HomeMy WebLinkAboutAgenda - 01-23-2007-8aORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: January 23, 2007
Action Agenda
Item No. _8- c" _
SUBJECT: Amendment to the Flood Damage Prevention Ordinance
DEPARTMENT: Planning & Inspections PUBLIC HEARING: (YIN) CY?
ATTACHMENTS:
Flood Damage Prevention Ordinance Text
Revisions
January 23, 2007 Public Hearing
Advertisement
December 7, 2006 letter from William R.
Blanton, Jr. (FEMA)
September 14, 2005 Letter from Assistant
. Attorney General
December 12, 2006 County Attorney
Letter
Overlay of 2007 FIRM and 1981 FIRM
INFORMATION CONTACT:
Craig Benedict, Director, 245 2592
Glenn Bowles, CFM 245 2577
PURPOSE: To:,
1. Hold a Public hearing,
2. Close the Public Hearing,
3. Consider an amendment to the Flood Damage Prevention Ordinance (FDPO), and
4. Authorize staff to initiate the Zoning Ordinance amendment process to incorporate the
Flood Insurance Rate Map (FIRM) into the Zoning Ordinance as a new overlay district
and to incorporate the FDPO into the Zoning Ordinance by reference.
BACKGROUND: The proposed amendment to the County's FDPO is a Federally mandated
change and is necessary in order to incorporate the newly revised Flood Insurance Rate Study
and FIRM for Orange County into the FDPO. The September 14, 2005 letter from Cheryl A.
Perry and the December 12, 2006 letter from the County Attorney's office both state that the
FDPO must specifically reference the effective date of the new FIRM. Further, staff to the North
Carolina Floodplain Management Branch of the Division of Emergency Management has
requested that Orange County revise its FDPO to specifically cite the effective date of the new
FIRM after holding a public hearing on the proposed amendment.
The proposed date change amendment to the FDPO will meet the technical requirements
requested by FEMA and the State Floodplain Mapping Program. Orange County must adopt a
revised FDPO that specifically references the February new FIRM prior to February 2, 2007 in
order to remain eligible to participate in the National Flood Insurance Program.
Planning Staff also requests that the BOCC authorize staff to initiate the Zoning Ordinance
amendment process to incorporate the FIRM into the Zoning Ordinance as a new overlay district
2
and to incorporate the FDPO into the Zoning Ordinance as suggested by the September 14,
2005 letter from Cheryl A. Perry and the December 12, 2006 letter from the County Attorney's
office.
The BOCC adopted the original FDPO in March 1981, with amendments in 1995 and October
2005. Since May 2004, the Division of Emergency Management has been remapping the
Orange County floodplains for inclusion in the FDPO. As of February 2, 2007, new FIRMs
applicable to the County will become effective and will replace maps that have been in effect
since March 16, 1981. Section 42-38 of the existing ordinance states, "The Special Flood
Hazard Area are those identified by the FEMA ... and its accompanying flood maps ... for
Orange County dated March 16, 1981, which with accompanying supporting data, and any
revision thereto, ... are adopted by reference and declared to be a part of this Ordinance."
Thus, the need arises to amend of the existing FDPO to specifically cite the effective date of
February 2, 2007, rather than to retain the present March 16, 1981 date. The draft ordinance to
amend the FDPO text is attached.
Letters of map amendment and conditional letters of map amendment approved since 1981 are
incorporated into the new FIRMs, effective on February 2, 2007. New map amendments and
no-rise certificates for culvert and bridgework after the effective date will be made part of the
FIRMs, with technical documentation.
The Planning Board met on Wednesday, January 3, 2007, at their regular meeting and
recommended that the BOCC approve the proposed FDPO amendment to reflect the effective
date of the new FIRMs. The nine members in attendance voted unanimously to recommend
approval.
This public hearing is the first step in the implementation process of ensuring that flood hazard
potential is reduced. The new maps show little change in the riverine flood plain. As the
process of implementation continues, additional community outreach, beyond what has been
conducted by the State's floodplain management branch and County staff will be scheduled.
The zoning maps will be amended pursuant to a future quarterly public hearing process.
FINANCIAL IMPACT: The Planning and Inspections Department has budgeted for Public
Hearing advertising costs.
RECOMMENDATIONS: The Administration recommends that the Board
1. Hold a public hearing,
2. Close the public hearing,
3. Approve an amendment to Section 42-38 of the Orange County Code of Ordinances, the
Flood Damage Prevention Ordinance, to reflect the effective date of the new Flood
Insurance Rate Map, and
4. Authorize staff to initiate the process to incorporate the Flood Insurance Rate Maps
(FIRMs) into the Zoning Ordinance as a new overlay district and to incorporate the
FDPO in the Zoning Ordinance by reference.
PROPOSED ORDINANCE TO BOCC
January 23, 2007
Italics= New Language
Strikethreugh = Existing Language Deleted
An Ordinance Amending
the Flood Damage Prevention Ordinance of Orange County
Be it ordained by the Board of Commissioners of the County of Orange, North
Carolina, that Section 42-38 of the Orange County Flood Damage Prevention
Ordinance is hereby amended as follows:
Section 1. Sec. 42-38. Basis for establishing the special flood hazard areas.
