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C.WildfiresWildfires pose a significant threat in much of the southwestern and western portions of the country. Land that once was sparsely populated is now filled with residential development and second homes. Fires that formerly burned only forests now threaten homes built on the same ground. In Texas, within the first five days of 2006, over 190,000 acres were burned by wildfires, which is more acreage than was burned in all of 2005. Texas Governor Rick Perry declared a state disaster on December 27, 2005 and called in the National Guard to assist with firefighting. Colorado has also been ravaged by wildfires and grassfires, prompting Colorado Governor Bill Owens to declare a statewide ban on open fires on all state-owned land below 8,000 feet, and to urge county commissioners to consider similar bans.225 Oklahoma also has suffered from a series of wildfires, with over 380,000 acres burned since November 2005.226 California has had a succession of devastating wildfires, prompting it to enact a variety of fire risk minimizing zoning restrictions and building standards. Zoning restrictions. The California Department of Forestry and Fire Protection estimates that over 7.2 million California homes are located in the three highest fire threat level areas. More than six million of those homes are located in urban areas.227 California law requires all counties to address fire safety standards in their general plan, including evacuation routes, peak load water supplies, minimum road widths, and clearances around structures.228 Counties are required to submit any revisions to their general plan safety element to the California Board of Forestry for review and comment.229 Counties must adopt any comments made by the Board, unless they adopt findings stating the reasons why revisions are unnecessary.230 California law requires the State Fire Marshal to identify areas that are at greater risk for life loss and destruction of property from fire, which are classified as a “Very High Fire Hazard Severity Zones.”231 Property owners and tenants with occupied structures in those areas are required to comply with certain fire safety regulations set forth in California Gov. Code Section 51182, which, among other things, requires them to maintain appropriate fuel breaks, clear the structure and its roof from flammable vegetation, and to remove tree branches within ten feet from a chimney.232 Local authorities must impose these land use requirements on their residents or demonstrate that existing local fire regulations “meet or exceed” the statute.233 Los Angeles City adopted an ordinance regulating the construction of single family dwellings in hillside areas, including fire prone areas.234 The ordinance requires the entire building to be sprinklered for: (1) new construction of a dwelling, or detached accessory building; (2) an addition of 50% or more to an existing building or accessory building; and (3) major remodeling of a dwelling that fronts onto a substandard hillside street or is located more than two miles from a Fire Department truck company or 1.5 miles from an Fire Department engine company.235
Many local governments have established regulations exceeding the model ordinance. Marin County, for example, requires that all new roofing and reroofing be constructed with material with a “Class A” rating, the highest possible rating238 Some municipalities, like Stockton and Menlo Park, require the installation of automatic sprinklers in basements.239 Menlo Park’s fire ordinance, which caused quite a stir in the development community, requires automatic sprinklers in all new buildings over 1,000 square feet and substantial improvements to structures over 2,500 square feet. Nationwide, local governments have enacted stronger fire protection ordinances. For example, Colorado recently enacted an ordinance modeled after the “International Urban-Wildland Interface Code,” which was drafted after large wildfires in California. The ordinance requires that any new proposed development demonstrate that it has a sufficient emergency water supply available to fight wildfires. This requirement could cost some homeowners up to $200,000 dollars and has sparked considerable debate in Colorado. One homeowner who tried to build a 9,000 square foot home was informed that he would have to construct a 45,000 gallon-cistern to comply with the ordinance. Upon protest, he was informed that in lieu of the cistern, he could pay a $20,000 dollar “donation” to the fire department to provide firefighting equipment, water supplies, and the maintenance and upkeep for the area. Fire districts across Southern California, Colorado, Utah and Pennsylvania are considering a similar requirements.
Louisiana Revised Statutes §29:724 “A. The governor is responsible for meeting the dangers to the state and people presented by emergencies or disasters, and in order to effectuate the provisions of this Chapter, the governor may issue executive orders, proclamations, and regulations and amend or rescind them. Executive orders, proclamations, and regulations so issued shall have the force and effect of law. ....
