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Model Floodplain District Bylaw
Download a Word file of this Bylaw
Cape Cod Commission Model Bylaws and Regulations
Model Floodplain District Bylaw
Background
Coastal flooding, storm waves and surge have resulted in threats to life, destruction of property, and economic impacts in every Cape Cod community since records have been kept. In the past decade, several million dollars in federal, state, and local funds have been expended in Barnstable County to restore and reconstruct damaged homes, businesses and public infrastructure due to development in coastal floodplains. Even with the high risk of total loss or damage, residential homes and commercial buildings continue to be permitted and built in coastal high hazard areas. The aesthetics of living on waterfront property, marketability of coastal homes, availability of federal flood insurance, and monetary benefits for towns are incentives for land owners to apply for and local boards to grant permits or coastal development. Unfortunately, the result means on-going threats to life and personal injury, greater financial outlays, continuing property loss, and greater environmental impacts when coastal storms inevitably occur.
Although the Massachusetts Wetlands Protection Act and Regulations (310 CMR 10.00), list the coastal floodplain, or "Land Subject to Coastal Storm Flowage," as a protected resource and identify its beneficial functions, specific guidance or standards on regulating floodplain development are not provided.
As a result, in 1995, the state's Coastal Floodplain Task Force, comprised of a group of public and private coastal resource scientists and managers, produced a publication entitled "Scientific Recommendations for Performance Standards for Land Subject to Coastal Storm Flowage" outlining standards and suggesting limits for development in coastal floodplains. These standards were incorporated into the Cape Cod Commission's 1996 Regional Policy Plan.
The Regional Policy Plan's coastal section sets standards for coastal floodplain development that are designed to protect the natural and beneficial functions of the coastal floodplain and eliminate or minimize potential threats to life, destruction of property, and reduce post-storm disaster expenses and recovery costs. These standards are necessarily more stringent than the present state standards, such as requiring that the lowest horizontal structural member of dwellings being built within FEMA V-zones be constructed two feet above the base flood (100-year) elevation to take into account not only the 100 year flood level, but also the documented current relative sea level rise rate in Massachusetts (one vertical foot per 100 years in Massachusetts, plus additional wave height expected within the V-zone).
The Regional Policy Plan's standards seek to reduce the amount of damage and threats to health and safety that can be caused by moderate to major storm events, while protecting vital elements and beneficial functions (storm and flood damage reduction, wildlife habitat, recreational and aesthetic benefits) provided by coastal landforms, such as coastal banks, barrier beaches, and dunes. In order to achieve public health and safety goals, the minimum performance standards restrict, for example, armoring of the coast, construction of roads and other impermeable surfaces across coastal resources, and development which will increase coastal flooding and thus damage.
The bylaw that follows is designed in concert with the Regional Policy Plan standards regarding development in flood hazard areas.
01.0 Purpose and Intent: The purposes of the Floodplain District bylaw are:
01.1 to limit development in areas subject to coastal storm flowage, particularly high hazard Velocity zones, in order to minimize potential loss of life, destruction of property, and environmental damage inevitably resulting from storms, flooding, erosion and relative sea level rise;
01.2 to reduce or prevent public health emergencies resulting from surface and ground water contamination from inundation of or damage to sewage disposal systems and storage areas for typical household hazardous substances;
01.3 to enable safe access to and from coastal homes and buildings for homeowners and emergency response personnel, such as police, fire, and rescue departments;
01.4 to minimize monetary loss and public health threats resulting from storm damage to public facilities (water and gas mains; electric, telephone and sewer lines, streets, bridges, etc.);
01.5 to prevent loss or diminution of the beneficial functions of storm and flood damage prevention or reduction and pollution prevention provided by wetlands, beaches, dunes, barrier beaches, and coastal banks;
01.6 to maintain vegetative buffers to wetlands and waterbodies so as to reduce and/or eliminate runoff, and other non-point discharges of pollutants to protect public health and preserve environmental resources.
Commentary: The purposes of this bylaw are self-explanatory -- to protect health, safety and welfare by precluding development in flood prone areas.
