Unit 7:

Ordinance Administration

In this unit

This unit covers things you need to know to effectively administer your
floodplain management ordinance, including

-   The legal basis for your ordinance,

-   The duties and qualifications of the person who administers it,

-   How to process permits,

-   Conducting inspections,

-   Enforcement tools,

-   Appeals and variances, and

-   Record keeping.

Contents

Introduction 7-[4](#__RefHeading___Toc413571293)

A. The Ordinance 7-[5](#__RefHeading___Toc413571294)

Statutory authority 7-[5](#__RefHeading___Toc413571295)

Types of ordinances 7-[6](#__RefHeading___Toc413571296)

Zoning ordinance 7-[6](#__RefHeading___Toc413571297)

Building codes 7-[6](#__RefHeading___Toc413571298)

Subdivision regulations 7-[7](#__RefHeading___Toc413571299)

Sanitary regulations 7-[7](#__RefHeading___Toc413571300)

"Stand alone" ordinance 7-[8](#__RefHeading___Toc413571301)

Contents 7-[9](#__RefHeading___Toc413571302)

B. The Administrator 7-[11](#__RefHeading___Toc413571303)

Duties 7-[11](#__RefHeading___Toc413571304)

Qualifications 7-[13](#__RefHeading___Toc413571305)

Training 7-[14](#__RefHeading___Toc413571306)

Liability 7-[15](#__RefHeading___Toc413571307)

Learning Check #1 7-[18](#__RefHeading___Toc413571308)

C. Development Permits 7-[20](#__RefHeading___Toc413571309)

When a permit is required 7-[20](#__RefHeading___Toc413571310)

Exemptions 7-[22](#__RefHeading___Toc413571311)

Permit application form 7-[22](#__RefHeading___Toc413571312)

Application review 7-[23](#__RefHeading___Toc413571313)

Review for completeness 7-[23](#__RefHeading___Toc413571314)

Review for compliance 7-[26](#__RefHeading___Toc413571315)

Application approval or denial 7-[27](#__RefHeading___Toc413571316)

Learning Check #2 7-[35](#__RefHeading___Toc413571317)

D. Inspections 7-[36](#__RefHeading___Toc413571318)

First inspection 7-[36](#__RefHeading___Toc413571319)

Second inspection 7-[36](#__RefHeading___Toc413571320)

Checking elevations 7-[37](#__RefHeading___Toc413571321)

Third inspection 7-[38](#__RefHeading___Toc413571322)

Certificate of occupancy 7-[38](#__RefHeading___Toc413571323)

Later inspections 7-[38](#__RefHeading___Toc413571324)

Learning Check #3 7-[40](#__RefHeading___Toc413571325)

E. Enforcement 7-[41](#__RefHeading___Toc413571326)

Voluntary compliance 7-[41](#__RefHeading___Toc413571327)

Administrative steps 7-[41](#__RefHeading___Toc413571328)

Legal recourses 7-[42](#__RefHeading___Toc413571329)

Section 1316 7-[43](#__RefHeading___Toc413571330)

F. Appeals, Special Uses and Variances
7-[44](#__RefHeading___Toc413571331)

Appeals 7-[44](#__RefHeading___Toc413571332)

Special uses 7-[44](#__RefHeading___Toc413571333)

Variances 7-[44](#__RefHeading___Toc413571334)

Boards 7-[44](#__RefHeading___Toc413571335)

Variances 7-[44](#__RefHeading___Toc413571336)

NFIP requirements 7-[45](#__RefHeading___Toc413571337)

Historic buildings 7-[53](#__RefHeading___Toc413571338)

Functionally dependent use 7-[53](#__RefHeading___Toc413571339)

Records 7-[54](#__RefHeading___Toc413571340)

Learning Check #4 7-[55](#__RefHeading___Toc413571341)

G. Records 7-[56](#__RefHeading___Toc413571342)

Permit file 7-[56](#__RefHeading___Toc413571343)

Elevation certificate 7-[57](#__RefHeading___Toc413571344)

Floodproofing certificate 7-[58](#__RefHeading___Toc413571345)

V Zone certification 7-[59](#__RefHeading___Toc413571346)

No-rise certification 7-[59](#__RefHeading___Toc413571347)

Biennial report 7-[60](#__RefHeading___Toc413571348)

Learning Check #5 7-[62](#__RefHeading___Toc413571349)

Unit learning exercise 7-[63](#__RefHeading___Toc413571350)

Answers to the learning checks 7-[65](#__RefHeading___Toc413571351)

Learning check #1 7-[65](#__RefHeading___Toc413571352)

Learning check #2 7-[65](#__RefHeading___Toc413571353)

Learning check #3 7-[67](#__RefHeading___Toc413571354)

Learning check #4 7-[68](#__RefHeading___Toc413571355)

Learning check #5 7-[70](#__RefHeading___Toc413571356)

Unit Learning Exercise 7-[72](#__RefHeading___Toc413571357)

[]{#__RefHeading___Toc413571293 .anchor}Introduction

Generally, the NFIP does not have specific requirements on how local
ordinances should be administered.

The NFIP does require that the local ordinance be legally enforceable
and enforced uniformly throughout the community (44 CFR 60.1(b)). There
are also some record keeping requirements that assist in verifying
community and building compliance with the regulations.

If FEMA finds that a community's program is not in full compliance with
its NFIP obligation, then it may require certain administrative
adjustments to the program. How the program is administered, though, is
dependent on the enabling legislation and the community.

This unit, therefore, is primarily a series of recommended
administrative procedures. Those items that are NFIP requirements are
highlighted in the "44 CFR" regulation boxes.

[]{#__RefHeading___Toc413571294 .anchor}A. The Ordinance

This course assumes that your community has a floodplain regulation
ordinance in effect. While the course does not provide a model ordinance
or ordinance language, it does describe the significance of your
ordinance, and how to enforce some of its provisions.

If you need to enact or revise your floodplain regulations, contact your
state NFIP coordinator to see if there is a model appropriate to your
state laws and flooding conditions that you could use as a foundation
for your local ordinance.

[]{#__RefHeading___Toc413571295 .anchor}Statutory authority

As used in this course, [ordinance]{.underline} is the generic term for
a law passed by a local government. In some states it is called a
"by-law" or some other name.

In all states, the authority to enact an ordinance comes from state law.

Communities are created by their state. Their powers are granted by and
limited by state law or [statutory authority]{.underline}, which is also
known as [enabling legislation]{.underline}. Your state has a specific
law or set of laws authorizing your community to enact and enforce
floodplain regulations. That law probably sets these parameters:

-   The purpose and limits of the regulatory authority---for example,
    your community may not be able to regulate development projects
    undertaken by state agencies or public utilities.

-   Minimum regulatory standards---many states mandate a certain
    building code or floodway encroachment standard.

-   Prerequisites for enacting or amending the ordinance---a zoning
    ordinance may have to be based on a comprehensive plan or be adopted
    only after a public hearing.

-   Requirements for issuing variances or allowing special uses.

-   Prerequisites for the administering official---the community may
    have to have a certified building official enforce its building
    code.

Some state laws provide for state oversight of local regulations. In
some cases, developers must apply to the state for a permit. In other
cases, they may appeal to the state if they feel the community has not
interpreted the regulations correctly.

In most states, local laws are subject to "Dillon's rule," named after a
judge named Dillon who ruled in the 19th Century that because local
governments are created by state government, they can do only what state
laws specifically authorize.

If an action is not authorized by statute, a community cannot do it.

At one time, some communities did not have the statutory authority to
implement the minimum NFIP regulatory requirements. FEMA worked with
those states, so now all communities (cities and counties) should have
all the authority they need to fulfill their NFIP obligations.

In some states, larger communities may be granted [home
rule]{.underline}. A home rule community is authorized to do anything
that is not prohibited by statute. However, zoning and building laws are
usually specific enough that even home rule communities must follow
their provisions.

[]{#__RefHeading___Toc413571296 .anchor}Types of ordinances

Floodplain regulations are usually found in one of four types of rules:
zoning ordinances, building codes, subdivision regulations, sanitary
regulations, and "stand alone" ordinances. Each is explained below.

[]{#__RefHeading___Toc413571297 .anchor}Zoning ordinance

A zoning ordinance regulates development by dividing the community into
zones or districts and setting development criteria for each district.
Two approaches address development in floodprone areas: separate
districts and overlay zoning.

In a separate district, the floodplain can be designated as one or more
separate zoning districts that only allow development that is not
susceptible to damage by flooding. Appropriate districts include public
use, conservation, agriculture, and cluster or planned unit developments
that keep buildings out of the floodplain, wetlands and other areas that
are not appropriate for intensive development.

Overlay zoning adds special requirements in areas subject to flooding.
The areas can be developed in accordance with the underlying zone,
provided the flood protection requirements are met. As illustrated in
Figure 7-1, there may also be setbacks or buffers to protect stream
banks and shorelines or to preserve the natural functions of the
channels and adjacent areas.

[]{#__RefHeading___Toc413571298 .anchor}Building codes

A building code establishes construction standards for new buildings.
The code may or may not set site or location requirements as a zoning
ordinance does.

Many communities have adopted one of these national model building
codes:

-   The National Building Code of the Building Officials and Code
    Administrators (BOCA) has its flood resistant design and
    construction standards in Chapter 31.

-   The Standard Building Code of the Southern Building Code Congress
    International (SBCCI) has a separate standard for flood resistant
    design and construction which is referenced in Chapter 31 and
    automatically adopted with the code.

-   The Uniform Building Code of the International Conference of
    Building Officials (ICBO) has a separate appendix that must be
    specifically adopted by reference.

-   The One and Two Family Dwelling Code of the Code Administrators and
    Building Officials (CABO) has no flood resistant design and
    construction standards but does have drainage provisions.

Many, but not all, NFIP regulatory requirements appear in parts of these
codes. The Standard Building Code has a separate section devoted to
floodplain management standards.

![](media/image1.png){width="5.488194444444445in"
height="2.7090277777777776in"}You should not assume that since your
community uses one of these codes that all your regulatory requirements
are covered.

Figure 7-1. Example of overlay zoning

[]{#__RefHeading___Toc413571299 .anchor}Subdivision regulations

Subdivision regulations govern how land will be divided into single
lots. They set construction and location standards for the
infrastructure the developer will provide, including roads, sidewalks,
utility lines, storm sewers and drainageways.

As noted in Unit 6, Section C, subdivision regulations offer an
opportunity to keep buildings out of the floodplain entirely with
cluster developments.

They can also require that every lot have a buildable area above the
BFE, include dry land access and meet other standards that provide more
flood protection than a building code can.

[]{#__RefHeading___Toc413571300 .anchor}Sanitary regulations

The NFIP's requirements for water and sewer system protection are
sometimes best located with the regulations that set the construction
standards for these systems.

[]{#__RefHeading___Toc413571301 .anchor}"Stand alone" ordinance

Many, if not most, communities in the NFIP have enacted a separate
ordinance that includes all the NFIP regulatory requirements, usually
based on a FEMA or state model.

The advantage of doing this is that one ordinance contains all
floodplain development standards. Developers can easily see what is
required of them, and FEMA and the state can easily see if your
community has adopted the latest requirements.

The disadvantage to a separate ordinance is that it may not be
coordinated with other building, zoning or subdivision regulations. Some
communities have found that by adopting a stand alone model, they adopt
standards that are inconsistent or even contrary to the standards in the
other regulations. For example, your building code may require
crawlspace vents to be high, near the floor joists, while the floodplain
ordinance requires them to be no more than one foot above grade.

If you have a stand alone ordinance, you should review its provisions
with all other offices and ordinances that regulate land development and
building construction. Make sure that others know the floodplain
regulations and that there are no internal inconsistencies. For example,
a floodplain ordinance administered by the city engineer may not be
coordinated with the permit process conducted by the building
department.

[]{#__RefHeading___Toc413571302 .anchor}Contents

Whether your floodplain regulations are in one ordinance or several,
they should have these provisions:

-   Purpose: Why was the ordinance adopted? What are its objectives?
    This provision helps set the tone for regulatory standards. For
    example, if the only purpose of the ordinance is to meet the NFIP
    minimum building requirements, a court may rule that it should not
    have higher regulatory standards that protect life safety.

-   Definitions: What technical terms are needed? Most ordinances have
    to define terms like "development," "building," "base flood
    elevation" and "lowest floor" in order for the regulations to be
    clearly understood.

-   Adoption of flood data: Your community needs to adopt the flood
    maps, profiles and other regulatory flood data. This provision may
    need to be amended when new studies are published or new areas are
    annexed.

-   Requirement for a development permit: Your ordinance must have a
    development permit process. Relying on your community's building
    code or zoning ordinance permit process may not be sufficient
    because those programs may not require permits for all development,
    including fill, mining, etc.

