Posted on August 29, 2013 by Gregory Sharp
My prior post about the impacts of Storms Irene and Sandy on Connecticut noted some of the policy challenges presented in the storms’ aftermath for state government in Connecticut and elsewhere in the Northeast. The tremendous destruction of property resulting from these events brought home to many coastal property owners a previously unappreciated but significant conflict between property owners’ rights and state coastal policy.
Many property owners seeking to protect their property from future storm events learned to their consternation that regulatory policies adopted in the Connecticut Coastal Management Act (“CCMA”) more than 30 years ago largely precluded those activities. During the past year, the legislature has taken some small steps to address this conflict and armor the shorefront where developed property is at risk of flooding.
Property rights advocates were successful in substantially modifying the CCMA’s strong policy bias against the use of structural solutions to prevent damage to property from coastal flooding. Prior to this session’s amendments, the CCMA provided that structural solutions were to be avoided in order to maintain the natural relationship between eroding and depositional coastal landforms.
The only exceptions previously allowed were for those structural solutions which were “necessary and unavoidable” for the protection of infrastructure facilities (undefined but generally construed to mean roads, bridges and other public infrastructure), cemetery or burial grounds, water-dependent uses, or inhabited structures constructed as of January 1, 1995.
These narrow exceptions provided no avenue for protection of commercial property, unless it met the “water-dependent use” definition. Moreover, the exceptions provided only very narrow relief for residential property, because residential use is not defined as a “water dependent use.” In addition, the Department of Energy and Environmental Protection generally interpreted the term “inhabited structure” as applying only to the house, not accessory buildings, landscaping, etc. As a result, homeowners were left with no ability to protect their property unless and until the house itself was in jeopardy, which in a storm scenario like Sandy came too late.
The General Assembly addressed these concerns in part by expanding the exceptions to include “commercial and residential structures and substantial appurtenances that are attached or integral thereto,” constructed as of January 1, 1995. Structures built after the cut-off date presently have no options other than to elevate the structure.
How the DEEP will interpret these new provisions remains to be seen, but if the past is any indication, I would expect that the agency will construe them narrowly.