Charlotte City Council Environment Committee Meeting Summary for November 6, 2006 COMMITTEE AGENDA TOPICS I. Subject: Floodplain Management Ordinance Revisions No action. II. Subject: Next Meeting November 20, 2006 at 1:00 p.m. in Room 280 COMMITTEE INFORMATION Present: Absent: Time: Anthony Foxx, Susan Burgess, Nancy Carter, and Don Lochman Pat Mumford 2:15 p.m. to 3:40 p.m. ATTACHMENTS 1. Agenda Package Environment Committee Meeting Summary for November 6, 2006 Page 2 DISCUSSION HIGHLIGHTS Committee Discussion: Council member Foxx welcomed everyone to the meeting and asked attendees to introduce themselves. City Attorney, Mac McCarley then introduced Rob Phocas, the City’s new Environmental Attorney. I. Floodplain Management Ordinance Revisions Council member Foxx asked Dave Canaan to begin his presentation (copy attached) but first asked him to remind the Committee the purpose of this update. Mr. Canaan responded that this was approximately the fifth meeting the Committee has held on this subject. Today’s update is to provide feedback from the neighborhood notifications, discuss any government liability for levees, the substantial improvement flexibility and floodplain property disclosure. Other items for today include an update of the Chantilly Study and floodplain map maintenance. Mr. Canaan said there was an approximately 10,000 piece mailing that went out to property owners. It went to owners of vacant property in the floodplain, owners with compliant structures in the floodplain and owners with structures that are below the regulations. Following one the September 18 Committee meetings, another 750 piece mailing was sent out to neighborhood associations. We have received feedback from 10 citizens/neighborhoods. A table was included in your agenda that details the person who made contact, their question and our feedback. Over the weekend, several of you may have received another comment from someone that was not included in the table. Burgess: Who? Canaan: Mr. Woodlief. Dwyer: Would it be possible for us to get a copy of the actual comments? The details listed in the table seem incomplete. Foxx: Is there more detail? Dwyer: We would like to see your responses because we have some of the same issues and concerns. So, we would like to see documentation of the specific conversations or emails. Tingle: I can send those to you. The notes in the feedback are my notes. Environment Committee Meeting Summary for November 6, 2006 Page 3 Dwyer: Is there documentation of telephone conversations? I’m asking for the susbstance of the comments. Tingle: You can have what I have. Mr. Canaan asked the Committee to refer to the table. As you can see, the comments vary. One of the questions about vesting is still being researched by the City Attorney’s office. Burgess: When Merry Oaks asked about impact what was the answer? Tingle: We explained the changes to the ordinance and what the possible impacts could be. We discussed dryland access and gave them a general description. Burgess: How many homes along Briar Creek are impacted? Tingle: Many. Burgess: I’m asking because I’m working the City bond campaign there tomorrow. Dwyer: Did the 10,000 piece mailing go out in September? Canaan: No, late June. Dwyer: 1,000 homes are in the FEMA floodplain and 600 homes are in the community encroachment area. All 1,600 of those homeowners can’t rebuild now without a variance with the substantial improvement rule. The structure of my home is $41,000, but the assessed value is $171,000. The window is 50% of the structure, which means I can’t do more than $20,000 worth of improvements (roof, bathroom, kitchen). Did you send notification to all 1,600 affected homeowners? Canaan: They should have fallen into one of the three categories. We provided the website and phone number for homeowners to see the proposed changes to the ordinance or call for more information about how the changes might specifically affect them. Dwyer: But, did you send it to those specifically impacted because I don’t remember getting anything? Foxx: I would like to request that we get through the rest of this presentation and there will be an opportunity to address substantial improvement later. Mr. Canaan then turned the presentation over to Jude Starrett, City Attorney, to discuss Environment Committee Meeting Summary for November 6, 2006 Page 4 the levee government liability. A year or so ago, the City looked at a standalone levee policy, but then the County adopted one. We determined the floodway regulations address levees. They are not something we want to encourage, and the City has no regulatory control over levees. We discussed possibly permitting levees. The property owner would have to get an engineering “seal” for