-   Construction standards: This is the meat of the ordinance. It should
    cover all of the NFIP standards discussed in Unit 5 and additional
    regulatory standards required by the state or that the community
    deems appropriate. The standards should include provisions for:

-   Building protection standards (elevation, floodproofing, anchoring)

-   Standards for manufactured (mobile) homes and manufactured home
    parks

-   Construction standards peculiar to the flood zones in your
    community, such as V, AO, AH and A99

-   Construction in the floodway and standards for encroachments where
    floodways are not mapped

-   Standards for subdivisions

-   Standards for water and sewer service

-   Rules on water course alterations

-   Designation of administrator: The community must officially
    designate one person responsible for administering the ordinance.
    This provision may list that person's duties, as detailed in the
    next section.

-   Appeals process: The regulations need to provide a way for people to
    appeal or request a variance when they feel that the construction
    standards are overly harsh or inappropriate. This process should be
    handled by a separate body, such as a board of appeals or planning
    commission; it should not be left up to the decision of a single
    person, such as the administrator.

-   Enforcement: The ordinance must have enforcement procedures
    clarifying penalties for violations. These are usually fines and
    orders to correct the violation.

-   Abrogation and greater restriction: This is a legal provision that
    specifies that the ordinance take precedence over less restrictive
    requirements.

-   Severability: This is a statement that the individual provisions are
    separable and if any one is ruled invalid, it does not affect the
    rest of the ordinance.

[]{#__RefHeading___Toc413571303 .anchor}B. The Administrator

The state grants communities the police powers to adopt, administer and
enforce local codes and regulations, including floodplain regulations.
Generally, elected officials delegate authority for ordinance
administration and enforcement to a subordinate officer.

A local floodplain administrator might be an existing local staff
person, such as the building inspector, community zoning official,
engineer or planner. The community also might contract to have the job
done by the county, regional planning agency, another jurisdiction or
authority, or a private firm.

Throughout this course, the person designated as responsible for
administering the floodplain management ordinance is called "the
administrator." This course also assumes that you are the administrator,
so the terms "you" and "the administrator" are used interchangeably.

[]{#__RefHeading___Toc413571304 .anchor}Duties

In general, the administrator is responsible for ensuring that
development activities comply with the floodplain management regulations
and other applicable codes and ordinances.

Duties of the administrator vary depending on the kind, size and
characteristics of the community. However, certain responsibilities are
common to all ordinance administrators. Here is a list of such duties:

**Understand the regulations:** This is the most important of all of
your duties and is the main subject of this course. A sound working
knowledge of the general and technical provisions of various federal,
state and local regulations is essential. You must be able to explain
them to others, to review permit applications for compliance, and to
provide adequate interpretations.

**Ensure that permits are applied for:** Often people do not realize
that they need to apply for a permit for a project in the floodplain.
You need to ensure that the public is informed as to when permits are
needed and how they are obtained. Anyone engaged in a development
project without a permit must be told to stop and apply for one.

**Correct violations:** You must evaluate complaints, conduct
investigations and use legal recourse when necessary to correct
violations.

**Process permit applications:** Your primary role is to review permit
applications for compliance with applicable local regulations. This
involves:

-   Collecting permit fees, where applicable.

-   Assessing the accuracy and completeness of the application.

-   Evaluating site plans, topographic data, building design plans and
    other technical data.

-   Identifying deficiencies and devising ways to correct them.

-   Issuing or denying the permit.

-   Helping applicants pursue appeals or requests for variances.

**Coordinate with other programs:** Responsibility for permit review may
reside in or be shared with other offices, such as public works,
planning and zoning, code enforcement or housing departments. Depending
on your duties, your may be involved in coordinating permit reviews.

You must advise the applicant of any need for additional local, state or
federal permits for the proposed development. Your office could have
copies of the permit application forms or advise applicants whom to
contact.

One of your NFIP responsibilities is to notify adjacent communities and
the state NFIP coordinating agency prior to any alteration or relocation
of a watercourse. You must submit evidence of such notification to the
FEMA Regional Office.

You should also notify adjacent communities of plans for a substantial
commercial development or large subdivision that could affect their
flood hazard areas.

**Ensure projects are built according to approved permits:** You or your
staff must perform periodic and timely on-site inspections to confirm
visually that development is following the approved plans. The best way
to do this is with a series of inspections at appropriate stages in the
construction process, as discussed later in this unit. A certificate of
use or occupancy is a final permit that allows the owner to use the
building. It should not be given until a final inspection confirms that
everything was done according to the approved plans.

**Take enforcement actions:** When noncompliant activities are
uncovered, you must act to resolve the situation. This may involve
issuing stop-work orders or other violation notices, coordinating
enforcement procedures with the community's attorney, or appearing in
court.

**Keep records:** You should have on hand a sufficient supply of current
permit applications, variance requests and other administrative forms. A
project file should be kept for each development permit application.

**Maintain and update flood data and maps:** As noted in Unit 4, Section
D, your community should maintain an adequate supply of maps showing the
regulatory floodplain for your office and the public to use. All map
corrections and notices of map revisions should be recorded and denoted
on administrative maps, with the details kept in an indexed file.

You should also cooperate with federal, state and local agencies, and
private firms, undertaking flood studies. You must submit any new
floodplain data to the FEMA Regional Office within six months of their
development. Community staff should review revisions to maps (including
Conditional Letters of Map Revision and Letters of Map Revision) to
ensure they meet your regulations.

You must notify the FEMA Regional Office and the state within one year
of an annexation or when your community has assumed or relinquished
authority to adopt or enforce floodplain management regulations for a
particular area.

**44 CFR 59.22(a)(9)(v)** Upon occurrence, \[the community must\] notify
the Administrator in writing whenever the boundaries of the community
have been modified by annexation or the community has otherwise assumed
or no longer has authority to adopt and enforce flood plain management
regulations for a particular area. In order that all FHBMs and FIRMs
accurately represent the community\'s boundaries, include within such
notification a copy of a map of the community suitable for reproduction,
clearly delineating the new corporate limits or new area for which the
community has assumed or relinquished flood plain management regulatory
authority.

You must notify the FEMA Regional Office and the state within six months
of physical changes that can affect flooding conditions, such as channel
modifications or upstream detention.

**44 CFR 65.3.** A community\'s base flood elevations may increase or
decrease resulting from physical changes affecting flooding conditions.
As soon as practicable, but not later than six months after the date
such information becomes available, a community shall notify the
Administrator of the changes by submitting technical or scientific data
in accordance with this part. Such a submission is necessary so that
upon confirmation of those physical changes affecting flooding
conditions, risk premium rates and flood plain management requirements
will be based upon current data.

**Update the ordinance:** If your community is notified of changes in
federal or state laws and/or regulations that would require changing
your floodplain management ordinance, you must revise your ordinance
within six months.

**44 CFR 60.7.** From time to time Part 60 may be revised as experience
is acquired under the Program and new information becomes available.
Communities will be given six months from the effective date of any new
regulation to revise their flood plain management regulations to comply
with any such changes.

Similarly, if you are given new flood data by FEMA, you have six months
to update your ordinance to adopt the data and the regulatory
requirements appropriate for that level of data (Unit 5, Section A,
Community Types relates the level of data to the regulatory
requirements).

**44 CFR 60.2(a)** A flood-prone community ... will be given a period of
six months from the date the Administrator provides the data set forth
in § 60.3(b), (c), (d), (e) or (f), in which to meet the requirements of
the applicable paragraph.

A certified copy of any ordinance revision should be submitted to the
FEMA Regional Office and to the state NFIP coordinating agency promptly
after adoption.

[]{#__RefHeading___Toc413571305 .anchor}Qualifications

Your state may set minimum requirements for the person who administers
the floodplain management ordinance, such as stipulating that the post
be held by a certified building official. A few states are encouraging
or requiring that the ordinance be administered by a "certified
floodplain manager," a new certification that may be conferred by your
state or the floodplain management association in your state.

In most instances, there are no specific qualifications or
prerequisites. This does not mean just anyone can do any part of the job
of administering the ordinance. One of your jobs is to make sure that
the person with the right qualifications helps you. You will probably
need help from three other professions:

-   Some tasks should be conducted by an engineer experienced in
    hydrologic and hydraulic studies, such as reviewing a developer's
    flood study before you accept new flood elevations.

-   While the NFIP allows any properly appointed local administrator to
    complete an elevation certificate, some states require that such
    work only be done by registered land surveyors.

-   You should always consult your community's attorney before you
    initiate an enforcement action.

[]{#__RefHeading___Toc413571306 .anchor}Training

In many cases, only you will have the expertise needed to administer
your ordinance. As the administrator, you will probably be your
community's primary source of information on:

-   The basic NFIP requirements.

-   Additional requirements of your ordinance.

-   How to use the NFIP maps and regulatory flood data.

-   How maps are reviewed and revised.

-   When permits are needed.

-   Whether a proposed project meets the ordinance's standards.

-   Whether a completed project complies with the approved plans.

-   What records are needed.

-   How to deal with citizens and builders.

-   How to deal with violations.

-   How floodplain development regulations and flood insurance rating
    are related.

-   Where citizens and builders can get more information or help.

These topics are not taught at any high school or college. To learn
these things you will need additional training. Here are some ways to
get it:

-   Complete this home study course.

-   Spend time with the floodplain administrator in a neighboring
    community.

-   Check with the FEMA Regional Office and/or the state NFIP
    coordinator before you issue your first few permits or certificates
    of occupancy.

-   Request a Community Assistance Visit whereby a FEMA or state person
    will visit you and review your procedures.

-   Attend a workshop put on by your state NFIP coordinator.

-   Attend a meeting or conference of your state or national floodplain
    management association (contact the state coordinator for
    information about these associations).

-   If available before you take a certification test, attend a
    recommended training or refresher course.

-   Attend the Emergency Management Institute.

-   Visit FEMA's web site periodically ([http://www.fema.gov)]().

-   Order and review the publications listed in Appendix C.

The Emergency Management Institute (EMI) in Emmitsburg, Maryland,
provides several courses related to the administrator's job. While you
would not need to take the resident course that has the same name as
this one, EMI offers three others that would be helpful:

-   National Flood Insurance Program/Community Rating System

-   Digital Hazard Data (how to use digital FIRMs and other data)

-   Retrofitting Floodprone Residential Buildings

These courses are designed to give you step-by-step practical knowledge
and experience. In addition, by attending an EMI course you meet other
local administrators from around the country from whom you also can
learn the ins and outs of floodplain management administration.

EMI courses run Monday through Friday, two to four times a year. They
are free for state and local officials. Generally FEMA will pay
transportation to Emmitsburg and will house you in dormitories on
campus. For more information, See Appendix G, ask your local emergency
manager, or call EMI at 800/238-3358.

[]{#__RefHeading___Toc413571307 .anchor}Liability

Ordinance administrators naturally fear they could be sued if a person
gets flooded or a building is damaged by a flood. Debated nationally for
some time, this issue has been studied extensively by Dr. Jon Kusler, a
nationally known attorney in floodplain management law.

Dr. Kusler summarized his most recent findings in *Floodplain Management
in the United States: An Assessment Report*, Volume 2, prepared for the
Federal Interagency Floodplain Management Task Force, 1992.

Excerpts from that report are quoted here. However, your community\'s
legal department should provide more specific guidance.

-   Government agencies are generally not liable for flood damage unless
    the flood was caused by a government action. "Except in a few
    instances, governments are not liable for naturally occurring flood
    damages. Government has, in general, no duty to construct dams,
    adopt regulations, or carry out other hazard reduction activities
    unless required to do so by a statute. It is only where a government
    unit causes flood damages or increases natural flood damages that
    liability may arise." (*Floodplain Management in the United States:
    An Assessment Report*, Volume 2, *Page 1012*)

-   Liability is based on negligence; a community is well defended by a
    properly administered program. "In general, government units are not
    \'strictly or absolutely\' responsible for increased flood damages.
    Liability usually results only where there is a lack of reasonable
    care. \... Where the standard of reasonable care is judicially
    applied to an activity, the seriousness of foreseeable threat to
    life or economic damage is an important factor in determining
    reasonableness of conduct. In general, the more serious the
    anticipated threat, the greater the care the government entity must
    exercise. (*Floodplain Management in the United States: An
    Assessment Report*, Volume 2, *Page 1013*)

-   Policy or discretionary actions are more defensible than
    nondiscretionary, ministerial actions. It is better to have clear
    standards spelled out in the ordinance adopted by your governing
    board than to leave a lot of interpretation up to the administrator.
    "As a general rule, courts do not hold legislative bodies or
    administrative agencies liable for policy decisions or errors in
    judgment where the legislature or agency exercises policymaking or
    discretionary powers. But they often hold agencies responsible for
    failure to carry out nondiscretionary duties or for negligence in
    carrying out ministerial actions." (*Floodplain Management in the
    United States: An Assessment Report*, Volume 2, *Page 1013*)

-   "\... from a legal perspective it may be desirable to submit
    proposed standards \... to a community\'s legislative body (e.g.,
    community council) for debate and approval. Due to the special way
    legislative decisions are treated by the courts, legislative
    judgments, particularly those of a discretionary nature, are less
    likely to result in a successful liability suit than are agency
    decisions. Courts generally defer to legislative judgment."
    (*Floodplain Management in the United States: An Assessment Report*,
    Volume 2, *Page 1017*)

-   Government employees are usually protected from liability suits.
    "Although governments may be liable for increased flood or drainage
    losses in a broad range of contexts, government employees are
    usually not personally liable for planning, permit issuance,
    operation of dams, adoption of regulations or other activities. \...
    No personal liability results where a government employee acts in
    good faith, within the scope of his or her job, and without malice.
    Successful lawsuits for hazard-related damages against government
    employees under common law theories or pursuant to Section 1983 of
    the Civil Rights Act are apparently nonexistent." (*Floodplain
    Management in the United States: An Assessment Report*, Volume 2,
    *Pages 1013 - 1014*)

Based on these findings, you can protect yourself from lawsuits by:

-   Adopting sound and appropriate flood protection standards: Remember,
    NFIP standards are minimums. Buildings should not be allowed in a
    mountainous floodplain with no warning time and very high
    velocities, even though the NFIP minimums would allow it. If you
    know flooding could be or has been higher than the BFE shown on the
    FIRM, you are not doing your residents any favors by allowing them
    to build buildings exposed to a known hazard.

