 So this afternoon we're going to dig into some of the nitty gritty, some of the legal questions which I know a lot of you are really excited to get into. I want to remind you again that our last session is going to be the session that we're really going to look to you to get some questions, remaining questions and some issues that you'd like to see us look at moving forward. So please start to think about that as we're going through the afternoon because we will be asking you for that. So Brian Goldman is going to be taking over as our little emcee for the afternoon and will take us through the afternoon panels. So I have the honor of introducing Brian. He is a partner at Goldman Law Offices located in Providence. He's the Chief Legal Counsel to the Red Island CRMC. He's a graduate of Middlebury College and Boston University School of Law. He is also a retired Lieutenant Colonel in the United States Air Force and Rhode Island Air National Guard where he was a C-130 pilot and judge advocate. He's a veteran of both Desert Shield and Desert Storm. He is a long term member of the Rhode Island Bar Association's Energy and Environmental Law Committee. During his tenure at CRMC Legal Counsel, he's represented CRMC in the United States Supreme Court of Palo Zola versus the State of Rhode Island, which is a significant case in the law of takings and inverse condemnations. And I suspect a case that many of you, if not all of you, are familiar with. So please welcome Brian. Thank you and good afternoon. Since we did mention Palo Zola, I do have to note that my co-counsel from Palo Zola, Mike Rubin, is here. We did that case for 10 years. Took quite some time. Successfully I would add. This afternoon we're going to discuss some potential liabilities that governments may have for failure to respond to climate change. Some legal theories that are out there that municipalities and state agencies may have a result of failure to respond to climate change. And also some legal liabilities that governments and municipalities may have for using climate change reasons to deny permits as well. I think that's another aspect of this that we have to talk about. And, you know, why are we discussing this? And well, just before I get there, I just want to say this is meant to be as I think Dennis said earlier. This is just meant to start starting the discussion on this issue. It's not dispositive. It's not exhaustive. It's just to get us all thinking about this because this is coming and we're going to have to deal with it. And I have a couple of visual examples of why I think we need to start talking about this. Some pictures to start the afternoon with. This is Green Hill Beach Club in 2006. This is Green Hill Beach Club after Hurricane Sandy. That structure had to be removed and moved inland. And picking on Green Hill Beach some more. This is Green Hill Beach, a house on Green Hill Beach in 2003. And I want to take a note right over here you can see that there's a walkway. This is that same place in 2005 after A Storm, not a name storm, just A Storm. You can see the erosion there. This is that structure after Hurricane Sandy. It's coming. Next slide. Thank you to Sea Grant. And these are, I guess this is used called CanViz projections. And Grover Fugate who spoke earlier uses these in some presentations that he's done. But this is Water Place Park at Circa, Mean High Water right about now. This is Water Place Park, 3 feet of sea level rise, which is around 2050. As you can see it's underwater. These are for Joe Nicholson. This is Pirate Park in Newport Circa about now at Mean High Water. This is Pirate Park with 3 feet of sea level rise. And finally Joe, one more for you. I know you are enjoying me doing this. This is Ann Street Pier, Circa Mean High Water now. And Ann Street Pier, 3 feet of sea level rise. So I know we're litigating the pier. I know we haven't got the extension yet. So that's why we're talking about this. Because it's something that as planners and litigators, solicitors, government lawyers, we need to be thinking about what happens if we allow people to do these things. Are we going to be liable for letting them do that? And we also need to be thinking about what happens if we use these sea level rise and climate change to say no to not let people build what are we going to be facing as well. Our first speaker this afternoon is Jenny Klein. Jenny Klein is a litigating associate, litigation associate at Kramer 11 and Naphthalis. And Frankel, she graduated from Harvard Law School and earned a master's degree in public health from Harvard School of Public Health. Before joining Kramer 11, she served as a law clerk for the Honorable Dora Izere and for the Honorable Judge Cheryl Pollock, both of the U.S. District Court for the Eastern District of New York. Most recently, she was the associate director and legal fellow for the Saban Center for Climate Change Law, where she led a campaign to encourage consideration of climate impacts into various laws. Please welcome Jenny. We talked about this last morning that sea level rise doesn't show the whole picture, right? There's also storm surge, there's also erosion, there's also storms. And even without all that, Florida is having major issues, right? It's already having major issues. But despite that situation, Governors got old people in government don't talk about climate change, don't even use the words global warming. I spoke to someone who had worked for your PPP in Florida and she said she was threatened being fired after she complained about this policy. It made clear to her that this is what Governor Scott wanted. Not only could they not use the words climate change, they couldn't talk about the substance of climate change. They wanted to just use another word. Don't talk about it. Governor Scott is not the only person in the country to do things like that. Governor Scott Walker's content has also been accused of threatening people, basically bullying people in his state not to talk about climate change. And in North Carolina in 2012, the legislature passed a law banning use of sea level rise projections in developing coastal policies. And it was framed as a temporary ban that said, well, we'll do a study and in two or three years we'll let people use the data that we come up with. But it really raises questions. What was wrong with starting to think about it at that time? Why not use the information you have now and also continue to move the group on it? So this is an issue all over. So we really wanted to think about what role does mitigation play in trying to push people in the right direction? To what extent can state officials or city officials be held liable for really just turning a blind eye to climate change and pretending like it's not happening? So we identified three potential claims. As Brian mentioned, this is not exhaustive. There could be other claims. I'd love to hear from people how the other idea is. These were ones that came to mind as having a lot of potential. So first negligence. So lawyers have tried to bring negligence claims against cities for failing to prepare for climate change. The most salient example was started at a 2013 huge rainstorm in Chicago that caused a lot of problems in the area. Some suburbs had to be evacuated. There were sinkholes that were swallowing cars. People were told don't use your water because it's going to pay for flooding works. And so after this storm insurance companies sued Chicago from about a hundred of the surrounding cities in the county elsewhere for negligence. And the claim was that they did not do a good job of preventing the flooding, both by not maintaining their sewer systems well enough, not having sand bags, all sorts of things like that. These cases were withdrawn. They were not adjudicated on the merits. But we really wanted to think, you know, how might they have played out had they really been pursued? So the first big hurdle in bringing out negligence case against a city and or a state is sovereignty. So states have sovereign immunity just by virtue of their sovereignty. And that sovereignty, that immunity is codified by the one with amendment. So the default position is basically you can't see the state for anything, right? But many states consent to be sued. And Rhode Island has a state tort claims act. Rhode Island has a federal tort claims act. And the Rhode Island state tort claims act is actually written in a very broad language. I think you're going to hear more specific stuff about Rhode Island later, but I'm just going to touch upon some things related to the state. So it says Rhode Island and any political subdivision thereof, including all cities and towns, shall be liable in all actions of tort in the same manner as a private individual or corporation. So basically the state's saying you're just like anybody else for the purpose of the tort claim. No sovereign immunity. But there are lots of carve-outs and exceptions. So there's monetary limitations, there's a statute of limitations, I think it's three years. And one significant one is the public duty doctrine. So that basically says when the government is doing something that only governments do, then you still will have immunity. So as I said, many states have carve-out some exceptions to immunity. A really common one is the dangerous condition exception. So for example, Pennsylvania says that local entities are liable for the care, custody, or control of real property in possession of a local agency. Colorado similarly says sovereign immunity is waived for injuries resulting from a dangerous condition of any public property. And Michigan is a little more specific. It says government agencies are liable for injury resulting from dangerous conditions of a public building if the agency had knowledge of the defect and failed to remedy the condition or take reasonably necessary action to protect the public against the condition. So these are just examples that I want to show that the dangerous condition exception is really common and something that comes up a lot. In Rhode Island you have the egregious conduct exception to the public duty doctrine. So essentially that says that the immunity defense will not fly where the public defendant has failed to remedy apparel caused by its own conduct and of which it has knowledge. So this case from 1991, Meredith vs. Dante, a plaintiff had to walk off a sidewalk because there was a big tree in her way and she got to buy a car. And the court said that was a egregious conduct and the city could not claim immunity. All right, so just to recap that sovereign immunity is a real issue but there's enough carve-outs that people will be able to get past it if they frame their claim the right way. So going to the elements of the negligence claim. So remember you need to say you need to show that the defendant had a duty to act with reasonable care. You need to show that the defendant breached that duty. You need to show the plaintiff suffered harm and you need to show that the defendant's breach caused that harm. So let's take these one at a time and think about how climate change sort of changes the equation. So duty. So the dangerous condition waiver in the same statute where they were state's wave immunity, they also in some way were defining the scope of that liability. They're saying we have a duty to act in a certain way. And so that would be the first place to look. But also ask, when are courts going to expand that duty or maybe further define it based on policy concerns, right? I can't always find out exactly from the statute exactly what the scope of the duty is, right? But they're going to look to things like what was the foreseeability of this harm. What was the capacity of the government to prevent this harm versus the capacity of the individual to prevent the harm. And what are the consequences to the community of imposing this duty on the city? So I would argue that climate change becomes relevant to this equation by thinking about foreseeability. We know that there's storms, but there's not always a hurricane. That kind of thing is rare. But when you start to think about climate change, you start to think about how much more common are things like that going to be. Or smaller storms. Just a 100-year storm becomes a 50-year storm, I'd say. And I think that's something that courts may start to consider. So what about a duty? Okay, well, you know that it's harder to establish in a permanent duty to act to act rather than to do nothing. It's harder to establish that than it is to establish