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ORDINANCE NO. 4368
AN ORDINANCE AMENDING TITLE XV: UNIFIED
DEVELOPMENT ORDINANCE, OF THE CODE OF FAYETTEVILLE,
TO PROVIDE AMENDMENTS TO VARIOUS PROVISIONS
CONCERNING THE FLOOD DAMAGE PREVENTION CODE.
WHEREAS, the flood hazard areas of the City of Fayetteville are subject to
periodic inundation which results in loss of life and property, health and safety hazards,
disruption of commerce and governmental services, and extraordinary public
expenditures for flood protection and relief, all of which adversely affect the public
health, safety and general welfare, and;
WHEREAS, these flood losses are created by the cumulative effect of
obstructions in floodplains which cause an increase in flood heights and velocities, and
by the occupancy of flood hazard areas by uses vulnerable to floods and hazardous to
other lands because they are inadequately elevated, flood-proofed or otherwise protected
from flood damage, and;
WHEREAS, the General Assembly of the State of Arkansas has, under A.C.A.
§ 14-268- 101 et seq. as amended, delegated the responsibility to local governmental units
to adopt regulations designed to minimize flood losses.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF FAYETTEVILLE, ARKANSAS:
Section 1 . That Chapter 151 : Definitions, Unified Development Ordinance, Code
of Fayetteville is hereby amended by inserting Exhibit "A" attached hereto and made a
part hereof.
Section 2. That Section 155.06(D)(1 ), Unified Development Ordinance, Code of
Fayetteville is hereby repealed, and the following is inserted in its stead:
§155.05 APPEALS FROM STAFF INTERPRETATION/ACTIONS.
D. Appeals To the Planning Commission.
1. Floodplain Administrator. Any person aggrieved may appeal the
decision of the Floodplain Administrator, provided that the Planning Commission shall
hear and decide an appeal only when it is alleged there is an error in any requirement,
decision, or determination made by the Floodplain Administrator in the enforcement or
administration of this chapter.
Section 3 . That Section 156.03(C), Unified Development Ordinance, Code of
Fayetteville is hereby Amended by inserting the following:
• . Ord . 4368
§156.03 DEVELOPMENT.
C. Consideration By The Planning Commission.
6. Flood Damage Prevention Code. The Planning Commission shall hear
and decide requests for variances from the requirements of this ordinance. Any person or
persons aggrieved by the decision of the Planning Commission regarding a variance
request may appeal such a decision in the courts of competent jurisdiction.
a. In passing upon such applications, the Planning Commission shall
consider all technical evaluations, all relevant factors, and standards specified in other
sections of this ordinance.
b. Variances may be issued for the reconstruction, rehabilitation or
restoration of structures listed in the National Register of Historic Places, without regard
to the procedures identified in the remainder of this ordinance. Variances may only be
issued for such repair or rehabilitation if strict enforcement of the ordinance would
preclude the structure's continued designation as a historic structure, and the variance is
the minimum necessary to preserve the historic character and design of the structure.
c. Generally, variances may be issued for new construction and
substantial improvements to be erected on a lot %z acre or less in size contiguous to and
surrounded by lots with existing structures constructed below the base flood level,
providing items (1 ) through (11 ) of § 168.03(A) have been fully considered. As the lot
size increases beyond % acre, the technical justification required for issuing the variance
increases.
d. Variances shall not be issued within any designated floodway if any
increase in flood levels during the base flood discharge would result.
e. Variances shall only be issued upon a determination that the variance
is the minimum necessary, considering the flood hazard, to afford relief.
f. Floodplain variances shall only be issued if:
il there are exceptional or extraordinary circumstances or
conditions applicable to the property involved or to the intended use of the property,
which do not apply generally to other property in the same flood zone;
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 heights, additional threats to public safety, extraordinary public expense,
create nuisances, cause fraud on or victimization of the public, or conflict with the other
provisions of the Code of Fayetteville.
