CHAPTER 5-04
FLOOD DAMAGE PREVENTIONSource: Ord. 2014-21, Sec. 1 (2014) SECTIONS:
5-0401. Statutory Authorization.
5-0402. Findings of Fact.
5-0403. Statement of Purpose.
5-0404. Methods of Reducing Flood Losses.
5-0405. Adoption of Flood Proofing Code.
5-0406. Definitions.
5-0407. Land to Which This Ordinance Applies.
5-0408. Basis for Establishing the Areas of Special Flood
Hazard.
5-0409. Compliance.
5-0410. Abrogation and Greater Restrictions.
5-0411. Interpretation.
5-0412. Warning and Disclaimer of Liability.
5-0413. Establishment of Development Permit.
5-0414. Designation of the Floodplain Administrator.
5-0415. Duties and Responsibilities of the Floodplain
Administrator.
5-0416. Variance Procedure.
5-0417. Provisions for Flood Hazard Reduction -- General
Standards.
5-0418. Provisions for Flood Hazard Reduction -- Specific
Standards.
5-0419. Floodways.
5-0420. Validity.
5-0421. Penalty.
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5-0401. STATUTORY AUTHORIZATION. The Legislature of the State of North Dakota has in Chapters 40-47, 11-33 and 58-03 of the North Dakota Century Code delegated the responsibility to local governmental units to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry. Therefore, the City Council of the City of Harwood, North Dakota does ordain as follows:
5-0402. FINDINGS OF FACT.
1. The flood hazard areas of Harwood are subject to periodic inundation which can endanger life, result in loss of property, create health and safety hazards, disrupt commerce and governmental services, cause extraordinary public expenditures for flood protection and relief, and impair the tax base, all of which adversely affect the public health, safety and general welfare.
2. Flood losses caused by the cumulative effect of obstructions in the special flood hazard areas cause increases in flood heights and velocities. Inadequately floodproofed, elevated or otherwise unprotected structures also contribute to the flood loss.
5-0403. STATEMENT OF PURPOSE. It is the purpose of this ordinance to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood
conditions in specific areas by provisions designed:
1. To protect human life and health;
2. To minimize expenditure of public money for costly flood control projects;
3. To minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;
4. To minimize prolonged business interruptions;
5. To minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets and bridges located in areas of special flood hazard;
6. To help maintain a stable tax base by providing for the second use and development of areas of special flood hazard so as to minimize future flood blight areas;
7. To ensure that potential buyers are notified that property is in an area of special flood hazard; and
8. To ensure that those who occupy the areas of special flood hazard assume responsibility for their actions.
5-0404. METHODS OF REDUCING FLOOD LOSSES. In order to accomplish its purposes, this ordinance includes methods and provisions for:
1. Restricting or prohibiting uses which are dangerous to health, safety, and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities;
2. Requiring that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction;
3. Controlling filling, grading, dredging, and other development which may increase flood damage;
4. Controlling the alteration of natural flood plains, stream channels, and natural protective barriers, which help accommodate or channel flood waters; and
5. Preventing or regulating the construction of flood barriers which will unnaturally divert flood waters or which may increase flood hazards in other areas.
5-0405. ADOPTION OF FLOOD PROOFING CODE. There is hereby adopted by the City Council of the City of Harwood for the purpose of providing minimum standards to safeguard life or limb, health, property and public welfare by regulating and controlling the construction, quality of materials, use and occupancy, location and maintenance of all buildings and structures within the "Floodway and the Special Flood Hazard Area" and certain equipment specifically regulated herein, including permits and penalties, that certain code known as the Flood Proofing Code prepared by
Moore Engineering, Inc., of West Fargo, North Dakota, in June 1981, of which not less than three (3) copies have been and now are filed in the office of the City Auditor of the City of Harwood, and the same are hereby adopted and incorporated as fully as if set out at length herein, and from the date on which this title shall take effect, the provisions thereof shall be controlling in the
construction of all buildings and structures therein contained within the jurisdiction of the City of Harwood.