02.0 Definitions: As used in this Bylaw, the following words shall have the meanings specified herein:
02.1 A Zone (including A-, AE-, A1-30, and A99) - A-zones are those portions of the Land Subject to Coastal Storm Flowage which are subject to inundation by types of 100 year flooding where stillwater predominates.
02.2 AO-Zones - Those portions of Land Subject to Coastal Storm Flowage which are subject to inundation by moving water (usually sheet flow on sloping terrain) where average depths are between one and three feet. In Massachusetts, coastal AO-zones are commonly associated with 'overwash' and generally border on the landward side of V-zones.
02.3 Coastal Bank - The seaward face or side of any elevated landform, other than a coastal dune, which lies at the landward edge of a coastal beach, land subject to tidal action, or other wetland.
02.4 Development - Any of the following undertaken by any person: any building, construction, mining, extraction, dredging, filling, excavation, or drilling activity or operation; the division of land into parcels; the clearing of land into parcels; or the clearing of land as an adjunct of construction.
02.5 Growth/Activity Centers - Existing and/or new areas designated by the towns through Local Comprehensive Plans and certified by the Commission as suitable locations for new growth and redevelopment.
02.6 Land Subject to Coastal Storm Flowage - Land subject to inundation caused by coastal storms up to and including the 100 year flood, surge of record, or flood of record, whichever is greater. The 100 year flood (or base flood as it is also referred to) means the flood having a one percent chance of being equaled or exceeded in any given year. The seaward limit is mean low water.
02.7 Redevelopment - The reconstruction, reuse or change in use of any developed property, including but not limited to the following: any increase in the intensity of use of already developed land, such as an increase in the number of dwelling units in a structure or change to a commercial or industrial use from a less intensive use; enlargement of a structure; additions to usable interior floor area within residential, commercial and industrial buildings; and the conversion of a seasonal use or dwelling to year-round use.
02.8 Resource Area - Any wetland, coastal bank, coastal dune, barrier beach and/or coastal beach as defined herein.
02.9 Seasonal Use - A residential structure that lacks one or more of the basic amenities or utilities required for year-round occupancy such as a permanent heating system and/or year-round usable plumbing.
02.10 Velocity (V) Zone - Those portions of Land Subject to Coastal Storm Flowage which are coastal high hazard areas or areas of special flood hazard extending from the mean low water line to the inland limit within the 100-year Floodplain supporting waves greater than three feet in height.
02.11 Village Growth/Activity Centers - Small, pedestrian-oriented settlements which are suitable for a mix of residential and compatible small-scale commercial uses.
02.12 Water Dependent Use - Any use that requires direct access to, or location in, fresh and marine waters and therefore cannot be located away from said waters, including but not limited to, those uses identified by G.L. Chapter 91. Examples include: commercial or recreational boating and fishing facilities, water based transportation and recreational facilities, pedestrian facilities that promote public use and enjoyment of the shoreline, facilities that are related to marine research and education, aquaculture facilities and cranberry bogs, beach nourishment, dredging, shoreline protection structures, water level control facilities, and any other uses or facilities that cannot be reasonably located away from the shoreline.
Commentary: Velocity zones and AO-zones of Land Subject to Coastal Storm Flowage (V zones especially so) are areas which are subject to hazardous flooding, wave impact, and in some cases, significant rates of erosion as a result of storm wave impact and scour. V- and AO-zones in coastal areas are generally subject to repeated storm damage which can result in loss of life and property, increasing public expenditures for storm recovery activities, taxpayer subsidies for flood insurance and disaster relief, and increased risks for personnel involved in emergency relief programs. Alteration of land surfaces in A-zones could change drainage characteristics that could cause increased flood damage on adjacent properties.
03.0 Scope of Authority: The Floodplain District is an overlay district and shall be superimposed on the other districts established by this bylaw. All regulations in the _____ Zoning Bylaw applicable to such underlying districts shall remain in effect, except that where the Floodplain District imposes additional regulations, the more stringent regulations shall prevail.
Commentary: As with the other overlay districts presented in the model bylaw package, the overlay serves as an expansion of the regulatory scope covered by the underlying district. The more restrictive and specific regulations, typically found in the overlay district, apply.
