Local Land Use Planning in an Era of Climate Change

by Bradley G. Oster


The impacts of climate change combined with aggressive development are wreaking havoc throughout the State of Louisiana. Take this past year, for example. From August 27, 2020, to August 29, 2021, hurricanes and floods caused an estimated $104.5 billion in damages in Louisiana.[1] The impacts of climate change are not limited to New Orleans or the coastal parishes, though.[2] In fact:

Flooding—be it from storm surge, persistent high tides, increasingly heavy downpours, or rivers swollen from up-basin precipitation patterns—affects populations throughout the state. Even floods that do not force people from their homes disrupt lives, add financial and emotional stress to individuals and families, and strain resources that could be invested elsewhere.[3]

This is particularly true for homeowners. Following hurricanes Laura and Delta, it took 14 months for federal aid to arrive in southwest Louisiana, where many “homes still bear blue tarps and await roof repairs, businesses remain boarded up,” neighborhoods appear abandoned, and thousands remain displaced.[4] Moreover, multiple homeowners’ insurers have been forced out of business;[5] home insurance rates are expected to increase by five to ten percent;[6] and federally subsidized flood insurance, through the National Flood Insurance Program (NFIP),[7] is “expected to produce phased-in increases of more than 129% for around half of Louisiana policyholders,” while about 10% of Louisiana policyholders could see an increase upwards of 400%.[8]

Louisiana touts itself as being resilient and “Louisiana Strong.” However, the reality is that Louisiana is one of the poorest states in the country,[9] is among the most vulnerable states to the impacts of climate change,[10] and its population, and thus its tax base, is amongst the most rapidly declining.[11] While recent plans were announced to address greenhouse gases and industries of the state,[12] concerted efforts aimed at “land use policies hold the greatest long-term risk reduction potential.”[13] For Louisiana to be truly resilient, it is incumbent upon local governments, “[u]sing their state-delegated land use authority[,] together with state and federal assistance[,] . . . [to] create disaster-resilient communities that have increased capacity to adapt to the effects of natural disasters; this would result in less property damage, environmental impact, and loss of life.”[14]

I. Background

Louisiana’s local governments have been vested with the police powers and authority to establish land-use ordinances and regulations for the prevention of flood damage.[15] Further, although landowners generally have the right to do with their property as they please, “[t]his right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.”[16] These truisms are of vital importance because although local governments may be incapable of preventing hurricanes, heavy rainfall, and other climate-change-related impacts, they are capable of mitigating those impacts through proper land-use planning and policy. On one hand, local governments must weigh the property rights of their individual citizens, but on the other hand, they must weigh the property rights and well-being of their communities as a whole. Difficult though the task may be, local governments must seek to strike a balance between these dueling needs and rights in order to secure the longevity of their people, lands, and economies.

II. Use Best Available Data and Science In Floodplain Management Plans

Current legislation pertaining to municipal and parish planning commissions requires that master plans be made “in accordance with present and future needs . . . health, safety, morals . . . and general welfare” and even encourages the “promotion of safety from fire.”[17] The statute does not, however, mention flooding, science, or climate change. Additionally, a community’s reliance on the NFIP’s Flood Insurance Rate Maps (FIRM) as the best available data and science for planning purposes is likewise inadequate. In order to mitigate flood-related damages, it is imperative that local governments utilize modern science and updated data.

The NFIP’s purpose is three-fold. First, it seeks to make primary flood insurance available and accessible. Second, it seeks to mitigate the nation’s comprehensive flood risk through floodplain management standards.[18] And third, the Federal Emergency Management Agency (FEMA) creates maps depicting high-flood-risk areas that guide NFIP rates and community land-use decisions.[19] While the program is voluntary, communities must adopt the FIRM and the minimum floodplain management and construction standards to be eligible to participate in the NFIP.[20] However, the minimum building criteria set forth in the FIRMs has not been comprehensively amended since the 1970s.[21] Additionally, these FIRMs depict flood-risk based on past weather events. For example, a Special Flood Hazard Area (SFHA), which delineates those properties with a 1% or greater risk of flooding every year, known as the “100-year flood,”[22] is based on the past 100 years of data; it does not, however, account for the effects of climate change or aggressive development.[23] “Given the substantial amount of credible, scientific evidence concerning climate change’s role in increasing flood risk, coupled with growing development in flood-hazard areas, [Louisiana] cannot rely on a federal program that is failing to adequately account for these impacts.”[24] Accordingly, rather than rely on the outdated minimum requirements of the NFIP, local governments must enact legislation requiring that the best available science and data be used in land-use decision-making.

