LAND USE REGULATIONS, CLIMATE CHANGE, AND REGULATORY TAKINGS.

• Author: Guimont, Emily

1. INTRODUCTION 280 II. LAND USE REGULATIONS GENERALLY 282 III. LAND USE REGULATIONS AS A TOOL AGAINST CLIMATE CHANGE 283 A. The Comprehensive Plan 284 B. Zoning 286 C. Development Codes and Permitting 287 D. Localized Knowledge and Connections 288 IV. REGULATORY TAKINGS 288 A. Penn Central Takings 289 B. Permanent Physical Invasions 290 C. Total Economic Deprivation 290 D. Exactions 291 V. REGULATORY TAKINGS CLAIMS ARISING FROM LAND USE REGULATIONS 292 A. Balancing the Penn Central Factors 293 1. Economic Impact 293 2. Investment-Backed Expectations 294 3. The Character of the Government's Action 295 4. Avoiding Penn Central Takings Claims 296 B. Avoiding Loretto and Lucas Categorical Takings 297 1. Loretto 298 2. Lucas 298 a. Avoid Depriving a Property of All Economically Beneficial Uses 298 b. Utilize Lucas' Background Principles Exception 299 1. Statutory Background Principles 300 2. Common Law Background Principles 301 3. The Public Necessity Doctrine as a Background Principle 302 C. Exacting without Taking under Nollan, Dolan, and Koontz 304 VI. CONCLUSION 305 I. INTRODUCTION

   We live in a time of significant environmental upheaval. Climate change has fundamentally altered the land on which we live and the ways in which we conduct our lives. Americans are increasingly at risk of having their homes and places of work drowned by rising sea levels and intensifying tropical storms, flooded by rivers, pushed to the edge of inhabitability by drought, and burned to the ground in climate-change-fueled wildfires. (1) These incidents of climate change cost the United States' economy 240 billion dollars per year (2) and are estimated to cause over 150,000 deaths annually, worldwide. (3)

   It can appear that little action is being taken to address climate change. The prior presidential administration certainly played a role in this perception. (4) Good news, however, can be found in our oftenoverlooked local governments--our cities, counties, special districts--which are, in many ways, better equipped to address climate change than national or even state-level entities. Local governments, more so than any other governmental entity, control how we use the land: where and how we 1) build homes, businesses, and industry; 2) grow agricultural products; 3) consume natural resources; 4) recreate; and 5) travel. (5) Because these uses are inextricably tied to the land, local governments are in a unique position from which they can address climate change and its effects. Local governments can, and often do, step into the vacuum left by the federal government by enacting their own climate change policies that leverage their land use regulations to shape land use and development in ways that are sustainable, resilient, and mitigate the risks and causes of climate change. (6) Comprehensive planning, zoning, and building codes are just a few of the land use regulations at their disposal.

   A local government with a committed governing body and a willing constituency has the potential to make meaningful differences within its jurisdiction and set an example for local governments without. However, a local government's ability to regulate land use is not limitless--state-and federal-level legislation place boundaries on what local governments can do. As discussed in this Comment, the Fifth Amendment to the Constitution sets, with its Takings Clause, the outer limit to their power. (7) Under the Takings Clause, governments, including local ones, may not take private property for a public purpose without paying just compensation. As this Comment discusses, the definition of "take" has evolved to include not only physical appropriations of or intrusions upon private land, but to also include regulations that burden private property.

   The issue here is apparent: To effectively mitigate the effects of and become resilient to climate change, we need the government to promulgate land use regulations, which, at times, can be somewhat onerous. That said, the government cannot effectively regulate if it risks litigation and paying compensation with every regulation. Local governments feel this risk acutely, as their budgets are often small. (8) Therefore, to balance the need to regulate with the need to reduce risk and remain solvent, it is vital that local governments understand the regulatory takings landscape so that they may avoid overstepping the law.

