Major disasters bring staggering costs in lives, injuries, and property damage. Hurricane Katrina alone left over 1,300 dead in Florida, Louisiana, and Mississippi, and caused property damage estimated to exceed $75 billion. Over 100,000 homes and apartments in New Orleans were flooded or damaged, with similar damage elsewhere in Louisiana and Mississippi. Extensive damage and injury were caused by the other four 2005 hurricanes. These disasters hold many lessons for real estate lawyers, both for disaster recovery and for preparations to minimize the effects of the next tragedy. This article discusses issues concerning housing evacuees, the federal flood insurance program’s effect on recovery, mitigation of a disaster’s effects with zoning, and other reconstruction matters.

Housing for Evacuees

Hurricane Katrina displaced hundreds of thousands of persons in Alabama, Louisiana, and Mississippi. Many evacuees stayed with friends and family, but tens of thousands were housed in hotels and subsidized rental apartments for months after Katrina. Federal, state, and local officials also provided trailers, recreational vehicles, and mobile homes as temporary housing. Local land use requirements and ordinances, however, often interfered with placement of temporary mobile housing units. See box, “Property Covenants Prevent the Housing of Katrina Victims,” on page 35.

The Federal Emergency Management Agency (FEMA) has authority under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121 et seq., to provide temporary housing units for evacuees in the form of travel trailers, recreational vehicles, and mobile homes. FEMA’s authority to provide mobile housing units is limited by local zoning ordinances. Under its regulations, sites on which temporary FEMA housing units may be situated must comply “with applicable State and local codes and ordinances.” 44 C.F.R. § 206.117(b)(ii)(C). This requirement, together with the unwillingness of many local governments to permit FEMA to place temporary housing within their jurisdictions, limited FEMA’s ability to provide temporary housing after Hurricane Katrina. Louisiana Governor Kathleen B. Blanco was unable to resolve the issue other than through persuasion. Louisiana statutes give its governor wide authority to take actions to provide temporary emergency housing but do not give the governor explicit authority to override local land use laws. La. Stat. Ann. § 29:724(D)(9).

A variety of news reports recounted opposition to locating “trailer parks” in local jurisdictions. At one point in December 2005, only eight of Louisiana’s 64 parishes had allowed FEMA to establish parks for manufactured homes and travel trailers in their jurisdictions free from significant restrictions, 32 others had refused permission altogether, and another 24 had set various restrictions. See FEMA Head Decries Local Roadblocks to Trailer Parks, N.O. City Bus., Dec. 16, 2005, available at www.neworleanscitybusiness.com/uptotheminute.cfm?recid=1721&refer=dailyupdate. An example of one such restriction was a parish that permitted only evacuated parish residents to live in a FEMA trailer park located in the parish. A St. Charles Parish ordinance forbade placement of mobile homes or modular housing, while permitting only travel trailers and recreational vehicles. Jefferson Parish residents were quoted as arguing that “compassion should not infringe on the rights and quality of life of residents whose homes were not ruined by Katrina.” A proposal that a 180-room hotel in Alexandria, Louisiana, be leased to FEMA to provide temporary housing for evacuees was blocked by unanimous action of the Alexandria City Council.

Opposition to temporary housing was not limited to suburban areas. Placing trailers in city parks and playgrounds was criticized by many New Orleans residents, particularly after plans were announced to place trailers in Annunciation Square Park in the Lower Garden District. A proposal to place 400 houses for police officers temporarily on a New Orleans golf course was rejected. Disputes over sites for temporary housing were resolved only after negotiations between Governor Blanco and New Orleans Mayor Ray Nagin.

FEMA presumably also would recognize limitations on temporary housing units imposed by private land use restrictions, such as recorded covenants, conditions, and restrictions, although the author has not found a regulation or reported case on this point. It seems unlikely that FEMA would place travel trailers or mobile homes in a subdivision over the objection of the homeowners’ association.

Local opposition to temporary housing contributed to the lack of housing for evacuees in and around New Orleans. One press account noted that as of December 16, 2005, FEMA had placed more than 16,000 travel trailers and mobile homes on sites in Louisiana, but had an additional 16,000 mobile homes and 15,000 travel trailers available for installation. Id.