Utilizing better data and science can also help shield local governments from liability. Political entities are increasingly being sued for flood-related damages under nuisance,[25] tort,[26] and Takings Clause claims.[27] Louisiana’s nuisance and tort theories require a degree of reasonable care to prevent foreseeable damages.[28] Nevertheless, land-use decisions are a “legislative function involving the exercise of legislative discretion” and are therefore typically shielded by sovereign immunity.[29]

When determining whether an act is discretionary in nature, and thus subject to immunity, courts must determine whether the statute or ordinance requires the governmental agency to follow a particular course of action.[30] If so, then there is no discretion involved, and thus discretionary immunity does not apply. If, however, the agency “has a choice about whether to undertake the activity, then the entity will be protected by the immunity only if the choice is grounded in social, economic, or political activity.”[31] Governmental acts aimed at flood-damage prevention seek to promote and ensure safety, public health, and the general welfare of the community, while also minimizing public and private losses due to flood conditions. As such, those decisions are generally protected from liability through discretionary function immunity.

Liability can attach, however, if those discretionary acts constitute fraudulent, malicious, willful, or reckless misconduct.[32] For example, in a case concerning the construction of a new sewage system, three groups of homeowners sued the New Orleans Sewerage and Water Board (SWB) for extensive damages that resulted from the sewage system’s construction.[33] The court found that the SWB had been advised by its own engineer as to which types of construction activity could cause or affect settlement rates.[34] The court also found that the workers went so far as to “obtain pre-construction photographs to document the level of anticipated damage.”[35] Moreover, the SWB anticipated damages and failed to change its construction methodology even as its monitoring of the construction indicated a “profound impact well beyond the limits of construction.”[36] Despite the fact that the SWB had knowledge of the potential for damage for over a year, the court found that the SWB did nothing to remedy these damages and instead “gambled on the amount of damages that might be sustained.”[37] Because these acts totally disregarded the exercise of reasonable care to prevent foreseeable damages, the court held the SWB liable for all damages, including damages for mental anguish.[38]

The science, data, FIRMs, and technologies that are used in creating land-use laws no longer comport with the present realities. Modern science, new data, and updated technologies have reshaped the way the world understands its climate and the impacts of various decisions. “Today, sophisticated modeling techniques facilitate proof of causation and allocation of fault.”[39] Arguments that destructive rain and flood events were not foreseeable are becoming less and less legitimate, and relying on outdated information is arguably a reckless disregard toward exercising reasonable care to prevent foreseeable damages—thus potentially overcoming a government’s discretionary function immunity. Additionally, the use of better data and science can also inform and educate citizens of the dangers and realities of living in certain areas, which, in turn, can serve to apportion some degree of fault to the landowner. Whether it is used to better inform decision-making or to reduce viable lawsuits, the utilization of the best available data and science is necessary for land-use decisions and the adaptation to climate change.

III. Redefine “Resilience” To Inform Future Planning

The ability to endure suffering year after year, to live with a tarp on one’s roof for 14 months, and to live without electricity or water for extended periods of time should not qualify as resilience in one of the wealthiest and most advanced nations in the world. Instead, Louisiana should adopt the United Nations International Strategy for Disaster Reduction’s definition, defining resilience as:

The capacity of a . . . community . . . potentially exposed to hazards to adapt, by resisting or changing in order to reach and maintain an acceptable level of functioning and structure. This is determined by the degree to which the social system is capable of organizing itself to increase its capacity for learning from past disasters for better future protection and to improve risk reduction measures.[40]

