By Mitchell A. Chester, Esq.

The latest projections of anticipated sea level rise (SLR) in Southeastern Florida offer a stark and compelling reminder that commercial and residential adaptation planning should be a priority concern for developers, building and unit owners and operators, businesses and even tenants.

In October, 2015, the Southeast Florida Regional Climate Change Compact Sea Level Rise Work Group released a document which projects by the year 2030, sea level rise in the region can increase 6 to 10 inches (above 1992 mean sea level) by 2030, just a mere 14 years away. That’s only about half way through a 30 year mortgage. By 2060, the increase above 1992 levels is anticipated to be, based upon present peer-reviewed scientific projections, 34 inches.

To put that in to another context, according to the Work Group, between 1992 and 2015, based upon NASA satellite measurements, the ocean in this part of the planet has heightened by almost 3 inches. That is a significant rise in very short period of time.

As SLR science evaluates and warns of complex dynamic factors such as thermal expansion of ocean water, changing oceanic currents, as well as melting rates of ice sheets and glaciers, society needs to responsibly plan for and adapt to the reality of climate change by developing planning and operational tools which will extend the life of vulnerable areas. This includes preparing existing and planned commercial and residential structures on threatened properties.

An initial effort to plan for such adaptation was created by the Florida Legislature in 2011. Tallahassee adopted the Community Planning Act, which currently provides for “Adaptation Action Areas” (“AAA’s). One of the few actions taken by state lawmakers to address SLR concerns to date, Section 163.3164 (1) of the Florida Statutes defines AAA’s as “a designation in the coastal management element of a local government’s comprehensive plan which identifies one or more areas that experience coastal flooding due to extreme high tides and storm surge, and that are vulnerable to the related impacts of rising sea levels for the purpose of prioritizing funding for infrastructure needs and adaptation planning.”

Without understanding if there is adequate public infrastructure in specific areas, such as resilient water treatment facilities, storm drain systems, roads and bridges, developers and other business stakeholders may make costly and risky decisions to build or upgrade facilities which will be adversely and perhaps prematurely impacted by the verified threat of rising seas.

The failure to thoroughly understand the menace ocean dynamics presents to specific construction projects can ultimately lead to negligence and errors and omissions lawsuits against proponents of the projects, land owners, architects, engineers and construction companies.

Pursuant to Florida Statute Section 163.3177 (6) (g) (10), local governments have the current option to develop AAA boundary areas. These AAA zones can vary in shape and size, and are carefully being implemented in certain areas, such as within portions of the City of Fort Lauderdale.

Inclusion within properly funded Adaptation Action Areas have the potential to increase the value and useful lives of properties to be built or which are being revitalized.

Local governmental discretion to create and manage AAA’s is a potentially powerful tool which can be employed as a part of Florida’s growth management laws. When established for a part of a municipality, AAA’s are designed to promote adaptation to SLR and other coastal hazards, including rising water tables, tidal flooding and storm surge. The AAA strategy allows for funding, on a priority basis, for government infrastructure improvements within the defined boundaries of the AAA.

In November, 2013, the South Florida Regional Planning Council (SFRPC) made it clear, “This is the time for all Floridians, the majority of whom live less than 60 miles from the Atlantic Ocean or Gulf of Mexico, to question the long-term effects of sea level rise on more than 1,350 miles of our coastline, 4,500 of our estuaries and bays, and over 6,700 square miles of our other coastal waters.”

The SFRPC highlighted high-stakes economic concerns. According to the report Adaptation Action Areas: Policy Options for Adaptive Planning for Rising Sea Levels, “Three-fourths of Florida’s population resides in coastal counties that generate 79 percent of the state’s total annual economy. These counties represent a built-environment and infrastructure whose replacement value in 2010 is $2.0 trillion and which by 2030 is estimated to be $3.0 trillion.”

As Southeastern Florida grows in population and with new projects, clearly, there’s a lot at stake. Those planning to build new condominiums, offices, facilities and other “built environment” developments cannot responsibly do so without an understanding of the meaning of AAA’s. Furthermore, even those desiring to re-build structures need to recognize the critical conceivable importance of AAA’s in their planning process.

As usual, money is key. This means corporate financial adaptation in real estate development is just as important as any other aspect of proposing, and building structures.