The SFHA are those identified by the FEMA or produced under the Cooperating
Technical State agreement between the State of North Carolina and FEMA in its
FHBM or flood insurance study (FIS) and its accompanying flood maps such as
the FIRM(s) and/or the FBFM(s), for Orange County dated MaFGh 46,
February 2, 2007, which with accompanying supporting data, and any future map
update or revision thereto, including letters of map amendment or revision, are
adopted by reference and declared to be a part of this article. The SFHA also
include those defined through standard engineering analysis for private
developments or by governmental agencies, but not incorporated into the FIRM.
This includes, but is not limited to, detailed flood data:
(1) Detailed flood data generated as a requirement of subsections 42-69
(11)(12) of this article;
(2) Preliminary FIRMs where more stringent than the effective FIRM; or
(3) Post-disaster flood recovery maps, if available.
Section 2. That this ordinance shall be placed in the file of published
ordinances.
Section 3. This Ordinance shall be effective upon adoption. Adopted this the
day of
seconded by Commissioner
, 2007, upon motion of Commissioner ,
I, Donna Baker, Clerk to the Board of Commissioners for the County of
Orange, North Carolina, DO HEREBY CERTIFY that the foregoing is a true copy
of so much of the proceedings of said Board at a meeting held on January 23,
2007 as relates in any way to the adoption of the foregoing and that said
proceedings are recorded in the minutes of said Board.
WITNESS my hand and the seal of said County, this day of
, 2007.
Clerk to the Board of Commissioners
4
NOTICE OF PUBLIC HEARING
ORANGE COUNTY BOARD OF COMMISSIONERS
A public hearing will be held in the Judge F. Gordon Battle Superior Courtroom of
the New Orange County Courthouse, 106 E. Margaret Lane, Hillsborough, North
Carolina, on Tuesday, January 23, 2007, at 7:30 PM for the purpose of giving all
interested citizens an opportunity to speak for or against the following item:
A. Amendment to the Flood Damage Prevention Ordinance (FDPO)
Section 42-38 of the Orange County Code of Ordinances
BOCC adopted the original FDPO in March 1981, with amendments in
1995 and October 2005. As of February 2, 2007, new Flood Insurance
Rate Maps (FIRMs) that the FDPO references will become effective. They
will replace maps that have been in effect'since March 16, 1981.
On September 14, 2006, the State Attorney General issued an opinion
that flood damage prevention ordinances shall specifically reference the
date new FIRMs become effective. Thus, the need to amend the
ordinance arises.
Purpose: Section 42-38 of the existing FDPO states, "The Special Flood
Hazard Area are those identified by the FEMA ... and its accompanying
flood maps ... for Orange County dated March 16, 1981, which with
accompanying supporting data, and any revision thereto, ... are adopted
by reference and declared to be a part of this Ordinance." This section
must be amended by deleting the March 16, 1981 date and replacing it
with the new effective map date, February 2, 2007.
Publish: Chapel Hill Herald
News of Orange
Dates: January 10, 2007
January 17, 2007
. 5
o? A"R i? o r -r C n--
Federal Emergency Managem =_L
Washington, D.C. 20472
?'?'9ND SQG?
DEC ' 7 2006 D EC 1 2 2006
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. John M. Link, Jr.
Orange County Manager
P.O. Box 8181
Hillsborough, North Carolina 27278
Dear Mr. Link
Community No.: 370342
Community: Orange County,
North Carolina
(Unincorporated Areas)
This is in reference to our enclosed December 4, 2006 letter, which acknowledged an effective date for the
revised Flood Insurance Study (FIS) and Flood Insurance Rate Map (FIRM) for the unincorporated areas of
Orange County and a deadline for submission of compliant floodplain management ordinances.
Due to an administrative error, the effective date cited in that letter, February 7, 2007, was incorrect. The
correct effective date for the FIS and FIRM is February 2, 2007. We apologize for any inconvenience this
error may have caused.
We remind you that by the effective date of the FIS and FIRM, February 2, 2007, your community must
adopt or show evidence,of adoption of floodplain management regulations that meet the standards of
Section 60.3(d) of the National Flood Insurance Program (NFIP) regulations in order to remain eligible to
participate in the NAP. If your community should encounter any difficulties enacting the floodplain
management measures, we encourage you to contact the Director, Federal Insurance and Mitigation
Division of the Federal Emergency Management Agency, in Atlanta, Georgia at (770) 220-5400.
We look forward to working with the officials and residents of Orange County in assuring that the goals of
the NFIP are met.
Sincerely,
William R. Blanton, Jr., CFM, Chief
Engineering Management Section
Mitigation Division
cc: Mr. Craig Benedict, Orange County Planning Director
Mr. Tom Cadwallader, North Carolina Floodplain Mapping Program Engineer
Mr. Tom Langan, North Carolina Floodplain Mapping Program Engineer
FEMA, Region IV . .
