired or replaced to 100% of its
.status as of December 9, 1985 but no greater. Any proposed addition or
alteration to a non-conforming use or structure must conform with existing
guidelines at the date the expansion is proposed.

This Amendment to Chapter 20 - ZONING, ARTICLE IIA, OCEAN IMPACT RESIDENTIAL
ZONE of the Kill Devil Hills Town Code shall take effect the _qO-- day of
17.m O'clock w.. 1985. Adopted and passed by the Board of Commissioners
of Kill Devil Hills at a regular Board meeting'held the 4-1 day of _L>u,,L,
1985, by a vote of in favor and 0 opposed.

Lowell M. Perry, Mayor__@_-

SEAL

ATTESTt

Marl j. Quidley
Clerk

279

APPROVED AS TO FORM:

Wallace H. McCown
Town Attorney

The undersigned certifies that the foregoing official amendment
designated AN ORDINANCE AMENDING THE KILL DEVIL HILLS TOWN CODE,
CHAPTER 20 ZONING, ARTICLE IIA, was filed in the Kill Devil Hills
Ordinance Book on the r-14- day of -ztcL.,m 1985, at 1: 45
o1clock

Mary E. Quidley, Clerk

NORTH CAROLINA
DIVISION OF EMERGENCY MANAGEMENT

MODEL FLOOD DAMAGE PREVENTION ORDINANCE

ARTICLE 1. STATUTORY AUTHORIZATION, FINDINGS OF FACT, PURPOSE AND
OBJECTIVES

SECTION A. STA TUT ORY AUTHORIZATION

The Legislature of the State of North Carolina has in Part 6, Article 21 of
Chapter 143; Parts 3, 5, and 8 of Article 19 of Chapter 160A; and Article 8 of
Chapter 160A of the N. C. General Statutes, delegated the responsibility to
local governmental units to adopt regulations designed to promote the public
health, safety, and general welfare of its citizenry. Therefore, the
(governing body) of (local
unit), North Carolina, does ordain as follows:

SECTION B. FINDINGS OF FACT

(1) The flood hazard areas of (local unit) are subject
to periodic inundation which results in loss of life, property, health
and safety hazards, disruption of commerce and governmental services,
extraordinary public expenditures of flood protection and relief, and
impairment of the tax base, all of which adversely affect the public
health, safety and general welfare.

(2) These flood losses are caused by the cumulative effect of obstructions in
flood plains causing increases in flood heights and velocities, and by
the occupancy in flood hazard areas by uses vulnerable to floods or
hazardous to other lands which are inadequately elevated, floodproofed,
or otherwise unprotected from flood damages.

SECTION C. STATEMENT OF PURPOSE

It is the purpose of this ordinance to promote the public health, safety and
general welfare and to minimize public and private losses due to flood
conditions in specific areas by provisions designed to:

(1) Restrict or prohibit uses which are dangerous to health, safety and
property due to water or erosion hazards, or which result in damaging
increases in erosion or in flood heights or velocities;

(2) require that uses vulnerable to floods, including facilities which serve
such uses, be protected against flood damage at the time of initial
construction;

(3) control the alteration of natural flood plains, stream channels, and
natural protective barriers which are involved in the accommodation of
flood waters;

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(4) control filling, grading, dredging and other development which may
increase erosion or flood damage; and,

(5) prevent or regulate the construction of flood barriers which will
unnaturally divert flood waters or which may increase flood hazards to
other lands..

SECTION D. OBJECTIVES

The objectives of this ordinance are:

(1) to protect human life and health;

(2) to minimize expenditure of public money for costly flood control
projects;

(3) to minimize the need for rescue and relief efforts associated with
flooding and generally undertaken at the expense of the general public;

(4) to minimize prolonged business interruptions;

(5) to minimize damage to public facilities and utilities such as water and
gas mains, electric, telephone and sewer lines, streets and bridges
located in flood plains;

(6) to help maintain a stable tax base by providing for the sound use and
development of flood prone areas in such a manner as to minimize flood
blight areas; and,

(7) to insure that potential home buyers are notified that property is in a
flood area.

ARTICLE 2. DEFINITIONS

Unless specifically defined below, words or phases used in this ordinance
shall be interpreted so as to give them the meaning they have in common usage
and to give this ordinance its most reasonable application.

"Appeal" means a request from a review of the local administrator's
interpretation of any,provision of this ordinance or a request for a variance.

Addition (to an existing building)" means any walled and roofed expansion to
the perimeter of a building in which the addition is connected by a common
load-bearing wall other than a fire wall. Any walled and roofed addition
which is connected by a fire wall or is separated by independent perimeter
load-bearing walls is new construction.

"Agea of shallow f'@ooding" means a designated AO or VO 2one on a community's
Flood Insurance Rate Map (FIRM) with base flood depths from one to three feet
where a clearly defined channel does not exist, where the path of flooding is
unpredictable and indeterminate, and where velocity flow may be evident.

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"Area of special flood hazard" is the land in the flood plain within a
community subject to a one percent ar greater chance of flooding in any given
year.

"Base flood" means the flood having a one percent chance of being equaled or
exceeded in any given year.

"Basement" means that lowest level or story which has its floor subgrade on
all sides.

"Breakaway wall" means a wall that is not: Part of the structural support of
the building and is intended through its design and construction to collapse
under specific lateral loading forces without causing damage to the elevated
portion of the building or the supporting foundation system. A breakaway wall
shall have a design safe loading resistance of not less than 10 and no more
than 20 pounds per square foot. A wall with loading resistance of more than
20 pounds per square foot requires an architect or professional engineer's
certificate.

"Building" means any structure built: for support, shelter, or enclosure for
any occupancy or storage.

"Coastal High Hazard Area" means the, area subject to high velocity waters
caused by, but not limited to, hurricane wave wash. The area is designated on
a FIRM as Zone Vl -3, VE or V.

"Development" means any man-made change to improved or unimproved real estate,
including, but not limited to, buildings or other structures, mining,
dredging, filling, grading, paving, excavation or drilling operations.

"Elevated building" means a non-basement building built to have the lowest
floor elevated above the ground level by means of fill, solid foundation
perimeter walls, pilings, columns (posts and piers), shear walls, or breakaway
walls.

"Existing manufactured home park or manufactured home subdivisio " means a
parcel (or contiguous parcels) of land divided into two or more manufactured
home lots for rent or safe for which the construction of facilities for
servicing the lot on which the manufactured home is to be affixed (including
at a minimum, the installation of ut:ilities, either final site grading or the
pouring of concrete pads, and the constraction of streets) is completed before
the effective date of this ordinance.

"Flood" or "floodinz" means a general and temporary condition of partial or
complete inundation of normally dry land areas from:

(1) the overflow of inland or tidal waters; and,

(2) the unusual and rapid accumulation of runoff of surface waters
from any source.

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Flood Hazard Boundary Map (FHBM)" means an official map of a community,
issued by the Federal Emergency Management Agency, where the boundaries of the
areas of special flood hazard have been defined as Zone A.

"Flood Insurance Rate Ma-D (FIRM)" means an official map of a community, on
which the Federal Emergency Management Agency has delineated both the areas of
special flood hazard and the risk premium zones applicable to the community.

"Flood Insurance Study" is the official report provided by the Federal
Emergency Management Agency. The report contains flood profiles, as well as
the Flood Boundary Floodway Map and the water surface elevation of the base
flood.

I-Floodway" means the channel of a river or other watercourse and the adjacent
land areas that must be reserved in order to discharge the base flood without
cumulatively increasing the water surface elevation more than one foot.

"Floor" means the top surface of an enclosed area in a building (including
basement), i.e., top of slab in concrete slab construction or top of wood
flooring in wood frame construction. The term does not include the floor of a
garage used solely for parking vehicles.

Functionally degendent facility" means a facility which cannot be used for
its intended purpose unless it is located or carried out in close proximity to
water, such as a docking or port facility necessary for the loading and
unloading of cargo or passengers, shipbuilding, ship repair, or seafood
processing facilities. The term does not include long-term storage,
manufacture, sales, or service facilities.

Highest Adjacent Grade" means the highest natural elevation of the ground
"surface, prior to construction, next to the proposed walls of the structure.

Levee" means a man-made structure, usually an earthen embankment, designed
and constructed in accordance with sound engineering practices to contain,
control, or divert the flow of water so as to provide protection from
temporary flooding.

"Levee System" means a flood protection system which consists of a levee or
levees, and associated structures, such as closure and drainage devices, which
are constructed and operated in accordance with sound engineering practices.

"Lowest Floor" means the lowest floor of the lowest enclosed area (including
basement). An unfinished or floor resistant enclosure, usable solely for
parking of vehicles, building access or storage in an area other than a
basement area is not considered a building's lowest floor provided that such
enclosure is not built so as to render the structure in violation of the
applicable non-elevation design requirements of this ordinance.

"Manufactured home" means a structure, transportable in one or more sections,
which is built on a permanent chassis and designed to be used with or without
a permanent foundation when connected to the.required utilities. The term
also includes park trailers, travel trailers, and similar transportable

284

structures placed on a site for 180 consecutive days or longer and intended to
be improved property.

"Manufactured home park or subdiviAon" means a parcel (or contiguous parcels)
of land divided into two or more MaLnufactured home lots for rent or sale.

"Mean Sea Level" means the average height of the sea for all stages of the
tide. It is used as a reference for establishing various elevations within
the flood plain. For purposes of this ordinance, the term is synonymous with
National Geodetic Vertical Datum (NfGVD),

"National Geodetic Vertical Datum (NGVDi-" as corrected in 1929, is a vertical
control used as a reference for establishing varying elevations within the
flood plain.

"New Construction" means structures for which the "start of construction"
commenced on or after the effective date of this ordinance.

"Remedy a Violatio " means to bring the structure or other development into
compliance with State or local fload plain management regulations, or, if this
is not possible, to reduce the iMp4LCtS of its noncompliance. Ways that
impacts may be reduced include protecting the structure or other affected
development from flood damages, implementing the enforcement provisions of the
ordinance or otherwise deterring future similar violations, or reducing
Federal financial exposure with regard to the structure or other development.

"Sand dunes," means naturally occurring accumulations of sand in ridges or
mounds landward of the beach.