-   Becoming technically competent in the field: You won\'t be sued if
    you have ensured that the project was properly constructed. There is
    no grounds for a suit if no one is damaged by flooding: "\...
    \'liability can be avoided if flood damages are avoided.\' From a
    legal perspective, this is a sound philosophy." (*Floodplain
    Management in the United States: An Assessment Report*, Volume 2,
    *Page 1017*)

-   Insuring the community: Your community may want to purchase
    liability insurance or establish a self-insurance pool or plan to
    protect itself.

-   Encouraging property owners to buy flood insurance coverage. If
    people are compensated for any flood losses, they are less likely to
    file a lawsuit.

-   Adopting an ordinance provision that exempts the community from
    liability. Several states' model ordinances have language like the
    following:

**Disclaimer of Liability:**

\(i\) The degree of flood protection required by this ordinance is
considered reasonable for regulatory purposes and is based on available
information derived from engineering and scientific methods of study.

\(ii\) Larger floods may occur or flood heights may be increased by
man-made or natural causes.

\(iii\) This ordinance does not imply that development either inside or
outside the SFHA will be free from flooding or damage.

\(iv\) This ordinance does not create liability on the part of the City
or any officer or employee therefore for any flood damage that results
from reliance on this ordinance or any administrative decision made
lawfully thereunder. (*Floodplain Management in Northeastern Illinois*,
Illinois Department of Natural Resources, 1996, p. 56)

[]{#__RefHeading___Toc413571308
.anchor}![](media/image2.wmf){width="0.5701388888888889in"
height="0.6770833333333334in"} Learning Check #1

> 1\. Review your floodplain regulations and identify where the
> following provisions are found.

-   Purpose statement

-   Definitions of

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-   base flood elevation

-   building or structure

-   development

-   floodway

-   lowest floor

-   substantial improvement

-   substantial damage

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-   Adoption of the FIRM or other floodplain map

-   Adoption of the Flood Insurance Study

-   Requirement for a permit for all development in the floodplain

-   Construction standards:

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-   floodway construction (if applicable)

-   encroachment analysis where floodways are not mapped

-   building elevation criteria

-   floodproofing criteria

-   anchoring requirements

-   standards for manufactured (mobile) homes

-   standards for manufactured home parks

-   construction standards in V Zones

-   construction standards peculiar to the zones in your community

-   standards for subdivisions

-   standards for water and sewer service

-   rules on water course alterations

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-   Designation of administrator

-   Duties of the administrator

-   Appeals process

-   Enforcement procedures and penalties

-   Abrogation and greater restriction

-   Severability

> 2\. Check your community's other regulatory ordinances to determine if
> there are any inconsistencies between them and your floodplain
> construction standards.

[]{#__RefHeading___Toc413571309 .anchor}C. Development Permits

Once the ordinance is in force, any development or change in land use
requires authorization, generally in the form of a permit from the local
administrator or agency. This section of Unit 7 discusses the permit
review process that leads to approval or denial of an application.

This discussion reviews a standard process. It is not a mandatory
process, but it does ensure that all of your NFIP requirements will be
met. If your community has a permit process that has proven successful,
you should review this section to see if there are things you would want
to add to your process.

Figure 7-2 shows the permit process that forms the organization for this
section. To facilitate your work, you may want to develop your own
checklist. An example developed by the State of South Carolina is at the
end of this section in Figure 7-3.

[]{#__RefHeading___Toc413571310 .anchor}When a permit is required

A permit is required for almost any development-related change to the
floodplain, including but not limited to:

-   Construction of new structures

-   Modifications or improvements to existing structures

-   Excavation

-   Filling

-   Paving

-   Drilling

-   Driving of piles

-   Mining

-   Dredging

-   Land clearing

-   Grading

-   Permanent storage of materials and/or equipment

While most communities have issued building permits for some time, most
usually don't have a permit system for such a wide range of activities
as "development" Regulation of all development in floodplains is
essential because fill or other material can obstruct flood flows just
as structures can.

Figure 7-2. Permit process flow chart

[]{#__RefHeading___Toc413571311 .anchor}Exemptions

Your statutory authority may limit your community's ability to regulate
some development. The most common limitation is over activities by
federal agencies, tribal lands, state agencies, other local governments,
and public utilities. Check with your state NFIP coordinator to
determine what is exempt from a local ordinance.

**44 CFR 60.1(b)** These regulations must be legally-enforceable,
applied uniformly throughout the community to all privately and publicly
owned land within flood-prone ... areas, and the community must provide
that the regulations take precedence over any less restrictive
conflicting local laws, ordinances or codes.

You cannot exempt activities by your own community government. Just
because the public works department doesn't get a permit from the
building department does not mean that it doesn't have to follow the
NFIP rules that govern all development within your statutory authority.

If State actions are exempt from your permit authority, your state
should have adopted floodplain management requirements that are
comparable to your ordinance. This is usually in the form of a
governor's executive order. Similarly, Federal agency activities are
subject to the provisions of Executive Order 11988 Floodplain
Management.

You do have some discretion to exempt obviously insignificant activities
from the permit requirement---such as planting a garden, farming,
putting up a mailbox or erecting a flagpole. Other projects, such as
reroofing and replacing siding, will not affect flood flows or be
labeled substantial improvements See also the discussion on the NFIP's
development permit requirements in Unit 5, Section C.

Some communities specify exempt projects in their ordinances. Check with
your state coordinating agency and/or FEMA Regional Office before you do
this, because you don't want to exempt projects that could be considered
floodway violations or substantial improvements.

[]{#__RefHeading___Toc413571312 .anchor}Permit application form

A good administrative form can serve as a checklist for identifying the
kinds of information that should accompany a permit application.

Your community should have its own permit application form. Figure
7-4*,* at the end of this section, is the model form developed by the
state of North Carolina. It contains all the required information for a
floodplain development permit application. Your form may be different,
but the review process is the same.

[Note]{.underline}: If you use the form in Figure 7-4 to develop your
own permit application program, be sure to include all other state and
local requirements. You may want to include checklists of items you will
need to look at.

Where a particular activity that is required by the NFIP regulations is
mentioned in this unit's text, the reference to 44 CFR Part 60 is
included in brackets (e.g. \[44 CFR 60.3(c)(5)\]). These activities must
be included in the permit process in order for the community to remain
in full compliance with the NFIP.

Forms are a valuable and necessary tool in reviewing development
proposals for regulatory compliance. When designed properly, they can be
the most efficient way to get information that is essential to
conducting an effective and thorough review. The forms should be revised
periodically to remain current with changes in the floodplain management
ordinance and to include pertinent information.

[]{#__RefHeading___Toc413571313 .anchor}Application review

Submission of a development permit application starts the permit
process.

Before submitting an application, the prospective applicant often will
contact you to obtain a copy of the regulations, locate the proposed
site in relation to the NFIP maps, determine flood elevations, or gather
procedural and technical information needed to complete the application.

This informal part of the permit process can be important in guiding the
applicant to locate and design the development in compliance with local
regulations. It also can help the applicant to prepare a complete
application, avoiding unnecessary delays at the outset.

Some communities ensure that the permit process will go smoothly by
having a formal pre-application meeting with a developer to review a
preliminary plan.

[]{#__RefHeading___Toc413571314 .anchor}Review for completeness

The application package should contain all the administrative forms,
plans, blueprints and technical documentation required for you to review
the proposed project for regulatory compliance. If the application
package is incomplete, the review can't go forward. The applicant should
be advised of missing documents and told that the review will not start
until the missing documents are submitted.

Some states and communities require that a permit be issued within so
many days of receipt of the application. You should not officially
"receive" the application or log it in until it has been reviewed and
determined to be complete.

You should review the package in a timely manner. The review should
include the following procedures:

**1. Make sure all administrative forms are completed satisfactorily and
properly signed***.* Scan the administrative forms to ensure that all
questions have been answered. If important items are left blank or not
addressed completely, bring them to the attention of the applicant for
completion.

Inaccurate information also should be brought to the attention of the
applicant. Your review should be halted until deficiencies are
corrected.

**2. Briefly review site plans, grading and excavation plans, and
building design plans for completeness**. Depending on the specificity
or detail of the administrative forms, the various plans that accompany
the application will provide the technical data needed for a thorough
review.

The site plan is a critical component of floodplain development
proposals. Such a plan should show:

-   Location of property lines.

-   Required set backs lines and easements.

-   Topographic information, such as contour lines or spot elevations.

-   Streets.

-   Watercourses.

-   Existing and proposed structures.

-   Proposed building elevations of all new construction and the
    existing lowest floor for substantially improved or substantially
    damaged structures.

-   All clearing, filling and other proposed changes to the ground.

-   Floodway and floodplain boundaries.

-   Base flood elevations.

-   In V zones, the line of the mean high tide and Zone V/Zone A
    boundary; if there is more than one Zone on the lot, the BFE and
    boundary locations should be depicted on the plans.

When a plan is prepared by a registered professional architect, engineer
or land surveyor, it should be stamped with the license seal to certify
technical accuracy.

**3. Ensure that all necessary certifications are included and properly
signed.** The applicant must provide all completed certifications needed
for the permit review.

Based on the minimum NFIP requirements, four situations would require
the filing of certified documents with the permit application:

-   Floodway encroachment: If any part of the proposed project is to be
    located in a designated floodway, the applicant must submit an
    engineering certification and documentation demonstrating that the
    proposed encroachment would not result in any increase in base flood
    heights. If the project is in a riverine floodplain where no
    floodway has been adopted, the certification would show that there
    the project will not exceed the allowable increase a flood heights.
    This certification could be the same as the No-Rise Certification
    shown in Figure 5-5. \[44 CFR 60.3(c)(10) and (d)(3)\]

-   Floodproofed building: In the event a nonresidential structure is to
    be floodproofed, the applicant must submit a statement from a
    registered professional engineer or architect certifying that the
    design and methods of construction meet these standards \[44 CFR
    60.3(c)(4)\]. A second, as-built, certificate is also required to be
    submitted later.

-   Enclosures below the lowest floor. Unit 5, Section E covered the
    requirements for openings in enclosures. If an applicant designs an
    enclosure below the lowest floor using an alternative to the NFIP
    standard, a registered professional architect or engineer must
    certify the design \[44 CFR 60.3(c)(5)\]. If a full-story enclosure
    is planned below the elevated lowest floor, you should require the
    applicant to sign a non-conversion agreement such as the one in
    Figure 5-13.

-   V Zone construction. An applicant proposing to construct a building
    in a V zone must supply a statement from a registered professional
    architect or engineer certifying the design and method of
    construction of the elevated building and the design of breakaway
    walls \[44 CFR 60.3(e)(4)\]. See Figure 5-18 for an example. An
    as-built certificate is also recommended to be submitted later

**4. Ensure that all necessary federal and state permits are being
obtained.** You must review the application package to determine whether
federal and state permits are necessary \[44 CFR 60.3(a)(2)\]. To help
you and the applicant, you might include the agency or program names as
a checklist on your permit application form.

When obtaining federal and state approval takes a long time, you may
condition issuance of your permit on the applicant's obtaining such
permits later. The applicant should provide documentation to the
administrator stating that the required federal and state permits have
been applied for, and that portion of the project affected by needed
permits will not proceed until those permits are issued.

For example, getting a Section 404 wetlands permit from the Corps of
Engineers may take several months. Under such circumstances, you may
issue a local permit with the stipulation that the applicant must have
submitted all required permits before beginning construction. You can
verify this at your first inspection.

**5. Submit copies of appropriate parts of the application package to
other departments for review.** Depending on the type and size of the
proposed development and on the regulatory responsibilities of other
departments or offices in your community, the applicant should submit a
sufficient number of copies to allow for others' review.

Here are some departments and agencies who might need to review a
portion of the application:

-   Building department.

-   Zoning department.

-   Engineer's office.

-   Health department (septic system approval).

-   FEMA Regional Office (for assistance in evaluating a no-rise
    floodway application, change to a floodway delineation or other
    activity that will result in a map revision).

-   State NFIP coordinating agency (state permit requirements,
    alteration or relocation of a watercourse).

