Impediment to Action: The Specter of Regulatory Takings

Mon. 2:00-3:30 p.m., Interlocken B

In November 2011, the Colorado Water Conservation Board adopted significantly more stringent statewide floodplain regulations. Despite two years of CWCB staff preparation, including a widely respected public engagement process and testimony by a national legal expert supporting the board's need to act, a number of private interests and local government officials continued to assert that the new rules so restricted private landowners' use of their property as to be an unlawful uncompensated taking. While some local government lawyers conceded that implementing the regulations might not be an actual legal taking, they would still advise their agencies against such regulatory actions and likely settle landowners' takings claims without a trial. Arguably, these assertions almost derailed the CWCB's rulemaking vote.

This pattern of behavior has been referred to as part of a "developers' toolkit" used to scare governments away from regulating development in dangerous areas. Panelists will discuss current takings cases—many of which are disputes about beachfront development—and how takings law applies to hazard mitigation activities. They will also discuss how those legal theories played out in the reality of the CWCB regulation process, and whether any lessons have been learned about how to overcome the specter of takings claims.

Tom Browning, Moderator
Colorado Water Conservation Board

Kevin Houck, Panelist
Colorado Water Conservation Board

Edward Thomas, Panelist
Michael Baker Corporation

Michael Hart, Panelist
Hart Environmental