"Start of constructio " (for other than new construction or substantial
improvements under the Coastal Barrier Resources Act (16 U.S.C. �3501 @Lt_
includes substantial improvement, and means the date the building
permit was issued, provided the actual start of construction, repair,
reconstruction, or improvement was within 180 days of the permit date. The
actual start means the first placement of permanent construction of a
structure (including a manufactured home) on a site, such as the pouring of
slabs or footings, installation of piles, construction of columns, or any work
beyond the stage of excavation or the placement of a manufactured home on a
foundation. Permanent construction does not include land preparation, such as
clearing, grading and filling: nor does it include the installation of streets
and/or walkways; nor does it include excavation for a basement, footings,
piers or foundations or the erection of temporary forms; nor does it include
the installation on the property off accessory buildings, such as garages or
sheds not occupied as dwelling units or not part of the main structure.

"Structure" means a walled and roofed building that is principally above
ground, a mobile home, a gas or liquid storage tank, or other man-made
facilities or infrastructures.

"Substantial improvement" means any repair. reconstruction, or improvement of
a structure, within any twelve month period, where the cost equals or exceeds
fifty percent of the market value of the structure. either (1) before the
improvement or repair is started, or (2) if the structure has been damaged and

._. I

285

is being restored, before the damage occurred. For the purposes of this
definition, "substantial improvement" is considered to occur when the first
alteration of any wall, ceiling, floor, or other structural part of the
building commences, whether or not that alteration affects the external
dimensions of the structure. The term does not, however, include either (1)
any project for improvement of a structure to comply with existing state and
local health, sanitary, or safety code specifications which are solely
necessary to assure safe living conditions, or (2) any alteration of a
structure listed on the National Register of Historic Places or a State
Inventory of Historic Places.

"Variance" is a grant of relief to a person from the requirements of this
ordinance which permits construction in a manner otherwise prohibited by this
ordinance where specific enforcement would result in unnecessary hardship.

"Violatio " means the failure of a structure or other development to be fully
compliant with the community's flood plain management regulations. A
structure or other development without the elevation certificate, other
certifications, or other evidence of compliance required in Articles 4 and 5
is presumed to be in violation until such time as that documentation is
provided.

ARTICLE 3. GENERAL PROVISIONS

SECTION A. LANDS TO WHICH THIS ORDIWCE APPLIES

This ordinance shall apply to all areas of special flood hazard within the
jurisdiction of (local unit).

SECTION B. BASIS FOR ESTABLISHING THE AREAS OF SPECIAL FLOOD HAZARD

The areas of special flood hazard identified by the Federal Emergency
Management agency in its , dated
, with accompanying maps and other supporting data, and
any revision thereto are adopted by reference and declared to be a part of
this ordinance.

SECTION C. ESTABLISHMENT OF DEVELOPMENT PERMIT

A Development Permit shall be required in conformance with the provisions of
this ordinance prior to the commencement of any development activities.

286

SECTION D. COMPLIANCE
41
No structure or land shall hereafter be located, extended, converted or
structurally altered without full compliance with the terms of this ordinance
and other applicable regulations.

SECTION E. ABROGATION AND GREATER RESTRICTIONS

This ordinance is not intended to repeal, abrogate, or impair any existing
easements, covenants, or deed restrictions. However, where this ordinance and
another conflict or overlap, whichever imposes the more stringent restrictions
shall prevail.

SECTION F. INTERPRETATION

In the interpretation and application of this ordinance all provisions shall
be: (1) considered as minimum requirements: (2) liberally construed in favor
of the governing body, and; (3) deemed neither to limit nor repeal any other
powers granted under state statutes.

SECTION G. WARNING AND DISCLAIMER OF LIIaIIJTY

The degree of flood protection required by this ordinance is considered
reasonable for regulatory purposes and is based on scientific and engineering
considerations. Larger floods can aind will occur on rare occasions. Flood
heights may be increased by man-made or natural causes. This ordinance does
not imply that land outside the are&S of special flood hazard or uses
permitted within such areas will be free from flooding or flood damages. This
ordinance shall not create liability on the part of (local unit)
or by any officer or employee thereof for any flood damages that result from
reliance on this ordinance or any administrative decision lawfully made
thereunder.

SECTION H. PENALTIES FOR VIOLATION

Violation of the provisions of this ordinance or failure to comply with any of
its requirements, including violation of conditions and safeguards established
in connection with grants of variance or special exceptions, shall constitute
a misdemeanor. Any pirson who violates this ordinance or fails to comply with
any of its requirements shall, upon conviction thereof, be fined not more than
$50.00 or imprisoned for not more than 90 days, or both. Each day such
violation continues shall be considered a separate offense. Nothing herein
contained shall prevent the (local unit) from taking
such other lawful action as is necessary to prevent or remedy any violation.

287

ARTICLE 4. ADMINISTRATION

SECTION A. DESIGNATION OF LOCAL ADMINISTRATOR

The (local administrator) is hereby appointed to
administer and implement the provisions of this ordinance.

SECTION B. DEVELOPMENT PERMIT AND CERTIFICATION REQUIREMENTS

Application for a Development Permit shall be made to the local administrator
on forms furnished by him or her prior to any development activities. The
Development Permit may include, but not be limited to plans in duplicate drawn
to scale showing: the nature, location, dimensions, and elevations of the
area in question: existing or proposed structures; and the location of fill,
materials storage areas and drainage facilities. Specifically, the following
information is required:

(1) Where base flood elevation data is provided in accordance with Article 4,
Section C (10), the application for a development permit within the Zone
A on the Flood Insurance Rate Map shall show:

(a) the elevation (in relation to mean sea level) of the lowest floor
(including basement) of all new and substantially improved
structures, and

(b) if the structure has been floodproofed in accordance with Article 5,
Section B (2), the elevation (in relation to mean sea level) to
which the structure was floodproofed.

(2) Where the base flood elevation data is not provided the application for a
development permit must show construction of the lowest floor at least 2
feet above the highest adjacent grade.

(3) Where any watercourse will be altered or relocated as a result of
proposed development, the application for a development permit shall
include: a description of the extent of watercourse alteration or
relocation; an engineering report on the effects of the proposed project
on the flood-carrying capacity of the watercourse and the effects on
properties located both upstream and downstream; and a map showing the
location of the.proposed watercourse alteration or relocation.

(4) When a structure is floodproofed, the applicant shall provide a
certificate from a registered professional engineer or architect that the
non-residential floodproofed structure meets the floodproofing criteria
in Article 5, Section B (2).

(5) A floor elevation or floodproofing certification is required after the
lowest floor is completed, or in instances where the structure is subject
to the regulations applicable to Coastal High Hazard Areas, after
placement of the horizontal structural members of the lowest floor.
Within twenty-one (21) calendar days of establishment of the lowest floor

288

elevation, or floodproofing by whatever construction means, or upon
placement of the horizontal structural members of the lowest floor,
whichever is applicable, it shall be the duty of the permit holder to
submit to the local administrator a certification of the elevation of the
lowest floor, or floodproofed elevation, or the elevation of the bottom
of the horizontal structural members of the lowest floor, whichever is
applicable, as built, in relation to mean sea level. Said certification
shall be prepared by or under the direct supervision of a registered land
surveyor or professional engineer and certified by same. When
floodproofing is utilized for a particular building, said certification
shall be prepared by or under the direct supervision of a professional
engineer or architect and certified by same. Any work done within the
twenty-one (21) day calendar period and prior to submission of the
certification shall be at the permit holder's risk. The local
administrator shall review the floor elevation survey data submitted.
Deficiencies detected by such review shall be corrected by the permit
holder immediately and prior to further progressive work being permitted
to proceed. Failure to submit the survey or failure to make said
corrections required hereby shall be cause to issue a stop-work order for
the project.

SECTION C. DUTIES AND RESPONSIBILITEES OF THE LOCAL ADMINISTRATOR

Duties of the (local administrator) shall include,
but not limited to:

(1) Review all development permits 'to assure that the permit requirements of
this ordinance have been satisfied.

(2) Advise permittee that additional federal or state permits may be
required, and if specific federal or state permits are known, require
that copies of such permits be provided and maintained on file with the
development permit.

(3) Notify adjacent communities and the N.C. Department of Crime Control and
Public Safety, Division of Emergency Management, State Coordinator for
the National Flood Insurance Program, prior to any alteration or
relocation of a watercourse, and submit evidence of such notification to
the Federal Emergency Management Agency.

(4) Assure that maintenance is provided within the altered or relocated
portion of said watercourse so that the flood-carrying capacity is not
diminished.

(5) Prevent encroachments within floodways unless the certification and flood
hazard reduction provisions of Article 5 are met.
(6) Verify and record the actual elevation (in relation to mean sea level) of
the lowest floor (including basement) of all new or substantially
improved structures, in accordance with Article 4, Section B (5).

289

(7) Verify and record the actual elevation (in relation to mean sea level) to
which the new or substantially improved structures have been
floodproofed, in accordance with Article 4, Section (5).

(8) In Coastal Hazard Areas, certification shall be obtained from a
registered professional engineer or architect that the structure is
securely anchored to adequately anchored pilings or columns in order to
withstand velocity waters and hurricane wave wash.

(9) In Coastal High Hazard Area, the local administrator shall review plans
for adequacy of breakaway walls in accordance with Article 5, Section B
(5) (h).

(10) When floodproofing is utilized for a particular structure, the local
administrator shall obtain certifications from a registered professional
engineer or architect in accordance with Article 5, Section B (2).

(11) Where interpretation is needed as to the exact location of boundaries of
the areas of special flood hazard (for example, where there appears to be
a conflict between a mapped boundary and actual field conditions), the
local administrator shall make the necessary interpretation. The person
contesting the location of the boundary shall be given a reasonable
opportunity to appeal the interpretation as provided in this article.

(12) When base flood elevation data or floodway data has not been provided in
accordance with Article 3, Section B, then the local administrator shall
obtain, review and reasonably utilize any base flood elevation data and
floodway data available from a federal, state or other source, including
data developed pursuant to Article 5, Section D (4) in order to
administer the provisions of this ordinance.

(13) All records pertaining to the provisions of this ordinance shall be
maintained in the office of the local administrator and shall be open for
public inspection.

SECTION D. ADMINISTRATIVE PROCEDUREa

(1) InsRections of Work in Progress@ As the work pursuant to a permit
progresses, the local administrator shall make as many inspections of the
work as may be necessary to ensure that the work is being done according
to the provisiohs of the local ordinance and the terms of the permit. In
exercising this power, the administrator has a right, upon presentation
of proper credentials, to enter on any promises within the territorial
jurisdiction at any reasonable hour for the purposes of inspection or
other enforcement action.

