HomeMy WebLinkAboutGW Masterplan UpdateBike & Hike Task Force
Greenways Master Plan Update
Subcommittee Recommendations
I. Formation of a Drainage Advisory Board (DAB)
• Coordinated by the Greenways Program Manager and staffed through
Public Works
• Will be a stand-alone Advisory Board, appointed by City Council, for
ongoing monthly (or more frequent) meetings to review development
requests in the floodplain
11 The board should be comprised of citizens with interests and expertise
that complement the multiple functions of the greenways land use (e.g.,
hydrology, civil engineering, wildlife ecology, recreation, urban forestry,
real estate development, transportation)
• Works in concert with the Parks & Recreation Advisory Board and the
Planning & Zoning Commission
);:> Would hold joint meetings as needed with the Parks Board (e.g., to
address development of trails and other recreational uses in
greenways)
);:> Would provide recommendations on greenway dedication, easements
or other options and on zoning (see Rec. II below) to the P&Z
• The DAB will identify thresholds for acceptance of greenways to determine
what level of development would require DAB approval and will provide
staff direction to assist in the streamlining of the development process as
it relates to greenways
• The DAB would provide for an engineering assessment for the acceptance
of greenways
II. Designation of Greenway Zones within the Existing Greenways Land Use
• . Greenways would be a zoning designation (i.e. Gl, G2) and would be
classified as Urban, Suburban, or Rural, with certain allowable and
recommended uses in each zoning class
• For development requests within these zones, the DAB will review such
requests in the context of the entire greenways system, whose primary
purpose is to provide a system for stormwater management while also
providing for recreation and non-motorized transportation (i.e., trails)
• The greenway zone as a system will result in connectivity for efficient
storage and transport of stormwater and for non-motorized travel
between neighborhoods, schools, parks and commercial centers
..
III. Re-appropriate the remaining rv$1.6M of land acquisition funds from the 1998
bond package
• These funds would be able to be used for the operations, maintenance,
and development of the greenway system
• The funds may still be used for acquisition of land or easements where
the DAB sees fit (e.g., for upland connections, in already-developed parts
of the city or outside of a greenway zone)
IV. Zero-Rise or No Adverse Impact Management of floodplains
• We are working with the City of Bryan to develop uniform drainage design
--~it'"IJ..-standards and policy which will address the management of floodplains ,I.Al~\ ~1~-~e-fi~1~ .. ,, .. ,.-'.' 1 .. IAM--h tO
V. Greenways defined as a "Quality of Life" indicator -~·~ ~~,~~~
VI. Develop a more effective method of classifying Greenways
• Absolve the current greenways priority map as it does not have much
practical use as greenways are acquired and/or dedicated not by priority,
but as development requests come in
• Inventory and map the resources (e.g., hydrology, soils, vegetation,
habitat value, cultural/historical attributes, visual quality) within the
greenways land use to assist in decision making about zoning and
development.
VII. Seek input from the development community
• Greenway management will be included in the subcommittee on design
standards from the Business and Land Development Forum
VIII. Expand the Greenways definition to include detention areas and incorporate this
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IX. Include these recommendations in the re-write dr the Sub~sion Regulations
• Include a sub-section on greenways
• Insert dedication standards
• Insert criteria for acceptance of greenways
X. Develop a revised greenways planning document to reflect the updates and
changes to policy outlined above.
8.6 Greenways
A. Greenways in College Station are defined as linear open
spaces that follow natural features such as, but not limited
to, the floodplains of creeks and rivers or human-made
features such as utility, road or rail corridors. Greenways
serve to manage stormwater, create natural areas and
connect the community in a pedestrian and cycle-friendly
network that promotes healthy active living. The Greenway
Zone District is an overlay zone that encompasses all land
within the Greenways designated in the Greenways Master
Plan. Greenways are designated in the Greenways Master
Plan for the City of College Station and are classified as
"urban greenways", "suburban greenways" or "rural
greenways."
1. Urban Greenways: (GU)
Urban greenways will be the most highly developed of the three
types of greenways. The primary functions served by these
greenways will be to provide for flood control, recreation,
transportation, economic and aesthetic purposes. Wildlife
protection and service as a utility corridor are secondary functions.
Urban greenways will provide connections between commercial
areas along the greenway and surrounding areas. Highly visible
access to the greenways will occur at frequent intervals between
the surrounding development and the corridor. The width of the
corridor will be determined by the floodway line, plus some
additional area, to be determined for each specific site. The trail,
within the corridor, will be designed to handle primarily pedestrian
traffic. It will be a wide trail, having a hard, smooth surface.
Urban greenways will be used quite intensely, simply because of
where they are located and the surrounding uses. Improvements
to the channel should occur only as needed using the softest
technique possible. Bridge structures should provide grade
separation for safe passage of users. Development surrounding
urban greenways will occur at the highest intensity, will be in close
proximity to the edge of the corridor and should be sensitive to the
creek. This development will be primarily commercial and multi-
family residential.
2. Suburban Greenways: (GS)
As with urban greenways, the primary functions served by
suburban greenways will be to provide for flood control, recreation
and transportation, and to serve economic and aesthetic purposes.
Wildlife protection and service as a utility corridor will be
secondary functions.
1-4
There will be moderate to high levels of use. These corridors will
connect users and their destinations such as one neighborhood to
other neighborhoods, to businesses, to parks or to schools. Access
points will be visible and may include lighting, signage, picnic
areas or playgrounds. The width of a suburban greenway should
be the entire floodplain, or if surrounding development is present,
what can reasonably be obtained. The trails will serve a variety of
recreational and transportation uses and will be relatively wide
with a medium to hard surface. The trail itself, is the focus of the
greenway. Channel improvements should only be made if
necessary and using the softest techniques feasible. Bridge
structures should provide grade separation for safe passage of
users. Surrounding development will consist of low to medium
density single family, multi-family, mixed use, retail commercial
and uses such as churches and schools.
3. Rural Greenways: (GR)
The primary functions of rural greenways are to control flooding, to
protect wildlife and to increase aesthetic value. Recreation,
transportation, economics and service as a utility corridor will
serve as secondary functions.
This type of greenway would exist in a mostly "natural" state with
connections made for wildlife movement and some trails developed
for public use. The surrounding land use would be primarily
agricultural, undeveloped open space or low density residential.
Riparian areas would see very little, if any, modification. Trails
would be more primitive, designed for lower levels of use and may
connect larger nature oriented parks or preserves. User amenities
would be less common and found only at destination points. The
corridor width would contain the entire floodplain and possibly
more in some areas to include key natural or cultural areas. There
would be limited channel improvements allowed and bridge
structures would be grade separated to allow safe passage of
pedestrians and bicyclists.
B. Ownership, Access and Maintenance
1. In single-family residential developments the greenway must
be dedicated as a single lot on a final plat to the City or to an
approved homeowner association (HOA). The greenway shall
not be contained in a single-family residential lot. The City
Council may waive this dedication requirement for replats that
were originally platted prior to the adoption of this
requirement.
2. For single-family residential developments where the
greenway dedication is owned and maintained by an HOA, the
HOA's by-laws and covenants, which must be approved by the
City and filed of record in the county land records where the
property is located, shall provide:
2-4
a. for public pedestrian access and City access for
emergency vehicles, equipment and personnel and to
improve and/or maintain the greenway in the event it is
not being properly maintained as determined by the City
Manager, and
b. that the HOA shall reimburse the City for any and all costs
incurred by the City for maintenance.
The final plat shall contain the following:
c. an easement allowing public pedestrian access for and
City access for emergency vehicles, equipment and
personnel and to improve and/or maintain the greenway
in the event it is not being properly maintained as
determined by the City Manager; and
d. an obligation that the HOA shall reimburse the City for any
and all costs incurred by the City for maintenance.
3. For non-residential and multi-family developments, the
greenway must be dedicated on the final plat as a single lot to
the City or to an approved property management entity. The
City Council may waive this dedication requirement for replats
that were originally platted prior to the adoption of this
requirement.
4. For non-residential developments and multi-family
developments where the greenway is owned and maintained
by a property management entity and/or the property owner,
the final plat shall contain the following:
a. an easement allowing public pedestrian access and City
access for emergency vehicles, equipment and personnel
and to improve and/or maintain the greenway in the
event it is not being properly maintained as determined by
the City Manager; and
b. an obligation that the property management entity and/or
the property owner shall reimburse the City for any and all
costs incurred by the City for maintenance.
C. Improvements
1. Where the Bicycle and Pedestrian Master Plan indicates that a
trail be developed in a greenway, the City will pay for the cost
of trail development in one of the following ways.
a. The City may design and construct trail improvements as a
part of its Capital Improvement Program. Improvements
constructed by the City will be made as funding and land
availability allow. The City is not responsible for meeting
the schedule of a private developer.
3-4
b. The developer may include trail improvements as a part of
the infrastructure improvements for the development.
The City will reimburse the developer for the cost of trail
improvements through a developer participation
agreement
D. Density Credits For Landowners
1. When a greenway consumes more than five percent (5°/o) of a
landowner's developable land, density credits shall be granted
to the landowner that allows one additional dwelling unit to be
built for every acre of his or her property affected by
greenway. These density credits shall be accommodated at the
development site by allowing greater flexibility in setbacks,
frontage distances, or minimum lot sizes to squeeze in "lost
lots." Cluster development may be used for this purpose.
4-4
Bike & Hike Task Force Recommendations -L~ r
April 25, 200.s, , , _(} t6vv(L,~~. \O_~
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I. Create a Drainage Advisory Board (DAB) ~~ lk(JCAN ·-·
• Coordinated by the Greenways Program l\1anager and staffed through Public
Works
• Will be a stand-alone Advisory Board, appointed by City Council, for ongoing
monthly (or more frequent) meetings to review development requests in the
floodplain
• The board should be comprised of citizens with interests and expertise that
complement the multiple functions of the greenways land use (e.g., hydrology,
civil engineering, wildlife ecology, recreation, urban forestry, real estate
development, transportation)
• Works in concert with the Parks & Recreation Advisory Board and the Planning &
Zoning Commission
~ Would hold joint meetings as needed with the Parks Board (e.g., to address
development of trails and other recreational uses in greenways)
~ Would provide recommendations on greenway dedication, easements or other
options and on zoning (see Rec. II below) to the P&Z
II. Designate Greenway Zones within the Existing Greenways Land Use
• Greenways would be a zoning designation (i.e. GU, GS, GR) and would be
classified as Urban, Suburban, or Rural, with certain allowable and recommended
uses in each zoning class
• For development requests within these zones, the DAB will review such requests
in the context of the entire greenways system, whose primary purpose is to
provide a system for stormwater management while also providing for recreation
and non-motorized transportation (i.e., trails)
• The greenway zone as a system will result in connectivity for efficient storage and
transport of stormwater and for non-motorized travel between neighborhoods,
schools, parks and commercial centers
III. Zero-Rise or No Adverse Impact Management of floodplains
• We are working with the City of Bryan to develop uniform drainage design
standards and policy which will address the management of floodplains
IV. Define Greenways as a "Quality of Life" indicator as part of the City's planning and
economic development activities
V. Develop a more effective method of classifying Greenways
• Rescind the current greenways priority map as it does not have much practical use
as greenways are acquired and/or dedicated not by priority, but as development
requests come in
• Inventory and map the resources (e.g., hydrology, soils, vegetation, habitat value,
cultural/historical attributes, visual quality) within the greenways land use to assist
in decision making about zoning and development.
VI. Seek input from the development community and other involved and interested
stakeholders
• Public meetings were held during the re-write of the subdivision regulations at
which stakeholders were able to comment on the greenways section
VII. Expand the Greenways definition to include detention areas and incorporate this into the
Subdivision Regulations and the Zoning Ordinance
VIII. Allow "stacking" to occur within new developments (i.e., if a development meets all
standards, allow for similar requirements to be met with one particular plot of land).
This would allow developers to use greenways to meet some parkland and detention
area requirements. The DAB would be responsible for reviewing the greenways portion
of a stacking request.
IX. Create a new map online which would act as an interactive map application, but be easy
to use and easy to print.
X. Create further public outreach opportunities
• Conduct public opinion survey on greenways
• Publish greenway "blip" on Channel 19
• Distribute greenway information via utility bill inserts
• Develop new brochures for distribution at TAMU, CoCS, CVB
XI. Include these recommendations in the re-write of the Subdivision Regulations
• Include a sub-section on greenways
• Insert dedication standards
• Insert criteria for acceptance of greenways
XII. Develop a revised greenways planning document to reflect the updates and changes to
policy outlined above
XIII. Establish a Bicycle Advisory Committee for CoCS
• Review and guide the implementation of the bike and pedestrian master plan
• Review capital projects involving a bicycle component
• Provide feedback and ideas for the bicycle program
• Provide policy guidance on bicycle issues
•
COMMON LEGAL QUESTIONS ABOUT FLOODPLAIN REGULATIONS IN THE
COURTS 2003 UPDATE
Prepared by Jon A. Kusler, Esq. for the Association of State Floodplain Manager
Have courts continued to uphold the overall constitutionality of state and local floodplain
regulations?
Yes. Courts at all levels, including the U.S. Supreme Court, have broadly and repeatedly upheld
the general validity of floodplain regulations in the last 15 years. They have, however, held
regulations unconstitutional as "takings" of private property in several cases where certain
regulations, not clearly based on principles of hazard prevention or "no adverse impact," denied
all economic use of lands, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) or
permitted the public to enter private property, Nollan v. California Coastal Commission, 483
U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).
Does general validity mean that regulations are valid for all properties?
No. A landowner may attack the constitutionality of regulations as applied to his or her
property even where regulations in general are valid. Regulatory agencies need to be able
to support the validity of the regulations as applied to particular properties. However, the
overall presumption of validity for regulations and a presumption of correctness for
regulatory agency information gathering and regulatory decisions help the agency meet
·its burden of proof. Courts have broadly supported state and local floodplain regulations
as applied to particular properties. A court decision that regulations are unconstitutional
as applied to specific property will not necessarily determine site-specific
constitutionality or unconstitutionality as applied to other properties.
Has judicial support for floodplain regulations weakened in recent years?
No. Quite the contrary. The U.S. Supreme Court has recently issued a series of opinions
strongly endorsing planning to prevent damage from hazardous development. State courts
continue to strongly uphold floodplain regulations in the more than 125 appellate cases
over the last decade, including many challenges to regulations as "takings" of private
property. See, for example:
0 Beverly Bank v. Illinois Department of Transportation, 579 N.E.2d 815 (Ill. 1991), in
which the court held that the Illinois legislature had the authority to prohibit the
construction of new residences in the 100-year floodway and that a taking claim was
premature
0 State of Wisconsin v. Outagamie County Board of Adjustment, 532 N.W.2d 147 (Wis.
App., 1995), in which a variance for a replacement fishing cottage in the floodway of the
Wolf River was barred by the county's shoreland zoning ordinance
0 Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, et al., 94 N.Y. 2d 96 (N.Y.,
1999), in which the court rejected the claim that the rezoning of a 150-acre golf course
property important for flood storage from "residential" to "solely recreational use" was a
taking of private property
0 Wyer v. Board of Environmental Protection, 747 A.2d 192 (Me., 2000), in which the
denial of a variance to sand dune laws was held not to be a taking because the property
could be used for parking, picnics, barbecues, and other recreational uses.
At the same time there is a national movement, referred to by some commentators as the
"property rights movement," which supports landowners who challenge regulations.
Courts are examining floodplain regulations with greater care than they did a decade ago.
What have been the most common challenges to regulations in the last 15 years?
The most common challenges to regulations have been claims that regulators permitted
construction that later caused harm. There are dozens of cases that allege damage caused
by development that caused problems. On the other hand, there are very few cases that
allege unconstitutional over-regulation of property. Those few include: 1) challenges to
floodway regulations and floodway restrictions; 2) coastal dune and high hazard area
restrictions, and buffer and setback requirements; and 3) variances and regulations for
nonconforming uses. Generally speaking, courts have broadly upheld these hazard
prevention restrictions against claims that they take private property without payment of
just compensation, have been adopted to serve invalid goals, are unreasonable (lack
adequate nexus to goals) or discriminate.
May local governments regulate floodplains without express statutory authority to do so?
Yes. Courts have upheld local floodplain zoning regulations adopted as part of broader
zoning. Courts have also, in some cases, upheld local floodplain ordinances adopted
pursuant to "home rule" powers. But this is rarely an issue since states have broadly
authorized local governments to adopt floodplain regulations.
May a local government adopt floodplain regulations that exceed state or federal
(National Flood Insurance Program) minimum standards?
Yes. Local government regulations may exceed both state and federal regulations. There
is no preemption issue. The National Flood Insurance Program regulations specifically
encourage state and local regulations that exceed federal standards (see 44 CFR
§60.l(d)).