To truly effectuate the goals of resiliency, as defined, Louisiana localities must implement a post-disaster permitting process that allows repairs while simultaneously ensuring that communities are rebuilt to be more resilient. Elsewhere in the country, coastal municipalities have ordinances specifically directed toward rebuilding and reconstruction following damaging storms.[41] For example, some ordinances create a reconstruction task force “to identify opportunities to mitigate future storm damages through the management of reconstruction.”[42] These laws also create procedures for assessing damage, adopting short-term building moratoriums, and recalibrating local regulations in response to destructive storms.[43] Importantly, the regulations seek to foster resilience by requiring that reconstruction or repair projects comply with zoning ordinances and codes.[44] Adopting measures such as these will ensure that Louisiana’s communities do not rebuild to maintain status quo,[45] but rather, rebuild to become more resilient.

This slow and gradual shift toward resiliency may seem onerous on the homeowner. However, most NFIP policyholders are required to also have Increased Cost of Compliance coverage (ICC) for this exact reason.[46] “For example, when a building . . . [has been] substantially damaged[47] following a flood, floodplain management standards adopted by local communities can require the building to be rebuilt to current floodplain management requirements, even if the property previously did not need to do so.”[48] In this situation, an ICC policyholder could then file a claim to offset the cost of reconstruction compliance. Through this process, flood-prone communities will gradually become more impervious—and thus resilient—to flood events.

IV. Require New or Substantially Improved Buildings To Exceed Base Flood Elevation

Further, local governments must require that all future construction and reconstruction exceed the Base Flood Elevation (BFE). The BFE is essentially the water-surface elevation during a 100-year flood event.[49] In theory, if a house is built at or below the BFE, there is a 1% or greater chance that flood levels reach that height. But again, the BFE is established based on decades-old data and does not account for climate change or aggressive development that impacts a given area. Additionally, building to the BFE does not provide protection against a storm more severe than a 100-year flood. Fortunately, FEMA’s NFIP construction standards merely set forth minimum requirements; indeed, communities are encouraged to adopt more stringent standards.[50]

Building above the minimum BFE is known as freeboard.[51] There are multiple benefits to building with freeboard. First, building with one or more feet of freeboard protects homeowners from current floods that exceed the 100-year flood.[52] Second, freeboard provides additional protection against future climate change, weather events, and community development.[53] Third, freeboard avoids losses due to flooding.[54] For example, in a nationwide study, FEMA found that approximately 15,000 NFIP participating communities had adopted a freeboard requirement exceeding the NFIP’s minimum BFE. It further found that about 400,000 of the 786,000 structures in the floodplain of those communities had freeboard. Based on its analysis, “[t]he Average Annual Losses Avoided (AALA) for freeboard structures was approximately $484 million.”[55] Fourth, freeboard can serve to reduce NFIP premiums through the Community Rating System (CRS).[56]

CRS is one of the ways in which FEMA incentivizes communities to adopt more stringent flood-plain standards than those set forth in the NFIP’s minimum requirements.[57] When new or substantially improved buildings are constructed with one or more feet of freeboard, NFIP premiums can go down significantly because a building with freeboard is less likely to receive damage.[58] In fact, a “building constructed at [BFE] . . . pays more than twice as much as the same building with one foot of freeboard.”[59] Communities in Jefferson Parish, the state’s leading CRS community, “see over $12 million in flood insurance savings annually” thanks, in part, to its freeboard requirements.[60] Despite the savings to homeowners, only 13% of the state’s 318 communities participating in the NFIP participate in CRS.[61]

To date, “[t]here remains no statewide-mandated freeboard in one of the most flood-prone states in the nation.”[62] The International Residential Code, a model code for residential construction, “provided the first nationally-recommended freeboard requirement for single-family homes.”[63] Astonishingly, the Louisiana State Uniform Construction Code[64] removed this recommendation.[65] With FEMA’s new NFIP rate calculation going into effect in April 2022—with increases of more than 129% for around half of Louisiana policyholders—it is time for a change to enhance safety, reduce flood damage, avoid losses, reduce premiums, and keep money in the community. It is time to require new and substantially improved buildings to exceed the BFE by requiring a freeboard of one or more feet.