construction, they would have to agree to be responsible, and then they would have to submit a revised form each year. There would also be an annual inspection. But, that leads to what if the property owner doesn’t submit an annual update, what action would we take? We could have a tickler system that triggers a notification process which gives the property owner 30 days. But, if the form doesn’t come in, what is the enforcement? Do we allow the levee to stay if it is no longer approved? So, those are some of the things we looked at. The bottom line is the property owner is financially responsible for the levee because it is a private feature. Burgess: How much would a professional inspection cost? Starrett: I would not venture to estimate cost. It depends on how long the berm is. There is a mechanism for calculating model height impacts. Burgess: Could we do that ourselves and charge 100% recovery fee? Starrett: We could do that. One of the important things to note is we are not encouraging levees. We will not do anything to accept financial or maintenance responsibility. But, there is nothing to restrict folks from building levees either. Carter: We do not assume any liability? Are we at risk in any way? What if the Homeowner’s Association evaporates and we are left with a berm? What is that cost? There would have to be administrative costs and how do we recoup those? Recordkeeping is also not covered. Starrett: The permitting is handled by the County. Yes, there is staff time involved. The annual submission may have a permitting fee. As for potential dissipation of a homeowner’s association, there is some legal entity listed as the responsible party. If the entire neighborhood was dissolved and no one stepped up to the plate, then what do you do? Well, liability is a broad question. We regulate a lot of things. An example would be a commercial driveway. We don’t represent that it was built solidly or that it won’t create a hazard. We don’t assume liability if there is no representative to say a berm is safe. There may be some liability insurance that kicks in. Environment Committee Meeting Summary for November 6, 2006 Page 5 Blackwell: If Engineers are looking at the levee, they will seal that it is safe. Burgess: Could we consider a bond if a Homeowner’s Association was dissolved? Starrett: No. The level of administrative review on bonds would require direct action, then surety. We do not want to assume any responsibility. Burgess: How many levees do we have have? Canaan: We are aware of four, maybe five levees. The County has built two of them; one in Pineville and the floodwall at the old Piedmont Courts. There are some private levees. The proposed changes clearly outline that if a private property owner builds a levee, they are responsible for maintenance and the same holds true for the public. Mr. Canaan then continued with the Substantial Improvement Rule section of his presentation. Foxx: My house was built five years ago. What if there were height restrictions in the neighborhood, but I have to elevate the bottom of my house. Could I end up bumping up against the height elevation? Canaan: I haven’t seen that situation. But, there would be a variance through the zoning ordinance or floodplain ordinance. Foxx: Could you try and track something down on that? Lochman: When you look at the options for substantial improvement there are a couple of pros, but the cons actually make sense. Will we eventually get a recommendation from staff on these? Canaan: I can give you a recommendation today. Lochman: Well, the pros are positive, but the cons are rational. Burgess: Do you need a permit to fill in the floodplain? Canaan: Yes, for any development in the floodplain. Burgess: By developing some properties, doesn’t that serve as a levee? Can’t you elevate a strip by development? Canaan: Levees have water on both sides. Burgess: What kind of restrictions are there for development? Environment Committee Meeting Summary for November 6, 2006 Page 6 Canaan: There aren’t any in the encroachment zone. Burgess: So, those would be automatically permitted? Canaan: If they meet the other requirements for a floodplain, yes ma’am. Foxx: Does the rule run with the current property owner or the property itself? Canaan: The property. Carter: But, it could be 25% of the original value? Canaan: Right, it could be 25% of the value before the event occurred two times. Foxx: Where does the 50% come from? Canaan: That is the FEMA standard. Foxx: Who determines the value? Canaan: We start with the tax value. The property owner will usually ask for an appraisal because the property is worth more. Dwyer: Is the cost born by the homeowner to do that? Canaan: Yes. Lochman: Do the existing guidelines