that you have to exercise care when you are acting, right? And that's because it takes more discretion, right? You get to decide when you're going to act when you're not. But when you do act, you don't get discretion about having to do that in a reasonable manner. But I think that this distinction between acting and not acting actually gets really blurry when you're talking about city infrastructure and things like that because you already have a sewer system, right? You already have these things in existence, and so to the extent that they are making flight worse or creating a more dangerous condition, then you start to have a duty to do something to prevent that or to warn about it, right? So it doesn't really fall on that doing something reasonably blind. And so here's an example from Florida, the city of St. Petersburg versus Kalem. So three people drowned in an open storm drainage ditch. It's a really dangerous condition, right? The city was not liable for their decision to build that drainage system or how they did it, but once they did it and they created that dangerous condition, they were liable. They did have a duty to correct it. So they needed to put a fence around it, put a sign up, or actually put a fence over that ditch that wasn't open anymore. So breach. We know the city does not have to protect people from every possible harm, right? Just because someone gets hurt doesn't mean so there's been a breach. And this is going to be really a line drawing question, right? It's going to be very fast to decide if the city or the state did enough. So here are some things that the court might consider. What information did you have? So this morning, we're hearing about this great, like, block by block address by address information. And this is a little bit of a double edged sword because you need this information, but now that the cities have it, is there going to be more responsibility to do something with that information? That's debatable. What resources did you have available? How expensive would it be really to prevent a certain amount of harm? You're not going to be expected to do something that's 100 times your city budget, right? So you might be expected to do something that's cost-effective. So we know about the hand formula from law school, right? This is a formulation to figure out whether the duty for a breach that Judge Jordan and Hannah wrote about. And it says, you have a breach if the likelihood of the harm times the magnitude of the harm is greater than the cost of preventing the harm. So in the climate change realm, an example might be to look at the chance of a 100-year storm in a given time period. You multiply that by how much damage would you expect to see in your city based on that, from that type of storm. And can you hear that to the cost of the infrastructure changes you might have to make to prevent that flooding from happening? So where does climate change come into play? Well, that first part, chance of 100-year storm, that's not the same in the future as it was in the past. The chance of a 100-year storm by definition is supposed to be 1% rain for a year, but maybe now it's 1.5%. Maybe it's 1.1%. Maybe that's the kind of thing I think that would change the storm y'all a little bit. So that's Nashville. I think that's a really appropriate photo for a flooding in Nashville. In 2010, they had 1,000 years of flooding in Nashville. Again, really damaging $2 million in damage. I think that was just a private property, that there was another $100 million to public property, something like that. And 10 people died. So I want to show actually kind of a long hand formula and something to be careful about. So in 2015, the Metro Council had a proposal for a $100 million flood protection plan. So if you just plug this in, this is not right, so I don't like to write this down. But you have a one-in-a-thousand-year flood times $2 billion in damages and you get $2 million. The proposal was for $100 million. So you might look at that and say, well, no, $100 million was too much to spend. But I would say that that's wrong, because first of all, a one-in-a-thousand-year flood is not a one-in-a-thousand-year flood. And I'm not ready to see how to look at that. It's now a one-in-a-thousand-year flood. Second of all, a one-in-a-thousand-year flood is only has a one-in-a-thousand-year chance in one particular year. But you're not building this infrastructure for one year. You're building it hopefully for 30 or 50 or more years. So Grover mentioned the cumulative risk of things earlier, right? You really need to look at a cumulative risk. It's not risk of just one year. And then the $2 billion in damages, that might be the risk. But first of all, you might have more because there's increased development in the future. Just based on development. But also, if you, if National had implemented a $100 billion flood protection plan, it's not only going to protect against 1,000-year floods, it's going to protect against 100-year floods, it's 500-year flood. So maybe you want to add up all the damage that you are likely to see for lower level floods as well. So it's not, I'm kind of talking about this point, it's really not obvious what numbers to put in, but it might be a good starting point to try to get to the order of the magnitude of the money that I'm using. All right, so I'm moving to harm. Actually, I think this is not different in this context than anywhere else. You have your houses flooded or someone's injured, that would be your harm. But it's just worthwhile to point out that some states, including Rhode Island, I believe, have some statutory to all their locations for what they just can recover. Cosmation, I also think is not really different in this context than in other negligence claims. The question would probably be, does the government's failure to take reasonable measures to protect people from the natural disaster or the flood at issue caused the damage? The plaintiff, I think, needs to be able to point to something and say, if you had done effects, I would not have had this tragedy damage. How is climate change relevant? I would say it's not, because you don't need to point to the rainstorm and say, this wouldn't have happened to that climate change. Climate change really comes into play in determining how foreseeable was that rainstorm. So earlier, the stuff we talked about earlier, and also determining whether the city is committed to breach. But I don't think it comes into play in the conversation. All right, so that was an evidence. So just to sum up, sovereign immunity is an issue, but it's not insurmountable. And the analysis of the prawns is really similar to traditional and evidence analysis. It's really kind of back to the time of the situation, actually. It doesn't require any really weird model theories describing the problem. So prawns. So this is more like a situation we talked about in the beginning where you have a state official saying, I don't want to hear about it or this is not a problem. Actually making these types of statements or omissions, that kind of prevents people from having the information they need to act upon and decrease their risk. So in 2010, Cyclone, Cynthia, caused many fatalities and over a billion dollars with damages in a small coastal town in France. Those are people in Scuba gear, Scuba gear actually trying to recover property and help out after the fact. So it was a really intense storm. Local officials were actually were actively encouraging development in this high risk area. It was called the deadly bull in French. So that just gives you an idea of how dangerous it was there. They failed to do anything about it. They failed to warn people about it. They failed to have any policies that would discourage development there. In fact, it was the opposite, as I said. They were actively encouraging development. The court sentenced the mayor to four years in jail for this. I don't know if this would happen in the United States, but this was a religious situation. The court found that the mayor totally knew about this risk and he deliberately concealed it. And people died. I think it was like 50 people who was a really severe issue. So let's think about it in the United States. Sovereign immunity. So this is a bigger issue in the crime context than it is in the negligence context because most states do not wait immunity for crime things. So just one example. In California, a public entity is not liable for an injury caused by misrepresentation by employee of the public entity whether or not such misrepresentation be negligent or intentional. That's pretty common. There's explicit retention of immunity for those situations. Even where immunity is partially waived or there's not an explicit retention of immunity, there are often really major hurdles. So in Minnesota, you can only bring a negligent misrepresentation claim against an official. The official is the exclusive source of that information because I guess the logic is if you could have gotten it somewhere else, you can't really tie your lack of knowledge about that information to the misstatement by the official. So it's really hard to get sides of the past side of the community and I never found a case in my research that successfully sued a local government for fraud. So this is a really huge problem. But let's say you said just as a thought exercise, think about the elements of fraud. So first of all, you need as a point to show that the defendant made a false representation. You need to show that that represents these are actually the problems as they are in Rhode Island. It's a little bit different in other places too. You need to show that the representation was made for the intent to cause reliance on the prior plaintiff. You need to show that the plaintiff's reliance was reasonable and that he actually did rely on that information. I need to show the consequences caused by the reasonable reliance. So fraud, it really doesn't fit the situation that well. There's a lot of really big challenges. So number one, who is making this misrepresentation? You're not going to find Scott Walker or Rick Scott on the record saying kind of changes are not an issue that everybody builds in Miami. They're not that stupid. But they are pressuring people in their governments to say or not say things. That is really hard to prove, right? You don't necessarily have a paper trail there. There are some states that allow you to establish fraud and kind of make agent and master theory. So if the governor explicitly told someone who worked for him to go out and say, yes, you could potentially get the governor by that. But again, I think this is a really big challenge. Even bigger challenge might be proving that the misrepresentation was made knowingly. Because we're talking about things that are going to happen in the future. We have great scientific data on this, but it's still predictions in the future. So how do you prove that someone knew or really subjectively believed in these projections? They're going to say, no, I saw contradictory predictions. There wasn't something specific to my region. They're going to say all sorts of things. So a question might become, was there enough uncertainty in the projections and the range and stuff like that to give these people some plausible cover? So assuming you can't prove they actually knew it subjectively due to what they were saying was false, could you try to get them on willful blindness? So willful blindness, this doctrine says that a defendant cannot escape liability by deliberately shielding yourself from clear evidence of critical facts that are strongly suggested by circumstances. So that's from a 2011 something we've worked with. To show deliberate, I'm sorry, to show willful blindness, the plaintiff needs to show that the defendant, number one, subjectively believed there was a high probability that the fact was missing. So that's kind of weird. You don't have to show that they subjectively believed in the facts. You have to show they subjectively believed there's a high probability of the fact. So I don't know how that plays out. Maybe that's like people who look at a study that has a 95% certainty. And they're like, well, there's the 5%. And that's what I believe. I don't know. But the second part, the requirement that they state deliberate action to avoid learning of that fact, I think Rick Scott is saying, don't talk about online change. That seems like a perfect example of that. That is, you know, here no we will see, no we will speak, no we