Case Information

*1 The Attorney General of Texas hne 21, 1985

JIM MATTOX Bomrable Carlos VaLdcz Opinion No. JM-328

Suprm Cewl BulldIng Nueces County Attorwy P. 0. Box 12542 Courthowe, Room 2015 Austin. TX. rnlll- 2545 Be: Wtether regulations enacted 512/47S?so1 Corpw Chrioti, Tasks 78401 pursuant to article 1581e-1. Telex Olw87C1287 V.T.C.S.. and 6WtiOUS 16.311, T4l~copler 512/47502(16 et seq.. of the Tcus Water Code

couetitute e taking of land 714 Jack6m. Suit. 700 Dd*r. TX. 7520245m Deer Hr. Valder: 2W742-8044

The legislature enacted article 1581e-1. V.T.C.S., because it recopslzed 4824 Albwu Ave.. SUIW 16a

El Paso. TX. 7WOH792 OlW permbal bardahips end economic distress

cawd by flood disasters eiace~ it haa become uneconomiml for the private insurance industry 1001 Texas. suite 700 alone to make flood Insurance available to those NolJston, TX. 77m2-3111 in need o:! euch protection on reanonable terma and 71- conditiom,., 50s Broadway, suite 312 Sec. 1. The purpcm of article 1581~1 wan to enable Gulf Coast Lubbock. TX. 794062472 cottlttlc~ to participate In the National Flood Insurance Act of 1968, 8o8n47-522.3 Id.: mee alw Tex. Water Code 116.311. et 42, U.S.C. ,14001.- et ma... General Opin~.~983); MU-171 (1980); E-1Oz 4209 N. Tmth. Suit. B federal ct make& flood insurance avaflable throueh McAllm. TX. 78501.162s i&d&&d --effortI, of ,~, t< ~.federal,..govekt ind -the prlvaie 512lea2.4547 :.-but only vhca ~stath and local gOV~l%WtltE comply innrr-•.induIItV with certaimfedera:, standards. 42 U.S.C.*114022, 4012(c) (1982); see 2m Malt! Plru, suite 400 Texas Laudowners IUghtst Ase’n v. Earris, 453 1; Supp. ~1025, 1027-28 San Antonlo. TX. 782052727 ?DiD.C:1978), m!,. 598 P.2d 3rl (D.C. Cir. 1979). cert. denied, 444 5t~lsl U.S. 927.. Addftimmllv: eeveral other tvues of federal financial including % and PgA insured*~*mrtgages, m ctkmunity awi6teuce, development block lpattts, and disaster resistance. may not be A” Equal OPPWtunltYf Affl”“.th~ Actlon EmployW available In flood hazard ereas 'of non-complying c-cities. 42 U.S.C. i4012a; we 42 U.S.C. oee &o T~AE Landowners )4003(a)(4); Rlghts.Aes’n o. ~~~, E,. at 1028.

Pureuent to tha Ilationel Flood Ineureece Act of 1968. ee amended by the Flood Dieeetw Protection Act of 1973. 42 U.S.C. 14001 et seq., the Pederel Rmergea~cy Management Agency holds authority to adopt regulations which ctmdition a loulity'e perticipatlon in the Nationel Flood Insurance Pro$;ram. See 42 U.S.C. 14012(c); 44 C.F.R. 160.1(a). *2 Ronorsble Carlo6 Vsldea - Page! 2 (JM-328)

The regulation about which y,u inquire provides that a participating community shall, smong other thinga,

[plrohibit encroschs~snts, Including fill, new con- stmction. aubstsntLs1 improvemants. and other developnwnt within t'he adopted regulatory floodvay that would result jlr sny increase in flood levels within the community during the occurrence of the beae flood dischsrge. (Emphsaia added).