-   U.S. Army Corps of Engineers (404 permit, technical assistance).

-   Environmental Protection Agency.

-   State public health agency (permits for hospitals, nursing homes,
    etc.).

-   Natural Resources Conservation Service (impact of subdivisions and
    other large development on the natural resources of the area).

-   Adjacent communities (alteration or relocation of a watercourse).

If your office hasn't done this already, you should contact these
agencies, determine what, if anything, they need to review, and prepare
a checklist for permit applicants that advises them of the other
approvals that will be needed.

[]{#__RefHeading___Toc413571315 .anchor}Review for compliance

Now that you have a complete application package, follow these
recommended procedures to verify that the project will meet all of your
ordinance requirements.

**1. Examine site information.** Check the site plan to ensure the that
plotted floodplain, floodway, and V Zone boundaries appear accurately
plotted. Look for possible obstructions in the floodway and other
potential violations.

Inspect the plan carefully and compare it with the FIRM, floodway map
and profile. In coastal areas, you should determine if the site is in a
COBRA zone and so advise the applicant/property owner (COBRA zones are
explained in Unit 3, Section F and Unit 9, Section D).

Some project sites may be located close to the boundaries of the SFHA.
Because the map scale is small, or it is difficult to pinpoint the
project site, you may have trouble determining whether the project will
be in or out of the SFHA. See Unit 4, Section B, on making floodplain
and floodway boundary determinations.

*Remember, a floodplain development permit is required only if the
planned structure is located within the SFHA.* For example, while the
applicant's property may be located partially in the SFHA, the proposed
structure would be built on land outside the SFHA. In this case,
floodplain regulations would not apply and no special floodplain
development permit is needed. However, if clearing, grading, filling, or
road or bridge construction associated with erecting the structure is
within the SFHA, a permit is necessary.

Note that while you can use better ground elevation data to determine
that a building location is above the BFE (and therefore outside the
SFHA), the property will remain in the SFHA on the FIRM. That means that
it is still subject to the flood insurance purchase requirement and the
rates will be set at SFHA rates. It is the owner's responsibility to
submit a request for a Letter of Map Amendment (LOMA) in order to have
the FIRM reflect the better data (see Unit 4, Section D for more
information on LOMAs).

**2. Review building plans*.*** If a building site is in the SFHA, all
buildings must be protected to the BFE or higher.

In this course, the term "building" is the same as the term "structure"
in the NFIP regulations. Your ordinance may use either term. The terms
are reviewed in more detail in Unit 5, Section E.

The application package must include building design plans that show:

-   The kind and potential use of the structure.

-   The elevation of the lowest floor.

-   The type of foundation system.

-   The existence of any enclosure below the lowest floor, along with
    electrical and plumbing plans for the area, location of openings and
    materials proposed for use in an enclosure below the BFE.

-   The height to which a nonresidential structure is to be floodproofed
    and the complete list of floodproofing techniques to be used, with
    detailed drawings

Any conflict or inconsistency with applicable regulations will require
adjustments to the building plans.

**3. Have the community's engineer review engineering documents.** As
listed previously,  depending on the type and location of the structure
being proposed, as many as four engineering documents or certifications
are needed to show compliance with NFIP requirements concerning floodway
encroachment, floodproofing, enclosures below the lowest floor and V
Zone construction.

All engineering documents should be examined by your community's staff
engineer, or a consulting engineer available to perform reviews, to
ensure that acceptable technical standards were used and that
calculations are correct. If your community does not have a staff
engineer, the state NFIP coordinating agency or FEMA Regional Office may
be able to help review the data.

[]{#__RefHeading___Toc413571316 .anchor}Application approval or denial

Once you complete your review of the permit application papers for
completeness and technical compliance with the ordinance, a decision on
the application is due.

**If the proposed development is in compliance with regulations, issue a
permit.** The permit becomes the official authorization from the
community allowing the applicant to proceed, based on the information
submitted in the application package. A sample permit developed by the
North Carolina state NFIP coordinator is shown in Figure 7-5.

Somewhere in the permit record, such as the approved plans, the
application form or the permit form itself, a record should be kept of
the base flood elevation and the required floor elevation. There should
also be a general state­ment that all construction will be in accordance
with all codes and ordinances (see Section 1, item 6 in Figure 7-4).

The day a permit is issued is the date of the "start of construction,"
provided construction begins within 180 days. Used for insurance rating
purposes, this date determines what FIRM was in effect when the building
was built, regardless when ground was broken or construction was
finished.

For regulatory purposes, a permit may be effective or valid for a
certain period of time, according to the standard used in your other
regulations. If at the end of this period the project is not complete,
the permit technically expires. However, ordinances routinely provide
for the permit officer to issue written extensions to allow completion
of the development under the conditions of the original permit.

**If the application is not in compliance with local regulations, the
permit should be denied.** The applicant then can choose to:

-   Withdraw the permit application.

-   Redesign the project to bring it into compliance with regulations.

-   Appeal to the Board of Appeals.

-   Ask for a variance to the regulations.

While you may not be formally required to disclose the reasons for
denying an application, it is good policy to do so in writing. This
tells the applicant what areas are noncompliant so that if he or she
wishes to resubmit the application, appropriate corrections can be made.

Appeals and variances are covered in Section F of this unit. Clarifying
the deficiencies for the applicant also can help reduce the number of
appeals of administrative and regulatory decisions you make

Building Permit Number: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

  ----------------------------------- -----------------------------------
  Applicant\'s Name:                  Owner\'s Name:

  Site Address, Tax #, Parcel #:      Address:

  Telephone:                          Telephone:
  ----------------------------------- -----------------------------------

**I. All development - Base Flood Elevation Data provided.**

A. The as-built elevation certification from a registered land surveyor
or

professional engineer has been submitted?  Yes  No

B. The lowest floor elevation is at or above the required lowest floor
elevation?  Yes  No

C. Electrical, heating, ventilation, plumbing, air conditioning
equipment (including

duct work) and other service facilities are located above BFE or
floodproofed?  Yes  No

**II. Development in Zones A, AE, A1-A30 and AH.**

*A. Solid foundation perimeter walls located below BFE.:*

1\. There are at least two (2) openings?  Yes  No

2\. Square footage of enclosed area subject to flooding
\_\_\_\_\_\_\_\_\_\_\_

3\. Square inches of venting required \_\_\_\_\_\_\_\_\_\_\_

4\. Square inches per opening (multiply l by w) \_\_\_\_\_\_\_\_\_\_\_

5\. Number of required vents (3 above divided by 4 above)
\_\_\_\_\_\_\_\_\_\_\_

6\. Foundation contains the minimum number of vents?  Yes  No

7\. The bottom of each opening is no higher than one (1) foot above
grade?  Yes  No

8\. Any cover on openings will permit the automatic flow of floodwaters

in both directions?  Yes  No

*B. Base flood elevation and/or floodway data not available or AO
Zones:*

1\. The lowest floor is at least three (3) feet above the highest
adjacent grade?  Yes  No

2\. The development meets the setback requirements of the ordinance? 
Yes  No

3\. If 2 above was \"no\", has a No-Rise Certification been submitted? 
Yes  No

Reviewer\'s Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_ Date reviewed:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

*C. Floodway data is provided.*

1\. Did this development encroach in the floodway?  Yes  No

2\. Do the actual field conditions meet the proposed actions and
technical

data requirements?  Yes  No

3\. If C1 was \"yes\", has a No-Rise Certification been submitted?  Yes
 No

Reviewer\'s Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_ Date reviewed:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**III. Development in Zones V, VE, and V!-V30, VO (Coastal High Hazard
Areas).**

A. Development location complies with all coastal setback requirements?
 Yes  No

B. Structure is securely anchored to pilings or columns and
certification by a

registered, professional architect or engineer has been submitted?  Yes
 No

Reviewer\'s Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Date reviewed:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

C. Walls permitted below the base flood elevation consist of decorative
lattice work

or, where permitted, are breakaway and have been certified by a
registered,

professional architect or engineer?  Yes  No

Reviewer\'s Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Date reviewed:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Local Administrator\'s Signature:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Date : \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Figure 7-3. Sample permit review checklist

(Developed by the South Carolina Department of Natural Resources)

![](media/image5.png){width="6.358333333333333in"
height="8.122222222222222in"}

Figure 7-4a. Sample floodplain development permit application form

(Developed by the North Carolina Division of Emergency Management)

![](media/image6.png){width="6.520833333333333in"
height="8.227777777777778in"}

> Figure 7-4b. Sample floodplain development permit application form
>
> (Developed by the North Carolina Division of Emergency Management)

![](media/image7.png){width="6.520833333333333in"
height="8.304166666666667in"}

Figure 7-4c. Sample floodplain development permit application form

(Developed by the North Carolina Division of Emergency Management)

![](media/image8.png){width="6.520833333333333in"
height="8.438888888888888in"}

Figure 7-4d. Sample floodplain development permit application form

(Developed by the North Carolina Division of Emergency Management)

![](media/image9.png){width="5.495833333333334in"
height="6.663888888888889in"}

Figure 7-5. Sample permit form

[]{#__RefHeading___Toc413571317
.anchor}![](media/image2.wmf){width="0.5701388888888889in"
height="0.6770833333333334in"} Learning Check #2

1.  What activities are exempt from regulation under your floodplain
    ordinance?

2.  Does your community have a permit application form that makes sure
    things like a floodway encroachment analysis or V Zone certification
    are not missed?

3.  What five items need to be checked to ensure an application for a
    permit is complete?

4.  What departments or offices in your community should review a permit
    application before it is approved?

5.  During your permit review, you find that the applicant's site plan
    shows that the ground is currently higher than the BFE. Should you
    continue to treat this as a floodplain development permit?

6.  What's the best way to make sure the applicant's engineering
    certifications are sufficient?

7.  What are the key items you need to check when reviewing the plans
    for a new house to be built on pilings in the V Zone?

8.  Match the list of proposed projects with the documents that will be
    needed in order to determine if the project should be built in the
    floodplain.

-   New shopping center parking lot in the floodway

-   New house in the fringe

-   New business in the V Zone

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-   Reconstruction of a state highway bridge

-   New house built over a floodable, but enclosed garage

a.  Floodplain development permit application

b.  Site and/or building plans

c.  Floodway encroachment analysis

d.  Floodproofing certification

e.  Non-conversion agreement

f.  V Zone certification

[]{#__RefHeading___Toc413571318 .anchor}D. Inspections

You can't assume that construction and development will proceed as
spelled out in the permit you've approved. Follow-up conversations and
inspections are vital to ensure that the applicant adheres to the
permit's requirements.

Taking a hands-off attitude toward construction can create many problems
for both the project's owners and your community.

The most effective way to ensure compliance is to inspect the site
frequently during construction. This is particularly important in the
early phases of work on a building because that's when errors in
relocation or elevation of the lowest floor can be found and corrected.
An inspection program also puts builders, developers and property owners
on notice that the community will insist that projects are completed in
compliance with regulations.

We recommend a series of three inspections for every project, especially
any project that involves construction of a building.

[]{#__RefHeading___Toc413571319 .anchor}First inspection

Do this inspection before ground is broken. Ideally, this site visit
should be after the site is staked out to allow you to check the plans
in relation to the ground and lot boundaries. With plans in hand, you
should determine that the site as identified on the proposed plans is
consistent with actual ground conditions.

Check the following:

-   The location of the floodplain and floodway boundaries.

-   Setbacks from lot lines, channel banks, etc.

-   Floodway encroachments, if applicable.

If the building, filling, etc., as staked out are in violation of the
approved plans or of the ordinance requirements, you must tell the
developer to make revisions.

The project must not be allowed to proceed until you have gone back and
verified that it is in compliance.

[]{#__RefHeading___Toc413571320 .anchor}Second inspection

Schedule your second inspection of a project involving a new building or
addition to a building just before installation of the lowest floor. You
need to ensure that the lowest floor will be built at the height
stipulated in the permit application, and that the foundation is the
type specified in the plans.

The type of foundation dictates your schedule:

-   If the building is on a slab foundation, the inspection is best done
    when the forms are placed. You can check the proposed floor
    elevation by checking the elevation of the top of the forms. If the
    forms are high enough, you can approve the pouring the slab.

-   If the building is on an elevated foundation (crawlspace, piles,
    etc.), the inspection is best done when the foundation is completed.
    If the top of the foundation is high enough, you can approve
    placement of the floor.

-   If the building is to be floodproofed and the floodproofing
    technique is easy to identify---such as a reinforced concrete stem
    wall up to the BFE plus freeboard---this inspection should be
    conducted when that portion of the project is completed.

Making sure a structure is properly elevated is the key to the entire
regulatory process. If this doesn't happen, the permit process is pretty
much for naught. Therefore, an inspection at the point of initial
construction, where changes to the height of the foundation can be made
without major difficulty, is best. Once the foundation is poured or
laid, it can be very expensive for the property owner to changes the
building location or the elevation of the lowest floor.

[]{#__RefHeading___Toc413571321 .anchor}Checking elevations

You can confirm the floor elevation at this stage in one of two ways.
First, you can have the builder certify the floor elevation. This must
be done by a surveyor or engineer.