will. I don't want to know, even if it's happening. With respect to the rest of the elements, intent, I mean, there's political motivations. There could be, right? In France, this mayor was trying to get residential development probably for economic reasons. In North Carolina, the sponsor, the bill that I mentioned was a 12 per biggest campaign contributors or development interests. Is that enough to prove intent? I don't know. But it could be, depending on what kind of smoking gun email it was buying. Reliance. I think that's plausible. I definitely would be able to say it was reasonable to write a reliant on government because governments have a lot of information that individuals don't, especially with respect to the sort of infrastructure. And damages. And that's nothing out of the ordinary. And that's just showing my house was flooded. All right. So to recap, sovereign immunity is a really big issue with fraud. And then the elements are kind of weird in this context. I think that's a challenge to prove, especially through the intent and knowledge that in this representation was actually involved. So moving on to takings, you're going to hear more about takings later, but I'm going to touch upon kind of the novel use of the takings doctrine in this context that's sort of emerging. Sovereign immunity is really not a problem mostly. It's not a community for takings claims in their own courts. That's one really big strength of this type of claim for plaintiffs. The federal takings clause says the private property shall not be taken for private, sorry, the private property shall not be taken for full abuse without just compensation. Rhode Island has a almost exactly identical takings clause as do many other states. Even without this, the 14th Amendment makes the federal takings clause effective on the states. Substates are even more protective. So in Arizona, property can't be taken for damage without just compensation. And that comes up in a few states as well. So here's an example that was in federal court in the aftermath of Hurricane Katrina. So the Army Corps of Incarnia starting in the 1950s built a canal from New Orleans out to the Gulf called Mr. Go, Mississippi River, Gulf Island. And it was intended to build a shorter shipping route between those two places. So it was designed that Charter of Rights shows how it was designed in the Marais box. It was designed to be about 500 meters wide. But over the years, erosion caused it to be about 1500 meters wide. So it got much, much bigger. As a result of that, obviously, there's way more volume of water in that canal. Also, there's more surface area of water for the wind to act on. So that fetch created bigger waves. So this canal was really actually making flooding a lot worse than it would have been had the Army Corps never built a canal in the first place. Hundreds of people brought lawsuits against the federal government after Hurricane Katrina for this design flaw. And many of them brought a tort claim but that failed because the federal government was down to the immune under an exception to federal government and federal court claims that. But other people brought a very similar claim under the taking clause. And those people have so far been successful at the trial level. So we'll talk about that case in a little more depth. So this case is called St. Bernard Parish Government versus the United States. I think it was in the federal court of claims. And in this case, it was in the federal court of claims. It was in the federal court of claims. And in this case, it was in the federal court of claims. And in this case, Judge Susan Brayden found that the Army Corps of Engineers of Negligent Design and Maintenance of Mr. Go made the flooding in Hurricane Katrina worse. So that's essentially saying that they were negligent, right? But she concluded that from this negligence, the federal government had taken these people's property. So this is a weird use of the taking clause. Normally with takings you have in the domain, you have, you know, things that are really clear where the government is taking their property. The government didn't pause Hurricane Katrina, right? This is a very indirect roundabout way to take someone's property. And so you could argue that this case is a really broad expansion of liability potentially to situations where government in action is the cause of the destruction. Of course, you still have this link to the government controlled and designed infrastructure, which is the theme now. I would say, you know, probably you definitely could argue that it broadens liability, but there's still going to be this fact-specific analysis. So just to go through it really quickly, you still need to show a protectable property interest. So once again, it's just showing you own your property that was damaged. Number two, I think this one's kind of interesting. The plaintiffs need to show reasonable investment back expectations. So Judge Brayden in this case said, these people had had flooding before, but they had never had flooding like would happen in her community. And therefore, they should not be expected to have expected that. That, I think, is a little weird because that's like kind of saying the government should have expected it, but the people shouldn't have. And maybe that's, you know, based on what information they had available, but that could differ from place to place. Certainly, for seeability. So the judge found Mr. Goh made it foreseeable that the flooding in New Orleans would be worse. Same thing with causation. He found that the army force, the action, and negligence essentially caused the erosion and the erosion caused flooding. Substantiality, so that comes into play because this is a temporary takings case. So the judge found that these people had lost access to their property for a long enough period of time that it could constitute a taking. So, you need a sufficiently severe economic impact, right? There's some amount of damage that's too little to constitute. So that's pretty much it. I'm just going to recap that when it comes to sovereign immunity, it's a big issue with problems, effects, or with negligence and takings. I think that's something that plaintiffs will be able to get past. There's been precedent in the takings arena. There's the St. Bernard Irish case. There's also a case out in Florida which I cited in the paper if anybody has any citation I can do about them. And no need for novel legal theories. So negligence is kind of your standard negligence case. But with fraud and takings, there are new ways of using that doctrine that would be required for a plaintiff to win this case. So that's all I have. Thank you guys very much and I will be around for the process. Be with you in one second. Okay, thank you. I don't have to introduce myself again because I've already been introduced. I'm going to take a little bit different angle on the, I'm going to talk about liability, potential liability of municipalities and governmental agencies if based on adopting regulations that include climate change and sea level rise, you then tell people no, you cannot develop. And the theories are somewhat the same as what Jenny was talking about. But I think that having been in the trenches a long time, at least in the short term, I really think this is where the action will be at is, for instance, it's CRMC a question came up earlier. We've got regulations that talk about climate change. We have findings and we have policies. We don't have standards and prohibitions yet, but at some point we're going to do that as Grover answered in the question. And sooner or later I think someone will challenge that. And the reason I say that is I'll give you an anecdote that maybe we'll set that out. And it has to do with I was at a meeting with our permitting staff with some property owners from not too far from here who had, all had multi-million dollar houses and we were having a discussion about basically clearing up their assets, the assets that were recorded in the land evidence records as to which buffer zones applied on which properties, onto which easements and restrictions and restrictive coverings were on each set of properties because the way they were recorded it was recorded generally but it wasn't recorded individually with each lot and as we were having this discussion that they were being cooperative but I said to the head of the property owners association there are probably 10 of them and every one of these houses was well over million dollars and I said to the head of the association I said well I would think you would want this to get straightened out because you can't get insurance and you can get mortgages for these properties and he looked at me and Grover alluded to this earlier he said we don't have mortgages on our property so my point there is you have these property owners who don't care you know who don't need to get insurance and who don't need to get mortgages and what they want is they want their water those are the people that when you tell them that no you can't build on that coastal feature because of sea level rise and climate change they're going to contest your decision and they're going to take you to court and they're going to say no I want to build on my property and I think that the two theories that I'm going to talk about today briefly I'm going to talk about just the administrative procedures act stuff but then I'm going to delve into the takings of the criteria court under the administrative procedures act and that review statute which is 42 35 15 says the court shall not substitute its judgment of the administrative administrative agency on questions of fact however there are six criteria which the court can overturn reverse or modify the decision of that agency the ones I want to focus on here is number five and number six which is clearly or arbitrary and capricious in order to withstand review under that standard you've got to have your decision based upon substantial evidence in the record and I think that you're going to get some of these property owners that are going to challenge your regulation saying they're not based on appropriate evidence we haven't heard any of the climate change deniers here today but there are going to be those that substantial evidence is defined as evidence that a reasonable mind might accept as adequate to support a conclusion and means an amount more than the sentilla but excuse me less than more than the sentilla but less than a preponderance that is the legal standard and the reason that I say this and to lawyers actually it makes a lot of sense but to non lawyers it probably doesn't I mean sentilla has a meaning preponderance clear and convincing has a meaning that's things that lawyers like I'd raise these for two points and I don't want to spend a lot of time on the APA but the first is if you're going to adopt and you're being encouraged here to adopt and think about regulations and ordinances that take into effect climate change and take an effect sea level rise and that are going to take some properties out of play for building you need to document the science you're relying on so that it will meet the standard of substantial evidence because what will happen and we see it at CRMC on our existing regulations is people that have these properties and that have the means to hire experts and you can find experts to come in and contest anything for the right price I would think and they're going to come in and contest the science and if you have these regulations and what the science is behind it I think you risk losing now you're not going to have to pay but you're going to have to grant the permit so that's reason number one reason number two for this is when you get into those hearings you need to build a record you need to put if they bring an expert you need to bring in your experts or your staff and to contest those arguments and to build a record so that when because it's limited to the record that there is enough there to support your decision and in this case I'm assuming it's a decision for denial but you need to build that record I think it's really really important because this is what's going to happen in the trenches and I think it's really relevant to municipalities because you know at CRMC and in DEM we're bigger agencies we've got bigger budgets we've got bigger staffs I think that and I see it all don't want to fight they don't want to put the resources up there they don't want to litigate the case all the way to the Supreme Court and