NFIP State Coordinator
a
6
FINAL SUMMARY OF MAP ACTIONS
Community: Orange County,
North Carolina
(Unincorporated Areas)
CommunityNo.: 370342
Revised Map Panels: Caswell County: 3710992000, and
3710994000
Person County: 3710996000 and
3710999000
Date Issued: December 4, 2006
Page No.: 1 of 2
To assist your community in maintaining the Flood Insurance Rate Map (FIRM), we have summarized below
the previous Letter of Map Change (LOMC) actions (i.e., Letters of Map Revision (LOMPs) and Letters of
Map Amendment (LOMAs)) that will be affected by the revised FIRM that will become effective on Tune 4,
2007.
1. LOMRs and LOMAs Incorporated
The LOMRs and LOMAs listed below have been incorporated into and are reflected on the final FIRM.
However, until the revised FIRM becomes effective, the LOMRs and LOMAs will remain in effect.
New
LOW Case No. Effective Date Project Identifier New Panel Zone
None
2. LOMRs and LOMAs Not Incorporated
The LOMRs and LOMAs listed below have not been reflected on the final FIRM. This is either due to scale
limitations of the FIRM, or because the LOMB or LOMA issued determined that the lots or structures involved
are out of the Special Flood Hazard Area, as shown on the FIRM. These LOMRs and LOMAs will be
revalidated free of charge the day after the revised map panels become effective.
New
LOMC Case No. Effective Date Project Identifier New Panel Zone
None
3. LOMRs and LOMAs Superseded
The LOMRs and LOMAs listed below have not been reflected on the final FIRM because they have been
superseded 'by new detailed flooding data or sufficient information could not be located on which to make a
determination. The reason each has been superseded is noted below. When the revised FIRM becomes
effective, these LOMRs and LOMAs will no longer be in force.
LOW Case No. Effective Date Project Identifier Reason Superseded
None
Page 2 of 2
4. LOMRs and LOMAs to be Re-determined
The LOMCs in Category 2 of this
previously issued LOMC. Theref
for one or more of the lots or s
process. However, we will review
or LOMA request listed below
effective date.
LOMC Case No.
form are revalidated through a s'
ore, LOMCs issued for multiple to
fractures have changed cannot be
the data which were previously
and issue a new determination for
Effective Date Project Identifier
mgle letter that reaffirms the validity of a
is or structures where the determination
revalidated through this administrative
submitted as part of the original LOMB
the subject properties after the FIRM
New
New Panel Zone
None
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Sli)re of N(will CilrOlilkl
trait' .t _eit.}E".FlT
September 14, 2005 .
Phil Letsinger
National Flood Insurance Program (NFIP)
X.C. Division.of Emergency Management
4713 Mail Service Center
Raleigh, North Carolina
Dear Phil:
REPLY TO:
Crime Control Section
(419) 716-6565
You requested information concerning the proper way to amend municipal flood
ordinances under North Carolina law. The Division of Emergency Management serves as state
coordinator of the National Flood Insurance Program (NFIP). I understand that the Federal
Emergency Management Agency (FJrMA) required North Carolina to develop a state model
floodplain management ordinance. FEMA noted that some states allow ordinances that
automatically adopt revisions, while other states require that each ordinance and revision thereto
must be formally adopted by the appropriate municipal governing body. The question regarding
the appropriate legal means to adopt and/or revise ordinances is significant as it relates to flood
insurance maps. As development occurs and conditions change, the maps change to reflect the
effects on Roodways and floodplain. There are actual maps that may be amended by a letter of
.amendment. Communities participating in the NFIP administer their program as part of a zoning
program.
Usually, state law requires that zoning ordinances and maps are adopted and revised by
specific state law procedures. FEMA has requested an opinion regarding whether North Carolina
law requires that zoning ordinances and snaps are adopted and revised using specific state law
procedures. Further, FEMA has requested an opinion regarding whether incorporation by
reference of future amendments to another statute, rule or regulation constitutes an unlawful
delegation of legislative power. Specifically, FEMA has requested an opinion regarding whether
under North Carolina law ;North Carolina's floodplain management model ordinance may
provide for the automatic adoption of revisions to such ordinance without any further legislative
action by the jurisdiction's governing body. FP-MA wants to know whether any necessary
ordinance revisions based upon new hazard.data provided by FEMA and incorporating any future
changes in NFIP floodplain management criteria may be made. Therefore; the issue is whether
North Carolina's model floodplain management ordinance may specify that maps "and any
revision thereto" or "as amended" are automatically adopted by the Ordinance without an
amendment of the ordinance. - It. appears that this is not permissible under the North Carolina
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Constitution.
A. The N.C. Flood Darnage Prevention Ordinance.
1 understand that Article 3, Section B. of the model North Carolina Flood Damage
Prevention Ordinance states:
The Special Flood Hazard Areas are those identified by the Federal Emergency .
Management Agency (FEMA) or produced under the Cooperating Technical State
(CTS) agreement between the State of North Carolina and FEMA in its Flood
Hazard Boundary Map (FHBM) or Flood Insurance Study (FIS) and its
accompanying flood maps such as the Flood Insurance Rate Map(s) (FIRM)
and/or the Flood Boundary Floodway Map(s) (FBFM), for .