(2) StoR Orders- Whenever a building or part thereof is being constructed,
reconstructed, altered or repaired in violation of this ordinance, the
administrator may order the work to be immediately stopped. The stop
order shall be in writing and directed to the person doing the work. The
stop order shall state the specific work to be stopped, the specific
reasons for the stoppage, and the conditions under which the work may be
resumed. Violation of a stop order constitutes a misdemeanor.

2913

(3) Revocation of Permits: The local aLdministrator may revoke and require
the return of the development permit by notifying the permit holder in
writing stating the reason for the revocation. Permits shall be revoked
for any substantial departure from the approved application, plans, or
specifications; for refusal or failure to comply with the requirements of
state or local laws; or for false statements or misrepresentations made
in securing the permit. Any permit: mistakenly issued in violation of an
applicable state or local law may also be revoked.

(4) Periodic Inspections.L The local administrator and each member of his
inspections department shall have it right, upon presentation of proper
credentials, to enter on any premisies within the territorial jurisdiction
of the' department at any reasonable hour for the purposes of inspection
or other enforcement action.

(5) Violations to be Corrected: When the local administrator finds
violations of applicable state and local laws, it shall be his duty to
notify the owner of the building of the violation. The owner shall
immediately remedy the violations of law.

(6) Actions in Event of Failure to take Corrective Action: If the owner of a
building or property shall fail to take prompt corrective action, the
administrator shall give him written notice, by certified or registered
mail to his last known address or by personal service:

(a) That the building or property is in violation of the Flood Damage
Prevention Ordinance;

(b) That a hearing will be held before the local administrator at a
designated place and time, not later than 10 days after the date of
the notice, at which time the owner shall be entitled to be heard in
person or by counsel and to present arguments and evidence
pertaining to the matter: and,

(c) That following the hearing, the local administrator may issue such
order to alter, vacate, or demolish the building; or to remove fill
as appears appropriate.

(7) Order to take Corrective Action: If, upon a hearing held pursuant to the
notice prescribed above, the administrator shall find that the building
or development is in violation of the Flood Damage Prevention Ordinance,
he shall make an order in writing to the owner, requiring the owner to
remedy the violation, within such period, not less than 60 days, as the
administrator may prescribe; provided, that where the administrator finds
that there is imminent danger to life or to other property, he may order
that corrective action be taken in such lesser period as may be feasible.

(8) Appeal: Any owner who has received an order to take corrective action
may appeal from the order to the local elected governing body by giving
notice of appeal in writing to the administrator and the clerk within 10
days following issuance of the final or-der. In the absence of an appeal,
the order of the administrator shall be final. The local governing body

291

shall hear an appeal within a reasonable time and may affirm, modify and
affirm, or revoke the order.

(9) Failure to Comply with Order: If the owner of a building or property
fails to comply with an order to take corrective action from which no
appeal has been taken, or fails to comply with an order of the governing
body following an appeal, he shall be guilty of a misdemeanor and shall
be punished in the discretion of the court.

SECTION E. VARIANCE PROCEDURES

(1) The (appeal board) as established by
(local unit) shall hear and decide appeals and
requests for variances from the requirements of this ordinance.

(2) Any person aggrieved by the decision of the
(appeal board) or any taxpayer may appeal such decision to the Court, as
provided in Chapter 7A of the N. C. General Statutes.

(3) Variances may be issued for the reconstruction, rehabilitation or
restoration of structures listed on the National Register of Historic
Places or the State Inventory of Historic Places without regard to the
procedures set forth in the remainder of this section.

(4) In passing upon such applications, the I (appeal
board) shall consider all technical evaluations, all relevant factors,
all standards specified in other sections of this ordinance, and:

(a) the danger that materials may be swept onto other lands to the
injury of others;

(b) the danger to life and property due to flooding or erosion damage;

(c) the susceptibility of the proposed facility and its contents to
flood damage and the effect of such damage on the individual owner;

(d) the importance of the services provided by the proposed facility to
the community;

(e) the necessity to the facility of a waterfront location, where
applicable;

(f) the availability of alternative locations, not subject to flooding
or erosion damage, for the proposed use;

(g) the compatibility of the proposed use with existing and anticipated
development;

(h) the rela!@iqnphip of the proposed'use to the comprehensive plan and
flood plain management program for that area;

(i) the safety of access to the property in times of flood for
ordinary and emergency vehicles;

2 9.2

(j) the expected heights, velocity, duration, rate of rise and sediment
transport of the flood waters and the effects of wave action, if
applicable, expected at the site; and,

(k) the costs of-providing governmental services during and after flood
conditions including maintenance and repair of public utilities and
facilities such as sewer, gas, electrical, and water systems, and
streets and bridges.

(5) Upon consideration of the factors listed above and the purposes of this
ordinance, the - (appeal board) may attach such
conditions to the granting of vari;nces as it deems necessary to further
the purposes of this ordinance.

(6) Variances shall not be issued within any designated floodway if any
increase in flood levels during the base flood discharge would result.

(7) Conditions for Variances:

(a) Variances shall only be issued upon a determination that the
variance is the minimum necessary, considering the flood hazard, to
afford relief.

(b) Variances shall only be issued upon. (i) a showing of good and
sufficient cause, (ii) a determination that failure to grant the
variance would result in exceptional hardship, and; (iii) a
determination that the granting of a variance will not result in
increased flood heights, additional. threats to public safety,
extraordinary public expense, create nuisance, cause fraud on or
victimization of the public, or conflict with existing local laws or
ordinances.

(c) Any applicant to whom a variance is; granted shall be given written
notice specifying the difference between the base flood elevation
and the elevation to which the structure is to be built and a
written statement that the cost of flood insurance will be
commensurate with the increased risk resulting from the reduced
lowest floor elevation. Such notification shall be maintained with
a record of all variance actions.

(d) The local administrator shall maintain the records of all appeal
actions and rep6rt any variances to the Federal Emergency Management
Agency upon request.

ARTICLE 5. PROVISIONS FOR FLOOD HAZARD REDUCTION

SECTION A. GENERAL STA!iDr;RDS

In all areas of special flood hazard the following provisions are required:

293

(1) All new construction and substantial improvements shall be anchored to
prevent flotation, collapse or lateral movement of the structure;

(2) Manufactured homes shall be anchored to prevent flotation, collapse, or
lateral movement. Methods of anchoring may include, but are not limited to,
use of over-the-top or frame ties to ground anchors. This standard shall be
in addition to and consistent with applicable state requirements for resisting
wind forces;

(3) All new construction and substantial improvements shall be constructed
with materials and utility equipment resistant to flood damage;

(4) All new construction or substantial improvements shall be constructed by
methods and practices that minimize flood damages;

(5) Electrical, heating, ventilation, plumbing, air conditioning equipment,
and other service facilities shall be designed and/or located so as to prevent
water from entering or accumulating within the components during conditions of
flooding;

(6) All new and replacement water supply systems shall be designed to
minimize or eliminate infiltration of flood waters into the system;

(7) New and replacement sanitary sewage systems shall be designed to minimize
or eliminate infiltration of flood waters into the systems and discharges from
the systems into flood waters;

(8) On-site waste disposal systems shall be located and constructed to avoid
impairment to them or contamination from them during flooding; and,

(9) Any alteration, repair, reconstruction of improvements to a structure
which is in compliance with the provisions of this ordinance, shall meet the
requirements of "new construction" as contained in this ordinance.

SECTION B. SPECIFIC STANDARDS

In all areas of special flood hazard where base flood elevation data has been
provided, as set forth in Article 3, Section B, or Article 4, Section C (10),
the following provisions are required:

(1) Residential Constructio . New construction or substantial improvement of
any residential structure shall have the lowest floor, including
basement, elevated no lower than (_ feet) above the base flood
elevation. Should solid foundation perimeter walls be used to elevate a
structure, openings sufficient to facilitate the unimpeded movements of
flood waters shall be provided.

(2) Non-Residential Construction. New construction or substantial
improvement of any commercial, industrial, or non-residential structure
shall have the lowest floor, including basement, elevated no lower than
(_ feet) above the level of the base flood elevation. Structures
located in A-zones may be floodproofed in lieu of elevation provided that

294

all areas of the structure below the required elevation are water tight
with walls substantially impermeable to the passage of water, using
structural components having the capability of resisting hydrostatic and
hydrodynamic loads and the effect of buoyancy. A registered professional
engineer or architect shall certify that the standards of this subsection
are satisfied. Such certification shall be provided to the official as
set forth in Article 4, Section B (5).

(3) Elevated Buildings. New construction or substantial improvements of
elevated buildings that include fully enclosed areas formed by foundation
and other exterior walls below the base flood elevation shall be designed
to preclude finished living space and designed to allow for the entry and
exit of floodwaters to automatically equalize hydrostatic flood forces on
exterior walls.

(a) Designs for complying with this requirement must either be certified
by a professional engineer or architect or meet the following
minimum criteria:

(i) Provide a minimum of two openings having a total net area of
not less than one square inch for every square foot of
enclosed area subject to flooding;

(ii) The bottom of all openings shall be no higher than one foot
above grade; and,

(iii) Openings may be equipped with screens, louvers, valves or
other coverings or devices provided they permit the automatic
flow of floodwaters in both directions.

(b) Electrical, heating, ventilation, plumbing, air conditioning
equipment, and other service facilities shall be designed and/or
located so as to prevent water from entering or accumulating within
the components during conditions of flooding.

(c) Access to the enclosed area shall be the minimum necessary to allow
for parking of vehicles (garage door) or limited storage of
maintenance equipment used in connection with the premises (standard
exterior door) or entry to the living area (stairway or elevator).

(d) The interior portion of such enclosed area shall not be partitioned
or finished into separate rooms, except to enclose storage areas.

(4) Floodways. Located within areas of special flood hazard established in
Article 3, Section B, are areas designated as floodways. The floodway is
an extremely hazardous area due to the velocity of flood waters which
carry debris and potential projectiles, and has erosion potential. The
following provisions shall apply within such areas:
(a) No encroachments, including fill, new construct ion, substantial
improvements and other developments shall be permitted unless
certification (with supporting,teChnical data) by a registered
professional engineer is provided demonstrating that encroachments

295

shall not result in any increase in flood levels during occurrence
of the base flood discharge.