44 C.P.R. l60.3(d)(3).

Your offfce contend6 thirt the wording of this provision must be taken as s blsnket prohibition of any development in flood hazard areas. Accordingly, you aak whether the passage and enforcement by the county~of lsnd use regulotiona with this prohibition, pursuant to srtlcle 1581c1. V.T.C.S.. owi~aections 16.311 through 16.319 of the Texas Water Code. constitute s taking of lsnd without compensation in violation the Fifth and Fourteenth Amwdmsnts of the United States Constitution. You also aak whether application of this flood hsrsrd regulation to only portions of the total ntier of flood hazard sreea violate6 the Equsl Protection Clause of the Fourteenth tindxnent. A number of prior opinions of ,&is office considered, various aspects of counties' participation In t'w Nations1 Flood Insurance Progrsm. See General Opinion6 JW-123 (1983); MU-171 (1980); H-1102 Attomay E-1024, E-1011. E-978 (1977). Several these opinions deslt specifically with article l!ieile-1. but none addressed constitu- tionsl issua raised by your request. See Attorney General Opinions a-123; MU-171; R-1024.

AA a prelimlnsry msttor. It la not entirely clear that the federsl regulation ia queatfon requires the county to prohibit “all" developamt in.federslly dec;f,gnsted floodwaya. The Suprcmc Court of North Xarolins recently conrlidered the vslidity of a local land use ordinsnce for flood,luaard ares6 which wea enected in order to comply with the Rations1 Flood Inno!snce Progrsm. See Reaponaible Citizen6 in Opposition to the Flood Qain Ordinance vxity Asheville, 302 S.E.Zd 204 (N.C. 1983). Tha: ordinance, in lsngusge slooat identical to that in isauc here, prahLbited sll fill, new conatmction. snd aubatsntisl irprov-ts except those that "ahsll not result in 9 incresac of the regulstory f:lood [level] during occurrence of the base flood discharge." Id. et 210. n. 4 (emphasis edded). The court construed this ,lsnpr- to authorize nav conatmction or aubataatisl imprwamwta in e menner th;at prevent8 or ~nimiaea any potentlal iacresse in flood d.msge. 302 S.E.2d at 210. You do not indicate thst s perticuler lendowner 'has presented evidence from an engineer thst no development at all ia physically poaalble vhich vi11 not result in soy incraese !Flood levels. You indicate prior federal reatricthns snd pra:tice generally permitted new construction if the structure wsa lsvstad on pilings. We also note that the federsl regulations provide for the adoption of limited variances and *3 Eonorsble Csrloa Valder - Page 3 (JM-328)

exceptions in extreme clrcum~~tsncea. See 44 C.F.R. 160.6. Uoreover, evsn if new constmctlon is not feasible. the provision in question does not necessarily pr0hibi.t all uses property in flood hazard arses. See generally Turner v. CounTof Del Norte. 24 Cal. App. 3d 311, 101 Cal. Rptr. 93mj (upheld limit on use under flood plsin ordlnsnce to recreation snd sgriculture).

Under the Fifth and Fourteenth Amendments of the United Ststes Constitution. private property msy not be "t&en" in the uercise of s governmsnt's eminent domain pavers without "just compensation.” You do not oak about the Texsa Conatltution. Set Tex. Coast. srt. I. 117; City of College Ststion v. Turtle Rock Corporation. 680 S.W.Zd 802 (Tax. 1984); City of Austin v. Tesgue. 570 S.W.Zd 389 (Tex. 1978). We note. hovever. that the Texas spprosch is in line with cases resolving "taking" claim6 under the Federsl Constitution. See City of Austin v.

Tesgw, 570 S.W.Zd at 393 (balancing of public ati~rivate intareata).

