BACKGROUND:  Floodplain areas of the Town of Cary are subject to periodic flooding, which could result in loss of life and property. Poor land-use decisions have put more people at risk by allowing development in harm's way and by elimination the natural flood control functions of wetlands and floodplains. Flooding throughout the Neuse River Basin during the recent hurricanes was exacerbated due to development in the upper reaches of the watershed of which The Town of Cary is a part. Floodplains are environmentally beneficial because they support flora and fauna and increase infiltration, which assists removal of impurities in stormwater. All of these issues are reasons for the Town to further restrict development and filling of the floodplain.

The floodplain is made up of two areas -- a flood fringe and a floodway. A floodway is the channel of a river, stream, or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation by more than one foot. This is the area that will carry the bulk of the flood waters. A flood fringe is the portion of the area of a floodplain that is located outside of the floodway and usually serves as a holding area for flood waters entering into the floodway.

The current floodplain ordinance allows the flood fringe portion of the floodplain to be filled providing no building is placed in the flood fringe unless a Major Special Use is granted by Council. By filling in the flood fringe, the floodplain line is changed and where the fill ends, becomes the new floodplain line. If property that has been filled in past years is submitted for plan review, the developer of the property can show the floodplain line as it now exists and can actually build on an area that used to be designated as floodplain. This action should be a clear violation of the floodplain ordinance; therefore, staff recommends eliminating filling in the floodplain to eliminate this loophole.

The Town of Cary is presently in the process of asking the Division of Water Quality of the State of North Carolina to approve an inter-basin transfer for drinking water from Jordan Lake. One of the stipulations for this inter-basin transfer was for the Town to implement new strategies to further protect the environment. Preventing the filling of floodplains is one of these strategies.

• Floodplains act as a sponge that absorbs rainwater from rainfall events and slowly releases this run off. Filling these floodplains stops this absorption of rainwater and increases the amount of water being sent down stream.
  
• The last refuge of habitat for plant and animal life in urban environments is the floodplains. When these floodplains are filled, this habitat is lost and can never be recovered due to the nature of the soil, hydrology and ecosystem.
  
• Many communities are working with their upstream and downstream neighbors to develop flood loss reduction plans for the entire watersheds. By stopping filling in the floodplain, the Town of Cary will demonstrate its commitment to assist its downstream neighbors with their flooding problems.

Presently filling of the flood fringe portion of the floodplain is allowed by the Unified Development Ordinance provided it is not dangerous to health, safety, and property due to increased erosion, flood heights, or water velocities. Staff feels that this part of the Ordinance should be revised to allow no filling of the floodplain for the health, safety, and welfare of the citizens of Cary and those living below Cary in the Neuse and Cape Fear River watersheds. This would mean that all reference to development in the floodplain would have to be removed or revised from the present Flood Damage Prevention Ordinance. The only development that would be allowed in the floodplain would be those utilities, greenways, and roadways approved by the Town of Cary or development on previously approved single family lots and current development plans in existence prior to the adoption of this amendment. The proposed ordinance does allow owners to file a major special use to fill the flood fringe area; however, this is only for hardship cases where the owner can prove that the ordinance does not provide a reasonable use of the property. Staff also recommends that the Ordinance be changed to not allow floodplain area to be included in residential lots.

The proposed amendment is attached for review.

Ordinance 00-

THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF CARY THAT THE FOLLOWING BE REVISED/AMENDED AS FOLLOWS:

AMENDMENTS TO CHAPTER 2 DEFINITIONS:

Artificial obstruction: Any obstruction to the flow of water in a stream that is not a natural obstruction, including any that, while not a significant obstruction in itself, is capable of accumulating debris and thereby reducing the flood-carrying capacity of the stream:

Flood, 100-year or Base Flood: A flood that has a one percent (1%) chance of being equaled or exceeded in any given year. The term "base flood" is used in the National Flood Insurance Program to indicate the minimum level of flooding to be addressed by a community in its floodplain management regulations.