(b) If Article 5, Section B(4)(a) is satisfied, all new construction and
substantial improvements shall comply with all applicable flood
hazard reduction provisions of Article 5.

(c) No manufactured homes shall be permitted except in an existing
manufactured home park or subdivision. A replacement manufactured
home may be placed on a lot in an existing manufactured home park or
subdivision provided the anchoring standards of Article 5, Section
A(2), and the elevation standards of Article 5, Section B(l) are
met.

(5) Coastal Hiah Hazard Areas (V Zones). Located within the areas of special
flood hazard established in Article 3, Section B, are areas designated as
coastal high hazard areas. These areas have special flood hazards
associated with wave wash. The following provisions shall apply within
such areas:

(a) All buildings or structures shall be located feet) landward
to the reach of the mean high tide.

(b) All buildings or structures shall be elevated so that the bottom of
the lowest supporting horizontal member (excluding pilings or
columns) is located no lower than (_ feet) above the base flood
elevation level, with all space below the lowest supporting member
open so as not to impede the flow of water. Open lattice work or
decorative screening may be permitted for aesthetic purposes only
and must be designed to wash away in the event of abnormal wave
action and in accordance with Article 5, Section B (5)(h).

(d) All pilings or columns and the attached structures shall be anchored
to resist flotation, collapse, and lateral movement due to the
effect of wind and water loads acting simultaneously on all building
components. The anchoring and support system shall be designed with
wind and water loading values which equal or exceed the 100 year
mean recurrence interval (one percent annual chance flood).

(e) A registered professional engineer or architect shall certify that
the design, specifications, and plans for construction are in
compliance with the provisions contained in Article 5, Sections B
(5)(b), (c), and (d) of this ordinance.

(f) There shall be no fill used as structural support. Non-compacted
fill s-may be used around the perimeter of a building for
landscaping/aesthetic purposes provided the fill will wash out from
storm surge (thereby rendering the building free of obstruction)
prior to generating excessive loading forces, ramping effects, or
wave deflection. The local administrator shall approve design plans

296

for landscaping/aesthetic fill only after the applicant has provided
an analysis by an engineer, architect, and/or soil scientist, which 4 f
demonstrates that the following factors have been fully considered:
(i) Particle composition of fill material does not have a tendency
for excessive natural compaction;

(ii) Volume and distribution Df fill will not cause wave deflection
to adjacent properties; and

(iii) Slope of fill will not cause wave run-up or ramping.

(g) There shall be no alteration of sand dunes or mangrove stands which
would increase potential flood damage.

(h) Lattice work or decorative screening shall be allowed below the base
flood elevation provided they are not part of the structural support
of the building and are designed so as to break away, under
abnormally high tides or wave action, without damage to the
structural integrity of the building on which they are to be used
and provided the following design specifications are met:

(i) No solid walls shall be allowed.

(ii) Material shall consist of wood or mesh screening only.

(iii) Design safe loading resistance of each wall shall be not less
than 10 nor more than 20 pounds per square foot; or

(iv) If more than 20 pounds per square foot, a registered
professional engineer or architect shall certify that the
design wall collapse would result from a water load less than
that which would occur during the base flood event, and the
elevated portion of the building and supporting foundation
system shall not be subject to, collapse, displacement, or other
structural damage due to the effects of wind and water loads
acting simultaneously on all building components during the
base flood event. Maximum wind and water loading values to be
used in this determination shall each have one percent chance
of being equalled or exceeded in any given year (100-year mean
recurrence interval).

(i) If aesthetic lattice work on screening is utilized, such enclosed
space shall not be designed to be used for human habitation, but
shall be designed to be used only for parking of vehicles, building
access, or limited storage of maintenance equipment used in
connection with the premises.

(j) Prior to construction, plans for any structures. that will have
lattice work or decorative screening must be submitted to the local
administrator for approval.

(k) Any alteration, repair reconstruction or improvement to a structure
shall not enclose the space below the lowest floor except with

297

lattice work or decorative screening, as provided for in Article 5,
Sections B (5)(h) and (i).

(1) No manufactured homes shall be permitted except in an existing
manufactured homes park or subdivision. A replacement manufactured
home may be placed on a lot in an existing manufactured home park or
subdivision provided the.anchoring standards of Article 5, Section A
(2), and the elevation standards of Article 5, Section B (1) are
met.

SECTION C. STANDARDS FOR STREAMS WITHOUT ESTABLISHED BASE FLOOD ELEVATIONS
AND/OR FLOODWAYS

Located within the areas of special flood hazard established in Article 3,
section B, are small streams where the Federal Emergency Management Agency has
not provided base flood data and where no floodways have been identified. The
following provisions shall apply within such areas:

(1) No encroachments, including fill, new construction, substantial
improvements, or new development shall be permitted within a distance
from the stream bank equal to _ times the width of the stream at the
top of bank or twenty feet each side from top of bank, whichever is
greater, unless certification by a registered professional engineer is
provided demonstrating that such encroachments shall not result in any
increase in flood levels during the occurrence of the base flood
discharge.

(2) If Article 5, Section C (1) is satisfied and base flood elevation data is
available from other sources, all new construction and substantial
improvements within such areas shall comply with all applicable flood
hazard ordinance provisions of Article 5 and shall be elevated or
floodproofed in accordance with elevations established in accordance with
Article 4, Section C (10). When base flood elevation data is not
available from a federal, state or other source, the lowest floor,
including basement, shall be elevated, at least two (2) feet above the
highest adjacent grade.

SECTION D. STANDARDS FOR SUBDIVISION PROPOSALS

(1) All subdivision proposals shall be consistent with the need to minimize
flood damage; .

(2) All subdivision proposals shall have public utilities and facilities such
as sewer, gas, electrical and water systems located and constructed to
minimize flood damage;

(3) All subdivision proposals shall have adequate drainage provided to reduce
exposure to floo.d hazards; and,

(4) Base flood elevation data shall be provided for subdivision proposals and
other proposed development which is greater than the lesser of fifty lots
or five acres.

293

SECTION E. STANDARDS FOR AREAS OF SHALLOW F@OODING (AO-ZONESI

,ard established in Article 3,
Located within the areas of special fload haz
Section B, are areas designated as shallow flooding. These areas have special
flood hazards associated with base flood depths of one to three feet W-3')
where a clearly defined channel does not: exist and where the path of flooding
is unpredictable and indeterminate. The following provisions shall apply
within such areas:

(1) All new construction and substantiZL1 improvements of residential
structures shall have the lowest floor, including basement, elevated to
the depth number specified on the Flood Insurance Rate Map, in feet,
above the highest adjacent grade. If no depth number is specified, the
lowest floor, including basement, shall be elevated, at least two (2)
feet above the highest adjacent grade.

(2) All new construction and substantial improvements of nonresidential
structures shall:
(a) have the lowest floor, including basement, elevated to the depth
number specified on the Flood Insurance Rate Map, in feet, above the
highest adjacent grade. If no depth number is specified, the lowest
floor, including basement shall be elevated, at least two (2) feet
above the highest adjacent grade; or,

(b) be completely floodp roofed together with attendant utility and
sanitary facilities to or above that level so that any space below
that level is watertight with walls substantially impermeable to the
passage of water and with structural components having the
capability of resisting hydrostatic and hydrodynamic loads and
effects of buoyancy.

Adopted on

BY:

(Signature of Governing Board)

Certified by:

Date:

299

MODEL AMENDMENTS TO
DEM FLOOD DAMAGE PREVENTION ORDINANCE

1. Zoning

a) Density

Residential density shall not exceed five dwelling units per acre in

Areas of Special Flood Hazard and three dwelling units per acre in Coastal

High Hazard Areas.

b) Density Bonus

Any owner of a single or contiguous parcels which are partly within and

partly without the Hazard Area boundaries may receive a density bonus. For

each acre in an Area of Special Flood Hazard, one acre outside the Hazard Area

may be rezoned to allow for a density or floor area ratio (at the election of

the landowner) one-and-one-quarter times greater, or a minimum lot size one-

and- one-quarter times smaller, that provided by the existing zoning

provisions. For each acre in Coastal High Hazard Areas, the density bonus for

each acre outside the Hazard Area shall be one-and-one-half times the existing
provisions.1

c) Nonconforming Uses

Any use or structure which exists at the time of enactment of this

ordinance may be continued, without expansion or substantial alteration,

IThe density bonus provision is intended to be a form of compensation for
the restrictions of the Hazard Area ordinance. It balances the restrictions
on development in the Hazard overlay zone by allowing more intense development
elsewhere, thus creating a means to accommodate market pressures, alleviate
any perceived unfairness of hazard mitigation restrictions, and discourage
takings suits. By eliminating the requirement that the restrictions and the
bonus be applied to the same or contiguous parcels, this provision could be
extended and developed into a Transferable Development Rights scheme.

300

unless: the use or structure is abandoned or discontinued for a period of one

year; or the structure is damaged or destroyed by flooding, wave action, wind

action, beach erosion, or other result of a hurricane or coastal hazard, to

the extent of 50% or greater of its market value as determined by the
tax assessor.2 All damaged, destroyed, or substantially altered structures

must be rebuilt in conformance with this ordinance.

11, Subdivision Reguirements

a) Lot Configuration

Lots must be at least one-and-one-half times as long as they are wide,
and the long side shall be perpendicular to the shoreline.3 The minimum lot

size for a single family residential structure shall be 20,000 square feet in

Areas of Special Flood Hazard, and 30,000 square feet in Coastal High Hazard
Areas.4

b) Site Preparation

Any natural vegetation which is dantaged or destroyed in construction,

except that occupying the building footprint and driveway, shall be replaced.

No sand may be removed from the site, and dune systems are to be undisturbed.

Construction may not decrease the elevation of the site, and the site is to be

2By allowing the rebuilding of uses; damaged or destroyed by non-coastal-
hazard-related causes (i.e., fire), thiss provision softens the impact of
hazard-related development restrictions which may create large numbers of
nonconforming uses.
3This is to allow an "escape lot" cor sufficient room to relocate
structures if erosion or storms moves back the shoreline and/or the CAMA
setback line.
4Minimum lot sizes will be proportional for other uses.

301

returned to its original contours to the maximum extent possible. Impervious

surface coverage shall not exceed twenty-five percent of the lot area.

c) Hazard Disclosure

All subdivision proposals shall provide, and show on the final plat as

recorded in the County land records, base flood elevations and the

boundaries of Areas of Special Flood Hazard and Coastal High Hazard Areas.