that's how it's sort of a war of attrition how you can lose but I think if you if you take the the stuff you get from you know from Sea Grant from URI from us from all these other people and from NOAA and all these other agencies and you can somehow incorporate that next I want to talk about takings and obviously if you deny a permit and someone's not going to be able to build on their property they have to bring a separate action not within the administrative appeal but in separate action for a takings now the takings clause as Jenny mentioned has its origins in the Fifth Amendment to the United States Constitution which is no shall private property be taken for public use without just compensation that is the as you heard it's applicable to the states for the 14th Amendment and in Rhode Island article 1 section 16 of our state constitution codifies that takings claim so you can bring the federal clause is self-executing so if your state doesn't have a takings clause provision you nevertheless can bring it under the United States Constitution and then you get into a fight whether you're in state court or federal court and whether federal courts will take it the nuance is about takings cases there's a lot of procedural hurdles to get you to trial on the merits and a lot of these cases get bumped out on procedural reasons I'm not going to get into those today but the vast majority of takings cases never get a decision on the merits it's ripeness exhaustion of administrative remedies wrong court right court so there's a lot of that that goes on in takings cases so what kind of type is the direct condemnation which is the imminent domain case where the department transportation says we're building a road we're taking your property files a deed and says this is what we think fair market value is you can contest that and all you can test in that case is a fair market value the second type of case is what's called the inverse condemnation cases and this is what comes out of the case law the first type of inverse condemnation is a physical takings and what that is essentially is when the government decides to build a dam and as a result of building the dam a big lake forms your property is flooded you can't use that property anymore you can bring a takings claim for that physical appropriation then you have what's called regulatory takings and regulatory takings have their origin in an often quoted case and maxim from justice Oliver Wendell Holmes who said the general rule at least is that our property may be regulated or it will be recognized as a takings a very very clear bright line standard to judge takings cases on but this is what started it all and this is back in 1922 and almost every takings case from the US Supreme Court it starts with this proposition now within so body of law has developed about regulatory takings and there's two types of regulatory takings the first is categorical takings this came out of the Lucas versus South Carolina case in 1992 and basically a regulation that declares off limits all economically productive or beneficial uses of land that goes beyond what the background background principles of nuisance law would dictate requires just compensation and Lucas basically just a brief what happened was he bought a piece of property in South Carolina waterfront when he bought it it was buildable he could build two big lots I think each was him buying the property the South Carolina legislature adopted a statutory a statute which basically set forth a erosion line that you had to acted as a buffer and a setback and that included all of his property so by act of the legislature his property went from being valued at a million dollars to basically zero because he was prohibited from building anything on that property that case to the U.S. Supreme Court 1992 and the court said that yes that is a total takings categorical takings and basically it was rendered valueless and therefore the government must compensate it's not illegal for the government to take property what's illegal is for the government not to pay you for the taking of your property so in Lucas case it got remanded back to South Carolina and it was pay him or let him build a whole remand process next are the more complicated cases and these are regulations with an overly severe impact and the the general test for this comes out of Penn Central Transportation company versus New York City and it basically says when the regulations places limits that fall short of eliminating all economically viable use then the court gets into balancing an ad hoc balancing of these complex factors of which are number one is economic effect on the land owner two and I think the big one that we're going to have to deal with and then Jenny talked about is the extent to which the regulation interferes with reasonable investment back expectations and three the character of the government action these cases are this is where you get into the nuance is there really the court says it's an ad hoc factual and you have to look at each of the factors and for example you know the regulations economic effect on the land owner well and Lucas the court said he was deprived 100% of the value of his land but they all but in that decision the court fought over well okay is 90% all economically viable denial of all the economic views of the land is it 80% and they said we don't have to answer that question today clearly in Lucas it was 100% what the court said is you can't if so you have to go to this fact finding and so you look at the effect on the land owner okay what's the value did you lose 90% 80% 70% 60% obviously the lesser the percent the lesser the lesser of a chance you have to succeed on the economic effect the second prong which is the extent to which regulation interferes with distinct investment back expectations that's really the big thing because you look at what were your expectations that's when you're looking at what the science was did you expect to be able to have something here for 20 years and you know in the palace Olo case we were able to use this prong very successfully because we basically showed that the project that this guy wanted to do would cost $100,000 more to do than he could make even make a profit and so we were successful at this prop project it requires experts and a very lengthy trial the third part the character of the government action this kind of gets into the public good versus the public harm argument and that I don't want to oversimplify I put that when you do things for the public good that's probably a takings when you do things to present a public harm like a nuisance that activity would never be prohibited would always have been prohibited then you couldn't have had an investment expectation to do it but also you'd be causing a public harm and therefore that overcomes the takings so as I say these are very fact intensive cases this is a very simplistic overview of takings but these are the things that you have to deal with when you get into a very fertile area for litigation down the road that people need to be aware of and when that happens you can call Mike Rubin and myself because we'll be the ones doing these so that's takings in a nutshell it's complex it's but it's I just think you need to be aware that it can be used against you Jenny saying it could be I think it could be used to say you should not from a guy in the trenches in this in 2015 I think the more likely scenario is it's going to be used to say you should let me build so that's takings next we're going to move on to the panel we're going to have John Ryan Henry I'm going to read his resume John Ryan Henry is a third year law student and candidate for the Roger Williams University and URI joint JD master's degree in marine affairs focusing on research he supports the development of the beach through analysis of state and municipal legal authority and liability for climate change adaption he earned his B.S. with honors and geological sciences from Brown University in 2013 and John welcome it was nice to have a law student come up and present to us do you know how to get my name is John Ryan Henry following up on what we've been hearing this afternoon I'm going to share some of the results of my research as a Sea Grant legal researcher I'm working for the beach stamp to apply a lot of the legal concepts we're hearing about today to the particular case of Rhode Island cities and towns using Rhode Island common law and statutes and in particular I'm looking at how does the existence of improving knowledge about climate change sea level rise and storm hazards that the state is giving out in the form of info products published through storm tools how does that change the landscape of legal liability that towns might be exposed to and what are the steps that towns can take to proactively limit exposure to that liability today I'm going to focus in particular on a concept we're calling wrongful permitting you just heard about the liability exposure when you say no you cannot develop I'm looking at the liability exposure when you say yes you can develop when a project applies for building permit or zoning variance or some sort of permitting and is given approval and goes ahead with the product and subsequently suffers damage because of a storm event and whether or not a property owner can come back to the town and say say my property was exposed to some known level of storm hazards and you shouldn't have let me build there so I looked at the potential of this liability as a potential tort claim a claim in negligence where that would take the typical form where the plaintiff has to prove duty negligence in fulfilling that duty legal cause and damages the duty question would as we've as we heard earlier from Miss Klein would really turn on the question of how the public duty doctrine applies to permitting in these cases and to establish duty a plaintiff would have to prove they come in under one of two exceptions either the special duty exception or the egregious conduct exception and I think Miss Klein really identified that egregious conduct is the key exception that plaintiffs might seek to come in underneath the public duty doctrine is a strong defense against these sorts of claims for a plaintiff that can overcome the and I'll go into it into more detail for plaintiffs that can establish a duty the question of negligence for issuing a permit for a project in an area of some known level of storm hazard would be a very fact specific inquiry straightforward question of what is the standard of care in construction in this kind of project with these sorts of features on this land would be very fact specific I'm going to talk a little bit about legal cause and just to talk about how the foreseeability of a particular storm event causing particular damage is regarded when you're looking at government action that took place before the storm ever happened how foreseeable actually was that storm and then damages would be a straightforward question about property damages it's important to note there that under the state term claims act damages for a claim for a permit would enjoy that $100,000 damages cap so the research started of course the state terms claims act the state tort claims act which waives sovereign immunity for tort claims but caps damages for non proprietary strictly governmental functions like permitting at $100,000 it's important to note that even with that $100,000 cap a plaintiff that wants to bring a negligent claim for a government action has to get past the public duty doctrine which is a strong defense for non proprietary functions and they have to do that by arguing that they come under either the special duty exception which really turns on the relationship between that permit applicant to the town at the time of the permit application or their case comes under the egregious conduct exception which really turns on the precise knowledge that the town had at the time of the permit about the conditions on that property it's important to note that the public duty doctrine is a very strong defense against claims like this quality court condominium association is the seminal case in Rhode Island for how public duty doctrine applies to building permits and the language there states that a municipality should not be the general insurer of every construction project within its limits so what we're not contemplating is a flood of litigation coming from any damaged structure instead looking at plaintiffs that can argue under these particular exceptions