Floodplain, 100-year or Base Floodplain: The area subject to a one percent (1%) or greater chance of flooding in any given year, as shown on the current floodplain maps prepared pursuant to the National Flood Insurance Program or approved by the Department. This area may also be identified by other engineering studies that are approved by the Town.

Flood hazard area: The area designated by the Town, pursuant to this Ordinance, as an area where development must be regulated to prevent damage from flooding. The flood hazard area must include and may exceed the base floodplain.

Natural obstruction: Any rock, tree, gravel, or other natural matter that is an obstruction and has been located within the 100-year floodplain by a nonhuman cause.

Amendments to Chapter 5. Development Review Procedures

Part 8. Development in Flood Hazard Areas

1. Permit and Approval Requirements.

(a) Compliance required. No development shall occur in an area of flood hazard and/or identified 100-year floodplain unless it complies with the procedures set forth in this Part and the flood damage prevention standards set forth in Chapter 14, Part 2 of this Ordinance. In general, no development is allowed in the 100-year floodplain unless a major special use is approved, the property/use is exempted from this requirement and/or the development is for roads, greenways, pedestrian crossings, park related equipment, public utilities and facilities such as waste water, gas, electrical, and water systems that are located and constructed to minimize flood damage.

(b) Development requiring other forms of Town approval. The Town requires no separate permit to demonstrate that the proposed development meets the flood damage prevention standards set forth in Chapter 14, Part 2 of this Ordinance when this Ordinance requires some other form of approval for the proposed development (such as a building permit, certificate of occupancy, special use permit, site plan approval, or subdivision plan approval). However, the applications for those other forms of development approval shall require the submission of additional information relating to flood hazards as part of the application package. As part of the staff review process for those other forms of development approval, the Town Manager shall review the application to ensure that it meets the flood damage prevention standards set forth in Chapter 14, Part 2.

(c) Development requiring no other forms of Town approval; Floodplain development permit required. In those cases where no other form of approval is required for the proposed development, the development shall not proceed until and unless the Town Manager has issued a floodplain development permit for the proposed development. The person undertaking such development shall file an application for a floodplain development permit with the Town Manager. The application shall be filed on a form provided by the Town Manager and shall contain or be accompanied by such information and plans as required on the application form. The Town Manager shall review the application and shall issue the permit only upon finding that the proposed development conforms to the flood damage prevention standards set forth in Chapter 14, Part 2 of this Ordinance.

 

No non-residential structure or related impervious surface shall be built, expanded, or located within the flood fringe until and unless the Town Council has approved a "major special use permit" for such structure or surface under Part 4 of this Chapter. The Town Council shall approve such a structure as part of the site plan only upon finding that without this ability, the owner cannot make a reasonable use of his/her property. In other words, this restriction causes undue hardship. The Town Council may attach to the approval of the site plan such reasonable conditions as it deems necessary to safeguard the public health, safety, and welfare against any flood hazards that the proposed non-residential structure may present.

1. Upon receiving any application for development within an area of special flood hazard and 100 year floodplain the Town Manager shall determine whether the proposed development meets the flood damage prevention standards set for in Chapter 14, Part 2 of this Ordinance.
   
2. If the Town Manager determines that the proposed development does not meet these standards, then the Town shall issue no permit, certificate, or other form of approval for the proposed development.
   
3. In those cases where this Ordinance requires some other form of approval for development in an area of special flood hazard and/or 100 year floodplain, the Town Manager shall report its determination to the body or agency responsible for the issuance of that other form of development approval, within a reasonable amount of time for that body to act accordingly in approving or denying the proposed development.

1. All questions on the enforcement of this article shall first be addressed to the Stormwater Services Manager. The decisions of the Stormwater Services Manager can be appealed to the Town Council.
   
2. The Town Council may grant relief from a decision of the Stormwater Services Manager only if the Town Council finds that the Stormwater Services Manager acted incorrectly interpreting or administering any of the duties or functions listed under Section 3.8.2, Chapter 5, Part 8. Developing in Flood Hazard Areas or Chapter 14, Part 2. Flood Damage Prevention.
   