302,

Model Post-Storm Moratorium Ordinance

1. Statuto Authorit@ and Statement of Purpose

Under the general police power authority, of N.C.G.S. �160A-174 et seq.

(153A-121 for counties), _ hereby enacts a Post-Storm Reconstruction

Moratorium. Because is a coastal community and subject to the

destructive forces of hurricanes, storms, and other natural hazards, careful

planning is necessary to ensure a level and pattern of development which will

not unreasonably endanger life and property. The post-disaster period offers

an opportunity to implement comprehensive, planned reconstruction measures

such as the Hazard Mitigation Plan, but the confusion and community

anxiety which often accompany the aftermath of a disaster can impede these

efforts.* A moratorium on development activities can provide a necessary

breathing space, limited in scope and duration, during which the

government can better assess the damage situation, attempt to coordinate the

relief efforts of state and federal agencies, and promote reconstruction in

conformity with the Hazard Mitigation Plan.

2. Declaration of the-Moratorium

A Post-Storm Reconstruction Moratorium shall exist upon the occurrence of

one or more of the following events: is struck by a hurricane of force

equal or greater than 3 on the Saffir-Simpson scale, as determined by the

National Weather Service; is declared a disaster area either by the

Governor of North Carolina or the President -of the United States; or twenty

percent or more of the structures in or any zoning district thereof,

303

as determined by the Building Inspector, are destroyed or substantially
damaged by a hurricane or other coastal storm hazard.5

3. Effect of Moratorium

The Moratorium shall be declared by the Mayor (Chief Executive) as head

of the Reconstruction Task Force, and shall remain in effect until revoked

according to the triage provisions in Section 4(b) of this ordinance. In no

case,shall the Moratorium be of less duration than thirty days. While the

Moratorium is in effect, no development permits or variances of any kind shall

be issued, no rezonings or zoning changes shall be approved, and no

construction or reconstruction activity may be undertaken, excepting only

minor interior repairs and emergency repairs necessary to prevent injury or

loss of life or imminent collapse or other substantial damage to structures.

4. Triage Provisions

a) Task Force Responsibilities

Upon declaration of the Moratorium, the Reconstruction Task Force shall
be activated. The Task Force shall consist of: 6 The Task

Force shall immediately survey all affected areas and prepare a report,

dividing (the jurisdiction) into the following three categories:

1. Undamaged or Slightly Damaged Areas;
Areas in which buildings, structures, or other improvements have been
damaged up to 25% of their assessed market value, as determined by the
Building Inspector and/or Tax Assessor;

5The moratorium may also be made to apply only in one or more of the
triage-classified areas.
6Composition of the Post-storm reconstruction Task Force should be
specified according to the jurisdiction's Hazard Mitigation Plan. Several
members of the Task Force should also be members of FEMA federal/state/local
post-disaster teams, so as to coordinate relief and reconstruction efforts.
For further discussion, see Chapter 6, Part II.

3 04

2. Damaged Areas:
Areas in which buildings, structures,, or other improvements have been
damaged to the extent of greater than 25% but less than 50% of their
assessed market value, as deteniined by the Building Inspector and/or
Tax Assessor;
3. Severely Damaged Areas:
Areas in which buildings, structures, or other improvements have been
damaged to the extent of 50% or more of their assessed market value,
as determined by the Building Inspector and/or Tax Assessor.

Within each category, the Task Force shall recommend any changes in zoning,

subdivision regulations, setback, density, or elevation requirements, or any

other ordinances which it deems necessary or advisable to prevent a recurrence

of coastal hazard damage.

The Task Force shall also identify any parcels or locations suitable for

acquisition by (the jurisdiction) or by (the jurisdiction) in conjunction with
state or federal agencies or private conservation organizations.7

b) Substantive Provisions

1. Undamaged or Slightly Damaged &reas

Within Undamaged or Slightly Damaged Areas, the Moratorium shall be

lifted as soon as possible after 30 days have elapsed. Reconstruction,

subject to applicable ordinances and regulations, may commence as soon

as roads, water, sewer, electric, telephone, and other essential

public services are restored.

2. Damaged Areas

Within Damaged Areas, the Moratorium shall not be lifted until the

(Town Council/County Commissioners) have made a final disposition of

the Task Force's recommendations as to whether any additional

7The locality could consider acquisition through negotiated purchase,
condemnation, the NFIP �1362 program, state beach access programs, or purchase
of development rights. For further discussion see Chapter 5.

305

development restrictions should be enacted in the Area or whether any

property rights in the Area should be purchased.

3. Severely Damaged Areas

Within Severely Damaged Areas, no reconstruction shall occur except

under the following conditions: residential densities shall be one-

half the underlying requirement, and minimum lot sizes in the Area

shall be twice the underlying requirement. All uses permitted under

the underlying zoning, except single-family residential and accessory

uses, shall be conditional uses. Alternatively, reconstruction shall

comply with the provisions applicable to Coastal High Hazard Areas,
whichever is more stringent.8

8
The types of density reduction listed are illustrative only; they are
examples of imposing an automatic, predetermined development restriction in
the most severely damaged areas. Given the circumstances of the hurricane
aftermath, this area will have been substantially overdeveloped, and an
automatic downzoning or density reduction offers the chance for reconstruction
to proceed from a clean slate at a lower, more appropriate level.

306

Index Blau v. City of Los Angeles,
213
Board of Transportation
Actuarial Rate Zones, 54 (N.C.), 210-12
Admiralty Act, 221 Boats. See Ships and
AECs, 6, 35, 40, 42-43, 92 navigation
Agriculture. See Farms and Boca Raton, Fla., 109
farming . Bogue Banks, 3
Air quality, 39, 93 Boundaries: of coastal areas,
Albemarle Sound, 2 37; of N.C., 2, 3
Albers v. County of Los Brennan, William J., Jr., 198
Angeles, 212 Bridges, 28, 38, 110
Alicia (hurricane), 153 Brown v. McPherson's. Inc.,
Andrew (tropical storm), 1 221, 222, 224
Antitrust laws, 196-97, 200 Brown v. U.S., 222
Apartments. See Housing Budgets. See Fiscal resources
Architects, 95 and economic factors
Areas of Environmental Concern Building, building standards,
(AECs), 6, 35, 40, 42-43, and building codes, 2, 3,
92 8, 10-12, 14, 16, 21, 23,
Army Corps of Engineers (COE) 24, 25, 31, 32, 33, 34, 35,
(U.S.), 31, 40, 63, 71, 226 36, 37, 43-44, 46, 50, 51,
Asheville, N.C., 182, 192, 196 53, 54, 55, 56, 63, 65, 71,
Atlantic Beach, N.C., 182, 72, 73, 75, 76, 92, 95, 97,
192, 196 101, 105, 109, 110, 113,
Atlantic Ocean, 1, 4, 5, 13, 114, 117, 118, 140, 150,
23, 61, 63, 64, 65, 95, 96, 152-53, 157, 159, 163, 164,
102, 115, 116, 117, 165, 168, 169, 170, 171-72,
130, 135, 166, 171, 187, 173, 187, 191-92, 202, 205,
191 206, 207, 210, 213, 214,
Attorneys. See Legal factors 217, 219, 228, 232, 235.
Aurora, N.C., 4 See also Condominiums;
Automobiles, 82, 84, 85, 86, Housing; Mobile homes
87. See also Roads; Building Code (N.C.), 10, 11,
Streets; Transportation 43-44, 110, 172
system Building Code Council (N.C.),
Avalanches, 221, 224 10-11, 44, 113
Business and industry, 8, 20,
Banks and banking, 122, 207. 21, 28, 31, 32, 39, 41, 52,
See also Fiscal resources 55, 65, 71, 73, 75, 76, 78,
and economic factors 85, 86, 92, 94, 95, 98, 99,
Barbara (hurricane), 3 100, 107, 120, 122, 152,
Barrier islands. See Islands 159, 166, 171, 203
Baytown, Tex., 149 Buxton, N.C., 3
Beaches, 3, 4, 8', 10, 11, 12,
13, 23, 26, 47, 59, 64, 65, California, 109, 110, 138,
96, 102, 117, 154, 151, 198-99, 202, 203, 212,
166, 172, 191, 192, 200, 213, 214, 215, 220-21, 224
207, 214, 225. See also California Department of Water
Dunes Resources, 220
Beaufort, N.C., 2 CAnA. See Coastal Area
Belhaven, N.C.', Management Act
Belle (hurricane), 4 Camille (hurricane), 150
Bikeways, 106 Canals, 65, 213, 229
Billboards, 101 Cape Fear, 4

307

Cape Hatteras, 2, 3, 4 Localities and local
Cape Lookout, 3 governments;
Capital costs. See Fiscal Municipalities; Towns;
resources and economic g.Recific topics
factors Coastal Barrier Resources Act
Capital facilities and capital (CBRA), 38, 39
improvements programs Coastal High Hazard Zones, 26
(CIPs), 14, 90, 144-50, Coastal Resources Advisory
154, 160. See also Council (CRAC) (N.C.), 6,
specific capital facilities 42
Cardozo, Benjamin N., 216 Coastal Resources Commission
Carol (hurricane), 3 (CRC) (N.C.), 6, 42, 43, 65
Carolina Beach, N.C., 2, 3 Coastal storms. See sRecific
Carter, Jimmy, 39 topics
Carteret County, N.C., 79, 80, Coastal Zone Management Act
81, 83 (CZMA), 37-38, 40, 42
Cartography, 7, 25, 50, 53, COE. See United States Army
59, 65, 68, 88, 89, 91, 99, Corps of Engineers
110, 120, 124, 125, 140, Commerce. See Business and
161, 162, 163, 185, 195, industry
207, 211 Computers, 58-61, 76, 79-83,
Casualties. See Deaths; 88
Injuries Condominiums, 100, 171. See
Categories of hurricanes, 11, also Housing
59, 77, 82 Congress (U.S.), 31, 49, 51,
CBRA, 38, 39 196
Census (U.S.), 77 Connecticut, 130
Charleston, S.C., 2 Connelly v. State, 220, 222
Charley (hurricane), 1, 4 Connie (hurricane), 3
Cherry Point, N.C., 4 Conservation. See
CIPs. See Capital facilities Environment; specific
and capital improvements lopics
programs Constitutions: N.C., 17, 177,
Cities, 1, 44, 45, 46, 47, 48, 178, 179, 182, 186-87, 194,
93, 119, 122-23, 124, 145, 209; U.S., 17, 31, 41, 93,
204. See also Localities 94, 109, 113, 175, 178,
and local governments; 1-79-80, 197, 198, 199, 209,
Municipalities; Towns; 2-30, 231
Urban areas and Construction. See Building,
urbanization; specific building standards, and
cities building codes
City of Euclid v. Ambler Corps of Engineers, U.S. Army,
Realty Co., 93 31, 40, 63, 71, 226
Civil Rights Act, 106, 197-98 Costs. See Fiscal resources
Cleo (hurricane), 4 and economic factors
.Coastal Area Management Act Counties, 1-6, 9, 12, 14, 42,
(CAMA) (N.C.), 6-9, 35, 40, 45, 46, 47, 48, 89, 92,
41-43, 46, 48, 65, 88, 90, 104-5, 115, 119, 122-23,
98, 102, 116, 156, 163, 132, 163, 204. See also
176, 191, 204, 217, 218, specific counties
231, 233, 234 Court of Appeals-(N.C.), 101
Coastal Area Management Courts. See legal factors
Program (CAMP) (N.C.), 6, CRAC, 6, 42
64 CRC, 6, 42, 43, 65
Coastal area and localities. Crops. See Farms and farming
See Cities; Counties;

