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THE NATIONAL FLOOD INSURANCE PROGRAM REVISITED--AN
UPDATED MODEL ORDINANCE FOR IMPLEMENTATION OF
ITS LAND MANAGEMENT CRITERIA
by
Frank E. Maloney and Dennis C. Dambly
College of Law
University of Florida
TECHNICAL PAPER NO. 3
December 1977
Florida Sea Grant
THE NATIONAL FLOOD INSURANCE PROGRAM REVISITED--AN
UPDATED MODEL ORDINANCE FOR IMPLEMENTATION OF
ITS LAND MANAGEMENT CRITERIA
by
Frank E. Maloney and Dennis C. Dambly
College of Law
University of Florida
TECHNICAL PAPER NO. 3
December 1977
The information contained in this paper was
developed under the auspices of the Florida Sea Grant
College Program, with support from the NOAA Office of
Sea Grant, U.S. Department of Commerce, grant number
04-7-158-44046. This document is a Technical Paper
of the State University System of Florida Sea Grant
College Program, 2001 McCarty Hall, University of
Florida, Gainesville, FL 32611. Technical Papers
are duplicated in limited quantities for specialized
audiences requiring rapid access to information,
which may be unedited.
TABLE OF CONTENTS
Page
INTRODUCTION.............................................. 1
SECTION ONE: MODEL FLOOD PLAIN MANAGEMENT ORDINANCE...... 3
SECTION TWO: DEFINITION................................ 5
SECTION THREE: GENERAL PROVISIONS ....................... 16
SECTION FOUR: ADMINISTRATION............................ 19
SECTION FIVE: ESTABLISHMENT OF ZONING DISTRICTS......... 27
SECTION SIX: FLOODWAY DISTRICTS ......................... 27
SECTION SEVEN: FLOOD FRINGE DISTRICTS................... 31
SECTION EIGHT: COASTAL HIGH HAZARD DISTRICTS............. 34
SECTION NINE: FLOODPROOFING............................. 36
SECTION TEN: VARIANCES... .............................. 38
SECTION ELEVEN: NONCONFORMING USES ...................... 41
SECTION TWELVE: SUBDIVISION REGULATIONS IN FLOOD
HAZARD AREAS............................ 42
SECTION THIRTEEN: PENALTIES FOR VIOLATION ............... 46
SECTION FOURTEEN: SEVERABILITY.......................... 46
THE NATIONAL FLOOD INSURANCE PROGRAM REVISITED AN UPDATED MODEL ORDINANCE
FOR IMPLEMENTATION OF ITS LAND MANAGEMENT CRITERIA
BY: Frank E. Maloney* and Dennis C. Dambly**
INTRODUCTION
1
In 1975 a study of the National Flood Insurance Program (NFIP) was under-
taken at the University of Florida's Holland Law Center. The purpose of the
study was to develop a model flood plain zoning ordinance that would be of
assistance to communities in implementing the land management regulations
adopted as a part of the NFIP.
The background, research and results of that study, including a model
ordinance, are set forth in the July 1976 issue of the Natural Resources Jour-
2
nal. The model ordinance was based on the requirements set forth in the
proposed federal regulations appearing in Volume 40 of the Federal Register on
March 26, 1975, at pages 13420-13433.
On October 26, 1976 the Federal Insurance Administration (FIA) published
3
the final land use regulations adopted under the NFIP. Significant differences
*B.A. 1939, University of Toronto; J.D. 1942, University of Florida; Pro-
fessor of Law and Dean Emeritus, University of Florida Law Center, Dean 1958-
1970; Principal Investigator, Water Resources Scientific Information Center of
Competence in Eastern Water Law.
**B.S. Engr. 1970, University of South Florida; M.B.A. 1972, University of
South Florida; J.D. 1974, University of Florida; Director, Water Resources
Scientific Information Center of Competence in Eastern Water Law 1975-76; pre-
sently Attorney with U.S. Nuclear Regulatory Commission; Associate Investigator
on this project.
The preparation of this article has been supported by the Florida Depart-
ment of Natural Resources and the National Oceanic and Atmospheric Administra-
tion Sea Grant Program. Since this work results in part from research spon-
sored by NOAA Office of Sea Grant, U.S. Dep't of Commerce, under Grant Nos.
04-5-158-44 and R/L-2, the United States Government is authorized to produce
and distribute reprints for governmental purposes notwithstanding any copyright
notation that may appear hereon.
1. 42 U.S.C.A. 4001-4128 (1973).
2. Maloney and Dambly, The National Flood Insurance Program--A Model Or-
dinance For Implementation of Its Land Management Criteria, 16 Nat, Res. J.
665 (1976).
3. 41 Fed. Reg. 46962-46992 (1976).
between the proposed and final regulations led to requests that the model or-
dinance.be updated. The entire updated model ordinance and commentary thereto
are set forth below."
Some of the changes suggested in the original article in Volume 16 of
the Natural Resources Journal were adopted in the final federal regulations
as noted in the accompanying commentary. For example, the final federal
regulations now define "habitable floor" as any floor "usable" for living
rather than "used" for living.
Citations appearing in the commentary are to the final federal regula-
tions appearing in Volume 41 of the Federal Register on October 26, 1976,
at pages 46962-46992.
It is suggested that any community planning to utilize the updated model
ordinance read the Natural Resources Journal article to assure a complete
understanding of the purpose of all the provisions contained in the model.
4. At the time that this update is being published, Congress has passed
an amendment to the Flood Disaster Protection Act of 1973 (Act of December 31,
1973, Pub. L. No. 93-234, 87 Stat. 983) that greatly reduces the incentives
for a community to enter the NFIP, The amendment is a part of the Housing and
Community Development Act of 1977" and would allow private lending institu-
tions [banks, savings and loan associations, etc.] to make mortgage loans in
communities that had not entered the program as long as they notified the pur-
chaser that he was building in a flood plain.""
* (Act of October 12, 1977, Pub. L. No. 95-128, 91 Stat. 1111)
However, if a community chose to enter the program so that its residents
could obtain flood insurance, the community would still have to adopt a flood
plain ordinance complying with the federal regulations.
MODEL FLOOD PLAIN MANAGEMENT ORDINANCE
SECTION ONE. STATUTORY AUTHORIZATION, FINDINGS OF FACT, PURPOSE AND OBJEC-
TIVES.
1.1 Statutory Authorization
The Legislature of the State of ____ has in
(state)
delegated the responsibility to local governmental
(statutes)
units to adopt regulations designed to minimize flood and associated losses.
Pursuant thereto, the of
(governing body)
,does ordain as follows:
(local unit)
(state)
1.2 Findings of Fact
[(a) Areas of ,, have been
(local unit) (state)
designated by the Federal Insurance Administration as flood hazard areas
eligible to participate in the National Flood Insurance Program;]
[(b) The regulations adopted by the Federal Insurance Administration
under the authority of the National Flood Insurance Act of 1968, 42 U.S.C.
4001 et seq., as amended, require that participating communities adopt
legislation designed to regulate flood plain development;]
(c) The flood hazard areas of are subject
(local unit)
to periodic inundation which results in loss of life and property, health
and safety hazards, disruption of commerce and governmental services,
extraordinary public expenditures for flood protection and relief, and
impairment of the tax base all of which adversely affect the public health,
safety and general welfare;
(d) Flood and associated losses are caused in part by the occupancy
of flood hazard areas by uses which are vulnerable to damage by floods or
L
eros i on.
1.3 Statement of Purpose
It is the purpose of this ordinance to provide a uniform basis for the
preparation and implementation of sound flood plain management regulation
and to further the stated objectives.
(These provisions were modeled after USWRC-Vol. 1, p. 521, 1.0-1.3.
The material contained in the brackets in 1.2 (a), (b) should not be inserted
unless the adopting community will be participating in the National Flood
Insurance Program.)
1.4 Objectives
The objectives of this ordinance are:
(a) To protect human life and health;
(b) To minimize expenditure of public monies for costly flood control
projects;
(c) To minimize the need for rescue and relief efforts associated
with flooding and generally undertaken at the expense of the general public;
(d) To minimize prolonged business interruptions;
(e) To minimize damage to public facilities and utilities such as water
and gas mains, electric, telephone and sewer lines, and streets and bridges
located in flood plains;
(f) To help maintain a stable tax base by providing for sound use and
development of flood prone areas in such a manner as to minimize future flood
blight areas;
(g) To insure that potential land and home buyers are notified that
property is in a flood hazard area; and,
[ (h) To qualify property owners for the insurance and subsidies provided
by the National Flood Insurance Program.]