• • Ord .. 4368
g. Variances may be issued for new construction and substantial
improvements and for other development necessary for the conduct of a functionally
dependent use provided that the provisions of § 168.03(A) are satisfied and that 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.
h. Upon consideration of the factors in this Section and the purposes of
this ordinance, the Planning Commission may impose conditions to the granting of
floodplain variances as it deems necessary to further the purposes of this ordinance.
i. Any applicant to whom a variance is granted shall be given written
notice that the structure will be permitted to be built with a lowest floor elevation below
the regulatory flood elevation surcharge and that the cost of flood insurance will be
commensurate with the increased risk resulting from the reduced lowest floor elevation.
A copy of the notice shall be recorded by the Floodplain Administrator in the office of
the Washington County Clerk and shall be recorded in a manner so that it appears in the
chain of title of the affected parcel of land.
Section 4. That Chapter 168: Flood Damage Prevention Code, Unified
Development Ordinance, Code of Fayetteville is hereby repealed, and Exhibit `B" with
Appendix attached hereto and made a part hereof, is inserted in its stead.
PASSED and APPROVED this 5`h day of February, 2002.
APPROVED:
DAN COODY, Mayor
Iri ..' 14 OODRUFF, OKYClerk
l� �rt co �1 �-
• EXHIBIT "A" • Ord , 4368
To be inserted at Chapter 151 : Definitions, Unified Development Ordinance:
Appeal. (Flood Damage Prevention) A request for a review of the Floodplain
Administrator's interpretation of any provision of this Chapter.
Area of shallow flooding. (Flood Damage Prevention) A designated AO, AH, or CP
Zone on the Flood Insurance Rate Map (FIRM). The base flood depths range from 1 to 3 feet; a
clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate;
and velocity flow may be evident.
Area of flood-related erosion hazard. (Flood Damage Prevention)The area subject to
severe flood-related erosion losses. The area is designated as Zone E on the Flood Insurance
Rate Map.
Area of special flood hazard. (Flood Damage Prevention) See "Special flood hazard
area."
Base flood. (Flood Damage Prevention) The flood having a 1 % chance of being equaled
or exceeded in any given year (also called the " 100-year flood").
Base Flood Elevation (BFE). (Flood Damage Prevention) The height of the base flood,
usually in feet, in relation to the National Geodetic Vertical Datum of 1929 or other datum as
specified.
Basement. (Flood Damage Prevention) Any area of a building having its floor sub-grade
(below ground level) on all sides.
Elevated building. (Flood Damage Prevention) A non-basement building (I) built, in the
case of a building in Zones Al -30, AE, A, A99, AO, AH, B, C, X, and D, to have the top of the
floor elevated above the ground level by means of pilings, columns (posts and piers), or shear
walls parallel to the flow of the water and (ii) adequately anchored so as not to impair the
structural integrity of the building during a flood of up to the magnitude of the base flood. hi the
case of Zones Al -30, AE, A, A99, AO, AH, B, C, X, D, "elevated building" also includes a
building elevated by means of fill or solid foundation perimeter walls with openings sufficient to
facilitate the unimpeded movement of flood waters.
Development. (Flood Damage Prevention) Any man-made change in 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.
Existing construction. (Flood Damage Prevention) For the purposes of determining
rates, structures for which the "start of construction" commenced before the effective date of the
FIRM (September 18, 1991 ). "Existing construction" may also be referred to as "existing
structures."
• • Ord . 4368
EXHIBIT "A"
Existing manufactured home park or subdivision. (Flood Damage Prevention) A
manufactured home park or subdivision for which the construction of facilities for servicing the
lots on which the manufactured homes are to be affixed (including, at a minimum, the
installation of utilities, the construction of streets, and either final site grading or the pouring of
concrete pads) is completed before the effective date of the floodplain management regulations
adopted by a community.
Expansion to an existing manufactured home park or subdivision. (Flood Damage
Prevention) The preparation of additional sites by the construction of facilities for servicing the
lots on which the manufactured homes are to be affixed (including the installation of utilities, the
construction of streets, and either final site grading or the pouring of concrete pads)
Federal Emergency Management Agency (FEMA). (Flood Damage Prevention) The
independent federal agency that, in addition to carrying out other activities, oversees the
administration of the National Flood Insurance Program.
