CHATHAM COUNTY ATTORNEY JONATHAN HART 124 BULL STREET PLEASE REPLY TO: COTTON ROOM 240 0, BOX 8161 JENNIFER R. BURNS SAVANNAH, GEORGIA 31401 ipuniner cast ASSISTANT COUNTY ATTORNEY raxraese 07 September 28, 2016 Thomas A. Nash, Jr. 7 East Congress Street Savannah, GA 31401 2sq. Re: Flood Damage Prevention Ordinance (FDPO) Dear Mr. Nash: Tam in receipt of your ante litem notice dated September 20, 2016. Please allow this letter to serve as the County’s response. For the reasons outlined herein, the County denies all liability, To begin with, the Flood Damage Prevention Ordinance (FDPO) is enacted to allow the County to participate in the National Flood Insurance Program which all citizens derive benefit from. By way of example, the County must be in compliance with the federal act to ensure that local banks are eligible to participate and make federally insured residential home loans. ‘That federal scheme gives counties the ability to act within certain perimeters. Chatham County has at all times relevant to your inquiry done so. While FEMA may set a basic minimum, Chatham County can require higher standards as it elected to do so two years ago. Nothing about the proposed new ordinance in any way invalidates the enacted 2014 FDPO. While the County would not have any knowledge as to whether or not the facts concerning the attempted sell of this property are accurate or not, for the purposes of this letter the County will assume they are correct. As a maiter of law, the County has a right to regulate development and place requirements on the method and means of such construction. As a matter of fact, the allegations contained in your ante litem notice are not accurate as to the statement attributed to employees of the County. Under both circumstances, your clients still fail to state a claim. The seminal case in this area of law is Lucas v South Carolina Coastal Couneil, 505 U.S. 1003 (1992) wherein the United States Supreme Court delineated the burden of proof necessary to show a regulatory condemnation for the purposes of the Takings Clause. In that case, and itevery case since then ruled upon in Georgia, the owner of the land must show that the properly has lost ALL economic value due to the regulation enacted by the governing body. As the High Court wrote: “the Takings Clause does not require compensation when an owner is barred from putting land to a use that is proscribed by those ‘existing rules or understanding’ is surely unexceptional. When, however, a regulation that declared ‘off limits’ all economically productive or beneficial uses of the land goes beyond what the relevant background principles should dictate, compensation must be paid to sustain it.” Td. At 1030, Even before the United States Supreme Court decided Lucas, Georgia has long recognized that the right of the governing authorities to prevent flood damage by ordinance is not ataking. In Pope v City of Altanta, 242 Ga. 331 (1978), an case very similar to the fact your present on behalf of your client, was decided by the Supreme Court of Georgia. In that case, a property owner was prevented from constructing a tennis court in the flood plain because of local ordinance designed to mitigate flood damage during a 50 year event, The Georgia Court held such limitations within the flood plain were appropriate to protect the greater good of all citizens and are not a compensable taking. Turning to the facts outlined in your ante litem notice, no Chatham County staff has stated that this property is “unbuildable”. Specifically, Department of Engineering staff have reviewed this property and the proposed design. The lot can be used to build a home. It could be used for other purposes as well. However, it cannot be constructed unless elevated appropriately above the base flood plain elevation and with appropriate mitigation provisions. It is my understanding that Michael Blakely outlined that the lot could be used for building a house but that the house would have to be situated in a manner unacceptable to your clients” based upon. aesthetics, Such preferences can certainly not meet the criteria outlined for a regulatory taking by the Lucas, Finally, 1 am unaware of how you can assert a claim for all “similarly situated” land ‘owners as each case would have unique facts and circumstances. However to the extent that you do, those claims are also denied. Therefore, Chatham County denies all liability in this matter, Sincerely, B Gpaon Ue n Hart County Attorney RIH/dkm [:\Subject Files.Open\Claims\Nash Tom-FDPO\Nash letter resonse ante litem notice re FDPO.docx