Public Comment: Proper Disclosure Could Help New Yorkers Weather Flood Disasters

This week, Next100 policy entrepreneur Dan Mathis submitted a public comment to the New York State Climate Action Council proposing that the Council recommend more robust flood risk disclosure legislation and investments in a statewide flood risk mapping database as part of the state’s Climate Leadership and Community Protection Act Draft Scoping Plan.

Dan’s comment, which you can read below, calls for more comprehensive flood risk disclosure requirements for both home sellers and landlords in support of New York State’s climate adaptation goals—especially considering the increased frequency and intensity of extreme weather events.

To: The Climate Action Council

As a New York City renter and policy researcher who has researched and evaluated flood risk disclosure laws around the country; and as a representative of Next100, a start-up think tank working to build a more diverse and inclusive public policy sector by changing who develops and implements public policy and how they do so, I am writing to recommend that the Draft Scoping Plan (the Plan) for the Climate Leadership and Community Protection Act incorporate policy recommendations around comprehensive flood risk disclosure for all New Yorkers, including improved protections for renters and buyers, and improved information to these groups and the public more broadly. Specifically, I recommend that New York State (1) enact a comprehensive state-level flood risk disclosure law, one that requires both home sellers and landlords to disclose to buyers and renters, the risk of flooding to their house or apartment, and that the state (2) develop publicly accessible, statewide flood risk mapping and assessments and provide them to the public in a user-friendly database. This comment is related to Chapter 21 (on Adaptation and Resilience), with a particular emphasis on housing and the built environment.

On August 29, 2021, the sixteenth anniversary of Hurricane Katrina, Hurricane Ida, a Category 4 storm, made landfall in Louisiana. Days later, the storm inundated New York, New Jersey, and other northeastern states and disrupted the lives of countless New Yorkers: the National Weather Service issued its first-ever flash flood emergency for New York City and more than forty people died, many while in their basement apartments.

Unfortunately, this was not a fluke event. According to the First National Flood Risk Assessment conducted in 2020, close to 1 million properties in New York State are at risk of flooding over the next thirty years. Flooding is New York’s primary climate hazard and an increasing risk: the state lost at least $26 billion to flooding in the decade following Hurricane Sandy. As the Climate Action Council’s Draft Scoping Plan notes, “we can expect both insured and uninsured losses to increase as sea level continues to rise and more frequent extreme precipitation events result in more extensive and deeper floods, including dangerous flash flooding in urban areas not previously considered flood-prone.”

New York State should couple its goals to mitigate climate change with similarly ambitious goals to adapt to it, and protect vulnerable New Yorkers from the inevitable, such as increasing flood frequency. To accomplish this, the Plan should include a legislative proposal to require that New Yorkers across the state—both homebuyers and renters—have the legal right to know their home’s flood risk, as well as access to statewide flood risk mapping and other information resources.

An expanded statewide flood risk disclosure law could help to achieve goals already identified in the Plan.

To quote directly, the Plan’s adaptation and resilience goals include the following:

AR7. Develop Policies, Programs, and Decision Support Tools to Reduce Risks Associated with Coastal and Inland Flooding; and
AR4. Identify and Evaluate Options for Supporting Equitable Adaptation and Resilience Practices and Projects, and to Enhance Insurance Protection.

Flood risk disclosure aligns with these goals by providing home buyers and renters with flood risk information. The added risk awareness may help New Yorkers not only better understand and navigate their risk, but also prepare for potential fallout from flooding events. A comprehensive flood risk disclosure law should cover all New Yorkers and simultaneously address the “disadvantaged communities” targeted in the Plan—groups that are often more vulnerable to the impacts of flooding. More risk awareness may also lead to improved insurance coverage and to increased uptake rates of flood insurance coverage across the state, and may help to spur more attention and investment in preparedness and resilience efforts in flood-prone areas.

New York already has a disclosure requirement, but it does not do enough to protect homeowners, and does not protect renters at all.

New York State currently requires home sellers to provide a Property Condition Disclosure Statement, which discloses certain known information to buyers (including flood history or location in a flood zone), but the seller can circumvent this requirement by paying the buyer $500. Regarding renters, the New York State Legislature recently passed Assembly Bill A7876 which will establish a disclosure requirement between landlords and tenants, providing the state’s more than 8 million renters—who are disproportionately Black and Latinx—with information about their home’s flood risk. This bill does not amend the real property law related to property condition disclosure to prospective homebuyers, but is a significant step in closing the equity gaps in disclosure between buyers and renters: only 35 percent of Black New Yorkers and 28 percent of Latinx New Yorkers own their homes, while 74 percent of white New Yorkers do so.

This recent legislative effort, while a move in the right direction, stills leaves a financial loophole for sellers to avoid disclosure requirements to homebuyers and could benefit from more comprehensive requirements around the disclosure notice itself, the triggering basis for the disclosure, and the penalties for non-compliance with the proposed law.

Below you will find an outline of our recommendations on what a strengthened proposal could incorporate, including protections for buyers and renters and better information for buyers, renters, and the public.

• New York State should enact a comprehensive state-level flood risk disclosure law that requires both home sellers and landlords to disclose to buyers and renters the risk of flooding to their house or apartment.
  • Disclosure should be based on the home’s location in the floodplain, the home’s actual flood history, and whether or not flood insurance is required on the property.
  • The disclosure notice should be in writing, accessible to those who do not speak English, and hard for prospective tenants to miss.
  • Notice should be provided early in the apartment rental process, to give renters time to make informed decisions.
  • Disclosure requirements should apply to all rental properties, regardless of building size or type.
  • Tenants should have access to enforceable actions against landlords that violate the flood risk disclosure law, including the ability to terminate the lease following a flooding event and compensation from the landlord for any loss or damages to the tenant’s personal property as a result of flooding.

• New York should develop publicly accessible statewide flood risk mapping and assessments and provide them to the public in a user-friendly database.
  • Flood risk disclosure legislation should be paired with investments in state and local flood risk mapping and assessment tools (e.g., New York City’s Flood Hazard Mapper) that help New Yorkers to better understand their flood risk.
  • New Yorkers should be able to access accurate, reliable flood risk information on their own through government-maintained websites that provide comprehensive overviews of flood hazards and risks and are used to help residents and property and business owners to understand their risks and make informed decisions. California, for example, maintains the state-level MyHazards website, a searchable tool for the general public to discover hazards in their area (earthquake, flood, fire, and tsunami) and learn steps to reduce personal risk related to those hazards.

Above all, New Yorkers should have access to flood risk data that is useful, accessible, and reliable. This should include comprehensive disclosure requirements and statewide risk mapping and assessment resources. If Hurricane Ida and the increasing frequency and severity of billion-dollar flooding disasters are any evidence, we need collectively to get better at preparing for and mitigating the fallout from the biggest potential floods—more flood risk information for New Yorkers may be a path forward.

For more information on flood risk disclosure laws and policy recommendations for comprehensive disclosure requirements, see the Next100 report “Risky Renting: Renters Should Have the Right to Know their Flood Risk.”