May states and local governments regulate some floodplains and not others?
Yes. Typically states and local governments only regulate mapped floodplains.
Are the factual determinations of federal, state, or local floodplain regulatory agencies
(e.g., mapping of floodways and flood fringe boundaries) presumed to be correct?
Yes. The burden is on landowners to prove their incorrectness. Courts overturn agency
fact-finding only if they find that such fact-finding lacks "substantial evidence." Courts
are particularly likely to uphold factual determinations of federal and state "expert"
agencies. However, courts look more closely at the adequacy of the information-
gathering in instances where regulations have severe economic impact on specific
properties.
How closely must regulatory standards (including conditions) be tailored to regulatory
goals?
Courts have broadly upheld floodplain and other resource protection regulations against
challenges that they lack reasonable nexus to regulatory goals. But, as indicated above,
courts have required a stronger showing of nexus where regulations have essentially
extinguished all value in the property. They also increasingly require a showing that
conditions attached to regulatory permits are "roughly proportional" to the impacts posed
by the proposed activity if dedication oflands is involved, see Nollan v. California
Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).
Must a regulatory agency accept one mapping or other flood analysis method over
another?
No . Not unless state or local regulations require the use of a particular method. Courts
have afforded regulatory agencies considerable discretion in deciding which scientific or
engineering approach to accept in fact-finding as long as the final decision is supported
by "substantial" evidence. Also, courts have held that regulatory agencies do not need to
eliminate all uncertainties in fact-finding.
Does an agency need to follow the mapping, floodway delineation or other technical
requirements set forth in its enabling statute or regulations?
Yes. Agencies must comply with statutory, administrative, regulatory and ordinance
procedural requirements. They must also apply the permitting criteria contained in
statutes and regulations.
Are floodplain and floodway maps invalid if they contain some inaccuracies?
No. Courts have upheld maps with some inaccuracies, particularly ifthere are regulatory
procedures available for refining map information on a case-by-case basis.
Can landowners be required to carry out floodplain delineations on impacts of proposed
activities on flood elevations or provide various types of floodplain assessment data?
Yes. Courts have held that regulatory agencies can shift a considerable portion of the
assessment burden to landowners and that the amount of information required from a
landowner may vary depending upon the issues and severity of impact posed by a
specific permit. And, agencies can charge reasonable fees for permitting. But the burdens
must be reasonable and courts may consider the costs of such data gathering to be
relevant to the overall reasonableness of regulations and whether a taking has occurred.
May a regulatory agency be liable for issuing a regulatory permit for an activity that
damages other private property?
Yes, quite possibly. In fact a careful analysis of hundreds of cases in which the lawsuit
involved permitting indicates that a municipality is vastly more likely to be sued for
issuing a permit for development that causes harm than for denying a permit based on
hazard prevention or "no adverse impact" regulations. The likelihood of a successful
lawsuit against a municipality for issuing a permit increases if the permitted activity
results in substantial flood, erosion or other physical damage to other private property
owners. However, some states specifically exempt state agencies and local governments
from liability for issuing permits.
Do local governments need to adopt comprehensive land use plans before adopting
floodplain regulations?
Statutes authorizing local adoption of floodplain ordinances and bylaws do not require
prior comprehensive planning. However, many local zoning enabling acts require that
zoning regulations be in accord with a comprehensive plan. Traditionally courts have not
strictly enforced this requirement and have often found a "comprehensive plan" within
the zoning regulations.
Courts have also endorsed comprehensive planning and regulatory approaches as
improving the rationality of regulations although they have also upheld regulations not
preceded by such planning in many instances.
Under what circumstances is a court most likely to hold that floodplain regulations "take"
private property?
Courts are likely to find a "taking" in circumstances where: 1) the regulation is not
clearly based on hazard prevention or "no adverse impact;" 2) regulations deny all
"reasonable" economic uses of entire properties, that is, the value of the property is
reduced to zero or very near zero; or 3) proposed activities will not have offsite
"nuisance" impacts. Landowners are also more likely to succeed if the property owner
purchased the land before adoption of the regulations.
Are highly restrictive floodplain regulations, including buffers and large lot sizes, valid?
Courts have upheld highly restrictive floodplain regulations in many contexts,
particularly where a proposed activity may have nuisance impacts on other properties.
However, courts have also held floodplain regulations to be a "taking" without payment
of compensation in a few cases (mostly older) where the regulations denied all economic
use of entire parcels of land and there was no showing of adverse impact on other
properties.
Would a no adverse impact performance standard incorporated in local or state
regulations be sustained by courts?
Yes. Courts are very likely to support this standard if it is reasonably and fairly applied
and if government agencies take measures to avoid successful "takings" challenges where
regulations deny all economic, non-nuisance-like uses for entire properties.
How can a local government avoid successful "takings" challenges?
Local governments can help avoid successful "takings" challenges in a variety of ways:
1. Apply a no adverse impact floodplain management performance standard fairly and
uniformly to all properties.
2. In local regulations, include special exception and variance provisions that allow the
regulatory agency to issue a permit in instances where denial will deprive a landowner of all
economic use of his or her entire parcel and the proposed activity will not have nuisance impacts.
3. For floodplain areas, adopt large-lot zoning, which permits some economic use (e.g.,
residential use) on the upland portion of each lot.
4. Allow for the transfer of development rights from floodplain to non-floodplain parcels.
5. Fairly tax and levee assessments based on what development will actually be allowed.
. -
LEGAL QUESTIONS: GOVERNMENT LIABILITY
and
NO ADVERSE IMPACT FLOODPLAIN MANAGEMENT
Prepared by Jon A. Kusler, Esq. for the Association of State Floodplain Managers
COMMON LEGAL QUESTIONS For No Adverse Impact Floodplain Management
INTRODUCTION
What is no adverse impact floodplain management?
In 2000, the Association of State Floodplain Managers recommended a "no adverse
impact" approach or goal for local, State, and Federal floodplain management to help
control spiraling flood and erosion losses, new development which increases flood risks
and additional flood losses. The "no adverse impact" goal could also potentially be
applied to envirorunental and other impacts, if a community chooses to do so. The "no
adverse impact" goal is not intended as a rigid rule of conduct. Rather, it has been
suggested as a general guide for landowner and community actions in the watersheds and
the floodplains which may adversely impact other properties or communities. It also
could be incorporated as an overall performance standard into community and State
floodplain regulations.
What major legal issues are raised by no adverse impact floodplain management?
Two major sets oflegal issues arise with no adverse impact floodplain management. 1)
Can no adverse impact floodplain management reduce community liability for flooding
and erosion problems? 2) Will a community that is adopting floodplain regulations
incorporating a no adverse impact standard be subject to liability for taking private
property or be subject to other successful legal challenges? These questions will be
discussed individually in the following pages.
1) CAN NO ADVERSE IMPACT FLOODPLAIN MANAGEMENT REDUCE
COMMUNITY LIABILTY FOR FLOODING AND EROSION?
Legally, no adverse impact floodplain management can reduce community liability for
flood and erosion losses. More specific issues pertaining to this overall conclusion
include the following:
Are successful suits against local goverrunents for increasing flooding and erosion
growing more common?
When individuals are damaged by flooding or erosion, they often file law suits against
goverrunents or other individuals, claiming that the goverrunents have caused the
damages, contributed to the damages or, in some instances, failed to prevent or provide
adequate warnings of natural hazards. Successful liability suits based upon natural
hazards have become increasingly expensive to goverrunents, not only because of the
increasing damage awards but because of the attorney and expert witness fees which may
exceed the damage award.
Successful liability suits of all types have increased in the last two decades for several
reasons:
0 A growing propensity to sue on the part of individuals damaged by flooding or
erosion (historically, members of society were more willing to accept losses from a broad
range of causes).
0 Large damage awards and the willingness of lawyers to initiate suits on a
contingent fee basis.
0 Propensity of juries to view governments as having "deep pockets".
0 Expanded concepts ofliability.
0 Abrogation or modification of sovereign immunity in most jurisdictions.
0 Uncertainties with regard to the legal rules of liability and defenses (e.g., "Act of
God") due to the evolving nature of the body of law and the site-specific nature of many
tort actions.
0 Limitation of the "Act of God" defense because most hazards are now
foreseeable.
Hazards are now, to a greater or lesser extent, "foreseeable" and failing to take
such hazards into account may constitute negligence. See, e.g., Barr v. Game, Fish, and
Parks Commission, 497 P.2d 340 (Col., 1972.)
0 Advances in hazard loss reduction measures (e.g., warning systems, elevating
structures) create an increasingly high standard of care for reasonable conduct.
0 Advances in natural hazard computer modeling techniques, which can be used to
establish causation.
Reduction in the defenses of contributory negligence and assumption of risk.
All levels of government, Federal, State and local, may now be sued for negligence,
nuisance, breach of contract or the "taking" of private property without payment of just
compensation under certain circumstances, although vulnerability to suit varies.
In what situations are governmental units liable for increasing flood or erosion damages
on private lands?
Courts have commonly held governments liable for increasing flood and erosion damages
on private property by blocking natural drainage through grading, fill, culverts, bridges or
structures; increasing the location and amount of runoff through channelization or
drainage works; or constructing flood control works such as levees and dams. Courts
have often held governmental units liable for inadequately maintaining or operating
culverts, bridge crossings, channelization projects, and dams. Some courts have also held
local governments liable for issuing permits and approving subdivisions which increase
flood damages on other lands and for inadequate inspections. Courts have held
governmental units liable under a variety of legal theories including riparian rights,
nuisance, trespass, negligence, strict liability and "taking" private property without
payment of just compensation.
Can a governmental unit protect itself from liability by arguing "sovereign immunity"?
The sovereign immunity defense has been dramatically reduced by the courts and
legislatures in most states. In addition, sovereign immunity is not a defense to a "takings"
claim.
Can a governmental unit protect itself from liability by arguing an "Act of God"?
Increasingly, no. To successfully establish an "Act of God" defense, a governmental unit
must prove that a hazard event is both large and unpredictable. This is increasingly
difficult because hazard events are at least partially foreseeable.
Will a governmental unit be protected from liability by following regulatory guidelines or
using "standard" engineering approaches for flood and erosion control?
Not necessarily. A court may hold that a "standard" approach is not reasonable in the
circumstances as technologies improve and the standard of care in floodplain
management increases.
May a governmental unit be held liable for failing to reasonably operate and maintain
flood loss reduction measures such as channels, levees, dikes and warning systems?
Yes. Courts often hold governmental units liable for inadequate operation or
maintenance.
May a governmental unit be held liable for issuing permits for development or approving
a subdivision which increases flood or erosion damages on other lands?
Yes, in some but not all states.
May a governmental unit be held liable for failing to remedy a natural hazard on public
lands which damages adjacent private lands?
Perhaps. Courts have, with only a few exceptions, not held governmental units and
private individuals responsible for naturally occurring hazards on public lands such as
stream flooding or bank erosion that damage adjacent lands (e.g., erosion, flooding).
However, they are liable if they increase the hazards. In addition, a small number of
courts have held that government entities may need to remedy hazards on public lands
which threaten adjacent lands.
Do governmental units have discretion in determining the degree of flood and erosion
protection provided by flood and erosion reduction works?
Yes. Courts have held that the degree of protection provided by hazard reduction
measures is discretionary and not subject to liability. However, courts have held
governmental units responsible for lack of care in implementing hazard reduction
measures once a decision has been made to provide a provide a particular degree of
protection.
2) WILL FLOODPLAIN REGULATIONS INCORPORATING A NO ADVERSE
IMPACT STANDARD BE SUSCEPTIBLE TO A "TAKINGS" OR OTHER
CONSITUTIONAL CHALLENGE?
No. Courts are likely to provide strong support for a no adverse impact regulatory
performance standard approach. However, no adverse impact regulations are subject to
the same overall U.S. Constitution requirements as other regulations. These include the
requirements that regulations be adopted to serve valid goals, be reasonable, not
discriminate and not take private property without payment of just compensation. No
adverse impact regulations are particularly likely to be supported because they apply a
regulatory goal which is well established in common law and in regulatory programs.
Will courts support a no adverse impact goal?
Yes. Courts have broadly endorsed floodplain management goals and no adverse impact
is an extension of such goals. No adverse impact codifies the maximum which has been
broadly endorsed by courts, "Sic utere tuo ut alienum non laedas," or "so use your own
property that you do not injure another's property." See Keystone Bituminous Coal
Association v. DeBenedictis, 107 S. Ct. 1232 (1987) and many cases cited therein. See,
for example, Hagge v. Kansas City S. Ry Co., 104 F. 391 (W.D. Mo., 1900) (Court held
that damage done to land by occasional overflow of a stream caused by a railroad was a
nuisance.)
Will courts support the reasonableness of no adverse impact standards?
Yes. Courts have already supported a variety of more specific standards such as increased
freeboard requirements and no rise floodways.
May a local government adopt floodplain regulations which exceed State or Federal
(FEMA) minimum standards.?
Yes. Local governments regulations may exceed both State and Federal regulations.
There is no preemption issue. In fact, the FEMA program encourages State and local
regulations to exceed Federal standards through the Community Rating System.
May governmental units be held liable for uncompensated "takings" if they require that
private development be elevated or floodproofed?
No. Courts have broadly and universally supported floodplain regulations against
"takings" challenges. Courts have broadly held that regulations may substantially reduce
property values without "taking" private property.
May governmental units be held liable for refusing to issue permits in flood way or high
risk erosion areas because proposed activities will damage other lands?
No. In general, landowners have no right to make a "nuisance" of themselves. Courts
have broadly and consistently upheld regulations which prevent one landowner from
causing a nuisance or threatening public safety.
What can governments do to reduce the possibility of a successful "takings" challenge to
regulations?
Local governments can help avoid successful taking challenges in a variety of ways:
1. Apply a no adverse impact floodplain overall performance standard fairly and
uniformly to all properties.
2. Include special exception and variance provisions in regulations which allow the
regulatory agency to issue a permit where denial will deny a landowner all economic use
of his or her entire parcel and the proposed activity will not have nuisance impacts.
3. Adopt large lot zoning for floodplain areas which permits some economic use
(e.g., residential use) on the upland portion of each lot.
4. Allow for the transfer of development rights from floodplain to non-floodplain
parcels.
5. Reduce property taxes and sewer and water levees on regulated floodplains.
1CITY OF COLLEGE STATION
CRITERIA FOR SELECTION AND ACQUISITION OF GREENW AYS
EVALUATION OF OPEN SPACE AREAS
The purposes and system goals provide a basis for identifying and evaluating potential
open space and greenway candidates. Th e following series of ques tions illustrates th e
steps in the selection process for future open space needs.
1. Is the land vacant?
2. What significant natural fe atures are present?
3. Is there potential for recreation?
4. What trails or open space resources could connect to the parcel?
5. Is the property available from a willing landowner?
6. Is the land owner in a position to offer favorable terms or conditions for
conservation?
7. Would the area fulfill any of the supplemental purposes of open space?
8. What degree of public access could be provided to the parcel?
9. Would the parcel provide open space to an area that is currently underserved?
10. Is there community support for conserving the parcel as open space?
11. Does the parcel present any unusual maintenance or development costs?
GOALS AND PURPOSES
To qualify for selection, property must meet all of these criteria:
1. The protection of this property is consistent with the policies of the City of
College Station Greenways Master Plan.
2. The property has natural, scenic, historic, or agricultural value.
3. The property is located within the College Station city limits or ETJ.
1 Selection Criteria for Greenways Acquisition
Draft -1/ 18/01
Sample provided by City of San Marcos
PUBLIC BENEFIT LIST
To qualify for selection, a property must meet two or more of these criteria:
1. The property provides connection to other open protected or open space lands.
2. The property promotes responsible regional watershed and floodplain
management in relationship to other existing or proposed open space areas. The
City's preference is that maintenance of neighborhood stormwater detention areas
be the responsibility of home owner associations.
Or
The property has the capacity to contribute to other conservation values such as
watershed protection and outdoor recreation.
3. The property is important for the movement of wildlife between habitat and/or for
the conservation of native vegetation.
4. The property presents an opportunity to partner with other agencies and
organizations, both public and private.
5. · The property helps balance urban development with natural areas and helps define
the form of the community.
6. The property has the potential to offer alternative non-motorized routes for the
movement of people.
7. The property provides opportunity for equal access for traditionally under-
represented groups.
8. The property promotes public health and safety.
9. The property creates and enhances the aesthetics/scenery and quality oflife that
define the community.
10. The property can contribute to the conservation oflisted species or species of
concern.
11. The conservation of this property offers economic benefits to the community.
12. The property provides appropriate recreational or educational opportunities.
... --
-. ,,
FEASIBILITY LIST
To qualify for selection, a property must meet one or more of th ese criteria:
1. The property could likely be protected or acquired with reasonable effort in
relation to the property's conservation value.