The alternative approach is to check for yourself:

-   Before construction or sometimes as part of the first inspection,
    the developer's surveyor or your engineer can shoot an elevation
    reference mark to a nearby stationary object such as a tree or
    telephone pole. The mark should be at the same elevation as the
    height to which the lowest floor should be elevated.

-   During the second inspection, you can use a hand level to determine
    whether the lowest floor will be as high as the reference mark.

-   This will give you a rough estimate that the building will be close
    to the correct elevation . A hand level will not give accurate
    elevations.

[Note]{.underline}: Neither approach relieves the builder of having to
provide an as-built elevation or floodproofing certificate when the
project is done. It simply verifies that the building will be elevated
or floodproofed to the proper elevation before it is too late to make
changes.

During your second inspection, also check:

-   Whether any fill meets the necessary compaction, slope and
    protection standards contained in your regulations.

-   The building's location matches the permit application plans.

-   The number and size of crawlspace or enclosure openings.

-   Whether any part of the project encroaches into the floodway.

-   In V Zones, get an as-built foundation certification at this time,
    such as the V Zone certification in Figure 5-18.

[]{#__RefHeading___Toc413571322 .anchor}Third inspection

The third and last inspection is conducted as the project nears
completion. The purpose of this "final" inspection is to:

-   Ensure that the foundation and floor elevation has not been altered
    since the second inspection.

-   Obtain an as-built elevation or floodproofing certificate.

-   Verify that enclosures below the lowest floors have adequate
    openings.

-   Ensure that nothing subject to flood damage, such as a furnace or
    air conditioning unit, has been located below the lowest floor.

-   Check breakaway walls in V Zones.

-   Check for floodway encroachments.

-   Check the anchoring system used in securing manufactured homes.

[]{#__RefHeading___Toc413571323 .anchor}Certificate of occupancy

After the project passes final inspection, many communities issue a
document called a certificate of occupancy, certificate of compliance or
use permit.

This certificate allows the owner to move in to the newly constructed
building or addition. Usually a new building cannot be sold until the
seller has this certificate; some utility companies will not start
service until the certificate is presented.

Before a certificate is completed, you must make sure that all needed
documents are received and checked. You must have an elevation
certificate and the other forms noted in the later section on record
keeping.

[]{#__RefHeading___Toc413571324 .anchor}Later inspections

Certifying a structure for occupancy is the final step in the permit
process. However, the property must remain in compliance with your
ordinance and the conditions under which the permit was issued.

Your office should periodically check to ensure that the property
continues to remain in compliance over time. Later inspections are
particularly important when a structure contains an enclosure below the
lowest floor. Such areas can be easily modified and made into habitable
spaces in violation of regulations.

In some states, communities do not have the statutory authority to go
onto private property to look for violations. This can make it hard, if
not impossible, to verify whether an enclosed area has been modified. If
this is true in your community, your ordinance should prohibit
enclosures or limit their allowable size to less than 300 square feet.
Allow larger enclosures only if they have wood lattice or screening so
you can tell from the street if changes have been made.

[]{#__RefHeading___Toc413571325
.anchor}![](media/image2.wmf){width="0.5701388888888889in"
height="0.6770833333333334in"} Learning Check #3

1.  When is the best time to make the first site inspection?

2.  When should you make the second inspection of a building on a slab
    foundation?

3.  What are your two options for making sure a new building is high
    enough before you allow construction to proceed after the second
    inspection?

4.  What should you check for during the third inspection?

5.  If a project meets all of the ordinance requirements and is built
    according to the approved plans, what does the owner get after the
    final inspection?

[]{#__RefHeading___Toc413571326 .anchor}E. Enforcement

Adequate, uniform and fair enforcement means two things:

-   All development in a floodplain must have a permit.

-   All development with a permit must be built according to the
    approved plans.

In order to ensure that development is meeting these requirements, you
must monitor the floodplain, and where necessary, conduct an inspection
of a property. Some permit officials have statutory limits on where they
can go to inspect a potential violation. Be sure to review your
authority to access onto private property with your attorney.

If you discover development activities without permits or contrary to
the approved plans, you must enforce your ordinance. You have several
methods for enforcing your ordinance. This section explores these
methods.

[]{#__RefHeading___Toc413571327 .anchor}Voluntary compliance

The best approach is to convince the developer that complying with the
ordinance is in his or her own best interest. This may take some
explanation of the flood hazard and how the rules protect the property
(or neighboring properties) from that hazard.

If the issue is protection of a building, the flood insurance rate table
in Figure 9-3 can show how expensive insurance could be. Even if the
developer is not interested in flood insurance, future owners may want
it and probably will be required to purchase it as a condition of a
mortgage or loan.

Should voluntary efforts not work, here are the other compliance tools
you have.

[]{#__RefHeading___Toc413571328 .anchor}Administrative steps

Your first steps in enforcement involve what you can do as an ordinance
administrator. Be sure to review these with your community's attorney
before you start:

-   Contact the property owner or building contractor in person or by
    telephone to explain your concerns.

-   Notify the property owner (in writing) of the nature of the
    violations and what to do to correct them.

-   Post a violation notice on the property.

If a problem is found during construction of a permitted project, you
have additional tools:

-   If the violation is a serious one, or if the problem still exists
    after a follow-up inspection, you can issue a stop-work order or
    revoke the permit.

-   You can withhold the certificate of occupancy until the problem is
    corrected. Usually utilities will not be turned on or a bank loan
    will not be closed until the certificate of occupancy is issued.

[]{#__RefHeading___Toc413571329 .anchor}Legal recourses

If your administrative measures do not bring results, go back to your
community's attorney and discuss the next steps. Your attorney can take
the case to court and request two additional enforcement measures be
brought to bear.

You can help the attorney by having complete records of all
correspondence and meetings with the person accused of the violation.
You should also identify what section of the ordinance was violated,
when and how, and what was specifically allowed in the approved permit.

You should advise the attorney about what actions can be taken that will
bring the project into compliance. Depending on the violation, these
actions could include removing the building (or other project),
retrofitting the building to protect it, applying for a variance, or
revising the maps to remove the problem from the floodplain, floodway, V
Zone, etc.

**Fine.** Your ordinance should establish a maximum fine per offense.
Usually each day a violation continues is considered a separate offense.
This approach encourages a quick remedy to the problem.

A per-day fine for a summary offense from a local district justice or
magistrate can be difficult to get because many courts would believe
that such a severe financial penalty does not fit the infraction.
However, the threat of seeking the fine may be sufficient to persuade a
property owner to remedy the violation.

**Recordation.** Depending on your statutory authority, you may be able
to record the violation in the property's deed records. This will inform
potential purchasers as well as "cloud the deed," making it hard for the
owner to sell the property or the buyer to obtain title insurance. This
approach is more appropriate for new developments that are likely to be
sold in the near future.

**Injunction.** An injunction is a court order to stop further
noncompliant conduct. A temporary restraining order will be issued if
the activity can be shown to be a danger to the public and that
immediate irreparable harm can occur.

**Housing court.** Dealing with your state or county's judicial system
can be expensive and difficult. Your case has to wait its turn and
compete with many cases for attention.

To speed up the enforcement process, some communities enact special
enforcement ordinances to create a municipal housing court or a building
court. This is a local judicial body that has several advantages:

-   The judge or administrative judge will be familiar with housing or
    building code law.

-   The community has more control over when cases will be heard.

-   Such courts usually are less formal. For example, the defendant may
    not have to have an attorney present.

The establishment of these courts varies by state law. Your attorney or
state department of local government affairs or housing can provide more
information on how it can work in your community.

[]{#__RefHeading___Toc413571330 .anchor}Section 1316

Section 1316 of the National Flood Insurance Act authorizes FEMA to deny
flood insurance to a property declared in violation of the community's
ordinance.

Section 1316 is used when all other legal means to remedy the violation
have been exhausted and the structure is still noncompliant. Check with
your state NFIP coordinator or FEMA Regional Office on how 1316 works in
your state.

If invoked under Section 1316, denying flood insurance means:

-   The property may be difficult or impossible to sell.

-   The market value of the property may fall.

-   The cost of suffering flood damage without insurance may be too
    great a risk for the property owner.

-   Lending institutions holding the property's mortgage may threaten to
    foreclose.

-   Any permanent reconstruction will be denied disaster assistance.

In some cases a Section 1316 insurance denial will be sufficient to
convince the property owner to correct the violation. Section 1316 also
has the advantage of limiting any taxpayer liability if the building is
damaged by a flood, as the owner will be ineligible for an insurance
claim and disaster assistance.

[]{#__RefHeading___Toc413571331 .anchor}F. Appeals, Special Uses and
Variances

Generally, procedures for Appeals, special uses and variances are
specified by state law. They require judgment calls involving several
people, as ordinances typically do not allow only one person to decide
these issues. Here is when they can occur and how they are usually
handled.

[]{#__RefHeading___Toc413571332 .anchor}Appeals

Ambiguous language or differing interpretations can lead the applicant
and permit office to disagree. Your ordinance should have a process for
referring these disagreements to a board of appeals or adjustment which
will interpret the ordinance and settle the dispute.

[]{#__RefHeading___Toc413571333 .anchor}Special uses

Some regulations require that certain situations be given a special
review to determine if they should be allowed and, if so, whether
conditions should be attached to the permit. While the NFIP sets
construction standards for all buildings, your community may have
decided that residences should not be allowed in a floodway and that
nonresidential buildings should be allowed only if certain conditions
are met. Some official body needs to determine if a special use permit
or if a conditional permit should be issued.

[]{#__RefHeading___Toc413571334 .anchor}Variances

Zoning ordinances, building codes and floodplain management regulations
cannot be written to anticipate every imaginable situation. A process
for issuing variances gives a builder a way to seek permission to vary
from the letter of the rules because of a special situation.

A variance can mean that the minimum standards of the NFIP may not be
met by a project due to a special local circumstance. Because of this,
most of this section is devoted to variances.

[]{#__RefHeading___Toc413571335 .anchor}Boards

In all three cases, the applicant submits a request to a knowledgeable
board of arbiters. Typically, variances and special or conditional use
permits are handled by the planning commission or other body that is
responsible for writing and amending the ordinance. Appeals are usually
handled by a separate board of appeals or board of adjustments.
Sometimes all three processes are handled by the same body and
sometimes, especially in smaller communities, that body is the city
council or governing board.

These boards do not have authority to change the ordinance, just to
apply or interpret the ordinance's provisions. They may or may not have
authority to make a final decision. If not, they make recommendations to
the governing board which makes the final decision.

[]{#__RefHeading___Toc413571336 .anchor}Variances

A [variance]{.underline} is a grant of relief by a community from the
terms of a land use, zoning or building code regulation. Because a
variance can create an increased risk to life and property, variances
from flood elevation or other requirements in the flood ordinance should
be rare.

Granting variances is a local decision that must be based on not only
NFIP criteria, but also on state law and other provisions the community
may wish to require. Your community's review board must consider the
fact that every newly constructed building adds to the local
government's responsibilities and remains a part of the community for
the indefinite future.

Variances are based on the general principal of zoning law that they
pertain to a piece of property and are not personal in nature. Though
standards vary from state to state, in general a variance is granted for
a parcel with physical characteristics so unusual that complying with
the ordinance would create an exceptional hardship to the applicant or
surrounding property owners. Those characteristics must:

-   Be unique to that property and not shared by adjacent parcels.

-   Pertain to the land, not to any structure, its inhabitants or the
    property owners.

Characteristics that might justify a variance include an irregularly
shaped lot, a parcel with unsuitable soils, or a parcel with an unusual
geologic condition below ground level. It is difficult, however, to
imagine any physical characteristic that would give rise to a hardship
sufficient to justify issuing a variance to a flood elevation
requirement.

Your community should grant variances based only on a
structure-by-structure review. Never grant variances for multiple lots,
phases of subdivisions or entire subdivisions.

[]{#__RefHeading___Toc413571337 .anchor}NFIP requirements

NFIP regulations do not address appeals, special uses or conditional
permits. Follow the procedures used in your zoning ordinance or building
code as these are usually prescribed by state law.

Because variances may expose insurable property to a higher flood risk,
NFIP regulations set guidelines for granting them. The guidelines, which
are designed to screen out situations in which alternatives other than a
variance are most appropriate, appear in 44 CFR 60.6(a). They are
summarized in Figure 7-6.

A review board hearing a variance request must not only follow
procedures given in the NFIP criteria, it must consider the NFIP
criteria in making its decision. When the NFIP guidelines are followed,
few situations qualify for a variance.

**Good and sufficient cause.** The applicant must show good and
sufficient cause for a variance. Remember, the variance must pertain to
the land, not its owners or residents. Here are some common complaints
about floodplain rules that are [not]{.smallcaps} good and sufficient
cause for a variance:

-   The value of the property will drop somewhat.

-   It will be inconvenient for the property owner.

-   The owner doesn't have enough money to comply.

-   The property will look different from others in the neighborhood.