(community) dated , which with
accompanying supporting data, and anx revision thereto, including Letters of
Map Amendment or Revision, are adopted by reference and declared to be apart
of this ordinance. .The SpeciA] Flood Hazard Areas also include those defined
through standard.engineering analysis foi private developments or by
governmental agencies, but which have not yet been incorporated in the FIRM.
This includes, but is not limited to, detailed flood data:
1. generated as a requirement of Article 4, Section C(11 & 12) this
Ordinance;
2. preliminary FIRMs where more stringent than the effective FIRM;
or
3. post-disaster Flood Recovery Maps.
Municipal: In addition, upon annexation to
(municipality) or inclusion in the Extra-Territorial Jurisdiction (EV), the Special
Flood Hazard Areas identified by the Federal Emergency Management Agency
(FEMA) and/or produced under the Cooperating Technical State agreement
between the State of North Carolina and FEMA as stated above for the
Unincorporated Areas of
County, with accompanying maps and other supporting data, and any revision
thereto, are adopted by reference and declared to be a part of this ordinance.
Article 6, Section A of the model North Carolina Flood Damage Prevention Ordinance states:
This ordinance in part comes forward by re-enactment of some of the provisions of the
flood damage prevention ordinance enacted (original adoption date of this
ordinance) as amended, and it is not the intention to repeal but rather to re-enact and
continue to enforce without interruption of such existing provisions, so that all rights and
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liabilities that have accrued thereunder are reserved and may be enforced. The enactment
of this ordinance shall not affect any action, suit or proceeding instituted or pending. All
provisions of the flood damage prevention ordinance of _
(comriwnity) enacted on _ (original adoption date of
this ordinance), as amended, which are not reenacted herein are repealed. See Article 6,
Section A.of the North Carolina Flood Damage Prevention Ordinance. (Emphasis
added).
B. The National Flood Insurance Program.
The National Flood Insurance Program (NFIP) at 42 U.S.C. 4001 el. seq., seeks "as a
matter of national policy, a reasonable method of sharing the risk of flood losses ... through a
program of flood insurance which can complement and encourage preventive and protective
measures,"' Specifically; the NFIP's purpose is to ...
(3) require states or local communities, as a condition of future Federal financial
assi"stance, to participate in the flood insurance program and to adopt adequate
floodplain ordinances with effective enforcement provisions consistent with
Federal standards to reduce or avoid future flood losses ..... 42 U.S.C. 4002.
FEMA implements the NFIP. FEMA is authorized to make flood insurance available only in
communities that have adopted floodplain management regulations that meet minimum NFIP
standards and that pre enforcing those regulations in flood hazard areas. The NFIP Act provides
'that "After December 31, 1971, no new flood insurance coverage shall be provided under this
title in any area (or subdivision thereof) unless an appropriate public body shall have adopted
adequate land-use and control measures (with effective enforcement provisions) which the
Director finds are consistent with the comprehensive criteria for land management and use under
42 U.S:C. 4102"
C. Legislative Power of the State Vested in the Legislature.
The North Carolina Constitution provides that the legislative power of the State is vested
in the General Assembly. N.C. Const. art. H, § 1. Normally, legislative power cannot be
delegated except as authorized by the Constitution. State ex rel. Taylor v. Carolina Racing
Ass'n, 241 N.C. 80, 84 S.E.2d 390 (1954); Gardner v City of Reidsville, 269 N.C, 581, 153
S.E.2d 139 (I967). Although this legislative power vests exclusively in the General Assembly
and may not be delegated, there is an exception to this rule as it pertains to cities, towns, or
counties. State ex rel Taylor v. Carolina Racing Ms$n, 241 N.C. 80, 84 S.E.2d 390 (1954);
Gardner v.City of Reidsville, 269 N.C. 581, 153 S.E.2d 139 (1967). Power maybe delegated to
municipalities and the "ordinary restrictions with respect to the delegation of power... do not
apply to cities, towns, or counties " Plemmer v, Matthewson, 281 N.C. 722,190 S.E.2d 204
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(1972).
The court in ASP Associates v. City of Raleigh, 298 N.C. 207, 258 S.E. 2d 444 (1979)
states "Legislative power is vested exclusively in the General Assembly by Article 11, Section 1,
of the North Carolina Constitution. From this provision and from Article 1, Section 6, derives the
principle that the General Assembly may not delegate its power to any other department or body.
Motsinger v. Perryman, 218 N.C. 15, 9 S.E. 2d 51'1(1940); Coastal Highway v. Turn pike
Authori 237 N.C. 52, 74 S.E. 2d 310 (1953). This principle, however, is not absolute."
D. The Legislature may delegate power to legislate zoning to cities, towns and
counties.
It is settled law that the power to zone real property is vested in the General Assembly by
this section (N.C. Const., Art II, §1.) Chnstmon y. Guilford County, 322 N.C. 611, 370 S.E.2d
579 (1998). "The power to zone is the power of the State and rests initially with the General
Assembly." Zopfi v CiWofWilmington, 273 N.C. 430,160 S.E.2d 691 (1964)-..
"The General Assembly has delegated to the legislative body of cities and incorporated
towns the power to adopt zoning regulations and, from time to time, to amend or repeal such
regulations." In re Markham, 259 N.C. 566,131 S.e.2d 329, cert. denied, 375 U.S. 931 (1963).
