FLOOD04031

• County: Statewide
• Community: State of Colorado
• Stream Name: All
• Basin: Statewide
• Title: Subdivision Design in Flood Hazard Areas
• Date: 9/1/1997
• Prepared For: State of Colorado
• Prepared By: FEMA
• Floodplain - Doc Type: Educational/Technical/Reference Information

Still, such controls are never immune from legal
challenges.
The three most frequent constitutional challenges to
subdivision controls and floodplain regulations are that
they effect a taking of private property without just
compensation, they deny a landmvner due process of
la\.\', and they violate equal protection guarantees
(Shultz and Kellev 1985).
Takings claims~ may occur \vhen there is either a
physical invasion (such as a utility line or complete
seizure for a public park) or a regulatory action that
removes all economically viable use of the property.
Claims against subdivision regulations have been made
in cases where a developer is forced to incur significant
costs to install improvements or to ma ke dedications.
Courts have generally rejected these types of claims. In
fact, the courts have consistently upl1eld l\:F1P land-use
management regulations as a valid use of police po\ver.
Courts have supported provisions in subdivision
regulations that require adequate drainage facilities and
the imposition of conditions to alleviate the potential for
flooding (City of Buena Park V. Boyer 186 Ca!. App. 20
61,8 Ca. Rptr. 674 (1960)). Further, conditioning
subdivision approval on the developer's efforts to
alleviate flooding potential (e.g., clustering homes on
non floodplain parcels, elevating structures, filling in the
floodplain) is not considered a taking because such
action does not remove all economically viable use of a

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property (Ardolino v. Board of Adjustment BorouglI of
FlorlIam Park, 24 N.J. 94, 130 A.2d 847 (1957)).
There are more than 100 state and federal court
opinions on floodplain and wetlands regulations that
have attempted to define hmv far public regulation can
go in restricting an (J\vner's use of the land. Courts will
generally not find a taking in cases where a strong need
for regulation has been demonstrated (e.g., on sites
where flooding has occurred) (Kusler and Platt 1984).
Three major recent U.s. Supreme Court decisions on
takings claims specifically involved the prohibition of
development in a floodplain and a coastal zone. In 1987,
there was First Evangelical Church v. Los Angeles, 96 L.
Ed. 2ed. 250 U.s. CW. 4781; 1990 brought Lucas v. South
Carolil1a Coastal COllllcil112 S. Ct. 2886 (1992); and, in
1995, there was Dolall v. City of Tigard, 854 P. 2d. 437
(1993). The issue in each case \vas not the legality of
limiting or prohibiting development in the
floodplain, but the means by which the local
government sought to either acquire the floodplain
land through a development exaction (as in Dolan) or
the manner in \vhich the regulation prohibiting
floodplain development was imposed (Lucas and First
English). More information on those cases is available
from APA.
The due process challenge is predicated on the notion
that any governmental regulation must bear at least a
reasonable relationship to the purpose of the legislation

In this Sacramento County, California, development. hOl/se pads "Were elevated above the lOO-year
floodplain IlSi/lg fill remm._'t'd through excavation of the area in the foreground. The excavation helped the
developer meet the county's compensatory storage rt'quircment for the loss of flood storage capacity caused
by filling in the home sites. Although this helps presenx floodplai/z function, n better method is to require
each lot to have a minimum buildable area outside the floodplain (all approach Sacramento COUllty has
since adopted). (See Appel1dix E for excerpts from Sacramento COUlzfy's floodplain policies.)

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