3. Appears from any decision by the Town Council in regard to any decision by the Stormwater Services Manager shall be made to a court of competent jurisdiction. The Zoning Board of Adjustment has no authority or power to hear a decision based on the sections listed in Section 5.8.4(b) above.

Ord. No. 92-33, § 1, 5-14-92

(a) The flood hazard areas of the Town of Cary are subject to periodic inundation which could result in loss of life and property, hazards to public health and safety, disruption of commerce and governmental services, damage to and disruption of public utilities, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare. These losses and hazards are caused by the cumulative effect of obstructions in floodplains, which increase flood heights and velocities, and by the occupancy in flood-prone areas by uses which are vulnerable to floods, or hazardous to other properties, because they are inadequately elevated, flood proofed, or otherwise protected from flood damages. Therefore, the regulations set forth in this Part are designed to:

(1) Restrict or prohibit uses, which are dangerous to health, safety and property due to water or erosion or in flood heights or velocities;

(2) Require that uses which are vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction;

(3) Control the alteration of natural floodplains, stream channels, and natural protective barriers, which accommodate and restrain floodwaters;

(4) Prevent or control filling, grading, dredging, and other development, which may increase erosion or flood damage;

(5) Prevent or regulate the construction of flood barriers which will unnaturally divert floodwaters or which may increase flood hazards to other lands;

(6) To ensure that potential homebuyers are notified that property is in a flood-prone area.

(b) The degree of flood protection required by this Part is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This Part does not imply that land outside the areas of 100-year floodplains will be free from flooding or flood damages. Neither shall this Part create liability on the part of the Town of Cary or by any officer or employee thereof for any flood damages that result from reliance on this Part or any administrative decision lawfully made hereunder.

1. This Part shall apply to all areas of flood hazard including 100-year floodplain within the jurisdiction of this Ordinance, and all development in and near such areas shall comply with the requirements of this Part. Areas of 100 year floodplain include those identified by:

1. The Federal Emergency Management Agency through a scientific and engineering report entitled "The Flood Insurance Study for the Town of Cary, Wake County, North Carolina," dated March 3,1992. This Flood Insurance Study, as may be amended and updated from time to time by the Federal Emergency Management Agency, along with the accompanying Flood Insurance Rate Maps, Flood Hazard Boundary Maps, and Floodway Maps, and any revisions thereto, is hereby adopted by reference and declared to be a part of this Ordinance (on file in Engineering Department).

1. Other studies approved by the Town of Cary.

2. All new residential construction and substantial residential improvements proposed on a parcel of land which has no buildable area outside the floodplain, and which was recorded prior to June 1978, shall be exempt from the requirements for residential construction set forth this Part, but shall be developed in strict accordance with the requirements for non-residential construction. Residential subdivisions submitted prior to _____(adoption date) shall be exempted from the requirements for no flood hazard areas (100-year floodplain) to be included in platted lots. In addition, development plans submitted prior to ___(adoption date) shall be exempted from the major special use permit for filling in the flood plain.

1. Development Restrictions. In general, no development is allowed in the 100-year floodplain unless: a major special use is approved; the property/use is exempted from this requirement; and/or the development is for roads, greenways, pedestrian crossings, park related equipment, public utilities and facilities such as waste water, gas, electrical, and water systems that are located and constructed to minimize flood damage. Structures for pedestrian crossings (footbridges, etc.), playground equipment and other similar items may be permitted if the applicant provides certification by a professional registered engineer, architect, or landscape architect that these encroachments will not result in any increase in flood levels during the base flood.
2. Development Standards: If development or encroachments are permitted the following standards shall apply in all areas of flood hazard.

(1) All new non-residential construction and substantial improvements to existing non-residential construction shall be anchored to prevent flotation, collapse, or lateral movement of the structure.

(2) All new non-residential construction and substantial improvements to existing non-residential construction shall be constructed with materials and utility equipment resistant to flood damage.