(These objectives are modeled after those laid out in the Wisconsin
Flood Plain Management Program, Ch. NR 116 116.03, Wisconsin Administrative
Code. The provisions therein seemed to be the most comprehensive and force-
ful of those statements of purpose examined. The modifications made of the
Wisconsin objectives have generally been with the goal of achieving greater
specificity and impact. The bracketed material should again be deleted if a
community is not planning to enter the NFIP.)
SECTION TWO. DEFINITIONS
Unless specifically defined below, words or phrases used in this ordinance
shall be interpreted so as to give them the meaning they have in common usage
and to give this ordinance its most reasonable application.
(Note: Those definitions which have been taken verbatim or almost verbatim
from 41 Fed. Reg. 1909.1 (1976) are indicated by double asteriks (**) and will
not be further commented on except as noted.)
(1) Accessory use: A use of a nature customarily subordinate or inci-
dental to, and located on the same parcel as, the principle use of any struc-
ture or property.
(This definition is taken from USWRC-Vol. 1, p. 535, 10.)
**(2) Area of shallow flooding: That land within a flood fringe area with
base flood depths from one to three feet where a clearly defined channel does
not exist and where the path of flooding is unpredictable and indeterminate.
(The federal definition adds to the end of the above the phrase "and
where velocity flow may be evident". That phrase is intended to cover VO
zones on a community's Flood Insurance Rate Map. Without the additional
phrase, the definition is applicable to AO zones.
Section 1914.3(a)(1) of the final federal regulations defines an AO zone
as an "area of special flood hazards having shallow water depths and/or un-
predictable flow paths between (1) and (3) ft." The definition of a VO zone
is the same as the definition of an AO zone except the words "and with velocity"
are added to the end of the definition.
The final federal regulations impose requirements within AO zones but have
no provisions applying to VO zones. Discussions with FIA officials indicate
that they do not plan to designate any VO zones, and thus no requirements
were adopted applying to such zones.)
*'(3) Area of special flood hazard: That land within a community in the
flood plain which is subject to a one percent (1%) or greater chance of
flooding annually.
(4) Breakaway walls within the meaning of Section 8.2 (a)(3) shall in-
clude but not be limited to any type of walls, whether solid or lattice, and
whether constructed of concrete, masonry, wood, metal, plastic or any other
suitable building materials, which are not part of the structural support of
the building and which are so designed as to break away, under abnormally high
tides or wave action, without damage to the structural integrity of the build-
ing on which they are used or any buildings to which they might be carried by
flood waters.
(This definition is designed as a general guideline for what constitutes
a breakaway wall. One problem encountered in preparing the ordinance and
this particular definition is that there are presently no engineering standards
available for design of breakaway walls.)
**(5) Coastal high hazard area: That portion of the flood plain having
special flood hazards that is subject to high velocity waters, including but
not limited to hurricane wave wash and tsunamis.
(6) Density of residential development: The maximum number of residen-
tial units which may be constructed on a given amount of land under the existing
zoning classification of that land, without consideration of the provisions of
this ordinance.
(This definition was formulated to clarify the density transfer pro-
visions of Section 12.3(b).)
**(7) Development: Any man-made change to improved or unimproved real
estate, including but not limited to buildings or other structures, mining,
dredging, filling, grading, paving, excavation or drilling operations.
-'*(8) Existing mobile home park or subdivision: A parcel or contiguous
parcels of land divided into two or more mobile home lots for rent or sale
for which the construction of facilities for servicing the lot on which the
mobile home is to be affixed is completed prior to the effective date of this
ordinance. Such facilities for servicing the lot include at a minimum, the
installation of utilities, either final site grading or the pouring of con-
crete pads, and the construction of streets.
**(9) Expansion of an existing mobile home park or subdivision: The pre-
paration of additional sites by the construction of facilities for servicing
the lots on which the mobile homes are to be affixed, including the installa-
tion of utilities, either final site grading or pouring of concrete pads, or
the construction of streets, in a mobile home park or subdivision existing on
the effective date of this ordinance. ["Expansion of an existing mobile home
park or subdivision" shall not include the rental, sale, or lease of any
mobile home lot which is ready for use or occupancy on the effective date of
this ordinance and is located within a mobile home park or subdivision existing
on the effective date of this ordinance.1
(The original model ordinance contained a definition similar to that set
forth above, even though the proposed federal regulation did not. The final
federal regulations contain the above definition except for the bracketed
sentence which is still suggested for inclusion to further clarify the federal
definition.)
(10) Fair market value: The fair market value of property or structures,
as used in the definition of "substantial improvement" shall mean, the value
as determined by the tax assessor, either (a) before the improvement was start-
ed, or (b) if the structure has been damaged and is being restored, before the
damage occurred.
(This definition has been extracted from the federal definition of "sub-
stantial improvement," with the addition of the qualifier "fair" to the
federal term "market value." 41 Fed. Reg. 1909.1 (1976).)
**(11) Flood or flooding:
(1) A general and temporary condition of partial or complete in-
undation of normally dry land areas from:
(a) the overflow of inland or tidal waters, or
(b) the unusual and rapid accumulation or runoff of surface
waters from any source.
(2) The collapse or subsidence of land along the shore of a lake
or other body of water as a result of erosion or undermining caused by waves
or currents of water exceeding anticipated cyclical levels or suddenly caused
by an unusually high water level in a natural body of water, accompanied by
a severe storm or force of nature, such as a flash flood or an abnormal tidal
surge, or by some similarly unusual event which results in flooding as de-
fined in (a) above.
(The provisions in the federal definition referring to mudslides have
been deleted and the phrases "unanticipated force of nature" and "unforesee-
able event" have been altered to eliminate the words "unanticipated" and "un-
Foreseeable" because it was felt that a problem might arise where flash floods,
etc., were forecast and therefore anticipated or foreseen the results should
still be considered floods.)
(12) Flood control works: Any man-made construction, such as a dam,
levee, groin or jetty designed to alter the flood potential of the body of
water on or adjacent to which it is built.
(The final federal regulation contains a similar, although somewhat longer
definition for the term "flood protection system" which could be substituted if
so desired.)
(13) Flood Fringe Area: That area of the flood plain, including areas
of shallow flooding, not required to carry and discharge the regulatory flood
waters, nor within the Coastal High Hazard Area, but still lying within the
area of special flood hazard.
**(14) Flood plain: Any normally dry land area that is susceptible to
being inundated by waters from any source (see definition of flooding).
**(15) Floodproofing: A combination of structural and/or non-structural
additions, changes, or adjustments to properties or structures subject to
flooding which will reduce or eliminate flood damages to properties, water
and sewer facilities, or structures and their contents.
(16) Floodway: The channel of a river or other watercourse and the
adjacent land areas that must be reserved in order to discharge the 100-year
flood without cumulatively increasing the water-surface elevation more than
one foot at any one point.
("Floodway" and "flood fringe" have become, by general usage, the accepted
terms designating the two sections of varying hazard within the flood plain
of the regulatory flood. The definition here provided is one adopted from
provisions found in the model ordinances of several states, including, among
others:
ILLINOIS Guides for Flood Plain Regulation (Department of Local Govern-
ment Affairs), PMS 74-2 (1974);
OHIO Model Flood Plain Zoning Regulations (Department of Natural Re-
sources, Division of Planning: Water Resources Planning Section); and
OREGON Flood Plain Management for Oregon Cities and Counties (Bureau
of Governmental Research and Service, University of Oregon and Oregon State
Water Resources Board) (1971) with the additional exclusion of the Coastal
High Hazard Area which would not be required in an ordinance restricted to
riverine conditions.
Evidently, much confusion exists over the "one foot" provision in the
federal definition of "floodway." The federal regulations do not allow uses
in the floodway which will cumulatively raise the 100-year flood elevation
by a maximum of one foot. Consultations with the FIA and the Corps of Engineers
confirmed that the one foot increase is used in the initial determination of
the floodway itself and is not meant.to allow a subsequent heightening of the
100-year flood elevation, once the limits of the floodway have been so set.
