An Interesting Court Decision Out Of Texas

Thanks to the Inverse Condemnation Blog for this one, their discussion is found here.

HARRIS COUNTY FLOOD CONTROL DISTRICT AND HARRIS COUNTY, TEXAS, PETITIONERS, v. EDWARD A. AND NORMA KERR, ET AL., RESPONDENTS is a Texas Supreme Court decision which, while not setting any precedent in Massachusetts, provides some important guidance for our local boards (Planning, Zoning and the Conservation Commission).

We now have about 5,000 properties in the flood zone. Many of these property owners will be looking to make changes to protect their property from flooding. How they do it may have consequences.

Years ago I argued that fill in the flood zone would have incremental impacts on adjacent properties. This argument was met with a rebuttal that it would be inconsequential due to the vastness of the ocean. I did not agree with that position then, I sill do not agree with it now.

Dennis is subject to storm surges, wave action that pushes water into our coastline and does not let it back out. Thus, fill located in the flood zone will push that water elsewhere, nearby. Not elsewhere in the Atlantic as was argued when this came up reviewing another project in Dennis.

Without a concerted effort to protect property, like dune construction, piecemeal attempts to protect one site needs to be balanced against the greater good. Elevating homes above base flood elevation is a good thing. We need to carefully consider how we approach this.

Harris County tells us that we cannot allow one property to solve its flood problems by aggravating flood problems for others. Essentially supporting my argument several years ago that filling the flood zone to protect one home without considering the surrounding impact to others is not only a bad idea, it may be compensable as a governmental taking.

As we start to work with more and more property owners on meeting flood zone elevation requirements, we may need to provide guidance on acceptable practices. Practices that design with accommodating the flow of storm surges, without displacing it onto neighboring properties are more acceptable than ones that displace the storm surge and increase the potential for flooding, scouring and erosion on adjacent properties. Elevating with flow through structures and flood vents are preferable over building islands around individual homes that will create channels around the retaining walls needed to protect these islands, which, just like connection a small hose to the end of a larger one, will increase the velocity of the storm surge for other surrounding properties.

Recently I had suggested relaxing the permitting process for elevating structures in the flood zone. If we do move forward with this idea, I think we have to make sure that structures taking advantage of a relaxed permitting process do not involve the use of fill.


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