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FROM: CITY ATTORNEY
DATE: AUGUST 1, 2006
SUBJECT: FLOODPLAIN MANAGEMENT ORDINANCE
INTRODUCE THE ATTACHED ORDINANCE, ORDINANCE NO. ___, AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES ADOPTING FLOODPLAIN REGULATIONS, AND ADDING CHAPTER 15.42 TO TITLE 15 OF THE RANCHO PALOS VERDES MUNICIPAL CODE.
The City is required to enact floodplain management regulations only if it wishes to participate in the National Flood Insurance Program (“NFIP”), which is a voluntary program that makes federal flood insurance policies available to property owners. If the City does not adopt floodplain management regulations, it will be suspended from the NFIP, which means that local property owners will not be able to purchase or renew federal flood insurance policies. All that is required for participation in the NFIP is that the City’s regulations comply with the requirements of 14 C.F.R. § 60.3(a), which generally requires a community to adopt a permitting scheme to ensure future development will be reasonably safe from flooding and flood damage.
The Flood Management Division of the California Department of Water Resources (“Flood Management Division”) has asked the City to adopt the California Model Floodplain Management Ordinance for 44 C.F.R. 60.3(a) Communities (“Model Ordinance”). According to its title page, the Model Ordinance was developed as a tool to help communities meet the minimum requirements for participation in the National Flood Insurance Program (“NFIP”).
The NFIP is a federal program that makes flood insurance available to persons with property located in pre-defined flood zones and is administered by the Federal Emergency Management Agency (“FEMA”). The Flood Management Division is responsible for coordinating the NFIP on a state level in California. According to FEMA’s Community Status Book Report (“FEMA Book Report”), the City is already a participant in the NFIP. The City has received a letter from FEMA informing it that FEMA has made a final determination as to the flood hazards within the City and that it must adopt floodplain management regulations commensurate with the flood risk identified for the City before September 20, 2006, as a condition for continuing participation in the NFIP.
FEMA determined that there were no special flood hazard areas (“SFHAs”) within the City and, consequently that, its floodplain management regulations need only meet the minimum standards of 44 C.F.R. § 60.3(a).
Federally subsidized flood insurance may not be sold or renewed in any community that has not adopted adequate floodplain management regulations. See 44 C.F.R. § 60.1. The criteria employed by FEMA to evaluate the adequacy of local regulations for this purpose are set forth in 44 C.F.R. §§ 60.3(a)-(f), and become increasingly stringent as a function of the type of data FEMA has provided concerning flood hazards in the community. Section 60.3(a) contains the least stringent standards, and Section 60.3(f) contains the most stringent standards.
A community is required to adopt floodplain management regulations at the time it joins the NFIP. See 44 C.F.R § 59.22(a)(3). If, at that time, FEMA has not provided a community with any information regarding flood risks in the community, the community must adopt regulations that meet the minimum requirements of 44 C.F.R. § 60.3(a). See 44 C.F.R. § 60.2(a).
After a community joins the NFIP, FEMA undertakes a study of the community’s flood risks. This involves in part the mapping of a community’s SFHAs. SFHAs are those areas in a community that have a one percent (1%) or greater annual risk of flooding. If after conducting the study, FEMA provides the community with additional data that makes one of the more stringent sets of criteria applicable to the community, the community must update its regulations accordingly. See 44 C.F.R. § 60.2(a). A community that fails to update its regulations at such time must be suspended from the NFIP. See 44 C.F.R § 59.24(a). In this case, it appears that the City never adopted the required minimum regulations when it joined the NFIP.
A community that fails to adopt and enforce adequate floodplain management regulations is subject to suspension from the NFIP. 44 C.F.R. § 59.24. Suspension renders properties located in the communities ineligible for federal flood insurance. See 44 C.F.R. § 59.2(b). As private flood insurance is usually unavailable or prohibitively expensive, in most cases a community’s non-participation in or suspension from the NFIP may effectively bar its residents from obtaining any form of flood insurance. This is significant because the Flood Disaster Protection Act of 1973 requires the purchase of flood insurance “as a condition of receiving any form of Federal or federally-related financial assistance for acquisition or construction purposes with respect to insurable buildings and mobile homes within an identified [SFHA].” 44 C.F.R. § 59.2(a) (emphasis added).