The National Flood Insurance Program’s Effect on Reconstruction

Hurricane Katrina brought two kinds of devastation to New Orleans and the Gulf Coast. Coastal areas were hit by high winds just below Category 4 strength and by a storm surge that may have been nearly 40 feet high in some areas. Buildings were wiped away, leaving only foundations, and large casino barges were lifted hundreds of feet inland. In New Orleans, by contrast, most of the damage was caused by flooding after canal walls failed and levees were breached. The question of whether the hundreds of thousands of buildings damaged or destroyed by Katrina can be rebuilt still looms large, although Katrina occurred one year ago.

The National Flood Insurance Program (NFIP), 42 U.S.C. §§ 4001 et seq. and 44 C.F.R. parts 59–78, controls many aspects of reconstruction after Katrina. Most residences and commercial buildings in the affected areas must obtain flood insurance, but to do so many must comply with federal rules setting the elevation at which the foundation of the structure must be built. The required elevations, in turn, are affected by the extent, height, and quality of levees and other flood control structures protecting the area in question. Reconstruction and improvement of the New Orleans levee system are dependent on federal funding. These interrelated issues began to be resolved only in April 2006, after the extent of federal support for levee reconstruction became clear.

The NFIP has a complicated process for obtaining federal flood insurance. Under it, FEMA first determines areas that are prone to flooding. Second, FEMA regulations require that anyone obtaining a loan from a federally regulated financial institution secured by properties in such areas and anyone receiving federal assistance to purchase, build, or repair a property in such areas obtain flood insurance. Third, to qualify for flood insurance, the local community must adopt floodplain management regulations consistent with federal criteria designed to protect properties from flood damage.

FEMA begins the process of identifying and evaluating flood risks in an area by conducting a “Flood Insurance Study” to locate the “Base Flood Elevation” in the area, which is the elevation and area covered by flood waters that have a 1% chance of being equaled or exceeded in any given year. This elevation has become known as the elevation of the “100-year flood,” but that term is a misnomer, because such a flood actually could happen more frequently than once every hundred years. Before the study becomes final, it is subject to a statutory public comment and appeals period. For each area, FEMA then publishes a Flood Hazard Boundary Map and a Flood Insurance Rate Map, showing the final flood elevations in the area. For coastal areas, FEMA delineates areas that are subject to high-velocity wave action from storms or earthquakes. FEMA also has developed a process for amending current flood maps.

Communities can remove areas from the 100-year floodplain by building levees and other flood control structures that prevent floodwaters from reaching the area in question. For example, such structures were built in the St. Louis area after the 1993 Mississippi and Missouri River floods. Areas behind approved levees are no longer in the 100-year floodplain and the insurance and land use controls required by the NFIP are not required. 44 C.F.R. § 65.10.

Unless exempt from such requirements because of a FEMA-approved flood protection system, such as a levee, federal law requires the purchase of flood insurance for improvements constructed in a 100-year floodplain if the property secures a loan made by a federally regulated lending institution or if federal loans or grants were used to acquire, build, or improve the building. See 44 C.F.R. § 59.1 for a definition of “flood protection system.” Lenders are required to purchase flood insurance on behalf of borrowers who do not obtain flood insurance and charge the cost of the insurance to the borrower. Certain purchasers of mortgage loans in the secondary market, such as Fannie Mae and Freddie Mac, may not buy loans secured by properties in the 100-year floodplain unless the properties are covered by flood insurance.

Federal flood insurance is available in a community only if it has imposed building and land use controls on new construction, the “substantial” improvement of structures, and the repair of structures after “substantial damage.” “Substantial” improvement or damage means that the cost to improve or cost of restoration equals or exceeds 50% of the market value of the structure (excluding land value) before the damage or start of construction. The federal regulations have detailed requirements for local regulations implementing these standards. Among the most notable are those that forbid construction in certain parts of the floodplain to permit movement of flood water and that require buildings to be elevated throughout the 100-year floodplain. Elevation of structures can be done by raising the level of the site with fill or building a higher building so that the lowest inhabited floor is above the level of the 100-year floodplain. Coastal areas face additional requirements. Rather than using fill, structures must be elevated on pilings and columns, with the structure anchored to resist flotation, collapse, and lateral movement. Improvements in portions of the buildings below the base flood elevation must permit the passage of water during a flood. See 44 C.F.R. § 60.3(c).