(3) All new non-residential construction and substantial improvements to existing non-residential construction shall be constructed by methods and practices that minimize flood damage.

(4) All new and replacement electrical, heating, ventilation, plumbing, and air conditioning equipment, and other service facilities shall be designed and constructed to prevent water from entering or accumulating in or on the components.

(5) All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system.

(6) New and replacement sanitary sewer systems shall be designed to minimize or eliminate infiltration of floodwaters into the system and discharges from the system into flood waters.

(7) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.

3. Additional Development Standards and Restrictions: The following standards and restrictions shall apply in all areas of flood hazard where base flood elevation data have been provided:

(1) Residential construction. New construction of or substantial improvements (see Chapter 2 Definitions) to any residential structure shall be located outside the area of 100 year floodplain and shall have the lowest floor, including basement, elevated at least two feet above the base flood elevation. No proposed building lot that is wholly or partly subject to flooding shall be approved unless there is established on the final plat a line representing an actual contour as determined by field survey at an elevation two feet above the 100-year flood crest elevation as determined by the Federal Emergency Management Agency (FEMA) Special Hazard Area Maps. Such a line shall be known and identified on the development plan and final plat as the "Building Restriction Floodline". No fill shall be placed in the flood fringe for the purpose of providing any buildable area on a residential lot, which is located in the flood fringe. The area of 100 year floodplain may be included within the lot containing the residential structure provided that the usable lot area is no less than the square footage listed in the table below. For all new residential lots within subdivisions requiring a development plan submitted after (adoption date), the area of flood hazard (100 floodplain) shall not be included within the lot containing the residential structure. This requirement applies to subdivisions within Planned Unit Developments unless the master plan and/or conditions have exempted lots from this provision. The Town Council may allow these areas to be included in lots only when all of the following conditions are met:

(Ord. No. 93-37, § 1, 10-28-93)

14.2.4. Development in Floodways.

The floodway, located within areas of special flood hazard for which base flood elevation data have been provided, is an extremely hazardous area due to the velocity of flood waters which carry debris, potential projectiles, and the potential for erosion. Therefore, the following restrictions shall apply within the floodway:

(a) There shall be no encroachment, including fill, unless the applicant has received a major special use or the use is permitted (see 14.2.3a).

(b) Once (a) above is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction requirements of this Part.

14.2.5. Standards for Streams Without Established Base Flood Elevations and/or Floodways.

Located within the areas of flood hazard established in Section 14.2.2 are small streams where no base flood data has been provided or where no floodways have been identified. The following provisions apply within such areas:

1. No encroachments, including fill, new construction, substantial improvements of new development shall be permitted within a distance of the stream bank equal to five (5) times the width of the stream at the top of the bank or twenty (20) feet each side from top of bank, whichever is greater unless a major special use is approved or the use is permitted (See 14.2.3a)
   
2. If Section 14.2.5(a) is satisfied and base flood elevation data is available from other sources, all new construction and substantial improvements within such areas shall comply with all applicable flood hazard ordinance provisions of Section 3.8.2.(h)(6) and shall be elevated or floodproofed in according with elevations established in accordance with Section 14.2.2. When base flood elevation data is not available from a federal, state, or other source, the lowest floor, including basement, shall be elevated at least two (2) feet above the highest adjacent grade.
   
3. Cross Drainage Area Standards and Restrictions. For any new proposed development subject to flooding which includes, but is not limited to, those lots along any significant watercourse, whether or not the stream or water course is enclosed with a pipe or culvert; the applicant shall make a determination of the crest elevation of the flood expected to be equaled or exceeded, on average, of one time in 100 years in accordance with generally accepted engineering practice, which is to be submitted with the seal and signature of a Professional Engineer to the Director of Engineering. Any new construction of, or substantial improvements (see Chapter 2 definitions) to, any residential or non-residential structure shall comply with Section 14.2.3c, Additional Standards and Restrictions.

14.2.6. Special Requirements for Manufactured Homes.

(a) The restrictions and standards of this Section shall apply to manufactured homes in areas of 100-year floodplain for which base flood elevation data have been provided.

