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Survey of State Land-Use and Natural Hazards Planning Laws, 2009

2009 did not produce any significant changes with regard to planning enabling legislation, including provisions dealing with planning for natural hazards. In view of the fiscal crisis facing most states in the midst of a recession, this result is probably not surprising. Regardless of any arguments about the fiscal efficacy of hazard mitigation, legislators generally remain reluctant to embrace new initiatives when their state is struggling to make ends meet. This year’s matrices include nothing new. However, the key code notes a change in Louisiana produced by Act No. 523, which created the Office of Coastal Protection and Restoration in the governor’s office. Previous legislation in 2005 established the Louisiana Coastal Protection and Restoration Authority. The new legislation places the Authority within the Office under the governor, but it retains the responsibility for developing the state’s coastal management plan.

This introduction has sometimes noted laws that do not affect any of the categories in the matrix but are worth reporting because of their bearing on the larger topic of planning for natural hazards. One such measure was House File 79 in Iowa, which requires counties and cities with flood hazard areas to participate in the National Flood Insurance Program. The massive floods of June 2008 clearly are influencing public policy in Iowa. Colorado is as concerned about wildfires as Iowa is about floods. There, the legislature passed SB 09-001, which requires counties to designate wildland-urban interface areas and to produce Community Wildfire Protection Plans (CWPPs) under the guidance of the state forester. CWPPs are defined and authorized in the federal Healthy Forests Restoration Act of 2003. Colorado also enacted HB09-1162, which provided for intergovernmental agreements for wildland fire mitigation, based on the sensible premise that fires do not stop at political boundaries. Along similar lines, Montana enacted SB 131, which requires the Department of Natural Resources to designate wildland-urban interface parcels in each county, to maintain maps, and to require use of a CWPP for that purpose if one has been adopted.

The role of CWPPs in state legislation raises a question we have addressed here repeatedly. Federal law often mandates various kinds of plans, among them state and local hazard mitigation plans under the Disaster Mitigation Act of 2000, as a condition of eligibility for federal grants. This survey does not address such plans unless state law incorporates and enhances them in some way that distinguishes them from what every other state is doing to comply. Our larger goal is not to see whether states or their local governments are planning for hazards under federal mandates, but to see how they are integrating such planning into the larger framework of comprehensive planning at the state or local level. One new frontier in the planning field may well be the effective integration of planning done to comply with federal disaster legislation with the ongoing comprehensive planning that takes place at the state or local level, with or without mandates in state planning legislation. In August 2007, the American Planning Association (APA) entered into a two-year contract with FEMA to produce a Planning Advisory Service Report on best practices with regard to integrating hazard mitigation into all aspects of local planning. The final report, Integrating Hazard Mitigation into Local Planning, will be published by APA in the spring of 2010.

Background

In April 1998, the Institute for Business and Home Safety (IBHS) published its Summary of State Land Use Planning Laws. For several years, the IBHS Land-Use Planning Committee has been examining ways to heighten the priority level of hazard mitigation in state planning legislation. The committee’s work reflects a concern that traditional mitigation efforts have focused largely on improving building codes, strengthening code enforcement, and testing new building techniques and materials. That focus certainly addresses the question of how we build, but land-use planning brings into focus the equally important question of where we build. Ultimately, neither one is completely adequate as an answer to the threat posed to our communities by natural disasters. The two mitigation strategies must complement each other to be maximally effective. The 1998 report attempted to draw attention to this fact.

In 2001, the committee decided to ask APA to prepare an update of 1998 study. By January 2002, IBHS had engaged Jim Schwab, who had previously managed the preparation of APA’s ground-breaking Planning Advisory Service Report, Planning for Post-Disaster Recovery and Reconstruction (PAS Report No. 483/484), which was sponsored and co-published by the Federal Emergency Management Agency, to undertake the work. This new report is the result of that effort.

It is important to note the differences between the current report and the first. The 1998 report concentrated on general planning legislation and requirements and contained only one column specific to natural hazards, in which the question was, “Is hazard mitigation a required or suggested element?” The rest of the columns in a single matrix dealt with questions of statewide planning, whether the state required local governments to plan, and the existence of any requirements for vertical or horizontal consistency. Vertical consistency refers to requirements that a local plan be consistent with the plans of higher levels of government, such as regions or counties. Horizontal consistency refers to requirements that they be consistent with the plans of neighboring jurisdictions.