2. It is likely that adjacent properties could be connected/protected.
3. The property is accessible to the general public.
4. Grant or matching funds may be available to facilitate acquisition.
5. Lack of immediate action precludes future protection or acquisition.
6. The property would require minimal funds for restoration, development, and/or
maintenance because it is in a relatively natural state.
7. A mechanism and/or funds are in place for on-going maintenance.
8. The property could be easily acquired through development agreements.
Only those lands that clearly meet community priorities should be added to the
inventory of properties for which the City is responsible.
,.
COMMON LEGAL QUESTIONS ABOUT FLOODPLAIN REGULATIONS IN THE
COURTS 2003 UPDATE
Prepared by Jon A. Kusler, Esq. for the Association of State Floodplain Manager
Have courts continued to uphold the overall constitutionality of state and local floodplain
regulations?
Yes. Courts at all levels, including the U.S. Supreme Court, have broadly and repeatedly upheld
the general validity of floodplain regulations in the last 15 years. They have, however, held
regulations unconstitutional as "takings" of private property in several cases where certain
regulations, not clearly based on principles of hazard prevention or "no adverse impact," denied
all economic use oflands, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) or
permitted the public to enter private property, Nollan v. California Coastal Commission, 483
U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).
Does general validity mean that regulations are valid for all properties?
No. A landowner may attack the constitutionality ofregulations as applied to his or her
property even where regulations in general are valid. Regulatory agencies need to be able
to support the validity of the regulations as applied to particular properties. However, the
overall presumption of validity for regulations and a presumption of correctness for
regulatory agency information gathering and regulatory decisions help the agency meet
'its burden of proof. Courts have broadly supported state and local floodplain regulations
as applied to particular properties. A court decision that regulations are unconstitutional
as applied to specific property will not necessarily determine site-specific
constitutionality or unconstitutionality as applied to other properties.
Has judicial support for floodplain regulations weakened in recent years?
No. Quite the contrary. The U.S. Supreme Court has recently issued a series of opinions
strongly endorsing planning to prevent damage from hazardous development. State courts
continue to strongly uphold floodplain regulations in the more than 125 appellate cases
over the last decade, including many challenges to regulations as "takings" of private
property. See, for example:
0 Beverly Bank v. Illinois Department of Transportation, 579 N.E.2d 815 (Ill. 1991), in
which the court held that the Illinois legislature had the authority to prohibit the
construction of new residences in the 100-year floodway and that a taking claim was
premature
0 State of Wisconsin v. Outagamie County Board of Adjustment, 532 N.W.2d 147 (Wis.
App., 1995), in which a variance for a replacement fishing cottage in the floodway of the
Wolf River was barred by the county's shoreland zoning ordinance
0 Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, et al., 94 N.Y. 2d 96 (N.Y.,
1999), in which the court rejected the claim that the rezoning of a 150-acre golf course
property important for flood storage from "residential" to "solely recreational use" was a
taking of private property
0 Wyer v. Board of Environmental Protection, 747 A.2d 192 (Me., 2000), in which the
denial of a variance to sand dune laws was held not to be a taking because the property
could be used for parking, picnics, barbecues, and other recreational uses.
At the same time there is a national movement, referred to by some commentators as the
"property rights movement," which supports landowners who challenge regulations.
Courts are examining floodplain regulations with greater care than they did a decade ago.
What have been the most common challenges to regulations in the last 15 years?
The most common challenges to regulations have been claims that regulators permitted
construction that later caused harm. There are dozens of cases that allege damage caused
by development that caused problems. On the other hand, there are very few cases that
allege unconstitutional over-regulation of property. Those few include: 1) challenges to
floodway regulations and floodway restrictions; 2) coastal dune and high hazard area
restrictions, and buffer and setback requirements; and 3) variances and regulations for
nonconforming uses. Generally speaking, courts have broadly upheld these hazard
prevention restrictions against claims that they take private property without payment of
just compensation, have been adopted to serve invalid goals, are unreasonable (lack
adequate nexus to goals) or discriminate.
May local governrnents regulate floodplains without express statutory authority to do so?
Yes. Courts have upheld local floodplain zoning regulations adopted as part of broader
zoning. Courts have also, in some cases, upheld local floodplain ordinances adopted
pursuant to "home rule" powers. But this is rarely an issue since states have broadly
authorized local governrnents to adopt floodplain regulations.
May a local government adopt floodplain regulations that exceed state or federal
(National Flood Insurance Program) minimum standards?
Yes. Local government regulations may exceed both state and federal regulations. There
is no preemption issue. The National Flood Insurance Program regulations specifically
encourage state and local regulations that exceed federal standards (see 44 CFR
§60.l(d)).
May states and local governrnents regulate some floodplains and not others?
Yes. Typically states and local governrnents only regulate mapped floodplains.
Are the factual determinations of federal, state, or local floodplain regulatory agencies
(e.g., mapping of floodways and flood fringe boundaries) presumed to be correct?
Yes. The burden is on landowners to prove their incorrectness. Courts overturn agency
fact-finding only if they find that such fact-finding lacks "substantial evidence." Courts
are particularly likely to uphold factual determinations of federal and state "expert"
agencies. However, courts look more closely at the adequacy of the information-
gathering in instances where regulations have severe economic impact on specific
properties.
How closely must regulatory standards (including conditions) be tailored to regulatory
goals?
Courts have broadly upheld floodplain and other resource protection regulations against
challenges that they lack reasonable nexus to regulatory goals. But, as indicated above,
courts have required a stronger showing of nexus where regulations have essentially
extinguished all value in the property. They also increasingly require a showing that
conditions attached to regulatory permits are "roughly proportional" to the impacts posed
by the proposed activity if dedication oflands is involved, see Nollan v. California
Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).
Must a regulatory agency accept one mapping or other flood analysis method over
another?
No. Not unless state or local regulations require the use of a particular method. Courts
have afforded regulatory agencies considerable discretion in deciding which scientific or
engineering approach to accept in fact-finding as long as the final decision is supported
by "substantial" evidence. Also, courts have held that regulatory agencies do not need to
eliminate all uncertainties in fact-finding.
Does an agency need to follow the mapping, flood way delineation or other technical
requirements set forth in its enabling statute or regulations?
Yes. Agencies must comply with statutory, administrative, regulatory and ordinance
procedural requirements. They must also apply the permitting criteria contained in
statutes and regulations.
Are floodplain and flood way maps invalid if they contain some inaccuracies?
No. Courts have upheld maps with some inaccuracies, particularly if there are regulatory
procedures available for refining map information on a case-by-case basis.
Can landowners be required to carry out floodplain delineations on impacts of proposed
activities on flood elevations or provide various types of floodplain assessment data?
Yes. Courts have held that regulatory agencies can shift a considerable portion of the
assessment burden to landowners and that the amount of information required from a
landowner may vary depending upon the issues and severity of impact posed by a
specific permit. And, agencies can charge reasonable fees for permitting. But the burdens
must be reasonable and courts may consider the costs of such data gathering to be
relevant to the overall reasonableness of regulations and whether a taking has occurred.
May a regulatory agency be liable for issuing a regulatory permit for an activity that
damages other private property?
Yes, quite possibly. In fact a careful analysis of hundreds of cases in which the lawsuit
involved permitting indicates that a municipality is vastly more likely to be sued for
issuing a permit for development that causes harm than for denying a permit based on
hazard prevention or "no adverse impact" regulations. The likelihood of a successful
lawsuit against a municipality for issuing a permit increases if the permitted activity
results in substantial flood, erosion or other physical damage to other private property
owners. However, some states specifically exempt state agencies and local governments
from liability for issuing permits.
Do local governments need to adopt comprehensive land use plans before adopting
floodplain regulations?
Statutes authorizing local adoption of floodplain ordinances and bylaws do not require
prior comprehensive planning. However, many local zoning enabling acts require that
zoning regulations be in accord with a comprehensive plan. Traditionally courts have not
strictly enforced this requirement and have often found a "comprehensive plan" within
the zoning regulations.
Courts have also endorsed comprehensive planning and regulatory approaches as
improving the rationality of regulations although they have also upheld regulations not
preceded by such planning in many instances.
Under what circumstances is a court most likely to hold that floodplain regulations "take"
private property?
Courts are likely to find a "taking" in circumstances where: 1) the regulation is not
clearly based on hazard prevention or "no adverse impact;" 2) regulations deny all
"reasonable" economic uses of entire properties, that is, the value of the property is
reduced to zero or very near zero; or 3) proposed activities will not have offsite
"nuisance" impacts. Landowners are also more likely to succeed if the property owner
purchased the land before adoption of the regulations.
Are highly restrictive floodplain regulations, including buffers and large lot sizes, valid?
Courts have upheld highly restrictive floodplain regulations in many contexts,
particularly where a proposed activity may have nuisance impacts on other properties.
However, courts have also held floodplain regulations to be a "taking" without payment
of compensation in a few cases (mostly older) where the regulations denied all economic
use of entire parcels of land and there was no showing of adverse impact on other
properties.
Would a no adverse impact performance standard incorporated in local or state
regulations be sustained by courts?
Yes. Courts are very likely to support this standard if it is reasonably and fairly applied
and if government agencies take measures to avoid successful "takings" challenges where
regulations deny all economic, non-nuisance-like uses for entire properties.
How can a local government avoid successful "takings" challenges?
Local governments can help avoid successful "takings" challenges in a variety of ways:
1. Apply a no adverse impact floodplain management performance standard fairly and
uniformly to all properties.
2. In local regulations, include special exception and variance provisions that allow the
regulatory agency to issue a permit in instances where denial will deprive a landowner of all
economic use of his or her entire parcel and the proposed activity will not have nuisance impacts.
3. For floodplain areas, adopt large-lot zoning, which permits some economic use (e.g.,
residential use) on the upland portion of each lot.
4. Allow for the transfer of development rights from floodplain to non-floodplain parcels.
5. Fairly tax and levee assessments based on what development will actually be allowed.
..
LEGAL QUESTIONS: GOVERNMENT LIABILITY
and
NO ADVERSE IMPACT FLOODPLAIN MANAGEMENT
Prepared by Jon A. Kusler, Esq. for the Association of State Floodplain Managers
COMMON LEGAL QUESTIONS For No Adverse Impact Floodplain Management
INTRODUCTION
What is no adverse impact floodplain management?
In 2000, the Association of State Floodplain Managers recommended a "no adverse
impact" approach or goal for local, State, and Federal floodplain management to help
control spiraling flood and erosion losses, new development which increases flood risks
and additional flood losses. The "no adverse impact" goal could also potentially be
applied to environmental and other impacts, if a community chooses to do so . The "no
adverse impact" goal is not intended as a rigid rule of conduct. Rather, it has been
suggested as a general guide for landowner and community actions in the watersheds and
the floodplains which may adversely impact other properties or communities. It also
could be incorporated as an overall performance standard into community and State
floodplain regulations.
What major legal issues are raised by no adverse impact floodplain management?
Two major sets of legal issues arise with no adverse impact floodplain management. 1)
Can no adverse impact floodplain management reduce community liability for flooding
and erosion problems? 2) Will a community that is adopting floodplain regulations
incorporating a no adverse impact standard be subject to liability for taking private
property or be subject to other successful legal challenges? These questions will be
discussed individually in the following pages.
1) CAN NO ADVERSE IMPACT FLOODPLAIN MANAGEMENT REDUCE
COMMUNITY LIABILTY FOR FLOODING AND EROSION?
Legally, no adverse impact floodplain management can reduce community liability for
flood and erosion losses. More specific issues pertaining to this overall conclusion
include the following:
Are successful suits against local governments for increasing flooding and erosion
growing more common?
When individuals are damaged by flooding or erosion, they often file law suits against
governments or other individuals, claiming that the governments have caused the
damages, contributed to the damages or, in some instances, failed to prevent or provide
adequate warnings of natural hazards. Successful liability suits based upon natural
hazards have become increasingly expensive to governments, not only because of the
increasing damage awards but because of the attorney and expert witness fees which may
exceed the damage award.
Successful liability suits of all types have increased in the last two decades for several
reasons:
A growing propensity to sue on the part of individuals damaged by flooding or
erosion (historically, members of society were more willing to accept losses from a broad
range of causes).
0 Large damage awards and the willingness of lawyers to initiate suits on a
contingent fee basis.
0 Propensity of juries to view governments as having "deep pockets".
0 Expanded concepts of liability.
0 Abrogation or modification of sovereign immunity in most jurisdictions.
0 Uncertainties with regard to the legal rules ofliability and defenses (e.g., "Act of
God") due to the evolving nature of the body of law and the site-specific nature of many
tort actions.
Limitation of the "Act of God" defense because most hazards are now
foreseeable.
Hazards are now, to a greater or lesser extent, "foreseeable" and failing to take
such hazards into account may constitute negligence. See, e.g., Barr v. Game, Fish, and
Parks Commission, 497 P.2d 340 (Col., 1972.)
Advances in hazard loss reduction measures (e.g., warning systems, elevating
structures) create an increasingly high standard of care for reasonable conduct.
0 Advances in natural hazard computer modeling techniques, which can be used to
establish causation.
Reduction in the defenses of contributory negligence and assumption of risk.
All levels of government, Federal, State and local, may now be sued for negligence,
nuisance, breach of contract or the "taking" of private property without payment of just
compensation under certain circumstances, although vulnerability to suit varies.
In what situations are governmental units liable for increasing flood or erosion damages
on private lands?
Courts have commonly held governments liable for increasing flood and erosion damages
on private property by blocking natural drainage through grading, fill, culverts, bridges or
structures; increasing the location and amount of runoff through channelization or
drainage works; or constructing flood control works such as levees and dams. Courts
have often held governmental units liable for inadequately maintaining or operating
culverts, bridge crossings, channelization projects, and dams. Some courts have also held
local governments liable for issuing permits and approving subdivisions which increase
flood damages on other lands and for inadequate inspections. Courts have held
governmental units liable under a variety oflegal theories including riparian rights,
nuisance, trespass, negligence, strict liability and "taking" private property without
payment of just compensation.
Can a governmental unit protect itself from liability by arguing "sovereign immunity"?
The sovereign immunity defense has been dramatically reduced by the courts and
legislatures in most states. In addition, sovereign immunity is not a defense to a "takings"
claim.
Can a governmental unit protect itself from liability by arguing an "Act of God"?
-
Increasingly, no. To successfully establish an "Act of God" defense, a governmental unit
must prove that a hazard event is both large and unpredictable. This is increasingly
difficult because hazard events are at least partially foreseeable.
Will a governmental unit be protected from liability by following regulatory guidelines or
using "standard" engineering approaches for flood and erosion control?
Not necessarily. A court may hold that a "standard" approach is not reasonable in the
circumstances as technologies improve and the standard of care in floodplain
management increases.
May a governmental unit be held liable for failing to reasonably operate and maintain
flood loss reduction measures such as channels, levees, dikes and warning systems?
Yes. Courts often hold governmental units liable for inadequate operation or
maintenance.
May a governmental unit be held liable for issuing permits for development or approving
a subdivision which increases flood or erosion damages on other lands?
Yes, in some but not all states.
May a governmental unit be held liable for failing to remedy a natural hazard on public
lands which damages adjacent private lands?
Perhaps. Courts have, with only a few exceptions, not held governmental units and
private individuals responsible for naturally occurring hazards on public lands such as
stream flooding or bank erosion that damage adjacent lands (e.g., erosion, flooding).
However, they are liable if they increase the hazards. In addition, a small number of
courts have held that government entities may need to remedy hazards on public lands
which threaten adjacent lands.
Do governmental units have discretion in determining the degree of flood and erosion
protection provided by flood and erosion reduction works?
Yes. Courts have held that the degree of protection provided by hazard reduction
measures is discretionary and not subject to liability. However, courts have held
governmental units responsible for lack of care in implementing hazard reduction
measures once a decision has been made to provide a provide a particular degree of
protection.
2) WILL FLOODPLAIN REGULATIONS INCORPORATING A NO ADVERSE
IMPACT STANDARD BE SUSCEPTIBLE TO A "TAKINGS" OR OTHER
CONSITUTIONAL CHALLENGE?
No. Courts are likely to provide strong support for a no adverse impact regulatory
performance standard approach. However, no adverse impact regulations are subject to
the same overall U.S. Constitution requirements as other regulations. These include the
requirements that regulations be adopted to serve valid goals, be reasonable, not
discriminate and not take private property without payment of just compensation. No
adverse impact regulations are particularly likely to be supported because they apply a
regulatory goal which is well established in common law and in regulatory programs.
Will courts support a no adverse impact goal?