5-0406. DEFINITIONS. Unless specifically defined below, words or phrases used in this ordinance shall be interpreted so as to give them the meaning they have in common usage and to give this
ordinance its most reasonable application.
1. "Appeal" means a request for a review of the City of Harwood’s interpretation of any provisions of this ordinance or a request for a variance.
2. "Area of special flood hazard" means the land in the flood plain within a community subject to a one percent or greater chance of flooding in any given year.
3. "Base flood" or “100-year flood” means the flood having a one percent chance of being equaled or exceeded in any given year.
4. “Base Flood Elevation” (BFE) means the height of the base flood or 100-year flood usually in feet above mean sea level.
5. “Basement” means any area of the building having its floor subgrade (below ground level) on all sides.
6. “Best Available Data” (BAD) means water elevation information from any source used to estimate or determine a base flood elevation (i.e. high water mark).
7. “Conveyance or hydraulic conveyance” means a geometric characteristic of a river or watercourse at a given point that determines the flow-carrying capacity at that point.
8. "Development" means any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations located within the area of special flood hazard.
9. "Flood" or "flooding" means a general and temporary condition of partial or complete inundation of normally dry land areas from:
a. The overflow of inland waters and/or b. The unusual and rapid accumulation or runoff of surface waters from any source.
10. "Flood Insurance Rate Map" (FIRM) means the official map on which the Federal Emergency Management Agency has delineated both the areas of special flood hazards and the risk premium zones applicable to the community.
11. "Flood Insurance Study" (FIS) means the official report provided by the Federal Emergency Management Agency that includes flood profiles, the Flood Boundary-Floodway Map, and the water surface elevation of the base flood.
12. “Floodproofing” (Dry) means protection provided a structure, together with attendant utilities and sanitary facilities, which is watertight two feet above the base flood elevation with walls that are substantially impermeable to the passage of water.
13. "Floodproofing Code" means the Flood Proofing Code of the City of Harwood, North Dakota, hereinbefore referred to and adopted in Section 5-0405.
14. "Floodway" or “regulatory floodway” means the channel of a river 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 more than one foot.
15. "Lowest floor" means lowest floor of a structure including the basement.
16. "Manufactured home" means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. The term “manufactured home” does not include a “recreational vehicle,” but does include “mobile home.”
17. "Manufactured home park or subdivision" means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.
18. "New construction" means structures for which the "start of construction" commenced on or after the effective date of this ordinance.
19. “Reasonably safe from flooding” means base flood waters will not inundate the land or damage structures to be removed from the special flood hazard area, and that any subsurface waters related to the base flood will not damage existing or proposed buildings.
20. “Recreational vehicle” means a vehicle which is: a. built on a single chassis; b. 400 square feet or less when measured at the largest horizontal projection; c. designed to be self-propelled or permanently towable by a light duty truck; d. designed primarily not for use as a permanent dwelling but as a temporary living quarters for recreational camping, travel, or seasonal use; including, but not limited to: e. travel trailers, trailers on wheels, park-model trailers, and other similar vehicles.
21. "Start of construction" includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement, or other improvement was within 180 days of the permit date. The actual start means the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure.
22. "Structure" means a walled and roofed building, including manufactured homes, and gas or liquid above-ground storage tanks.
23. “Substantial damage” means damage of any origin sustained by a structure whereby the cost of restoring the building to its pre-damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred.
24. "Substantial improvement" means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either: a. Before the improvement or repair is started, or b. If the structure has been damaged and is being restored before the damage occurred. For the purposes of this definition "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not, however, include either: a. Any project for improvement of a structure to comply with existing state or local health,
sanitary, or safety code specifications which are solely necessary to assure safe living conditions, or b. Any alteration of a structure listed on the National Register of Historic Places or a State
Inventory of Historic Places.
25. "Variance" means a grant of relief from the requirements of this ordinance which permits construction in a manner that would otherwise be prohibited by this ordinance.
5-0407. LANDS TO WHICH THIS ORDINANCE APPLIES. This ordinance shall apply to all areas of special flood hazards within the jurisdiction of Harwood.