That is, in order to determine that portion of the flood plain which will be
designated as the floodway, one begins at the outer limits of the flood plain
and assumes full development inward, toward the river or stream channel, on
both sides of the flood hazard area, until the point is reached where develop-
ment will cause the 100-year flood elevation to rise by one foot. The area
remaining between this boundary and the channel is the floodway, and because
any further development here would necessarily increase the 100-year flood
elevation by more than one foot, no such development can be countenanced.)
**(17) Habitable floor: Any floor usable for living, which includes
working, sleeping, eating, cooking or recreation, or any combination thereof.
A floor used only for storage purposes is not a habitable floor.
(The final federal regulations incorporate the suggestion contained in
the original model ordinance that the standard for determining a "habitable
floor" should be whether such floor is "usable for" rather than "used for"
living purposes.)
(18) Mean high water: A tidal datum, determined by taking the arith-
metic mean of the high water heights observed over a specific 19-year Metonic
cycle (the National Tidal Datum Epoch).
(19) Mean high water line: The intersection of the land with the water
surface at the elevation of mean high water.
(20) Mean low water: A tidal datum, determined by taking the arith-
metic mean of the low water heights observed over a specific 19-year Metonic
cycle (the National Tidal Datum Epoch).
(21) Mean low water line: The intersection of the land with the water
surface at the elevation of mean low water.
(These definitions are based on those provided by the National Ocean
Survey, National Oceanic & Atmospheric Administration: Tide & Current Glossary
(Washington, D.C., 1975). Similar definitions may also be found in the
Florida Coastal Mapping Act of 1974, FLA. STAT. 177.27 (15)-(18).
'-'-'(22) Mean sea level: The average height of the sea for all stages of
the tide.
**(23) Mobile home: A structure, transportable in one or more sections,
which is built on a permanent chassis and designed to be used with or without
a permanent foundation when connected to the required utilities. It does not
include recreational vehicles or travel trailers.
**(24) New construction: Those structures for which the start of con-
struction commenced on or after the effective date of this ordinance.
**(25) Person: Any individual or group of individuals, corporation, part-
nership, association, or any other entity including state and local governments
and agencies thereof.
**(26) Regulatory flood: For purposes of this ordinance, a flood event
having a 1% chance of occurring in any given year, although the flood may
occur in any year, i.e., the 100-year flood.
(Thir incorporates the ICV-year flood as the standard; however, a dif-
ferent level could be adopted if desired. The 100-year flood is the standard
being adopted by the National Flood Insurance Program and is therefore the
minimum for anyone desiring to enter the program.)
(27) Regulatory flood elevation: The crest elevation in relation to
mean sea level expected to be reached by the regulatory flood at any given
point in an area of special flood hazard.
**(28) Start of construction:
(a) The first placement of permanent construction of a structure,
other than a mobile home, on a site, such as pouring of slabs or footings or
any work beyond the stage of excavation. Permanent construction does not in-
clude land preparation such as clearing, grading, or filling; nor does it
include the installation of streets or walkways; nor does it include excavation
for a basement, footings, piers, or foundations or the erection of temporary
forms; nor does it include the installation on the property of accessory
buildings, such as garages or sheds not occupied as dwelling units or not part
of the main structure.
(b) For a structure, other than a mobile home, without a basement
or poured footings, the start of construction includes the first permanent
framing or assembly of the structure of any part thereof on its piling or
foundation.
(c) For mobile homes not within a mobile home park or subdivision,
"start of construction" means the affixing of the mobile home to its permanent
site.
(d) For mobile homes within mobile home parks or subdivisions
"start of construction" is the date on which the construction of facilities
for servicing the site on which the mobile home is to be affixed is completed.
Such facilities for servicing the site include at a minimum, the construction
of streets, either final site grading or the pouring of concrete pads, and the
installation of utilities.
(The above ends the federal definition for "start of construction".)
[(e) For any residential development, such as a mobile home park
or subdivision, which has received the necessary approval from federal, state,
and local authorities, the start of construction of the first unit shall be
deemed to constitute the start of construction for the entire development.
However, the construction deemed to have been so begun must be completed
within n years, and if construction of the development is under-
taken in phases, then the start of construction of each phase will be deemed
to have taken place independently of the start of construction of any other
phase. Any construction not completed within years shall be
(no.)
deemed new construction and shall be regulated as such in compliance with the
provisions of this ordinance.1
(The above paragraph (e) should not be used if a community is adopting
this ordinance to comply with the NFIP. The paragraph was added to the model
because it was felt that the federal definition was too restrictive and would
be subject to attack under the doctrine of equitable estoppel. See generally,
49 ALR 13, Retroactive Effect of Zoning Regulation (1973), 28 AM.JUR. 2d
Estoppel & Waiver 81-113 (1966). See also Sakolsby v. City of Coral Gables,
151 So. 2d 433 (Fla. 1963); Bregar v. Britton, 75 So. 2d 753 (Fla. 1954); Town
of Largo v. Imperial Homes Corp., 309 So. 2d 571 (2d D.C.A. Fla. 1975). By the
time a developer has cleared his land, drawn up plans, put in roads, obtained
permits, etc., it would appear that substantial reliance has been placed on
the previous zoning of the property and to treat the start of construction of
each individual home as a separate start raises serious legal questions.)
**(29) Structure: A walled and roofed building, including a gas or
liquid storage tank, that is principally above ground, as well as a mobile
home. The words "building" and "structure" shall have the same meaning for
the purpose of this ordinance.
(The final federal definition set forth above represents an expansion of
the proposed definition which excluded "gas or liquid storage tanks". This
final definition is In line with the suggestion made in the original model
ordinance that the definition be expanded to cover all construction that
would normally be considered a structure.)
(30) Subdivision: (Put in the appropriate statutory definition.)
*-'(31) Substantial improvement: Any repair, reconstruction, improvement
or alteration of a structure, the cost of which equals or exceeds 50% of the
fair market value of the property or structure.
r"Substantial improvement" shall also mean any combination of repairs,
improvements, reconstruction or alterations taking place within a period of
years any of which alone has a cost less than but which together
(no.)
have a cost equal to or exceeding 50% of the fair market value of the property
or structure.l
Substantial improvement is considered to have occurred when the first
alteration in any wall, ceiling floor or other structural part of the build-
ing commences, whether or not that alteration affects the external dimensions
of the structure.
The term does not include a project for improvement of a structure to
comply with existing state or local health, sanitary or safety code specifi-
cations which are solely necessary to assure safe living conditions nor does
it include any alteration of a structure listed on the National Register of
Historic Places or a State Inventory of Historic Places.
(The bracketed words have been added to the definition in order to plug
a loophole in the federal definition. Since there is no time limit set in
the federal version, it would be possible for a person to subvert the intent
of the ordinance by making a series of "unsubstantial improvements" which in
a short period of time could conceivably double or triple the value of the
structure. Also "market value" has been removed from this definition and
redefined as "fair market value" earlier in this section.)
(32) Variance: A grant of relief to a person from the requirements
of this ordinance which permits construction in a manner otherwise pro-
hibited by this ordinance where specific enforcement would result in un-
necessary hardship.
SECTION THREE. GENERAL PROVISIONS
3.1 Lands to which this Ordinance applies
This ordinance shall apply to all lands within the jurisdiction of
that are depicted on the
(local unit)
Official Zoning Map as being a Floodway, Flood Fringe or Coastal High
Hazard District.
(This provision was modeled after USWRC-Vol. 1, p. 522, 2.1. The
three districts correspond to the districts depicted on the Insurance Rate
Maps supplied by the federal government which show the flood plain, flood-
way and coastal high hazard districts. The flood fringe district is that
part of the flood plain outside the floodway and coastal high hazard areas.
A local community could utilize the federal information or could extend the
area coverage beyond that covered by the federal maps.)
3.2 Establishment of Official Zoning Map
The Official Zoning Map for together with all
(local unit)
explanatory matter thereon and attached thereto on the effective date of this
ordinance is hereby adopted by reference and declared to be a part of this
ordinance.
(This provision is modeled after USWRC-Vol. 1, p. 522, 2.2.)