Federal Insurance Administration (FIA). (Flood Damage Prevention) The component
of FEMA directly responsible for administering the National Flood Insurance Program.
Flood or flooding. (Flood Damage Prevention) A general and temporary condition of
partial or complete inundation of normally dry land areas from the overflow of flood waters, or
the unusual and rapid accumulation or run-off of surface water from any source.
Flood boundary and floodway map. (Flood Damage Prevention) The official map on
which the Federal Insurance Administration has delineated both the areas of flood hazard and the
floodway.
Flood Insurance Rate Map (FIRM). (Flood Damage Prevention) The official map on
which the Federal Emergency Management Agency or Federal Insurance Administration has
delineated both the areas of special flood hazards and the Floodway.
Flood Insurance Study. (Flood Damage Prevention) The official report provided by the
Federal Insurance Administration that includes flood profiles, the FIRM, the Flood Boundary
and Floodway Map, and the water surface elevation of the Base flood.
• • Ord . 4368
EXHIBIT "A"
Floodplain or flood-prone area. (Flood Damage Prevention) Areas that are subject to,
or are exposed to, flooding and flood damage.
Floodplain
LFloodray Floodway
i Fringe— Floodwoy — Fringe
W W W W W W r W a W W y W W Floodwoy Fringe
W W W
Floodwoy Floodplo',n
a m o
Floodplain management. (Flood Damage Prevention) The operation of an overall
program of corrective and preventive measures for reducing flood damage, including but not
limited to, emergency preparedness plans, flood control works and floodplain management
regulations.
Floodplain management regulations. (Flood Damage Prevention) Development code,
building codes, health regulations, special purpose ordinances (i.e., grading ordinance and
erosion control ordinance) and other applications of police power. The term describes such state
or local regulations in any combination thereof, which provide standards for the purpose of flood
damage prevention and reduction.
Flood-proofing. (Flood Damage Prevention) Any combination of structural and
nonstructural 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.
Floodway (Regulatory floodway). (Flood Damage Prevention) The channel of a river
or other watercourse and the adjacent land areas that must be reserved in order to discharge the
• • Ord . 4368
EXHIBIT "A"
base flood without cumulatively increasing the water surface elevation more than 1 foot. Also
referred to as "Regulatory floodway."
Functionally dependent use. (Flood Damage Prevention) A use which cannot perform
its intended purpose unless it is located or carried out in close proximity to water.
Highest adjacent grade. (Flood Damage Prevention) The highest natural elevation of
the ground surface prior to construction next to the proposed walls of a structure.
Historic Structure. (Flood Damage Prevention) 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; or
C. Individually listed on a state inventory of historic places which has been approved by
the Secretary of the Interior.
Lowest floor. (Flood Damage Prevention) The lowest floor of the lowest enclosed area
(including basement). An unfinished or flood resistant enclosure, 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 an enclosure is not built so as to render the structure
in violation of the applicable non-elevation design requirements of this chapter.
Levee. (Flood Damage Prevention) A man-made structure, usually an earthen
embankment, designed and constructed in accordance with sound engineering practices to
contain, control, or divert the flow of water so as to provide protection from temporary flooding.
Levee
• • Ord . 4368
EXHIBIT "A"
Levee system. (Flood Damage Prevention) A flood protection system which
consists of a levee, or levees, and associated structures, such as closure and drainage
devices, which are constructed and operated in accordance with sound engineering
practices.
Manufactured home. (Flood Damage Prevention) A factory-built, single-family
structure that meets the National Manufactured Home Construction and Safety Standards
Act (42 U.S.C. Sec. 5401 ), commonly known as the HUD (U.S. Housing and Urban
Development) code. For floodplain management purposes the term also includes park
trailers, travel trailers, and other similar vehicles placed on a site for greater than 180
consecutive days. For insurance purposes the term "manufactured home" does not
include park trailers, travel trailers, and other similar vehicles.
Manufactured home park or subdivision. (Flood Damage Prevention) A parcel
(or contiguous parcels) of land divided into 2 or more manufactured home lots for sale or
rent.
Mean sea level. (Flood Damage Prevention) For purposes of the National Flood
Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929 or other
datum, to which base flood elevations shown on a community's Flood Insurance Rate
Map are referenced.