Developers of nonresidential structures can choose either to elevate or to “dry floodproof” the building, which refers to designing the building so that below the base flood level the structure is watertight and the structural components have the capability of resisting hydrostatic and hydrodynamic loads and the effects of buoyancy.

As applied to the Gulf Coast and New Orleans, the NFIP rules have caused some confusion and fears of economic hardship. Many areas face the need to elevate single-family homes and other structures. In Mississippi, FEMA has prepared new proposed flood maps for the entire Gulf Coast, which, if finally adopted as proposed, will subject additional areas to the requirements of the NFIP. In Gulfport, Mississippi, for example, the number of structures within the 100-year floodplain will double. Because the maps are only “advisory” until FEMA confirms their accuracy, which could take up to a year, local officials must decide whether to adopt the new advisory maps now or wait until they become final, at which time they must require that new construction meet the NFIP standards or lose federal flood insurance. Several jurisdictions have permitted residents to rebuild. Those homeowners who do so in compliance with the current maps will be eligible for flood insurance, despite the risk of loss from the next hurricane.

Planning for the reconstruction of New Orleans is strongly affected by FEMA’s application of the NFIP rules and its determination of base flood elevations for the city, which will take into account Hurricanes Katrina and Rita and other events since the base flood elevations were set 35 years ago. FEMA’s determination, in turn, is affected by plans to rebuild or improve the levee system surrounding New Orleans and the surrounding area. FEMA expects to publish new “preliminary” flood maps for New Orleans and the surrounding parishes in late 2006 or 2007. On April 12, 2006, FEMA announced “Advisory Base Flood Elevations” for Orleans, Jefferson, and St. Bernard Parishes and portions of Plaquemines and St. Charles Parishes to provide interim guidance for reconstruction. See FEMA Provides Flood Recovery Guidance to Coastal Parishes of Louisiana to Support Rebuilding Efforts, Apr. 12, 2006, www.fema.gov/news/newrelease.fema?id=2509.

FEMA’s guidance addressed separately the areas protected by the Southern Louisiana levee system and those outside the levees. FEMA assumed that the majority of the levees would be restored and enhanced to withstand the 100-year flood and would be so certified. It advised that substantially damaged dwellings (and all new construction) should be elevated to the higher of the current base flood elevation or three feet above the surrounding grade levee. Areas outside the levees should be elevated to the current base flood elevation plus one to three feet, depending on the location of the property.

The practical effect of the FEMA guidance depends on local governmental action. Because the guidance is advisory, those homeowners who restore their homes need to elevate their properties only up to the existing base flood elevation unless the local jurisdiction adopts the more stringent requirements recommended by FEMA. Unless the FEMA suggestion is adopted for their jurisdiction as a building code requirement, homeowners need to elevate their homes only if required to meet the elevations in the old flood maps, and they may still get flood insurance, even if the base flood elevation is later set at a higher elevation. As of this writing, Louisiana jurisdictions had not determined whether to enact FEMA recommendations as mandatory requirements.

The effect on reconstruction in New Orleans of the FEMA announcement and the new flood maps when issued will vary with the topography of the city. Many of the older parts of the city were built on higher ground and suffered less damage from flooding. On the other hand, many areas of the city were built on lower-lying land and suffered significant damage. The probable effect of the announcement will be to spur reconstruction in the portions of the city built on higher ground.