The current study is similar to the 1998 study in that it focuses on local planning, where land-use regulations are actually enacted and implemented, and not on regional planning, where they seldom are. Hence, although some questions in the matrices might be answered differently if one were considering regional plans, the attempt was to answer them as they related to those jurisdictions, typically counties and municipalities, that actually enforce land-use regulations such as zoning.

This study contains almost all of the 1998 questions in its first matrix, which provides information on general planning provisions in state laws, but it adds a second matrix that looks much more closely at those provisions that specifically address natural hazards. Hence, the last question of the first report becomes the first in the second matrix of this report. The first matrix of this report is largely, but not completely, a reprise of the types of information contained in the 1998 report. The second matrix represents a significant expansion of the scope of our research. However, we deemed two new questions, which appear in the first matrix, significant and worth asking:

• Must the plan be adopted formally by the local legislative body? In states that require such adoption, the city council, county board, or other governing body must adopt the plan before it becomes official policy. In other states, it is usually sufficient for the planning commission alone to approve the local plan. The requirement for formal adoption by the legislative body, however, invests that body with some stake in the plan’s successful implementation.
• Does state law require that zoning be consistent with the comprehensive plan? Requiring that zoning conform to the plan gives the plan much more legal force and effect than would be the case if the plan can be ignored for this purpose. It should be noted, however, that in some states, what appear to be clear requirements for internal consistency have not been interpreted in this way by the courts.

Finally, a judgment was made in one column rating the strength of the state role in guiding planning by local governments, mostly to provide an overall indicator of the stance the state government had taken toward this subject. In that regard, it is worth quoting the introduction to the 1998 study with regard to the intent and limitations of both that and the current study:

Land-use planning is a job for local and regional jurisdictions. Where state governments require planning and specify the elements that it must contain, localities tend to do a much more thorough job. Where state governments do not require or encourage it, the localities usually do not make planning a priority. This report compares the importance individual states place on land-use planning and the requirements the states place on local jurisdictions. The study does not review what actually has been achieved.

As the chart indicates, most states do not require or even suggest to localities that natural hazards be considered in making land-use and development decisions. This is unfortunate because land-use planning can have a major impact in reducing disaster losses from hurricanes, earthquakes, wildfires, and floods.

In its efforts to make families, homes, and businesses safer, the Institute for Business and Home Safety is working to heighten the priority of natural hazard mitigation as an essential element in land-use planning. This report indicates where the most work is needed.

Hence, the second matrix. In it, we ask much more detailed and specific questions than in the 1998 report, to wit:

• Are hazard mitigation elements mandatory in local comprehensive plans?
• Do the laws require a separate, discrete hazards element, or do they include hazards in a broader element such as an environmental or land-use element?
• To what geographic area within the state (for example, coastal counties) does the requirement for a hazard mitigation element apply?
• Does the statute specify any particular types of hazards that must be addressed, and, if so, which ones?
• Is there any requirement for the hazards element to include a plan for post-disaster recovery? (This provision is included in the Natural Hazards Element section (7-210) of the model statutes in APA’s Growing Smart Legislative Guidebook, available at http://www.planning.org/growingsmart/.)
• Which, if any, state agencies provide technical assistance to communities in preparing plans, and more specifically, in preparing natural hazards elements? This last question was deemed significant because of the technical aspects of natural hazard mitigation. Few university planning programs teach hazard mitigation, and many professional planners are untrained in this area.

We hope that posing and answering these additional, more specific questions about state planning laws and the degree to which they foster the integration of natural hazards planning into local comprehensive plans will further public consideration of these issues. In any community where natural hazards of any sort exist—flooding, earthquakes, hurricanes, wind storms, wildfires, volcanoes, landslides, etc.—it can respectfully be suggested that no planning is truly comprehensive until mitigation of those hazards is addressed, and a plan for recovery from major natural disasters is in place.

Finally, we encourage readers who wish to do further research to do so. A wonderful place to start in locating state codes is www.findlaw.com. From that website, which indexes online sources of state and federal law, one can “click through” to sources of constitutional, statutory, administrative, and case law for the federal government and all 50 states. Get involved. Check it out.