3.3 Interpretation of District Boundaries
The boundaries of the Flood Plain District shall be determined by scien-
tific and engineering studies and the results thereof shall be plotted on
the Official Zoning Map for ______. Boundaries for
(local unit)
construction or use restrictions set forth within this ordinance shall be
determined by scaling distances on the Official Zoning Map. Where inter-
pretation is needed in order to allow a surveyor to locate the exact boun-
daries of the district as shown on the Official Zoning Map, the Flood Plain
Administrator shall initially make the necessary interpretation based on
flood profile information. The decision of the Flood Plain Administrator
shall be subject to appeal to the Board of Adjustment in accordance with
Section 4.7.
(This provision is modeled after USWRC-Vol. 1, p. 522, 2.3 but has been
altered somewhat to conform to the remainder of this ordinance.)
3.4 Compliance
No structure or land shall hereafter be located, extended, converted or
structurally altered without full compliance with the terms of this ordinance
and other applicable regulations.
3.5 Abrogation and Greater Restrictions
This ordinance is not intended to repeal, abrogate or impair any exist-
ing easement, covenants or deed restrictions. However, where this ordinance
and another conflict or overlap, whichever imposes the more stringent re-
strictions shall prevail.
(The validity of this provision has been expressly recognized in the
final federal regulations which state: "Therefore, any flood plain management
regulations adopted by a State or community which are more restrictive than
the criteria set forth in this Part are encouraged and shall take precedence."
1910.1 (d))
3.6 Interpretation
In the interpretation and application of this ordinance, all provisions
shall be: (1) considered as minimum requirements; (2) liberally construed in
favor of the governing body; and (3) deemed neither to limit or repeal any
other powers granted under the state statutes.
(This provision is modeled after USWRC-Vol. 1, p. 523, 2.4-2.6)
3.7 Warning and Disclaimer of Liability
The degree of flood protection required by this ordinance is considered
reasonable for regulatory purposes and is based on scientific and engineering
considerations. Larger floods can and will occur on rare occasions. Flood
heights may be increased by man-made or natural causes. This ordinance does
not imply that areas outside of flood hazard districts or land uses permitted
within such districts will be free from flooding or flood damages. This
ordinance shall not create liability on the part of _____
(local unit)
or any officer or employee thereof for any flood damages that result from
reliance on this ordinance or any administrative decision lawfully made there-
under.
(This provision is based upon Section 5 of Rule Number FPM-I promulgated
by the Indiana National Resources Commission which is somewhat similar to
USWRC-Vol. 1, p. 523, 2.7.)
SECTION FOUR. ADMINISTRATION
4.1 Flood Plain Administrator
Pursuant to the shall appoint
(statute) (local governing body)
a Flood Plain Administrator [who shall be a registered professional engineer
of .1 Said Administrator shall be appointed for
(state)
____ __ years to implement the elevation and flood proofing pro-
(number)
visions of this ordinance, and to carry on such other duties as are assigned
to him herein.
(This provision is modeled after USWRC-Vol. 1, p. 27, 6.1. The official's
designation has been changed to "Flood Plain Administrator," since it has been
noted by various sources during the development of the model ordinance, that
this ordinance requires procedures distinct from those normally attributed to
a local "zoning" ordinance. Rather than place responsibility for review of
the applications on an already existing Building Inspector or County Engineer,
as in the flood plain zoning ordinances found in Galveston, Texas, and Sierra
Vista, Arizona, it was felt that designation of a specific official, the
Flood Plain Administrator, would be more appropriate, since the Flood Plain
Ordinance imposes rather technical and special conditions for building in the
flood hazard area. Especially in Florida, there are large portions of land
within this area, and the responsibility for the regulatory provisions of the
Ordinance should be placed with an official who has both the expertise and
time to give adequate consideration to the problems raised. For this reason,
it has been further suggested that the Flood Plain Administrator be a quali-
fied, registered engineer. If, however, it is felt that the ordinance could
be adequately administered by someone other than an engineer, the bracketed
words could be deleted.)
4.2 Flood Plain Construct;on Authorization (FPCA) Permit
(a) An FPCA Permit issued by the Flood Plain Administrator in conformity
with the provisions of this ordinance shall be secured prior to the erection,
addition or alteration of any building or structure or portion thereof within
the permitted area prior to the change of use of a building, structure, or
land; and prior to the change or extension of a nonconforming use.
(b) Application for an FPCA Permit shall be made to the Flood Plain Ad-
ministrator on forms furnished by him and shall include the following where
applicable: plans in duplicate drawn to scale showing the nature, location,
dimensions and elevations of the area in question in relation to mean sea
level; existing or proposed structures, fill, storage of materials; and the
location of the foregoing, where applicable, in relation to mean high tide
levels, drainage facilities, the regulatory flood protection elevation, and
any applicable flood hazard district boundaries.
(This provision is modeled after USWRC-Vol. 1, p. 527, 6.2.)
(c) Such application shall be acted upon and notice of the action taken
shall be given to the applicant within days.
(no.)
Any appeal of the denial of an application for an FPCA Permit must
be made to the Board of Adjustment within 30 days of notice of the denial
to the applicant.
(e) Approval of an application shall result in the issuance of an
FPCA Permit.
4.3 Construction and Use to be as Provided in Application, Plans, and Permits
FPCA permits or special exception permits issued on the basis of approved
plans and applications authorize only the use, arrangement, and construction
set forth in such approved plans and applications, and no other use, arrange-
ment or construction. Any use, arrangement, or construction at variance with
that authorized shall be deemed a violation of the ordinance, and enjoinable
or punishable as provided by Section 13.
(This provision is modeled after USWR-Vol. 1, p 528, 6.24.)
4.4 Building Permits
Whenever a building permit shall be required under the provisions of
this ordinance, such permit shall be procured in accordance with ___
(statutory
In addition to factors and requirements therein
authority)
provided, the issuer shall also require, where applicable, presentation of a
valid FPCA Permit prior to the issuance of the building permit. The con-
ditions, plans, etc., attached to the issuance of the FPCA Permit shall
thereafter become part of the building permit.
(Procedurally, it is contemplated that the requirements for construction
within the flood plain will be incorporated into those provisions previously
established by the particular community for building within its jurisdiction.
Obtaining the initial FPCA Permit does not eliminate the need to fulfill all
other prerequisites for obtaining a building permit. However, when the
building permit itself has been obtained, the FPCA Permit should become in-
corporated into it, so that compliance with its terms shall be subject to
the continued supervision offered by the building permit procedures already
in effect. Thus the certification of compliance generally required to be
offered by an architect or engineer after completion of the structure will
include, by reference, certification of compliance with the terms of the FPCA
Permit. It is felt that in this way the most complete implementation of the
goals of the Flood Plain Ordinance will be effected, without creating any un-
due burden of administration or leadership on either the applicant or the
municipality.
Where an adopting community for any reason does not wish to designate
separate flood plain administration procedures, implementation of the sub-
stantive provisions of this ordinance may be simplified by utilizing whatever
type of local enforcement is already available.)
4.5 Board of Adjustment
A Board of Adjustment is hereby established which shall consist of
___members to be appointed by the for a
(no.) (legislative body)
term of years as specified in Section of the
(no.)
statutes.
(This provision is modeled after USWRC-Vol. 1, p. 528, 6.3.)
4.6 Powers and Duties of the Board
(a) The Board of Adjustment shall adopt rules for the conduct of busi-
ness and may exercise all of the powers conferred on such boards by state law.
(b) The Board shall hear and decide appeals from the denial of FPCA
Permits.
(c) The Board shall hear and decide appeals when it is alleged there is
error in any requirement, decision or determination made by an administrative
official in the enforcement or administration of this ordinance.
(d) The Board shall hear and decide applications for Special Exceptions
upon which it is authorized to pass under this ordinance.
(e) The Board may authorize, upon appeal from a decision of the Flood
Plain Administrator, a variance from the requirements of this ordinance in
cases which fall within the provisions of Section 10.
(f) The Board shall interpret the boundaries of the Flood Hazard Dis-
tricts on appeal from a decision of the Flood Plain Administrator.
22
4.7 Hearings and Decisions of the Board of Adjustment
(a) Upon the filing with the Board of Adjustment of an appeal from a
decision of the Flood Plain Administrator, an application for a Special
Exception permit, or an application for a Variance, the Board shall hold a
public hearing. The Board shall fix a reasonable time for the hearing and
give public notice thereof as well as due notice to parties in interest.
At the hearing any party may appear in person or by agent or attorney and
present written and oral evidence for the record which he may have transcribed
by a court reporter. The written transcript, if presented to the Board by
the appellant, shall be part of the record.