D. In addition to any other powers conferred upon the governor by law, he may do any or all of the following: (1) Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency. (2) Utilize all available resources of the state government and of each political subdivision of the state as reasonably necessary to cope with the disaster or emergency. (3) Transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services. (4) Subject to any applicable requirements for compensation, commandeer or utilize any private property if he finds this necessary to cope with the disaster or emergency. (5) Direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state if he deems this action necessary for the preservation of life or other disaster mitigation, response, or recovery. (6) Prescribe routes, modes of transportation, and destination in connection with evacuation. (7) Control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein. (8) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles. (9) Make provision for the availability and use of temporary emergency housing.” 1 The author wishes to thank the ACREL members who made wise suggestions and provided portions of this paper and invaluable materials, citations and suggestions, particularly panel members Craig S. Biesterfeld, Leopold Z. Sher and Susan G. Talley and other ACREL Land Use/Environmental Committee members Vicki R. Harding, and Stephen R. Romine. Special thanks goes to ACREL member Steve Waters, who edited this paper. Krista Kim of the San Francisco office of Reed Smith LLP drafted portions of this paper, researched many of the topics and contributed many excellent suggestions. They all deserve great credit, but all of the opinions, mistakes, infelicitous remarks and misjudgments in this paper are the responsibility of the author alone. 2 Mike Bell of La Conchita, Calif., a community living under unstable cliffs and probably located within an area which would be affected by a large tsunami, as quoted in the San Francisco Chronicle, January 9, 2006, p. B5. 3 http://www.fema.gov/library/drcys.shtm. 4 Mark Schleifstein, “Katrina Weaker Than Thought,” New Orleans Times-Picayune, December 21, 2005. 5 Allen Johnson, “Debris Removal Piling Up; Expected to Take Years,” Dallas Morning News, December 21, 2005. 6 The Mississippi River Basin, which drains 41% of the land mass of the continental United States, consists of two segments: the upper Mississippi River Basin which extends from Lake Itasca in Minnesota, south to the confluence of the Mississippi River with the Ohio River at Thebes, Illinois; and the lower Mississippi River Basin, extending from the confluence of the Mississippi River and the Ohio River to the Gulf of Mexico. 7 See, Lee W. Larson, “The Great Flood of 1993,” available at http://www.nwrfc.noaa.gov/floods/papers/ oh_2/great.htm, and “Mississippi River Flood: 1993”, lecture, University of Akron, available at http://lists.uakron.edu/geology/natscigeo/lectures/streams/miss_flood.htm. 8 FEMA, Report to Secretary of Homeland Security, California Fires Coordination Group, (Feb. 13, 2004), available at http://www.fema.gov/pdf/library/draft_cfcg_report_0204.pdf. 9 FEMA, Report to Secretary of Homeland Security, California Fires Coordination Group, (Feb. 13, 2004), available at http://www.fema.gov/pdf/library/draft_cfcg_report_0204.pdf. 10 Regarding Northridge, see U.S. Geologic Survey, Northridge Earthquake Research Products, http://pasadena.wr.usgs.gov/north and regarding Loma Prieta, see http://seismo.berkeley.edu/faq/1989_0.html. 11 http://quake.wr.usgs.gov/prepare/factsheets/NewMadrid/. 12 http://neic.usgs.gov/neis/eq_depot/usa/1811-1812.html; http://neic.usgs.gov/neis/states/missouri/1811.html. 13 http://neic.usgs.gov/neis/eq_depot/usa/1964_03_28.html; http://apsn.awcable.com/1064.htm. 14 42 U.S.C. §§ 5121 et seq. "It is the Intent of Congress, by this chapter to provide an orderly and continuing means of assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damage which result from such disasters by— (1) revising and broadening the scope of existing disaster relief programs; (2) encouraging the development of comprehensive disaster preparedness and assistance plans, programs, capabilities, and organizations by the States and by local governments; (3) achieving greater coordination and responsiveness of disaster preparedness and relief programs; (4) encouraging individuals, States, and local governments to protect themselves by obtaining insurance coverage to supplement or replace governmental assistance; (5) encouraging hazard mitigation measures to reduce losses from disasters, including development of land use and construction regulations; and (6) providing Federal assistance programs for both public and private losses sustained in disasters.” 