"The authority of the General Assembly to delegate to municipal corporations power to legislate
concerning local problems; such as zoning, is an exception to the general rule that legislative
powers, vested in the General Assembly by N.C. Const., Art II, § l; may not be delegated by it.."
275 N.C. 155, 166 S.e.2d 78 (1969). Hence,
Jackson v Guilford County $d Of Ad'usi tin' ent
zoning is a legislative act that has been delegated to the municipalities by the General Assembly.
The court in ASP Associates v. Cily of Raleigh,.298 N.C. 207, 258 S.E. 2d 444 (1979)
states "Delegations to municipal corporations of the States' police power to legislate concerning
local problems such as zoning is permissible by long standing exception to the general rule of
non-delegation of legislative power. In Re Markam, 259 N.C. 566, 131 S.E. 2d 329 (1963);
Jackson v. Board of Adjustment, 275 N.C. 155, 166 S.E. 2d 78 (1969).
Local governments have been delegated the power to zone their territories and restrict
them to specified purposes by the General Assembly. Zopfi v. City of Wilmington, 273 N .C.
430, 434, 160 S.E.2d 325, 330 (1968). This authority' is subject both to the . limitations
imposed by the Constitution and to the limitations of the enabling statute." Id. Within those
limitations, the enactment of zoning legislation "is a matter within the discretion of the legislative
body of the city or town." Id. Summers v. City of Charlotte, 149 N.C. App: 509, 562 S.E. 2d 18
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(2002).
The General Assembly `has delegated the legislative act of adopting and amending zoning
regulations to municipalities: Zoning is a legislative act and only the legislative body of a
municipality is authorized to adopt and amend zoning ordinances. Only a law making body can
adopt and amend a zoning ordinance. Lee.v. Board of Adjustment, 226 N.C. 107, 37 S1.2d 128
(1946); Bran v. Wilson, 259 N.C. 107, 130 S.E.2d 68 (1963); Application. of Rea Constr. Co.,
272 N.C. 715, 158 S.e.2d 887 (1968).
The power of a municipality (cities, towns, and counties) to enact zoning ordinances has
been expressly granted by statute. *The authority'to adopt, repeal, and amend zoning regulations
is contained in the "enabling act" that is found in the North Carolina General Statutes. The state
law for adopting zoning ordinances and amendments for cities is found at N.C. Gen. Stat. Section
160A-381 et seq. and for counties is found at 153A-320 et se4. State law provides that the city . .
council or the board of county commissioners provide notice to certain landowners. N.C.G.S.
§160A-384 outlines specific procedures for adopting zoning ordinances and amendments for
cities and towns. See N.C.G.S. §160A-384 attached. State law provides that for cities and towns
"zoning regulations and restrictions and zone boundaries may ... be amended, supplemented,
changed, modified or repealed." If there is a protest against the change,. "an amendment shall not
become effective except by favorable vote of three-fourths of all the members of the city
council." N.C.G.S. §160A-385. See N.C.G.S. §160A-385 attached. The state lavtr for adopting
zoning ordinances and amendments for counties 1s found at N.C.G.S. § 153A-340. See N.C.G.S.
§153A-340 attached: N.C.G.S. §153A-343'and §153A-344 outline.specific procedures for
adopting zoning ordinances and amendments for counties. See N.C.G.S. §153A-343 and §153A-
344 attached.
Zoning or a change in zoning is a legislative act. Regarding counties' authority to amend
zoning ordinances,the court In Alderman v. Chatham County. 89 N.C: App. 610,366 S.E M 885
(1988), states "N.C-G.S. 153A-344 expressly gives counties the power to amend their zoning
ordinances. As a legislative function, the courity's act of amending its zoning ordinance is entitled
to a presumption of validity." S-p Associates V. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444
(1979). The legislative act of enacting or amending a zoning ordinance is invalid if it is
unreasonable, arbitrary, or an unequal exercise of legislative power." A county's legislative body
has authority to rezone when reasonably necessary to do so in the interests of the public health,
safety, morals or general welfare. Ordinarily the only limitation upon this authority is that it may
not be exercised arbitrarily or. capriciously. Willis y. Union County, 77 N.C. App: 407,335
S.E.2d 76 (1985). N.C.G.S. 153A-340 contains the legislative grant of power to counties to
enact zoning ordinances. Development Associates Inc. V. The Wake County Board of
AdLustment, 48 N.C. App. 541, 269 S.E.2d 700 (1980).
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E. Unlawful Delegation of Legislative Authority or Pourer.
If a law incorporates by reference the law or rule of another governmental entity or
private body and any future changes'to that law or rule this may constitute an unlawful delegation
of legislative authority. The unlawful delegation problem can occur when a law or rule is
incorporated as dasended or as revised. If a North Carolina law incorporates a federal
regulation, as amended, then, the North Carolina law will automatically change when those
amendments occur without action of the Legislature. One may assert that the state's legislative
authority has been given to the federal agency. The present issue involves local ordinances that
incorporate maps prepared by or approved by a federal agency, FEMA. One may assert that it is
unlawful to permit FEMA. to change what constitutes a floodplain without any action on the part
of the county or city.