V. Requests For Variances Should Be Denied

To ensure that new or substantially improved buildings are built with freeboard, local governments must deny developers’ requests for variances. A “variance is a grant of relief to a person from the requirements of [the flood prevention ordinances] when specific enforcement would result in unnecessary hardship.”[66] There is no general rule as to what constitutes unnecessary hardship, and a planning commission must consider all relevant facts on a case-by-case basis.[67] Moreover, variances should only be granted on a “structure-by-structure review,” and never for multiple lots or subdivisions.[68] Additionally, to receive a variance based on unnecessary hardship, the hardship must derive from the application of the ordinance to the property in question—self-induced hardship or a desire to maximize profits on the property, alone, will likely fail.[69]

In addition to these general rules, local governments should require the party requesting a variance to present proof that is substantial and compelling, while also showing that there will be No Adverse Impact[70] resulting from the variance. Due to the dangers and counterproductive measures that arise from granting variances, FEMA and the Louisiana Department of Transportation and Development note that “it is difficult . . . to imagine any physical characteristic [of a property] that would result in a hardship sufficient to justify issuing a variance to a flood elevation requirement” and that issuances “should be rare.”[71] When judicially reviewing a Planning Commission’s decision, courts have concluded that a Planning Commission must apply the unnecessary or exceptional-hardship standard “impartially and within reasonable discretion” and that the Planning Commission’s decision must be justified based on the evidence in conjunction with the spirit of the ordinance, weighing both the needs of the community and the private landowner.[72] Regardless of whether a variance request is approved or denied, the decision is generally shielded by discretionary-function immunity, as outlined above.[73] However, this protection should not serve as the basis for granting variances. “If a community makes a practice of varying from its ordinance’s standards, it could be subject to the sanctions of [the National Flood Insurance Program] noncompliance,” which includes loss of insurance coverage, loss of federal funding, and loss of federal disaster assistance.[74] Moreover, inconsistent application of the flood-prevention ordinances could give rise to a due process or equal protection violation.[75] Accordingly, local governments should adopt a best practices policy of denying requests for variances, or alternatively, require the requesting party to offset the impacts of its variance through reasonable permit conditions.

VI. Avoiding Regulatory Takings

Understandably, local governments may be hesitant about implementing these aforementioned recommendations due to an additional legal issue: Takings Clause claims. The United States Constitution and the Louisiana Constitution bar the taking of private property without just compensation.[76] Importantly, the statutes granting immunity for discretionary acts do not override these constitutional protections.[77] In addition to eminent domain and inverse condemnation, “compensation may be required when a government regulation of private property is so onerous that its effect is tantamount to a direct appropriation or ouster.”[78] This can occur “when a regulation completely deprives an owner of all economically beneficial use of property.”[79] When analyzing a regulatory taking, courts use a three-part balancing test that focuses on the character of the regulation, the extent to which the regulation interferes with the property owner’s investment-backed expectations, and the resulting diminution in value.[80]

However, “[e]very person holds his property subject to the valid exercise of police power,” and “[t]he adoption of a regulatory ordinance or the implementation of zoning are examples of the valid exercise of police power.”[81] Accordingly, courts “hold that a regulatory program that adversely affects property values does not constitute a taking unless it destroys a major portion of the property’s value.”[82] Further, an unconstitutional taking of property does not arise simply because the owner is unable to develop the property to its maximum economic potential.[83] Instead, to rise to the level of a regulatory taking, the regulation must deprive the owner of all practical use of the property.[84] Indeed, “[i]t is elementary that enforcement of uncompensated obedience to a regulation passed in the legitimate exertion of the police power is not a taking of property without due process of law.”[85]

For example, FEMA has noted that numerous constitutional challenges have arisen in response to its regulatory floodway designations—which effectively prohibit all activity that could increase flood levels within a community—by parties claiming that such designations are so onerous that they preclude the landowners from making any economic use of their properties.[86] FEMA further noted that “[i]n nearly all cases the concept of the floodway has been upheld.”[87] This is because, according to FEMA, the purpose of floodway designations is to prevent a handful of property owners from causing destruction to adjacent or upstream properties.[88] FEMA further explained that such designations do not prohibit development; they merely prevent development that would result in an increase in the BFE—sometimes referred to as a “no-rise.”[89] While this limitation often results in a property owner deciding, for practical or economic reasons, to not develop, that it is the property owner’s decision—not a taking.[90]

