In using these suggested
provisions, please keep in mind:
4.
The needs, circumstances, and
objectives of communities are so diverse that the development of a single
ordinance for use by all is literally impossible. While use of so called “model” ordinances, suggested provisions,
etc., can be of considerable help to a community, they are, nevertheless, of
value only up to a certain point. No
“ready-made” ordinance exists for any community. It is for this reason that we caution communities with respect to
the use of these provisions. As with
any other aid to local government, the value to be derived is dependent upon
the intelligence with which it is enacted and enforced.
Prior to the
enactment of any ordinance, a community should seek the advice of its legal
counsel regarding its content and enactment.
If the legal counsel is not involved in the actual preparation of the
ordinance, he or she should, at least, be given the opportunity to review and
comment upon the proposed ordinance prior to its enactment.
Green – It
is our offices belief that these changes merely clarify the original meaning
and intent of Federal minimum ordinance requirements.
Red
– Exceeds the Federal minimum requirements for participation in the NFIP.
Blue-
Amends the ordinance to incorporate WV State Code and WV State Regulations.
Purple-
community must fill in the blank or choose which ordinance language they wish
to adopt and enforce; some choices may exceed the Federal minimum requirements.
Black-Un-amended Text from the 1988 Flood Plain Ordinance
AN
ORDINANCE ESTABLISHING A FLOODPLAIN AREA AND REQUIRING ALL CONTRACTORS, PERSONS, PARTNERSHIPS,
BUSINESSES, AND CORPORATIONS TO OBTAIN A PERMIT FOR DEVELOPMENT AND THE
CONSTRUCTION, SUBSTANTIAL IMPROVEMENT , OR RELOCATION OF ANY BUILDING OR
STRUCTURE; PROVIDNG FOR CERTAIN MINIMUM STANDARDS FOR CONSTRUCTION WITHIN THE
FLOODPLAIN AREA AND SETTING FORTH SPECIAL PROCEDURES FOR SUBMISSION AND
APPROVAL OF PLANS; AND ESTABLISHING PENALTIES FOR ANY PERSON WHO FAILS TO
COMPLY WITH THE REQUIREMENTS OR PROVISIONS OF THIS ORDINANCE.
BE IT
ENACTED AND ORDAINED by the Berkeley County Commission, as follows:
ARTICLE
I - GENERAL
PROVISIONS
Section 1.1 Intent
The intent of this Ordinance is to:
A.
Promote
the general health, welfare, and safety of the community.
B.
Encourage
the utilization of appropriate construction practices in order to prevent or
minimize flood damage in the future.
C.
Minimize
danger to public health and safety by protecting water supply and sanitary
sewage disposal in
cooperation with the County Sanitarian, and to protect natural drainage.
D.
Reduce
financial burdens imposed on the community, its governmental units, and its
residents, by preventing the unwise design and construction of development in
areas subject to flooding.
Section 1.2 Abrogation and Greater Restrictions
This ordinance supersedes any ordinance currently in effect
in flood prone areas. Any ordinance,
however, shall remain in full force and effect to the extent that its
provisions are more restrictive.
Section
1.3 Applicability
It shall be unlawful for any contractor, property owner, person, partnership, business, or corporation to
undertake or cause to be undertaken, any development, new construction,
substantial improvement, repair of substantial damage, or the placement or
relocation of any structure (including manufactured homes) within the Berkeley County Flood Plain Area
unless a permit application has been completed and a permit and certificate of compliance has been obtained from the Floodplain Administrator.
Provision of all other codes, ordinances, and regulations
shall be applicable insofar as they are consistent with the provisions of this
ordinance and the community’s need to minimize the hazards and damage resulting
from flooding.
Section 2.1 Interpretations
A.
For
the purpose of this ordinance, the following interpretations shall apply:
1.
Words
used in the present tense include the future tense
2.
The
singular includes the plural.
3.
The
plural includes the singular.
4.
The
Term “shall” or “will” is always mandatory.
5.
The
word “building” or “structure” shall be construed as if followed by the phrase
“or part thereof”.
6.
The
word “Ordinance” shall refer to the Floodplain Ordinance.
Section
2.2 Definitions
General
Unless
specifically defined below, words and phrases used in this ordinance shall be
interpreted so as to give this ordinance it’s most reasonable application.
A structure on the same parcel of property as the principal
structure and the use of which is incidental to the use of the principal
structure. This does not include a gas
or liquid storage tank.