308

Currituck County, N.C., 113 Disaster Relief Act, 35-36,
CZMA, 37-38, 40, 42 155
Disaster response and disaster
Damage inflicted by hurricanes aid. See Post-
and coastal storms. See storm/disaster
Impact of hurricanes and reconstruction
coastal storms Division of Coastal Management
Dams, 54, 210 (DCM), (N.C.), 6, 40, 42
Dare County, N.C., 84, 123, Division of Emergency
143 Management (N.C.), 9
DCM, 6, 40, 42 DNRCD, 6, 42
Deaths, 2, 3, 4, 7, 9, 11, 12, Donna.(hurricane), 1, 3
18, 20, 22, 23, 24, 25, 29, Drainage, 54, 114, 144, 206,
77, 78, 95, 109, 121, 122, 208, 210, 225-26, 228, 229
145, 155, 156, 178, 183, Dredging, 31, 40, 225
202, 206, 215, 217, 221, Drownings, 2
222, 233 Dunes, 3, 10, 13, 23, 26, 29,
Density of population and 56, 102, 107, 115, 116,
development, 1, 27, 28, 30, 213. See also Beaches
46, 65, 90, 91, 92, 95, 96, Durham, N.C., 2
97, 98-99, 100, 105, 106,
107, 114, 116, 120, 136, Earthquakes, 151
140, 144, 148, 159, 170-71, Easements, 91, 127-32, 211
173, 174, 184, 223. See Eastern United States, 4, 5
also Population Ecology. See Ecosystems;
Department of Natural Environment
Resources and Community Economy and economic factors.
Development (DNRCD) (N.C.), See Business and industry;
6, 42 Fiscal resources and
Departments of U.S. economic factors
government. See under Ecosystems, 26, 166. See also
United States Environment
Developers and development, 7, Edna (hurricane), 3
8, 9, 11, 13, 14, 16, 17, Elderly people, 22
21, 22, 24, 25, 26, 27, 28, Elections, 158, 166, 167, 194,
29, 30, 31, 32, 33, 34, 35, 204
38-39, 40, 41, 43, 46, 47, Electric power, 149. See also
48, 51, 55, 59, 64, 77, 81, Utilities
82, 86, 87, 89, 90, 91, 92, Elizabeth City, N.C., 3, 4, 62
94, 95, 96, 97, 162-33 - Emerald Isle (town), N.C., 96
passim, 136, 137, 138, 139, Emergency management. See
140, 142, 143, 144, 145, Evacuations, emergency, and
146, 147, 148, 149, 151, evacuation planning, Post-
153, 154, 157, 159, 160, storm/disaster
165, 166, 168, 170-71, 172, reconstruction
175, 176, 177, 184, 186, Eminent domain, 47, 123, 128
192, 193, 202, 205, 206, Employment, 26
207, 208, 209, 214, 218, Engineers and engineering, 53,
219, 221-35 passim. See 55, 56, 95, 163, 183, 228
also specific topics Environment, nature and
Diamond Shoals Lightship, 3 protection of,- 6, 7, 10,
Diana (hurricane), 1, 3, 4 13, 18, 20, 26, 27, 29, 31,
Diane (hurricane), 3 35, 37, 39-40, 42-43, 77,
Disaster Assistance Agreement, 92, 97, 98, 104, 107, 108,
36 109, 110, 111, 112, 115,

309

120, 126, 127, 128, 131, Federal Register, 53
162, 163, 192, 193, 195, Federal-State Disaster
200, 201, 208, 233 Assistance Agreement, 36
Environmental impact Federal Water Pollution
statements, 39 Control Amendments (FWPCA),
Environmental Protection 39-40
Agency (EPA), 31, 50 Fee simple land acquisition,
EPA, 31, 50 91, 121-27, 129, 131, 140
Erosion, 3, 4, 8, 11, 12, 13, FEMA., 33, 35-37, 49, 53, 155-
23, 47, 63, 65, 69, 88, 66, 226, 227-30
102, 200, 207, 214 FHA, 50
Estuaries, 7, 69 FHBMs, 33-34, 50
Europe, 122 FIA, 33, 34, 35, 36-37, 49-50,
Evacuations, emergency, and 53, 55, 56
evacuation planning, 8, 10, Fifth Amendment, 179, 186,
12, 22, 25, 28, 29, 59, 79- 209. See also United
89, 96, 108, 111, 112, 117, States Constitution
119, 140, 149, 215-16, 219, Finances. See Banks and
220, 222-23, 234. See also banking; Fiscal resources
Post-storm/disaster and economic factors
reconstruction Fires and fire-fighting, 93,
Executive orders (U.S.), 39 1.00, 118, 144, 149, 150,
222
Facilities. See Capital FIRMS, 34, 51, 53, 54, 88
facilities and capital fIM;t English Evangelical
improvements programs; @;hurch of Glendale v.
specific facilities County of Los Angeles, 198-
Farmers Home Administration 99
(U.S.), 50 Fiscal resources and economic
Farms and farming, 2, 3, 4, factors, 2, 3, 4, 7, 11,
27, 50, 91, 94, 95, 120, 12, 13, 14, 20, 23, 26, 27,
127, 130, 131, 133, 137, :28, 31, 32, 35, 36, 37, 38-
138, 139, 140 .39, 41, 42, 43, 46-47, 49,
FDPA, 49, 51 50, 51, 52, 71, 72, 76, 77,
Federal agencies. See United 78, 90, 91, 94, 97, 99,
States government; specific 101, 110, 115, 117, 118,
azencies 119, 120, 122, 123, 124,
Federal courts. See Legal 125-27, 128, 129, 130, 131,
factors 133, 136-44, 146, 147, 148,
Federal Disaster Assistance 149, 150, 154, 155, 156,
Act, 125-26 157, 158-59, 160, 165, 166,
Federal Disaster Protection 171, 177, 179, 184, 185,
Act (FDPA), 51 186, 187, 188, 189, 193,
Federal Emergency Management 196, 197, 198, 199, 200,
Agency (FEMA), 33, 35-37, 202, 206, 207, 208, 209,
49, 53, 155-66, 226, 227-30 214, 231, 233. See also
Federal government. See Banks and banking; Business
United States government and industry; Taxes and
Federal Housing Administration taxation
(FHA), 50 Fishing, 41, 221
Federal Insurance Flood Boundary Floodway Map,
Administration (FIA), 33, 53
34, 35, 36-37, 49-50, 53, Flood Disaster Protection Act
55, 56 (FDPA), 49, 51
Federal Interagency Regional Flood Hazard Boundary Maps
Hazard Mitigation Team, 36 (FHBMs), 33-34, 50

310

Flood insurance. See National 114, 111, 111-111, 114,
Flood Insurance Program 235. See also specific
Flood Insurance Rate Maps topics
(FIRMS), 34, 51, 53, 54, 88 Gulf of Mexico, 5, 61
Floods and flood control, 2,
3, 4, 8, 10, 12-13, 21, 26, Hatteras Island (N.C.), 84, 85
29, 32-35, 36, 37, 38, 39, Hazard areas and hazard
46-47, 48, 49-57, 58, 60, mitigation, 1, 4, 6, 7, 8,
67, 70, 71, 72, 88, 92, 9, 10-12, 13, 14, 16-17,
101, 107, 116, 118, 143, 23-90 passim, 94, 95, 96,
149, 152, 162, 169, 171, 97, 98, 100-101, 105-@6,
172, 182, 183, 185, 192, 110-235 passim. See also
193, 196, 198, 199, 202, s-pecific toRics
205-6, 207, 208, 209, 210, Hazel (hurricane), 1, 3
211-12, 213, 215, 216-17, Health. See Public health
218, 219, 220, 225, 226, Helene (hurricane), 3
227-28, 229, 230, 231, 233, HHS, 50
234 Highway Commission (N.C.),
Florida, 1, 109, 110-11 209-10, 211, 216
Forests and forestry, 4, 27, Highways. See Roads
94, 127, 137, 138, 140 Historic preservation, 127,
Forsyth County, N.C., 131 133, 139
Fourteenth Amendment, 179, Historic Preservation and
185, 186, 194. See also Conservation Agreements
United States Constitution Act, 127
France, 125 Holmes, Oliver Wendell, 188
Funding. See Fiscal resources Homes. See Housing
and economic factors Hospitals, 170. See also
FWPCA, 39-40 Medical services
Hotels, 8, 21, 98, 100, 171
Gabler v. Regent Development Housing, 14, 18, 20, 22, 23,
g-o., 225, 228 24, 25, 26, 27, 28, 32, 37,
Galveston, Tex., 11, 81, 82 46, 50, 51, 52, 64, 65, 71,
Galveston Causeway (Tex.), 81, 73, 74, 76, 78, 81, 84, 91,
82 92, 94, 95, 96, 97, 99,
Galveston Island (Tex.), 82 100, 102, 105, 106, 108,
General Assembly (N.C.), See 109, 111, 113, 114-21, 124,
Legislature and legislation 125, 128, 129, 135, 142,
Ginger (hurricane), 4 143, 146, 149, 150, 151,
Gladys (hurricane), 4 152, 153, 157, 158, 159,
Glendale, Calif., 198-99 160, 162, 164, 168, 171,
Gloria (hurricane), 1, 4, 201 184, 202, 208, 210, 222,
Governments, 14, 35, 46, 122, 223, 227, 234. See also
178, 182-83, 187, 188, 194, Building, building
200-232 passim. See also standards, and building
specific governments codes; Developers and
Governors (N.C.), 6, 35, 36 development; Mobile homes;
Grants. See Fiscal resources Real estate
and economic factors Houston, Tex., 81
"Great New England Hurricane HUD, 50
of 1938" ("The"), 2 Hurricane Alicia, 153
Ground water. 21.@j Waste Hurricane Barbara, 3
water; Water resources Hurricane Belle, 4
Growth management tools and Hurricane Camille, 150
techniques, 10-48, 88, 90- Hurricane Carol, 3