The N.C. model Flood Damage.Prevention Ordinance required by FV.MA attempts to
adopt by reference future amendments. Ifa city adopts by reference a statute, together with any
future amendments thereto, there is an unlawful delegation of legislative authority, rendering the
ordinance unconstitutional. Brinkley v. Motor Vehicles Division, 47 Or. App. 25, 613 P.2d 1071
(1980). See-also People v. Urban, 45 Mich. App. 255, 206 N.W, 2d 511 (1973); Warren v. State
Construction Cade Commission 66 Mich. App. 493, 293 N.W. 2d 640 (1976); Independent
CommuniMBailkers Association.of South Dakota. Inc., 346 N.W. 2d 737 (S.D. 1984); City of
Salem v. Junublut. 83 Or. App. 540, 732 P. 2d 919 (1987).
"Numerous other courts hold that a statute that attempts to incorporate fixture changes of
another statute, code, regulation, standard, or guideline is an unconstitutional delegation of
legislative power. See, e.g., International Assn of Plumbing. and Mechanical Officials v.
California Bld . Standards Comm'n, 55 Cal. App. 4th 245, 64 Cal. R.ptr. 2d 129, 134
(Cal.Ct.App. 1997); P=le v. Pollution Control Bd., 83 Ill. App.-3d 802, 404 N.E.2d 352, 356-
357, 38 Ill. Dec. 928 (1980); Gumbhir v. Kansas State Bd. of Pharmacy, 228 Kan, 579, 618 P.2d
837, 842=843 (1980); Michigan Mfrs. Assn v. Director of Workers'. Disability Compensation
Bureau, 134 Mich. App. 723, 352 N.W.2d 712,•715 (1984); Meyer v. Lord, 37 Ore. App. 59, 586
P.2d 367, 371 (1978); City of Chamberlain v. RE. Lien, Iric., 521 N.W.2d• 130, 132-133 (S.D.
1994); Independent CommunityBankers Assn v. State, 346 N.W.2d 737, 744 (S.D. 1984);
Woodson v. State, 95 Wash. 2d 257, 623 P.2d 683, 685 (1980)... [T]he adoption by reference of.
future legislation and rules are unconstitutional. Micbigan Mfrs. Assn, 352 N.W.2d at 715.
"The canons of statutory construction apply to the interpretation of an ordinance...."
Moore v. Bd. of Adjustment of City of Kinston ,113 N.C. App. 181, 182, 437 S.E.2d 536, 537
(1993) (internal citation omitted). Morris Communications Corporation v. Gastonia ,159 N.C.
App. 598;'583 S.E.2d 419 (2003).
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The N.C. Flood Damage Prevention Ordinance provides for the automatic adoption of
revisions to such ordinance without any further legislative action by the appropriate city council.
and the board of county commissioners. It incorporates future changes in NFIP floodplain
management criteria. It specifies that maps "as aibended" "and any revision thereto" are
automatically adopted by the Ordinance without an amendment of the ordinance. Adoption of
new FEMA maps may impact hazards mapping and zones. Property maybe "rezoned" if the
local government adopts or amends an ordinance that limits or prohibits land uses that previously
were allowed, in the affected zone. An ordinance that proposes to rezone property requires
certain notice to the affected landowners. A zoning ordinance that incorporates by reference all
future amendments or modifications of flood insurance maps and subsequent revisions is an
unlawful delegation of legislative authority. - To incorporate future changes to an ordinance will
unlawfully delegate to another body, person or entity such as FEMA the power to change the.
ordinance, which is a power thaf should be reserved to the city council or the board of county
commissioners.
State law at N.C.G.S. §143-215:56(g) provides that once FEMA approves the floodplain
map for the NFIP, then, eachIocal government affected by the floodplain must incorporate the
revised map into its floodplain ordinance. State law at N.C.G.S. § 153A-47 and N.C.G.S. §160A-
76(b) provide that a city or county may adopt in an ordinance regulations promulgated.by a
public agency. These statutes, N.C.G.S. §153A-47 and §160A-76(b), seem to permit a county or
city to adopt the federal regulations promulgated by a public agency, FEMA. Specifically, these
statutes, N.C.G.S. § 153A-47 and § 160A-76(b), seem to permit a county or city to adopt FEMA's
rules; including but may not be limited to, 44 C.F.R. Parts 59 and 65, for the mapping of special
flood hazard areas. * These statutes seem to suggest that the city or county may adopt in its
ordinance FEMA's regulations for mapping special flood hazard. areas. It is unclear whether
these statutes; N.C.G.S. §153A-47 and §160A-76(b), permit a city or county to incorporate
FEMA's.future rules or future amendments for mapping special flood hazard areas..