Yes. Courts have broadly endorsed floodplain management goals and no adverse impact
is an extension of such goals. No adverse impact codifies the maximum which has been
broadly endorsed by courts, "Sic utere tuo ut alienum non laedas," or "so use your own
property that you do not injure another's property." See Keystone Bituminous Coal
Association v. DeBenedictis, 107 S. Ct. 1232 (1987) and many cases cited therein. See,
for example, Hagge v. Kansas City S. Ry Co., 104 F. 391 (W.D. Mo., 1900) (Court held
that damage done to land by occasional overflow of a stream caused by a railroad was a
nuisance.)
Will courts support the reasonableness of no adverse impact standards?
Yes. Courts have already supported a variety of more specific standards such as increased
freeboard requirements and no rise floodways.
May a local government adopt floodplain regulations which exceed State or Federal
(FEMA) minimum standards.?
Yes. Local governments regulations may exceed both State and Federal regulations.
There is no preemption issue. In fact, the FEMA program encourages State and local
regulations to exceed Federal standards through the Community Rating System.
May governmental units be held liable for uncompensated "takings" if they require that
private development be elevated or floodproofed?
No. Courts have broadly and universally supported floodplain regulations against
"takings" challenges. Courts have broadly held that regulations may substantially reduce
property values without "taking" private property.
May governmental units be held liable for refusing to issue permits in floodway or high
risk erosion areas because proposed activities will damage other lands?
No. In general, landowners have no right to make a "nuisance" of themselves. Courts
have broadly and consistently upheld regulations which prevent one landowner from
causing a nuisance or threatening public safety.
What can governments do to reduce the possibility of a successful "takings" challenge to
regulations?
Local governments can help avoid successful taking challenges in a variety of ways:
1. Apply a no adverse impact floodplain overall performance standard fairly and
uniformly to all properties.
2. Include special exception and variance provisions in regulations which allow the
regulatory agency to issue a permit where denial will deny a landowner all economic use
of his or her entire parcel and the proposed activity will not have nuisance impacts.
3. Adopt large lot zoning for floodplain areas which permits some economic use
(e.g., residential use) on the upland portion of each lot.
4. Allow for the transfer of development rights from floodplain to non-floodplain
parcels.
5. Reduce property taxes and sewer and water levees on regulated floodplains.
Model Vegetated Buffer Ordinance
I. Purpose:
To minimize nonpoint source pollution, prevent erosion and flooding, preserve wildlife
habitats, and protect natural views and recreational opportunities, a vegetated buffer
zone shall be maintained along the banks of rivers, streams, and creeks.
II. Depth:
The vegetated buff er shall be of a minimum average depth of fifty feet. Depth shall be
measured from mean high water line in tidally influenced waters.
A. The inner twenty-five feet of the buffer (closest to the water body) is to be left
pristine and forested, with the possible exception of a view corridor (see III
below). The only allowable uses are boardwalks to the water, footpaths parallel
to the water, stormwater channels, and a few utility or roadway crossings.
B. The next twenty-five foot zone of the buffer can be managed forest with some
pruning and clearing of trees allowed. Landowners can submit a clearing and
landscaping plan to the planning department for this purpose. Any newly
planted vegetation in the first fifty feet of a buffer must be native vegetation
from a list provided by the planning department. Stormwater BMPs and limited
recreational uses, such as bikepaths, are allowed in this zone. No turf (lawn) is
allowed.
C. Pollutant removal efficiency decreases as the slope of a buffer increases.
Therefore, if the slope of a buffer is above 5%, it shall be required to be a
minimum average depth of 75 feet. If the slope of a buffer is above 10%, it shall
be required to be a minimum average depth of 100 feet.
D. To prevent the buffer from becoming fragmented, no more than ten percent
of the buffer can be less than thirty-three feet deep and no part of the buffer
can be less than twenty-five feet deep.
III. Vegetative Target and View Corridors:
New vegetation allowed in the buffer shall be based on the native, predevelopment
plant community.
Property owners may clear and prune vegetation in a portion of the buff er to establish
a "view corridor." The size of a view corridor shall be either seventy-five feet wide or
one-third the width of the lot, whichever is less. If the landowner wants to establish a
view corridor, he or she must submit a selective clearing and landscaping plan to the
planning department. The plan must leave enough vegetation in the corridor to
maintain the function of the buffer. Any trees removed must be replaced by shrubs or
small trees from a plant list of native vegetation supplied by the planning department.
To prevent conversion to turf, no pruning shall be allowed below a height of three feet.
If a landowner clears more vegetation than is allowed, he or she will be subject to a
fine and required to revegetate the segment of the buffer in violation (see section IX).
IV. Density Credits for Landowners:
When buffers consume more than five percent of a landowner's developable land,
density credits shall be granted to the landowner that allow one additional dwelling
unit to be built for every acre of his or her property affected by buffers. These density
credits shall be accommodated at the development site by allowing greater flexibility in
setbacks, frontage distances, or minimum lot sizes to squeeze in "lost lots." Cluster
development may be used for this purpose.
V. Waivers:
A property owner may be granted a waiver at the discretion of the planning
department if he or she can demonstrate severe economic hardship or that unique
circumstances make it impossible to meet some or all of the buffer requirements.
Modifications to the width of the buffer may be allowed in accordance with the
following criteria:
A. Modifications to the buffer shall be the minimum necessary to achieve a
reasonable buildable area for a principal structure and necessary utilities.
B. Where possible, a vegetated area equal to the area encroaching the buffer
shall be preserved or established elsewhere on the lot or parcel in a way to
maximize water quality protection.
C. In no case shall the reduced portion of the buffer be less than twenty-five
feet in width.
If the request is denied, the owner may appeal to town/city council within thirty days
of the denial.
VI. Exemptions:
Proposed development that has reached the preliminary plat stage by the time the
ordinance is enacted shall be exempt from the rules of the ordinance.
VII. Making Buffers Visible:
Developers, builders, and residents shall be informed on the location of and reason for
the buffers, and the boundaries of buffers shall be made visible before, during, and
after construction with posted signs that describe allowable uses. Buffer boundaries
shall be printed on all development and construction plans, plats, and official maps.
VIII. Buffer Crossings:
Attempts should be made to limit the number of road crossings across water bodies
and to minimize the width of crossings at the discretion of the planning department
and the South Carolina Department of Transportation. Direct right angles shall be
used to cross the water bodies. All roadway crossings and culverts should be capable
of passing the ultimate 100-year flood.
Road rights of way should be reduced in buffer zones, with utilities under pavement.
Crossing water bodies with mainline sewer shall be a voided, and sewers shall be sited
out of buffers. All footpaths accessing a buffer (running to the water) shall be covered
by wooden boardwalks to prevent the channelization of stormwater runoff that is
caused by dirt footpaths.
IX. Enforcement:
To ensure no improper encroachment, buffers shall be actively managed with periodic
"buffer walks" at a frequency to be determined by the planning department. In
addition, citizen reports of encroachments into a buffer shall be acted upon
immediately. Violators shall be served with civil fines of not more than $500 and
required, at their own expense, to revegetate the section of the buffer encroached upon
at the instruction of the planning department, using only plants from a list of native
vegetation provided by the town. The same types of plants that were removed shall be
replaced. For example, if five trees were removed, five trees shall be replanted, and the
new trees must be of ample size, at the judgement of the planning department, to best
mitigate for the loss of the original trees.
X. Stormwater Management:
Vegetated buffers shall not be relied upon as the sole stormwater management tool.
Resources:
Desbonnet, A., P. Pogue, V. Lee, and N. Wolff. 1994. Vegetated Buffers in the Coastal
Zone: a summary review and bibliography. Coastal Resources Center. Univ. Rhode
Island. 72 pp.
Heraty, M. 1993. Riparian Buffer Programs: a guide to developing and implementing a
riparian buffer program as an urban stormwater best management practice.
Metropolitan Washington Council of Governments. USEPA Office of Oceans, Wetlands
and Watersheds. 152 pp.
Metropolitan Washington Council of Governments (MWCOG). 1995. Riparian Buffer
Strategies for Urban Watersheds. MWCOG. Washington, DC. 101 pp.
Schueler, T. 1995. The Architecture of Urban Stream Buffers. Watershed Protection
Techniques. 1(4): 155-163.
Schueler, T. 1994. The Invisibility of Stream and Wetland Buffers-Can Their Integrity
Be Maintained?. Watershed Protection Techniques. 1(1):19-21.
Welsh, D. 1991. Riparian Forest Buffers. USDA Forest Service. Forest Resources
Management. Radnor, PA. 22 pp.
COMMON LEGAL QUESTIONS ABOUT FLOODPLAIN REGULATIONS IN THE
COURTS 2003 UPDATE
Prepared by Jon A. Kusler, Esq. for the Association of State Floodplain Manager
Have courts continued to uphold the overall constitutionality of state and local floodplain
regulations?
Yes. Courts at all levels, including the U.S. Supreme Court, have broadly and repeatedly upheld
the general validity of floodplain regulations in the last 15 years. They have, however, held
regulations unconstitutional as "takings" of private property in several cases where certain
regulations, not clearly based on principles of hazard prevention or "no adverse impact," denied
all economic use oflands, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) or
permitted the public to enter private property, Nollan v. California Coastal Commission, 483
U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).
Does general validity mean that regulations are valid for all properties?
No. A landowner may attack the constitutionality ofregulations as applied to his or her
property even where regulations in general are valid. Regulatory agencies need to be able
to support the validity of the regulations as applied to particular properties. However, the
overall presumption of validity for regulations and a presumption of correctness for
regulatory agency information gathering and regulatory decisions help the agency meet
its burden of proof. Courts have broadly supported state and local floodplain regulations
as applied to particular properties. A court decision that regulations are unconstitutional
as applied to specific property will not necessarily determine site-specific
constitutionality or unconstitutionality as applied to other properties.
Has judicial support for floodplain regulations weakened in recent years?
No. Quite the contrary. The U.S. Supreme Court has recently issued a series of opinions
strongly endorsing planning to prevent damage from hazardous development. State courts
continue to strongly uphold floodplain regulations in the more than 125 appellate cases
over the last decade, including many challenges to regulations as "takings" of private
property. See, for example:
0 Beverly Bank v. Illinois Department of Transportation, 579 N.E.2d 815 (Ill. 1991), in
which the court held that the Illinois legislature had the authority to prohibit the
construction of new residences in the 100-year floodway and that a taking claim was
premature
0 State of Wisconsin v. Outagamie County Board of Adjustment, 532 N.W.2d 147 (Wis.
App., 1995), in which a variance for a replacement fishing cottage in the floodway of the
Wolf River was barred by the county's shoreland zoning ordinance
0 Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, et al., 94 N.Y. 2d 96 (N.Y.,
1999), in which the court rejected the claim that the rezoning of a 150-acre golf course
property important for flood storage from "residential" to "solely recreational use" was a
taking of private property
0 Wyer v. Board of Environmental Protection, 747 A.2d 192 (Me., 2000), in which the
denial of a variance to sand dune laws was held not to be a taking because the property
could be used for parking, picnics, barbecues, and other recreational uses.
At the same time there is a national movement, referred to by some commentators as the
"property rights movement," which supports landowners who challenge regulations.
Courts are examining floodplain regulations with greater care than they did a decade ago.
What have been the most common challenges to regulations in the last 15 years?
The most common challenges to regulations have been claims that regulators permitted
construction that later caused harm. There are dozens of cases that allege damage caused
by development that caused problems. On the other hand, there are very few cases that
allege unconstitutional over-regulation of property. Those few include: 1) challenges to
floodway regulations and floodway restrictions; 2) coastal dune and high hazard area
restrictions, and buffer and setback requirements; and 3) variances and regulations for
nonconforming uses. Generally speaking, courts have broadly upheld these hazard
prevention restrictions against claims that they take private property without payment of
just compensation, have been adopted to serve invalid goals, are unreasonable (lack
adequate nexus to goals) or discriminate.
May local governments regulate floodplains without express statutory authority to do so?
Yes. Courts have upheld local floodplain zoning regulations adopted as part of broader
zoning. Courts have also, in some cases, upheld local floodplain ordinances adopted
pursuant to "home rule" powers. But this is rarely an issue since states have broadly
authorized local governments to adopt floodplain regulations.
May a local government adopt floodplain regulations that exceed state or federal
(National Flood Insurance Program) minimum standards?
Yes. Local government regulations may exceed both state and federal regulations. There
is no preemption issue. The National Flood Insurance Program regulations specifically
encourage state and local regulations that exceed federal standards (see 44 CFR
§60.l(d)).
May states and local governments regulate some floodplains and not others?
Yes. Typically states and local governments only regulate mapped floodplains.
Are the factual determinations of federal, state, or local floodplain regulatory agencies
(e.g., mapping of floodways and flood fringe boundaries) presumed to be correct?
Yes. The burden is on landowners to prove their incorrectness. Courts overturn agency
fact-finding only if they find that such fact-finding lacks "substantial evidence." Courts
are particularly likely to uphold factual determinations of federal and state "expert"
agencies. However, courts look more closely at the adequacy of the information-
gathering in instances where regulations have severe economic impact on specific
properties.
How closely must regulatory standards (including conditions) be tailored to regulatory
goals?
Courts have broadly upheld floodplain and other resource protection regulations against
challenges that they lack reasonable nexus to regulatory goals. But, as indicated above,
courts have required a stronger showing of nexus where regulations have essentially
extinguished all value in the property. They also increasingly require a showing that
conditions attached to regulatory permits are "roughly proportional" to the impacts posed
by the proposed activity if dedication oflands is involved, see Nollan v. California
Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).
Must a regulatory agency accept one mapping or other flood analysis method over
another?
No. Not unless state or local regulations require the use of a particular method. Courts
have afforded regulatory agencies considerable discretion in deciding which scientific or
engineering approach to accept in fact-finding as long as the final decision is supported
by "substantial" evidence. Also, courts have held that regulatory agencies do not need to
eliminate all uncertainties in fact-finding.
Does an agency need to follow the mapping, floodway delineation or other technical
requirements set forth in its enabling statute or regulations?
Yes. Agencies must comply with statutory, administrative, regulatory and ordinance
procedural requirements. They must also apply the permitting criteria contained in
statutes and regulations.
Are floodplain and floodway maps invalid if they contain some inaccuracies?
No. Courts have upheld maps with some inaccuracies, particularly if there are regulatory
procedures available for refining map information on a case-by-case basis.
Can landowners be required to carry out floodplain delineations on impacts of proposed
activities on flood elevations or provide various types of floodplain assessment data?
Yes. Courts have held that regulatory agencies can shift a considerable portion of the
assessment burden to landowners and that the amount of information required from a
landowner may vary depending upon the issues and severity of impact posed by a
specific permit. And, agencies can charge reasonable fees for permitting. But the burdens
must be reasonable and courts may consider the costs of such data gathering to be
relevant to the overall reasonableness of regulations and whether a taking has occurred.
May a regulatory agency be liable for issuing a regulatory permit for an activity that
damages other private property?
Yes, quite possibly. In fact a careful analysis of hundreds of cases in which the lawsuit
involved permitting indicates that a municipality is vastly more likely to be sued for
issuing a permit for development that causes harm than for denying a permit based on
hazard prevention or "no adverse impact" regulations. The likelihood of a successful
lawsuit against a municipality for issuing a permit increases if the permitted activity
results in substantial flood, erosion or other physical damage to other private property
owners. However, some states specifically exempt state agencies and local governments
from liability for issuing permits.
Do local governments need to adopt comprehensive land use plans before adopting
floodplain regulations?
Statutes authorizing local adoption of floodplain ordinances and bylaws do not require
prior comprehensive planning. However, many local zoning enabling acts require that
zoning regulations be in accord with a comprehensive plan. Traditionally courts have not
strictly enforced this requirement and have often found a "comprehensive plan" within
the zoning regulations.
....
Courts have also endorsed comprehensive planning and regulatory approaches as
improving the rationality ofregulations although they have also upheld regulations not
preceded by such planning in many instances.
Under what circumstances is a court most likely to hold that floodplain regulations "take"
private property?
Courts are likely to find a "taking" in circumstances where: 1) the regulation is not
clearly based on hazard prevention or "no adverse impact;" 2) regulations deny all
"reasonable" economic uses of entire properties, that is , the value of the property is
reduced to zero or very near zero; or 3) proposed activities will not have offsite
"nuisance" impacts. Landowners are also more likely to succeed if the property owner
purchased the land before adoption of the regulations.
Are highly restrictive floodplain regulations, including buffers and large lot sizes, valid?
Courts have upheld highly restrictive floodplain regulations in many contexts,
particularly where a proposed activity may have nuisance impacts on other properties.
However, courts have also held floodplain regulations to be a "taking" without payment
of compensation in a few cases (mostly older) where the regulations denied all economic
use of entire parcels of land and there was no showing of adverse impact on other
properties.
Would a no adverse impact performance standard incorporated in local or state
regulations be sustained by courts?
