Managing Property Buyouts at the Local Level: Seeking Benefits and Limiting Harms

• Date: 01 June 2018

48 ELR 10520 ENVIRONMENTAL LAW REPORTER 6-2018

Managing

Property Buyouts

at the Local Level:

Seeking Benef‌its

and Limiting Harms

by omas Ruppert, John Fergus, and

Enio Russe-Garcia

omas Ruppert is an Attorney and Coastal Planning

Specialist with the Florida Sea Grant College Program.

John Fergus is a resident of Satellite Beach, Florida,

and a retired U.S. Air Force member. Enio Russe-

Garcia holds a J.D. (2018) from Florida State University

College of Law, is a State-Certied General Real Estate

Appraiser (RZ 3058), and is a LEED Green Associate.

Summary

Eorts to conduct buyouts of at-risk properties are an

increasingly popular resilience tool, especially in response

to massive ooding losses in recent years and the nancial

predicament of the National Flood Insurance Program.

Calls for buyouts increased after Superstorm Sandy, with

both New York and New Jersey dedicating funds to volun-

tary buyout programs. In some communities, an exclusive

focus on the vulnerability of individual properties may lead

to an implementation that causes harm to neighborhoods

and communities. Based on development of a model local

government ordinance for Florida communities, this Article

analyzes how communities can participate in and support

buyout implementation to seek to achieve the benets of

reduced ood risk while avoiding the most negative impacts

of buyouts. It details the need for careful drafting due to

federal and state requirements, which may require targeted

exemptions limiting local government support for and

implementation of specic federal or state buyout programs.

I. Introduction and a Caveat

State and local governments across the country, often with

federal hazard mitigation funding, have used buyouts of

at-risk properties as a way to protect people from ood-

ing, avoid ood losses, and lessen the costs to ood insur-

ance providers.1 Costlier storms, sea-level rise (SLR), and

climate change have increased the focus on buyouts as a

tool to create natural buers along the coa st, help protect

nearby neig hborhoods a nd businesses from ooding, a nd

make ood insurance more nancially viable. Evidence

clearly demonstrates that ood mitigation throug h acqui-

sition and demolition or relocation of buildings on at-risk

properties saves money overall for society,2 and is the best

way to protect people and property from harm.3

Still, use of buyouts comes with challenges. Despite the

importance of the goals of scal sustainabilit y for ood

insura nce and protecting people and propert y while s afely

1. See, e.g., David A. Lewis, e Relocation of Development From Coastal

Hazards rough Publicly Funded Acquisition Programs: Examples and Les-

sons From the Gulf Coast, 5 S G L.  P’ J. 98, 120-26 (2012)

(describing post-Katrina rebuilding and buyouts in Louisiana). See also

Sandra Zellmer & Christine Klein, Mississippi River Stories: Lessons From a

Century of Floods and Hurricanes, 60 SMU L. R. 1494-95 (2007) (not-

ing that in Missouri after the 1993 ood on the Mississippi River, 90%

of hazard mitigation funds went to buyouts and more than 10,000 build-

ings were removed), available at https://scholar.smu.edu/cgi/viewcontent.

cgi?article=1486&context=smulr. For one of the most high-prole and re-

cent federal programs that includes buyouts on a communitywide scale and

planned relocation of an entire community, see Isle de Jean Charles, About

the Project (noting “[a]pproximately $48 million of the award is dedicated to

resettling the Isle de Jean Charles Band of the Biloxi-Chitimacha-Choctaw

tribe.... e award will fund a resettlement model that is scalable, transfer-

rable and supportive of cultural and social networks” (citing Louisiana Janu-

ary 25, 2016, press release)), http://www.coastalresettlement.org/about-the-

project.html (last visited Apr. 23, 2018).

2. See, e.g., N I  B S, N H

M S: 2017 I R 27, 86 (2017) (noting that riv-

erine ood mitigation activities have a 7:1 economic benet and noting that

“while considered a costly mitigation option, buyouts do provide the great-

est societal benet in the form of permanent avoidance of loss”), https://

www.nibs.org/page/ms2_dwnload.

3. Lewis, supra note 1, at 126 (citing Mississippi coastal improvement plan

environmental impact statement).

Authors’ Note: Special thanks to many individuals who reviewed and

commented on drafts of this Article, including Lisa D. Foster, Dr. Rahim

Harji, Shi-Ling Hsu, John Stone, and Tara McCue. is work beneted

greatly from their comments and insights. However, their reviews do

not imply any agreement on the part of the reviewers or their respective

organizations; all opinions, errors, and omissions remain those of the authors.

is work was supported in part by funding from the National Oceanic

and Atmospheric Administration under grant NOA14OAR4170108.

As with the reviewers, the views expressed in the Article are those of the

authors and do not necessarily reect those of the National Oceanic and

Atmospheric Administration. is Article does not constitute legal advice.

Local governments should consult their attorneys for specic legal advice

before considering utilization of any of the material contained here.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.