Columbia Venture, LLC v. Richland Cnty.

• Decision Date: 12 August 2015
• Docket Number: No. 27563.,Appellate Case No. 2013–001067.,27563.
• Court: South Carolina Supreme Court
• Parties: COLUMBIA VENTURE, LLC, Appellant, v. RICHLAND COUNTY, Respondent.

413 S.C. 423

776 S.E.2d 900

COLUMBIA VENTURE, LLC, Appellant

v.RICHLAND COUNTY, Respondent.

Appellate Case No. 2013–001067.

No. 27563.

Supreme Court of South Carolina.

Heard Nov. 18, 2014.

Decided Aug. 12, 2015.

Rehearing Denied Oct. 9, 2015.

Manton M. Grier, James Y. Becker, and Elizabeth Halligan Black, all of Haynsworth Sinkler Boyd, PA, of Columbia, for appellant.

M. McMullen Taylor, of Mullen Taylor, LLC, of Columbia, Pope D. Johnson, III, of Johnson & Barnette, LLP, of Columbia, and John D. Echeverria, of South Royalton, Vermont, for respondent.

John S. Nichols, of Bluestein Nichols Thompson and Delgado, of Columbia, for Amicus Curiae, The Association of State Floodplain Managers, Inc.; Robert E. Lyon, Jr., John K. DeLoache, Alexander White Smith and James Ferguson Knox, all of Columbia, for Amicus Curiae, South Carolina Association of Counties.

Opinion

Justice KITTREDGE.

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) (requiring FEMA to assess the need to revise flood maps every five years). 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. We affirm.

I.

To reduce the losses caused by flood damage, to create a unified national program for floodplain management, and to increase the availability of affordable flood insurance, Congress enacted the National Flood Insurance Act of 1968, through which it established the National Flood Insurance Program (NFIP). 42 U.S.C. §§ 4001 –4131. Under the NFIP, state and local governments must “make appropriate land use adjustments to constrict the development of land which is exposed to flood damage and minimize damage caused by flood losses,” and “guide the development of proposed future construction, where practicable, away from locations which are threatened by flood hazards.” Id. § 4001(e). Although local communities are not required to participate in the NFIP, no purchaser or owner of property located within a non-participating community is eligible for federal lending, flood insurance, or federal disaster relief. See id. §§ 4022(a), 4106. Richland County has participated in the NFIP since 1981.

FEMA is the federal agency responsible for implementing the NFIP and for making scientific and technical determinations to identify flood hazards for a given area. 42 U.S.C. § 4101(e–f). The basis for most of FEMA's mapping and regulation is the “base flood” or “100–year flood,” which has a one percent chance of occurring in any particular year.¹ 44 C.F.R. § 59.1. Based on its scientific studies regarding the elevation of a base flood, FEMA issues a Flood Insurance Rate Map (“FIRM” or “flood map”), which identifies and delineates flood hazards within a community.² Id. Communities are required to adopt the FIRMs and to restrict development in those flood hazard areas.³ 42 U.S.C. § 4102(c) ; 44 C.F.R. § 60.3. A local community's floodplain land-use controls must meet FEMA's minimum requirements, but FEMA encourages communities to impose more restrictive regulations. 44 C.F.R. § 60.1(d). In one important aspect, Richland County's regulations are more restrictive than the FEMA minimum in that Richland County, by ordinance, prohibits construction in a floodway.

Flood hazard areas are divided into two parts, called the “regulatory floodway” and the “flood fringe,” which are referred to collectively as the “floodplain.” In conducting its flood studies, FEMA identifies the area adjacent to a river or stream that is subject to dangerously high flood levels and rushing water during a flood and within which the presence of development would increase the danger posed by flood conditions. This area, which poses the greatest flood risk, is known as the regulatory floodway. 44 C.F.R. § 59.1. The remainder of the floodplain area is the flood fringe, which is expected to be under water during a 100–year flood but within which floodwaters are expected to be comparatively more shallow and slow-moving. Richland County is comprised of 487,600 acres of land, of which 16,516 acres are designated as regulatory floodways.