Accordingly, if the City does not enact the proper floodplain management regulations, it will be suspended from the NFIP, and its residents will be unable to purchase federal flood insurance policies. As stated previously, however, it appears that there are no SFHAs in the City. It follows then, that there are no properties in the City that would be required to obtain flood insurance in order to receive federal financial assistance. Thus, the threat of suspension may cause little practical difficulty for the City’s residents. The City Council’s decision whether to enact floodplain management regulations, therefore, is a policy choice of whether ensuring that flood insurance is available to its residents is worth adopting and enforcing the necessary regulations.
The regulations that a community is required to adopt to avoid suspension from the NFIP vary according to the level of flood risk FEMA has identified in the community. When, as here, FEMA has found no special flood hazard areas within a community, the flood management regulations of a community participating in the NFIP must comply with the minimum requirements of 44 C.F.R. § 60.3(a). This section requires that the floodplain regulations in such communities at a minimum:
“(1) Require permits for all proposed or other development in the community, including the placement of manufactured homes, so that it may determine whether such construction or other development is proposed within flood-prone areas;
(2) Review proposed development to assure that all necessary permits have been received from those governmental agencies from which approval is required by Federal or State law, including section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1334;
(3) Review all permit applications to determine whether proposed building sites will be reasonably safe from flooding. If a proposed building site is in a flood-prone area, all new construction and substantial improvements shall (i) be designed (or modified) and adequately anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy, (ii) be constructed with materials resistant to flood damage, (iii) be constructed with electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding.
(4) Review subdivision proposals and other proposed new development including manufactured home parks or subdivisions, to determine whether such proposals will be reasonably safe from flooding. If a subdivision proposal or other proposed new development is in a flood-prone area, any such proposal shall be reviewed to assure that (i) all such proposals are consistent with the need to minimize flood damage within the flood-prone area, (ii) all public utilities and facilities, such as sewer, gas, electrical, and water systems are located and constructed to minimize or eliminate flood damage, and (iii) adequate drainage is provided to reduce exposure to flood hazards;
(5) Requires within flood-prone areas new and replacement water supply systems to be designed to minimize or eliminate infiltration of flood waters into the stems; and
(6) Require within flood-prone areas (i) new and replacement sanitary sewage systems to be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters and (ii) onsite waste disposal systems to be located to avoid impairment to them or contamination from them during flooding.”
44 CFR § 60.3(a).
Although the State Model Ordinance meets all of the federal requirements, there is no requirement in either state or federal law that communities participating in the NFIP must adopt the uniform ordinance. Therefore, the City Council is free to adopt whatever floodplain management regulations it chooses, so long as those regulations contain the provisions quoted above.
Thus, the primary question for the City is how to implement the federal regulatory requirements. Both federal and state law are silent in this regard. For example, there is no requirement that the permit process required by 44 C.F.R. § 60.3(a)(1) must create an entirely new permit. Therefore, the City has considerable flexibility in how to implement the required regulations.
The attached ordinance designates the Director of Public Works as the Floodplain Administrator, who is charged with the responsibility of ensuring that development within the City complies with the provisions of the ordinance.
For sake of administrative ease, the attached ordinance deviates from the model ordinance and simply folds the required review for flood-prone areas into its building permit requirements, instead of requiring a separate permit be issued by the Director of Public Works. (See, Section 15.42.080)
Also, with some proposed developments, it makes more sense for the City to review whether such developments are located in flood-prone areas well before the building permit stage. Therefore, the enclosed ordinance also includes a review process in both Title 16 (Subdivisions) and Title 17 (Zoning) of the Rancho Palos Verdes Municipal Code. The review process under Titles 16 and 17 require the Director of Planning, Building and Code Enforcement to consult the Floodplain Administrator to determine whether an application proposes new construction or development within a flood-prone area so that the development will comply with the requirements of the ordinance.