5-0408. BASIS FOR ESTABLISHING THE AREAS OF SPECIAL FLOOD HAZARD. The areas of special flood hazard identified by the Federal Emergency Management Agency in scientific and engineering report entitled "The Flood Insurance Study for the City of Harwood" dated January 16, 2015, and any subsequent amendments to that map, with an accompanying "Flood Insurance Rate Map" is hereby adopted by reference and declared to be a part of this ordinance. The Flood Insurance Study is on file at the City Hall in Harwood.
5-0409. COMPLIANCE. No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this ordinance and other applicable
regulations.
5-0410. ABROGATION AND GREATER RESTRICTIONS. This ordinance is not intended to repeal, abrogate, or impair any existing easements, covenants, or deeded restrictions. However, where this ordinance and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail.
5-0411. INTERPRETATION. In the interpretation and application of this ordinance, all provisions shall be:
1. Considered as minimum requirements;
2. Liberally construed in favor of the governing body; and
3. Deemed neither to limit nor repeal any other powers granted under state statutes.
5-0412. WARNING AND DISCLAIMER OF LIABILITY. The degree of flood protection required by this ordinance 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 man-made or natural causes. This ordinance does not imply that land outside
the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This ordinance shall not create liability on the part of the City of Harwood, any
officer or employee thereof, or the Federal Emergency Management Agency, for any flood damages that may result from reliance on this ordinance or any administrative decision lawfully made thereunder.
5-0413. ESTABLISHMENT OF DEVELOPMENT PERMIT. A development permit shall be obtained before construction or development begins within any area of special flood hazard established in
Section 5-0408. Application for a development permit shall be made on forms furnished by the City Council of Harwood and may include, but not be limited to: plans in duplicate drawn to scale showing the nature, location, dimension, and elevations of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities; and the location of the foregoing.
All elevation readings must be certified by a registered professional surveyor, engineer or architect, and compliance with flood proofing regulations, must be certified to by a registered professional engineer or architect. Specifically, the following information is required:
1. Elevation in relation to mean sea level, of the lowest floor (including basement) of all structures.
2. Elevation in relation to mean sea level to which any structure has been floodproofed.
3. Description of the extent to which any watercourse will be altered or relocated as a result of proposed development.
4. Description of structures (temporary or permanent), in compliance with the "Flood Proofing Code of the City of Harwood" which is made a part of the ordinance by reference.
5. A statement as to whether or not, if the permit application is for a new structure or the substantial improvement of an existing structure, such structure contains a basement.
6. If the application for a permit relates to a manufactured home park or a manufactured home subdivision, a copy of the excavation plan indicating alternative vehicular access and escape routes for said manufactured home park or manufactured home subdivision, shall be attached to said application as well as a statement by the applicant that such plan has been filed with the Disaster Emergency Services Office of Cass County, North Dakota.
7. Certification by a registered professional engineer or architect that the floodproofing methods for any residential structure meets the floodproofing criteria in Section 5-0418(A) and that any non-residential structure meet the floodproofing criteria in Section 5-0418(B).
5-0414. DESIGNATION OF THE FLOODPLAIN ADMINISTRATOR. The Floodplain Administrator is hereby appointed to administer and implement this ordinance by granting or denying development permit applications in accordance with its provisions.
5-0415. DUTIES AND RESPONSIBILITIES OF THE FLOODPLAIN ADMINISTRATOR. Duties of the Floodplain Administrator shall include, but not be limited to:
A. Permit Review
1. Review all development permits to determine that the permit requirements of this ordinance have been satisfied.
2. Review all development permits to determine that all necessary permits have been obtained from those federal, state or local governmental agencies from which prior approval is required.
3. Review all development permits to determine if the proposed development is located in the floodway. If located in the floodway, assure that the encroachment provisions of Section 5-0419(1)are met.
B. Use of Other Base Flood Data
When base flood elevation data has not been provided in accordance with Section 5-0408, BASIS FOR ESTABLISHING THE AREAS OF SPECIAL FLOOD HAZARD, the Floodplain Administrator shall obtain, review, and reasonably utilize any base flood elevation data and floodway data available from a federal, state or other source, in order to administer Sections 5-0418(A) SPECIFIC STANDARDS, Residential Construction, and 5-0418(B) SPECIFIC STANDARDS, Nonresidential Construction.