Lessons from the 1993 Floods

The 1993 flooding of the Mississippi and Missouri Rivers and their tributaries caused extensive flooding in 10 states, including the St. Louis area, which is at the confluence of these two rivers. The flooding of the Missouri River caused a breach in the 100-year levee that protected suburban Chesterfield Valley, west of St. Louis, causing flood depths in this commercially developed area to reach 15 feet in some locations. In the years since the 1993 floods, these same areas of Chesterfield Valley are now the site of over $2.2 billion in new real estate development. One of these developments, described as the longest outdoor strip mall in America and featuring Sam’s Club, Wal-Mart, Target, and Home Depot stores, is the mile-long Chesterfield Commons. Additional commercial development is slated for this area. This development was made possible by the reconstruction and improvement of the breached 100-year levee into a new levee that is now designed to withstand a “500-year flood.”

The post-flood development in Chesterfield Valley occurred under a floodplain zoning ordinance that seems to comply with the FEMA requirements under the NFIP. The key point was reconstruction of levees. Although the floods caused the levee system protecting the Chesterfield Valley area to fail, in fact the flood waters reached elevations that would have overtopped the 100-year levee. Noting that 500-year levees and flood walls had successfully protected other floodplains in the St. Louis area, local officials decided to build the Chesterfield Valley levees to withstand a 500-year flood, or one with a one-in-500 probability of occurring in any calendar year. An area of approximately 4,600 acres was enclosed by levees running from the river bluffs to the Missouri River. The levee reconstruction effort began using funds generated by a tax increment financing district supported solely by incremental local sales taxes and property taxes. Subsequently, federal funds were secured to raise the levee level to the 500-year levee rating. The new levee improvements sparked extensive commercial and retail construction in this area, which is still being expanded. The success of the Chesterfield Commons project stimulated a desire by other nearby communities also having large tracts of land within the floodplains to undertake similar developments behind new, improved levees.

Construction of new levees protecting against a 500-year flood has been criticized by some as only adding to floods elsewhere along the river system and increasing the velocity of the flood waters along the improved levees . According to these critics, the floodplains are the natural, necessary relief valve for floods that are inevitable. By increasing the height of the levees and preventing flood waters from spreading out and dissipating over the larger floodplain area, the constricted passage of the flood waters through the levee systems will cause backups to occur and exacerbate upstream flooding. Further, by raising the height of the levees, the velocity of the flood waters being discharged downstream will increase, causing more dangerous conditions downstream. Although there is disagreement about the exact nature of the upstream and downstream effects of adding new levees or increasing the height of the existing levees, most knowledgeable observers agree that these effects do exist. There is general agreement that failure of the Chesterfield levee in 1993 relieved flooding pressure downstream along the city of St. Louis flood wall on the Mississippi River, and the failure of levees on the Illinois side of the Mississippi River, downstream from Hannibal, Missouri, and from St. Louis, appear to have been the events that finally caused the continually rising flood waters to abate before those cities’ levees and flood walls were about to be breached. Nevertheless, the example of economic development behind 500-year levees seems likely to lead to suggestions that the example be followed in and around New Orleans.

Flood Protection Through Zoning

FEMA’s regulations setting criteria for local floodplain management requirements note that its criteria are minimum standards and that a community may adopt more comprehensive floodplain management regulations. The Association of State Floodplain Managers (ASFPM) has proposed an approach called “no adverse impact flood plain management.” As described in a paper available on the ASFPM web site, “No Adverse Impact floodplain management is where the action of one property owner does not adversely impact the rights of other property owners, as measured by increased flood peaks, flood stage, flood velocity, and erosion and sedimentation,” unless the impact is mitigated in accordance with an approved community plan. See Association of State Floodplan Managers, No Adverse Impact Floodplan Management , Apr. 29, 2004, www.floods.org/NoAdverseImpact/whitepaper.asp.

The ASFPM paper notes that flood damages have continued to increase and now approach $6 billion annually, even though billions of dollars have been spent for structural flood control improvements such as levees, dams, and other measures. Development continues to occur within watersheds and floodplains, causing greater risk of damage to structures in and around floodplains. The paper claims that current national floodplain management standards allow floodwaters to be diverted to others, essential valley floodwater storage to be filled, and floodwater velocities to be changed, all with little or no regard for how these changes affect others in the floodplain and watershed. The result is to intensify damage potentials in the nation’s floodplains.

The solution suggested by the ASFPM is community adoption of floodplain management plans that require no adverse impact on others from development in a floodplain. Detailed suggestions also are available in a “toolkit” on the ASFPM web site.