The City is required to adopt floodplain management regulations only if it wishes to continue to participate in the National Flood Insurance Program. If the City does not adopt the appropriate regulations, it will be suspended from the program and its residents will be ineligible for federal flood insurance. To prevent this outcome, the City must adopt regulations that comply with the requirements set forth in 44 C.F.R. § 60.3(a) by adopting a floodplain management ordinance and transmitting a certified copy of the ordinance to the State and FEMA before September 30, 2006.
Because the Director of Planning, Building and Code Enforcement already asks the City Engineer to review proposed development that is located in an area where flooding could occur, Staff does not anticipate that there will be a fiscal impact to the City arising from the adoption of the ordinance.
Decline to adopt the ordinance, which will mean that the City’s residents will be ineligible for federal flood insurance.
Carol Lynch, City Attorney
ORDINANCE NO. ______
AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES ADOPTING FLOODPLAIN REGULATIONS, AND ADDING CHAPTER 15.42 TO TITLE 15 OF THE RANCHO PALOS VERDES MUNICIPAL CODE.
THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES HEREBY ORDAINS AS FOLLOWS:
Section 1. Findings.
(a) The City of Rancho Palos Verdes (the “City”) seeks to participate in the National Flood Insurance Program (NFIP) in order for owners of property in flood-prone areas within the City to qualify for federally subsidized flood insurance protection.
(b) As a condition of participation in the NFIP, the City is required to adopt and enforce a floodplain management ordinance that complies with NFIP regulations, in order to minimize the hazards of flooding.
(c) All legal prerequisites to the adoption of this Ordinance have occurred.
(d) The City Council hereby finds and determines that there is no possibility that adoption of this Ordinance may have a significant effect on the environment because the purpose of the ordinance is to prevent homes and other structures from being constructed in flood-prone areas. Therefore, pursuant to § 15061(b)(3) of Division 6 of Title 14 of the California Code of Regulations, the adoption of this Ordinance is exempt from the requirements of the California Environmental Quality Act (“CEQA”), as amended, and the CEQA Guidelines promulgated thereunder.
Section 2. Title 15 of the Rancho Palos Verdes Municipal Code is hereby amended by adding new Chapter 15.42 thereto to read as follows:
15.42.010. Statutory Authorization. In adopting Government Code Sections 65302, 65560, and 65800, the Legislature of the State of California conferred upon local governmental entities the authority to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry. Therefore, the City Council of the City of Rancho Palos Verdes does hereby adopt the following floodplain management regulations.
15.42.020. Purpose. To establish land use regulation for properties situated in flood-prone areas so as to:
(a) Minimize property damage due to flood conditions and safeguard public health, safety and general welfare;
(b) Protect human life and health;
(c) Minimize expenditure of public money for costly flood control projects;
(d) Minimize the need for rescue and relief efforts associated with flooding, which generally are undertaken at the expense of the general public;
(e) Minimize prolonged business interruptions;
(f) Minimize damage to public facilities and utilities, such as water and gas mains, electric, telephone and sewer lines; and streets and bridges located in areas of special flood hazards;
(g) Help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future blighted areas caused by flood damage;
(h) Require that potential property buyers are notified that property is in an area of special flood hazard; and
(i) Require that those who occupy the areas of special flood hazard assume responsibility for their actions.
15.42.030 Definitions. Unless specifically defined below, words or phrases used in this chapter shall be interpreted so as to give them the meaning they have in common usage and to give this chapter its most reasonable application.
(a) Area of special flood hazard shall mean the land in the floodplain within the City subject to a one percent (1%) or greater chance of flooding in any given year.
(b) Base flood shall mean a flood which has a one percent (1%) chance of being equaled or exceeded in any given year (also called a 100 year flood).
(c) Development shall mean any manmade change to improved or unimproved real property, including but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials, as defined in Section 17.96.560 of this Code.
(d) Flood or flooding shall mean a general and temporary condition of partial or complete inundation of normally dry land areas from: (1) the overflow of inland or tidal waters; (2) the unusual and rapid accumulation or runoff of surface waters from any source; (3) the collapse or subsidence of land along the shore of a 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 unusual and unforeseeable event that results in flooding, as defined in this definition.