-   The owner started building without a permit and now it will cost a
    lot to bring the building into compliance

**Hardship.** The concept of unnecessary hardship is the cornerstone of
all variance standards. Strict adherence to this concept across the
country has limited the granting of variances.

*The applicant has the burden of proving unnecessary hardship*. Reasons
for granting the variance must be substantial; the proof must be
compelling. The claimed hardship must be exceptional, unusual and
peculiar to the property involved. Financial hardship, inconvenience,
aesthetic considerations, physical handicaps, personal preferences or
the disapproval of one's neighbors do not qualify as exceptional
hardships.

The local board must weigh the applicant's plea of hardship against the
purpose of the ordinance. Given a request for a variance from floodplain
elevation requirements, the board must decide whether the hardship the
applicant claims outweighs the long-term risk to the owners and
occupants of the building would face, as well as the community's need
for strictly enforced regulations that protect its citizens from flood
danger and damage.

When considering variances to flood protection ordinances, local boards
continually face the difficult task of frequently having to deny
requests from applicants whose personal circumstances evoke compassion,
but whose hardships are simply not sufficient to justify deviation from
community-wide flood damage prevention requirements.

1\. Variances shall not be issued by a community within any designated
regulatory floodway if any increase in flood levels during the base
flood discharge would result;

2\. Variances may be issued by a community for new construction and
substantial improvements to be erected on a lot of one-half acre or less
in size contiguous to and surrounded by lots with existing structures
constructed below the base flood level, in conformance with the
procedures of paragraphs (a) (3), (4), (5) and (6) of this section;

3\. Variances shall only be issued by a community upon\...

\(i\) a showing of good and sufficient cause,

\(ii\) a determination that failure to grant the variance would result
in exceptional hardship to the applicant, and

\(iii\) a determination that the granting of a variance will not result
in increased flood height, additional threat to public safety,
extraordinary public expense, create nuisances, cause fraud on or
victimization of the public, or conflict with existing local laws or
ordinances;

4\. Variances shall only be issued upon a determination that the
variance is the minimum necessary, considering the flood hazard, to
afford relief;

5\. A community shall notify the applicant in writing over the signature
of a community official that\...

\(i\) the issuance of a variance to construct a structure below the base
flood level will result in increased premium rates for flood insurance
up to amounts as high as \$25 for \$100 of insurance coverage and;

\(ii\) such construction below the base flood level increases risks to
life and property. Such notification shall be maintained with a record
of all variance actions as required in paragraph (a) (6) of this
section.

6\. A community shall\...

\(i\) maintain a record of all variance actions, including justification
for their issuance, and

\(ii\) report such variances issued in its annual or biennial report
submitted to the \[Federal Insurance\] Administrator.

7\. Variances may be issued by a community for new construction and
substantial improvements and for other development necessary for the
conduct of a functionally dependent use provided that\...

\(i\) the criteria of paragraphs (a) (1) through (a) (4) of this section
are met, and

\(ii\) the structure or other development is protected by methods that
minimize flood damages during the base flood and create no additional
threats to public safety.

Figure 7-6: NFIP variance criteria (44 CFR 60.6(a))

These problems can be resolved through other means, even if the
alternatives to a variance are more expensive or complicated than
building with a variance, or if they require the property owner to put
the parcel to a different use than originally intended, or to build
elsewhere.

Here are two examples:

***Example 1.*** A small undeveloped lot is surrounded by lots on which
buildings have been constructed at grade. The ordinance requires new
buildings to be constructed at a level several feet above grade.

If the owner were to build a new house, it would look different,
Potential buyers would ask questions and find out about the flood
problem in the area. If it were built on fill, the lot might drain onto
the neighbors' property.

This situation probably would not warrant a variance because the owner
does not face an exceptional hardship. Appearance is not a hardship and
no action should be taken to hide the hazard from others. There are ways
to elevate a building without creating a drainage problem, such as
elevating the building on pilings or a crawlspace, or grading the fill
to drain away from adjoining properties.

***Example 2.*** A property owner seeks a variance because he or she
would have to spend several thousand dollars to elevate a house to
comply with the ordinance, and several thousand more to build a
wheelchair ramp or an elevator to provide access for a handicapped
member of the family.

While financial considerations are important to property owners and the
needs of a handicapped person must be accommodated, these difficulties
do not put this situation in the category of "exceptional hardships"
because:

-   The characteristics that result in the claimed hardship do not
    pertain to the property but are personal.

-   A variance is not needed to provide day-to-day access to the
    building, which can be provided by building a ramp or elevator.

-   Having a handicapped person occupy a floodprone dwelling raises a
    critical public safety concern.

If a variance is granted and the building is constructed at grade, the
handicapped or infirm person must leave when floodwaters begin to rise,
yet he or she may need help to do so. This poses an unnecessary danger
to the handicapped person and places an extra demand on the community's
emergency services personnel, who may be called upon to rescue the
resident in the event of a flood.

On the other hand, if the building is properly elevated, the handicapped
person either can be evacuated or can survive the flood simply by
remaining at home safely above the floodwaters.

In effect, the variance would not relieve the property owner of his or
her difficulty, but likely only postpone and perhaps ultimately increase
it. It would not help the community, either, as the building will be
susceptible to damage long after the current owners are gone.

It would be more prudent for both the owner and the community if the
variance were denied and the home built at the proper elevation with
handicapped access. This would ensure the safety of all family members
when floodwaters rise, as well as protect the property owner's and the
community's investment in the property.

**Public safety and expense.** Flood damage prevention ordinances are
intended to help protect the health, safety, well-being and property of
the local citizens. Variances must not create threats to public safety
or nuisances.

Because it would increase damage to other property owners, no variance
may be issued within a regulatory floodway that will result in any
increase in 100-year flood levels (44 CFR 60.6(a)(1)).

**Fraud and victimization.** Variances must not defraud or victimize the
public. Any buildings permitted below the BFE face increased risk of
damage from floods, and future owners of the property---and the
community---are subject to all the costs, inconvenience, danger and
suffering that those increased flood damages may bring.

Future owners may purchase the property, unaware that because of a
variance, it is subject to potential flood damages and can be insured
only at high rates.

**Minimum variation necessary.** A variance is a request to vary from
the rules, not to ignore them. Any variance should allow only minimum
deviation from the local requirements.

For example, even if an applicant can justify not elevating a building
above the BFE, the review board should not automatically allow the
building to be built at grade. The board should still require as much
elevation as possible, to provide some flood protection without causing
exceptional hardship.

In some instances it may be possible to vary individual provisions of
the ordinance without reducing the overall level of protection. For
example, a well-engineered building might be constructed in a V Zone on
a foundation other than piles or columns.

In considering variances, the review board should use local technical
staff expertise and recommendations from the building, planning, zoning
or engineering departments. The local technical staff should consider
varying other requirements in order to provide the needed flood
protection. For example, it may be more appropriate to issue a variance
to the front yard setback requirement in order to get the building out
of the floodway.

**Flood insurance rates.** While a variance may allow deviation from
building standards specified in a local ordinance, flood insurance rates
and the flood insurance purchase requirement---which must be enforced by
lending institutions---cannot be waived.

This can create severe financial consequences for a property owner, as
insurance rates for a building built below BFE can be substantially
higher than those for elevated buildings. A variance from elevation
requirements---the most common kind of variance requested---increases
the risk to a building, and that increased risk is reflected in higher
annual insurance premiums (Figure 9-3).

If a variance is requested to construct a building below the BFE, you
must notify the applicant (in writing) that granting the variance will
result in increased flood insurance premium rates, up to \$25 per \$100
of coverage. In many instances, the variance-induced rates will be so
high as to make the building essentially uninsurable because the owners
cannot afford the premium. (In one case, a marine supply store on the
Gulf Coast was built 14 feet below BFE in a V zone. The annual flood
insurance premium was \$25,000---on a \$100,000 building.)

The original owner who applied for a variance may not care, but if
approved, the variance's impact may matter a great deal to subsequent
potential owners who cannot afford the property's high insurance rates.
The result may be owner abandonment; your community could be left with a
vacant, flood-damaged and essentially uninsurable building.

Figures 7-7 through 7-12 illustrate the premiums for a single-family
home protected to different levels. They provide a clear picture of the
cost of actuarial post-FIRM flood insurance rates and, therefore, the
true risk to which the building is being exposed.

You should give these two pages of illustrations to anyone considering
seeking a variance to save construction costs. A variance may save money
in the short term, but over the long run, the owner will pay much more
in insurance premiums or, if uninsured, in flood losses.

[Note]{.underline}: These premiums are for the purposes of this example.
Insurance rates vary, based on location, date of construction and lowest
floor elevation, and must be computed case-by-case. The premiums shown
for the next series of illustrations were computed based on \$100,000 in
building coverage.

![](media/image10.png){width="4.972222222222222in"
height="8.997916666666667in"}

Figure 7-7. Pre-FIRM building---1995 insurance rate: \$595

Figure 7-8. Pre-FIRM building---substantially damaged by 1997 flood

Figure 7-9. Repaired---variance allowed

With no elevation (7 feet below BFE); actuarial rate: \$3,090

![](media/image11.png){width="5.048611111111111in"
height="8.997222222222222in"}

Figure 7-10. Repaired---variance allowed

Elevated to 2' below BFE; actuarial rate: \$1,140

Figure 7-11. Repaired---elevated to BFE; actuarial rate: \$351

Figure 7-12. Repaired---elevated 2 feet above BFE; actuarial rate: \$216

[]{#__RefHeading___Toc413571338 .anchor}Historic buildings

A variance may be issued for the reconstruction, rehabilitation or
restoration of historic structures if the variance is the minimum
necessary to preserve the historic character and design of the
structure. "Historic structures" are those listed in the National
Register of Historic Places or the State Inventory of Historic Places,
or that contribute to a historic district.

Changes to the structure must not destroy or alter the characteristics
that made it an historic building. A certified local historic board or
the state historic preservation officer must review and approve
remodeling, renovations and additions before granting a variance.
Whatever mitigative measures can be taken to reduce future flood damage
must be required---such as elevating an air conditioner or using
flood-resistant materials.

Many older buildings are not considered historic, so the first thing to
check is whether the structure proposed for an exemption is historic.
Look for it on a list maintained by:

\-- The National Register of Historic Places.

\-- Federally-certified state programs operated through a state historic
preservation officer.

\-- A federally-certified local historic preservation board.

Structures are listed in the National Register or on a
federally-recognized state or local inventory in one of two ways: as an
individual building, or as a primary, secondary, or other contributing
building in a designated historic district.

Structures are either listed or may be eligible to be listed. Only a
federally-certified state or local historic preservation program can
make such determinations. Either the state historic preservation office
or federally-certified local historic preservation board should be
consulted to determine if a structure proposed for the historic
exemption is indeed historic.

Figure 7 -- 13. Definition of "historic building"

[]{#__RefHeading___Toc413571339 .anchor}Functionally dependent use

A variance may be issued for new construction, substantial improvements
and other development necessary for the conduct of a [functionally
dependent use]{.underline}. A functionally dependent use is one that
must be located or carried out close to water---such as a docking or
port facility necessary for the unloading of cargo or passengers,
shipbuilding and ship repair.

A functionally dependent use variance could be issued provided that:

-   There is good and sufficient cause for providing relief from the
    regulations.

-   The variance will be the minimum necessary to provide relief.

-   The variance does not cause a rise in the 100-year flood level
    within a regulatory floodway.

The structure or other development must be protected by methods that
minimize flood damage, such as elevating mechanical equipment, locating
offices above the BFE or using ground fault interrupt electrical
circuits.

[]{#__RefHeading___Toc413571340 .anchor}Records

The community must keep a record of all variances and the rationale for
granting them. These are subject to review by FEMA or the state NFIP
coordinator during a Community Assistance Visit.

The records must include a copy of the written notification to the
applicant that the issuance of a variance to construct a building below
the BFE will result in increased flood insurance premium rates as high
as \$25 per \$100 of coverage, and such construction below the BFE
increases risk to life and property.

It is recommended that the variance findings, conditions and
authorization be recorded in the county deed records. This provides a
means of permanently notifying future or prospective owners about the
terms and conditions of the variance.

[]{#__RefHeading___Toc413571341
.anchor}![](media/image2.wmf){width="0.5701388888888889in"
height="0.6770833333333334in"} Learning Check #4

1.  If a FEMA staff person finds a project in violation of the FEMA NFIP
    requirements in your community, who is responsible for correcting
    the violation?

2.  You discover that Mrs. Murphy has ordered five truckloads of fill to
    raise her back yard in the floodway. She never asked for a permit.
    What is the recommended first step to dealing with this situation?

3.  If a project is found underway in the floodplain, what is the first
    step you should take?

4.  What legal recourses do you and your attorney have to bring a
    violation into compliance?

5.  What are the NFIP procedures for submitting an appeal to your Board
    of Appeals?

6.  Mr. Wilson wants to build a new house at grade instead of to the
    BFE, six feet above grade. You tell him he will need a variance.
    Which of the following are good and sufficient causes for granting
    him a variance?