Base Flood
The flood, which has been selected to serve as the basis
upon which the floodplain management provisions of this and other ordinances
have been prepared; for purposes of this ordinance, the one-hundred (100) year
flood.
Basement
Any area of the building having its floor sub grade (below
ground level) on all sides.
A
certification that the entire development, including the elevation of fill or
the lowest floor of a structure is in compliance with all of the provisions of
this ordinance.
A person/company under contract to do a
specific job, supply labor and materials and providing and overseeing staff if
needed.
Critical Facility- Any facility in which some activities and facilities, even
a slight chance of flooding is too great a threat. Typical critical facilities
include hospitals, fire stations, police stations, storage of critical records,
and similar facilities. These facilities should be given special consideration
when formulating regulatory alternatives and floodplain management plans. A
critical facility should not be located in a floodplain if at all possible. If
a critical facility must be located in a floodplain it should be provided a
higher level of protection so that it can continue to function and provide
services after the flood.
Development
Any man-made change to improved or unimproved real estate,
including but not limited to buildings or other structures, mining, dredging,
filling, grading, paving, excavation or drilling operations or storage of
equipment or materials.
Flood
A general and temporary
inundation of normally dry land areas.
Floodplain
(1) A relatively flat or low land
area adjoining a river, stream, or watercourse which is subject to partial or
complete inundation;
(2) An area subject to the unusual and rapid accumulation or runoff of
surface waters from any source.
The Planning Director shall be the Floodplain Administrator. The Planning Director may delegate this authority to others as deemed
appropriate. The
Floodplain Administrator may also be identified as the Floodplain Manager.
The channel of a river or other watercourse and the
adjacent land area that must be reserved to discharge the base flood without
increasing the water surface elevation of that flood more than one foot at any
point.
Flood proofing
Any combination of structural and non-structural additions,
changes or adjustments to structures which reduce or eliminate flood damage to
real estate or improved real property, water and sanitary facilities,
structures and their contents.
A factor of safety usually expressed in feet above a flood level for
purposes of floodplain management. Freeboard tends to compensate for unknown
factors that may contribute uncertainty to flood heights of any given flood and
floodway condition, such as wave action, blockage at stream crossings, and
increased runoff from urbanization of the watershed.
Historic Structure
Any structure that is:
(a)
Listed
individually in the National Register of Historic Places (a listing maintained
by the Department of Interior) or preliminarily determined by the Secretary of
the Interior as meeting the requirements for individual listing on the National
Register;
(b)
Certified
or preliminarily determined by the Secretary of the Interior as contributing to
the historical significance of a registered historic district or a district
preliminarily determined by the Secretary to qualify as a registered historic
district
(c)
Individually
listed on a state inventory of historic places in states with historic
preservation programs which have been approved by the Secretary of the
Interior; or,
(d)
Individually
listed on a local inventory of historic places in communities with historic
preservation programs that have been certified either:
(i) By an approved state program
as determined by the Secretary of the Interior; or,
(ii) Directly by the Secretary of
Interior in states without approved programs.
Licensed Manufactured Home Dealer
A business licensed to sell
Manufactured Homes in the state of WV as set forth in the WV state code.
Licensed Manufacturing Home Installer
A contractor licensed to install Manufactured Homes in WV as
set forth in the WV State Code.
Licensed Professional
Engineer
Any person licensed by the
WV State Board of Professional Engineers to engage in the practice of
engineering as defined in WV State Code.
Any person
licensed by the WV state board of examiners of land surveyors to engage in the
practice of land surveying as defined in WV State Code.
Licensed Responsible Professionals
All qualified certifications shall be required to be
provided by engineers, architects or surveyors dually licensed in the State of
WV, provided the certifications are within the area of expertise. All professionals performing certifications
in this County shall be required to be licensed by the State of WV.
Lowest Floor
The lowest floor of the lowest enclosed area (including
basement). An unfinished enclosure constructed with flood
resistant materials as defined in the FEMA Technical Bulletin 2-93 (FIA-TB-2) and usable solely for parking of
vehicles, building access or storage in an area other than a basement area is
not considered a building’s lowest floor; Provided, that such enclosure is not
built so as to render the structure in violation of the applicable
non-elevation design requirements of this ordinance.
Manufactured Home
A structure, transportable in one or more sections, which
is built on a permanent chassis and is designed for use with or without a
permanent foundation when connected to the required utilities. The term “manufactured home” does not
include a “recreational vehicle”.
