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Thread: Validity of moratorium for grading permits during the window where FEMA adopts maps

  1. #1
    Cyburbian CDT's avatar
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    Validity of moratorium for grading permits during the window where FEMA adopts maps

    We have a situation where our local NRD performed a study and found drastic differences in the FP and FW along our creek. We've had development pressure within some of these areas that will be future FP and FW. I am trying to find as much information to support a temporary moratorium as possible. My understanding is that a moratorium may be legal if it serves a legitimate interest. This would obviously protect people and the environment until the draft DFIRMs are adopted as the official DFIRMs. We're looking at 1 year until the maps are formally adopted. I know we can ask the CC to adopt the draft maps, but I want to know our moratorium options. So far, I am thinking about the Homebuilders of the Greater E. Bay V Livermore as a potentially related case.

    Thoughts, cases, information? Thanks!

    ETA: we have a grading permit request for a property. It's not zoned or platted. We could limit use of the property by through zoning or platting due to the current changes in progress, however they are asking now for a grading permit.
    Moderator note:
    Please fully spellout all acronyms. Some (ie most) will not know what they stand for.

    Thanks,
    mendelman
    Last edited by mendelman; 06 Feb 2008 at 4:15 PM.

  2. #2
    I take it that you've had a creek study done and discovered that the floodway and floodway fringe elevations have risen and therefore the profiles have changed. On those grounds I think you could have reasonable grounds for a moratorium -- so long as you follow your state statutes. There's the rub: in most cases I am familiar with, moratoria must be as short as possible, the thought being this will keep governments from depriving owners of legitimate development rights through moratoria that never really end. Whether you can get a moratorium approved on the open-ended adoption of digital flood insurance rate maps -- perhaps a year or more in the future -- is another story.

    Here in the Hoosier State, grading in a floodway would require a permit from the Indiana Department of Natural Resources (Division of Water). Without that permit, I'm not issuing a local permit for the grading.

    I think you could hang your hat on your creek study as the "Best Available Information". Using those elevations (which can reasonably be expected to be the basis of the FW elevations of the DFIRM), you could require the grading to meet the flood plain requirements of your ordinance and allow the development to proceed.
    On pitching to Stan Musial:
    "Once he timed your fastball, your infielders were in jeopardy."
    Warren Spahn

  3. #3
    Cyburbian CDT's avatar
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    You are correct. The NRD (Natural Resources District) performed a study and has new base flood elevations. Once FEMA (Federal Emergency Management Agency) completes the public comment period they will officially accept the maps, then there's a waiting period for people to purchase insurance.

    Can you think of any case law that's tested this power?

    Part of my problem is that our lovely, non-land use City Attorney has said we cannot deny flood plain development permits. I totally disagree because our code states or "best available information". We want to put together a compelling argument for the City Attorney to help him better understand our zoning powers in order to gain his written opinon that it's legal.

    Do you believe the East Bay case is an appropriate parallel and do you know of any others? Meanwhile I will verify our state statute requirements. On this I believe it's silent.

    Sorry about all the acronyms.

    CC City Council
    FP Floodplain
    FW Floodway
    DFIRM Draft Flood Insurance Rate Map
    NRD Natural Resources District

  4. #4
    I did a search but was unable to find the East Bay opinion. Do you have a link? I am unaware of any other opinions that might be relevant.

    More to the point, though, is to have your City Attorney understand that permitting development in the as-yet-to-be-regulated floodway -- when the community knows or should know that it is floodway -- might lead to suspension or revocation of your participation in the national flood insurance program. Were that to happen, all those property owners that have purchased flood protection would be rightly ticked. If there should happen to be a flood, the Mayor's phone line would light up like the approaches to ORD. Even if the City would be found not liable, there would be tort claims galore.

    Not least would be to contact your FEMA regional office and discuss it with them. I've found Region V folks to understand that many communities do not have access to corporate counsel that is trained in land use issues and are willing to partner with professional planners to help educate your atorney on these matters.

