As climates change, a strong case for new land laws

A change is gonna come: And land-use regulators had better be prepared, warns Michael Sahn, as climate change continues to alter geographic landscapes.
By MICHAEL H. SAHN //

We need a new, long-range vision for land-use regulation. The land we are regulating is changing rapidly, and this presents challenges and consequences we are only beginning to understand.

Land-use regulations, codified in zoning laws, govern the way land is used and developed. The goal of zoning laws is to carry out a community’s long-range land-use objectives, in accordance with a comprehensive plan – in other words, to make sure the land is used and developed in a manner that promotes and preserves public interests.

The underlying premise for land-use regulation has always been that the land is a constant. Stated another way, a community’s vision for the use and development of the land may change over time, but the land being regulated will always exist.

But what if that premise is no longer valid? What if the land is changing and is no longer a constant?

That’s the situation we face today. This is a global problem. Yet, we must deal with it on a local level.

Almost daily, we are confronted with dramatic events that are literally altering the landscape of our world. Devastating fires, severe storms, rising seas, shifting shorelines, droughts, melting polar ice caps and loss of wildlife habitats are becoming routine events that we must confront.

Michael Sahn: Shifting landscape.

Consider the following, as reported by various sources:

  • The world’s oceans are losing oxygen and getting warmer. Warmer ocean temperatures lead to a thermal expansion process that causes sea levels to rise.
  • Rising sea levels threaten coastal development, cause shoreline erosion and increase the risk of flooding in cities and communities adjacent to and near coastlines.
  • As a result of the inevitable flooding of lands near oceans, lakes and seas, some communities may be forever changed or disappear entirely, including coastal infrastructure like roads, bridges, tunnels, dunes and beaches.
  • Fires due to drought and climate change are devastating vast areas in California and Australia. It’s not clear when or if these areas can be reclaimed for habitation – or whether they should be reclaimed.
  • Floods, droughts, storm surges, extreme precipitation events and atmospheric changes are changing the geography of our world.

Because of these changes, land now used and developed may be lost or become permanently undevelopable. At the same time, land that is not currently developed – in areas that were typically too cold or remote for full-time development, for instance – may become developed.

Populations may move from coastal to interior areas, agricultural lands may change, coastal cities may change – we’ll need to build barriers to withstand tidal flooding and erosion, while interior areas may face new development pressures.

A multidisciplinary approach is needed to confront all these issues. In terms of land-use regulations, we need to consider implementing a whole range of new concepts.

Some measures to consider:

  • Statutory mandates to revise municipal comprehensive plans to account for future land changes, and to create long-range sustainability plans for each municipality.
  • Requirements to construct new coastal barriers to protect land along the shorelines. (In the alternative, we may need to make hard decisions that preservation of existing coastline may not be worth the extraordinary price of protective measures.)
  • Mandatory subdivision, building and site development controls to account for climate changes.
  • New infrastructure to withstand changes to large land areas and to serve new areas that may become developed in the future.
  • Creation of regional, intermunicipal agreements and boards to plan for change on a broader geographic level.
  • Creation of new taxing or development districts to plan for and assess costs rationally among all property owners and communities.
  • Consideration of alternative-energy sources, such as solar- and wind-generated energy, on a larger scale, as we move away from fossil fuels and hardening of existing infrastructure.
  • Restrictions on (or prohibitions against) new development in areas susceptible to climatic events.
  • Broader eminent domain powers to prevent development in at-risk areas, or to take back areas that suffer severe events to prevent rebuilding.

These are some ideas, yet by no means a comprehensive list. We need a planning effort on a great scale – and we need to start now, so that we protect the future.

Michael H. Sahn, Esq. is the managing member of Uniondale law firm Sahn Ward Coschignano, where he concentrates on zoning and land-use planning, real estate law and transactions, and corporate, municipal and environmental law. He also represents the firm’s clients in civil litigation and appeals.