ASFPM’s suggestions, if applied to existing communities devastated by storm surges and floods, mean that those communities could not be reconstructed. That conclusion appears to have led ASFPM to suggest that residences, and perhaps entire communities, should be relocated from a floodplain to higher and presumably safer ground, which was done in Illinois after the 1993 floods. The town of Valmeyer, Illinois, was moved from the floodplain of the Mississippi River, south of St. Louis. The town had been flooded three times in the early 20th century, but thereafter levees protected it until the floods of 1993, when it was flooded again. The community was relocated from the floodplain to a new site on the bluffs, about two miles to the east and 400 feet higher. It now has grown in population to 1,100 from its pre-flood population of 900. The relocation was assisted by the federal government, as part of its efforts to reduce claims under the NFIP. The same idea has been advanced for coastal communities in Cameron Parish in Southwestern Louisiana. The suggestion is that perhaps 4,000 persons in several towns and villages should be relocated to higher ground 15 or 20 miles inland. It also has been suggested that the $1 billion in federal disaster aid available in Mississippi could be used in part to buy the homes of owners who live in extremely flood-prone locations, particularly those areas that were devastated by Hurricane Camille in 1969.

Zoning in floodplains and coastal areas that limits or prohibits development frequently raises the issue of whether a “regulatory taking” has occurred, entitling the property owner to just compensation. A series of “takings” decisions by the U.S. Supreme Court during the past 30 years clearly established that limits to regulation exist under the Fifth Amendment. The most recent decision is Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), in which the Court reaffirmed that the proper test for a takings challenge is the inquiry set forth in Penn Central Transportation Co. v. New York, 438 U.S. 104 (1978).

The Penn Central decision acknowledged that there is no “set formula” for evaluating regulatory takings claims, but identified several factors to be considered in an ad hoc inquiry. These factors include “the economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations” and the “character of the governmental action” (that is, whether the government’s action is a physical invasion or instead merely affects property interests through “some public program adjusting the benefits and burdens of economic life to promote the common good”). Penn Central, 438 U.S. at 124.

The Massachusetts Supreme Judicial Court applied Lingle to a floodplain regulation two months later. Gove v. Zoning Board of Appeals of Chatham, 831 N.E.2d 865 (Mass. 2005). In Gove, the plaintiff and her family had owned an undeveloped lot located within the 100-year floodplain in the Cape Cod town of Chatham since 1926. In 1985, the town placed all of the land within the 100-year coastal floodplain in a “conservancy district,” prohibiting all residential uses but permitting certain nonresidential uses, such as fishing, agriculture, outdoor recreation, and various marine-related or visitor-serving uses, such as boathouses, roadside stands, and structures for marinas and boatyards. In 1998, the owner contracted to sell the lot for residential development, subject to the ability to obtain a permit to construct a house. The town denied the permit.

In determining that it was not a regulatory taking, the Massachusetts court found that the zoning met three Supreme Court tests. Following Lingle, the court found that there was evidence that the regulations were related to a legitimate state interest. Second, despite a reduction in value from $192,000 to $23,000, according to the owner’s expert, the court found that the zoning did not deny all economically beneficial use of the property. The court noted that the owner’s expert did not even consider the nonresidential uses of the property permitted under the zoning in arriving at the valuation. Third, the court agreed with the trial judge that the owner “failed to show that the conservancy district regulations had a substantial ‘economic impact’ on her or deprived her of ‘distinct investment-backed expectations’ . . . .” 831 N.E.2d at 874.

The Gove decision lends support to the conclusion that zoning regulations limiting floodplain development that are based on FEMA floodplain maps and permit some use of the affected property will withstand constitutional challenge.

Other Reconstruction Issues

Dealing with Mold

The flooding caused by Hurricanes Katrina and Rita left thousands of buildings subject to mold infestation, leading to much public discussion about dealing with mold. Although exposure to mold is associated with various adverse effects on human health, there are no federal or state standards for indoor mold exposures.