so looking at the first exception the special duty exception requires that the plaintiff argue that they specifically came into the knowledge of the town so that that particular injury to that particular and identified plaintiff should have been foreseen and known to the town how does that apply in a case of wrongful permitting the question would be did the permitting process involve continued contact with the permit applicant during the application process above and beyond what's typical for that kind of permit in quality court condominiums the supreme court identified an instance where a building inspector had conduct had contact with an applicant that was sufficient to establish a special duty in that case that was a case in Pawtucket where the building inspector went to a condominium identified specific violations that the residents complained about looked at the violations set forth a plan on how the condominium could fix those made repeat visits to see if those corrections were made and then eventually issued a permit even though the violations never got recovered so that was a really fairly extreme case of a building inspector being closely involved with a particular identified plaintiff with particular problems and nevertheless issuing a permit anyway cases that have come through the court where the relationship is something short of that where the town can make an argument that this was one of the permits that we issue all the time have yet to reach this level of a relationship so what does a defense to the special duty exception look like really turns on arguing the facts of the actual relationship between the state official the town official that handled the permit and the permit applicant some permitting processes will require a lot of interaction more complicated projects have more complicated permitting processes but as long as the town can argue this was normal and reasonable for this permit we weren't ignoring an obvious glaring problem then you have a strong defense against this the second and probably more powerful exception that a plaintiff can argue is the egregious conduct exception where the town has knowledge of a perilous circumstance that the town created that put an individual in danger and then didn't correct it and the three elements to establishing the egregious conduct exception and forming a duty is that the town created a situation of extreme peril that the town had actual or constructive knowledge of the peril and that the town had a reasonable amount of time to correct that but didn't what does that look like in a wrongful permitting case in building permit cases to date the egregious conduct analysis has really turned on that second element of the actual or constructive knowledge that the town had about that property in the case Haworth versus Lanon which was in Warren building was this this wasn't an area where the conditions changed these were a pair of houses that were built on a lot that was exposed to rising water table and runoff from the roads during normal storm events and the developer there actually gave the building inspectors plans that were adequate and would have handled that water but the buildings were subsequently built below specs not according to those plans and they had basement flooding and in that case the court made some the court eventually concluded that the plaintiff had not established the egregious conduct exception the plaintiff didn't make it to establish a duty but the court included language in denying the egregious conduct saying that nothing in the record indicated that the town was aware that the houses were subject to flooding when it issued the certificate or that the flooding posed a position of extreme peril this seems to imply that there is some threshold of knowledge that a town could reach knowing about the flood risk that a plot of land is exposed to that would constitute an extreme peril that they need to deal with in their permit case hasn't come before the courts yet where the court has found that egregious conduct has been met but they have language that implies there's a threshold that could be crossed what does a defense to the egregious conduct argument look like first it's a matter of showing that showing how the permit matched what the town knew about the risk at a time a permit that addresses flood risks that addresses what sort of zone what sort of risk zone the property is in is easier to defend than a permit that doesn't mention relevant risks at all a permit that conforms to a hazard mitigation plan or to a plan that deals with storm risks in the town makes reference to an existing plan and conforms to it is defensible on those grounds and also showing that the plaintiff had an understanding of the hazard either because before the permitting process the town engaged in public education or contacted that plaintiff individually or during the permitting process it came up in the process and the hazard was discussed the more you can show either the more you can show that either that it was dealt with with the information that was available at the time the more defense there is also on an academic note that we noticed when we were examining this the cases that have looked at this so far really turned on that second element but there's also a question about the first element where the town has to have created the situation of extreme peril and a plaintiff here has to argue that the issuance of the permit rather than building on that land was the action that created that hazard and it's possible that there is an argument to be made that it's not the town that created that hazard actually when the hazard is attenuated it's a storm event it's not you allowed construction with shoddy materials or something but an attenuated risk so there's an academic question there but so far it's turned on constructive knowledge I talked about proving negligence it's very fact specific but there's one note I wanted to make about legal cause which is the foreseeability of an individual storm event that caused damage after the town's action permit and the fact I just want to mention we already heard about the farmers insurance case in Chicago it used to be a world in the common law where acts of God were considered unforeseeable and the fact that they are random was a good defense against foreseeability that has become less and less the case in the common law today and foreseeability of a storm event really increases the more we know about the frequency and severity of storms in a particular area just as an example of this principle I'm pointing to a Wyoming case from 1988 Pickle versus Board of County commissioners of County of Platte that was a case where planning board reviewing a subdivision for septic systems approved a septic system that subsequently flooded during normal nuisance flooding and that was a case that was analyzed under sovereign immunity and analysis that wouldn't apply in Rhode Island but the court articulated their principle that the reasonable care that a municipality has to act in in a negligence claim extends to gathering information during the permitting process and that information gathering extends to analyzing the flood risk on a particular area so to summarize what we've looked at the main defense that a town has to a wrongful permitting case is the public duty doctrine where a plaintiff has to argue it comes in under either the special duty or egregious conduct exception the negligence is a fact-specific examination legal cause the more we know about storm risk the more any individual storm becomes foreseeable and the damages there damages should be kept under the state tort claims act now what can towns do before they hold into court to proactively minimize their exposure to this liability any action that improves the way your town deals with the risks to the particular properties inside it reduces your liability exposure the more you use the information that's available the better that includes making sure your permit and your variance granting systems rigorously uses the best scientific information that's available to it permits that explicitly discuss flood risks that specifically identify the science they're relying on or the planning document that they're relying on are more defensible something and if you look at the disclaimer language you include in your permits if it specifically mentions storm damage a plaintiff is going to have a much harder time indicating you let me build when I didn't realize I was exposed policy decisions in the town ensuring that comprehensive plans address climate change adding an explicit step in your permitting review process a check box on that application form have we looked at the flood exposure and then also we've heard before Ms. Kreen talked about incentives you can give to make your housing stock less exposed to these damages things like defining the zoning height limit from base flood so that you aren't you don't have to seek a variance to get free board public education teaching the public about storm tools and about other sources of information and also potentially specific notice to property owners if you are looking at the information you're identifying enclaves in your towns that are exposed to risks reaching out to those homeowner those property owners proactively can also avoid this thank you very much thank you john as well done we're going to have one more speaker here and then we're going to come up and do a panel so you can have all your pent up questions answered next is Andrew tights Andy is a partner in the law firm of a silo tights and rich he's been recognized by his peers as one of the best lawyers in America and land use and zoning law by Woodward white Mr. tights he's been named as JD from Columbia law school in New York where he was a Harlan fist stone scholar he's a certified he's certified as a professional planner by the American Institute of certified planners and is a and as a certified low impact development master designer by the RIC RMC I didn't know we did that grow mental and drafting new state enabling legislation on zoning and land development is drafted dozens of municipal land use ordinances he's also appointed as a special master but has been appointed a special master by the Round Supreme Superior Court his firm currently represents four towns in Rhode Island as solicitors Bristol Barrington West Greenwich and South Kingston he also represents a wide range of private clients he practices for town councils zoning and planning boards historic commissions coastal zone agencies and the like throughout southern New England he litigates cases in all Rhode Island Massachusetts and federal courts and is also admitted to practice before the Supreme Court of the United States Andy thank you Brian yes in connection with the Metro Bay Sam plan you require people who are applications in that area the upper bay metropolitan area to have that certification when that was first put in and I decided it would be helpful for business if I got that certification myself so that's a sub too much here my topic my ending of this is kind of how I often feel being a solicitor representing municipalities that we're stuck in the middle with you we've got everybody on both sides and in fact really my title of my section is damned if you do damned if you don't do we have our choice do we get sued now for takings if we deny these permits that people are asking for and rezone their property as coastal hazard zones that don't allow development or do we get sued later for takings if we don't act after these properties are destroyed and I would add there is an element that I'm going to come back to which I think affects it which we've been talking a lot about properties but I think there is a public health safety issue as far as the people mentioning you know floods with 10 people dying with the river flood the hundreds of people who died in 1938 dozens in 1954 and maybe that's maybe that's a way around it that changes it instead of it's not just a property equation it's interesting in red island the state is doing a lot the red island general laws provide a lot of the protection and the immunities and I'm going to talk about the comprehensive planning process and then CRMC has done so much here with providing these tools but although CRMC has some permitting authority particularly within 200 feet of the coastal feature the vast majority I think of the responsibility is going to fall on the municipalities both as where we have concurrent jurisdiction within that 200 foot