provide for an exceptional hardship? Canaan: The next slide shows the factors for consideration. Carter: As an addendum to that list, have you considered economic development reasons? For instance, the City is promoting development in the area of Independence Boulevard. Canaan: We would weigh that against the other factors. The order of this list does not specifically give more or less weight to economic development. Carter: You should also look at the land use plans. Foxx: I would like to reiterate Council member Lochman’s suggestion that it would be helpful to have staff’s recommendations. Environment Committee Meeting Summary for November 6, 2006 Page 7 Canaan: Well, I can tell you our recommendation would be to keep the rule as it is today. We would recommend none of the options. It is unfortunate that there are 1,600 homeowners caught though. McAuliffe: There are 17 people that purchased homes in Chantilly after 2003 that did not know their homes could not be improved. Foxx: Thank you, but let us get through the presentation. Burgess: Well, if the realtor they used did not know, they should have known and there should be some action they could take. Sprinkle: The City is liable for non-disclosure. Burgess: Can we flag what we know about floodplain status to ensure property owners have disclosure? Foxx: In the interest of time, can we move to the Chantilly study? Mr. Canaan stated that the results of the study showed little impact on flood heights in Chantilly (less than an inch) and that a culvert through the railroad embankment actually increases flood heights downstream. He continued with a brief overview of the floodplain mapping cycle, which essentially starts with City Council adopting a land use plan or rezoning and ends with City Council adopting flood insurance rate maps. The current maps were drawn up in 2000. We are working on a strategy to re-map. Carter: The new mapping will be a one time effort? Or, will it be done every time there is a rezoning? Canaan: To date, it has been a one-time method. We are working on criteria that can be continuously applied, so we do not have to re-map every time there is a rezoning. There is fine line in getting the maps right and we tend to be more conservative. Carter: Does the community encroachment area give more realization of actuality? Canaan: It is more realistic or gives us safer assumptions. Burgess: I’d like to go back to the Chantilly Study Update slide; did the study call for a retention pond? Environment Committee Meeting Summary for November 6, 2006 Page 8 Sprinkle: Our original plan called for a water park. The retention pond would take the pressure off the condemned CSX levee. There is impending danger there and the City could be criminally negligent if something happens. I don’t think we’ve been heard by staff. There is 50% error on 75% of what they have been saying. Burgess: The study shows only little impact, like one inch? Sprinkle: It is 4 inches below. You could take all the properties out of the floodplain including Midwood and Morningside with our suggestions. Burgess: Where is the second pond? Sprinkle: At the Mint Museum. Burgess: What is your plan? Sprinkle: Exactly what was presented in the Dewberry Report. Burgess: What is staff’s response to two ponds? Canaan: They are not retention ponds. My impression from some of Mr. Sprinkle’s comments is he is combining two or three reports into one. Sprinkle: We came up with the exact same plan as they paid $250,000 for a consultant to come up with. McAuliffe: I think what Mark is trying to say is we presented an idea of a water retention pond upstream and expected staff to look at it, to take the ball and run with it. Sprinkle: You have not given us a plan of solution. Foxx: May I suggest that we have a meeting with you [Chantilly neighbors] and staff and see if we can’t figure out what the breaking points are here and see if we can’t flesh out some of these issues? Lochman: Could you take the assertions that have been put forward and as succinctly as possible show where you don’t agree? Canaan: The floodplain regulations were adopted in 2000 and the maps are a community tool that is out there. Individuals should have been more informed about what they were buying and should look at why that wasn’t disclosed. Could we make some improvements? Sure, but there is a Environment Committee Meeting Summary for November 6, 2006 Page 9 certain level of responsibility that belongs to the owner purchasing a property. McAuliffe: You said there was one property owner that substantially improved their property? Canaan: Yes, we did not stop their improvements. Dwyer: SWAC determined the problem was new development that has been permitted by the City and County. You