04.0 Floodplain District Delineation:
04.1 The Floodplain District is defined as all lands within the 100-year floodplain as mapped and designated on the Town of ____ most recent Flood Insurance Rate Maps (FIRM) approved and issued by the Federal Emergency Management Agency and/or land subject to coastal storm flowage as documented and mapped by the town.
04.2 The floodway boundaries are delineated on the Town of ____'s most recent Flood Boundary and Floodway Map (FBFM).
04.3 The FIRM and FBFM maps are incorporated herein by reference and are on file with the Town Clerk.
05.0 Use Regulations:
05.1 Permitted Uses
Except as otherwise provided, in the Floodplain District, no new building shall be constructed, and no existing structure shall be enlarged, moved to a more vulnerable location, or altered except to upgrade for compliance with documented existing health and safety codes; no dumping, filling, or earth transfer or relocation shall be permitted; nor shall any land, building or structure be used for any purposes, except:
05.1.1 Outdoor recreation, including play areas, nature study, boating, fishing and hunting where otherwise legally permitted, but excluding buildings and structures.
05.1.2 Wildlife management or conservation areas, foot, bicycle, and/or horse paths and bridges, provided such uses do not affect the natural flow pattern of floodwaters or of any water course.
05.1.3 Agricultural uses or forestry uses.
05.1.4 Uses lawfully existing prior to the enactment of this bylaw.
05.2 Use Limitations
05.2.1 No development or redevelopment shall be permitted within FEMA V-flood zones, on barrier beaches or coastal dunes (as defined by the Wetlands Protection Act and associated regulations and policies) except where fire, storm, or similar disaster caused damage to or loss of greater than 50% of the market value of buildings in this high hazard zone.
05.2.2 Existing structures in V-zones, on barrier beaches or coastal dunes may be reconstructed or renovated, provided that there is no increase in floor area, or conversion from seasonal to year-round use.
05.2.3 For a water dependent use with no other alternative, development of redevelopment shall be permitted in the floodplain district provided that the structure will not compromise the beneficial functions of coastal resources and that the applicant obtains permits from the appropriate authorities. Any reconstruction in a Velocity zone shall not enlarge or expand the use of an existing structure, and on a barrier beach or dune the structure must be built on open pilings.
05.2.4 No new public infrastructure or expansion of existing infrastructure shall be made in FEMA A or V zones unless there is a documented and accepted overriding public benefit provided, and provided that the infrastructure will not promote new growth or development in these areas. New or replacement water and/or sewer systems shall be designed to avoid impairment to them or contamination from them during flooding.
05.2.5 Within Cape Cod Commission (CCC) certified Village Growth/Activity centers located in FEMA A-zones where a Flood Hazard Mitigation Plan has been prepared and adopted by the town, and deemed consistent with state coastal policies and regulations by the CCC:
05.2.5.1 Development and redevelopment shall be subject to the requirements of the Flood Hazard Mitigation Plan and related policies and regulations;
05.2.5.2 Public infrastructure and private wastewater treatment facilities may be constructed in FEMA-mapped A-zones (but not within V or AO-zones) provided that: 1) the facilities are consistent with the Flood Hazard Mitigation Plan and 2) the infrastructure is flood resistant.
05.2.5.3 All new buildings or substantial improvements to existing structures in the FEMA A-zone shall comply with FEMA and State Building Code regulations for elevation and floodproofing.
05.3 Other Requirements
05.3.1 All development and redevelopment in the district including structural and non-structural activities must be in compliance with the following:
05.3.1.1 G.L. Chapter 131, Section 40 and 310 CMR 10.00.
05.3.1.2 Title 5, The State Environmental Code - Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, Department of Environmental Protection.
05.3.1.3 Section 744.0 of the Massachusetts State Building Code, Design Requirements for Floodplains and Coastal High Hazard Areas.
Commentary: This section specifies the extent of allowable uses with the floodplain district. Note that the very nature of development within a floodplain requires conformance and compliance with additional state and local regulations.
06.0 Performance Standards:
06.1 To accommodate relative sea level rise in building construction in the flood zone, all new buildings, replacements, and substantial improvements shall have their first floor built at least one foot above base flood elevation in the A zone and the lowest horizontal structural member shall be at least two feet above base flood elevation in the V zone.
06.2 Electrical heating, ventilation, plumbing and air-conditioning equipment and other service facilities shall be designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding.