This reasoning is likewise supported by Supreme Court precedent[91] in conjunction with Louisiana’s Civil Code.[92] In Lucas v. South Carolina Coastal Council, “the Supreme Court held that a regulation that would otherwise constitute a per-se taking of property would not violate the Takings Clause if it were consistent with ‘background principles of nuisance and property law.’”[93] Louisiana’s nuisance and property laws, in turn, provide that although a landowner may do with his property as he pleases, he cannot deprive his neighbor of the same or cause damage to him.[94] Additionally, a servient estate is bound to receive waters from the dominant estate, but the dominant estate cannot render the flow more burdensome.[95] Together, these principles and laws demonstrate that although discretionary immunity does not apply to regulatory takings, governmental entities are nevertheless effectively shielded. Accordingly, fear of takings claims based on allegedly onerous regulations should not serve to deter adequate regulations.


Local governments have a duty, albeit not a legal one, to protect their citizens from the adverse impacts of climate change; maintaining the status quo is no longer a viable option. Modern, updated science and data must form the foundation of land-use planning moving forward. Not only will this better guide informed, well-reasoned decision-making, but it will also serve to protect local governments from liability while empowering their citizens to make their own informed decisions when it comes to protecting their properties and financial interests. To truly become resilient and adapt to the ever-changing realities of climate change, it is imperative that when communities build or rebuild, they build back better. This includes requiring that new and substantially improved buildings be built to comply with updated zoning ordinances, that buildings are built with freeboard, and that No Adverse Impact results from variances. Understandably, governments are wary of tort and takings claims in response to their efforts to address flood-related damages. And while it may seem financially wise to remain risk averse, complacency and inaction are costing Louisiana and its dwindling taxpayer base billions of dollars on a yearly basis. The climate is changing, and it is time for Louisiana to change with it.

[1] Billion-Dollar Weather and Climate Disasters, Nat’l Ctrs. for Env’tl Info. (2022), https://www.ncdc.noaa.gov/billions/events/LA/2020-2021 [https://perma.cc/8QGH-FCU3].

[2] A Federal Emergency Management Agency (FEMA) sponsored study found that “riverine environments may experience, on average, a 45 percent expansion of the typical 100-year floodplain by 2100.” Joel Scata, A Rising Tide Lifts All Damage Costs: The Need for a Federal Flood Protection Standard, 34 Nat’l Res. & Env’t 21 (2020).

[3] Climate Initiatives Task Force, Louisiana Climate Action Plan 28 (2022), https://gov.louisiana.gov/assets/docs/CCI-Task-force/CAP/Climate_Action_Plan_FINAL_3.pdf [https://perma.cc/JA2T-UCV7].

[4] Melinda Deslatte, Louisiana to Get $595M Federal Disaster Aid for Laura, Delta, U.S. News (Oct. 26, 2021, 6:00 PM), https://www.usnews.com/news/politics/articles/2021-10-26/louisiana-to-get-595m-federal-disaster-aid-for-laura-delta [https://perma.cc/3AVC-SLTT].

[5] Blake Peterson, Following Hurricane Ida, Another Homeowners Insurer Goes Belly-up in Louisiana. Here’s Which One., The Advoc. (Jan 21, 2022), https://www.theadvocate.com/baton_rouge/news/politics/article_7f3b278a-7ae9-11ec-8c90-7f74fa011944.html [https://perma.cc/TKY6-XGLN].

[6] Thanh Truong, Louisiana Homeowners Insurance Rates Might Rise 5%–10% After 2020 Hurricanes, WWL-TV (Nov. 6, 2020), https://www.nola.com/news/business/article_a05fbbce-2086-11eb-a8fa-939a7d0eac52.html [https://perma.cc/U7B4-W7CL].

[7] The NFIP was created through the National Flood Insurance Act of 1968, 42 U.S.C. § 4001.