    Of course, this would be a whole lot easier of the developer would come to his senses and realize it is in his best (read: economic) interest to abide by the stricter floodway profiles. Is that even a possibility?
    On pitching to Stan Musial:
    "Once he timed your fastball, your infielders were in jeopardy."
    Warren Spahn

  5. #5
    Cyburbian CDT's avatar
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    Here's what I have regarding that case:

    ASSOCIATED HOME BUILDERS OF GREATER EAST BAY v. CITY OF
    LIVERMORE (1976, California Supreme Court): Temporary moratoriums on building permits were upheld in California.

    City of Livermore (1976) 18 Cal.3d 582:
    The amendment of the California Constitution in 1911
    to provide for the initiative and referendum signifies
    one of the outstanding achievements of the progressive
    movement of the early 1900s. Drafted in light of the
    theory that all power of government ultimately resides
    in the people, the amendment speaks of the initiative
    and referendum, not as a right granted the people, but
    as a power reserved by them. (Id. at p. 591.)
    [T]he courts have described the initiative and referendum as articulating one of the most precious rights of our democratic process. (Id. at p. 591, citation omitted.)

    Funny metaphor with ORD (O'Hare Airport). That's very true. Is there a specific clause from FEMA that you're thinking of? I just contacted our natural resources floodplain person and he indicated that FEMA has said that we may operate off of our approved maps, even though the other maps are -to be approved. I am still going to pitch the moratorium idea with the above case as rationale. In the end we could just adopt the draft maps, but that gets a lot more political since we throw it into the city council ring.

  6. #6
    I just found this link by googling "FEMA Best Available Information". The City of Lincoln, NE adopted their NRD study as an interim measure until DFIRMs went online.

    http://www.lincoln.ne.gov/city/counc...207/07r45f.pdf
    On pitching to Stan Musial:
    "Once he timed your fastball, your infielders were in jeopardy."
    Warren Spahn

  7. #7
    Cyburbian Queen B's avatar
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    Do you have a State Level Floodplain Administrator?
    That is where we go for back up.

    Development pressure?
    I generally give them a good bit of pressure back. I would show them the maps and explain what the issues are in building there, but I am sure you have done that.

    I agree best available information but certainly I would make every attempt to make them build to the newer standard. Especially in the Floodway. If they go in there now and start messing around it will make your new maps worthless because the studies will be void.

    I would really give them the speech about how you could be kicked out of the program if you do not make them comply. I generally tell them that it is not just about them and their land but if I allow them to do something that FEMA does not allow then they are putting everyone else that is counting on that insurance at risk and they don't have that right.


    Feel free to PM me with more specifics or if you need to find more backing in your area.

    Queen B, CFM. (Certified Floodplain Manager)
    It is all a matter of perspective!!!

  8. #8
    Cyburbian CDT's avatar
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    Quote Originally posted by Gedunker View post
    I just found this link by googling "FEMA Best Available Information". The City of Lincoln, NE adopted their NRD study as an interim measure until DFIRMs went online.

    http://www.lincoln.ne.gov/city/counc...207/07r45f.pdf
    That's right in my backyard. Lincoln's 60 miles away from me. I happen to be friends with their Watershed Management director. I will call her and ask her how that process went for them. They had a city council memeber who was anti-watershed management (eye-roll).

    As far as I am aware we do not have a state floodplain manager. That may be due to our natural resources district structure. They are essentailly regional floodplain managers. I will PM you. Thanks!

  9. #9
    Cyburbian The One's avatar
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    Ahh....

    Didn't you already receive the preliminary FEMA maps to review? Those would tell you where new flood zone A's and AO's and AH's would be....? Our maps didn't have major changes, at least not in populated areas requiring consideration of such drastic action. I've always been told that we should rely on the most recent and best data available, so if the preliminary maps show a floodzone.....don't issue the grading permit without a revision. We use the draft DFIRMS when considering permit requests.
    Skilled Adoxographer

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