311

Hurricane Charley, 1, 4 King County, Wash., 130
Hurricane Cleo, 4 Kitty Hawk, N.C., 143
Hurricane Connie, 3
Hurricane Diana, 1, 3, 4 Land, land acquisition, land 4 1
Hurricane Diane, 3 use, and land use planning,
Hurricane Donna, 1, 3 7, 14, 26, 31, 32, 35, 36,
Hurricane Edna, 3 37, 41, 42, 43, 44, 45-46,
Hurricane Evacuation Study 47, 55, 81, 90, 91, 92, 93,
(N.C.), 79, 89 94., 95, 97, 99, 100, 102,
Hurricane Ginger, 4 103, 105, 106, 110, 113,
Hurricane Gladys, 4 11.4, 115, 116, 118, 119,
Hurricane Gloria, 1, 4, 201 120, 121-44, 146, 147, 154,
Hurricane Hazel, 1, 3 1561 160, 171, 177, 180,
Hurricane Helene, 3 181, 183, 184, 185, 186,
Hurricane lone, 3 187, 188, 189, 190, 191,
Hurricane Isbell, 4 193, 195-96, 197, 198, 199,
Hurricane Juan, 1 202, 205, 209, 210, 214,
Hurricanes. See specific 21.7, 224, 228, 230, 232,
topics 21-14. See also Open spaces
Hydrography, 211. See alsa Laws, lawsuits, and lawyers.
Water resources See Legal factors; specific
Laws and lawsuits
Impact fees, 48, 126, 137, Lea Co. v. N.C. Board of
140-44, 154 Transportation, 210-12
Impact of hurricanes and Legal factors, 12, 17, 31, 32,
coastal storms, 1-17 37, 43, 44, 46, 47, 48, 90,
passim, 18, 27, 63, 68, 73, 91, 93, 94, 97-98, 99-100,
77, 88, 92, 95, 155, 206, 103, 106, 108, 109, 113,
211, 213-14- 121, 122, 123, 124, 126,
Income, 22, 26, 105, 184 1:27, 128, 131, 141-42, 143,
Industry. See Business and 145, 147, 148, 153, 158,
industry 172-232, 235. See also
Information dissemination, 90, s9ecific laws and lawsuits
91, 150-53, 154, 232 Legislature and legislation
Injuries, 2, 20, 24, 25 (N.C.), 6, 47, 48, 91, 99,
Inlets, 64-67, 88, 96, 116, 105, 110, 113, 114, 119,
148, 162, 163, 169, 171 121, 122
Insurance, 158, 200, 202, 204, List of hurricanes and coastal
231. See also National storms, 1, 2-5, 150, 153,
Flood Insurance Program 201
Internal Revenue Code, 131 Litigation. See Legal factors
Internal Revenue Service, 131 Local Government Antitrust
lone (hurricane), 3 Act, 196, 197
IRS, 131 Localities and local
Isbell (hurricane), 4 governments, 6, 7, 8, 9,
Islands, 13, 25, 28, 38, 59, 10-11, 13, 14, 16, 17, 18,
64, 65, 84, 108, 223 22-48 passim, 50, 51, 53,
55, 59, 63, 68, 81, 82, 88,
Jefferson Parish, La., 219, 89, 90, 98-99, 100, 101,
225-26, 227, 228-29 103, 109, 110, 115, 122,
Juan (hurricane), 1 123-24, 125-44, 145, 146-
Judicial decisions. See Legal 47, 152-53, 154, 155, 156-
factors 74, 175-232, 233, 234, 235.
5ee also Cities; Counties;
Kill Devil Hills, N.C., 143 Municipalities; specific
.t:opics

312

Lockwood Folly Inlet 1N.C.1, 111, 199, 100, 101, 111*
64, 66 See also Cities; Localities
Long Beach (town), N.C., 3, 6 and local governments;
Los Angeles, Calif., 213 Towns; specific
Los Angeles County, Calif., municipalities
198-99, 212, 213 Myrtle Beach, S.C., 2
Louisiana, 219, 225-26, 227,
228-29 Nags Head, 3, 210, 223
Louisiana Supreme Court, 226 Nags Head (town), N.C., 65,
Low-income group. See Income 67, 71, 72, 73, 98, 143,
148
Management. See Growth Nash County, N.C., 4
management tools and National Environmental Policy
techniques; specific topics Act (NEPA), 39
Manteo, N.C., 4, 143 National Flood Insurance Act
Maps. See Cartography of 1968, 32, 49
Marinas, 29, 122, 220 National Flood Insurance
Maryland, 129, 130, 164, 167- Program (NFIP), 10, 12-13,
68 32-35, 36, 38, 46-47, 48,
Maryland Agricultural Land 49-57, 58, 67, 71, 92, 101,
Foundation, 129, 130 172, 182, 192, 202, 217,
Medical ser-vices, 20. See 218, 225, 226, 227-28, 229,
also Hospitals 231, 233
Midgett v. N.C. State Highway National Hurricane Center, 82
Commission, 209-10, 211, National Oceanographic and
216 Atmospheric Administration
Mineral areas, 7 (NOAA), 37, 221
Mitigation Guidelines (N.C.), National Park Service, 132
172 National Shoreline Study, 63
Mitigation of hazards. See National Weather Service, 9,
Hazard areas and hazard 32, 58, 61
mitigation Natural features and
Mobile homes, 51, 55, 74, 78, resources. See
91, 99, 113-14, 164. See Environment; sRecific
also Housing features and resources
Monell decision, 198 Nature. See Environment
Monetary factors. See Fiscal Nature Conservancy, 126
resources and economic Navigation. See Ships and
factors navigation
Monitoring of hurricanes and NEPA, 39
coastal storms. See New Bern, N.C., 2, 3, 41, 62
Prediction, tracking, and New England, 2
monitoring of hurricanes New Federalism, 32, 37
and coastal storms New Hanover County, N.C., 12,
Morehead City, N.C., 2, 3, 4, 59, 60
62 New Jersey Supreme Court, 187
Mortgages. See Fiscal New York (state), 105, 130,
resources and economic 191
factors; Housing; Real NFIP. See National Flood
estate Insurance Program
Motels, 85, 86, 98 NOAA, 37, 221
Municipalities, 7, 42, 44, 46, North Carolina. See specific
104, 106, 108, 109, 115, topics, cities, counties.
119, 122, 123, 124, 127, and towns: and entries
143, 177, 178, 190, 196, immediately following

313

North Carolina Board of 144, 154, 166, 184. See
Transportation, 210-12 aLm Land, land
North Carolina Building Code, acquisition, land use, and
10-11, 43-44, 110, 172 land use planning
North Carolina Building Code Ordinances, 14, 17, 45-46, 49,
Council, 10-11, 44, 113 51, 54, 90, 93, 94, 95, 98,
North Carolina Coastal Area 99, 100, 104, 105, 106,
Management Act. See 108, 109, 112, 114, 119,
Coastal Area 1213, 121, 124, 153, 170,
Management Act 17.8, 180, 181-82, 183, 184-
North Carolina Coastal Area 85, 186, 187, 188-89, 190,
Management Program, 6, 64 191, 194, 196, 197, 230,
North Carolina Constitution, 231. See also specific
17, 177, 178, 179, 182, to-Dics
186-87, 194, 209 Oregon, 125
North Carolina Court of Oregon Inlet (N.C.), 2, 84
Appeals, 101 Outer Banks, 1, 2, 4, 6, 38
North Carolina Department of
Natural Resources and 'Palszraf case, 216
Community 'Pamlico Sound, 2
Development (DNRCD), 6, 42 Parks, 93, 115, 118, 119, 124,
North Carolina Division of 125, 132
Coastal Management, 6, 40, PDRs, 91, 127-32
42 Pennsylvania Coal Co. v,
North Carolina Division of Mahon, 187-88
Emergency Management, 9 Petaluma, Calif., 109-110
North Carolina Hurricane Pitt County, N.C., 2
Evacuation Study, 79, 89 Planned unit developments
North Carolina Mitigation (PUDs), 91, 119-21, 154
Guidelines, 172 Police, 118, 149, 222
North Carolina State Highway Political factors, 27, 31, 37,
Commission, 209-10, 211, 41-42, 44, 94, 98, 130,
216 14.7, 157, 158, 160, 165,
North Carolina Supreme Court, 166, 171
99, 105, 108, 179, 182, Pollution, 31, 39-40, 46, 97,
196, 210 107
Northern United States, 2, 4 Population, 1, 6, 12, 91, 93,
NPDES, 40 108, 110, 184, 223, 224,
Nueces County, Tex., 77, 78 2'33. See also Density of
Number of hurricanes and population and development
coastal storm, 1, 2-4 Post-storm/disaster
reconstruction, 7, 8-9, 10,
Oak Island (N.C.), 6 12-13, 15-16, 32, 33, 35-
Ocean City, Md., 164, 167-68 37, 38, 46, 48, 50, 51, 91,
Ocean Hazard AECs, 92, 233 96, 98-99, 100, 101, 116,
Ocracoke, 2, 3 123, 148, 149-50, 155-74,
office of Coastal Zone 192, 193; 201, 202, 222,
Management (U.S.) (NOAA), 233, 234-35. See also
37 Evacuations, emergency, and
onslow County, N.C., 96, 164- evacuation planning
65 Power. See Electric power;
open spaces, 28, 36, 47, 91, Utilities
92, 94, 105, 106, 116-17, Prediction, tracking, and
118, 120, 123, 133, 135, monitoring of hurricanes
136, 137, 139, 140, 143, and coastal storms, 1, 5,