Yes. Courts are very likely to support this standard if it is reasonably and fairly applied
and if government agencies take measures to avoid successful "takings" challenges where
regulations deny all economic, non-nuisance-like uses for entire properties.
How can a local government avoid successful "takings" challenges?
Local governments can help avoid successful "takings" challenges in a variety of ways:
1. Apply a no adverse impact floodplain management performance standard fairly and
uniformly to all properties.
2. In local regulations, include special exception and variance provisions that allow the
regulatory agency to issue a permit in instances where denial will deprive a landowner of all
economic use of his or her entire parcel and the proposed activity will not have nuisance impacts.
3. For floodplain areas, adopt large-lot zoning, which permits some economic use (e.g.,
residential use) on the upland portion of each lot.
4. Allow for the transfer of development rights from floodplain to non-floodplain parcels.
5. Fairly tax and levee assessments based on what development will actually be allowed.
,
LEGAL QUESTIONS: GOVERNMENT LIABILITY
and
NO ADVERSE IMPACT FLOODPLAIN MANAGEMENT
Prepared by Jon A. Kusler, Esq. for the Association of State Floodplain Managers
COMMON LEGAL QUESTIONS For No Adverse Impact Floodplain Management
INTRODUCTION
What is no adverse impact floodplain management?
In 2000, the Association of State Floodplain Managers recommended a "no adverse
impact" approach or goal for local, State, and Federal floodplain management to help
control spiraling flood and erosion losses, new development which increases flood risks
and additional flood losses. The "no adverse impact" goal could also potentially be
applied to environmental and other impacts, if a community chooses to do so. The "no
adverse impact" goal is not intended as a rigid rule of conduct. Rather, it has been
suggested as a general guide for landowner and community actions in the watersheds and
the floodplains which may adversely impact other properties or communities. It also
could be incorporated as an overall performance standard into community and State
floodplain regulations.
What major legal issues are raised by no adverse impact floodplain management?
Two major sets oflegal issues arise with no adverse impact floodplain management. 1)
Can no adverse impact floodplain management reduce community liability for flooding
and erosion problems? 2) Will a community that is adopting floodplain regulations
incorporating a no adverse impact standard be subject to liability for taking private
property or be subject to other successful legal challenges? These questions will be
discussed individually in the following pages.
1) CAN NO ADVERSE IMPACT FLOODPLAIN MANAGEMENT REDUCE
COMMUNITY LIABILTY FOR FLOODING AND EROSION?
Legally, no adverse impact floodplain management can reduce community liability for
flood and erosion losses. More specific issues pertaining to this overall conclusion
include the following:
Are successful suits against local governments for increasing flooding and erosion
growing more common?
When individuals are damaged by flooding or erosion, they often file law suits against
governments or other individuals, claiming that the governments have caused the
damages, contributed to the damages or, in some instances, failed to prevent or provide
adequate warnings of natural hazards. Successful liability suits based upon natural
hazards have become increasingly expensive to governments, not only because of the
increasing damage awards but because of the attorney and expert witness fees which may
exceed the damage award.
Successful liability suits of all types have increased in the last two decades for several
reasons:
A growing propensity to sue on the part of individuals damaged by flooding or
erosion (historically, members of society were more willing to accept losses from a broad
range of causes).
0 Large damage awards and the willingness of lawyers to initiate suits on a
contingent fee basis.
Propensity of juries to view governments as having "deep pockets".
Expanded concepts of liability.
Abrogation or modification of sovereign immunity in most jurisdictions.
Uncertainties with regard to the legal rules ofliability and defenses (e.g., "Act of
God") due to the evolving nature of the body oflaw and the site-specific nature of many
tort actions.
0 Limitation of the "Act of God" defense because most hazards are now
foreseeab 1 e.
Hazards are now, to a greater or lesser extent, "foreseeable" and failing to take
such hazards into account may constitute negligence. See, e.g., Barr v. Game, Fish, and
Parks Commission, 497 P.2d 340 (Col., 1972.)
Advances in hazard loss reduction measures (e.g., warning systems, elevating
structures) create an increasingly high standard of care for reasonable conduct.
0 Advances in natural hazard computer modeling techniques, which can be used to
establish causation.
0 Reduction in the defenses of contributory negligence and assumption of risk.
All levels of government, Federal, State and local, may now be sued for negligence,
nuisance, breach of contract or the "taking" of private property without payment of just
compensation under certain circumstances, although vulnerability to suit varies.
In what situations are governmental units liable for increasing flood or erosion damages
on private lands?
Courts have commonly held governments liable for increasing flood and erosion damages
on private property by blocking natural drainage through grading, fill, culverts, bridges or
structures; increasing the location and amount of runoff through channelization or
drainage works; or constructing flood control works such as levees and dams. Courts
have often held governmental units liable for inadequately maintaining or operating
culverts, bridge crossings, channelization projects, and dams. Some courts have also held
local governments liable for issuing permits and approving subdivisions which increase
flood damages on other lands and for inadequate inspections. Courts have held
governmental units liable under a variety oflegal theories including riparian rights,
nuisance, trespass, negligence, strict liability and "taking" private property without
payment of just compensation.
Can a governmental unit protect itself from liability by arguing "sovereign immunity"?
The sovereign immunity defense has been dramatically reduced by the courts and
legislatures in most states. In addition, sovereign immunity is not a defense to a "takings"
claim.
Can a governmental unit protect itself from liability by arguing an "Act of God"?
Increasingly, no. To successfully establish an "Act of God" defense, a governmental unit
must prove that a hazard event is both large and unpredictable. This is increasingly
difficult because hazard events are at least partially foreseeable.
Will a governmental unit be protected from liability by following regulatory guidelines or
using "standard" engineering approaches for flood and erosion control?
Not necessarily. A court may hold that a "standard" approach is not reasonable in the
circumstances as technologies improve and the standard of care in floodplain
management increases.
May a governmental unit be held liable for failing to reasonably operate and maintain
flood loss reduction measures such as channels, levees, dikes and warning systems?
Yes. Courts often hold governmental units liable for inadequate operation or
maintenance.
May a governmental unit be held liable for issuing permits for development or approving
a subdivision which increases flood or erosion damages on other lands?
Yes, in some but not all states.
May a governmental unit be held liable for failing to remedy a natural hazard on public
lands which damages adjacent private lands?
Perhaps. Courts have, with only a few exceptions, not held governmental units and
private individuals responsible for naturally occurring hazards on public lands such as
stream flooding or bank erosion that damage adjacent lands (e.g., erosion, flooding).
However, they are liable if they increase the hazards. In addition, a small number of
courts have held that government entities may need to remedy hazards on public lands
which threaten adjacent lands.
Do governmental units have discretion in determining the degree of flood and erosion
protection provided by flood and erosion reduction works?
Yes. Courts have held that the degree of protection provided by hazard reduction
measures is discretionary and not subject to liability. However, courts have held
governmental units responsible for lack of care in implementing hazard reduction
measures once a decision has been made to provide a provide a particular degree of
protection.
2) WILL FLOODPLAIN REGULATIONS INCORPORATING A NO ADVERSE
IMPACT STANDARD BE SUSCEPTIBLE TO A "TAKINGS" OR OTHER
CONSITUTIONAL CHALLENGE?
No. Courts are likely to provide strong support for a no adverse impact regulatory
performance standard approach. However, no adverse impact regulations are subject to
the same overall U.S. Constitution requirements as other regulations. These include the
requirements that regulations be adopted to serve valid goals, be reasonable, not
discriminate and not take private property without payment of just compensation. No
adverse impact regulations are particularly likely to be supported because they apply a
regulatory goal which is well established in common law and in regulatory programs.
Will courts support a no adverse impact goal?
Yes. Courts have broadly endorsed floodplain management goals and no adverse impact
is an extension of such goals. No adverse impact codifies the maximum which has been
broadly endorsed by courts, "Sic utere tuo ut alienum non laedas," or "so use your own
property that you do not injure another's property." See Keystone Bituminous Coal
Association v. DeBenedictis, 107 S. Ct. 1232 (1987) and many cases cited therein. See,
for example, Hagge v. Kansas City S. Ry Co., 104 F. 391 (W.D. Mo., 1900) (Court held
that damage done to land by occasional overflow of a stream caused by a railroad was a
nuisance.)
Will courts support the reasonableness of no adverse impact standards?
Yes. Courts have already supported a variety of more specific standards such as increased
freeboard requirements and no rise floodways.
May a local government adopt floodplain regulations which exceed State or Federal
(FEMA) minimum standards.?
Yes. Local governments regulations may exceed both State and Federal regulations.
There is no preemption issue. In fact, the FEMA program encourages State and local
regulations to exceed Federal standards through the Community Rating System.
May governmental units be held liable for uncompensated "takings" if they require that
private development be elevated or floodproofed?
No. Courts have broadly and universally supported floodplain regulations against
"takings" challenges. Courts have broadly held that regulations may substantially reduce
property values without "taking" private property.
May governmental units be held liable for refusing to issue permits in floodway or high
risk erosion areas because proposed activities will damage other lands?
No. In general, landowners have no right to make a "nuisance" of themselves. Courts
have broadly and consistently upheld regulations which prevent one landowner from
causing a nuisance or threatening public safety.
What can governments do to reduce the possibility of a successful "takings" challenge to
regulations?
Local governments can help avoid successful taking challenges in a variety of ways:
1. Apply a no adverse impact floodplain overall performance standard fairly and
uniformly to all properties.
2. Include special exception and variance provisions in regulations which allow the
regulatory agency to issue a permit where denial will deny a landowner all economic use
of his or her entire parcel and the proposed activity will not have nuisance impacts.
3. Adopt large lot zoning for floodplain areas which permits some economic use
(e.g., residential use) on the upland portion of each lot.
4. Allow for the transfer of development rights from floodplain to non-floodplain
parcels.
5. Reduce property taxes and sewer and water levees on regulated floodplains.
1CITY OF COLLEGE STATION
CRITERIA FOR SELECTION AND ACQUISITION OF GREENWAYS
EVALUATION OF OPEN SPACE AREAS
The purposes and system goals provide a basis for identifying and evaluating potential
open space and greenway candidates. The following series of questions illustrates the
steps in the selection process for future open space needs.
1. Is the land vacant?
2. What significant natural features are present?
3. Is there potential for recreation?
4. What trails or open space resources could connect to the parcel?
5. Is the property available from a willing landowner?
6. Is the land owner in a position to offer favorable terms or conditions for
conservation?
7. Would the area fulfill any of the supplemental purposes of open space?
8. What degree of public access could be provided to the parcel?
9. Would the parcel provide open space to an area that is currently underserved?
10. Is there community support for conserving the parcel as open space?
11. Does the parcel present any unusual maintenance or development costs?
GOALS AND PURPOSES
To qualify for selection, property must meet all of these criteria:
1. The protection of this property is consistent with the policies of the City of
College Station Greenways Master Plan.
2. The property has natural, scenic, historic, or agricultural value.
3. The property is located within the College Station city limits or ETJ.
1 Selection Criteria for Greenways Acquisition
Draft -1118/01
Sample provided by City of San Marcos
PUBLIC BENEFIT LIST
To qualify f or selection, a p roperty must meet two or more of these criteria :
1. The property provides connection to other open protected or open space lands.
2. The property promotes responsible regional watershed and floodplain
management in relationship to other existing or proposed open space areas. The
City's preference is that maintenance of neighborhood stormwater detention areas
be the responsibility of home owner associations.
Or
The property has the capacity to contribute to other conservation values such as
watershed protection and outdoor recreation.
3. The property is important for the movement of wildlife between habitat and/or for
the conservation of native vegetation.
4. The property presents an opportunity to partner with other agencies and
organizations, both public and private.
5. The property helps balance urban development with natural areas and helps define
the form of the community.
6. The property has the potential to offer alternative non-motorized routes for the
movement of people.
7. The property provides opportunity for equal access for traditionally under-
represented groups.
8. The property promotes public health and safety.
9. The property creates and enhances the aesthetics/scenery and quality oflife that
define the community.
10. The property can contribute to the conservation oflisted species or species of
concern.
11 . The conservation of this property offers economic benefits to the community.
12. The property provides appropriate recreational or educational opportunities.
A -
FEASIBILITY LIST
To qualify for selection, a property must meet one or more of th ese criteria:
1. The property could likely be protected or acquired with reasonable effort in
relation to the property's conservation value.
2. It is likely that adjacent properties could be connected/protected.
3. The property is accessible to the general public.
4. Grant or matching funds may be available to facilitate acquisition.
5. Lack of immediate action precludes future protection or acquisition.
6. The property would require minimal funds for restoration, development, and/or
maintenance because it is in a relatively natural state.
7. A mechanism and/or funds are in place for on-going maintenance.
8. The property could be easily acquired through development agreements.
Only those lands that clearly meet community priorities should be added to the
inventory of properties for which the City is responsible.
Model Riparian Buffer Ordinance.
This is a sample riparian buffer ordinance written as an amendment to an
existing zoning ordinance. This ordinance complies with the state minimum
standards for river corridor protection as well as the minimum standards for
water supply watershed protection that relate to riparian buffers. Some local
governments may also be subject to additional requirements for water supply
watershed protection. Language that is optional or variable is indicated by
brackets and/or parentheses. The name of the local government should be
inserted for [county/municipality].
ARTICLE [X] RIPARIAN BUFFER ZONE
1. INTENT AND PURPOSE.
The streams and rivers of [county/municipality] supply much of the water
required by [county/municipality] citizens for drinking and other municipal
and industrial uses [alternatively, for regions that rely on groundwater: The
quality of the groundwater that is used for drinking, agricultural and
industrial purposes in [county/municipality] is connected with the quality of
the surface water in the streams and rivers of [county/municipality]].
Furthermore, the people of [county/municipality] use the surface waters for
fishing, canoeing, and other recreational and economic purposes. The
[county/municipality] Board of Commissioners finds that the protection of the
streams and rivers of [county/municipality] is vital to the health, safety and
economic welfare of its citizens.
It is therefore the intent of this ordinance to amend the Zoning Ordinances of
[county/municipality] to establish a new riparian buffer zone of restricted
development and limited land use adjacent to all perennial streams and
rivers in [county/municipality]. The purposes of the riparian buffer zone are:
to protect public and private water supplies, to trap sediment and other
pollutants in surface runoff, to promote bank stabilization, to protect riparian
wetlands, to minimize the impact of floods, to prevent decreases in base
flow, to protect wildlife habitat, and to generally maintain water quality.
The standards and regulations set forth in this ordinance are created under
the authority of the [county/municipality]'s Home Rule and zoning powers
defined in the Georgia Constitution (Article IX, Section 2). In the event of a
conflict between or among any provisions of this ordinance, or any other
ordinances of [county/municipality], the requirement that is most restrictive
and protective of water quality shall apply.
2. TITLE.
This Ordinance shall be known as "The Riparian Buffer Zone Requirements of
[county/ municipality]" and may be referred to generally as "Riparian Buffer
Requirements."
3. DEFINITIONS.
"Existing land use" means a land use which, prior to the effective date of this
ordinance, is either:
(1) completed; or
(2) ongoing, as in the case of agricultural activity; or
(3) under construction; or
(4) fully approved by the governing authority; or
(5) the subject of a fully completed application, with all necessary supporting
documentation, which has been submitted for approval to the governing
authority or the appropriate government official, for any construction-related
permit.
"Impervious surface" means any paved, hardened or structural surface which
does not allow for complete on-site infiltration of precipitation. Such surfaces
include but are not limited to buildings, driveways, streets, parking lots,
swimming pools, dams, tennis courts, and any other structures that meet the
above definitions.
"Land disturbing activity" means any grading, scraping, excavating or filling
of land, clearing of vegetation and any construction, rebuilding or significant
alteration of a structure.
"Protected area" means any land and vegetation that lies within the riparian
buffer zone, as defined herein.
"Riparian Buffer Zone" or "RBZ" is an overlay zone that encompasses all land
within 100 ft [or other fixed width, but never less than 50 ft] on either side of
all streams in [county/municipality], measured as a line extending
perpendicularly from the stream bank.
"Second order stream or higher" means any stream that is formed by the
confluence of two or more other streams, as indicated by solid or dashed
blue lines on the United States Geological Survey 7.5 minute quadrangle
maps, of the most recent edition.
"Stream" or "River" means all of the following:
(a) any perennial stream or river (or portion thereof) that is portrayed as a
solid line on a United States Department of Agriculture Soil Survey Map of
the most recent edition; and
(b) any intermittent stream or river (or portion thereof) that is portrayed as
a dashed line on a United States Department of Agriculture Soil Survey Map
of the most recent edition; and
(c) any lake or impoundment that does not lie entirely within a single parcel
of land; and
(d) any other stream as may be identified by [county/municipality].
"Stream bank" means the uppermost limit of the active stream channel,
usually marked by a break in slope.