(e) Floodplain or flood-prone area shall mean any land area susceptible to being inundated by water from any source (see definition of flooding).
(f) Floodplain Administrator shall mean the Director of Public Works.
(g) Floodplain management shall mean the operation of an overall program of corrective and preventive measures for reducing flood damage and preserving and enhancing, where possible, natural resources in the floodplain, including, but not limited to, emergency preparedness plans, flood control works, and floodplain management regulations.
(h) Floodplain management regulations shall mean zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as a floodplain ordinance, grading ordinance and erosion control ordinance) and other applications of police power that control development in flood-prone areas. This term describes federal, state or local regulations in any combination thereof, which provide standards for preventing and reducing flood loss and damage.
(i) Governing body shall mean the City Council of the City of Rancho Palos Verdes.
(j) Historic structure shall mean any structure that is:
(1) Listed individually in the National Register of Historic Places (a listing maintained by the United States Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;
(2) Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district;
(3) Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of Interior; or
(4) Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either by an approved state program, as determined by the Secretary of the Interior, or directly by the Secretary of the Interior in states with approved programs.
(k) Manufactured home shall mean a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. Under this chapter, this term does not include a recreational vehicle.
(l) Manufactured home park or subdivision shall mean a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.
(m) New construction shall mean structures for which the "start of construction" commenced on or after the effective date of this chapter, and includes any subsequent improvements to such structures.
(n) One hundred year flood shall have the same meaning as the term "base flood."
(o) Recreational vehicle shall mean any motor home, camper, house or tent trailer that may be used by persons for temporary occupancy (such as recreational, camping, travel or seasonal use), regardless of whether it has its own motor or is to be towed by a motorized vehicle. Recreational vehicle does not mean a manufactured home or mobile home.
(p) Start of construction includes substantial improvement and other proposed new development and shall mean the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement occurs within 180 days from the date of issuance of the permit. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading, and filling; nor does it include the installation of streets and/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. For a substantial improvement to an existing structure, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.
(q) Structure shall mean anything that is built or placed on top of the ground, including a gas or liquid storage tank, as defined in Section 17.96.040 of this Code.
(r) Substantial damage shall mean damage of any origin sustained by a structure whereby the cost of restoring the structure to its pre-damaged condition would equal or exceed fifty percent (50%) of the market value of the structure before the damage occurred.
(s) Substantial improvement shall mean any repair, reconstruction, rehabilitation, addition, or other proposed new development of a structure, the cost of which equals or exceeds fifty percent (50%) of the market value of the structure before the "start of construction" of the improvement. This term includes structures which have incurred "substantial damage," regardless of the actual repair work performed. The term does not, however, include either:
(1) Any project for improvement of a structure to correct existing violations or state or local health, sanitary, or safety code specifications that have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions; or
(2) Any alteration of an "historic structure," provided that the alteration will not preclude the structure's continued designation as an “historic structure.”
15.42.040. Applicability. The provisions of this chapter shall apply to all areas identified as being within a floodplain or within a flood-prone area within the City of Rancho Palos Verdes.
15.42.050. Compliance. No structure or lot or parcel of land shall hereafter be constructed, located, extended, converted, or altered without full compliance with this chapter and other applicable regulations. A violation of any of the provisions of this chapter (including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor. Nothing herein shall prevent the City Council from taking such lawful action as is necessary to prevent or remedy any violation.
15.42.060. Abrogation and Greater Restrictions. This chapter is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this chapter and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail.
15.42.070. Interpretation. In the interpretation and application of this chapter, all provisions shall be:
(a) Considered as minimum requirements;
(b) Liberally construed in favor of the governing body; and
(c) Deemed neither to limit nor repeal any other powers granted under state statutes.
15.42.080. Approval of Development in Flood-Prone Areas. The Floodplain Administrator or his or her designee shall review applications for proposed construction or other development in the City, including the placement of manufactured homes, pursuant to which he or she shall determine whether such construction or development is within flood-prone areas. If the Floodplain Administrator or his or her designee determines that such construction or development is proposed to be within flood-prone areas, he or she shall require such proposed construction or development to be constructed in compliance with this chapter.