Under certain circumatancea. ,property uy be eppropristed by govem- ment action without sny corpenastion as an exercise of the stste’s police paver - the power protect the public health. safety, snd welfare. u.s. 621 ,S;;o;n Diego Go6 b, Electric Co. v. C::', ~sS~l~~;;~

Agin v. City of Tlburon. 447 U.S. 255 (1980)

Central Trsnaportation Co. *;. NW York City, . . ; Texss Landowners Rights Asa'~~ v. Esrria. *. The factors uauslly considered in determining whe:ther or not a taking hsa occurred include whether there hss been a #yalcal invasion or sppropristion, the degree of diminution In the value of the clsiment'a lsnd, the distinc- tion between forcing baneflt~; snd preventing hsrma, snd a balersing public benefits against privjxe losses. Aa the United States Supreme Court stated in Agina v. C:lJ:p of Tiburon. m. %o precise rule determines vhsn property he6 b,een token . . . the question nece66arily requires a weighing of prfirste end public interests." Thus. vh‘t constitutes a "taking" rfth regard to the actusl application of a local flood ordinsnce depend!, upon the fscts in each particular case. Accordingly, we con only set forth whst the general state the lsw is the arae.

It has slresdy been estsblished in a- jurisdictions that similar loco1 land use regulmtions eaaociated with the Notions1 Flood Insurance Progrsn ore a va1j.d exarcise of the police power and that. therefore they do not. on their face, effect s “taking.” See Texas Landowners Rights Aaa’n v. 'llsrris, m Responsible Citizens in Opposftion to Flood Pl& Ordinsnce v. City of Asheville, m Flood hszsrd zone regulstion; serve a vitsl purpose in protecting the people who occupy the regul.a,ted land and in protecting neighboring lsndovners from increased flood dsmsge and in protecting the general public. See Turnpike Reslt:r Co. v. Tow of Dedham. 284 N.E.2d 891 (Ness. 19m cert. denied, 609 U.S. 1108 (1973). For these ressona, they have been upheld se vr.lid exercises of the police paver. See Texhs Landowners -Rights Ass’n. v. Hsrrls, supra; Responsible Citia~ in Opposition to the Flood-Plsin Ordinance v. City Aahsville. s. Moreover, SE shown agove. the provision in question does not *4 Ronorablc Carlos Valdez - Page 4 (JM-328)

prohibit all uses of property within a flood risk area. Clearly some intensive u*es, such as extensive uev construction. mey be ruled out as * practical matter. As lnilicated, however. decisions of the United States Supreme Court establish that uses land which are Injurious to the public may be prohib:tted entirely without compensation. In borderline c.sses the courts hsve found the existence of authorization for some remaining uses to te a significant factor in the "taking" ISSUL. See, e.g., Aglus v. CJ.ty of Tiburon. supra; Turner v. CouutY of Del Norte, supra. The ultimate question Is whether a landowner is denied all economically viab'le use of his land, Agins, 447 U.S. at 260, not whether he mst be a1,l.e to show au immediate profit.

The fact that the authorized uses are not the "highest and best" uses or that the cost of complying with flood control land-use regulations lay be financially "prohibitive" is not controll!

r-1051. 1066 (:5th Cir.-i

i-F.2d 1184 (Ct. 198i);-;

Decisions of the United States SF upheld prohibitions of similar injurious uses and activities, to prevent harm to the public, even when the financial impact on the land in question is substantial. See, e.g., Agins v. City of Tiburon, For example, the Supreme Court in the Penn Central cnse noted w that It previously upheld, without requiring compensation, a 75 percent diminution in value Ln Euclid v. Ambler Realty Co., 272 U.S.

365 (1926). snd uuheld an 87% nercent diminution In value In Radscheck v. Sebsst&n. 236 U.S. 394 (1;315). 438 U.S. at 131; see als;ne Landowners Rights Aesn’n v. Barris. 453 F. Supp. at 1032.

cases the landowners whose jamis restricted also receive certain reciprocal benefits which incr,case the value of their property. Such benefits may arise both from the fact that restrictions applicable to their neighbors protect the liwdovners themselves from increased flood hazards and from the ivailabllity to the landowner of flood insurance end federally-related financing. See Responsible Citizens in Opposi- tion the Flood Plain Ordinance V. City of Asheville. 302 S.R.2d st 213. That the costs of dev&pment necessary to comply with flood hazard restrictions are "prdn:Lbitive" or lover value a that. less intensive use of land is not immediately profitable pay merely indicate that .s particular lctndowner has paid too much for land in a flood hazard area. The Fifth and Fourteenth Amendments do not require that the government guarantcw that a landowner be favored to the detriment of the public merely because he has paid a speculative price for land. As the Supreme Cou,rt stated in Penn Centrsl Transportation Co. v. New York City:

[T]he submission thw [landowners] may establish a ' taking’ simply by shoving that they have been *5 .