need to look at that. All you’ve done is removed my ability to do anything and I didn’t know that when I purchased my property. Sprinkle: It wouldn’t have helped. Dwyer: The floodplain is changing due to new development. I don’t understand these decisions. Sprinkle: Back in March the process went through City Planning to the County. City Planning didn’t know about any of this. They haven’t known anything for six years. Lochman: Is it staff’s opinion in those 17 circumstances, most people did not exercise good due diligence? Is there any level of flexibility for those 17 homeowners without creating any negative precedence financially? Could staff bring us some potential things we could do? Dwyer: Foxx: Dwyer: Burgess: Dwyer: Foxx: The impact to my wallet is the same as those 17. Are you in the community encroachment area? When they fish people off the rooftops, they come down my street. We know of the 17 and those in Chantilly, but there could be hundreds affected. Those 17 were in the last three years. There have been 17 in Chantilly in the last three years, so the question worth asking is can we create some flexibility for the 600 in the community encroachment area that gives them some comfort? Can we apply the firmer rules to new construction? Can we true up what development is going to do over time to the best of our calculations? Will the community encroachment area become FEMA lines at some point? Is there something we can do to give some flexibility? Chantilly has really Environment Committee Meeting Summary for November 6, 2006 Page 10 helped us in the process with the substantial improvement and notices. We are not done with this. What I would suggestion would be a meeting with the Chantilly neighbors, staff and interested Committee members before the next meeting. Then, I think we should look at: 1. 2. 3. Staff assertions Recommendations on other issues. We see the proposed changes, but what was the staff input into the regulations, was it stormwater, planning, etc.? Who is making the recommendation? The Committee needs to determine what we want to pursue. Dwyer: II. I’d like to suggest an evening meeting with the neighbors. Middle of the day meetings are hard on our schedules. Next Meeting: The next meeting conflicts with the City Attorney’s evaluation. The Committee agreed to adjust the time back from 3:30 to 1:00 p.m. They canceled the December 4 meeting due to the conflict with the half-day Council Retreat. The December 18 meeting stays as scheduled [3:30 p.m. in Room 280]. Meeting adjourned. The next meeting is Monday, November 20, 2006 from 1:00 p.m. to 2:30 p.m. in Room 280 Environment Committee Monday, November 6, 2006 – 2:00 p.m. Charlotte-Mecklenburg Government Center Room 280 Committee Members: Anthony Foxx, Chair Patrick Mumford, Vice Chair Susan Burgess Nancy Carter Don Lochman Staff Resources: Julie Burch AGENDA I. Floodplain Management Ordinance Revisions – Dave Canaan and Tim Richards Staff will provide additional information on the following: final feedback from neighborhood notifications; government liability for levees; options for providing flexibility under the “substantial improvement” provision; floodplain property disclosure; floodplain map updates; and the Chantilly study update. Staff seeks Committee feedback and consensus on any outstanding categories of issues or questions. At the November 20 meeting, staff will provide any additional information necessary and the recommendations for Committee action on the revisions to the floodplain management ordinance. II. Next Meeting: November 20, 2006 / Time TBD* * The meeting is currently scheduled for 3:30 and that conflicts with the City Attorney’s Evaluation. Agenda: Floodplain Management Ordinance Recommendations Attachments: Presentation: Floodplain Ordinance Proposed Revisions Summary of Homeowner Association and Other Comments Distribution: Mayor/City Council Mac McCarley Environmental Cabinet SWAC Members Pamela A. Syfert, City Manager Leadership Team Keith Henrichs Brenda Freeze Environmental GDP Stakeholders PCCO Stakeholders Charlotte-Mecklenburg Storm Water Services Floodplain Ordinance Proposed Revisions City Council Environment Committee Meeting November 6, 2006 Agenda – Floodplain Ordinance Floodplain Ordinance Revisions 6 6 6 6 Feedback from Neighborhood Notifications Government Liability for Levees Substantial Improvement Flexibility Floodplain Property Disclosure Other Floodplain Items 6 6 Chantilly Study Update Floodplain Map Maintenance Neighborhood Notifications 6 6 6 6 10,000 piece mailer prior to Public Hearing Notification to Neighborhoods mailed on September 22 - 750 pieces Received feedback from 10 groups See Summary Table (handout) Levee Government Liability 6 6 