[8] Mike Smith, Flood Insurance Premiums Are About to Rise Steeply for Thousands of Louisianans, The Advoc. (Feb. 5, 2022), https://www.theadvocate.com/baton_rouge/news/article_695638f4-8608-11ec-bbdf-0f71c130fc68.html [https://perma.cc/E2ZC-BY2J].

[9] John Frey, Place Your Bets: A New Means of Economic Activity in Louisiana through Sports Gambling, LLR Lagniappe, https://lawreview.law.lsu.edu/2021/04/22/place-your-bets-a-new-means-of-economic-activity-in-louisiana-through-sports-gambling/ (last visited Feb. 5, 2022) (citing Top 10 Poorest States in the U.S., Friends Committee on National Legislation (Oct. 5, 2020), https://www.fcnl.org/updates/2020-10/top-10-poorest-states-us) [https://perma.cc/6EXT-65LN].

[10] Climate Initiatives Task Force, supra note 3, at 15.

[11] Jeff Adelson, Louisiana Saw Fifth Highest Population Loss in U.S. in 2021, According to New Estimates, The Advoc. (Dec. 22, 2021), https://www.nola.com/news/politics/article_c9a00050-637b-11ec-a1a3-773fc5fa7af3.html [https://perma.cc/6PUV-SAAV].

[12] See generally Climate Initiatives Task Force, supra note 3.

[13] Coastal Protection and Restoration Authority, 2017 Coastal Master Plan Attachment E1: Flood Risk and Resilience Program Policy Recommendations 8 (2017), http://coastal.la.gov/wp-content/uploads/2017/04/Attachment-E1_FINAL_04.06.2017.pdf [https://perma.cc/HD7A-JBN6].

[14] John R. Nolon, Regulatory Takings and Property Rights Confront Sea Level Rise: How Do They Roll?, 21 Widener L.J. 735, 769 (2012).

[15] See La. Const. art. VI, §§ 5(E), 17; La. Rev. Stat. § 38:34 (2021).

[16] La. Const. art. I, § 4 (1974).

[17] La. Rev. Stat. § 33:107 (2021) (pertaining to municipal and parish planning commissions); but cf. id. § 33:135 (pertaining to regional planning commissions). Although regional planning commissions are supposed to make recommendations based on “the best available information concerning . . . climate . . . and other natural and environmental factors,” id. § 135, the role of a regional planning commission is merely advisory and thus subservient to a municipality or parish planning commission, id. § 137. Accordingly, the language found in the regional planning commission’s statute should likewise be enacted and enforced for municipal or parish planning commissions.

[18] See 44 C.F.R. § 60.3 (2021).

[19] 42 U.S.C. §§ 4101a, 4101b.

[20] Id. § 4022(a)(1).

[21] Scata, supra note 2, at 23 (FIRMs “are the primary source for determining the height of the 100-year flood. Yet, nearly two-thirds of these maps are either outdated or inaccurate, raising questions about their reliability to depict true flood vulnerability.”).

[22] See 44 C.F.R. § 59.1 (2021).

[23] Scata, supra note 2, at 21.

[24] Natural Resources Defense Council Ass’n of State Floodplain Managers, Inc., Petition Requesting That the Federal Emergency Management Agency Amend Its Regulations Implementing the National Flood Insurance Program 2 (Jan. 5, 2021), https://www.nrdc.org/sites/default/files/petition-fema-rulemaking-nfip-20210105.pdf [https://perma.cc/3A8D-3VQF].

[25] See La. Civ. Code art. 667 (2021); see also id. arts. 655–56.

[26] Id. art. 2315.

[27] U.S. Const. amend. 5; La. Const. art. I, § 4 (1974).

[28] See La. Civ. Code arts. 655–56, 667, 2315.

[29] See generally Gleason v. Nuco, Inc., 774 So. 2d 1240 (La. Ct. App. 1st Cir. 2000); Fossier v. Jefferson Par., 985 So. 2d 255 (La. Ct. App. 5th Cir. 2008); Marino v. Par. of St. Charles, 27 So. 3d 926 (La. Ct. App. 5th Cir. 2009); Accardo v. Chenier Prop. Partners, LLC, No. 2011-0153, 2011 WL 2420183 (La. Ct. App. 1st Cir. June 15, 2011); Kemper v. Don Coleman, Jr., Builder, Inc., 746 So. 2d 11 (La. Ct. App. 2d Cir. 1999).

