The Evaluation of Building and Zoning Ordinances in the Aftermath of Superstorm Sandy

Environmental Law

 

It is unclear how many more severe weather events will destroy and devastate our coasts before comprehensive action is taken to prevent catastrophic damage. Superstorm Sandy was the most serious of these recent events. It provided a warning that if nothing changes, the nearly 400 miles of Long Island coastline will continue to be ravaged and its residents displaced. And, with sea-level rise projected to be 2 to 5 inches by the end of this decade, the damage could be ever-more severe. While this storm caused great loss, it also provided an opportunity. The current land use, zoning, and environmental laws and policies which regulate development in coastal areas should be scrutinized and changed in consideration of the potential environmental impacts.

While the long-term solution to ending extreme weather events may rest with the global reduction of greenhouse gas emissions and the anthropogenic effect on climate change, the immediate impacts of storms like Sandy can be mitigated by the enactment and amendment of local land-use and planning laws and regulations.

In 2010, the Long Island Regional Planning Council published a report titled, Sustainable Strategies for Long Island 2035. This report outlines recommendations and sustainable measures for residents, businesses, and municipalities to adopt and enable Long Island to have a prosperous economic and environmentally sustainable future. In identifying the short-term and long-term risks associated with climate change, the Council recommended the revision of building codes in the coastal communities of Long Island, including the City of Long Beach, Town of Hempstead, Oyster Bay, Babylon, Islip, South Hampton, East Hampton, and Shelter Island.

In addition to building codes, changes to local zoning ordinances are necessary in these environmentally-vulnerable areas, however, these land-use law changes must be consistent with the local comprehensive plan. Before a municipality can make a change to its zoning ordinance based on concerns over sea-level rise or other environmental circumstances, express language concerning climate change and other environmental-related risks must be added to the comprehensive plan to ensure that all amendments and changes to the law on this basis will be consistent with the plan. New York State agencies and municipalities must look to integrate adaptive planning into the Plan for the projected effects of climate change and provide for changes to land-use planning ordinances. 

In 2007, the New York State legislature created the Sea Level Rise Task Force to assess impacts to the State’s coastlines from rising seas and recommend protective and adaptive measures. In a final report issued in December 2010, the Task Force made recommendations to discourage development in vulnerable coastal areas as well as to update the state and local building codes to address the impacts associated with sea level rise, coastal storms, and coastal flooding. Suggested changes include increasing setbacks to require structures be set back on a lot as far landward or upland as feasible, or limiting the size and height of structures to allow only for smaller structures that can be more easily relocated and put fewer people at risk. For vulnerable coastal areas, municipalities could downzone permitted uses by limiting development and redevelopment of critical facilities in these areas or require that more intense uses obtain special use permits.

In the aftermath of Sandy, FEMA has released updated flood maps for ten counties in New York and New Jersey. FEMA expects to release new flood maps for New York City and Westchester early this year. With the on-going changes to our coastal zones and floodplains, now is the time to develop robust and flexible land-use regulations to mitigate and adapt to our changing climate.

For more information on land-use and zoning regulations in response to sea-level rise, and on local municipalities’ efforts to adapt to climate change, please contact Miriam Villani, Michael Sahn, or Jason Kaplan.

Posted by Miriam Villani