   Part II of this Comment discusses the purpose of land use regulations and their basis in law. Part III discusses three types of land use regulations--comprehensive plans, zoning, and building codes--and how local governments can employ them to mitigate climate change and build resiliency. Part IV discusses the types of regulatory takings that impact local governments. Finally, Part V explores ways to avoid regulatory takings claims from developing and strategies for defending against them should they arise.

2. LAND USE REGULATIONS GENERALLY

   Land use regulations are a system of laws that govern the relationship between people, their uses of land, and the land itself in order to most efficiently and advantageously use the land. (9) It also functions as an ex ante conflict resolution system by segregating incompatible uses and striking balances between competing uses. (10) To this effect, local governments' governing bodies, (11) with the support of their constituency, make policy decisions about the kind of community and environment in which they want live. This policy is carried out by land use regulations that are the results of legislative and administrative actions. (12)

   The source of local governments' ability to enact land use regulations is found in the Tenth Amendment, which reserves for the states all powers that are not granted to the federal government. (13) These "all powers" are commonly referred to as the states' police powers and they, in turn, delegate their police powers to local governments. (14) There are two methods by which state governments delegate police power to local governments. In home rule states, the state government grants its local governments broad power to administrate local affairs. (15) In Dillon's rule states, local governments may only exercise the powers that the state government specifically grants to them and whatever powers are necessary to exercise those specifically granted powers. (16)

   The Supreme Court has held that land use regulations are constitutional unless they "ha[ve] no foundation in reason and is a mere arbitrary or irrational exercise of power 'having no substantial relation to the public health,' the public morals, the public safety or the public welfare." (17) Additionally, as discussed in Part III, the Takings Clause limits how much land use regulations may burden the use of private property.

3. LAND USE REGULATIONS AS A TOOL AGAINST CLIMATE CHANGE

   Climate change has and will continue to fundamentally change the land on which we live. The average global temperature is rising, (18) which causes sea levels to rise, (19) which, in turn, changes the shape of coastlines and increases the risk, frequency, and intensity of coastal flooding. (20) Hurricanes and other tropical storms are increasing in frequency and intensity as well. (21) Precipitation patterns have shifted towards intense, single-day rainstorms (22) that increase the risk and intensity of river and stream flooding. (23) Other regions suffer from unprecedented droughts. (24) In some parts of the country, wildfires are no longer constrained to a season and burn year-round, on a scale that can demolish entire towns. (25) In the face of these climate change challenges, local governments have several powerful tools: the comprehensive plan, zoning, building codes and permitting, and their localized knowledge and connections. (26)

   1. The Comprehensive Plan

      The comprehensive plan is a planning tool used by local governments to develop and commit land use goals and policies into writing that will guide the local government's future development, including residential, commercial, transportation, and agricultural development. (27) Some states require that their local governments undertake comprehensive planning (28) while others merely recommend it. (29) Generally, however, if a local government has a comprehensive plan in place, then all future development must be conducted in accordance with that plan. (30) Comprehensive planning is a local government's opportunity to engage with members of the public over the future of their community. (31) The procedure for developing a comprehensive plan varies from location to location, but it generally includes regular and periodic reviews conducted in phases, fact-finding, public meetings, and public comment periods. (32)

      Some states require their local governments to assess and account for environmental factors in their comprehensive plans, (33) but whether it is optional or not, all local governments should use the comprehensive plan process to weave climate change resiliency and mitigation into their communities' future. The comprehensive planning process is a unique opportunity to gather facts and data, meet regularly with officials and stakeholders, and engage with the public during meetings and comment periods. A local government with a motivated and environmentally minded constituency and governing body can use this process to formalize policies that aid in climate change mitigation and resiliency.

      Cities can use comprehensive plans to implement policies aimed at a variety of environment goals, including reducing carbon emissions and urban sprawl, (34) incentivizing "green" development and business, (35) conserving vital wetland habitats, (36) reducing water consumption, (37) preparing for sea level rise, (38) and building wildfire resiliency. (39)

      For example, a city might use its comprehensive plan to create a policy favoring high-density development and the clustering of residential subdivisions, which would promote climate...