In October 2005 the Centers for Disease Control and Prevention (CDC) published Mold: Prevention Strategies and Possible Health Effects in the Aftermath of Hurricanes Katrina and Rita, available at www.bt.cdc.gov/disasters/mold/report. After noting evidence linking “several adverse health outcomes” to “materials contaminated with fungal growth,” the report stated: “There are no criteria for using either the concentration or type of mold in buildings to make informed decisions.” Id. (Executive Summary). It went on to recommend that exposure to mold should be limited by using personal protective gear or cleaning homes and buildings, especially heating, ventilating, and air conditioning systems. The National Institute for Occupational Safety and Health (part of the CDC) published NIOSH Interim Recommendations for the Cleaning and Remediation of Flood-Contaminated HVAC Systems: A Guide for Building Owners and Managers, Sept. 21, 2005, available at www.cdc.gov/niosh/topics/flood/Cleaning-Flood-HVAC.html .

The mere cleaning of buildings is not a practical alternative in parts of New Orleans, because homes and businesses were flooded for weeks. Instead, buildings must have flood damaged materials (such as drywall) removed, often gutting the lower portion of the buildings down to the studs and structural components, creating millions of cubic yards of moldy debris. Fortunately, moldy debris may be sent to an ordinary landfill, and the Louisiana Department of Environmental Quality’s “Hurricane Katrina Debris Management Plan” does not treat construction and demolition debris infested with mold as a hazardous waste.

Rebuilding Nonconforming Uses

Most cities have buildings containing uses that do not conform to current zoning, often because they were constructed before the zoning was adopted. New Orleans and the Gulf Coast are no exception. The question is whether these nonconforming buildings should be reconstructed after being damaged in a natural disaster.

The answer varies with local ordinances. Some cities have adopted regulations permitting reconstruction of a nonconforming use, even if the building had been completely destroyed. In New Orleans, buildings with legal, nonconforming uses destroyed in whole or in part by natural disasters may be restored as long as the floor area or volume is not increased over that which existed before the damage. Other cities permit reconstruction in the event of partial destruction of a nonconforming structure, but not if the nonconforming building has been totally destroyed. The standard is often whether the cost to repair exceeds a certain percentage of the value of the structure, sometimes 50%. Along the Mississippi Gulf Coast, the issue of rebuilding nonconforming uses appears to have been subsumed by the comprehensive planning effort now underway. The lesson is to check local land use regulations before planning any reconstruction activities.

Historic Preservation Issues

As New Orleanians rebuild damaged structures and replace those that cannot be repaired, they face the challenge of preserving the city’s unique architectural heritage. By the end of 2005, the New Orleans Department of Safety and Permits had surveyed the exteriors of approximately 114,000 buildings, finding some 5,500 unsafe to enter and another 79,000 buildings with partial structural damage. For buildings that are badly damaged, demolition or major renovation is often thought of as the appropriate response. Demolishing or conducting major renovation of historic buildings, however, even if badly damaged and unsafe to the public, presents difficult historic preservation issues.

New Orleans offers an extreme example of the effect on historic resources of a major disaster. The city contains 20 historic districts with about 37,000 historic structures. Charleston, South Carolina, faced a similar problem on a lesser scale after Hurricane Hugo in 1989, when more than half of its 4,000 historic structures were damaged. It has been suggested that 400 structures either listed or eligible for listing on a historic place register were damaged by the 1989 Loma Prieta Earthquake in the San Francisco Bay Area, and as many as 100 of them were demolished within the following month.

Most real estate attorneys are familiar with the problems of dealing with historic structures, whether listed on the National Register of Historic Places or on a state or local register. The federal income tax credits for restoring qualifying historic buildings certainly can assist a developer, but after a disaster the first question may be whether the structure can be renovated or demolished under the relevant codes and regulations. Many suggest that the complex system of boards and regulations protecting the historic character of New Orleans will face a conflict between concerns about safety and economic development and concerns about historic preservation as applications to renovate or demolish structures are reviewed. Although some reports suggest that only a small percentage of the “listed” historic structures in New Orleans were badly damaged in the flooding after Katrina, many neighborhoods with homes built in the first half of the 20th century that seem deserving of preservation were devastated by the floods.