Eonornble Cnrlos Valder - Pago 5 (Jh-328)

denied the nbility to exploit n property interest that they heretofolre had believed vns availsble for developmet is quite simply untenable.

438 U.S. at 130; see also And:nm v. Allard, 444 U.S. 51. 65-66 (1979). --

~For these reasons, ve conclude that adoption by the county of the federnl standard for flood haxerd laud-use regulation in question. see 44 C.P.R. 960.3(d)(3) (quoted previously), would not on its face effect n taking. The validity of the appllcatiou of a flood plain ordinance to a particular piece of..property depends upou fnctual determinations. Numerous courts in other stntes have upheld similar flood zone prohibitions.. 8ee Turner vr County of Del Norte, 24 Cal.

App. 3d 311. 101 Cal. 'Rptr. 93 (1972): Pope v. City of Atlant :“, 249 S.E.Zd 16 (Ga. 1978). cert. denied. 1 C40 U.S. 936 (1979); ng ~I&.~v.za Nnturai Reaourccr Council. 276 Plumbing 6 Bent1 N%% . . 377 (Iown 1979); I N.E.2d 891 (l4aml.. 1972). q Le~L~;j;.2;~;f m D=dham- 284 Subnru New England v. Board of Apue . . (Haas. App. Ct. 1979); Usdin v., State Department Envlronmentrl PI yeaction. 414 A.2d 280 9 (N.J. Super. Ct. ,(N.J; 8uner. Ct. LAW Div. 19fa). aff'd. 430 A.2d 94!

,&p. Old. 1981); Ma le Leaf Iuvex~. Inc. v. State Department of Ecology, 565 P.Zdwi. 1977) 8ce also Graham v.~Bstuary Properties. Inc.. 399 80. 2d 1374 (Fl;. i-t. denied, 454 U.S.

1083 (1981).

You also indicqte thnt tire proposed regulation would apply only to flood hasard areas on the Fiueces Biver which are designated by the Federal Bmergency Plarugement Agency and the Agency plans to designate only a portion of IBS total mumher flood hazard atess nt a the. Becuuse this may rewlt in differing treatment of landoeners who nre similarly. situated. you ask whether such partial regulation violates the Equal Protection (Clause of the Fourteenth Amendment.

We note *s a prefatory wetter that Gulf Coast counties are not limited in their enactment and enforcement of flood hsrard regulations to nrens which have been designeted as flood hasnrd areas by the Federal Rmergency Dnnagement Agency. Counties hold only those pouers nnd duties that nre specificnlly or by necessary implication conferred on them. Canales v. Lau8n:Lin. 214 S.W.Zd 451 (Ten. 1948). As initially enacted. the Flood-Control and Insurance Act granted only limited powers to counties. See Ten. Water Code S16.311 et seq. This office previously concludei~>hat this act nuthoriree political subdivisions to enact land use regulstions which have as their purpose and effect eomplinnce with the requir-ts of the National Flood Iosurnnce Program, but that, such regulations have no application outside of federally designsted flood hasnrd areas. See Attorney General Opinions WI-171 (1983'); R-978 (1977). NeverthelG. srticle 1581e-1 grnnts dditionsl flood damage control powers counties bordering the Gulf of Mexicc~ or tidewater limits. These pavers ita sre not restricted to or conditioned on actions of any federnl *6 Eonorable Carlos Valdez - Page 6 (JM-328)