-   An elevated house will look bad

-   Mrs. Wilson is old and has trouble with stairs

-   It will cost more money than the builder can afford

-   The builder has a contract with the bank to have it completed and
    sold in four months and changing plans will prevent meeting that
    deadline.

-   No one has ever seen a flood on that site.

7.  Mr. Wilson is applying for a variance to build his house below the
    BFE. What two things must you tell him (in writing)?

[]{#__RefHeading___Toc413571342 .anchor}G. Records

Records show what you approved and what you told the developer, forming
a "paper trail" needed for administrative or legal proceedings related
to development projects. Such records are vital if the project violates
your ordinance. They also give future owners information about the
property.

Records are also checked by FEMA or the state to determine if your
community is in full compliance with the NFIP.

This section reviews what records you must---or should---keep to meet
your community's obligation to the NFIP.

[]{#__RefHeading___Toc413571343 .anchor}Permit file

Your community should have a permit record system that is keyed to a
geographical identifier (not just a building permit number) such as:
street address, lot and block number, township, section and range, or
county appraiser's property ID number.

You should have a file for each permit application. The files should
have some indicator on the folder to show that it is a floodplain
permit, such as a different color file folder or file label.

Permit files should contain copies of these items, as appropriate:

-   The permit application form and all attachments, including the site
    plan.

-   All correspondence pertinent to the project.

-   Flood and floodway data prepared by the developer.

-   Engineering analyses of floodway encroachments and watercourse
    alterations.

-   Special engineering designs for enclosures below the BFE.

-   In coastal high hazard areas, engineering certifications of designs
    and construction methods of new and substantially improved
    buildings.

-   In coastal high hazard areas, certification of specially designed
    breakaway walls.

-   Any variances or appeals proceedings.

-   Records of inspections of the project while under construction.

-   Documentation of the "as-built" lowest floor elevation of all new
    and substantially improved buildings.

-   Certification of the elevation to which any nonresidential building
    has been floodproofed.

-   Certificates of compliance or occupancy.

Keeping these records is a requirement to participate in the NFIP; there
is no statute of limitations as to how long they should be kept. You may
want to keep a separate log or record of floodplain permits so you can
readily retrieve those floodplain projects to show FEMA or the state
NFIP coordinator.

It is not necessary to keep the entire building plans and other
documents longer than is required for local code purposes. However, if
you allow below-BFE enclosures, your files should include the ground
floor plan of those buildings in case of a future violation issue.

[]{#__RefHeading___Toc413571344 .anchor}Elevation certificate

Your permit file needs an official record that shows how high new
buildings and substantial improvements were elevated. This is needed
both to show compliance with the ordinance and for the owner to obtain a
flood insurance policy.

There is no mandated form for keeping building elevation records, but we
strongly recommend that you use FEMA's Elevation Certificate Form (FEMA
Form 81-31). A blank copy is in Appendix F. *Note: this form is being
revised. A new version is expected by October 1998.*

If your community is participating in the Community Rating System, the
FEMA form must be used for new construction and substantial improvements
to existing buildings. Insurance agents writing flood insurance policies
also must use the form to properly rate many types of buildings.
Accordingly, FEMA encourages communities to use the form to help their
residents obtain flood insurance.

The FEMA form is an eight-page packet. It includes the two-page FEMA
Form 81-31, Elevation Certificate, and instructions on how to complete
it. Additional copies of the packet are available in bulk at no cost by
calling 800/638-6620, ext. 2 (customer service).

The current version of Form 81-31 is dated August 1996 and has an Office
of Management and Budget (OMB) expiration date of July 31, 1999. Except
for the date, it is the same as the 1990 and 1993 versions, which can
still be used.

There is a software version of the FEMA Elevation Certificate. It can be
ordered at no charge by calling the CRS order number, 317/848-2898. If
you use the software version, or keep elevation records on a computer
database, you also need to keep the original signed "hard copy" of the
surveyor\'s certification.

The responsibility for obtaining and filing an elevation certificate
rests on the local permit official. Part or all of the form may be
completed by a land surveyor, engineer, architect, or local official
authorized by ordinance to provide floodplain management information.
(Depending on state law, if you are comfortable with using a transit or
level you, as the floodplain ordinance administrator, can check the
finished elevations and certify them for the record.)

You may give property owners or surveyors blank forms and expect them to
complete the entire form. This practice does not relieve local officials
in CRS communities from the requirement to ensure that the forms are
complete and accurate. In non-CRS communities, the permit official
should at least double-check the form to ensure that it is complete and
that Sections A, B and D (on property, map and community information)
are correct.

**Annexations.** The FEMA Elevation Certificate form is
self-explanatory. One problem arises when a community annexes or extends
its planning or regulatory jurisdiction over Special Flood Hazard Areas
for the unincorporated areas of a county or an adjacent community. Some
communities enroll in the NFIP before a Flood Hazard Boundary Map or
FIRM has been issued for them.

Both situations lead to considerable confusion as to flood zone
determination, as well as knowing which community number and panel
numbers should be used on Elevation Certificates and other NFIP
documents.

*Flood zone determination:* If the subject property is located within
areas annexed from the county or within an area of extraterritorial
planning jurisdiction, use the county flood maps to determine the
appropriate flood zone.

*Community Identification Number:* In item 1 of Section B of the FEMA
form ("Community Number"), use the municipality's NFIP ID number once a
property is annexed or included in an extraterritorial planning
jurisdiction.

*Flood Map Panel Number:* For property located in annexed areas or in
the extraterritorial jurisdiction, for item 2 of Section B ("Panel
Number"), use the entire county ID and panel number--- "370087 0005,"
not just "0005." For sites within the "area not included," state "No
NFIP Map."

[]{#__RefHeading___Toc413571345 .anchor}Floodproofing certificate

Floodproofing means making a building watertight, or substantially
impermeable to floodwaters. It is an option only allowed for
nonresidential buildings.

Designs for a floodproofed building must account for flood warning time,
uses of the building, mode of entry to and exit from the building and
the site, floodwater velocities, flood depths, debris impact potential
and flood frequency.

FEMA's Technical Bulletin 3-93, *Non-Residential Floodproofing
Requirements and Certification for Buildings Located in Special Flood
Hazard Areas*, has a detailed discussion on each of these
considerations.

For insurance rating purposes, the building's floodproofed design
elevation must be at least one foot above the BFE to receive rating
credit. If floodproofed only to the BFE, the floodproofing credit cannot
be used, resulting in higher flood insurance rates.

44 CFR Sections 60.3(B)(5) and (c)(4) require the community to obtain
and maintain a registered professional engineer's certification that a
nonresidential building was properly floodproofed. You are encouraged to
use the one-page FEMA certification form included in Appendix F because
it fulfills NFIP insurance rating needs as well as floodplain management
requirements.

[]{#__RefHeading___Toc413571346 .anchor}V Zone certification

Buildings in coastal high hazard areas or V Zones are subject to a
greater hazard than buildings built in other types of floodplains. Not
only do they have to be elevated above the base flood level, they must
be protected from the impact of waves, hurricane-force winds and
erosion.

The NFIP regulations require coastal communities to ensure that
buildings built in the V Zone are anchored to resist these wind and
water loads acting simultaneously.

**44 CFR 60.3(e)(4)** \[The community must\] Provide that all new
construction and substantial improvements in Zones V1-30 and VE ... are
elevated on pilings and columns so that (i) the bottom of the lowest
horizontal structural member of the lowest floor (excluding the pilings
or columns) is elevated to or above the base flood level; and (ii) the
pile or column foundation and structure attached thereto is anchored to
resist flotation, collapse and lateral movement due to the effects of
wind and water loads acting simultaneously on all building components.
Water loading values used shall be those associated with the base flood.
Wind loading values used shall be those required by applicable State or
local building standards. A registered professional engineer or
architect shall develop or review the structural design, specifications
and plans for the construction, and shall certify that the design and
methods of construction to be used are in accordance with accepted
standards of practice for meeting the provisions of (e)(4)(i) and (ii)
of this section.

While FEMA does not provide a V Zone certification form, Figure 5-18
shows the form developed by the state of North Carolina. Be sure to
check with your FEMA Regional Office before you use your own version of
it.

[]{#__RefHeading___Toc413571347 .anchor}No-rise certification

As discussed in Unit 5, Section D, your ordinance requires that riverine
floodplains be free of encroachments that will cause an increase in
flood levels.. Where a floodway has been mapped, construction in the
flood fringe is assumed to not be a problem.

You need to document that a project in the floodway---or in a riverine
floodplain where the floodway hasn't been mapped---will not cause in
increase in flood heights. An engineering analysis must be conducted
before you can issue a permit. Your permit file needs a record of the
results of this analysis, usually in the form of a [no-rise
certification]{.underline} or an equivalent document.

The engineering or no-rise certification must be supported by technical
data and signed by a registered professional engineer. The supporting
technical data should be based on the standard step-backwater computer
model used to develop the 100-year floodway shown on your FIRM or Flood
Boundary and Floodway Map and the results tabulated in your Flood
Insurance Study.

Although communities are required to review and approve the no-rise
submittal, they may request technical assistance and review from the
FEMA Regional Office. However, if this alternative is chosen, you must
review the technical package and verify that all supporting data, listed
in succeeding paragraphs, are included in the package before forwarding
it to FEMA.

Figure 5-5 is a sample no-rise certification form developed by the North
Carolina NFIP coordinating agency . Before using it, check with your
state NFIP coordinating agency or FEMA Regional Office for additional
guidance or requirements*.*

[]{#__RefHeading___Toc413571348 .anchor}Biennial report

Every two years, participating communities must complete a form
describing the community's progress in the previous two years in
implementing floodplain management measures \[44 CFR 59.22\]. A copy of
a biennial report appears in Figure 7-14.

FEMA sends the one-page form to your chief elected official. It must be
completed and returned to FEMA within 30 days.

The only way you can complete the biennial report is to have complete
and accessible permit records. You need to keep track of:

-   Changes in community boundaries.

-   Physical or topographical changes that affect flood hazard areas.

-   Amendments to your floodplain ordinance.

-   The number of building permits issued in the floodplain.

-   The number of variances issued.

You also need to be able to tell FEMA:

-   The number of people and number of buildings in the floodplain.

-   Whether you would like any floodplain management assistance.

![](media/image12.png){width="6.429166666666666in"
height="8.722916666666666in"}

Figure 7-14. Example Biennial Report

[]{#__RefHeading___Toc413571349
.anchor}![](media/image2.wmf){width="0.5701388888888889in"
height="0.6770833333333334in"} Learning Check #5

1.  Why should you keep permit records?

2.  What records should be kept in your permit file?

3.  Who is responsible for ensuring that the elevation certificate is
    completed correctly?

4.  What are the four situations when a record of an engineer\'s or
    surveyor's certification is needed?

5.  A property has been annexed from the county into your city, but the
    FIRM has not been revised to reflect the annexation. What is the
    NFIP community number that is recorded in Item 1, Section B of the
    FEMA Elevation Certificate?

6.  Is a V Zone Certification needed for a residential building?

7.  Where do you get a Biennial Report to send in to FEMA?

[]{#__RefHeading___Toc413571350
.anchor}![](media/image2.wmf){width="0.5701388888888889in"
height="0.6770833333333334in"} Unit learning exercise

1.  Does your community have formal written permit review procedures to
    ensure that a development proposal is properly reviewed and
    inspected?

2.  What are the four situations where a certification will be needed
    before a floodplain development permit can be issued?

3.  A development plan proposes to fill and regrade an area of the
    fringe to give most of the lots building sites that are above the
    BFE. The developer says "then we won't have the banks telling people
    my subdivision is in the floodplain." What do you tell the
    developer?

4.  What are the key items you need to check when reviewing the plans
    for a new house to be built on a slab foundation on fill in the
    fringe?

5.  You deny an application to build a house in the floodplain because
    the plans show a proposed basement 6' below the BFE. What recourses
    does the applicant have now?

6.  What should you check for during the first site inspection?

7.  When should you make the second inspection for a building to be
    elevated on a crawlspace or columns?

8.  If you use a level to verify the elevation of a building during the
    second inspection, will the builder still need to provide an
    as-built elevation certificate?

9.  When is the best time to see if a crawlspace has adequate openings?

10. During the second inspection, you find that the builder wants to
    build the lowest floor three feet below the BFE in order to save on
    construction costs. What repercussions would the owner face if the
    community issued a certificate of occupancy for the building and did
    not pursue any enforcement action?

11. If the third inspection reveals that the builder of an apartment
    house has made a change to the structure that results in a major
    violation of your floodplain regulations, what can you do?

12. How can Section 1316 help a local permit official faced with a
    subdivider who refuses to build houses in compliance with the
    floodplain regulations?

13. Can a community grant a variance to allow a project in the floodway
    that will cause a ½ foot increase in flood heights.

14. Name two situations where special exceptions may be granted for a
    variance.

15. Permit records should be kept systematically. Your system should be
    keyed so you can retrieve permit files by:

16. What are the advantages of using the FEMA Elevation Certificate as a
    record of a building's lowest floor elevation?

