Can't Build in the Floodplain? Think Again!
 
December 17, 2002
 

"The most important responsibility of local governments that participate in the National Flood Insurance Program is that of adopting and enforcing local floodplain management regulations."  So we are told in A Local Official's Guide to Implementing the National Flood Insurance Program in Florida,  published by the Florida Department of Community Affairs, State Assistance Office for the National Flood Insurance Program. 

Indeed, enactment of a floodplain management ordinance is essential for participation in the program.  It is the sine qua non for federal disaster relief after a devastating flood.  Accordingly, most jurisdictions within the United States that have any sizable watercourse or water body, have a floodplain ordinance that severely restricts what property owners can do in the floodplain.

The minimum standards that a local community must adopt are set out as very specific criteria, and contained in Title 44 Code of Federal Regulations, (CFR) Chapter 1, Section 60.3, Parts (a), (b), (c), (d), and (e).  These required standards are cumulative and mandatory.  They provide the basis for the ordinance that is adopted by each community participating in the National Flood Insurance Program, throughout the country.

The local floodplain ordinance is usually (but not always) incorporated into the zoning ordinance.  It may be modeled on a canned version published by the Federal Emergency Management Agency as a mock-up for use by localities needing to adopt a floodplain management ordinance in order to comply with the requirements of Title 44 CFR.   If all local jurisdictions used the same model, one would suppose that you may find no irregularities in the functional part of the ordinance. 

But not all of them do use the FEMA model.  And even those who do often can't help getting creative, especially when it comes to defining floodplain.

When In Doubt, Check the Definition Section

The Achilles Heel may be found in the definition section – a place where you may not be initially inclined to look for weaknesses.  The definition of "floodplain" in the zoning ordinance for Fairfax County, Virginia, is an example.  Look hard at the second paragraph:

Those land areas in and adjacent to streams and watercourses subject to continuous or periodic inundation from flood events with a one (1) percent chance of occurrence in any given year (i.e. the 100-year flood frequency event) and having a drainage area greater than 70 acres….

Floodplains shall include all areas of the County which are designated as a floodplain by the Federal Insurance Administration, by the United States Geological Survey or by Fairfax County.  Areas designated as floodplains by the Federal Insurance Administration shall not have their base flood elevation altered without prior approval of the Federal Insurance Administration.

Oddly, this definition allows the boundaries of the county's floodplains – a zoning map classification – to change if the floodplain boundaries are remapped by either the Federal Insurance Administration or by the U.S. Geological Survey.  Yet  most states require notice and a hearing before a zoning classification or designation can be changed.  Virginia is no exception. 

Section 15.2-2204 of the Code of Virginia provides that any changes to the zoning map requires notice and a hearing.  But when the floodplain map boundaries are changed by the Federal Insurance Administration, or by the U.S. Geological Survey – as per the definition -- no such notice is given and the floodplain boundary amendment is void ab initio (Lat. "from the beginning").  The entire ordinance is therefore unlawful.

Perhaps more importantly, the delegation of the floodplain classification by the county governing body to the Federal Insurance Administration or the U.S.G.S. may be an illegal delegation of a legislative act.  The county can no more delegate the change in a zoning map classification to a federal agency than it can delegate the map change to The Loyal Order of Moose.  The ordinance is therefore unlawful on its face, and all restrictions imposed throughout the county by virtue of this ordinance are potentially null and void.

Pre-emption May Save the Day

Even if the local floodplain ordinance is sound, it may not apply to you.  If you are a public utility, such as an electrical power plant or perhaps a liquefied petroleum gas conversion plant, you may be exempt from local ordinances that restrict your use of a floodplain.  Even privately owned utilities may be a "public" utility as that term is defined in your state code.  The utility may merely need to be regulated by your state version of the public utility commission, to be deemed "public."  If so, it is worth taking a look at the pre-emption doctrine in your state.

In San Diego Gas & Electric v. City of Carlsbad, et al., 64 Cal.App.4th 785, 75 Cal.Rptr.2d 534 (1998) the California Court of Appeal, Fourth District, held that the Public Utility Commission's regulation of a power plant impliedly preempted a city's floodplain ordinance that required a special exception to place dredged fill materials in a floodplain.  The Court stated that preemption was necessary to prevent decisions made on the basis of strictly local concerns from impeding or impairing the placement of facilities "necessary for the rational development of a statewide utility system."  The Court deemed protection of the floodplain a "strictly local concern" notwithstanding that the floodplain ordinance had been enacted to permit the city's participation in the National Flood Insurance Program.

For more information, contact Mary Theresa Flynn, toll free, at 888-688-8500.