New Orleans has tight controls over the demolition and renovation of historic structures. Four primary boards are responsible for historic preservation and for reviewing applications for renovation, expansion, or development of structures within their respective jurisdictions. The oldest and most preeminent historic commission is the Vieux Carré Commission (VCC). The VCC, deriving its authority from the Louisiana Constitution, has jurisdiction over the area commonly known as the French Quarter. The VCC has far-reaching authority over changes to structures within the French Quarter, even down to the color of exterior paint. Although its buildings were damaged by wind, flying debris, and trees, the French Quarter did not flood and was not as severely damaged as most other areas of the city. Nevertheless, soon after the French Quarter was opened to businesses and residents, the VCC staff posted conspicuous notices on buildings reminding owners of their obligations to comply with VCC rules in doing repair work.

Two historic district landmarks commissions, one for the central business district and the other for other historic districts (excluding the French Quarter), govern improvements, expansion, and demolition within their jurisdictions. The degree of flexibility given owners depends on the historic significance of their buildings, but some buildings within these jurisdictions may require demolition as a result of the damage they sustained from Katrina.

A fourth board, the Housing Conservation District Review Committee, has jurisdiction over a substantial majority of the structures in the city of New Orleans that are not otherwise subject to the jurisdiction of the other three boards, including many areas that were badly flooded, such as Lakeview, Gentilly, and the Ninth Ward. The ordinance creating this board prohibits demolition of any retail or commercial structure within the board’s district without prior review and approval. Pre-Katrina, this board’s review process became a lightning rod for neighborhood disputes.

Residents are still ascertaining whether they can or cannot rebuild. Clarification of whether structures must be elevated will probably spur rebuilding. Preservation and renovation of historic structures received an economic boost by enactment of the federal Gulf Opportunity Zone Act of 2005, Pub. L. No. 109-135, 119 Stat. 2577, which provides for various tax benefits for the portions of states affected by Hurricanes Katrina, Rita, and Wilma. The Act increases the historic property tax credit from 20% to 26% and the commercial rehabilitation tax credit from 10% to 13% in those areas. The combination of local historic preservation requirements, federal tax credits, and other federal aid may provide the basis for restoration of the unique historic resources of New Orleans.

Concluding Thoughts

The response of many after a natural disaster is that “the government” should jump in and promptly “fix the problem.” Perhaps those persons are recalling the response of local officials and the U.S. Army in fighting the fires that followed the 1906 San Francisco earthquake by dynamiting square blocks of that city. A century later, those responding to disasters face myriad rules and regulations, many of which must be followed even after a disaster. Attorneys will do well to learn those rules and be ready to respond to the disasters that inevitably will occur.

 

Property Covenants Prevent the Housing of Katrina Victims

 

By David Weissmann

 

In an apparently legal but cruel twist of the law, the Majestic Oaks Homeowners Association in Ocala, Florida, used property covenants to prevent the housing of Katrina victims in its subdivision. According to a local news story, a local minister visited New Orleans and offered to house three displaced families. The board of the homeowners association thwarted these plans when it gave notice that the covenants restricted the property to “single-family” residences, which prevented housing of more than one family in a home. Stay Out: Florida Subdivision Bans Hurricane Evacuees, WESH-2
Orlando, Sept. 9, 2005, available at www.wesh.com/news/4951969/detail.html (last visited June 1, 2006).

Although the covenants are likely enforceable, an argument should be made that the use of the term “residence” implies permanency and that the housing needed for storm victims was merely temporary, pending completion of repairs on their New Orleans residences. Under this interpretation, housing families temporarily would not violate the covenants. The homeowners association might argue that the use of the term “residence” means that temporary housing is prohibited, although the leasing of any home in the subdivision would produce a strong counterargument.

 

Timothy N. Brown is counsel in the San Francisco office of Reed Smith LLP. This article is based on Timothy N. Brown, Katrina, Rita and More: Can Land Use and Environmental Laws Help in Recovering from Disasters and Preparing for the Next Big One?, published in The ACREL Papers (Spring 2006).

Advertisement