06.3 In the A or V zones on a barrier beach or coastal dune, new or renovated buildings shall be built a minimum of two feet above grade on open pilings to allow for storm flowage and beach and dune migration.
06.4 Development or redevelopment on or within 100 feet landward of the top of a coastal bank or dune shall have no adverse impact on the height, stability or use of the bank or dune as a natural sediment source.
06.5 Where banks or dunes are eroding, all new buildings and structures (such as septic systems), shall be setback equal to the erosion rate which had occurred within at least the past 30 years, unless credible evidence is accepted by the permitting authority that demonstrates a different erosion rate is applicable at that particular site.
06.6 No activity shall increase the elevation or velocity of flood waters or flows in the floodplain district.
06.7 Within the 10-year floodplain, no activity shall impede the natural landward migration of coastal banks, dunes, beaches, barrier beaches, or other wetland.
06.8 Within the V zone of a beach, dune, barrier beach or coastal bank, new or reconstructed structures or development which alter vegetation, interrupt sediment supply, and/or changes the form or volume of a dune or beach are prohibited.
Commentary: The above-noted performance standards "fine-tune" the use regulations presented in Section 05.0 and provide guidance to a permit applicant and the Town as to acceptable development within the areas regulated by this overlay district.
07.0 Administration:
07.1 The Building Inspector (in consultation with the Planning Board and Conservation Commission) shall review all proposed development within the floodplain to assure that all necessary permits have been received from those governmental agencies from which approval is required by federal or state law.
07.2 The Building Inspector shall obtain and maintain records of elevation and flood-proofing levels for new construction or substantial improvement within the flood district.
08.0 Variance Procedure:
Commentary: Because this bylaw proposes use prohibitions in the Floodplain District, towns are encouraged to establish a process through which a project proponent may raise a regulatory takings claim resulting from the application of this bylaw. Bylaw provisions authorizing use variances may also serve this purpose, however, they are not likely to protect resources to the same extent as the following language.
08.1 The Zoning Board of Appeals may grant a variance from the application of any regulation contained herein when they find, after opportunity for public hearing, that:
08.1.1 there are no reasonable conditions or alternatives that would allow the project to proceed in compliance with this bylaw;
08.1.2 mitigating measures are proposed that will allow the project to be conditioned so as to contribute to the protection of the resources identified or sought to be protected under this bylaw and/or the regulations of the Conservation Commission; and
08.1.3 the variance is necessary to accommodate an overriding community public interest; or that it is necessary to avoid a Permit decision that so restricts the use of property as to constitute an unconstitutional taking without compensation.
08.2 Procedure
08.2.1 A request for a variance shall be made in writing and shall include, at a minimum, the following information:
i. a description of alternatives explored that would allow the project to proceed in compliance with this bylaw and an explanation of why each is unreasonable;
ii. a description of the mitigating measures to be used to contribute to the protection of the resources identified or sought to be protected under this bylaw and/or the regulations of the Conservation Commission; and
iii. evidence that an overriding public interest is associated with the project which justifies waiver of this bylaw, or evidence that the decision regarding the Permit Application so restricts the use of the land that it constitutes an unconstitutional taking without compensation.
08.2.2 The request for a variance shall be sent to the Zoning Board of Appeals by certified mail or hand delivered and a copy thereof shall at the same time be sent by certified mail or hand delivered to the Conservation Commission, Planning Board and any other parties.
08.2.3 Upon receipt of a request for a variance the Zoning Board of Appeals shall conduct a hearing and make findings and a determination relative to the request in accordance with its usual procedures for review of variance requests. The advertising cost for the public hearing shall be paid by the applicant.
09.0 Severability:
0.9.1 If any provision of this bylaw is held invalid by a court of competent jurisdiction, the remainder of the bylaw shall not be affected thereby. The invalidity of any section or sections or parts of any section or sections of this bylaw shall not affect the validity of the remainder of the [town]'s zoning bylaw.
Commentary: This Section is a generic severability clause. Severability clauses are intended to allow a court to strike or delete portions of a regulation that it determines to violate state or federal law. In addition, the severability clause provides limited insurance that a court will not strike down the entire bylaw should it find one or two offending sections. |