Follow-up to last Committee meeting Discussion among Committee members and Charlotte Legal staff Substantial Improvement Rule 6 Approximately 1600 existing buildings are restricted by the Substantial Improvement rule 6 1000 buildings below FEMA flood heights 6 600 buildings below Community flood heights 6 FEMA minimum requirements (1000 buildings) 6 50% Substantial Improvement threshold 6 Elevate/rebuild to FEMA flood heights 6 Ordinance Flexibility 6 Existing and proposed ordinance 6 Requesting a variance through the City Zoning Board of Adjustment Substantial Improvement Rule 6 Option: Lessen Requirement on height of Substantially Improved structures (1600 buildings) PROS 6 Cost savings 6 More flexibility with exterior appearance CONS 6 Inequitable – new vs. existing buildings 6 Building with greater value may flood in the future 6 Owners may eventually need to purchase flood insurance 6 Structure may not qualify for flood buyout or elevation funding 6 Owners may be subjected to the Substantial Improvement rule again Substantial Improvement Rule 6 Option: Relax Substantial Improvement 50% percentage threshold (600 buildings) PROS 6 Cost savings 6 May improve short-term “marketability” 6 Property owners could make larger improvements CONS 6 Inequitable – new vs. existing buildings 6 Building with greater value may flood in the future 6 Owners may eventually need to purchase flood insurance 6 Owners may be subjected to the Substantial Improvement rule 6 Questionable if owner of building will make demo/rebuild compliant Substantial Improvement Rule 6 Conditions for Variance (Section 9-87) Variances shall only be issued upon: (i) a showing of good and sufficient cause; (ii) a determination that failure to grant the Variance would result in exceptional hardship; and (iii) a determination that the granting of a Variance will not result in increased flood heights (unless the requirements of Section 9-102 (a)(6) are met), additional threats to public safety, extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with other existing local laws or ordinances. The fact that the property could be utilized more profitably or conveniently with the Variance than without the Variance shall not be considered as grounds for granting the Variance. Substantial Improvement Rule 6 Factors for Variance Consideration (Section 9-85) Materials being swept away Danger to life and property Susceptibility to flood damage Importance of services to the community Necessity of the facility to be waterfront Alternative locations available Compatibility with current and future development Relationship to Floodplain Guidance Document, Hazard Mitigation Plan, Greenway Master Plan and other adopted landuse plans 6 Safety of access during flood event 6 Flood heights, velocities, duration, etc 6 Costs of government services during and after a flood event 6 6 6 6 6 6 6 6 Substantial Improvement Rule 6 Option: Additional Factors for Variance Consideration 6 Amend Ordinance to possibly include additional factors – Substantial Improvement projects only – Only buildings that are above FEMA flood heights (600 buildings) – ZBA should also consider….. – Building height that is above FEMA, but below Community flood heights – Age of the floodplain map – Amount of development that has occurred in the watershed 6 Same PROS and CONS previously mentioned Summary – Substantial Improvement 6 6 6 Options related to building heights, improvement thresholds Flexibility through Variance Process (currently and options) Eliminate Community Floodplains 6 Require extended detention on all new impervious area 6 Discussed through Post Construction Control Ordinance, if needed 6 Support the review of programmatic strategies 6 Update Flood Mitigation Plans to recommend other mitigation options in the future 6 Create community funded program to assist owners with additional cost of bringing buildings into compliance Floodplain Property Disclosure 6 Homeowner Awareness (currently) 6 Prior to property purchase (POLARIS and Floodzone Lookup) 6 Prior to design of improvements 6 During design process (Architect/Engineer) 6 Entering building permit application process Floodplain Property Disclosure 6 Options for Increasing Awareness 6 More specific notices to owners of buildings 6 Notices attached to deed 6 Notification through Charlotte Multiple Listing Service 6 Changes to NC Real Estate Disclosure Form Ordinance Questions, Comments, or Discussion? Chantilly Study Update 6 Proposed Project 6 Excavation of soil for retention/storage 6 Assumes Cavalier is acquired/demolished 6 Results 6 Little impact on flood heights in Chantilly (less than an inch) 6 Culvert through RR embankment increases flood heights downstream 6 Additional discussion on