New Construction
Structures for which the Start of Construction as herein
defined commenced on or after the effective date of the
enactment of this Ordinance, and
including any subsequent improvements to such structures.
One-Hundred (100) Year Flood
A flood that has one chance in one-hundred or a one percent
chance of being equaled or exceeded in any given year.
Any service or creative work, as
described in WV state code Article 13, the adequate performance of which
requires engineering education, training and experience in the application of
special knowledge of the mathematical, physical and engineering sciences to
such services or creative work as consultation, investigation, evaluation,
planning and design of engineering works and systems; planning the use of land
and water; teaching of advanced engineering subjects, engineering surveys and
studies; and the review of construction for the purpose of assuring compliance
with drawings and specifications any of which embraces such services or work, either
public or private, in connection with any utilities, structures, buildings,
machines, equipment, processes, work systems, projects and industrial or
consumer products or equipment of a mechanical, electrical, hydraulic,
pneumatic or thermal nature, insofar as they involve safeguarding life, health
or property, and including such other professional services as may be necessary
to the planning, progress and completion of any engineering services.
Engineering surveys include all survey activities required to support the sound
conception, planning, design, construction, maintenance and operation of
engineered projects.
Any person who practices any branch of the profession of
engineering or who, by verbal claim, sign, advertisement, letterhead, card or
in any other way represents himself or herself to be a registered professional
engineer, or by using another title implies that he or she is a registered
professional engineer or that he or she is registered under WV state code,
article 13 or who holds himself or herself out as able to perform, or who
performs any engineering service or work or any other service designated by the
practitioner which is recognized as engineering, is considered to practice or
offer to practice engineering within the meaning and intent of WV state code Article
13.
Person
Any individual or group of individuals, corporation,
partnership, association or other entity, including State and local governments
and agencies.
Principally Above Ground
Where at least 51 percent of the actual cash value of a
structure, less land value, is above ground.
Property Owner
Any owner of real estate
or lands being affected. It shall not
include lending institutions or parties holding a security interest only.
Recreational Vehicle
A vehicle which is:
(a)
built
on a single chassis; (b) 400 square feet or less when measured at the largest
horizontal projection; (c) designed to be self-propelled or permanently towable
by a light duty truck; and (d) designed primarily not for use as a permanent
dwelling but as temporary living quarters for recreational, camping, travel, or
seasonal use.
To
bring a structure or other development into compliance with the requirements of
this ordinance, or, if full compliance is not possible, to reduce the adverse
impacts of the non-compliance to the greatest extent feasible.
Means base flood waters will not inundate the land or damage structures to be removed from the special flood hazard area and that any subsurface waters related to the base flood will not damage existing or proposed buildings.
Septic
Area-This would
include septic tanks, septic reserve areas and primary drainfields.
Start of Construction (The definition
for start of construction is to be used only when calculating the starting time
of the 6 month expiration of a permit.)
The date the permit for development in the floodplain area was
issued, including permits for substantial
improvement or substantial damage, provided the actual start of
construction, repair, reconstruction, rehabilitation, addition, placement, or
other improvement was within 180 days of the permit date. The actual start means either the first
placement of permanent construction on a site, such as the pouring of slab or
footings, the installation of piles, the construction of columns, or any work
beyond initial excavation, or the placement of a manufactured home on a
foundation. Although a permit must be obtained prior to beginning, permanent construction
does not include land preparation, such as clearing, grading and filling, nor
does it include the installation of streets and/or walkways, nor does it
include excavation for a basement, footings, piers or foundations or the
erection of temporary forms, nor does it include the installation on the
property of accessory buildings, such as garages or sheds not occupied as
dwelling units or not part of the main structure. For an alteration, the actual start of construction means the
first alteration of any wall, ceiling, floor or other structural part of a
building, whether or not that alteration affects the external dimensions of the
building.
State Coordinating Office
The West Virginia Division
of Homeland Security and Emergency Management
Stream
As defined in WV State Code
7-1-3U, any watercourse, whether natural or man-made, distinguishable by banks
and a bed, regardless of their size, through which water flows continually or
intermittently, regardless of its volume.
Structure
A walled and roofed building, including a gas or liquid storage
tank that is principally above ground, as well as a manufactured home.