(b) The Board shall arrive at a decision on an appeal, Special Exception,
or Variance within 30 days after the hearing. In passing upon an appeal the
Board may in conformity with the terms of this ordinance reverse or affirm,
wholly or in part, or modify the order, requirement, decision or determina-
tion appealed from. The decision shall be in writing setting forth the
findings of fact and rationale of the Board. In granting Special Exceptions
or Variances, the Board may attach appropriate conditions and safeguards
which promote the objectives of this Ordinance. Violation of such conditions
and safeguards shall be deemed violations of this Ordinance punishable under
Section 13.
(c) Appeals from any decision of the Board may be taken by any person
or persons, jointly or separately, aggrieved by any decision of the Board,
or any taxpayer, or any officer, department, board or bureau of the
to the
(local government unit) (name of appropriate court)
as provided in
(statute)
(This provision is modeled after USWRC-Vol. 1, p. 529-30, 6.4. It
includes a very broad standing provision which could be narrowed if desired.
In addition the 30-day period could be expanded to 60 days if a community
feels that the 30-day limit would result in haphazard decisions.)
4.8 Special Exceptions
(a) Applications for uses requiring Special Exception permits shall
be submitted to the Flood Plain Administrator on forms furnished by him.
Upon receipt of the properly completed application, the Administrator shall
submit it to the Board. The application shall contain the following infor-
mation and any additional information requested by the Board:
(1) A map in duplicate, drawn to scale, showing mean high water,
and mean low water and coastal construction setback lines where applicable,
dimensions of the lot, existing structures and uses on the lot and adjacent
lots, soil type, dunes and natural protective barriers, if applicable, existing
flood control and erosion control works, existing drainage elevations and
ground contours, location and elevation of existing streets, water supply,
and santitary facilities, and other pertinent information.
(2) A preliminary plan showing the approximate dimensions, ele-
vation and nature of the proposed use; amount, area and type of proposed fill;
area and nature of proposed grading or dredging; proposed alteration of dunes,
beaches or other natural protective barriers if applicable; proposed roads,
sewers, water and other utilities; specifications for building construction
and materials including floodproofing.
(b) The Board shall transmit one copy of the information described in
Section 4.8(a) to the ____engineer for technical assistance in
(local unit)
evaluating the proposed project in relation to flood heights and velocities,
threatened erosion or wave action, the adequacy of drainage facilities, and
other technical matters.
(c) The Board shall determine the specific flood or erosion hazard at
the site and shall evaluate the suitability of the proposed use in relation
to the flood hazard, and, if a permit is to be issued, may attach appropriate
conditions.
In passing upon such applications, the Board shall consider the tech-
nical evaluation of the engineer, all relevant factors, and standards speci-
fied in other sections of this ordinance, and:
(1) The danger to life and property due to flooding or erosion
damage.
(2) The danger that materials may be swept onto other lands to
the injury of others.
(3) The proposed water supply and sanitation systems and the
ability of these systems to prevent disease, contamination and unsanitary
conditions.
(4) The
to flood damage and
(5) The
to the community.
(6) The
susceptibility of the proposed facility and its contents
the effect of such damage on the individual owner.
importance of the services provided by the proposed facility
necessity to the facility of a waterfront location, where
applicable.
(7) The availability of alternative locations, not subject to
flooding or erosion damage for the proposed use.
(8) The compatibility of the proposed use with existing develop-
ment and development anticipated in the foreseeable future.
(9) The relationship of the
plan and flood plain management program
proposed use to the comprehensive
for the area.
(10) The safety or access to the property in times of flood for
ordinary and emergency vehicles.
(11) The expected heights, velocity, duration, rate of rise and
sediment transport of the flood waters and the effects of wave action, if
applicable, expected at the site.
(12) The costs of providing governmental services during and after
flood conditions including maintenance and repair of public utilities such
as sewer, gas, electrical and water systems, and streets and bridges.
(This provision Is modeled after USVrRC-Vol. 1, p. 531-32, 6.53. In
some states including Florida, additional consideration must be made of the
provisions of Beach and Shore Preservation Acts, see e.g., FLA. STAT. Ch. 161,
(1971) particularly FLA. STAT. 161.052 establishing coastal construction set-
back lines.)
(d) The Board shall hold a hearing on an application for a special
exception to Section 4.7 of this Ordinance within 30 days from receiving the
application.
(This provision is based on USWRC-Vol. 1, p. 532, 6.54, with the in-
sertion of "30 days" as the requisite time limitation.)
(e) Upon consideration of the factors listed above and the purposes
of this Ordinance, the Board may attach such conditions to the granting of
Special Exceptions or Variances as it deems necessary to further the purposes
of this Ordinance.
(This provision is generally based on USWRC-Vol. 1, p. 532, 6.55. How-
ever, enumeration of specific conditions which might be imposed by the Board
was specifically omitted. Such enumeration is not necessary to further the
clear intent of the ordinance, and might serve to limit the creative and
imaginative use of property, which it is hoped this ordinance will encourage.)
SECTION FIVE. ESTABLISHMENT OF ZONING DISTRICTS
The areas within the jurisdiction of
(local unit)
having special flood hazards are hereby divided into three types of Flood Hazard
Districts: Floodway Districts (FWD), Flood Fringe Districts (FFD), and Coastal
High Hazard Districts (CHHD). The boundaries of these districts shall be
designated on the Official Zoning Map.
(This provision is modeled after USWRC-Vol. 1, p. 524, 3.0.)
SECTION SIX. FLOODWAY DISTRICTS (FWD)
6.1 Applicability
The provisions of this section shall apply to all areas designated as
FWD's on the Official Zoning Map.
*6.2 Requirements within a FWD
(a) Within a designated FWD, all fill, encroachments, new construction,
substantial improvements or other development shall be prohibited, except
as otherwise provided herein as a special or permitted use.
(This provision is modeled after 41 Fed. Reg. 1909.3(d)(3) and is
designed to prevent future development in floodways to as great an extent as
possible. Since floodways are required to carry the water in the event of a
flood, they should be limited as far as possible to open space uses.)
*(b) The construction of any portion of a new mobile park or subdivision,
the expansion of an existing mobile home park or subdivision or the location
of any new mobile home not in a mobile home park or subdivision is prohibited
in any FWD.
(This provision is modeled after 41 Fed. Reg. 1909.3(d)(4). It is
designed to prevent location of mobile homes in areas subject to high velocity
SECTION FIVE. ESTABLISHMENT OF ZONING DISTRICTS
The areas within the jurisdiction of
(local unit)
having special flood hazards are hereby divided into three types of Flood Hazard
Districts: Floodway Districts (FWD), Flood Fringe Districts (FFD), and Coastal
High Hazard Districts (CHHD). The boundaries of these districts shall be
designated on the Official Zoning Map.
(This provision is modeled after USWRC-Vol. 1, p. 524, 3.0.)
SECTION SIX. FLOODWAY DISTRICTS (FWD)
6.1 Applicability
The provisions of this section shall apply to all areas designated as
FWD's on the Official Zoning Map.
*6.2 Requirements within a FWD
(a) Within a designated FWD, all fill, encroachments, new construction,
substantial improvements or other development shall be prohibited, except
as otherwise provided herein as a special or permitted use.
(This provision is modeled after 41 Fed. Reg. 1909.3(d)(3) and is
designed to prevent future development in floodways to as great an extent as
possible. Since floodways are required to carry the water in the event of a
flood, they should be limited as far as possible to open space uses.)
*(b) The construction of any portion of a new mobile park or subdivision,
the expansion of an existing mobile home park or subdivision or the location
of any new mobile home not in a mobile home park or subdivision is prohibited
in any FWD.
(This provision is modeled after 41 Fed. Reg. 1909.3(d)(4). It is
designed to prevent location of mobile homes in areas subject to high velocity
waters, thereby preventing damage to the mobile home themselves and to other
structures which could be damaged by floating mobile homes in the event of
flooding.)