area and all the properties that happen to be 500 feet back from the coastal feature now but of course the coastal feature is going to be 500 feet inland in 50 years from now so I think it's good we should be looking at it it's coming it's coming this way I may not be around to deal with it but if we if we start now it's the old thing about moving the asteroid if you start far away it's a lot easier to start moving it just give it a little shove a long distance away and also too the cost of it if we start now controlling the rebuilding and further managing the development along the coast it will cost less than it will in 50 years I look at this as from what I've heard today a lot of things both good news and bad news so let me give you the good news as I see it first your municipal official I think first of all we're not going to get sued in Rhode Island for not planning for it if nothing else we're going to introduce all the materials from today and talk about it the very fact that we're here is part of it and for all the solicitors for the towns that you're here we're all protected the ones that didn't show up the heck with them but we're protected to start with in fact it's even codified um Rhode Island general law 45 22.2-6B10 which is the required elements from a comprehensive plan and I just want to read this verbatim one of the required elements is natural hazards the plan must include an identification of areas that could be excuse me the plan must include an identification of areas that could be vulnerable the effects of sea level rise flooding storm damage drought or other natural hazards goals, policies and implementation tech sneaks must be identified that would help to avoid or minimize the effects that natural hazards pose to lives, infrastructure and property so I don't know how more opposite we can get from Florida than that we've got it codified in our statutes requiring all 39 of our cities and towns to have an element in their comp plan that deals with sea level rise and to my knowledge at least most of the towns have been dealing with it those are elements that as they have been going before the division of planning and comp plans have been updated on their 5 and 10 year updates that's one of the things they're looking for so the towns are doing it that everybody is updating their those elements of their comp plan so I think those will be very strong defenses going forward the fact that we have at least been planning for it because if we plan for it and we're wrong it's still a little tragic but it's not a liability if we don't plan for it that's where the liability comes from the other thing is I think we are actually fully taking certain positive steps to do it through things such as the grant program through which is allowing people to get grants to raise up their properties create more sustainable properties I know Barrington I was just hearing last night there's about $650,000 that's being used to help protect several properties and reduce future damage and in the end it looks like a lot of money we're spending now but in the end again it will say as long as we are going to continue insuring these as a government program then it's better to spend the money now so we save it a long time in insurance maybe the answer is we should stop insuring them completely but that's a separate political question that doesn't seem to be on the table at the moment so if we are insuring them what can we do to at least insure them as cheaply as possible for the public when there is that future damage what can we do now kind of like some of the the marine insurance company that provide boat insurance policies since this is Rhode Island in the ocean state there's probably a lot of us out there who have boats and a lot of these companies now if there's a hurricane warning they'll pay to haul your boat first they won't wait for the damage they know it's cheaper to pay for the hauling of a lot of boats and risk that they are wasting the money then if the hurricane hits then they have the actual damage later that's the sort of thing that I think that we as a state and communities are doing now and again will help minimize the liability the variability to point to what we're doing in that aspect should minimize other cases then one idea that I've had just from over the last 24 hours and reinforced by today occurs to me that we could be doing and I'm going to suggest to my communities is that we start requiring people to sign an explicit written waiver as they're coming forward with these permits to build, rebuild and so forth in the coastal areas telling, you know, I acknowledge this potential liability and I'm going to indemnify the town for any damage to the town's infrastructure and then we're going to record it in the land evidence records now maybe it's not going to be that hard and harsh when it gets through the town council but that's certainly what I'd like to see something some sort of least a written acknowledgement that I've been advised of these risks and I'm going forward with it we do it in some circumstances already Bristol is a good thing when people get permission, get a waiver so they don't have to hook up to public water and they have a well we make them sign one of these waiver letters that said, yeah, I know I'm getting a well and you know, my well goes dry 20 years so now I promise not to come to the town to help me out so those are the good things bad news unfortunately there's a lot more on the page on the bad news side than the good news we have a very strong concept in our zoning law in general and I think in Rhode Island in particular on what we've inaccurately called grandfathered rights of nonconforming properties to continue and we've got 350 years of coastal development already there so how are we going to deal with prohibiting people from rebuilding where they've already been there for so long how are we going to prevent people from new buildings on legal lots of properties, pre-existing legal nonconforming lots of record which under our current jurisprudence it's difficult if we say no we're really are opening ourselves up to takings claim and I think we have some defenses to that which I'll talk to in a bit tracking the discussions that we've already heard today one interesting thing so far is it's not going to help us today but if we're dealing with an issue 50 years from now I like the idea, I don't remember who said it but let's put terms on these permits let's not grant a sense I mean you're not granting a sense permanently anyway for docks right so why should you necessarily be giving an assent for a house forever maybe that should be 50 years for a building and maybe we should be doing the same thing with the variances maybe we should be making it a special use permit and what's a reasonable expectation in the way that zoning not so much in runilum but in other places zoning has adapted with nonconforming signs and billboards the idea of the usable life and telling them out over the usable life and maybe that's a sort of thing that we could start there with that thing so that nonconforming does not mean forever but it has a time limit another problem is how are we going to deal with the what I will call the McMansioning of the summer cottage communities both the real former tent colonies along the south coast Mary Carpenter's Beach in those places or just places like West Barrington where there are houses but a lot of very small houses on very small lots and they're all low houses and how are we going to a limit that as was discussed well ok let people go up higher but when people go up higher that really does change the whole character of the neighborhood and it's also a domino effect the people on the shore have the problem worse problem with the flooding they've got to go up first to get out of the flood zone then the people behind them have to go up to preserve their view or else they're faced with this big wall of high rises in front of them so that's a problem which I don't see an easy answer to there was a discussion just last night the Barrington town council and planning board were reviewing comprehensive plan and action items and you know there's a strong sentiment let's lower the height let's lower the height that we have 35 feet tall we've got to go to 30 feet and then someone said yeah except for those with the flood zone and it's like well but that's where our problem is and clearly it's a town-wide issue that's not town-wide but people think it's town-wide so that's in the bad news category because I don't see an easy solution to it at this point another issue is the problem we have with our historic areas our historic properties those that are specific historic districts those that are not right here in Bristol Thames street you know we have a lot of businesses and properties right along you know barely a few feet above sea level you know what do you do to your walkable historic character if suddenly everybody's got to walk up 11 feet just to get to the shop that's on the street what does that do to your street frontage your welcoming street frontage when they're looking at nothing but car garages at ground level and everything's above it Newport you know what does that do to Thames street you know how are you going to deal with that and I guess my only solution to it is I think this is a good example of one size doesn't fit all I think I think I said it jokingly but I think it's true that we're going to have to learn more from the Dutch about building walls and those are the kind of places that you know Newport where it's already mostly a seawall all along the shoreline anyway maybe that's what we got to do we've got to elevate the seawall as opposed to because even if we could economically elevate all the buildings along it we wouldn't want to because that would change the whole character of the property the same thing with Bristol I don't know about that maybe that's the answer that you know part of downtown Bristol maybe it's we need to be elevating all those seawalls so that's another bad news problem although probably less problematic than the mentioning the other problem and hopefully we're helping to solve it with sessions like today except we're all the believers that are here but it's how to deal with the public and what I will call the misuse of the public and this comes from a personal experience representing one of my town South Kingstown down in the Matunik area and the case has been litigated so I think I can talk about it now and I can talk about it anyway since I'm a party I'm biased so you might as well know that right up front the council members probably should not talk about it since it could get remanded to them you never know someday but what we've got is a situation down there we've got a community we've got these various communities with these campground type communities like Carpenter's Beach these little cottages they don't have bathrooms they have community bathrooms but everybody's got their own little cottage there along the shore and then we also do have a lot of homes there in this particular area of the road this is the only road access to approximately 300 homes and a few businesses across this stretch of road a couple hundred foot stretch of road it also contains within it an 8 inch water main which serves a total of 65 homes and the town and looking at it and part of its hazard mitigation looking at it saw this as a significant problem we realize there's nothing we can do to protect that road during a hurricane event that road's gonna get covered the waves are going over it it's too high there's no way we can build a huge anything big enough to withstand that and it wouldn't make sense that around it would just still be destroyed but the concern was we want to be able to protect the infrastructure we're going to issue evacuation notices if people don't leave with the hurricane then they're on their own we're not going to be able to get the ambulance to them but what about after the storm we'd like to be able to get the bulldozers in there and clear the rubble and the sand off the road and still be able to have the ability then to get four wheel drive vehicles so that people can get to their homes in the future they're not going to be denied access to their home for a year while a whole new road is built in likewise the water if the water pipe is destroyed if the whole road bed washes away and the water pipe is gone then altogether we got about 2,000 homes which I think we're going to be revoking their certificates of