Within a regulatory floodway, FEMA requires that a community must, at a minimum:

[P]rohibit encroachments, including fill, new construction, substantial improvements, and other development within the adopted regulatory floodway unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment would not result in any increase in flood levels within the community during the occurrence of the base flood discharge.

44 C.F.R. § 60.3(d)(3) (emphasis added). This is commonly referred to as the “no-rise” standard.

As noted, Richland County's restrictions on encroachments within a regulatory floodway are more restrictive than the FEMA minimum.⁴ Under the floodway provision of the County's stormwater management ordinance in place when Columbia Venture purchased the property, “no levees, dikes, fill materials, structures or obstructions that will impede the free flow of water during times of flood will be permitted in the regulatory floodway.” Richland County, S.C., Code § 8–62(h) (1994). This prohibition against impeding the free flow of floodwater, or the “no-impede” standard, essentially prohibits construction in a floodway.⁵ By contrast, areas outside the regulatory floodway but still within the fringes of the floodplain may be developed, so long as new structures are sufficiently elevated and flood-proofed. Id. § 26–73.5(2) (1999). Thus, FEMA's determination of whether an area of land is within a regulatory floodway (versus within the larger floodplain) essentially determines whether development will be permitted.⁶

Once FEMA completes its scientific studies and prepares a revised flood map, the new maps are issued as preliminary documents for review by the affected community and the public. 42 U.S.C. § 4104(a). The revised flood maps do not become final until federal statutory notice and administrative appeal periods have passed.⁷ However, under certain circumstances (that apply in this case), communities are directed to use the preliminary revised flood maps for the purposes of floodplain regulation. Specifically, federal guidance provides that if a preliminary revised flood map widens a floodway or shows higher base flood elevations than the current final flood map, then the preliminary revised map should be used for regulatory and permitting purposes.

Aside from successfully appealing the scientific or technical basis for FEMA's floodplain designations, a floodplain designation may be removed if a landowner constructs a certified levee, thereby allowing the area protected by a certified levee to no longer be considered part of the floodway or floodplain. 44 C.F.R. § 65.10. For a levee to be certified, it must meet FEMA's design, stability, and orientation standards, and a local NFIP community must agree to assume responsibility for maintaining the levee. 44 C.F.R. § 65.10(c–d). Although FEMA regulations require that levees be designed to withstand a 100–year flood, Richland County's ordinances are stricter and require that levees must provide protection from a 500year flood⁸ plus three feet of freeboard. Richland County, S.C., Code § 8–62(g) (1994).

Prior to undertaking any levee upgrades necessary to acquire FEMA certification, property owners may submit proposed design and construction plans, along with supporting scientific data, for FEMA's review and advance comment as to whether such plans are sufficient to obtain levee certification. 44 C.F.R. § 65.5. The scientific data required for FEMA to consider a proposed project involves extensive hydraulic and hydrologic engineering analysis. Id. § 65.6. After a levee construction project is approved and completed, FEMA then revises its flood map to reflect the protection provided by the certified levee and removes the floodplain designation through a Letter of Map Revision (LOMR). Id. § 65.10

We turn now to the facts of this case.

II.

This case involves 4,461 acres of land along the eastern bank of the Congaree River in Richland County. The property is located just a few miles from the City of Columbia, near Interstate 77, Heathwood Hall Episcopal School, and the City of Columbia's sewer treatment plant. For decades, the property was owned by the late Burwell Manning and was used for farming and recreational purposes.⁹

In order to protect the property from flooding, in the early 1960s, Manning constructed a system of levees extending for over twenty miles along the banks of the Congaree River and Gills Creek, which runs through the property. These agricultural levees were approximately twenty feet tall by forty-five feet wide and were constructed under the supervision of Manning and a registered surveyor using an Army Corps of Engineers' levee construction manual and guidance from the U.S. Department of Agriculture. At the time the levees were constructed, no permitting process or levee design and construction regulations existed. Although the immediate purpose of the levees was to protect his crops, Manning ultimately envisioned large-scale development on the property, and he knew that sufficient levees would be required to protect any future development.

Following completion of the levees, Manning sold approximately 120 acres to...