(c) In the event that a mobile home location or relocation does not fall
within the provisions of Section 6.2(b), the location or relocation shall be al-
lowed provided that:
(1) Any mobile home site rental or leasing agreement or any contract
for or deed of sale clearly states that the land in question has been designated
as part of a floodway district and may be subject to flooding;
(This provision was included in the original ordinance. The final
federal regulations suggest that its inclusion is encouraged. Section 1910.22
"Planning considerations for flood-prone areas" provides that communities should
consider:
"(c)(3) Full disclosure to all prospective and interested parties
(including but not limited to purchasers and renters) that (i) certain structures
are located within flood-prone areas...")
(2) Any mobile home moved into or relocated within an existing
mobile home park or subdivision shall be anchored in such manner as to resist
flotation, collapse or lateral movement in the event of flooding. The requi-
site anchoring shall be accomplished by:
(i) over-the top ties at each of the four corners of the
mobile home, with two additional ties per side at intermediate
locations, except that mobile homes less than 50 feet long shall
only require one additional tie; and
(ii) frame ties at each corner of the mobile home with five
additional ties at intermediate points, except that mobile homes
less than 50 feet long shall only require four additional ties;
28
(iii) using only ties capable of carrying a force of 4800
pounds; and
(iv) similarly anchoring any additions to the mobile home.
(This provision has been changed to coincide with 1910.3(b)(8)
of the final federal regulations.)
(3) The owner, operator or manager of an existing mobile home park
or subdivision shall file with the
(appropriate disaster preparedness authorities)
land post in a prominent location within the existing mobile home park an
evacuation plan indicating alternate vehicular access and escape routes; and
(4) Easy access for a mobile home hauler is provided.
(This provision is modeled after 41 Fed. Reg. 1910.3(b)(9) which is
incorporated into the floodway provisions of the federal regulations by
41 Fed. Reg. 1910.3(d)(1). This provision is designed to notify mobile home
buyers or renters of the potential danger of the location and to prevent mobile
homes from becoming floating "battering rams" in situations where actually pro-
hibting their location within a Flood Plain would raise serious "taking"
problems. The bracketed portion has been added here and in 8.63(b)(3), since
it is felt that residents of an existing mobile home park within a CHHD, as
well as the official authorities, should have easy access to emergency infor-
mation.)
6.3 Permitted Uses
The following and other similar uses having a low flood damage potential
and not obstructing flood flows shall be permitted within the FWD to the extent
that they are not prohibited by any other ordinance, and provided they do
not require structures, fill, dikes, dumping of materials or waste, or storage
of materials or equipment. No use shall be permitted which acting alone or in
combination with existing or reasonably foreseeable future uses, would result
in a significant increase in the regulatory flood elevation.
(1) Agricultural uses, including general farming, pasture, grazing,
outdoor plant nurseries, horticulture, viticulture, truck farming, forestry,
sod farming, and wild crop harvesting.
(2) Non-structural industrial-commercial uses, including loading areas,
parking areas, and private airport landing strips.
(3) Private and public recreational uses, including golf courses, tennis
courts, driving ranges, archery ranges, picnic grounds, boat launching ramps,
swimming areas, parks, wildlife and nature preserves, game farms, fish
hatcheries for native species, shooting preserves, target ranges, trap and
skeet ranges, hunting and fishing areas, hiking and horseback riding trials.
(4) Residential uses such as: lawns, gardens, parking areas, and play
areas.
(This provision is modeled after USWRC-Vol. 1, p. 524, 4.1, and is de-
signed to delineate the types of open space uses that are acceptable in
floodway areas.)
6.4 Special Exception Uses
(a) The following uses may be permitted only upon application to the
Flood Plain Administrator and the issuance of a special use permit by the
Board as provided in Section 4.8 of this Ordinance, and provided that the
use will not increase the regulatory flood level:
(1) Uses accessory to permitted or special uses;
(2) Circuses, carnivals and similar transient amusement or enter-
tainment;
(3) Drive-in theaters, parking areas, new and used car lots, and
signs;
(4) Extraction of sand, gravel and other materials;
(5) Railroads, streets, bridges, utility transmission lines and
pipelines;
(6) Marinas, boat rentals, docks, piers, and wharves, exclusive
of any structures connected with any of the abovementioned;
(7) Private storage yards of non-floatable equipment, machinery
or materials;
(8) Other uses similar in nature.
(This provision is modeled after USWRC-Vol. 1, p. 524, 4.2.)
SECTION SEVEN. FLOOD FRINGE DISTRICTS (FFD)
7.1 Applicability
The provisions of this section shall apply to all areas designed as flood
fringe districts on the Official Zoning Map.
*7.2 Requirements within a FFD
*(a) Building permits will be required for all proposed construction or
substantial improvement within an FFD.
(b) The shall review all building permit
(local body)
applications to determine if the proposed construction:
(i) is designed and is to be anchored to prevent flotation,
collapse or lateral movement of the structure;
(ii) is to be constructed with materials and utility equipment
resistent to flood damage; and
(iii) is to be constructed by methods and practices that will
minimize potential flood damage.
(This provision has been changed to implement 1910.3(a)(3) of the
final federal regulations.)
*(c) New or replacement water supply and sanitary sewer systems located
within a FFD must be floodproofed as specified in Section 9.
*(d) New construction or substantial improvement of any residential
structure within the FFD shall have the lowest habitable floor, including
basement, elevated to [Optional: at least feet above the regulatory
flood elevation;
*(e) New construction or substantial improvement of any commercial-
industrial or other non-residential structure shall either have the lowest
floor including basement elevated to the level of [Optional: to a level
at least feet above 1 the regulatory flood elevation or together
with attendant utility and santitary facilities be floodproofed to the level
of [Optional: to a level at least feet above the regulatory
flood elevation. All floodproofing shall meet the requirements of Section 9.
(The planning considerations contained in 1910.22 of the final federal
regulations provide that communities should consider: (c)(15) "Requirement
of additional elevation above the base flood level for all new construction
and substantial improvement within ffloodway and flood fringe areas ...to
protect against such occurrences as wave wash and floating debris, to provide
an added margin of safety against floods having a magnitude greater than the
base flood, or to compensate for future urban development.")
*7.3 Mobile Home Restrictions
*(a) The construction of a new mobile home park or subdivision, the
expansion of an existing mobile home park or subdivision, the location of a
new mobile home not in a mobile home park or subdivision or the substantial
improvement of any of the above in a FFD shall be allowed only if the follow-
ing criteria are met:
(1) Adequate surface drainage and easy access for a mobile home
hauler are provided;
(2) Lots or stands are elevated on compacted fill or on pilings
so that the lowest habitable floor on the mobile home is at or above the
regulatory flood level.
(3) If pilings are used ,to comply with the provisions of subsection
(2) above, the lot must be large enough to permit steps and piling foundations
must be placed in stable soil no more than ten feet apart and reinforced if
more than six feet above the ground.
(This provision has been changed to correspond to the requirements of
1910.3(c)(5)-(6) of the final federal regulations.)
(b) In the event that a mobile home location or relocation is not deem-
ed to constitute the expansion of an existing mobile home park as used in Sec-
tion 7.3(a), the location shall be allowed provided that the provisions of
Section 6.2(c)(1)-(4) are complied with.
7.4 Areas of Shallow Flooding
The following provision shall apply to construction in areas of shallow
flooding in lieu of the foregoing requirements of this section.
(a) New construction or substantial improvements of any residential
structures shall have the lowest floor, including basements, elevated above
the crown of the nearest street to or above the expected depth of shallow
flooding.
(b) New construction or substantial improvements of any non-residential
structures shall have the lowest floor, including basement, elevated above
the crown of the nearest street to or above the expected depth of shallow
flooding, or together with attendant utility and sanitary facilities be flood-
proofed to or above that elevation. All such floodproofing shall be accom-
plished in accordance with Section 9 of this ordinance.
(This provision implements 1910.3(c)(7)-(8) of the final federal regu-
lations.)
SECTION EIGHT. COASTAL HIGH HAZARD DISTRICTS (CHHD)
8.1 Applicability
The provisions of this section shall apply to all areas designated as
coastal high hazard districts on the Official Zoning Map.
8.2 Requirements for Development in CHHD's
*(a) Except as otherwise provided herein, all new construction and sub-
stantial improvements within a designated CHHD:
(1) Shall be located landward of the mean high water line rand
of any coastal construction setback line where applicable ;
(The Planning Considerations in 1910.22(c)(14) of the final federal
regulations now state that construction setback lines should be considered in
coastal high hazard areas.)