17. Can a surveyor sign a Floodproofing Certificate?

18. What is needed to support a No-rise certification?

[]{#__RefHeading___Toc413571351 .anchor}Answers to the learning checks

[]{#__RefHeading___Toc413571352 .anchor}Learning check #1

This learning check is a review of where the various NFIP requirements
appear in your own ordinance. There are no correct answers, only the
need to make sure that all the items listed in the learning check are
covered.

[]{#__RefHeading___Toc413571353 .anchor}Learning check #2

1.  What activities are exempt from regulation under your floodplain
    ordinance?

    Depends on the community. Small projects and activities by other
    governmental agencies may be exempt. Check with your State NFIP
    Coordinator to verify that any exempt activities are either covered
    by other regulations or are too small to be of concern.

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1.  Does your community have a permit application form that makes sure
    things like a floodway encroachment analysis or V Zone certification
    are not missed?

    Depends on the community. If not, you'll find Figure 7-4 very
    helpful.

2.  What five items need to be checked to ensure an application for a
    permit is complete?

-   All forms are completed and signed

-   Site, grading, building, etc. plans are complete

-   All necessary certifications are provided

-   All necessary state and federal permits are being obtained

-   Copies of the application are forwarded to other departments for
    review

3.  What departments or offices in your community should review a permit
    application before it is approved?

    Depends on the community. This is a very important procedure to
    check to be sure that a project will meet all of your community's
    development requirements.

4.  During your permit review, you find that the applicant's site plan
    shows that the ground is currently higher than the BFE. Should you
    continue to treat this as a floodplain development permit?

    You do not have to. It's still a good idea to encourage the
    applicant to incorporate flood protection measures in case a future
    flood is higher than the predicted BFE (e.g., don't build any homes
    with basements).

5.  What's the best way to make sure the applicant's engineering
    certifications are sufficient?

    Have your community's engineer review them.

6.  What are the key items you need to check when reviewing the plans
    for a new house to be built on pilings in the V Zone?

-   The proposed elevation of the lowest floor

-   Whether there will be any enclosures below the elevated floor

-   The V Zone certification signed by a registered professional
    architect or engineer.

-   The materials used in the area below the BFE.

7.  Match the list of proposed projects with the documents that will be
    needed in order to determine if the project should be built in the
    floodplain.

-   New shopping center parking lot in the floodway *a, b, c*

-   New house in the fringe *a, b*

-   New business in the V Zone *a, b, f*

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-   Reconstruction of a state highway bridge *see below*

-   New house built over a floodable, but enclosed garage *a, b, e*

g.  Floodplain development permit application

h.  Site and/or building plans

i.  Floodway encroachment analysis

j.  Floodproofing certification

k.  Non-conversion agreement

l.  V Zone certification

    The state highway department may be exempt from local regulations.
    However, it is a good idea to talk to the State NFIP Coordinator to
    ensure that the project meets all state floodplain management
    requirements.

[]{#__RefHeading___Toc413571354 .anchor}Learning check #3

1.  When is the best time to make the first site inspection?

    After the site is staked out and before permanent foundation work
    has begun.

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6.  When should you make the second inspection of a building on a slab
    foundation?

    When the forms are in place, but before the concrete is poured.

7.  What are your two options for making sure a new building is high
    enough before you allow construction to proceed after the second
    inspection?

-   Have the builder provide an elevation certificate

-   Check the elevation yourself during the second inspection

8.  What should you check for during the third inspection?

-   Ensure that the foundation and floor elevation have not been altered
    since the second inspection.

-   Obtain an as-built elevation or floodproofing certificate.

-   Verify that enclosures below the lowest floors have adequate
    openings.

-   Ensure that nothing subject to flood damage, such as a furnace or
    air conditioning unit, has been located below the lowest floor.

-   Check breakaway walls in V Zones.

-   Check for floodway encroachments.

-   Check the anchoring system used in securing manufactured homes.

9.  If a project meets all of the ordinance requirements and is built
    according to the approved plans, what does the owner get after the
    final inspection?

    A certificate of occupancy, certificate of compliance, use permit or
    other official document that allows the building to be occupied or
    used.

[]{#__RefHeading___Toc413571355 .anchor}Learning check #4

1.  If a FEMA staff person finds a project in violation of the FEMA NFIP
    requirements in your community, who is responsible for correcting
    the violation?

    Your local permit official.

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8.  You discover that Mrs. Murphy has ordered five truckloads of fill to
    raise her back yard in the floodway. She never asked for a permit.
    What is the recommended first step to dealing with this situation?

    Talk to Mrs. Murphy and explain why a permit is needed and why it is
    important not to fill in the floodway. You should get voluntary
    compliance.

9.  If a project is found underway in the floodplain, what is the first
    step you should take?

    Advise the owner to stop work and tell him or her (in writing) what
    the violation is and what should be done to correct it.

10. What legal recourses do you and your attorney have to bring a
    violation into compliance?

-   A fine (that can increase for each day the violation continues)

-   Recording the violation in the property's deed records

-   A court injunction to stop work

11. What are the NFIP procedures for submitting an appeal to your Board
    of Appeals?

    There are none, or, more correctly, they are whatever your ordinance
    specifies.

12. Mr. Wilson wants to build a new house at grade instead of to the
    BFE, six feet above grade. You tell him he will need a variance.
    Which of the following are good and sufficient causes for granting
    him a variance?

-   An elevated house will look bad

-   Mrs. Wilson is old and has trouble with stairs

-   It will cost more money than the builder can afford

-   The builder has a contract with the bank to have it completed and
    sold in four months and changing plans will prevent meeting that
    deadline.

-   No one has ever seen a flood on that site.

    None of these. They do not show an exceptional hardship, they are
    not unique to the property, nor do they pertain to the land, not the
    owners.

13. Mr. Wilson is applying for a variance to build his house below the
    BFE. What two things must you tell him (in writing)?

    \(i\) the issuance of a variance to construct a structure below the
    base flood level will result in increased premium rates for flood
    insurance up to amounts as high as \$25 for \$100 of insurance
    coverage and;

    \(ii\) such construction below the base flood level increases risks
    to life and property.

[]{#__RefHeading___Toc413571356 .anchor}Learning check #5

1.  Why should you keep permit records?

    Records do the following:

-   Show what you approved and what you told the developer.

-   Form a Apaper trail@ needed for administrative or legal proceedings.

-   Give future owners information about the property.

-   Are checked by FEMA or the state to determine if your community is
    in full compliance with the NFIP.

8.  What records should be kept in your permit file?

-   The permit application form and all attachments, including the site
    plan.

-   All correspondence pertinent to the project.

-   Flood and floodway data prepared by the developer.

-   Engineering analyses of floodway encroachments and watercourse
    alterations.

-   Special engineering designs for enclosures below the BFE.

-   In coastal high hazard areas, engineering certifications of designs
    and construction methods of new and substantially improved
    buildings.

-   In coastal high hazard areas, certification of specially designed
    breakaway walls.

-   Any variances or appeals proceedings.

-   Records of inspections of the project while under construction.

-   Documentation of the Aas-built@ lowest floor elevation of all new
    and substantially improved buildings.

-   Certification of the elevation to which any nonresidential building
    has been floodproofed.

-   Certificates of compliance or occupancy.

9.  Who is responsible for ensuring that the elevation certificate is
    completed correctly?

    The permit official

10. What are the four situations when a record of an engineer\'s or
    surveyor's certification is needed?

-   Elevation certificate: needed for new or substantially improved
    buildings that are elevated in the SFHA

-   Floodproofing certificate: needed for new or substantially improved
    nonresidential buildings that are floodproofed.

-   V Zone certification: needed for new or substantially improved
    buildings in V Zones

-   No-rise certification: needed for development projects in floodways
    (or its equivalent in riverine floodplains where the floodway has
    not been mapped)

11. A property has been annexed from the county into your city, but the
    FIRM has not been revised to reflect the annexation. What is the
    NFIP community number that is recorded in Item 1, Section B of the
    FEMA Elevation Certificate?

    Your city's NFIP number. The county NFIP number is entered in Item 2
    of Section B.

12. Is a V Zone Certification needed for a residential building?

    Yes. It is needed for all buildings and substantial improvements in
    the V Zone.

13. Where do you get a Biennial Report to send in to FEMA?

    Don't worry. FEMA sends it to the community every two years.

[]{#__RefHeading___Toc413571357 .anchor}Unit Learning Exercise

1.  Does your community have formal written permit review procedures to
    ensure that a development proposal is properly reviewed and
    inspected?

    The answer should be "yes," although there is no NFIP requirement
    for written procedures.

2.  What are the four situations where a certification will be needed
    before a floodplain development permit can be issued?

-   Floodway encroachment analysis

-   Engineer's certification of floodproofing design

-   Non-conversion agreement for enclosed lower areas

-   V Zone design certification

3.  A development plan proposes to fill and regrade an area of the
    fringe to give most of the lots building sites that are above the
    BFE. The developer says "then we won't have the banks telling people
    my subdivision is in the floodplain." What do you tell the
    developer?

    While the permit office can use better ground elevation data to
    determine that a building location is above the BFE (and therefore
    outside the SFHA), the property will remain in the SFHA on the FIRM.
    That means that it is still subject to the flood insurance purchase
    requirement and the rates will be set at SFHA rates. It is the
    owner's responsibility to submit a request for a Letter of Map
    Amendment (LOMA) in order to have the FIRM reflect the better data.

4.  What are the key items you need to check when reviewing the plans
    for a new house to be built on a slab foundation on fill in the
    fringe?

-   The proposed elevation of the lowest floor

-   Your building code should also require you to make sure the fill
    will be properly compacted and protected from erosion and will not
    cause local drainage problems on neighboring properties.

5.  You deny an application to build a house in the floodplain because
    the plans show a proposed basement 6' below the BFE. What recourses
    does the applicant have now?

-   He can drop the idea and withdraw the application

-   He can redesign the house so the lowest floor (including basement)
    is above the required flood protection level.

-   He can appeal to the Board of Appeals if he thinks you misread or
    misinterpreted the requirements

-   He can apply for a variance to allow the basement.

6.  What should you check for during the first site inspection?

-   The location of the floodplain and floodway boundaries.

-   Setbacks from lot lines, channel banks, etc.

-   Floodway encroachments, if applicable.

7.  When should you make the second inspection for a building to be
    elevated on a crawlspace or columns?

    After the foundation is completed, so you can check if it is high
    enough before the lowest floor is built.

8.  If you use a level to verify the elevation of a building during the
    second inspection, will the builder still need to provide an
    as-built elevation certificate?

    Yes

9.  When is the best time to see if a crawlspace has adequate openings?

    During the second inspection, before the floor is built. This will
    allow the builder to install the needed openings with a minimum of
    disruption to the structure.

10. During the second inspection, you find that the builder wants to
    build the lowest floor three feet below the BFE in order to save on
    construction costs. What repercussions would the owner face if the
    community issued a certificate of occupancy for the building and did
    not pursue any enforcement action?

    Even though the certificate of occupancy says the owner had a
    "legal" building, the flood insurance rates would be based on the
    elevation of the lowest floor. The annual insurance premium would be
    very high. A few years of such premiums would likely be more
    expensive than the extra cost of meeting the ordinance's elevation
    requirement.

11. If the third inspection reveals that the builder of an apartment
    house has made a change to the structure that results in a major
    violation of your floodplain regulations, what can you do?

    Withhold the certificate of occupancy. (This assumes that you have
    an ordinance that states that utilities cannot be turned on and/or
    apartments cannot be rented until the certificate is issued.)

12. How can Section 1316 help a local permit official faced with a
    subdivider who refuses to build houses in compliance with the
    floodplain regulations?

    It authorizes FEMA to deny flood insurance to a property declared in
    violation of the community's ordinance. Among other things, this
    will prevent any federal assistance or federally-regulated or
    insured lending institutions from issuing a loan or mortgage secured
    by the new homes.

13. Can a community grant a variance to allow a project in the floodway
    that will cause a ½ foot increase in flood heights.

    No. "Variances shall not be issued by a community within any
    designated regulatory floodway if any increase in flood levels
    during the base flood discharge would result..." (44 CFR 60.6(a)1.)

14. Name two situations where special exceptions may be granted for a
    variance.

    Historic buildings and functionally dependent uses.

15. Permit records should be kept systematically. Your system should be
    keyed so you can retrieve permit files by:

    Geographical identifier, such as street address

16. What are the advantages of using the FEMA Elevation Certificate as a
    record of a building's lowest floor elevation?

-   It includes all the data needed for NFIP compliance

-   It meets the requirements of the Community Rating System

-   It is needed by insurance agents to write a policy.

17. Can a surveyor sign a Floodproofing Certificate?

    No, it must be signed by a registered professional engineer.

18. What is needed to support a No-rise certification?

    The engineering or no-rise certification must be supported by
    technical data and signed by a registered professional engineer. The
    supporting technical data should be based on the standard
    step-backwater computer model used to develop the 100-year floodway
    shown on your FIRM or Flood Boundary and Floodway Map and the
    results tabulated in your Flood Insurance Study.