[30] Gleason, 774 So. 2d at 1242.

[31] Id.

[32] La. Rev. Stat. § 9:2798.1(C)(2) (2021).

[33] Holzenthal v. Sewerage & Water Bd. Of New Orleans, 950 So. 2d 55, 70 (La. Ct. App. 4th Cir. 2007).

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id. at 79.

[39] Jon Kusler, Flood Risk in the Courts: Reducing Government Liability While Encouraging Government Responsibility 5 (Oct. 24, 2011), http://www.asfpmfoundation.org/ace-images/pdf_ppt/ASFPM_Foundation_Flo
od_Risk_in_the_Courts.pdf?pagename=pdf_ppt/ASFPM_Foundation_Flood_Risk_in_the_Courts.pdf [https://perma.cc/W8UX-HCVE].

[40] United Nations International Strategy for Disaster Reduction, Terminology: Basic Terms of Disaster Risk Reduction, https://www.unisdr.org/files/26462_8.annex2andacronyms.pdf (last visited Feb. 7, 2022) [https://perma.cc/6HJY-AW7T].

[41] See, e.g., Town of Duck, N.C., Code of Ordinances ch. 152, § 01–04.

[42] Id. § 152.01(D).

[43] See generally id.

[44] Id. § 152.03(C)(2)–(4).

[45] See generally, Kyle “Chip” R. Kline, Jr., Introduction, in Climate Initiatives Task Force, supra note 3.

[46] Jared Brown, Cong. Rsch. Serv., RR44593, Introduction to the National Flood Insurance Program (NFIP) 13 (2021), https://sgp.fas.org/crs/homesec/R44593.pdf [https://perma.cc/D3DE-XDUD].

[47] See 44 C.F.R. § 59.1 (2021) (defining “substantial damage” as damage greater than or equal to 50% of the damaged home’s fair market value).

[48] Brown, supra note 46, at 13.

[49] 44 C.F.R. § 59.1 (2021).

[50] See F.E.M.A., Floodway Analysis and Mapping 8 (2020), https://www.fema.gov/sites/default/files/documents/fema_floodway-analysis-and-mapping.pdf [https://perma.cc/UN85-CLQ8].

[51] 44 C.F.R. § 59.1 (2021).

[52] See Natural Resources Defense Council Ass’n of State Floodplain Managers, Inc., supra note 24, at 16.

[53] See id.

[54] Id. at 22–23.

[55] Id. at 21–22 (citing F.E.M.A., Building Codes Save: A Nationwide Study: Losses Avoided as a Result of Adopting Hazard-Resistant Building Codes 4–24 (2020)).

[56] F.E.M.A., National Flood Insurance Program Community Rating System Coordinator’s Manual 110–15 (2017), https://www.fema.gov/sites/default/files/documents/fema_community-rating-system_coordinators-manual_2017.pdf [https://perma.cc/H24M-TA86].

[57] Nat’l Wildlife Fed’n v. FEMA, 345 F. Supp. 2d 1151, 1156 (W.D. Wash. 2004).

[58] See generally Cmty. Rating Assessment, Jefferson Par. 10, https://s3.amazonaws.com/lasafe/Final+Adaptation+Strategies/Jefferson+Parish+Final+CRS+Report.pdf [https://perma.cc/874E-GN32].

[59] Id.

[60] News Release, Updated Jefferson Parish CRS Reports, Jefferson Par., La. (Jan 2, 2020), https://www.jeffparish.net/press-releases/updated-jefferson-parish-crs-reports/01-02-yyyy [https://perma.cc/QJ75-KL8H]; see Jefferson Par., LA, Code of Ordinances ch. 14, art. VI, §§ 2.1–2.4.

[61] F.E.M.A., Top 50 National Flood Insurance Program (NFIP) Policy Count Communities and Community Rating System (CRS) Participation (Oct. 1, 2021), https://crsresources.org/files/100/maps/states/louisiana_crs_map_
october_2021.pdf [https://perma.cc/74Y7-R36C].