occupants and saying they're not occupiable so there was a plan to put in a steel sheet pile wall behind and I'm saying behind I mean landward of an existing concrete block wall that was crumbling and there was a business owner right next to the property who didn't have clean hands who'd done a lot of illegal work illegal work fortifying their own property but they still fought us and I don't have a problem with that okay this is the American system lawyer they saw that this wall that the town might put in whether they were wrong or not and I believe even scientifically they were wrong it wasn't really going to damage their property but they believed it would so they had a right they're fighting they're arguing against the town's plan to do this but what troubles me for our hope here in the future is the use by social media of the business owner to raise up a huge crowd of people with their customers come defend us we're going to be put out of business and raise the coalition including the surfing groups and save the bay proponents of the retreat doctrine came in on their side so suddenly the town which I thought we were the good guys trying to protect public health safety and property are the bad guys and I see that as a problem I think it's an education thing that people have to see that and see what the issues are but that's the other bad news that I see that everybody will be continually manipulating it and I certainly see a lot of very rich people as they get denied permits for their multi-million dollar 6,000 square foot homes on their million dollar lots are going to turn to conservative legal foundations to try to make case law things and so forth like that as well as just the whole propaganda issue of let me do what I want with my property like you said they don't have mortgages they're not going to have flood insurance why shouldn't they be allowed to take the risk and I guess that would segue into one of my statements here that I think maybe one of our trump cards on the liability issue if we're denying the permits the protection from the liability comes to that fact that we're really not just talking about property but we're talking public health and safety with the life aspects that we can say not just we're denying your permit because we don't want to pay the insurance costs or we don't want to have the damage to your property but because we are protecting even if you take the risk we're protecting the future people who live there you know your minor children who you don't have the right to say they are going to take that risk with their lives and future owners of property there and in some circumstances we also have the issue of debris that you know as your house is shattered into a thousand pieces it's going to destroy the people who are downwind of you that I think might help to protect us because if you look at the issues that we're talking about with Lucas and the background principles of nuisance law I think it might be possible to to mix my metaphors it might be possible to draw a nexus between that concept of the nuisance law and protecting the life and property that would presumably give us something to get out of the liability issues there on the taking the other point I would just come back to again about the question about the egregious conduct issue and creating the extreme peril is again I think John summed it up well I think we need to get all that information out there I think it's great that we have the information in here and make sure as I came back to talking about that idea of you know the waiver of liability form it should probably have the website for the tools right on the waiver says I've been informed of this waiver of this website and that I can find out what the effect would be on my property and I accept that risk so that's now we're going to have a panel so if I can ask Andy to come and John to come up and Jenny will be back in a second and this is going to be moderated by Dennis Esposito I've been relishing reading his bio Dennis is an experienced environmental law practitioner legal educator and lecturer in ocean and coastal law land use development hazardous waste issues and environmental litigation he's represented clients in both the public and private sectors including serving as legal counsel for the Narragansett Bay Water Quality District Commission and Rhode Island CRMC and this is what I wanted to add is that was way before me and I've been there a long time I couldn't but it was great to work with him but he was the chair of the environmental practice group at the Providence base law firm Adler Pollock and Sheehan for over 20 years he most recently served as interim director of the Marine Affairs Institute and Sea Grant legal program at Roger Williams University School of Law and is currently director of environmental and land use clinical externship program he's been an adjunct faculty member at the law school since 1996 Dennis and I will go to the how we come to the fun part of the reason why we're here and that is because of each and every one of you we want your feedback we want to present make available our afternoon speakers and our morning speakers most of them are still here we're going to do a bit of a Q&A right now then we're going to spend a few minutes on break and have some more food as Julia likes to keep on pushing us and pushing on us and then finally we'll get up and speak again just about some what we're seeing is some leading edge topics Jenny hit on them earlier there's another one out there that I know Grover's very fond of what I'm calling the Vulsion High Tide Line we'll find out what that is in a minute but before we do that we want to start off with questions and I think the first question I have using as Julia mentioned earlier picks up where Andy left off and that is damned if you are damned if you're not if the municipalities out there and the state decides to deny we know the consequences if you decide to grant and get sued you know the consequences but a very interesting topic and a very interesting point that I don't want to lose at all is the issue of promulgating affirmative regulations in these high flood danger zones as identified by the environmental coastal risk hazard system that's being developed now so we know there's a high flood danger zone it's not the entire coastline it's certain specific areas in your town but when they're identified the municipal towns cities state government are going to have to act somehow if those regulations can be grounded in public health and safety as Andy counseled in his remarks we may have a hell of a leg up in being able to defend those regulations and I noticed I stole Jenny's one of Jenny's slides I wasn't able to put it up because I don't have that technology but the Rhode Island Constitution supports that kind of regulatory approach in fact it says in article 16 that talks about land use management and also talks about takings and identifies privileges to the shore that pretty much those types of regulatory actions are a valid exercise of police power and they'll be literally construed not to be let's try that literally construed and not to be a public use of private property so there basically is a constitutional support right there to couch some of these regulations in public health and safety now I'm going to pose a question to the lawyers out there would you write something like this could you see this viable as something when your town through use of storm tools and other scientific information that's coming out as we hear it today when your city and town wants to write affirmative regulations on no build or perhaps no rebuild after a storm with constitutional support can you see yourself doing that show your hands how many people would like to see that happen and I think you have a viable a viable solution there a lot of you folks didn't raise your hands why is that you're all lawyers why don't you just stand up and defend yourself why does you have a very specific document that's been developed by URI we heard our speakers today basically say that if we're going to be developing regulations make sure that they're grounded and science is portable to allow you to get away from the APA type claim that Brian talked about and I have a document there it's been developed by URI let's say you have a substantial amount of public stakeholder meetings so there's plenty of knowledge out there you have all your cities and towns there at these meetings you have all your constituents there at these meetings you specifically invite the landowners that are part of that identified zone 115 houses you then go out to rulemaking and the stakeholders meetings that say in the event of a hurricane and the land and property is destroyed by more than 45 percent 50 percent of the rule you want to use you cannot rebuild the reason why you cannot rebuild is because of the threat to public health and safety is that too important what do you think Don I'll take a blank and I'll report on Black Island an expert comes out who may have all these reports records not one expert can show up and if you're going to have trouble admitting these reports I guess you're going to challenge those reports with no one to introduce them no one to testify find yourself in an administrative field a review of the record and documents that most of the zone important people have I'll get to you in one quick second Brian I wonder if you could take that question because it plays into your APA defense of having supporting evidence and I'm wondering if storm tools if properly adopted as part of a beach sand basically allowed to cities and towns and directing the cities and towns to use sand can be that supporting evidence well I think the first thing I want to respond to is I'm certain that the members will have read that because you will have polled the members on the reading of that before they vote they voted and I think that's important to do look I think he's right and that's the reason I raised the issue is you're going to get he said Bill Landry is crude and Bill's a very good lawyer but I mean that's the kind of guy that comes in with these brings people from out of town that don't really practice here and you know what I'm saying is anyone who's more than 100 miles away is an expert and they'll come in and they will go after these studies and go after the regulations and I think it's a serious problem I really do and I think that's why I highlighted the point of you know CRMC and DEM and the statewide agencies we have staff we have a staff to rebut that and we fight with that problem and we do it and one of the reasons we have our rules are that you have to give a seven days advance notice of who's going to come in and testify and what the area of testimony is so that we can prepare and have response to that and I really think you know and I've used in some other issues I've said to the state Supreme Court on occasion that you know you apply standards to state agencies and you apply the same ones to municipalities and they don't have the ability to do that and then you go down to a planning commission and they definitely don't have it so I think it's a serious issue it's an unlevel playing field for the municipalities but you're just going to you know do the best you can I think but it's a I've got to fly about the block dial for a zoning watch meeting or make them take the vote it's just not a practical solution I'm only talking about my town I'm a solicitor now that I'm phoning on the other end so when I talk about South King's Town I bring my experts to South King's Town for a special use permit to build a house on the beach even for South King's Town they don't have experts that come and oppose you so then it's not difficult if you put on your case to prevail a superior court even if the town's only court tells you no so it's very different for the town to carry it's very different I'll get to Don and then I'll get to Chris and to folks here I think it sort of plays out what Andy had been saying before when you start talking about the loss of life I know the town of Situic went all the way to the mass spring court on the case where they were banning development in velocity zones for measles and they based out of the fact that these areas have way back and they are very extremely hazardous areas to get in and out of and they don't want to be sending first responders down there to place themselves at risk losing their lives in these areas where it is you know, virtual certainty that they're taken out and when it was