42 U.S.C. § 5121(b). 15 Posse Comitatus Act, 18 U.S.C. § 1385: "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both." Note, this limitation does not apply to the Navy or the Marines. 16 10 U.S.C. §§ 331-335. 17 See Jennifer K. Elsea, “The Use of Federal Troops for Disaster Assistance: Legal Issues” (Sept. 16, 2005), Congressional Research Services Library of Congress, available at http://www.fas.org/sgp/crs/natsec/RS22266.pdf. 18 Under 10 U.S.C. §334, the President must first issue a proclamation ordering any insurgents to vacate and only may deploy federal troops if the insurgents fail to do so. 19 U.S. Dep’t of Defense, Military Assistance for Civil Disturbances, DoD Dir. 3025.12 § 4.2.2. (1994). Under MACDIS, the military can react “when sudden and unexpected civil disturbances (including civil disturbances incident to earthquake, fire, flood, or other such calamity endangering life) occur, if duly constituted local authorities are unable to control the situation and circumstances preclude obtaining prior authorization by the President.” Id. 20 32 C.F.R. § 185.4(d)(10). 21 Brig. Gen. Frederick Funston, U.S. Army, “How the Army Worked to Save San Francisco,” Cosmopolitan Magazine, July 1906, available at http://www.sfmuseum.org/1906/cosmo.html. For an extensive description of the military’s role, see U.S. Department of the Interior, National Park Service, Golden Gate National Recreation Area, Presidio of San Francisco, “The 1906 Earthquake and Fire”, at http://www.nps.gov/prsf/history/1906eq/index.htm. 22 42. U.S.C. § 5170b(c). 23 Louisiana Rev. Stat. §29:724. 24 See, e.g., Vernon’s Ann. Missouri Stat., Title V, § 44.100; New Jersey Stat. Ann. App. A:9-30- 9-63. 25 Mich. Comp. L. Ch. 30, § 30:405. 26 Cal. Gov’t. C. §§ 8550-8668. 27 But see, 54 Ops. Cal. Atty. Gen. 31 (1971). The suspension of the federal Davis-Bacon Act (40 U.S.C. § 276a et seq.) by the President does not suspend the California prevailing wage law (Cal. Labor C. §§ 1720 et seq.) and the Emergency Services Act does not authorize the Governor to suspend the prevailing wage law based on the conditions (rapid inflation) described in the proclamation of a natural emergency because the definition of “state of emergency” in the Emergency Services Act does not include those conditions. 28 Pub. Res. Code § 21060.3. See, e.g., Western Municipal Water District of Riverside County v. Superior Court of San Bernardino County, 187 Cal. App. 3d 1104, 232 Cal. Rptr. 359 (1987), in which the court held that a soil condition that would be dangerous in the event of an earthquake did not involve a clear and imminent danger justifying an exemption from the requirements of the California Environmental Quality Act, Cal. Pub. Res. C. § 2100 et seq. 29 42 U.S.C. § 5148. 30 28 U.S.C. § 1346(b)(1). 31 28 U.S.C. § 2680(a). 32 See, Am. Jur. 2nd, Federal Tort Claims Act § 127, and the cases cited. 33 Cal. Gov’t. C. § 8655. 34 Cal. Gov’t. C. § 8657. 35 Thousand Trails, Inc. v. California Reclamation District Number 17, 124 Cal. App. 4th 450, 21 Cal. Rptr. 3d 196 (2004). 36 Soto v. State of California¸ 556 Cal. App. 4th 196, 65 Cal. Rptr. 2d 11 (1997). 37 Farmers Ins., Exchange v. State of California¸ 175 Cal. App. 3d 494, 221 Cal. Rptr. 225 (1985). 38 Adkins v. State of California, 50 Cal. App. 4th 1802, 59 Cal. Rptr,. 2d 59 (1996). 39 Louisiana Rev. Stat. § 29:735; it excludes immunity for willful misconduct. An opinion of the Louisiana Attorney General confirmed that the immunity extended to Parish officials. La. Op. Atty. Gen. No. 99-72, April 6, 1999. 40 Mich. Comp. L. Ch. 30, Sec. 30:411(3). 41 The New Jersey tort claims act is N.J. Stat. Ann. § 2A-1, et seq. 42 N.J. Stat. Am. § 59:6-8. 43 See, e.g., Mich. Comp. L. § 30:406(6), N. J. Stat. Ann. App. A:9-51.7. 44 Cal. Gov’t. C. § 8572. 45 Cal. Gov’t. C. § 8652. 46 Vernon’s Ann. Missouri Stat., Title V, § 44.100. 47 Cal. Gov’t. C. § 8572. 48 Vernon’s Ann. Missouri Stat., Title V, § 44.100(1)(3(c)(a). 