4. DISTRICT USE AND REGULATIONS.
4.1. The Riparian Buffer Zone District (RBZ) is an overlay zone that
encompasses all land within 100 ft [or width defined above] on either side of
all streams in [name of county/municipality], measured as a line extending
from the stream bank. The RBZ must be maintained in a naturally vegetated
state. Any property or portion thereof that lies within the RBZ is subject to
the restrictions of the RBZ as well as any and all zoning restrictions that
apply to the tax parcel as a whole.
4.2. The following land uses are prohibited within the protected area:
(a) any land disturbing activity;
(b) septic tanks and septic tank drain fields;
( c) buildings, accessory structures and all types of impervious surfaces;
(d) hazardous or sanitary waste landfills;
(e) receiving areas for toxic or hazardous waste or other contaminants;
(f) mining;
(g) storm water retention and detention facilities, except those built as
constructed wetlands that meet the approval of the Office of Planning and
Zoning of [county/municipality].
5. EXCEPTIONS.
5.1. The following land uses are excepted from the provisions of Section 4:
(a) Existing land uses, except as follows:
1. when the existing land use, or any building or structure involved in that
use, is enlarged, increased or extended to occupy a greater area of land; or
2. when the existing land use, or any building or structure involved in that
use, is moved (in whole or in part) to any other portion of the property; or
3. when the existing land use ceases for a period of more than one year.
4. existing land uses that involve agricultural production and management
shall be consistent with all state and federal laws, all regulations promulgated
by the Georgia Department of Agriculture and best management practices
established by the Georgia Soil and Water Conservation Commission.
(b) Selective logging, except within 50 ft [or other distance, but never less
than 25 ft] of a stream and provided that logging practices comply with the
best management practices set forth by the Georgia Forestry Commission.
( c) Crossings by transportation facilities and utility lines. However, issuance
of permits for such uses or activities is contingent upon the completion of a
feasibility study that identifies alternative routing strategies that do not
violate the RBZ, as well as a mitigation plan to minimize impacts on the RBZ.
( d) Temporary stream, stream bank, and vegetation restoration projects, the
goal of which is to restore the stream or riparian zone to an ecologically
healthy state.
( e) Structures which, by their nature, cannot be located anywhere except
within the riparian buffer zone. These include docks, boat launches, public
water supply intake structures, facilities for natural water quality treatment
and purification, and public wastewater treatment plant sewer lines and
outfalls.
(f) Wildlife and fisheries management activities consistent with the purposes
of Section 12-2-8 (as amended) of the Official Code of Georgia Annotated.
(g) Construction of a single family residence, including the usual
appurtenances, provided that:
1. based on the size, shape or topography of the property, as of the effective
date of this ordinance, it is not reasonably possible to construct a single-
family dwelling without encroaching upon the Riparian Buffer Zone; and
2. the dwelling conforms with all other zoning regulations; and
3. the dwelling is located on a tract of land containing at least two acres. For
purposes of these standards, the size of the tract of land shall not include
any area that lies within the protected river or stream; and
4. there shall be only one such dwelling on each two-acre or larger tract of
land; and
5. septic tank drain fields shall not be located within the buffer area,
although a septic tank or tanks serving such a dwelling may be located within
the RBZ.
(h) Other uses permitted by the Georgia DNR or under Section 404 of the
Clean Water Act. 5.2. Notwithstanding the above, all excepted uses,
structures or activities shall comply with the requirements of the Erosion and
Sedimentation Act of 1975 and all applicable best management practices and
shall not diminish water quality as defined by the Clean Water Act. All
excepted uses shall be located as far from the stream bank as reasonably
possible.
6. MINOR VARIANCES.
6.1. A minor variance is a reduction in buffer width over a portion of a
property in exchange for an increase in buffer width elsewhere on the same
property such that the average buffer width remains 100 ft [or width
specified above]. No minor variance can decrease buffer width to less than
75 ft [or 25 ft less than the buffer width]. A property owner may request a
minor variance from the requirements of the RBZ by preparing the
appropriate application with the [county/municipality] Office of Planning and
Zoning.
6.2. Each applicant for a minor variance must submit documentation that
issuance of the variance will not result in a reduction in water quality. All
minor variances shall adhere to the following criteria:
(a) the width of the RBZ shall be reduced by the minimum amount possible,
and never to less than 75 ft [or 25 ft less than the buffer width] at any point;
and
(b) reductions in the width of the RBZ shall be balanced by corresponding
increases in the RBZ elsewhere on the same property, such that the total
area included in the RBZ is the same as if it were 100 ft [or width specified
above] wide; and
( c) land disturbing activities must comply with the requirements of the
Erosion and Sedimentation Act of 1975 and all applicable best management
practices.
7. MAJOR VARIANCES.
7 .1. A major variance is a reduction in RBZ width that is not balanced by a
corresponding increase in buffer width elsewhere on the same property, or
else a reduction in buffer width to less than 75 [or as specified above] ft. A
property owner may request a major variance from the requirements of the
RBZ by preparing the appropriate application with the [county/municipality]
Office of Planning and Zoning. Such requests shall be granted or denied by
application of the criteria set forth below in section 24. 7 .3 and will be subject
to the conditions set forth below in section 24. 7.4. Under no circumstances
may an exception be granted which would reduce the buffer to a width less
than the minimum standards established by state or federal law.
7 .2. Each applicant for a major variance must provide documentation that
describes:
(a) existing site conditions, including the status of the protected area; and
(b) the needs and purpose for the proposed project; and
( c) justification for seeking the variance, including how buffer encroachment
will be minimized to the greatest extent possible; and
(d) a proposed mitigation plan that offsets the effects of the proposed
encroachment during site preparation, construction and post-construction
phases.
7.3. No major variance shall be issued unless the [county/ municipality]
Zoning Board of Appeals determines that:
(a) the requirements of the RBZ represent an extreme hardship for the
landowner such that little or no reasonable economic use of the land is
available without reducing the width of the RBZ; or
(b) the size, shape or topography of the property, as of the effective date of
this ordinance, is such that it is not possible to construct a single-family
dwelling without encroaching upon the Riparian Buffer Zone.
7.4. Any major variance issued by the [county/municipality] Zoning Board of
Appeals will meet the following conditions:
(a) the width of the RBZ is reduced only by the minimum extent necessary to
provide relief; and
(b) land disturbing activities must comply with the requirements of the
Erosion and Sedimentation Act of 1975 and all applicable best management
practices. Such activities shall not impair water quality, as defined by the
federal Clean Water Act and the rules of the Georgia Department of Natural
Resources, Environmental Protection Division; and
( c) as an additional condition of issuing the variance, the
[county/municipality] Zoning Board of Appeals may require water quality
monitoring downstream from the site of land disturbing activities to ensure
that water quality is not impaired.
8. REPEAL CLAUSE.
The provisions of any ordinances or resolutions or parts thereof in conflict
herewith are repealed, save and except such ordinances or resolutions or
parts thereof which provide stricter standards than those provided herein.
9. SEVERABILITY.
Should any section, subsection, clause, or provision of this Article be
declared by a court of competent jurisdiction to be invalid, such decision shall
not affect the validity of this Article in whole or any part thereof other than
the part so declared to be invalid.
10. AMENDMENT.
This Article may be amended from time to time by resolution of the Board of
Commissioners of [county/municipality]. Such amendments shall be effective
as specified in the adopting resolution.
11. EFFECTIVE DATE.
This article shall become effective upon its adoption.
This section establishes the justification for the ordinance. It should be
tailored to emphasize the important aquatic resources of the local area.
For example, if endangered species of fish are present, insert a sentence that
says "In addition, the [local river] and its tributaries provide habitat for a
number of threatened and endangered species of fish." If these terms are
defined previously in the zoning ordinance then they may not have to be
redefined here.
The width of the riparian buffer zone is first defined here. Naturally, this
width must be consistent throughout the ordinance. We recommend a width
of 100 ft, which is consistent with state minimum standards. If a width
narrower than 100 ft is specified, a separate ordinance or section of this
ordinance must be added to cover those stream segments governed by
minimum standards (water supply watersheds and large rivers).
This ordinance specifies the use of soil survey maps, which may be the most
accurate maps for determining affected streams. In some areas other map
types may be preferable. This section should be changed to refer to the most
accurate map available for the jurisdiction, with accuracy determined by field
evaluations.
Local governments with port facilities may wish to except these facilities
provided they meet certain requirements.
Important Note:
Section 5.l(g)-1 exceeds the state minimum standards by requiring the
residence to be located outside of the riparian buffer if possible. As of this
writing such a provision may require EPD approval. Contact the University of
Georgia Institute of Ecology Office of Public Service and Outreach for more
information on this issue.
Minor variances allow for "buffer averaging," which gives the landowner a
fast and easy method for reducing the width of the RBZ by small amounts if
necessary.
Section 7 .3a is designed to ensure that any landowner who might have
grounds for a claim of "takings" can qualify for a variance. Section 7.3b is
designed to ensure that even those landowners with lots smaller than two
acres, as of the effective date of the ordinance, can construct a single-family
dwelling within the buffer if necessary to prevent extreme hardship.
Landowners with lots of two acres or larger who must encroach on the buffer
in order to construct a home are excepted in section 5.l(g)-1.
ADDITIONAL WATER SUPPLY WATERSHED REQUIREMENTS.
The above ordinance meets the riparian buffer provisions of the state
minimum standards for water supply watershed protection. However, the
minimum standards place other restrictions on small and large water supply
watersheds in addition to riparian buffer requirements. A water supply
watershed is the drainage basin upstream of governmentally owned drinking
water supply intake; a small water supply watershed is less than 100 square
miles, while a large water supply watershed is 100 square miles or larger. A
water supply reservoir is a governmentally owned impoundment of water for
the primary purpose of providing water to one or more governmentally
owned public drinking water systems.
Within a seven mile radius upstream of a water supply reservoir, no
impervious surfaces, septic tanks or septic tank drain fields may be installed
within 150 ft of a stream bank. ***Note: The EPD can approve alternate
criteria for protecting drinking water standards. Because the ordinance above
is generally stricter than the state minimum standards, the EPD may allow
local governments to waive certain criteria, such as the 150 ft impervious
surface/septic setbacks. We do not recommend waiving the other
requirements described here.***
In both large and small water supply watersheds, new facilities which handle
hazardous materials of the types and amounts determined by the
Department of Natural Resources must perform their operations on
impermeable surfaces having spill and leak collection systems as prescribed
by the Department of Natural Resources.
In small water supply watersheds only, new hazardous waste treatment or
disposal facilities are prohibited, and new sanitary landfills are allowed only if
they have synthetic liners and leachate collection systems. The impervious
surface area (including all public and private structures, utilities or facilities)
of the entire water supply watershed shall be limited to twenty-five percent
(25%) of the area of the watershed or existing use, whichever is greater.
t
A. Riparian Buffer Zone (RBZ)
1. The streams and rivers of [county /municipality] supply much
of the water required by [county /municipality] citizens for
drinking and other municipal and industrial uses
[alternatively, for regions that rely on groundwater: The
quality of the groundwater that is used for drinking,
agricultural and industrial purposes in [county /municipality]
is connected with the quality of the surface water in the
streams and rivers of [county /municipality]]. Furthermore,
the people of [county /municipality] use the surface waters for
fishing, canoeing, and other recreational and economic
purposes. The [county /municipality] Board of Commissioners
finds that the protection of the streams and rivers of
[county /municipality] is vital to the health, safety and
economic welfare of its citizens.
It is therefore the intent of this ordinance to amend the Zoning
Ordinances of [county /municipality] to establish a new
riparian buffer zone of restricted development and limited land
use adjacent to all perennial streams and rivers in
[county /municipality]. The purposes of the riparian buffer
zone are: to protect public and private water supplies, to trap
sediment and other pollutants in surface runoff, to promote
bank stabilization, to protect riparian wetlands, to minimize
the impact of floods, to prevent decreases in base flow, to
protect wildlife habitat, and to generally maintain water
quality.
B. DEFINITIONS.
1. "Existing land use" means a land use which, prior to the
effective date of this ordinance, is either:
(1) completed; or
(2) ongoing, as in the case of agricultural activity; or
(3) under construction; or
(4) fully approved by the governing authority; or
(5) the subject of a fully completed application, with all
necessary supporting documentation, which has been
submitted for approval to the governing authority or the
appropriate government official, for any construction-related
permit.
2. "Impervious surface" means any paved, hardened or
structural surface which does not allow for complete on-site
infiltration of precipitation. Such surfaces include but are not
limited to buildings, driveways, streets, parking lots,
'
swimming pools, dams, tennis courts, and any other structures
that meet the above definitions.
3. "Land disturbing activity" means any grading, scraping,
excavating or filling of land, clearing of vegetation and any
construction, rebuilding or significant alteration of a structure.
4. "Protected area" means any land and vegetation that lies
within the riparian buffer zone, as defined herein.
S. "Riparian Buffer Zone" or "RBZ" is an overlay zone that
encompasses all land within 100 ft [or other fixed width, but
never less than 50 ft] on either side of all streams in
[county /municipality], measured as a line extending
perpendicularly from the stream bank.
6. "Second order stream or higher" means any stream that is
formed by the confluence of two or more other streams, as
indicated by solid or dashed blue lines on the United States
Geological Survey 7.5 minute quadrangle maps, of the most
recent edition.
7. "Stream" or "River" means all of the following:
(a) any perennial stream or river (or portion thereof) that is
portrayed as a solid line on a United States Department of
Agriculture Soil Survey Map of the most recent edition; and
(b) any intermittent stream or river (or portion thereof)
that is portrayed as a dashed line on a United States
Department of Agriculture Soil Survey Map of the most
recent edition; and
( c) any lake or impoundment that does not lie entirely
within a single parcel of land; and
(d) any other stream as may be identified by
[county /municipality].
8. "Stream bank" means the uppermost limit of the active stream
channel, usually marked by a break in slope.
C. DISTRICT USE AND REGULATIONS.
1. The Riparian Buffer Zone District (RBZ) is an overlay zone that
encompasses all land within 100 ft [or width defined above]
on either side of all streams in [name of county /municipality],
measured as a line extending from the stream bank. The RBZ
must be maintained in a naturally vegetated state. Any
property or portion thereof that lies within the RBZ is subject
to the restrictions of the RBZ as well as any and all zoning
restrictions that apply to the tax parcel as a whole.
2. The following land uses are prohibited within the protected
area except as provided below:
a. any land disturbing activity;
b. septic tanks and septic tank drain fields;
c. buildings, accessory structures and all types of impervious
surfaces;
d. hazardous or sanitary waste landfills;
e. receiving areas for toxic or hazardous waste or other
contaminants;
f. mining;
g. storm water retention and detention facilities, except those built
as constructed wetlands that meet the approval of the Office of
Planning and Zoning of [county/municipality].
3. Exceptions
a. Development consistent with the Greenways Master Plan is
allowed in Riparian Buffer Zones.
b. Bridges and culverts crossing Riparian Buffer Zones must be
sized to pass the 100-yr flood.
c. Existing land uses, except as follows:
(1) when the existing land use, or any building or
structure involved in that use, is enlarged, increased
or extended to occupy a greater area of land; or
(2) when the existing land use, or any building or
structure involved in that use, is moved (in whole or
in part) to any other portion of the property; or
(3) when the existing land use ceases for a period of
more than one year.
d. Crossings by transportation facilities and utility lines. However,
issuance of permits for such uses or activities is contingent upon
a mitigation plan to minimize impacts on the RBZ.
e. Temporary stream, stream bank, and vegetation restoration
projects, the goal of which is to restore the stream or riparian
zone to an ecologically healthy state.
f. Structures which, by their nature, cannot be located anywhere
except within the riparian buffer zone. These include docks, boat
launches, public water supply intake structures, facilities for
natural water quality treatment and purification, and public
wastewater treatment plant sewer lines and outfalls.
4. Minor Variances - A minor variance is a reduction in buffer
5.
6.
width over a portion of a property in exchange for an increase
in buffer width elsewhere on the same property such that the
average buffer width remains 100 ft [or width specified
above]. No minor variance can decrease buffer width to less
than 75 ft [or 25 ft less than the buffer width]. A property
owner may request a minor variance from the requirements of
the RBZ by preparing the appropriate application with the
[county /municipality] Office of Planning and Zoning.
a. Each applicant for a minor variance must submit documentation
that issuance of the variance will not result in a reduction in
water quality. All minor variances shall adhere to the following
criteria:
(1) the width of the RBZ shall be reduced by the
minimum amount possible, and never to less than 75
ft [or 25 ft less than the buffer width] at any point;
and
(2) reductions in the width of the RBZ shall be balanced
by corresponding increases in the RBZ elsewhere on
the same property, such that the total area included
in the RBZ is the same as if it were 100 ft [or width
specified above] wide; and
(3) land disturbing activities must comply with an
approved Stormwater Pollution Prevention Plan and
all applicable best management practices.
