Potential constitutional constraints on the regulation of flood plain development: three case studies

Abstract

The decision to allow intensive urbanisation in flood plains is a classic case of moral hazard. Urbanisation increases the risk that floods will damage property in the flood plain to the detriment of individual owners and other property owners. Efforts to control flood plain development collide with the two dominant theories of property rights. Property rights can either be characterised as prepolitical (John Locke) or a creation of the state (Thomas Hobbes). In either case, the Western liberal tradition prefers private property or places a burden on the state to justify regulation. Thus, flood plain property owners who are subject to severe restrictions will invoke the constitutional clause of property rights to invalidate any regulation. This article examines three constitutional regimes that offer a high, medium, and low proportion to property, United States, Germany, and Canada, to examine the impact of these regimes on flood plain regulation.