314

1, 11, 31, 11,11, 11, 13,
88, 211, 215, 233 Quality of life, 26, 29
Presidents (U.S.), 35, 36, 39,
156 Racial minorities, 184, 194
Private sector and private Railroads, 2
property, 8, 12, 13, 26, Rainfall, 2, 3, 4, 54
31, 32, 33, 41, 42, 68, 71, Raleigh, N.C., 3
76, 88, 94, 126, 127, 128, Real estate, 150-52, 153, 163,
142, 185, 186, 187, 203, 221. See also Developers
204, 205, 207, 209, 213, and development; Housing;
214, 215, 217, 219, 225, Land, land acquisition,
230, 232. See also land use, and land use
Property, property planning
ownership, and property Reconstruction. See Post-
damage storm/disaster
Property, property ownership, reconstruction
and property damage, 1, 2, Recreation and recreational
3, 7, 9, 11, 12, 14, 18, facilities, 28, 29, 37, 47,
25, 29, 49, 51, 53, 63, 68, 85, 92, 94, 115, 116, 118,
72, 77, 88, 91, 92, 96-, 99, 119, 125, 127, 128, 129,
101, 102, 104, 108, 110, 135, 137, 166, 192
117, 121-36, 137, 141, 145, Rescue activities. See
157, 165, 168, 169, 170, Evacuations, emergency, and
171, 177, 183, 188, 189, evacuation planning; Search
190, 196, 202, 206, 207, and rescue activities
209, 210, 211, 212, 213, Residences. See Housing
214, 215, 226, 227, 230, Resort areas. See Tourism
233, 234. See also Private Resources, natural. See
sector and private Environment
property; Public interest Responsible Citizens in
and public OpRosition to the Flood
facilities/services Plain Ordinance v. City of
Public health, 24, 41, 43, 45, Asheville, 182, 192, 196
93, 97, 110, 114, 145, 163, Restaurants, 8
176, 182, 192, 233 Restrictive covenants and
Public interest and public agreements, 125, 127, 137,
facilities/services, 8, 12, 138
20, 22, 23-24, 25, 26, 27, Revenues. See Fiscal
28, 29, 38, 41, 42, 43, 45, resources and economic
47, 68, 71, 72, 76, 88, 92, factors; Taxes and taxation
93, 95, 97, 102, 106, 107, Risk analysis and assessment,
110, 112, 114, 115, 117, 18-27, 59, 65, 68, 71, 72,
118, 119, 120, 121, 122, 81, 88, 92, 95, 96, 99,
123-24, 125, 126, 128, 129, 109, 117, 129, 145-49, 151,
131, 132, 136, 140, 141, 155, 158, 159, 171, 208,
142, 143, 144-50, 152, 15 4, 223, 224, 226, 234
157, 161, 162, 163, 166, Rivers, 3, 53, 56, 208
167, 172-73, 174, 176, 177, Roads, 38, 71, 72, 81, 84,
178, 182, 183, 184, 186, 102, 107, 111, 115, 117,
187, 188, 189, 190, 191, 118, 119, 140, 141, 143,
192, 193, 198, 204, 205, 144, 149, 150, 157, 172,
209, 212, 213, 214, 217, 209, 210, 211, 212, 222.
220, 224-26, 230, 233 See also Automobiles;
PUDs, 91, 119-21, 154 Streets; Transportation
Purchases of Development system
Rights (PDRs), 91, 127-32

315

Roanoke Sound, 67 SPLASH, 58
Standard State Zoning Enabling
Sacramento River, 220 Act, 93
Saffir-Simpson index, 11 State Building Code (N.C.),
St. Bernard Parish, La., 225, 10, 11, 43-44, 110, 172
226, 227, 228-29 State Building Code Council
Salter Path, 3 (N.C.), 10, 11, 44, 113
Sanibel Island, Fla., 110-11 State Highway Commission
SBA, 50 (N.C.), 209-10, 211, 216
Scenic areas, 26, 27, 97, 98, States., 1, 6, 10, 13, 17, 35,
108, 131 36, 37, 38, 41, 43, 44, 63,
Schools, 93, 115, 118, 119, 93, 137, 138, 140, 143,
124, 125, 143, 149 150, 155, 156, 176, 177,
Science and scientists, 12, 178-79, 184, 192, 194, 195,
63, 163, 183, 200, 220 20:3, 204, 206, 225. See
Sea, Lake and Overland Surge also specific states
from Hurricanes (SLOSH), Statutes. See Legal factors;
58-61, 76, 79-83, 84, 88, �Zecific statutes
89 Stevens, John Paul, 199
Search and rescue activities, Storms. See specific topics
20, 23, 140. See al�o Streets, 28, 73, 93, 114, 124,
Evacuations, emergency, and 144. See also Automobiles;
evacuation planning Roads; Transportation
Septic tanks, 98, 116, 145. system
See also Sewer facilities Structures and structural
Setbacks, 21, 27, 92, 102, standards. See Building,
116, 170, 171, 191-92, 219 building standards, and
Sewer facilities, 27, 55_71, building codes
72, 93, 111, 113, 114, 115, Subdivisions. See Housing
117, 118, 140, 141, 143, @Subsidies. See Fiscal
144, 145, 148, 149, 150, resources and economic
172, 206. See also Septic factors
tanks Suffolk County, N.Y., 130
SFHAs, 49, 50 Supreme Courts: La., 226;
Sbeffet v. Los Angeles County, N.C., 99, 105, 108, 179,
213 182, 196, 210; N.J., 187;
Ships and navigation, 2, 31, U.S., 93, 124, 181, 183,
40, 41, 85, 220 187-88, 190, 194, 196, 198-
Shopping centers, 99, 122 99, 229; Wash., 221
Signs, 101 Surf City, N.C., 68, 69, 70,
SLOSH, 58-61, 76, 79-83, 84, 71, 148
88, 89
Small Business Administration Taxes and taxation, 14, 23,
(SBA), 50 26, 41, 47, 48, 71, 88, 90,
Social life, 21, 22,'27, 28, 91, 101, 113, 126, 131,
90, 126, 157, 201 136-44, 163, 177. See also
South Carolina, 2, 3 Fiscal resources and
Southern Shores, N.C., 143 economic factors
Southport, N.C., 2 TDRs, 48, 91, 133-36, 140,
Special Flood Hazard Aras 1-54, 234
(SFHAs), 49, 50 Telephones, 149 -
Special Program tc,-L-'-s,.. the Texas, 11, 77, 78, 81, 82,
Amplitudes of Surge from 149, 151
Hurricanes (SPLASH), 58 Theaters, 105
Special use permits, 103-5, Tides, 2, 4, 41, 54, 56, 64,
154 82, 102

316

Topsail Island IN.C,I, 11 United States Farmers Home
Tornadoes, 4 Administration, 50
Tort Claims Act, 204, 210, 215 United States government, 10,
Tourism, 6, 84, 145 12-13, 14, 16-17, 31-40,
Towns, 26. See also Cities; 41, 44, 45, 46, 47, 48, 50,
Localities and local 51, 125-26, 155-56, 158,
governments; 164, 165, 173, 178, 179-80,
Municipalities; s2ecific 186, 192, 196-97, 227, 228,
towns 229, 233, 234. See also
Tracking of hurricanes and United States Congress;
coastal storms. See specific toRics. agencies,
Prediction, tracking, and and departments
monitoring of hurricanes United States Office of
and coastal storms Coastal Zone Management
Transfers of Development (NOAA), 37
Rights (TDRs), 48, 91, 133- United States presidents, 35,
36, 140, 154, 234 36, 39, 156
Transportation system, 77, 84, United States Supreme Court,
88, 93, 166, 203, 210-12. 93, 124, 181, 183, 187-88,
See also Automobiles; 190, 194, 196, 198-99, 229
Roads; Streets United States Treasury, 228
Treasury (U.S.), 228 United States Veterans
Trees. @9& Forests and Administration (VA), 50
forestry Urban areas and urbanization,
Tropical storm Andrew, 1 14, 27, 28, 95, 102, 105,
Tropical storms. See specific 120, 122, 146, 147. �ee
topics -ajjg Cities
Trust for Public Land, 126 U.1, v, It. 3ernard Parish,
225, 226, 227, 228-29
United States, 2, 4, 5, 44, Utilities, 140, 145, 146, 149,
49, 63, 142, 143, 200, 204, 157, 165, 203. See also
221. See also sgecific specific utilities
toRics and states& an
entries immediately VA, 50
following Vacationers. See Tourism
United States Army Corps of Vegetation, 29, 102, 107, 115,
Engineers (COE), 31, 40, 116, 117, 120
63, 71, 226 Vehicles. See Automobiles
United States census, 77 Veterans Administration
United States Congress, 31i (U.S.), 50
49, 51, 196. See also Village of Euclid v. Ambler
United States government Realty Company, 181, 183
United States Constitution, Voting. See Elections
17, 31, 41, 93, 94, 109,
113, 175-99 passim, 209, Warning systems, 10, 82, 111,
230, 231 223
United States Department of Washington (sta-.:e), 130, 221
Commerce, 93 Washington Supreme Court, 221
United States Department of Washington, N.C., 2, 3, 4, 62
Health and Human Services Waste water, 107, 145. See
(HHS), 50 also Water resources
United States Department of Water resources, 27, 37, 39-
Housing and Urban 40, 55, 72, 93, 107, 111,
Development (HUD), 50 117, 118, 123, 140, 141,
United States executive 143, 144, 145, 148, 149,
orders, 39 157, 172, 211, 220

317

Waves, 20, 21, 34, 49, 54, 56,
88, 96, 113, 162, 200, 206,
207
Weather and weather forecasts,
9, 32, 58, 61, 207, 220,
221, 222
Western United States, 221
West Onslow Beach (N.C.)-, 96
Wetlands, 39, 40, 97, 107,
111, 115, 117, 192, 193
Wildlife, 26
Williamson Act, 138
Wilmington, N.C., 2, 3, 62
Winds, 2, 3, 4, 8, 14, 20, 44,
49, 59, 73, 75, 76, 78, 81,
82, 88, 113, 200
Wrightsville Beach, N.C., 2

Zoning, 14, 41, 46, 91, 92-
114, 120, 133, 135, 147,
153, 154, 170, 171, 181,
183, 184, 234

1101111111111h
3 6668 14105 7481