For non-residential buildings, no more than fifty percent (50%) of
any fa<;ade facing Krenek Tap Roadway may include reflective
glass. For the purposes of this ordinance, reflective glass shall be
defined as glass having a reflectance of greater than ten percent
(10%).
7. Fencing
Any fencing visible from the public designated roadway or public
area shall be decorative wrought iron or tubular steel, a picket
fence or alternative similar products approved by the Design
Review Board. Fences along the right-of-way shall not be solid and
shall allow visual access to the development. The materials and
height limitation referenced above do not apply to fences required
for screening as specified in this UDO.
8. Sign Regulations
Only attached building signs and low proflie signs meeting the
requirements of the UDO shall be permitted. Building signs shall
not obscure other building elements such as windows, cornices,
decorative details, etc.
Design Standards
The following standards apply specifically to single family and townhome
residential development along the Krenek Tap Corridor in addition to
other design standards contained within the UDO applicable to single
family development.
1. Front Setback
Residential lots adjacent to Krenek Tap right-of-way shall be
oriented so that the front facades of individual units or dwellings
face Krenek Tap Road, if there is sufficient property frontage to do
so. The front setback of these units shall not exceed fifteen feet
(15'). This does not preclude residential street access to Krenek or
pedestrian access.
2. Front Porches
Every front fa<;ade visible from Krenek Tap Road shall contain a
front porch extending along at least one half of the front fa<;ade .
These porches shall be large enough and useable for outdoor
seating and not solely decorative.
3. Parking
No driveways or locations for parking shall be allowed in the yard
areas facing Krenek Tap Road or along Krenek Tap Road itself.
Rear parking and access shall be required.
4. Architectural Design
All exterior walls visible from the public right-of-way shall be
finished in the following materials: brick, native stone, cast stone,
textured concrete masonry units, fiber/cement board, solid wood
planking, stucco, or synthetic stucco. Metal siding is prohibited on
all exterior walls. Alternative materials may be approved by the
Design Review Board, if the alternative materials meet or exceed
the standards of the materials listed above. The primary material
shall not exceed seventy-five percent (75%) of the fa<;ade. The
fa<;ade calculation excludes windows and doors. There shall be no
flat roofs.
Per Ordinance No. 2716 dated April 8, 2004.
MODEL ORDINANCE
RIPARIAN CORRIDOR CONSERVATION DISTRICT
Section 1. Legislative Intent.
. In expansion of the Declaration ofLegislative Intent and Statement
of Community Development Objectives found in Sections 101 and
l 02 of Article I of this ordinance, it is the intent of this article to
provide reasonable controls governing the conservation,
management, disturbance, and restoration, of riparian corridors
under authority of Article I, Section 27 of the Pennsylvania
Constitution, Act 24 7 the Municipalities Planning Code as
amended, and other Commonwealth and federal statutes, in
conformance with the goals of the Comprehensive Plan, Open
Space and Environmental Resource Protection Plan, and the
following objectives:
1.1
1.2
1.3
1.4
Improve surface water quality by reducing the amount
of nutrients, sediment, organic matter, pesticides, and
other harmful substances that reach watercourses,
wetlands, subsurface, and surface water bodies by .
using scientifically-proven processes including
filtration, deposition, absorption, adsorption, plant
uptake, and denitrification, and by improving
infiltration, encouraging sheet flow, and stabilizing
concentrated flows.
Improve and maintain the safety, reliability, and
adequacy of the water supply for domestic,
agricultural, commercial, industrial, and recreational
uses along with sustaining diverse populations of
aquatic flora and fauna.
Preserve and protect areas that intercept surface water
runoff, wastewater, subsurface flow, and/or deep
groundwater flows from upland sources and function
to remove or buffer the effects of associated nutrients,
sediment, organic matter, pesticides, or other
pollutants prior to entry into surface waters, as well as
provide wildlife habitat, moderate water temperature
in surface waters, attenuate flood flow, and provide
opportunities for passive recreation.
Regulate the land use, siting, and engineering of all
development to be consistent with the intent and
objectives of this ordinance and the best-accepted
conservation practices, and to work within the
carrying capacity of existing natural resources.
The legislative intent section
provides the rationale for the
regulation, including the
applicable power to do so. This
will demonstrate that the
regulation is reasonable and
related to a defensible public
purpose. The authority to
protect riparian corridors is
contained within the
Pennsylvania Constitution and
the MPC (Secs 301 b, 603b5,
603d, 604(1), and 605(2)).
The intent section also
recognizes the scientifically-
proven and published benefits
of riparian corridors.
Th e Commonwealth of
Pennsylvania has invested over
a billion dollars in water
quality protection over the last
two decades. Protection of
riparian corridors helps to
advance this large public
investment.
The majority of land within a
watershed is drained by the
smaller 1'1 and 2nd order
streams. Therefore, regulation
of riparian corridors must focus
upon all streams within a
watershed and not just the
larger more apparent creeks
and rivers.
1.5
1.6
1.7
Assist in the implementation of pertinent state laws
concerning erosion and sediment control practices,
specifically Erosion Control, of the Pennsylvania
Clean Streams Law, Act 394, P.L. 1987, Chapter 102
of the Administrative Code (as amended October 10,
1980 Act 157 P.L.), Title 25, and any subsequent
amendments thereto, as administered by the
Pennsylvania Department ofEnvironrnental Protection
and the Montgomery County Conservation District.
Conserve natural features important to land or water
resources such as headwater areas, groundwater
recharge zones, floodway, floodplain, springs,
streams, wetlands, woodlands, prime wildlife habitats,
and other features that provide recreational value or
contain natural amenities whether on developed or
undeveloped land.
Work with floodplain, steep slope, and other
requirements that regulate environmentally sensitive
areas to minimize hazards to life, property, and
riparian features.
1.8 Recognize that natural features contribute to the
welfare and quality oflife of the [Municipal] residents.
1.9 Conserve natural, scenic, and recreation areas within
and adjacent to riparian areas for the community's
benefit.
Section 2. Application an Width Determination of the
District
2.1 Application. The Riparian Corridor Conservation
District is an overlay district that applies to the
streams, wetlands, and waterbodies, and the land
adjacent to them, as specified in the following table:
Surface Water Feature Minimum Corridor Width
A. Perennial Streams: Zone 1: Minimum width of25 feet
All perennial streams from each defined edge of the
identified in the Soil Survey1• watercourse at bank full flow,
(Perennial streams are shown measured perpendicular to the edge
as solid lines on the Soil of the watercourse.
Survey maps.)
2
There are other laws of the
Commonwealth that this
ordinance complements which
should be referenced.
Depending on a municipality's
goals for corridor preservation,
recreational opportunities may
exist and should be mentioned
as part of the regulations intent.
The ordinance should reference
other existing municipal
regulations regarding natural
resource preservation.
Scientific research has
demonstrated that the benefits
of riparian corridors are
maximized when they extend at
least 75 feet from the
streambank.
Zone one should be a minimum
of 25 feet from the streambank
and consist of undisturbed
forest and vegetation in order to
stabilize the streambank, shade
the stream, and provide food for
aquatic organisms.
Surface Water Feature
B. Intermittent Streams:
Intermittent streams identified in
the Soil Survey' or any stream
otherwise identified on the
applicant's plan that have an
upstream drainage area of75
acres or more2. (Intermittent
streams are shown as dotted and
dashed lines on the Soil Survey
maps.)
C. Other Streams:
All other streams with an
upstream drainage area of less
than 75 acres2, including
intermittent streams identified in
the Soil Survey'.
D. Wetlands and
Waterbodies
Wetlands not located along a
stream, and waterbodies, where
the wetland and/or waterbody is
greater than 10,000 square feet
in area.
Minimum Corridor Width
Zone 2: Minimum width of 50
feet from the outer edge of Zone
1, measured perpendicular to the
edge of Zone 1, or equal to the
extent of the 100-year
floodplain3, or 25 feet beyond
the outer edge of a wetland
along the stream, whichever is
greater. (Total minimum width
of Zones l & 2 = 150 feet plus
the width of the stream.)
Zone 1: Minimum width of 25
feet from each defined edge of
the watercourse at bank full
flow, measured perpendicular
to the edge of the watercourse.
Zone 2: Minimum width of 50
feet from the outer edge of Zone
1, measured perpendicular to the
edge of Zone 1, or equal to the
extent of the l 00-year
floodplain3, or 25 feet beyond
the outer edge of a wetland
along the stream, whichever is
greater. (Total minimum width
of Zones l & 2 = 150 feet plus
the width of the stream.)
Zone 1: Minimum width of25
feet from the centerline of the
watercourse, measured
perpendicular to the centerline of
the watercourse, or equal to the
extent of the l 00-year
tloodplain3, or 25 feet beyond
the outer edge of a wetland
along the stream, whichever is
greater. (Total minimum width
of 50 feet).
Zone 2: Does not apply.
Zone 1: Minimum width of25
feet from the outer edge of the
wetland or waterbody, measured
perpendicular to the edge. For
wetlands located at the edge of a
waterbody, the measurement
shall be made from the outer
edge of the wetland.
Zone 2: Does not apply.
3
Zone Two is the Aouter edge=
of the corridor and allows for
infiltration of runoff. filtration
of sediment and nutrients, and
nutrient uptake by plants.
The following notes should
accompany the chart:
'Soil Survey shall mean the most
recent edition of he Soil Survey of
Montgomery County.
2Upstream drainage area shall be
measured from the where the
stream exits the applicant's site.
3100-year floodplain is identified
on the Flood Insurance rate Map
(FIRM) prepared by FEMA, or as
calculated by the applicant where
FEMA data does not apply.
Steep slopes are often found
adjacent to waterways and may
2.2
2.3
Zone Designation Adjustments for Steep Slopes.
Where steep slopes in excess of25 percent are located
within 75 feet of a stream identified in 2.1, A or B,
above, the area of steep slopes shall be designated as
Zone One consistent with the following:
A. If the extent of the steeply sloped area is more
than 75 feet, the Zone I designation shall extend
to 75-feet or to the full extent of the steeply sloped
area within the corridor if Zone I extends greater
than 75 feet as may be required in Section 2.1.C.
Zone 2 shall not be required except as may be
required in 2.1, A or B for floodplains.
B. If the extent of the steeply sloped area is less than
75 feet, the Zone I designation shall extend to the
limit of the steeply sloped area, and the width of
Zone Two shall be adjusted so that the total
corridor width (Zone 1 plus Zone 2) will be that
required in 2.1 A, B, or C.
Identification and Width Determination.
The applicant shall be responsible for the following:
A. Identifying the watercourses, wetlands, and/or
waterbodies on and abutting the applicant's site,
and locating these features accurately on the
applicant's plans.
B. Initial width determination of the riparian
corridor(s) in compliance with Section 2.1, herein,
and for identifying these areas on any plan that is
submitted for subdivision, land development, or
other improvements that require plan submissions
or permits. The initial determination(s) shall be
subject to review and approval by the [Municipal]
Planning Commission, with the advice of the
[Municipal] Engineer.
Section 3. Uses Permitted in the Riparian Corridor
Conservation District
The following uses are permitted by right in the Riparian Corridor
Conservation District in compli·ance with the requirements of this
Article:
3.1 Zones One and Two: At least half of any required
yard setback area, for any individual lot, must be
entirely outside of the Riparian Corridor Conservation
District.
4
reduce the infiltration and
filtering benefits of the buffer.
Providing a Zone 1 designation
to the steeply sloped areas will
afford greater protection for
existing vegetation. Maintaining
vegetation on steep slopes is
especially critical for reducing
erosion and sedimentation.
This ordinance requires the
applicant to designate the
riparian corridor on the
subdivision or land
development plan. This
requirement is similar to the
way wetlands and floodplains
are designated.
The uses permitted within each
zone are directly related to the
specific benefits the zone
provides and should be tailored
to the community 's goals.
To ensure usable yard area is
provided, at least half of all
yard setbacks shall be outside
the riparian corridor.
For Zone One to function
properly it should remain
3.2
3.2
Zone One:
A. Open space uses that are primarily passive in
character shall be permitted to extend into the area
defined as Zone One, including:
1. Wildlife sanctuaries, nature preserves, forest
preserves, fishing areas, passive areas of
public and private parklands, and
reforestation.
2. Streambank stabilization.
B. Forestry operations approved by the Montgomery
County Conservation District.
C. Corridor crossings:
1. Agricultural crossings by farm vehicles and
livestock.
2. Driveways serving one or two single-family
detached dwelling units, provided the
mitigation requirements of Section 7.2 are
satisfied. The corridor crossing standards of
Section 8 should be considered during design
of the driveway.
3. Driveways serving more than two single-
family detached dwelling units, or roadways,
recreational trails, railroads, and utilities,
provided the mitigation requirements of
Section 7.2 and the corridor crossing design
standards of Section 8 are satisfied.
Zone Two
A. Open space uses including wildlife sanctuaries,
nature preserves, forest preserves, passive areas of
public and private parklands, recreational trails,
and reforestation.
B. Agricultural uses conducted in compliance with
methods prescribed in the Department of
Environmental Protection's Erosion and Sediment
Pollution Control Manual, March 2000, as
amended.
5
relatively undisturbed.
Therefore, the by-right uses are
generally passive and allow for
the implementation of
streambank stabilization
techniques to minimize erosion.
To sustain and encourage
agricultural operations,
crossings for farm vehicles and
livestock are permitted by-right.
Invariably, driveways, roads,
and other types of corridor
crossings will be required and
are permitted by-right provided
specific mitigation and design
standards are satisfied.
The main purpose of Zone Tw o
is to impede th e flow of runoff,
allowing increased infiltration
to filter out nutrients for uptake
by plants.
Existing agricultural uses
should be allowed to continue,
as long as best-management
practices are implemented.
C. Corridor crossings:
1. Agricultural crossings by farm vehicles and
livestock.
2. Driveways serving one or two single-family
detached dwelling units, provided the
mitigation requirements of Section 7.2 are
satisfied. The corridor crossing standards of
Section 8 should be considered during design
of the driveway.
3. Driveways serving more than two single-
family detached dwelling units, or roadways,
recreational trails, railroads, and utilities,
provided the mitigation requirements of
Section 7.2 and the corridor crossing design
standards of Section 8 are satisfied.
E. Residential accessory structures having an area
equal to or less than 225 square feet.
F. Forestry operations approved by the Montgomery
County Conservation District.
G. Passive use areas such as camps, campgrounds,
picnic areas, and golf courses. Active recreation
areas such as ballfields, playgrounds, and courts
provided these uses are designed in a manner that
will not permit concentrated flow of stormwater
runoff.
H. Centralized sewer and/or water lines and public
utility transmission lines running along the
corridor. When proposed as part of a subdivision
or land development, the mitigation requirements
of Section 8.2 shall be satisfied. In all cases, these
lines shall be located as far from Zone One as
practical.
Section 4. Uses Specifically Prohibited in the Riparian
Corridor District
Any use or activity not authorized within Section 3, herein, shall be
prohibited within the Riparian Corridor Conservation District and
the following activities and facilities are specifically prohibited:
4.1 Clearing of all existing vegetation, except where
such clearing is necessary to prepare land for a use
permitted under Section 3 .1, herein, and where the
6
The standards for accessory
structures should be tailored to
be consistent with existing
municipal regulation.
The main purpose of Zone Two
is to slow runoff Therefore,
concentrated runoff flow should
be prevented. This may be
particularly important if
impervious surface is
introduced into Zone Two.
Denudation of the buffer area is
prohibited unless it is done to
allow for construction of a
permitted use, such as a utility
crossing, provided the uses are
constructed and revegetated . .
effects of these actions are mitigated by re-
establishment of vegetation, as specified under
Section 8.1 , herein.
4.2 Storage of any hazardous or noxious materials.
4.3
4.4
4.5
Use offertilizers, pesticides, herbicides, and/or other
chemicals in excess of prescribed industry standards
or the recommendations of the Montgomery County
Conservation District.
Roads or driveways, except where permitted as
corridor crossings in compliance with Section 3,
herein.
Motor or wheeled vehicle traffic in any area not
designed to accommodate adequately the type and
volume.
4.6 Parking lots.
4.7 Any type of permanent structure, including fences,
except structures needed for a use permitted in
Section 3, herein.
4.8 Subsurface sewage disposal areas.
4.9 Sod farming.
4.10 Stormwater basins, including necessary berms and
outfall facilities.
Section 5. Nonconforming Structures and Uses in the
Riparian Forest Corridor District
Nonconforming structures and uses of land within the Riparian
Corridor Conservation Overlay District shall be regulated under the
provisions of Article VII, Nonconforming Status, herein, except
that the one-year time frame for discontinuance shall not apply to
agricultural uses which are following prescribed Best Management
Practices for crop rotation.