Substantial Damage
Damage of any origin sustained by a structure whereby the
cost of restoring the structure to it’s before damage condition would equal or
exceed 50 percent (50%) of the market value of the structure before the damage
occurred. Substantial damage also means
cumulative flood-related damages sustained by a structure on two separate
occasions during a 10 year period for which the cost of repairs at the time of
each flood event equals or exceeds 25 percent of the market value of the
structure before the damage occurred.
See “Substantial Improvement.”
Substantial Improvement
Any repair, reconstruction, rehabilitation, addition, or
other improvement of a structure, the cost of which equals or exceeds 50
percent of the market value of the structure before the Start of Construction
of the improvement.
This term includes structures, which have incurred
“substantial damage”, as defined herein regardless of the actual repair work
performed. The term does not, however,
include any project for improvement of a structure to correct existing
violation of state or local health, sanitary or safety code specifications
which have been identified by the local code enforcement official and which are
the minimum necessary to assure safe living conditions.
Historic structures undergoing repair or rehabilitation that
would constitute a substantial improvement as defined above, must comply with
all ordinance requirements that do not preclude the structure’s continued
designation as a historic structure. Documentation that a specific ordinance
requirement will cause removal of the structure from the National Register of
Historic Places or the State Inventory of Historic places must be obtained from
the Secretary of the Interior or the State Historic Preservation Officer. Any
exemption from ordinance requirements will be the minimum necessary to preserve
the historic character and design of the structure.
For the
purpose of this definition improvement is considered to occur when the first
alteration of any wall, ceiling, floor or other structural part of the building
commences whether or not that alteration affects the external dimensions of the
structure.
The
lines depicted on the FIRM maps delineating each side of a stream indicate the
top of bank. In the field a professional familiar with fluvial geomorphology
should document the top of bank. When a professional is not employed the top of
the bank will be considered to be the top of the first significant slope
landward of the waters edge when it is followed by at least 50 feet of
relatively flat land.
The failure of any structure or development to be fully
compliant with all requirements of this ordinance.
ARTICLE
III - ESTABLISHMENT
OF THE FLOODPLAIN AREA
Section 3.1 Identification
A.
The identified floodplain
area shall be those areas of Berkeley County which are subject to the one
hundred (100) year flood, as shown on the Flood Insurance Rate Map (FIRM) and
described in the Flood Insurance Study (FIS) prepared for Berkeley County by
the Federal Emergency Management Agency (FEMA) dated August 4, 1988, or the
most recent revision thereof.
B.
The identified floodplain area
shall also be those areas of Berkeley County which have been identified as
flood hazard areas by Berkeley County by use of historic or other technical
data and shown on Berkeley County “Local Flood Hazards Map”. These areas shall
be designated as appropriate with the level of technical data described below
and shall be managed accordingly.
Section 3.2 Descriptions of Floodplain Areas
The identified floodplain shall consist of the following
four specific areas:
A. The Floodway area (F1)
shall be those areas identified as such in the FIS and as shown on the floodway
map or FIRM. In the Approximated floodplain area
(F4) for which no regulatory floodway is designated, the regulatory floodway is
determined to be the channel of the river or other water course and the
adjacent land areas to a distance of one-half the width of the floodplain as
measured from the top of the bank of the channel to the upland limit of the
floodplain. The term shall also include
floodway areas identified in other studies for the approximated area discussed
in Section D Below.
B. The Floodway Fringe area (F2) shall be those areas for which specific one hundred (100)
year flood elevations have been provided in the FIS but which lie beyond the
floodway area. The areas are shown on
the floodway map or FIRM.
C. The AE Area without Floodway (F3) shall be those areas
identified as an AE Zone on the FIRM included in the FIS prepared by FEMA for
which 100-year flood elevations have been provided but no Floodway has been
delineated.
D. The Approximated area (F4) shall be those areas identified as an A Zone on the FIRM or
floodway map included in the FIS prepared by FEMA and for which no one hundred
(100) year flood elevations have been provided. For these areas, elevation and floodway information from other
Federal, State, or other acceptable source shall be used when available. Where other acceptable information is not
available the
Floodplain Administrator shall require the applicant to determine the elevation with hydrologic and
hydraulic engineering or other techniques.
Only professional engineers or others of demonstrated qualifications
shall undertake hydrologic and hydraulic analyses. The licensed
surveyor or engineer shall
certify that the technical methods used correctly reflect currently accepted
technical concepts. The resultant study shall include a cover
letter, signed by the responsible professional, providing a statement of
findings in basic terms. In addition,
studies, analyses, computation, etc., used to determine base flood elevations
and floodways shall be
submitted in sufficient detail to allow a thorough technical review by both the
Berkeley County
Planning Commission Staff and Berkeley County Engineering Department.