49 Report of Col. Charles Morris, U.S. Army, to the Acting Secretary of War, July 9, 1906, available at http://www.sfmuseum.org/1906/dynamite.html; U.S. Department of the Interior, National Park Service, Golden Gate National Recreation Area, Presidio of San Francisco, The 1906 Earthquake and Fire, “Firefighting and Dynamiting,” http://www.nps.gov/prsf/history/1906eq/firedyn.htm. 50 N. J. Stats. Ann. App. A:9-51.7 51 La. Rev. Stat. § 29:724(D)(4). 52 La. Const. art. I, § 4. 53 Avenal v. State of Louisiana, 886 So. 2d 1085, 1104 (La. 2004). 54 La. Civ. C. art. 477. See, e.g., La. Civil C. articles 667 and 668, providing that a landholder may not use his or her property so as to cause damage to his or her neighbors and must tolerate inconveniences from the lawful use of another neighbor's property. 55 Customer Co. v. City of Sacramento, 10 Cal.4th 368, 895 P.2d 900, 41 Cal. Rptr. 2d 658 (1995); (“Customer Co.”); House v. Los Angeles County Flood Control Dist., 25 Cal.2d 384, 153 P.2d 950 (1944) (“House”). 56 Thousand Trails, Inc. v. California Reclamation District Number 17, 124 Cal. App. 4th 450, 21 Cal. Rptr. 3d 196 (2004). 57 House, 25 Cal.2d at 389. See also Customer Co., 10 Cal.4th at 412 ("Recognizing that a broad interpretation of this doctrine of noncompensable loss would completely vitiate the constitutional requirement of just compensation ... the courts have narrowly circumscribed the types of emergency that will exempt the public entity from liability."). 58 House, 25 Cal.2d at 412. 59 See, e.g., Odello Bros. v. County of Monterey, 63 Cal.App.4th 778, 791, 73 Cal. Rptr. 2d 903 (1998) and cases cited. 60 House. 61 Odello Bros. v. County of Monterey, 63 Cal.App.4th 778, 73 Cal. Rptr. 2d 903 (1998). 62 “As Residents Returned, Fight Begins to Save Historic Homes”, New Orleans Times-Picayune, December 5, 2005. “New Orleans plans to raze 2,500 of worst-hit homes,” San Francisco Chronicle, December 25, 2005, page A22. 63 John Paxton, “San Francisco At Risk,” San Francisco Planning and Urban Research Association Newsletter, August, 2004, available at http://www.spur.org/documents/pdf/040801_article_01.pdf. 64 See, N. J. Stat. Ann. 2C:33-12.1 (abating nuisances); 20:3-1 (condemnation of buildings) and 20:3-16 (right of entry into private property before condemnation). 65 Gwen Filosa, “Razing of N.O. Homes is Blocked,” New Orleans Times-Picayune, January 7, 2006; Adam Nossiter, New Orleans Delays Razing Houses 2 Weeks,” New York Times, January 7, 2006, p. A8; Gwen Filosa and Gordon Russell, “City Must Tell Owners Before Razing,” New Orleans Times-Picayune, January 19, 2006. 66 “As Residents Return, Fight Begins to Save Historic Homes,” New Orleans Times-Picayune, December 5, 2005. 67 http://www.nationalgeographic.com/forcesofnature/interactive/index.html?section=h. 68 David W. Look and Dirk H. R. Spenneman, “Disaster Management for Cultural Properties,” U.S. Department of the Interior, National Park Service, Cultural Resource Management, Vol. 23, No. 6 (2000). 69 La. Const. Art. 6, § 17. 70 See, Ordinance No. 5992 M.C.S. (HDLC) and Ordinance No. 6699 M.C.S. (CBD HDLC). 71 See, Ordinance No. 18539 M.C.S., as amended. 72 Cal. Pub. Res. C. § 5028. 73 Cal. Pub. Res. C. § 21000 et seq. 74 Cal. Gov’t. C. §§ 8550-8668. 75 Cal Pub. Res. Code §§ 21080(b)(3), 21172. 76 N. J. Admin. C. 7:4-7;1 through 7:4-7.4. 77 “Evacuees of Hurricane Katrina Resettle Along a Racial Divide,” Los Angeles Times, December 12, 2005, page A1. 78 Biz New Orleans, www.bizneworleans.com, 11/30/05. 79 44 C.F.R. Part 206, particularly §§ 206.110 and 206.117. 80 Rebecca Mobray, “Hotels Facing Dilemma Over Evacuee Rooms,” New Orleans Times-Picayune, January 7, 2006. McWaters v. FEMA, Civ. No. 05-5488, December 12, 2005, See, Housing and Development Reporter, Vol. 34, No. 1, Jan. 1, 2006, p. 6. The “discretionary action” defense of 42 U.S.C. § 5148 is alleged to be overcome by the alleged requirement that FEMA continue to provide hotel housing until it processes 80,000 applications for Section 408 housing assistance, available for refugees for 18 months. 81 U.S. Department of Homeland Security, “List of Government Waivers and Dispensations Authorized for Hurricane Katrina Response,” as of October 6, 2005, available at http://www.dhs.gov/dhspublic/interapp/editorial/ editorial_0718.xml, and “List of Government Waivers and Dispensations Authorized for Hurricane Rita Response,” as of October 6, 2005, available at http://www.dhs.gov/dhspublic/display?theme=16&content=4868. 82 Louisiana Stat. Ann. § 29:724(D)(9). 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