ageucy in dcsiguating nn aren ,as n flood hasard. See Attorney Opinions HW-171 (1980); N-1024 (1977). As ve inKsted in Attorney General Opinion JM-123 (1983). article 1581e-1 must be construed in conformity with its purpose of enabling certain counties to quelify for pnrtlcipatiou in the National Flood Insurance Program. Con- sequently, Caneral Opinion JM-I23 concluded that a particular county lackad powers broad enough to deny utility sewice to individuals and autities vhlch were not in compllauca vlth county flood regulations. Navcrth~aless. federal regulations encourage comprehensive flood mwagemrut by local c-nitleo sad expressly allow more stringent regulat:tcms than we federally required. See 44 C.F.X. 1160.1, 60.3(b). Thw,, Gulf Coast counties are not limi?Z in their article 1581c-1 flood z,cgulatiou pavers areas which have been designated as flood hasard as’eae by the fedaral governmant. They are, howwer. limlted to enactin only land use regulations and only in flood-prone areas. See Attonmy Ganeral Opinion E-1024 (1977).

If tha county decides , houever, that it is feasible to enact nnd anforce flood regulations only in the areas which have been federally designated as flood haanrd areas , such action vould not result in a danial of equal protection ea a matter of law. It is well established governmanta entitian amp implament their programs a step at n time., See City of NW Orleans v. Uukas, 427 U.S. 297 (1976); Kataenba~v. Xorgan. 384 U2. ace also Beckandorff v. Rarris-Calvcston Coastal Subl3:Ldence District, 558 S.W.2d 75, 81 (Tax. Civ. App. - Houston [14th D&t.] 1977). aff'd 563 S.W.Zd 239 (Tex. 1978). So long as the Gulf Coast county ha~ational reason for not enacting and enforcing flood regulations in all flood hazard areas at one tkc. no aqua1 protection claim anista s a matter of lnv. The validity the actual application of this langunge to a parficular piece of property depands upon the fscts involved in each cnse.

1. This is not to sn:r that. a particular case. a landowner could not show that a county's flood plain boundary draving Is dis- as applied. See enerall Visa v. State, 92 Cal. App. 3d cridnetory 154 Cal. Rptr. 580 v9'79 -s+ Nor do ve nddress the question of 15. whether a partlculnr landouner may have other claims against the enforcement of a flood p1c:d.n rcgulstion. See Hcrnandcz v. City Lnfaycttc. 649 F.2d 336 (5~11 Cir. 1981). (cnnteral cstoppel) e denied. 102 s.ct. 1251 (19A2); Town of Large v. Imperial Aomes Corporatfon. 309 So.2d 571 (Pin. 1975) (equitable cstoppel).

.

Nonornble Carloa Valder - Page 7 (JR-3281

Language in loaLL land-use regulations vhich tracks the criter:ia of the Natioual Flood Insurance Program set forth in 44 C.F.R. section 60.3(d)(3), does not 00 its face effect a "taking" in violation the Fifth and Fourteauth Ameud- meets of the United States Constitution. The county may adopt flood haaard regulations oue step at n the, such that they apply 0019 In federally designated flood hazard areas, vithout coustitu- tlag a violation of the Bqual Protection Clause the Fourteeuth Ameuhseut as a matter lav. The validity of the ectual application of this language to a partiwlar piece of property depends upou facts invo:tved in each use.

JIM MATTOX Attorney Geueral of Texas TonGxEEN First Assistant Gaaeml

DAVID X. BICEARDS Executive Aaaiatant Attorney General

ROBERT GRAT

Special Assistant Attorney General

RICR GILPIN

Chairman. Opinion Comittae

Prepared by Jeuuifer Riggs

Assistant Attorney

APPROVEI:

OPINION CGXRITlEE

Rick Gilpin. Chairman

Jon Bible

Tony Guillory

Jim noellinger

Jennifer Riggs

Nancy Sutton

Snrah Uoelk