Section 3.3 Changes in Designation of Area
A.
The
delineation of the identified floodplain area may be revised by the Berkeley County Planning Department
where natural or
man-made changes have occurred and/or more detailed studies conducted or
undertaken by the U.S. Army Corps of Engineers, a River Basin Commission or
other qualified agency or individual document the necessity for such
changes. However, prior to any such
change, approval must be obtained from the Federal Insurance Administration
(FIA).
B.
The Floodplain Adminstrator may identify and regulate new flood hazard or ponding areas.
These areas may be delineated using locally derived technical information such
as flood of record, historic high water marks and/or topographic data.
Section 3.4 Elevations Prevail
A.
If
the lowest natural grade adjacent to a proposed building site that is within an
identified flood hazard area is at or above the Base Flood Elevation specified
in the Flood Insurance Study, the structure shall not be required to conform to
the flood prevention design and construction standards or flood-related
development codes in Article VI.
Topographic data certified by a registered professional engineer or
surveyor shall be submitted in sufficient detail to allow a thorough review by
the Floodplain Administrator. The
applicant is advised to apply for a Letter of Map Amendment (LOMA) from FEMA to
have the Special Flood Hazard Area designation removed from the parcel or
structure.
B.
If
the lowest natural grade adjacent to a proposed building site is below the Base
Flood Elevation specified in the Flood Insurance Study, the site shall be
considered to be within the floodplain area and the proposed structure shall be
required to conform to all appropriate provisions of this ordinance.
Section 3.5 Boundary Disputes
Should a dispute concerning any district boundary arise, an
initial determination shall be made by the Floodplain Administrator and any party aggrieved by this decision may appeal to the
Berkeley County Planning Commission. The burden of
proof shall be on the appellant/applicant.
ARTICLE
IV - UTILIZATION
OF THE FLOODPLAIN AREA
Section 4.1 Floodway (F1)
A.
Within any floodway area (F1), no encroachments,
including fill, new construction, substantial improvements, repair of substantial
damage, or other development shall be permitted unless it has been
demonstrated through hydrologic and hydraulic analysis performed in accordance
with standard engineering practice that the proposed encroachment will not
result in any increase in the Base Flood Elevation.
B.
The Floodway shall be preserved to the greatest extent possible to carry
the discharge of the base flood.
C.
All permitted uses,
activities, and development shall be undertaken in strict compliance with the
flood proofing and related provisions contained herein, and in all other
applicable codes, ordinances and regulations.
Section 4.2 Floodway Fringe (F2) and Approximated
Floodplain (F4)
A.
In
the Floodway Fringe (F2) and Approximated Floodplain (F4), any development
and/or use of land shall be permitted provided that all such uses, activities
and/or development shall be undertaken in strict compliance with the
flood-proofing and related provisions contained herein and in all other
applicable codes, ordinances and regulations.
B. All subdivision proposals and
other proposed new developments which are proposed to take place either fully
or partially within the Approximated Floodplain area (F4) shall
include base flood elevation data when available.
1.
This
data may be available from an authoritative source, such as the U.S. Army Corps
of Engineers, U.S. Geological Survey, Natural Resource Conservation Service or
state and local water resource department.
2.
If
the required data is not available from other sources the applicant shall
develop the technical data using detailed
methodologies comparable to those contained in a Flood Insurance Study. This
data shall be prepared and certified by a registered professional engineer or
others of demonstrated qualifications, who shall certify that the technical
methods used correctly reflect currently accepted technical concepts.
C.
All new or improved structures
located in the Approximated Floodplain (F4) shall be elevated at least three
(3) feet above the highest adjacent grade unless Base Flood Elevation data has
been obtained from an authoritative source or developed by a qualified professional
using a detailed methodology as described above.
Section 4.3 AE area without floodway (F3)
Within any AE area without floodway, no new construction or
development shall be allowed unless it is demonstrated that the cumulative
effect of the proposed development, when combined with all other existing and
anticipated development, will not increase the elevation of the 100-year flood
more than one (1) foot at any point.
This requirement can be satisfied by utilization of the floodway area
where determined.
Section 4.4 Alteration or relocation of a stream
A.