State law at N.C.G.S. §160A-384, §153A-343 and §153A-344 outline specific procedures
for amending zoning ordinances for cities, towns and counties, respectively, including but may
not be limited to, providing notice to certain landowners and a public hearing. Adoption of
amendments to the Flood Insurance Study or the Flood Insurance Maps for an area under the
local jurisdiction must be done in accordance with the statutory procedures at N.C.G.S. § 160A-
384, § 153A-343 and § 153A-344. "While N.C.G.S. §§ 153A-4 and 160A-4 mandate that grants
of authority to local governments be broadly interpreted, zoning authority cannot be exercised in
a manner contrary to the express provisions of the zoning enabling authority." In County of
Lancaster v. Mecklenburg County, 334 N.C. 496, 434 S.E.2d 604 (1993). It is settled law in
North Carolina any zoning ordinance must be amended in accordance with state law. "(A] zoning
ordinance or an amendment thereto which is not adopted in accordance with the enabling statutes
is invalid and ineffective." Sellers v. City of Asheville,. 33 N.C. APP. 544, 236 9.E.2d 283
(1977). It has been held that in addition to complying with the state statutory requirement, local
zoning authority must comply with all requirements of its own local zoning ordinance before
12/12/2006 TUE 16:47 FAX
Page 8 of 8
adoption or amendment of a zoning ordinance.. Frizzelle v. Harnett County, 106 N.C. App 234,
416 S.E.2d 421(1992). "... [O]nly the legislative body of a municipality is authorized to adopt
and amend zoning ordinances. Only a law making; body can adopt and amend a zoning
ordinance. Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128 (1946); Bryan v. Wilson,
259 N.C. 107, 130 S.E,2d 68 (1963); Application of Rea Constr. Co-, 272 N.C. 715,158 S.e.2d
887 (1968).
Thus, North Carolina law does not constitutionally permit local governing bodies to
incorporate by reference re revisions in flood insurance maps without also following the
statutory provisions for amending the floodplain management ordinance under N.C.G.S. §160A-
384, § 153A-343 and § 153A-344. In accordance with N.C.G.S. §153A-47 and §160A-76(b), the
city council or the board of commissioners may incorporate by reference present maps that have
been approved by the city. council or board of county commissioners in accordance with
N.C.G.S. §160A-384, §153A-343 and §153A-344. However, if they incorporate future changes
or future revisions of the maps, this would constitute.an unlawful delegation of legislative
authority or power.
As you know, other states such as South Carolina, Mississippi, and Oregon also
concluded that the incorporation of future changes or revisions of the maps constituted an
unlawful delegation of legislative authority or power and thus, were unconstitutional under their
state constitutions.
This memorandum is not an Advisory Letter and has not been reviewed and approved in
accordance with procedures for issuing an Attorney General's opinion.
Sincerely,
Cheryl 4. Perry
Assistant Attorney tGral
S:+loorSiDATn;RTtCrim-nim]'PERR1^1i AZ-t4T'•afipmappingmemawpd
c: Doug Hoell,.Director, N.C. Division of Emergency Management
3. Chris Crew, Hazard Mitigation Section Chief, N.C. Division of EM
Lillie Peebles, Agency Legal Specialist, N.C. Division of EM
15
16
December 12, 2006
VIA FACSIMILE
Mr. Glen Bowles
Orange County Planning Department
P.O. Box 8181
Hillsborough, NC 27278
Re: Amendment to County Flood Damage Prevention Ordinance To Reflect
Revised Flood Insurance Rate Map Panel
Dear Glen:
During the Development Review Committee meeting on Thursday, December 7,
2006 you asked me to advise Staff as to the proper procedures for amending the County's
existing Flood Damage Prevention Ordinance ("FDPO"). You informed me that the
County is required to amend its FDPO prior to February 2, 2006 to incorporate a new
Flood Insurance Rate Map ("FIRM") published by the Federal Emergency Management
Agency ("FEMA"). You further advised, as described in the December 4, 2006 letter to
the Orange County Manager (a copy is attached), if the County's FDPO is not revised
according to this deadline, then County residents will become ineligible for the National
Flood Insurance Program ("NFIP").
You provided me with a copy of a letter from William R. Blanton, Chief of
FEMA's Engineering Management Section addressed to John M. Link that is stamped
with the date of December 4, 2006. This letter states as follows: "Your community is
currently in the six-month ordinance adoption period for Orange County and incorporated
areas that will end on February 7, 2007, when the FIS [Flood Insurance Study] report and
FIRM for your community become effective." The letter goes on to state that
"Communities that fail to amend their ordinance and submit it to the State and Regional
Office for review and approval will be suspended from participation in the NFIP ..."
You have informed me that the February 7, 2007 deadline stated in this letter is in error,
and that you have confirmed with FEMA staff that the six-month ordinance adoption
17
period for Orange County actually expires on February 2, 2007, instead of February 7 as
indicated in Mr. Blanton's letter.
I am unclear as to why Mr. Blanton's letter triggers the need for the County to
amend its existing FDPO and what type of amendment is required. First, the letter states
that the revised FIRMs that Staff wishes to incorporate into the FDPO are for Caswell
and Person Counties, not Orange County. The letter also states that: "Although your
community is unaffected by the updated flood hazard information presented in the FIS
reports and FIRMS, your community does lie on one or more of the revised map panels."