(2) Shall be elevated on adequately anchored piles or columns
so that the lowest portion of the structural members of the lowest floor is
elevated at least to the regulatory flood elevation f Optional: elevated
at least feet above 1 the regulatory flood elevation and securely
anchored to such piles or columns;
(As indicated in the commentary on the model ordinance, the final federal
regulations call for elevation of the lowest structural members rather than
the lowest floor. 1910.3(e)(4))
(3) Shall have the space below the lowest floor free of obstruction
or constructed with breakaway walls intended to collapse under stress without
jeopardizing the structural integrity of the building; and
(4) Shall be designed and constructed so as to minimize the impact
and effect of abnormally high tides, wind-driven water or waves on the build-
ing.
(b) An application for a building permit in a CHHD shall be accompanied
by a certificate signed by a registered professional engineer, architect or
other professional allowed by law to so certify stating that the structure
has been designed to meet the requirements of Section 8.2(a)(2),(3),(4).
(This provision which was optional in the first model ordinance is now
required by 1910.3(e)(4) of the final federal regulations.)
(c) Fill shall not be used for structural support within a CHHD.
(d) Man-made alteration of sand dunes and manqirove stands which will in-
crease potential flood damage is prohibited wiLhin a CHHD.
(This provision implements 1910.3(e)(8) of the final federal regula-
tions.)
8.3 Mobile Homes within a CHHD
*(a) No new mobile home parks or subdivisions expansion of existing
mobile home parks or subdivisions or location of any new mobile home not in a
mobile home park or subdivision shall be allowed within a designated CHHD.
*(b) In the event that a mobile home location or relocation is not
deemed to constitute the expansion of an existing mobile home park or sub-
division as used in Section 8.3(a), the location or relocation shall be al-
lowed provided that the provisions of Section 6.2(c)(1)-(4) are complied with.
8.4 Guidance of Future Development
The shall wherever possible through
(legislative body of local unit)
zoning, other land use regulations or otherwise encourage open space uses in
areas designated as CHHD's. Open space uses shall include but not be limited
to those listed in Section 6.3.
(The basis for this provision is that CHHD's are areas which by their
very nature are dangerous areas in which to live or build and are therefore
much better suited to open space uses.)
SECTION NINE. FLOODPROOFING
9.1 Minimum Floodproofing Requirements
Wherever any of the provisions of this ordinance require that a
building be floodproofed or specify that floodproofing may be used as an al-
ternative to elevating a structure above the regulatory flood level, flood-
proofing shall be deemed to include all of the following:
(a) Wherever possible the location, construction and installation of
all electrical and gas utility systems in such manner as to assure the con-
tinuing functioning of those systems in the event of a regulatory flood;
(b) The location, construction and installation of all potable water
supply systems in such a manner as to prevent contamination from flood waters
during the regulatory flood. No water supply well shall be located within
the foundation walls of a building or structure used for human habitation,
medical or educational services, food processing or public services;
(c) Approved backflow preventers or devices shall be installed on main
water service lines, at water wells and at all building entry locations to
protect the system from backflow or back siphonage of flood waters or other
contaminants;
(d) Sanitary sewer and storm drainage systems that have openings below
the regulatory flood elevation shall be equipped with automatic back water
valves or other automatic backflow devices that are installed in each dis-
charge line passing through a building exterior wall;
(e) Sanitary sewer systems, including septic tank systems, that are
required to remain in operation during a flood shall be provided with a seal-
ed holding tank and the necessary isolation and diversion piping, pumps,
ejectors and appurtenances required to prevent sewage discharge during a
flood. The holding tank shall be sized for storage of at least
days demand:
(f) All sewer system vents shall extend to an elevation of at least
feet above the regulatory flood elevation.
(g) All construction below the regulatory flood elevation shall be
watertight with walls substantially impermeable to the passage of water.
*(h) A registered professional engineer or architect shall certify
that any new construction or substantial improvement has been designed to
withstand the flood depths, pressure, velocities, impact and uplift forces
associated with the regulatory flood at the location of the building.
(The final federal regulations give communities the option of either
using paragraph (h) above or adopting and submitting detailed floodproofing
specifications. 1910.3(c)(4). Paragraph (h) was included in the original
model ordinance and it is felt that it provides more flexibility than
adopting detailed floodproofing specifications.)
*9.2 Approval of Floodproofing
Prior to construction, plans for any structure that is required to be
floodproofed must be submitted to the ______Engineer
(local unit)
for approval. The ______Engineer will review the plans for
(local unit)
compliance with the provisions of Section 9.1(a)-(h) for compliance with
any other applicable building codes or regulations. The
(local unit)
Engineer shall approve, reject or recommend modifications of the plans within
30 days from their receipt.
SECTION TEN. VARIANCES
10.1 Requirements for Variance
Upon the submission of a written application to the Board a variance may
be granted permitting the erection of structures with a lowest floor ele-
vation, including basement, lower than the regulatory flood elevation but at
least 2 feet above the elevation of the adjoining street if all of the follow-
ing are met:
*(a)(1) The property on which the structure is to be erected is an iso-
lated lot of approximately one-half acre or less, contiguous to and surrounded
by existing structures constructed below such required first floor elevation or
(2) A structure listed on the National Register of Historic Places
or a State Inventory of Historic Places is to be restored or reconstructed; and
*(b) Good and sufficient cause exists for the granting of the variance;
*(c) Failure to grant the variance would result in exceptional hardship
to the applicant; and
*(d) The issuance of the variance would not result in increased flood
heights, additional threats to public safety, extraordinary public expense,
create nuisances, cause fraud on or victimization of the public, or conflict
with existing local ordinances;
*(e) The variance would not have the effect of nullifying the intent
and purpose of the ordinance.
(These provisions implement 41 Fed. Reg. 1910.6(a)(1)-(4). It is
also possible for a community-wide variance for basements to be granted under
41 Fed. Reg. 1910.6(b)(3), and it is even possible under 41 Fed. Reg. 1910.6
(b)(1) to get a variance from the 100-year flood requirement. However,
discussions with FIA officials have indicated that it is extremely unlikely
that e variance would be granted under that provision.
10.2 Procedure for Variances
*'[(a) Variances granted shall become effective only after a description
of the variance and its effect on flood insurance eligibility and premiums
has been recorded with the Clerk of the Circuit Court of
County prior to the issuance of the building permit.1
(The requirement to record the variance was deleted from the final federal
regulations since it conflicted with some state statutes prohibiting the re-
cording of variances. A check with a Florida Clerk indicated that there would
be no problem in recording such a variance. It is suggested that where pos-
sible the above provision be utilized to provide maximum notice to potential
property purchasers.
Additionally, the final federal regulations provide that states should
consider amending recording acts to -llow for adoption of such a requirement.
1910.25(15).)
(b)(1) All applications for variances shall be heard by the Board after
reference to such committees and administrative officials as may be established
for purposes of investigation and recommendation.
(2) Prior to the granting of a variance the Board must find that
justification exists in accordance with the terms of this ordinance. These
findings, together with the grant of a variance, shall be reduced to writing
and made a part of municipal records. Any variance shall pertain to the
particular parcel of land and apply only to the proposed structure set forth
in the variance application.
(3) Such variance shall be freely transferable with the land and shall
not be personal to the applicant.
(4) Unless otherwise provided therein, a variance shall be valid
for a period of one year after the date of its issuance. If construction
has not commenced pursuant thereto within such time, said variance shall be-
come void. Lapse of a variance by the passage of time shall not preclude
subsequent application for variance.
(5) No variance except as herein specifically permitted may be
granted from the provisions of this ordinance. The variance procedures herein
provided shall be the exclusive method for obtaining variances under the pro-
visions herein.
(c) Each written application for a variance shall be accompanied by
a fee of Such application shall reflect the type of structure
or structures for which a variance is sought, the size of such structures, the
approximate location upon the parcel and the intended use thereof.
*(d) Any applicant to whom a variance is granted shall be given notice
that the proposed structure will be located in a flood prone area, that the
structure will be built with a lowest floor elevation feet
below the regulatory flood elevation; rand that the cost of the flood in-
surance will be commensurate with the increased risk resulting from the
reduced first floor elevation.]
(This provision implements 41 Fed. Reg. 1910.6(a)(5). The bracketed
material should be deleted if an adopting community is not entering the NFIP.)