Section 6. Boundary Interpretation and Appeals Procedure
6.1 When an applicant disputes the Zone 1 and/or 2
boundaries of the Riparian Corridor or the defined
edge of a watercourse, surface water body, or wetland,
the applicant shall submit evidence to the
[Municipality] that shows the applicant's proposed
boundary, and provides justification for the proposed
houndarv chan!!e.
7
according to ordinance
specifications.
The ordinance should
specifically prohibit uses that
may inevitably lead to erosion,
sedimentation, pollution, and
general disturbance of the
corridor, which may not be
reasonably mitigated. Once
again, this section should be
modified to meet the goals of
the municipality.
Structures and uses that legally
exist prior to adoption of this
ordinance, which will no longer
be permitted, are considered
nonconforming. It is important
to recognize these instances,
regulate their expansion, and
determine abandonment.
There may be disputes about the
extent of the corridor on
specific properties. This section
provides the applicant with the
opportunity to justify a change
in the boundary location.
6.2
boundary change.
The [Municipal] Engineer, and/or other advisors
selected by the [Governing Body] shall evaluate all
material submitted and provide a written
determination within 45 days to the [Governing
Body], [Municipal] Planning Commission, and
landowner or applicant.
6.3 Any party aggrieved by any such determination or
other decision or determination under this section may
appeal to the Zoning Hearing Board under the
provisions of [existing Zoning Hearing Board Article]
of this ordinance. The party contesting the location of
the district boundary shall have the burden of proof in
case of any such appeal.
Section 7. Inspection of Riparian Corridor Conservation
District
7.1 Lands within or adjacent to an identified Riparian
Corridor Conservation Overlay District will be
inspected by the [Municipal] Code Enforcement
Officer when:
A. A subdivision or land development plan is
submitted.
B. A building permit is requested.
C. A change or resumption of nonconforming use is
proposed.
7.2 The district may also be inspected periodically by the
Code Enforcement Officer and/or other representatives
designated by the [Governing Body] for compliance
with an approved restoration plan, excessive or
potentially problematic erosion, hazardous trees, or at
any time when the presence of, or possibility of, an
unauthorized activity or structure is brought to the
attention of [Municipal] officials.
Section 8. Management of the Riparian Corridor District
8.1 Riparian Corridor Planting. Re-establishment of forest
cover and woodland habitat shall be required
consistent with the requirements of the landscape
regulation within the [Municipal] Subdivision and
Land Development Ordinance.
8
Similar to other zoning appeals,
further disputes should be
handled by the zoning hearing
board.
Once lands start being
preserved, and a contiguous
system of lands begin to form,
some degree of regular
inspection will be necessary.
The inspection will determine
landowner compliance with the
ordinance provisions.
Vegetation is one of the key
ingredients to a healthy and
useful corridor. Therefore, to
encourage and aid in the
establishment of the riparian
corridor, specific riparian
plantings should be required as
part of the site's general
landscaping.
When development encroaches
upon the riparian corridor, the
function of the corridor is
compromised and mitigation
will be required.
8.2
Section 9.
9.1.
Mitigation Measures. Uses pennitted in Section 3
involving corridor crossings or other encroachment
within the riparian corridor shall be mitigated by
increasing the width of the corridor as replacement for
the area lost due to the encroachment or disturbance,
so that the total corridor area (land area within Zone
One and Zone Two) for each applicable side of the
stream or watercourse is equal to that required by
Section 2.1.
Corridor area is the product of the corridor width
required by Section 2.1 and the total length for each
applicable side of the stream or watercourse for
which a riparian corridor is being established.
Perimeter shall be used in place of length for
detennining wetland buffer area. The increased
width shall be spread throughout the corridor to the
maximum extent possible. For stream and
watercourses, the increased width shall be applied
along the length of the stream in blocks of 1,000 feet
or more, or the fuJI length of the corridor on the
affected property, whichever is less.
Corridor Crossings Standards
Corridor Crossing Criteria. All corridor crossings
pennitted under Sections 3. l or 3 .2, herein, shall
incorporate, as required, the following design
standards.
A. The width of the right-of way should not be
greater than the minimum right-of-way width
required by the [Municipal] Subdivision and
Land Development Ordinance.
B. Crossings should be designed to cross the
riparian corridor at direct right angles to the
greatest extent possible in order to minimize
disturbance of the corridor.
C. Corridor crossings should be separated by a
minimum of 1,000 feet of buffer length.
D. Bridges should be used in place of culverts when
crossings would require a 72-inch or greater
diameter pipe. When culverts are installed they
should consist of slab, arch, or box culverts and
not corrugated metal pipe. Culverts should also be
designed to retain the natural channel bottom to
ensure the passage of water during low flow or
dry weather periods.
9
A "buffer averaging" approach
adds width to portions of the
buffer to offset reductions in
width due to corridor crossings
or other types of disturbance.
While the need f or corridor
crossings is inevitable, the
number and design of these
crossings should be controlled
in order to protect the integrity
and functionality of the riparian
corridor to the greatest extent
possible.
Section 10. Use of Technical Terminology
Technical terminology used in this article shall be interpreted to
have the meanings used by recognized sources and experts in the
fields of forestry, woodland or meadow management, streambank
protection, wetlands management, erosion and sedimentation
control, or other relevant fields.
-+--+·---.... --+--+---.... --+--+--+--+-_ _. ____ .... _
Model Landscape Standards for Subdivision and Land
Development Ordinance:
A. Purpose & Application
In areas within the Riparian Corridor Conservation District as
defined in Section ### of the [Municipal] Zoning Ordinance,
the edge of water features and stream corridors should be in
forest cover to further the ecological and environmental
benefits, as stated in the Riparian Corridor Conservation
Overlay District (RCC). To promote re-establishment of forest
cover and woodland habitat, new tree plantings shall be
implemented in Zone One wherever existing trees do not meet
the minimum tree planting requirements.
B. Planting Requirements
1. New trees shall be planted at a minimum rate of 15 feet on
center or one tree per 225 square feet in staggered rows or
an equivalent informal arrangement within the area defined
as Zone One by the RCC.
2. New trees shall be a variety of sizes ranging from a
minimum 4 to 5 foot branched whip to an approximate l
1/2 " balled and burlapped planting stock.
3. New tree plantings shall be composed of native tree
species.
4. Tree plantings shall be located along the streambank to
provide shade for the stream, soil erosion control and
stormwater benefits, according to accepted streambank
restoration practices.
5. Existing trees within Zone One shall be preserved and
retained. Existing tree cover should be surveyed and
inventoried to assess the need for any new plantings.
Existing tree species included on the noxious/invasive
plant species list, Appendix C, may be removed where
conditions warrant.
10
Integration of the Riparian
Corridor Conservation Overlay
District into the municipal
zoning ordinance should be
complemented by the adoption
of specific landscape standards
within the municipal
subdivision and land
development ordinance.
The required plantings will help
to enhance or re-establish a
vegetated riparian buffer,
maximizing water quality
benefits.
Plantings installed as part of
the subdivision and land
development process will
provide visual cues to future
property owners by providing a
distinction between the riparian
corridor and the remaining lot
area.
If the riparian corridor is to be
ultimately managed by
numerous private owners, the
municipality should provide or
arrange for continued
education of property owners
regarding th e benefits of
riparian corridors and proper
management and stewardship.
Sample Creek Ordinance (City of Frisco, TX)
8.6 Greenways
A. Base Flood Plain Restrictions -For the health, safety, and welfare
of the present and future population of the City and for the
conservation of water, drainage, and sanitary facilities, the City
prohibits development of any portion of the property which lies
within the Base Flood Plain of any Major Creek. These Major Creeks
shall be preserved from any and all destruction or damage
resulting from clearing, grading, or dumping of earth, waste or
material, or stumps, except at the discretion of the City.
B. Major Creek Restrictions -The Major Creeks shall be in an open
natural condition beginning at the headwater (as determined by
the Federal Emergency Management Agency and/or the U.S. Army
Corps of Engineers) of each Major Creek. Each Major Creek is
subject to the following requirements:
1. For single-family residential developments the Base Flood Plain must
be dedicated on a final plat to the City as a single lot or to an
approved homeowner association (HOA), approved by the City,
pursuant to Subsection (b). The Base Flood Plain shall not be
contained in a single-family residential lot. The City Council may
waive this dedication requirement for replats that were originally
platted prior to the adoption of this requirement.
2. For single-family residential developments where the Base Flood
Plain and/or Access Dedication is owned and maintained by an HOA.
The HOA's by-laws and covenants, which must be approved by the
City and filed of record in the county land records where the property
is located, shall provide:
a. for City access for emergency vehicles, equipment and personnel
and to improve and/ or maintain the Base Flood Plain and Access
Dedication in the event they are not being properly maintained
as determined by the City Engineer, and
b. provide that the HOA shall reimburse the City for any and all
costs incurred by the City for maintenance.
The final plat shall contain the following:
c. an easement allowing the City access for emergency vehicles,
equipment and personnel and to improve and/or maintain the
Base Flood Plain and/or Access Dedication in the event they are
not being properly maintained as determined by the City
Engineer; and
d. an obligation that the HOA shall reimburse the City for any and
all costs incurred by the City for maintenance.
3. For non-residential developments, the Base Flood Plain and/or
Access Dedication must be dedicated on the final plat as a single lot
to the City or to an approved property management entity. The City
Council may waive this dedication requirement for replats that were
originally platted prior to the adoption of this requirement.
4. For non-residential developments where the Base Flood Plain and/or
Access Dedication is owned and maintained by an property
management entity and/or the property owner. The final plat shall
contain the following:
a. an easement allowing the City access for emergency vehicles,
equipment and personnel and to improve and/or maintain the
Base Flood Plain and/or Access Dedication in the event they are
not being properly maintained as determined by the City
Engineer; and
b. an obligation that the property management entity and/ or the
property owner shall reimburse the City for any and all costs
incurred by the City for maintenance.
C. Residential Development Criteria Along Major Creeks:
1. A minimum of sixty percent (60°/o) of the linear frontage of the Base
Flood Plain and/or Access Dedication in each final plat shall have
adjacent to it one (1) or more street.
2. Any lot that sides to the Base Flood Plain and/or Access Dedication
shall have a side yard setback of fifteen (15) feet.
3. A maximum of forty percent ( 40°/o) of the linear frontage of the Base
Flood Plain and/or Access Dedication in each final plat may have lots
backing to a Major Creek. When a lot backs to a Major Creek the
following is required:
a. Any lot that backs to the Base Flood Plain and/or Access
Dedication shall have a rear yard setback of twenty-five (25)
feet;
b. The Base Flood Plain and/or Access Dedication shall be available
to public access from the end of a cul-de-sac.
4. The criteria above do not apply to properties which have an approved
concept plan that is part of a planned development ordinance
adopted prior to the effective date of this Ordinance; provided,
however, said properties are subject to the following conditions:
a. Any lot that backs to the Base Flood Plain and/or Access
Dedication shall have a rear yard setback of twenty-five (25)
feet;
b. Any lot that sides to the Base Flood Plain and/or Access
Dedication shall have a side yard setback of fifteen (15) feet.
c. The Base Flood Plain and/or Access Dedication shall be available
to public access from the end of a cul-de-sac.
5. Properties adjacent to a golf course that exists or is under
construction on the date of filing a preliminary plat shall be allowed
to have lots backing to the Base Flood Plain and/or Access
Dedication subject to the following conditions:
a. Any lot that backs to the Base Flood Plain and/or Access
Dedication shall have a rear yard setback of twenty-five (25)
feet;
b. Any lot that sides to the Base Flood Plain and/or Access
Dedication shall have a side yard setback of fifteen (15) feet.
c. The Base Flood Plain and/or Access Dedication shall be available
to public access from the end of a cul-de-sac.
6. Residential lots that are allowed to back or side to the Base Flood
Plain and/or Access Dedication shall have an ornamental metal fence
along the rear and side of the lots subject to City review and
approval. The lot owner is responsible for the maintenance of the
fence.
7. A no-build and preservation easement(s) shall be provided on lots
and open space lots as shown on the final plat to preserve
topography and vegetation (the "no-build and preservation
easement(s)"). A minimum twenty (20) foot building setback shall
be provided adjacent to the no-build and preservation easement(s).
Pools and decks shall be permitted within the twenty (20) foot
setback, but not in the no-build and preservation easement(s),
within the platted lot, and shall meet the minimum setbacks as
specified in the Zoning Ordinance, and any amendments thereto.
Neither grade changes nor vegetation removal shall occur within the
no-build and preservation easement(s) without prior City Engineer
approval.
8. At the request of the City, the property owner shall submit the
following documents with the preliminary plat that includes property
along a Major Creek:
a. Wetland Delineation Study;
b. Habitat Study; and
c. Vegetative Study
These studies shall be considered in the review of the preliminary plat
regarding development along a Major Creek.
D. Maintenance and Access Dedication -The property owner must
provide sufficient access on each side of and parallel to the Base
Flood Plain of each Major Creek for City access for emergency
vehicles, equipment and personnel and to improve and/or
maintain the Base Flood Plain. The access shall be above the Base
Flood Plain elevation. Streets and alleys abutting the Base Flood
Plain may substitute for the Access Dedication subject to City
Engineer approval. The minimum width of the Access Dedication
shall be twelve (12) feet. Permanent monuments, the type and
location of which will be determined by City Engineer, shall be
placed by the property owner along the boundaries of the Access
Dedication and private property.
City of San Antonio (http://www.sanantonio.gov/clerk/boards/Book.pdO
Linear Creekway Parks Advisory Board
provides input and advice on acquisition and appropriation of linear parks
along major creeks, rivers, and tributaries
Watershed Improvement Advisory Committee (WIAC)
-creating a Watershed Master Plan
City of San Marcos
Drainage Advisory Board
o For more information, contact the City Clerk's office at City Hall at
393-8090
City of Austin (http://www.ci.austin.tx.us/boards/results.cfm)
Environmental Board
Purpose: To act in an advisory capacity on all projects and programs which affect the quality
of life for the citizens of Austin and to make recommendations for standards and
recommend and initiate specific studies. (Section 2-4-271 of the Austin City Code).
Membership: Professional expertise in land planning or ecology
City Staff:
City of Allen
A member of the Barton Springs-Edwards Aquifer Conservation District
Citizens
Professional expertise in civil engineering
Professional expertise in geology
Professional expertise in hydrology
Roderick Burns, Watershed Protection Development Review Department, (512)
974-6338
-no boards dealing with drainage issues
City of Denton
Storm Drainage Details
http://www.cityofallen.org/engineering/Details StormDrainage.pdf
North Central Texas COG -Regional Stormwater Management Program
Committee
o http://www.dfwstormwater.com/rswmcc/meetings.html
North Central TX COG -Water Reources Council
o http://www.nctcog.org/envir/committees/wrcl.html
o Primary Responsibilities: The Water Resources Council, established in
1979, advises NCTCOG's Executive Board on both technical and
policy issues related to water resources matters. The committee
reviews day to day technical issues; oversees the water resources
" .
City of Frisco
planning process; and performs technical review of water related grant
applications.
• There are a few boards in Frisco, but I don't think they deal with
drainage/greenways/flood control.
• Here is a link to the Frisco boards
http://www.friscotexas.gov/citysecretary/boards commissions.html
Boards Outside of Texas
Edmond, OK http:i/'.,"'-"'",.Y.c1 .ed.n1ond.ok.usicity_ cfficin !s/bo[:rds. htn1 !1tstor!11
Stormwater Drainage Advisory Board: Latest Am;nda
Tnis board meets on the third Tnursday or every month at 4pm in room 104 of the
Pianning and Public Works Building iocated at 10 South Littler. There are five
members on the board. Tne purpose is to provide an exchange of information
bev;.ieen the public and city officials on flooding and stormwat~r drainaa~
problems within the city. The board acts as an advisory body to the Cit;; Coum:il in
regards to stormwater and floodplain studies and projects. It also hears and
considers appiications for variances and appeais from decisions of the city staff
pertaining to Title 23 (stormwater and f!oodpiain ordinances) and make
recommendations to City Council.
&;" ... ,.,; ... _",... .. ;_,., ""'_"" .... _"' .... ~I l'Wll n;;;:c;;a II IW l.#~&.101 Lii 1.,;;;1 I'"
City of Colorado Springs (11iin:/ /•1-.--.v-.;;pn;;;r;;;mY. c0m/CCDT nde:,_a;;n 7CCDTD=7)
City/County Drainage Board
The Qty/County Drainage Board, consisting of seven members, acts as an advisory
board to Gty Council and the Board of County Commissioners regarding ( 1)
subdivision codes and regulations relating to the drainage and control of flood and
surface waters and {2)administration of the Subdivision Storm Drainage Funds. The
Board also works dosely with the Oty Engineer and the County Engineer.