[62] Flood Safe Home, Freeboard Project, https://floodsafehome.lsu.edu/freeboardproject (last visited Feb. 10, 2022) [https://perma.cc/H85H-K5NG].

[63] Id.

[64] La. Admin. Code, tit. XVII, pt. I, § 101.

[65] Flood Safe Home, Freeboard Project, https://floodsafehome.lsu.edu/freeboardproject (last visited Feb. 10, 2022) [https://perma.cc/H85H-K5NG].

[66] See, e.g., Ascension Par., La., Code of Ordinances ch. 9, art. I, § 5.

[67] State ex rel. Maple Area Residents, Inc. v. Board of Zoning Adjustments, 365 So. 2d 891, 894 (La. Ct. App. 4th Cir. 1978).

[68] F.E.M.A. & La. Dep’t of Transp. & Dev., Louisiana Floodplain Management Desk Reference 378 (2008), http://www.dotd.la.gov/Inside_La
DOTD/Divisions/Engineering/Public_Works/NFIP/Misc%20Documents/2008_Desk_Ref.pdf [https://perma.cc/8MK6-3ZWX].

[69] See Gardner v. City of Harahan, 504 So. 2d 1107, 1110 (La. Ct. App. 5th Cir. 1987), but see State ex rel. Maple Area Residents, Inc., 365 So. 2d at 894.

[70] For an assortment of resources pertaining to No Adverse Impact floodplain management, see No Adverse Impact Floodplain Management, Ass’n of State Floodplain Managers, https://www.floods.org/resource-center/association-of-state-floodplain-managers-nai-no-adverse-impact-floodplain-management/ (last visited Feb 7, 2022) [https://perma.cc/EYM7-VYRD].

[71] F.E.M.A. & La. Dep’t of Transp. & Dev., supra note 68, p. 378.

[72] Gardner, 504 So. 2d at 1109.

[73] See generally Inv. Mgmt. Servs., Inc. v. Village of Folsom, 808 So. 2d 597, 604 (La. Ct. App. 1st Cir. 2001); Ellsworth v. City of New Orleans, 120 So. 3d 897, 902 (La. Ct. App. 4th Cir. 2013).

[74] F.E.M.A. & La. Dep’t of Transp. & Dev., supra note 68, p. 379.

[75] See generally Klineburger v. Wash. State Dept. of Ecology, 4 Wash. App. 2d 1077 (Wash. Ct. App. 2018).

[76] U.S. Const. amend. 5; La. Const. art. I, § 4.

[77] Honex Enterprises, Inc. v. City of Westwego, 833 So. 2d 1234 (La. Ct. App. 5th Cir. 2002).

[78] Faulk v. Union Pacific R.R. Co, 172 So. 3d 1034, 1056 (La. 2015).

[79] Id. at 1057.

[80] See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978); Faulk, 172 So. 3d at 1057.

[81] Robert v. State, 327 So. 3d 546, 560 (La. Ct. App. 4th Cir. 2021) (quoting Annison v. Hoover, 517 So. 2d 420, 422 (La. Ct. App. 1st Cir. 1987)).

[82] Robert, 327 So. 3d at 560 (quoting Annison, 517 So. 2d at 423).

[83] Id. at 561.

[84] Id. (quoting Major v. Pointe Coupee Par. Police Jury, 978 So. 2d 952, 957 (La. Ct. App. 1st Cir. 2007)) (emphasis added).

[85] New Orleans Pub. Serv. v. City of New Orleans, 281 U.S. 682, 687 (1930).

[86] F.E.M.A., supra note 50, at 7.

[87] Id.

[88] Id.

[89] Id.

[90] Id.

[91] Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029–30 (1992).

[92] See La. Civ. Code arts. 655, 656, 667 (2021).

[93] Christopher Serkin, Passive Takings, 113 Mich. L. Rev. 345, 396 (2014) (quoting Lucas, 505 U.S. at 1029–30).

[94] La. Civ. Code art. 667 (2021).

[95] Id. arts. 655–56.