Posted by: Patricia Salkin | November 12, 2015

SC Supreme Court Finds County’s Restrictions Did Not Amount to a Categorical or Regulatory Taking of Property

Appellant Columbia Venture, LLC, purchased 4,461 acres of land along the eastern bank of the Congaree River in Richland County, intending to develop the property. Columbia Venture knew at the time of the purchase that the Federal Emergency Management Agency (FEMA) was in the process of revising the area flood maps and designating most of the property as lying within a regulatory floodway. See 42 U.S.C. § 4101(e–f). Pursuant to federal law, development is generally not permitted in a regulatory floodway. When Columbia Venture’s efforts to remove the floodway designation were unsuccessful, Columbia Venture sued Richland County, alleging an unconstitutional taking. By consent, the case was referred to a special referee, who after numerous hearings and a multi-week trial dismissed the case and entered judgment for Richland County.

Columbia Venture first argued the County’s adoption of the revised FEMA flood maps is tantamount to the County taking a flowage easement upon Columbia Venture’s property for which it is entitled to just compensation under the Takings Clause. For flooding to amount to a taking, there must be a causal connection between the challenged government act and the increased flooding. In addition to the requirement of a causal connection, a compensable taking occurs only where a claimant shows an actual increase in the frequency or severity of flooding. Here, however, the County’s actions in adopting FEMA’s revised flood maps do not, in any way, increase the flood hazard to which Columbia Venture’s property has historically been exposed.

In addressing the regulatory taking claim, the court balanced: the extent to which the regulation has interfered with the property owner’s reasonable investment-backed expectations; the economic impact of the regulation on the claimant; and the character of the governmental action at issue. The investment-backed expectation factor correctly went against Columbia Venture since it did not know whether Richland County would ultimately accept responsibility for maintenance or have the financial resources in hand to undertake levee construction. The court next considered the character of the County’s floodplain development restrictions, and found the important public purposes of mitigating the social and economic costs of flooding that are served by the County’s ordinances were substantial and legitimate. Moreover, the County’s restriction of floodway development benefits all owners of floodplain property within the County by reducing general flood hazards and allowing access to flood insurance under the NFIP. Accordingly, because the court found no taking occurred, the decision of the Special Referee was affirmed.

Columbia Venture, LLC v Richland County, 413 S.C. 423 (SC 10/9/2015)

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