mapping assumptions, frequency of remapping Floodplain Mapping Cycle CITY COUNCIL ADOPTS LAND USE PLAN OR REZONING CITY STAFF UPDATES DISTRICT PLANS CITY COUNCIL ADOPTS FLOOD INSURANCE RATE MAPS CITY/COUNTY STAFF REVIEW DISTRICT PLANS COUNTY STAFF CREATE FLOOD INSURANCE RATE MAPS Floodplain Map Updates 6 Floodplain Maps 6 Used to rate insurance and regulate development to be reasonably safe from flooding 6 No guarantees – Mother Nature does not read floodplain maps! 6 Based on many assumptions (examples) – – – – Impervious area - existing and future development Soil conditions Rainfall amounts Overall ability to pass floodwaters – Channel size and condition – Bridge and culverts sizes – Overbank areas Floodplain Map Updates 6 Support the implementation of a Floodplain Re-mapping Strategy 6 Develop criteria to determine which watersheds to remap 6 Apply criteria to develop proposed budget 6 Incorporate the request into the FY08 SWAC and BOCC budget process 6 If approved, utilize Mapping Cycle Thank You Summary of Homeowner Association and Other Comments Date Name Neighborhood Floodplain in Neighborhood (y/n) 7/24/2006 Michael Boland Southbridge Neighborhood Y 9/28/2006 President Ritch Avenue HOA Y 9/28/2006 10/10/2006 Andrew Krewson Sylvia L. Nance Merry Oaks College Downs Y N 10/10/2006 Constance Kovach Marlwood Acres Y 10/10/2006 Lisa Fay Prosperity Village Town homes Y 10/11/2006 Ashland Kelker Huntingtowne Farms Y Questions/Feedback Meeting Requested (y/n) Requested general presentation on the ordinance. Staff Action: Attend Nov 20 Neighborhood Association Meeting Pleased with past work on L. Sugar Creek in past. Would like to be kept in the loop with floodplain issues. Staff Action: No Action Needed 1. What is schedule for ordinance changes ? 2. Will revisions to Briar Creek flood maps impact property in Merry Oaks? 3. What has been discussed at previous Environment Committee meetings? Staff Action: Responded to his questions with an email explanation of concerns. Unwise to "relax" regs, supports more stringent regulations especially with regard to permit time limits, floodplain fill certification and elevation requirements on parking lots. Staff Action: No Action Needed Concerns with storm drainage and lakes in neighborhood. No comments specifically on ordinance revisions. Would kike to be kept informed. Staff Action: Discussed concerns via phone. Supports parking lot requirements. Internal storm drainage problems in complex. Staff Action: Discussed concerns via phone. Support notification of surrounding property owners, permit time limits, impacts on existing buildings, floodplain fill certification, standards for electrical, plumbing, mechanical, plumbing. Not enough time to evaluate "Dryland Access" requirements. Staff Action: Sent email requesting a phone call to discuss concerns. No response at this time. N N N N N N Date 10/23/2006 10/25/2006 4/06 - Present Name Neighborhood Karla Knotts Mary Thompsen Developer REBIC Tracy Allen (Ted Fillette) Wonderwood, Shasta, Willhaven, Meadowood Mark Sprinkle/Jason McAullife Chantilly Homeowners Association Floodplain in Neighborhood (y/n) N/A Y Y Questions/Feedback Concern with a variety of issues. Staff Action: Discussed issues via phone. Ordinance Revision Issues: City attorney researching "vested" issues. Explained property owner notification requirements. Explained proposed levee requirements. Staff agreed to place plan review and turn around time requirements in the Technical Guidance Document. Non-Ordinance Revision Issues: Explained evolution of various Floodplain lines on adopted maps. Explained how CRS savings were calculated. Explained attached garage requirements. Discussed the possibility of requiring the Technical Guidance Document be approved by SWAC. Explained some of the questions about ordinance changes costs. There were several questions about proposed FDP fees which I explained were not part of these ordinance Majority of questions concerned effect of detention/retention ponds on flooding. Especially with regard to two rezonings in area. Staff Action: Discussed flood ordinance and rezoning issues via phone. Attending an upcoming neighborhood meeting. Concern with a variety of issues. Staff Action: Staff has spoken at one neighborhood association meeting. Staff has hosted two additional neighborhood public meetings. Met with neighborhood representatives on at least 6 occassions. Ordinance Revision Issues: Substantial Improvement requirements, Dryland Access requirements, parking for new non-residential building requirements. Non-Ordinance Revision Issues: Mapping future floodplains, notification of floodplains on property, impact on property values, enforcement of regulations. Meeting Requested (y/n) N Y Y