|Legal Opinion: |
Text of Document: October 9, 2008
I have reviewed the Municipal Floodplain Zoning Ordinance, looked at all the cases I can find on the question of whether such ordinances comply with ' 60.3, and have reviewed a considerable number of floodplain ordinances I found on Google. As you probably know, the definitions that apply in the interpretation and application of ' 60.3, and with which the City Attorney are concerned, are actually found in ' 59.1. I compared all the definitions found there with the definitions found in the Municipal Floodplain Zoning Ordinance. As the City Attorney says, there are differences in some of the definitions, but I am not sure there is enough difference to render the Municipal Floodplain Zoning Ordinance less strict than the standards that apply to floodplain ordinances under ' 60.3 Under ' 60.3 floodplain ordinances can be stricter than the standard contained therein. With respect to at least some of the definition comparisons, that appears to be the case with the Municipal Floodplain Zoning Ordinance.
My review of the cases and of many floodplain ordinances disclosed none that incorporate by reference either the definitions in ' 59.1, or all or a part of the flood plain standards in ' 6.03. I would have thought that would have been done someplace. At the same time, I did not find a single case in which a floodplain ordinance was challenged on the grounds that its definitions were defective, or that its provisions were inadequate under ' 60.3. The fact that no such challenge appears does not mean that one will not appear, but the possibility seems quite small. However, I need to compare the Municipal Floodplain Zoning Ordinance and ' ' 59.1 and 60.3 again, to see if I come out the same way. I am going to be out town tomorrow through next Wednesday, but I will do that as soon as I get back.
But as I pondered the question of whether either the incorporation by reference of ' ' 59.1 and 60.3 into the Municipal Floodplain Zoning Ordinance is the best way to approach any gaps
between those documents, I began to wonder whether there is some other way to generally improve the ordinance to intercept any problems that might be found with it.
In my research on the FEMA Website, I ran across a brief FEMA publication entitled Floodplain Management Ordinances, and under NFIP Policy Index, it contains these subheading:
- NIP Requirement
- Related Keywords
Under Definition/Description, this text appears:
Once FEMA provides a community with the flood hazard information upon which floodplain management regulations are based, the community is required to adopt a floodplain management ordinance that meets or exceeds the minimum NFIP requirements. The overriding purpose of the flood plain management regulations is to ensure that participating communities take into account flood hazards, to the extent that they are known, in all official actions relating to land management and use.
The specific requirements are in Section 60.3 of the NFIP regulations, and apply to communities as follows:
60.3(a) - FDMA has not provided any maps or data
60.3(b) -FDMA has provided a map with approximate A zones
60.3(c) - FDMA has provided a FIRM with BFEs
60.3(d) - FDMA has provided a FIRM with BFEs and a map that shows a flood way
60.3(e) - FDMA has provided a FIRM that shows coastal high hazard areas (V Zones). It is important that these requirements are minimum. In addition, these requirements are cumulative.
Perhaps I am missing something, but it strikes me that rather than incorporating either ' 59.1 or ' 60.3, a floodplain ordinance could be written in which the definitions in ' 59.1 could be laid out, with such additions and changes that are appropriate, and containing exactly the ' 60.3 subheadings indicated in the FEMA publication, with the text of the standards contained in each of those subheadings, with such additions that are more restrictive than the standards found under those subheadings. I have read ' ' 59.1, 60.3, (and 60.1 and 60.2), and it seems to me that such an approach to the Municipal Floodplain Zoning Ordinance is workable, and avoids the confusion of working with the Ordinance and those two separate CFR sections.
I concede that not a single floodplain ordinance I have reviewed uses that approach, and maybe there is a good reason for it. In fact, most of the floodplain ordinances do attempt to be consistent with ' ' 59.1 and 60.3, but not in the above format. But it seems to me that FEMA itself has laid out a rather model path to follow for drafting a floodplain ordinance, making it clear that the ordinance follows down the same path as the ' ' 59.1 and 60.3, again, with the appropriate additions and changes. Hopefully, such a floodplain ordinance would be clear to its drafters, to the developers and builders to whom it applies, and to the courts if the occasion arises when the ordinance is challenged. Everyone would be on the same page with respect to ' 60.3. What I am suggesting is a clear marriage between the Municipal Floodplain Zoning Ordinance and ' ' 59.1 and 60.3.
I am also sending to the City Attorney a copy of this letter to see what he thinks.
Sidney D. Hemsley
Senior Law Consultant