New construction. (Flood Damage Prevention) For floodplain management
purposes, structures for which the "start of construction" commenced on or after the
effective date of this development code.
One hundred year flood. (Flood Damage Prevention) A flood which has a 1 %
annual probability of being equaled or exceeded. It is identical to the "base flood," which
will be the term used throughout this chapter.
Regulatory floodway. (Flood Damage Prevention) see "Floodway."
Remedy a violation. (Flood Damage Prevention) To bring the structure or other
development into compliance with State or local floodplain management regulations, or,
if this is not possible, to reduce the impacts of its noncompliance. Ways that impacts
may be reduced include protecting the structure or other affected development from flood
damages, implementing the enforcement provisions of this Development Code or
otherwise deterring future similar violations, or reducing Federal financial exposure with
regard to the structure or other development.
• • Ord . 4368
EXHIBIT "A"
Riverine. (Flood Damage Prevention) Relating to, formed by, or resembling a
river (including tributaries), stream, brook, etc.
Special flood hazard area (SFHA). (Flood Damage Prevention) An area having
special flood or flood-related erosion hazards, and shown on an FHBM or FIRM as Zone
A, AO, Al -30, AE, A99, CO, C1 -V30, VE, or V.
Start of construction. (Flood Damage Prevention) The date the building permit
is issued for either new construction or substantial improvement, provided the actual start
of construction, repair, reconstruction, replacement, or other improvement was within
180 days of the permit date. The actual start means either the first placement of
permanent construction of a structure on a site, beyond excavation, or the placement of a
manufactured home on a foundation. Permanent construction does not include land
preparation or the installation of streets and/or walkways, 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.
Stream. (Flood Damage Prevention) A watercourse having a source and
terminus, banks, and channel through which waters flow at least periodically. Streams do
not lose their character as a watercourse even though the water may dry up. For the
purposes of this ordinance, streams are defined on the Flood Insurance Rate Maps as
single lines with no floodplain or floodway defined.
Structure. A combination of materials to form a construction for use, occupancy,
or ornamentation whether installed on, above, or below the surface of land or water.
Substantial damage. (Flood Damage Prevention) Damage of any origin
sustained by a structure whereby the cost of restoring the structure to its before-damaged
condition would equal or exceed 50 percent of the market value of the structure before
the damage occurred.
Substantial improvement. (Flood Damage Prevention) Any repair,
reconstruction, or improvement of a structure, the cost of which equals or exceeds 50% of
the market value of the structure either:
A. before the improvement or repair is started; or
B. if the structure has been damaged, and is being restored, before the
damage occurred.
For the purposes of this definition "substantial improvement" is considered to
occur when the first alteration of any wall, ceiling, floor, or other structural part of the
• Ord .. 4368
EXHIBIT "A"
building commences, whether or not that alteration affects the external dimensions of the
structure. The term does not, however, include either:
A. any project for improvement of a structure to comply with existing state or
local health, sanitary, or safety code specifications which are solely necessary to assure
safe living conditions; or
B. any alteration of a structure listed on the National Register of Historic
Places or a state inventory of Historic Places.
Variance. (Flood Damage Prevention) A grant of relief to a person from the
requirements of this ordinance when specific enforcement would result in unnecessary
hardship. A variance, therefore, permits construction or development in a manner
otherwise prohibited by this ordinance. (For full requirements see Section 60.6 of the
National Flood Insurance Program regulations.)
Violation. (Flood Damage Prevention) The failure of a structure or other
development to be fully compliant with the community's floodplain management
regulations. A structure or other development without the elevation certificate, other
certifications, or other evidence of compliance required in this chapter is presumed to be
in violation until such time as that documentation is provided.
Water surface elevation. (Flood Damage Prevention) The height, in relation to
the National Geodetic Vertical Datum (NGVD) of 1929 (or other datum where specified)
of floods of various magnitudes and frequencies in the floodplains of coastal or riverine
areas.