SECTION ELEVEN. NONCONFORMING USES
A structure or the use of a structure or premises which was lawful be-
fore the passage or amendment of this ordinance but which is not in conformity
with its provisions may be continued as a nonconforming use subject to the
following conditions:
(a) No such use shall be expanded, changed, enlarged or altered in any
way which increases its nonconformity.
(b) Any substantial improvement of a nonconforming structure shall be
made in compliance with the provisions of this ordinance.
(c) If such use is discontinued for consecutive months,
any future use of the building premises shall conform to this ordinance.
(d) If any nonconforming use or structure is destroyed by any means,
including flood, to an extent of 50% or more of its market value immediately
prior to the destruction, it shall not be reconstructed except in conformity
with the provisions of this ordinance.
(e) Any use which has been permitted as a Special Exception use and is
in full compliance with this act and attached conditions shall be considered
a conforming use.
SECTION TWELVE. SUBDIVISION REGULATIONS IN FLOOD HAZARD AREAS
(The provision pertaining to subdivisions in the final federal regulations
apply to subdivisions and to other developments greater than 50 lots or 5 acres
whichever is the lesser. 1910.3(b)(3). Therefore, if the statutory defin-
ition of subdivision is greater than 50 lots, appropriate modification of
this ordinance should be made.)
12.1 Applicability
The provisions of this section shall apply to all subdivisions platted
after the effective date of this ordinance which encompass any land which is
designated as having special flood hazards and is shown on the Official Zoning
Map as either a CHHD, FWD or FFD.
12.2 Subdivisions within a FWD
If any portion of a proposed subdivision lies within a FWD, the portion
of land so located shall be developed in accordance with the provisions of
Section 6 of this ordinance.
12.3 Subdivision within a FFD of CHHD
(a) If any portion of a proposed subdivision lies within a FFD or CHHD,
the portion of land so located hall be developed in accordance with either
the provisions of Sections 7 or 8 of this ordinance, whichever is applicable.
(These two types of districts were separated from the FWD because de-
velopment is allowed in both, the only restrictions being in the nature of
elevation requirements.)
(b) The Flood Plain Admiristrator shall require the developer of a
residential subdivision to dedicate areas within a FFD or CHHD to open space
uses such as those specified in Section 6.3 of this ordinance whenever possible
within the provisions of this section. In return for such dedication, the
residential subdivisions shall be given density credits equal in value to the den-
sity of the residential development that would have occurred in the FFD or
CHHD area had it not been dedicated to open space use. These density credits
shall be transferable only to portions of the same proposed residential sub-
division which lie outside flood hazard districts, thereby maintaining the
same total density within the subdivision as if the FFD or CHHD had been de-
veloped.
The provisions of this section shall operate only if the Zoning Adminis-
trator finds:
(1) that the construction of the proposed residential subdivision
without density credit transfer will have adverse effects on existing struc-
tures and uses in the event that flooding occurs; and
(2) that the density credit transfer will not increase the density
of residential development on the land to which the transfer occurs by more
than (r25%1 [1.25 times the density of residential development permissible
prior to the transfer.l ) If this subsection can be satisfied by density
credit transfer from only a portion of the land tying within a CHHD or FFD,
then this section shall apply to only said portion.
(The concept is that flood plains should not be developed if possible,
but "taking" problems may exist if development is prohibited, especially since
the development is allowed under the NFIP. Therefore, whenever possible, a
community should "purchase" the development rights to flood plains from the
subdivider by allowing him to build to the same total density of units as if
all his land were available, but to confine actual construction only to areas
outside the flood plain. The (1.25) figure was suggested by a local govern-
ment official as a means of assuring that a density transfer would not result
in destruction of the overall integrity of an area, e.g., it would prevent
a subdivider who obtained a large amount of flood plains land from trans-
ferring the density credits thereby accrued to a small parcel, resulting in
an authorization for the construction of a highrise in an area of single
family residences. A higher figure may be utilized in less populated areas.
The last sentence of the provision applies to the situation where, be-
cause a large portion of the planned subdivision is within the FFD or CHHD,
the transfer of density credits as otherwise provided would result in an in-
crease of the density of the land not within the FFD or CHHD by a factor
greater than (1.25)(25%). If such a result would occur by strict application
of the density credit transfer to the entire parcel, then credits will be
awarded only for that portion of the land within the FFD or CHHD which will
result in an increase in density of the adjacent land of (1.25 times)(25%)
or less. No further density credits will be allowed, even if additional
portions of the parcel are within the FFD or CHHD and would otherwise entitle
the developer to density credits. A similar concept has been incorporated
in Ordinance No. 0-1-74, Palatine, Illinois.)
12.4 Regulation of Subdivisions already under Construction
If a subdivision plat has been approved, building permits obtained and
construction of the subdivision has already started, as defined in Section
2(28) the following provisions shall apply to any remaining construction
within a FWD, FFD, or CHHD.
(a) All utility systems installed shall be floodproofed in accordance
with the provisions of Section 9 of this ordinance.
(b) All contracts for and deeds of sale entered into or executed after
the effective date of this ordinance shall specify that the land in question
is located within a flood hazard district and may be subject to flooding.
(Due to the federal definition of "start of construction", these pro-
visions would not be allowed in an ordinance adopted to comply with the
federal regulations. Since each new unit constitutes a new "start of con-
struction", the ordinance would be applicable to those homes "started" after
its passage and not to those "started" before. There is no "start of con-
struction" for a subdivision. However, if a court challenge proves success-
ful-see those cases cited in Section 2(22)(d) for the doctrine of equitable
estoppel-this provision can be inserted into the ordinance to plug the gap.)
12.5 Plat Approval
(a) In addition to any other requirements imposed on subdivision plats,
all preliminary or final plats submitted for approval to the _____(
plattingg authority)
shall clearly delineate:
(1) All areas that are designated as being either FWD, FFD or CHHD
zones on the Official Zoning Map;
(2) The regulatory flood elevation at all affected areas on the
plat;
(3) The finished elevation for all streets and lots platted;
(4) All areas for which soil absorption sewage disposal systems
will not properly function due to high ground water elevation or frequent
flooding;
(5) All existing or proposed drainage facilities.
(The idea for these provisions was taken From the Draft Subdivision Or-
dinance, USWRC-Vol. 2, p. 57-73.)
(b) The shall examine all plats for com-
(platting authority)
Spliance with the above regulations and all other pertinent regulations and
may either approve or reject the plat or approve the plat with modifications.
45
SECTION THIRTEEN. PENALTIES FOR VIOLATION
Violation of the provisions of this Ordinance or failure to comply with
any of its requirements, including violation of conditions and safeguards
established in connection with grants of Variances or Special Exceptions,
shall constitute a misdemeanor. Any person who violates this Ordinance or
fails to comply with any of its requirements shall upon conviction thereof
be fined not more than $ or imprisoned for not more than
days, or both, and in addition shall pay all costs and expenses involved in
the case. Each day such violation continues shall be considered a separate
offense.
Nothing herein contained shall prevent the
(local unit)
from taking such other lawful action as is necessary to prevent or remedy
any violation.
SECTION FOURTEEN. SEVERABILITY
If any section, clause, provision or portion of this ordinance is ad-
judged unconstitutional or invalid by a court of competent jurisdiction,
the remainder of this ordinance shall remain in effect.
(These provisions are modeled after USWRC-Vol. 1, p. 534, 523, 8.0,
2.8.)
SECTION THIRTEEN. PENALTIES FOR VIOLATION
Violation of the provisions of this Ordinance or failure to comply with
any of its requirements, including violation of conditions and safeguards
established in connection with grants of Variances or Special Exceptions,
shall constitute a misdemeanor. Any person who violates this Ordinance or
fails to comply with any of its requirements shall upon conviction thereof
be fined not more than $ or imprisoned for not more than
days, or both, and in addition shall pay all costs and expenses involved in
the case. Each day such violation continues shall be considered a separate
offense.
Nothing herein contained shall prevent the
(local unit)
from taking such other lawful action as is necessary to prevent or remedy
any violation.
SECTION FOURTEEN. SEVERABILITY
If any section, clause, provision or portion of this ordinance is ad-
judged unconstitutional or invalid by a court of competent jurisdiction,
the remainder of this ordinance shall remain in effect.
(These provisions are modeled after USWRC-Vol. 1, p. 534, 523, 8.0,
2.8.)
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