the spring court they defended it, they were able to withstand a taking claim on that on that defense, I'm just wondering whether something like that Rhode Island would survive that type of I started with that point but not to belabor it I saw a couple of other hands Tauna Wesley had some questions they used to be able to consider slows so it seems to me that the modeling is more in the perspective yeah please I think I agree with that and the thing about the takings process is one of the things that we did in the Palo Zolo case one of the issues that we had was our state supreme court took the position that if you purchase a piece of property with knowledge that the regulations prohibited development on that property then per se that prohibited a takings claim now the U.S. Supreme Court disagreed with that they said you cannot per say it invalidates a takings claim but it's a factor and that actually was the deciding factor in the five to five court with Justice O'Connor being the deciding vote so I think you can do that and it's a process I think you can have that going forward for people who acquire property with that knowledge you're still going to have to deal with the people who have owned it and their family and it's just going to be an attrition before they convey it to somebody else and that becomes a factor but I don't know how you have any other you've got to put that stuff out there in the books and you've got to let it get challenged but it's facts so you have to deal with it Chris the jail on that prohibition is under the background what it's all about so in the now as I look at it you call the church a doctor and dirt to your title before your wife it came from King George or someplace back then common law prevented you from doing you because the only thing they created was the now as I look at it you can't really set the system because trying to justify the the soul of what it wants something on your hand now that the sea level is rising that construction creates nuisance i.e. you're going to you know they're going to be flooded even including them maybe we're going to have to bring in public services to rescue you we're going to have to pay for a reconstruction of a reconstruction because of your ability that could constitute a nuisance and that again is something that you never had to do before it's not a technique it's a brand new problem albeit maybe 20 years ago 50 years ago it was a nuisance but now the sea level is rising and here we are flooding is occurring no problem some questions thank you very much I agree with Donna Parker one of the real issues is getting the proper expert information on the record in support of a plan important decision that they want to deny development that is an issue unless you have resources to hire an expert or already in the can information that you just put on the record you're not going to be able to get that expert testimony and therefore you don't quite need the substantial evidence standard however I think the solution to this problem comes well before an applicant gets to a planning board it lies with regulations state regulations first of all state regulations in place that are based on the science which was wonderful to see today and that is put into place and the city and town can say go to CRMC and say your regulations dictated this then therefore we are only following state regulations then you can write your own local regulations that say we are going to be consistent with or in some circumstances you want to be more stringent than the state where it's allowed the second thing is zoning we have zoning in England to not only overlay districts but rezone districts property in such a manner that would disallow residential development on our ocean on our seacoast and if you look at 45, 24, 37 permitted uses it already says similar to the quote that you made that it's some precedent therefore actually prohibiting residential uses for health and safety reasons now my idea is you do an overlay district along the entire coast and you make residential uses not permitted and there you come to non-conforming use we have many, many years of history with Asian non-conforming uses that support the fact that you cannot rebuild once there's a catastrophic event now you just heard today one of the best quotes today was if these catastrophic events are now foreseeable therefore they're no longer acts of God that's one of the exceptions and I'll be able to rebuild the non-conforming use it was destroyed by an act of God we now know these are foreseeable events therefore we can argue that they're not an act of God making more non-conforming uses under X, Y and Z circumstances you are not allowed to be built both under locals and under senior institutions I'm going to ask that perhaps Brian and Andy respond to that because I see two distinct questions maybe if I get Mike Rubin to I know he had his hand up so I'll call on you as well because Yuri's dragged into these things anyway just feel free one is can an intensive state regulatory scheme not statutory scheme as proposed by the question allow sufficient shelter if you will for a city in town to say we're basing our decision on the whole host of regulations up there I think that's one issue and the second issue I have is Andy's what you got to the question I just said and that is the implementation of the health and safety police power of the cities and towns to support again what we started with to support these regulations so Mike or Andy or anybody I'll take the first one because I think the answer is no I don't think a purely regulatory scheme would be enough to base it on I do think there's a relatively easy answer in the sense that it's rocket science but not easy in the sense that it may not be palatable but I mean what would be good is if going forward CRMC included in their budget staff people to provide the assistance there used to be a time when there was a vision of municipal affairs and they used to send people out before a lot of towns had planners they used to send people out to regularly attend the zoning and planning board meetings and provide that staff assistance and so if in your future hiring you made it clear in your job description that the duties included night work to assist the cities and towns to testify to support this stuff that to me I think would be the easy way that would allow the towns to have or somewhere I don't know but if you had a pool of experts and people who knew this was part of their job duty we had our own pool of experts to call on to counter the developers' experts I think that would go a long way to helping that and other than Block Island it's a small state so we can pretty much cover it we can pretty much cover it with the pool of anybody getting to anywhere maybe you could provide housing out there we could get someone to locate in a Block Island expert housing might be in a risky area can I answer? as to whether or not you can just say no because CRMC would say no I think that's dangerous territory because there have been zoning appeals that where the zoning boards have said we're not going to permit this because it's not permitable under the CRMC regulations and the court has said that's being statutory authority so you would have to couch it in terms of you know one of the conditions to overturn a decision on the administrative procedures beyond your statutory authority so if you do it for reasons that we would do it our buffer zones, our setbacks our impact to the coastal zone I think you'd have to be really careful how you did that you can't just say CRMC regulations don't allow I think you're going to lose on that let's go just one quick observation maybe a enhanced regulatory scheme may not quite I tend to agree with Andy on that but again not to be politically naive because you can't be in Rhode Island but perhaps there may be some room at the legislative level to introduce some legislation that would give the appropriate shield that the towns need that this is why we adopted these regulations and they're based upon the science that the legislature through perhaps the what's your committee Chris the climate change EC4 EC4 maybe some recommendations out of that group yes you also have to remember all these changes that are going to look to the town council sure that's what we asked Jenny the town council we can come up with things but how well that's what you are I struggling with and that's what we're struggling with here is and I think Theresa and or Pam mentioned it this morning is education is the whole essence of being and that is educating town council members this dialogue has to be started we cannot go forward like Governor was it Scott in Florida Scott Walker Scott Walker in Wisconsin head in the sand Greg just two quick things one is Rhode Island has just adopted a fresh water statutory scheme that has taken away the review the local review process and on the hands of municipalities has DEM that wetlands review that potentially could be undertaken on a coastal review as well where you have the resources in this new statute the Freshwater Wetlands Act actually DEM has an expanded jurisdictional areas the trade office and cities and towns does not have their own fresh water wetlands ordinance anymore and then secondly just from my own experience there is a long and a strong history of allowing lots that have been zoned as residential lots to be built as single family residents I know DEM pushes very hard for technology unfortunately continues to keep pace or tries to keep pace and CRMC is guilty to the same thing and there is how many of CRMC issue for subject system repairs where they are now holding tanks so it is a very difficult you are fighting a very difficult battle where you are trying in Rhode Island to say that lots that were previously zoned as residential lots cannot be built yes I just had a question about not being able to be built there is a catastrophic event and unfortunately I think that might be what it is going to take in some of these places we have got a really densely developed downtown it is not a matter of saying we are not going to let new development it is a lot of rebuilding but I guess my question was how is that going to affect somebody getting a mortgage if you would put a stipulation that they can't rebuild maybe that is a topic for another session but I see another level panelists up there want to sure if you put a requirement that they can't rebuild you are not going to get a mortgage with the one exception you might 99 years as a kind of magical connotation in common law that it equals fee and something so perhaps a 99 year woman might provide some protection for 50 years and they have to get renewed after all the structures after all the structures 8 years very thorny problems last question I think I would like to do what makes sense is we are generating a lot of thought and a lot of really good questions I would like to after this last question take about 5-10 minute break and continue just continue what we are doing right now I am the next speaker I think I can probably and let's continue with our questions and the answer is spend some time out there over a cup of coffee get really charged up a little bit with some caffeine last question and then we will reconvene about 10 minutes that's a whole lot of work to do these types of things we are going to fix a reelection we are sending all these things but the question I have is that if there is some infrastructure needs to be done and it is going to cost a lot of money put it out for bond put it out for referendum and it gets defeated is that any inoculation against not doing what you are supposed to do I would definitely argue that is a great defense if you are going to do something and you couldn't do it then I think the burden is on the plaintiff to point to something else that you should have done especially if it is a referendum then it is really not I kind of disagree with that if the liability is there it is to the corporate liability and if the taxpayers took the risk in denying the referendum when they voted it down the taxpayers should bear the consequences of not doing that if they tried to do it and it was voted down because I apply the actions of the voters to the municipality to the corporate thing we don't have a lot of but suppose it is at a financial town meeting is that any different than a referendum if the voters at a financial town meeting voted down let's hold that thought and please come back with questions that is what we are going to do