(b) No manufactured home shall be placed in an area of 100-year floodplain, except an existing manufactured home park or subdivision. In existing manufactured home parks or manufactured home subdivisions, all manufactured homes to be placed or substantially improved within Zones A1-30, AH and AE, as indicated on the Flood Insurance Rate Map, shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is two feet above the base flood elevation and shall be securely anchored to an adequate foundation system in accordance with the provisions of (e) below.

(c) Manufactured homes may not be placed in the floodway.

(d) In the following cases, each manufactured home shall be located outside the area of 100-year floodplain:

(1) New manufactured home parks and subdivisions;

(2) Expansions to existing manufactured home parks and subdivisions;

(3) Existing manufactured home parks and subdivisions where repair, reconstruction or improvement of the streets, utilities, and pads equals or exceeds 50 percent of the value of the streets, utilities, and pads before the repair, reconstruction, or improvement has commenced;

(4) Manufactured homes not placed in a manufactured home park or subdivision.

(e) All manufactured homes shall be anchored to resist flotation, collapse, or lateral movement in accordance with the Regulations for Mobile Homes and Modular Housing adopted by the Commissioner of Insurance pursuant to N.C. Gen. Stat. 143-15. Where the required elevation can be met by elevating the chassis no more than 36 inches above grade at the site, the chassis shall be supported by reinforced piers or other foundation of equivalent strength. When the elevation of the chassis is above 36 inches in height an engineering certification is required.

g) Recreational Vehicles. A recreational vehicle is ready for highway use if it is on wheels or a jacking system, is attached to the site only by quick-disconnect type utilities and security devices, and has no permanently attached additions. Recreation vehicles placed on sites shall either:

(1) Be on site for fewer than 180 days;

(2) Be fully licensed for highway use: or

(3) Meet the requirements of Chapter 5, Part 8 and Sections 14.2.3, 14.2.5 and 14.2.6.

(h) Temporary Structures. Prior to the issuance of any development permits for a temporary structure in addition to the requirements of Chapter 13, the following requirements must be met:

(1) All applicants must submit to the Stormwater Management Engineer a plan for the removal of such structure(s) in the event of a hurricane or flash flood notification. The plan must include the following information:

(i) The name, address and phone number of the individual responsible for the removal of the temporary structures.

(ii) The time frame prior to the event at which a structure will be removed;

(iii) A copy of the contract or other suitable instrument with a trucking company to insure availability of removal equipment when needed; and

(iv) Designation, accompanied by documentation, of a location outside the floodplain to which the temporary structure will be moved.

(2) The above information shall be submitted in writing to the Stormwater Management Engineer for review and written approval.

 

For purposes of this Part only the boundaries of the flood hazard area for a subdivision or a discrete phase of a subdivision are established if all of the following conditions are met:

(a) The subdivision is approved for construction through approval of a preliminary subdivision plan and all other applicable permits;

(b) A substantial investment is made in constructing the subdivision.

(c) In addition to satisfying the other requirements of this Ordinance, all proposals for subdivisions and site plans shall:

(1) Be consistent with the need to minimize flood damage;

(2) Have public utilities and facilities, such as wastewater, gas, electrical, and water systems, located and constructed so as to minimize flood damage;

(3) Have all proposed residential structures located outside the area of 100-year floodplain, with the lowest floor, including basement, elevated at least two feet above the base flood elevation;

(4) Have all proposed non-residential structures located outside of the floodplain, with the lowest floor, including basement, located at least two feet above the base flood elevation (Note that an approved major special use may permit structures in a floodfringe). and with any structure or fill material stabilized to prevent erosion of the fill material or damage to the proposed structure;

(5) Have all drainage structures located within the 100-year floodplain area designed to accommodate the 100-year flood without causing increased base flood elevations on properties other than that for which development approval is being requested;

(6) Shall provide base flood elevation data along with the subdivision plan or site plan, which is submitted to the Town for approval.