This statement leads me to the conclusion that the revised maps and associated reports do
not contain any changes to current flood hazard data or maps for Orange County. I
assume you have taken the appropriate steps to determine why Orange County is required
to adopt the revised FIRM in its FDPO even though the FIRM does not affect Orange
County.,
Secondly, Mr. Blanton's letter states in two places that the revised map panels
that Staff wishes to incorporate into the existing FDPO by amendment do not become
effective until June 4, 2007. The September 14, 2005 letter from the assistant attorney
general to the N.C. Division of Emergency Management makes the point that North
Carolina law does not constitutionally permit local governing bodies to incorporate by
reference future revisions in flood insurance maps without first following the statutory
requirements for zoning map amendments. We agree with this view.- Therefore, it
appears that the County is constitutionally precluded from taking action in January of
2007 to adopt a map revision that does not become effective until June 4, 2007. We do
not recommend making revisions to the FDPO that incorporate a future FIRM that is not
effective on the date the FDPO amendment is enacted.
We recommend that you immediately obtain clarity on these issues from the
office of the N.C. Division of Emergency Management and the North Carolina Attorney
General.
When Staff is prepared to proceed with the amendment to the FDPO we
recommend the following process. The Orange County FDPO is freestanding. It has not
been incorporated into the County's Zoning Ordinance. However, it is our view that one
or more North Carolina Supreme Court decisions (see for example, Craig v. County of
Chatham, 356 N.C. 40 (2002)) teaches that FDPO amendments comply with the
procedures for amending the County's Zoning Ordinance and its official Zoning Atlas as
set forth in Article 20 of the Zoning Ordinance. This view is supported by the attached
memorandum from Assistant NC Attorney General Cheryl A. Perry addressed to Phil
Letsinger of the NFIP and dated September 14, 2005. The procedures for properly
amending the FDPO to incorporate the new proposed language and the new map (FIRM)
are set forth below. Furthermore, the safest way to insure FEMA coverage in Orange
County is for the County to readopt the FDPO as amended and with the new maps as
amendments to the County's Zoning Ordinance.
18
Planning Staff recommended this course of action when the FDPO was amended
at the August 28, 1995 BOCC meeting. The abstract for this item states that "Since the
Zoning Ordinance now applies to all of Orange County's planning jurisdiction, the
requirements of the NFIP could be included in the Zoning Ordinance rather than in a
freestanding Flood Damage Prevention Ordinance. Inclusion of these provisions in the
Zoning Ordinance which would allow for the elimination of the FDPO as a separate
Ordinance, will be undertaken in the future during the process of creating a Unified
Development Ordinance." The BOCC meeting abstract making this recommendation is
also attached. The timeline for integrating the FDPO into the Zoning Ordinance has been
compressed due to North Carolina Supreme Court decisions discussed above. The
original plan to delay incorporation of the FDPO until the adoption of the Unified
Development Ordinance may no longer be an option if the County wishes to participate
in the NFIP in 2007.
Section 20.2 of the Zoning Ordinance permits an amendment to be initiated by the
Board of County Commissioners on its own motion (the ""BOCC"), the Planning Board,
or by any person or agency that submits an application. Specifically, Section 20.3.2(b)
requires that applications for tekt amendment contain, among other items, a written
statement which describes "in detail" changes which the applicant proposes to make. The
completed application is then reviewed by the Zoning Officer who causes an analysis to
be made of the application and prepares a recommendation for consideration by the,
Planning Board and the BOCC. Thereafter, the BOCC and the Planning Board hold a
properly noticed joint public hearing on the proposed amendment. Section 20.6.1 of the
Zoning Ordinance requires that "Notice of public hearing shall be given by publishing
said notice at least twice in a newspaper of general circulation in the County, stating the
time and place of such hearing and the substance of the proposed amendment." The first
notice must be published not less than ten days nor more than twenty-five days before the
date of the public hearing.
As mentioned above, the amendment in this case involves not only a text
amendment to the Zoning Ordinance to incorporate the FDPO in its entirety, but also an
amendment to the Zoning Atlas to incorporate the newly revised FIRM into the Zoning
Ordinance. Article 20 requires that additional notice procedures be followed in the case
of a map amendment. Specifically, Section 20.6.3 requires the County to provide written
notice of the public hearing via certified mail to the affected property owners and all
adjacent property owners whose property lies within five hundred feet of the affected
property. This notice must be sent no less than fifteen days before the hearing date. The
Zoning Officer must certify to the BOCC that the notices were properly mailed.
Following the date of the public hearing, the proposed amendment shall be
referred to the Planning Board for its consideration and recommendation. The Planning
Board then submits its recommendation to the BOCC at a date certain under Section
20.7.1. The BOCC shall not consider enactment of the proposed amendment until the
Planning Board makes its recommendation or takes no action on the application. The
BOCC then makes its decision on the amendment.
19
As you know, it has been the normal course of conduct for the Planning Board to
consider ordinance amendments that relate to land use and zoning issues, as this
amendment does, prior to being presented to the Board of County Commissioners. It is
unclear to me how all of this may be accomplished given that January 23, 2007 is the last
remaining BOCC meeting before the February 2, 2007 deadline.
Please let me know if you have any questions regarding this letter.
Best Regards,
COLEMAN, GLEDHILL, HARGRAVE, & PEEK P.C.
Brian M. Ferrell
cc: Laura Blackmon
Craig Benedict
aD
Orange County
Floodplain Comparison Map
June 6, 2005