In certain coastal and nearby inland areas, fiscal consequences have already profoundly impacted shoreline and adjacent lands. Take for example, the City of Miami Beach, which is spending in excess of a reported $400 million to place pumping facilities throughout the city and the intense and costly focus on climate related issues within the City of Fort Lauderdale and surrounding communities.

Understanding the potential benefits of inclusion in coastal community adaptation action areas can provide is a part of a responsible private sector hazard exposure management strategy. The key is early, intelligent and probing due diligence.

For example, developers considering new coastal projects, on either side of Florida’s Coastal Construction Control Line, will want to know several key issues prior to proceeding with a project so they can financially adapt:

1. Is the property to be developed included within the boundary of an existing AAA? If not, is a AAA zone being considered for the subject property?
2. What public infrastructure projects are planned for the immediate area around the proposed construction site? Is the existing or planned governmental infrastructure adequate to serve the development’s anticipated life-span?
3. Is the AAA funded, and if so, what public projects within the zone are prioritized? How will early AAA projects affect the subject property? What funding mechanisms will power the AAA? For example, federal programs, increased taxes, a variation of development impact fees or bond issuances?
4. What future plans does the municipality have within the specific designated AAA boundaries? Is the AAA in the planning or operational stage?
5. What are the flooding risks for the developer’s site footprint over time?
6. What political challenges are there to the full and proper implementation of an effective AAA?
7. Will inclusion in an AAA zone enhance the property value of the project? One thought is that being situated within a AAA can potentially increase market value over a limited period of time.
8. What area protection measures are being considered or are already underway to mitigate against sea level rise?
9. What construction design requirements are being considered or mandated for the specific AAA? For example, is structure elevation required? To what extent? Will use of such tools help to reduce environmental exposure to the structure?
10. Is the long-term AAA goal one of retreat as opposed to adaptation? “Managed retreat” is defined by the SFRPC as, “Strategies that involve the actual removal of existing development, their possible relocation to other areas, and/or the prevention of future development in high-risk areas. Retreat strategies usually involve the acquisition of vulnerable land for public ownership, but may include other strategies such as transfer of development rights, purchase of development rights, and rolling or conservation easements.”
11. Is the AAA in an area where no development will be allowed in the near-term? Are restricted development rights on the horizon in the specific sector?
12. What new technologies and strategies can be used within the boundaries of the AAA to help lengthen the productive life of the zone?
13. Will buyers, renters, visitors and tenants be attracted to the property because of its inclusion in a AAA? In other words, can the zone have the same significance as a sea level rise equivalent of LEED-certified buildings?
14. What can the county and municipality tell you about any adverse consequences for building and developing in a specific AAA?

Peer-reviewed science is clear. Even if we eliminate all greenhouse gasses over the coming years, sea level rise will continue. That’s the blunt reality. Properly planned and funded, Adaptation Action Areas can extend, for some finite period of time, those lands which are most at risk to the ever encroaching ocean waters.

Understanding the sustainable benefits of Adaptation Action Areas is key to responsible planning and development in coastal regions. Much more needs to be done in Congress and at the State Legislature to help engender constructive adaptation to sea level rise, but responsible implementation of AAA’s, with a strong public-private partnership, is a good starting point.

Mitchell A. Chester, Esq. is a civil trial lawyer practicing in South Florida. He is a member of the American Board of Trial Advocates and an AV rated attorney. In practice for over 36 years, he is deeply concerned about developing legal and monetary adaptation strategies and solutions for communities threatened by swelling oceans. Mr. Chester is editor of RaisingFields.org (how agriculture can adapt to sea level rise and increased heat), SLRAmerica.org (which explores legal and practical financial issues pertaining to sea level rise), FinancialAdaptation.org (monetary tools for sea level rise), Sea Level Rise Radio.com (a podcast which discusses topics to examine key societal issues and opportunities presented by encroaching waters) and MySeaLevelRise.org (SLR issues). His focus is on people, including homeowners, renters and business owners as we jointly prepare for altered coastlines. He is one of the directors of the CLEO Institute, which educates government leaders and students in Southeastern Florida about sea level rise and climate issues. Mr. Chester has presented SLR and climate issues in Southeastern Florida including events at the University of Miami, Florida Atlantic University, Miami-Dade College, Vizcaya Museum and Gardens, the Arthur R. Marshall Foundation for the Everglades, the Environmental Coalition for Miami and the Beaches, the Coral Gables Museum, and other venues.