• • Ord . 4368
E
CI
EXHIBIT `B" D
CHAPTER 168 :
FLOOD DAMAGE PREVENTION
§168.01 PURPOSE. 7. To ensure that those who
occupy the areas of special flood hazard
A. It is the purpose of this ordinance to assume responsibility for their actions; and,
promote the public health, safety and
general welfare and to minimize public and 8. To protect human life and
private losses due to flood conditions in health.
specific areas as designated by the latest
adopted Flood Insurance Rate Maps, in B. In order to accomplish its purposes,
addition to the following: this ordinance uses the following methods:
1. To minimize expenditure of 1 . Restricting or prohibiting uses
public money for costly flood control that are dangerous to health, safety or
projects; property due to water or erosion hazards in
times of flood, or cause excessive increases
2. To minimize the need for in flood heights or velocities;
rescue and relief efforts associated with
flooding and generally undertaken at the 2. Requiring that uses vulnerable to
expense of the general public; floods, including facilities which serve such
uses, be protected against flood damage at
3. To minimize prolonged the time of initial construction;
business interruptions;
3. Controlling the alteration of
4. To minimize damage to natural floodplains, stream channels, and
public facilities and utilities such as water natural protective barriers, which are
and gas mains; electric, telephone and sewer involved in the accommodation of flood
lines, streets and bridges located in waters;
floodplains;
4. Controlling filling, grading,
5. To help maintain a stable tax dredging and other development which may
base by providing for the sound use and increase flood damage;
development of flood-prone areas in such a
manner as to minimize future flood blight 5. Preventing or regulating the
areas; construction of flood barriers which will
unnaturally divert flood waters or which
6. To ensure that potential may increase flood hazards to other lands.
buyers are notified that property is in an area
of special flood hazard; §168.02 GENERAL PROVISIONS. This
chapter shall apply to all areas of special
flood hazards and areas of flood-related
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Ord .. 4368
EXHIBIT "B"
erosion hazards within the jurisdiction of the E. No structure or land shall hereafter'
city. be constructed, located, extended, converted
or altered without full compliance with the
A. The areas of special flood hazards terms of this chapter and other applicable
and areas of flood-related erosion hazards regulations. Violations of the provisions of
identified by the Federal Emergency this chapter by failure to comply with any of
Management Agency or the Federal its requirements (including violations of
Insurance Administration in scientific and conditions and safeguards established in
engineering reports entitled "Flood connection with conditions) shall constitute
Insurance Study for the City of Fayetteville, a misdemeanor. Nothing herein shall
Arkansas," dated September 18, 1991 and prevent the city from taking such lawful
July 21 , 1999, with accompanying Flood action as is necessary to prevent or remedy
Insurance Rate Map, as may from time to any violation.
time hereafter be amended, is hereby
adopted by reference and made a part hereof F. This chapter is not intended to
as if set out fully herein. Three copies of repeal, abrogate, or impair any existing
said map shall be maintained in the office of easements, covenants, or deed restrictions.
the City Clerk. However, where this chapter and any other
code, ordinance, easement, covenant, or
B. The Flood Hazard Study, Phase II, deed restriction conflict or overlap,
provided by the U.S. Army Corps of whichever imposes the more restrictive
Engineers, is hereby adopted by reference restrictions shall prevail.
and made a part hereof as if set out fully
herein. Three copies of said map shall be G. In the interpretation and application
maintained in the office of the City Clerk. of this chapter, all provisions shall be:
C. The Flood Hazard Study Phase IV, 1. Considered as minimum
and Revised Flood Hazard Study Phase I, requirements;
provided by the U.S. Army Corps of
Engineers, are hereby adopted by reference 2. Liberally construed in favor of
and made a part hereof as if set out fully the governing body; and
herein. Three copies of said studies shall be
maintained in the office of the City Clerk. 3. Deemed neither to limit nor
repeal any other powers granted under state
D. This Flood Insurance Study is the statutes.
minimum area of applicability of this
chapter and may be supplemented by studies H. The degree of flood protection
for other areas which allow implementation required by this chapter is considered
of this chapter and which are recommended reasonable for regulatory purposes and is
to the council by the Floodplain based on scientific and engineering
Administrator. considerations. Larger floods can and will
occur on rare occasions. Flood heights may
be increased by man-made or natural causes.
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