15.42.090. Warning and Disclaimer of Liability. The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Flood heights may be increased by manmade or natural causes. Larger floods can and will occur on rare occasion. This chapter does not imply that land outside the Areas of Special Flood Hazards or uses permitted within such areas will be free from flooding or flood damages. This chapter shall not create liability on the part of the City, the City Council or by any officer or employee of the City of Rancho Palos Verdes, the State of California, or the Federal Insurance Administration, Federal Emergency Management Agency, for any flood damages that result from reliance on this chapter or any administrative decision lawfully made hereunder.
15.42.100. Designation of the Floodplain Administrator. The Director of Public Works is hereby appointed to administer, implement, and enforce this chapter.
15.42.110. Duties and Responsibilities of the Floodplain Administrator. The duties and responsibilities of the Floodplain Administrator shall include, but not be limited to, the following:
(a) Permit Review. Review all development permit applications to determine that:
(1) The requirements of this chapter have been satisfied;
(2) All other required state and federal permits have been obtained; and
(3) The site is reasonably safe from flooding.
(b) Establishment of Flood-Prone Areas. The Floodplain Administrator shall obtain, review, and reasonably utilize any base flood data available from any federal or state agency or other source to identify flood-prone areas within the City. This data will be on file at Rancho Palos Verdes City Hall in the Department of Public Works.
15.42.120. Standards of Construction. If a proposed building site is located in a flood-prone area, the following standards must be met:
(a) Anchoring. All new construction and substantial improvements, including manufactured homes, shall be designed or modified to be adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy.
(b) Construction Materials and Methods.
(1) All new construction and substantial improvements, including manufactured homes, shall be constructed with materials and utility equipment resistant to flood damage;
(2) All new construction and substantial improvements, including manufactured homes, shall be constructed using methods and practices that minimize flood damage;
(3) All new construction and substantial improvements, including manufactured homes, shall be constructed with electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding.
15.42.130. Standards for Subdivisions or Other Proposed New Development. If a subdivision proposal or other proposed new development, including manufactured home parks or subdivisions, is in a flood-prone area, any such proposals shall be reviewed to assure that:
(a) All such proposals are consistent with the need to minimize flood damage within the flood-prone area;
(b) All such proposals have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize or eliminate flood damage; and
(c) All such proposals shall have adequate drainage provided to reduce exposure to flood hazards.
15.42.140. Standards For Utilities.
(a) All new and replacement water supply and sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharge from the systems into flood waters.
(b) On-site waste disposal systems shall be located to avoid impairment to them, or contamination from them during flooding.”
Section 3. A new Section 16.04.070 is hereby added to Chapter 16.04 of Title 16 of the Rancho Palos Verdes Municipal Code to read as follows:
“16.04.070 Review for development within flood-prone areas. The Director of Planning, Building and Code Enforcement shall consult with the Floodplain Administrator to determine whether an application proposes new construction or other development within a flood-prone area, as defined in Chapter 15.42 of Title 15 of the Rancho Palos Verdes Municipal Code.”
Section 4. A new Section 17.76.170 is hereby added to Chapter 17.76 of Title 17 of the Rancho Palos Verdes Municipal Code to read as follows:
“17.76.170 Review for development within flood-prone areas. The Director of Planning, Building and Code Enforcement shall consult with the Floodplain Administrator to determine whether an application proposes new construction or other development within a flood-prone area, as defined in Chapter 15.42 of Title 15 of the Rancho Palos Verdes Municipal Code.”
Section 5. Severability. The City Council declares that, should any provision, section, paragraph, sentence or word of this Ordinance be rendered or declared invalid by any final court action in a court of competent jurisdiction, or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs, sentences and words of this Ordinance shall remain in full force and effect.
PASSED AND ADOPTED this _____ day of ______________, 2006.
I, Carolynn Petru, City Clerk of the City of Rancho Palos Verdes, do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Rancho Palos Verdes held on the _____ day of ___________, 2006, and was finally passed at a regular meeting of the City Council of the City of Rancho Palos Verdes held on the _____ day of ___________, 2006 by the following vote:
AYES: COUNCIL MEMBERS: