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Governments find it hard to restrict building in risky areas

John Schwartz

After disasters like the Oso landslide in Washington state, a common question is why people are allowed to live in such dangerous places. On the website of Scientific American, for example, blogger Dana Hunter wrote, "It infuriates me when officials know an area is unsafe, and allow people to build there anyway."

But things are rarely simple when government power meets property rights. The government has broad authority to regulate safety in decisions about where and how to build, but it can count on trouble when it tries to restrict the right to build.

"Often, it ends up in court," said Lynn Highland, a geographer with the U.S. Geological Survey's landslide program in Golden, Colo.

Her agency provides scientific information about geologic features and risks, but it has no regulatory authority, and state and local regulations are a patchwork, she said. When disaster strikes, people find that their insurance policies do not cover landslides without special riders that can be ruinously expensive.

"We tell people 'buyer beware'" when buying or building a home, Highland said, because risk disclosure requirements vary so greatly from state to state and even from county to county.

The government constantly struggles with the issue. After Hurricane Sandy, Gov. Chris Christie backed programs to help New Jersey's coastal residents stay in their homes, while next door in New York, Gov. Andrew M. Cuomo favored programs that would provide incentives for those along the shore to move. Congressional efforts to reduce incentives to rebuild in areas that flood repeatedly have been significantly weakened with a bill passed this month that delays cost increases for flood insurance.

After Hurricane Katrina, planners came up with sweeping proposals to rebuild a safer, stronger New Orleans, consolidating its smaller population into neighborhoods on higher ground and transforming low-lying areas into parkland and drainage.

"I took a lot of fire on that," said Joseph Canizaro, who headed the Bring New Orleans Back Commission. "We were trying to save lives," he added, but people did not want to be told where to live and what to do with their homes.

Edward Blakely, who led the New Orleans recovery effort, said that when he discussed some of the proposals, "people either laughed at me or were very upset."

New Orleans is not unique, said Blakely, a professor at the U.S. Studies Center at the University of Sydney.

"We have really overbuilt on really dangerous ground all over the country," Blakely said.

Communities have occasionally been moved out of hazardous areas after disasters. The tiny town of Valmeyer, Ill., was destroyed in the 1993 Mississippi River flood, and residents recreated the town on a nearby bluff about 400 feet higher than the sodden predecessor, using $35 million in federal money. In Washington state, King County began buying homes in an unincorporated neighborhood in the 1990s that was subject to repeated, dangerous floods. Over 20 years, the county bought 60 homes.

Restricting the right to build is hard, said J. David Rogers, a professor of geological engineering at the Missouri University of Science and Technology in Rolla. "That's Big Brother."

Builders and developers rarely want to hear bad news, said Rogers, who has served as a consultant evaluating stability risks. Soil and slopes can often be shored up, he said, but "when you tell them what it's really going to cost to stabilize, they go ballistic on you." He said, "I was the most fired consultant in the western United States."

While local governments focus on regulating growth, they tend to come up short on questions of local hazards, said Frank Popper, an expert in planning at Rutgers University. The town of West, Texas, did not tell the fertilizer plant in its midst to move, he noted, and disaster struck when the facility exploded last year.

He said that little had been done to prepare the East Coast for storms like Hurricane Sandy and that coastal residents rationalized away problems like hurricanes and rising sea levels, telling themselves "I'll sell the place before that" or "The scientists don't know what they're talking about" or "My neighbor will get hit, but not me."

Those who are skeptical of government regulation argue that it can be difficult to pin down a danger zone in most places, making attempts at restricting development overly broad.

"You could say everywhere on the Eastern Seaboard is in striking distance of a hurricane,"said James S. Burling, the director of litigation at the Pacific Legal Foundation, a group that promotes property rights.

Government powers to regulate safety in building are broad, said Ilya Somin, a law professor at George Mason University, and when government acts and property owners challenge a rule, "usually it's very hard for landowners to win." Somin, whose scholarship has a libertarian bent, said he would like to see the ability to challenge government liberalized so that people whose property loses value because of government action have a better chance to be compensated.

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As for the power to prohibit building, he suggested a less restrictive approach. "You don't need to prevent people from developing in higher-risk areas," he said. "You just have to make sure they bear the risk themselves."

Another prominent libertarian legal thinker, Richard A. Epstein of the University of Chicago Law School, said that the case of Oso should be simple, however, because of its history of landslides.

"The case is a no-brainer in favor of extensive government regulation in order to protect against imminent perils to life and health," he said. "I'm a property guy, but I'm not a madman."

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The attraction of risky places can be strong; they can be as beautiful as they are deadly. Nicholas Pinter, a professor of geology at Southern Illinois University, said that he took his students to see the site of the former town of Valmeyer. As they drove along the rich floodplain, he recalled, "all my students could think of was that this would be a really good place to live."

 


By JOHN SCHWARTZ
The New York Times