C. Information to be Obtained and Maintained
Information to be obtained and maintained with all elevation readings certified by registered professional surveyor, engineer or architect, and all compliance with Flood proofing regulations to be certified by a registered professional engineer or architect.
1. Obtain and record the actual elevation (in relation to mean sea level) of the lowest floor (including basement) of all new or substantially improved structures, and whether or not the structure
contains a basement.
2. For all new or substantially improved floodproofed structures:
a. Verify and record the actual elevation (in relation to mean sea level) to which the structure has been floodproofed; and
b. Verify that all structures (temporary or permanent) shall be constructed in accordance with the "Flood Proofing Code of the City of Harwood" which is made a part of this ordinance by reference;
c. Maintain the floodproofing certifications required in Section 5-0413(7).
3. Maintain for public inspection all. records pertaining to the provision of this ordinance.
D. Alteration of Watercourses
1. Notify adjacent communities and the North Dakota State Engineer prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal EmergencyManagement Agency.
2. Require that maintenance is provided within the altered or relocated portion of said watercourse so that the flood carrying capacity is not diminished.
3. Notify the appropriate water resource district prior to approval or placement of fill within two hundred beet of the bank of a body of water during normal flow or stage.
E. Interpretation of Flood Insurance Rate Map (FIRM) Boundaries Make interpretation where needed, as to the exact location of the boundaries of the areas of special flood hazard (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary will be given a reasonable opportunity to appeal the interpretation as provided in Section 5-0416.
5-0416. VARIANCE PROCEDURE.
A. Appeal Board
1. The City Council as established by the City of Harwood shall hear and decide appeals and requests for variances from the requirements of this ordinance.
2. The City Council shall hear and decide appeals when it is alleged there is an error in any requirements, decision, or determination made by the Floodplain Administrator or City Engineer in
the enforcement or administration of this ordinance.
3. Those aggrieved by the decision of the City Council, or any taxpayer, may appeal such decision to the appropriate court, as provided in North Dakota law.
4. In passing upon such applications, the City Council shall consider all technical evaluations, all relevant factors, standards specified in other sections of this ordinance, and:
a. The danger that materials may be swept onto other lands to the injury of others;
b. The danger to life and property due to flooding or erosion damage;
c. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;
d. The importance of the services provided by the proposed facility to the community;
e. The necessity to the facility of a waterfront location, where applicable;
f. The availability of alternative locations, for the proposed use which are not subject to\ flooding or erosion damage;
g. The compatibility of the proposed use with existing and anticipated development;
h. The relationship of the proposed use to the comprehensive plan and flood plain management program for that area;
i. The safety of access to the property in times of flood for ordinary and emergency vehicles;
j. The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; and
k. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges.
5. Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing
structures constructed below the base level, providing items a-k of Section 5-0416(A)(4) have been fully considered. As the lot size increases beyond the one half acre, the technical justification required for issuing the variance increases.
6. Upon consideration of the factors of Section 5-0416(A)(4) and the purposes of this ordinance, the City Council may attach conditions to the granting of variances as it deems necessary to further the purposes of this ordinance.
7. The Floodplain Administrator shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency upon request.
B. Conditions for Variances
1. Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard
to the procedures set forth in the remainder of this section.
2. Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.
3. Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
4. Variances shall only be issued upon:
a. A showing of good and sufficient cause;
b. A determination that failure to grant the variance would result in exceptional hardship to the applicant; and
c. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public as identified in Section 5-0416(A)(4), or conflict with existing local laws or ordinances.
5. Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.
5-0417. PROVISIONS FOR FLOOD HAZARD REDUCTION -- GENERAL STANDARDS. In all areas of special flood hazards the following standards are required:
A. Anchoring
1. All new construction and substantial improvements shall be anchored to prevent flotation, collapse or lateral movement of the structure.
2. All manufactured homes must be elevated and anchored to resist flotation, collapse or lateral movement and capable of resisting the hydrostatic and hydrodynamic loads. Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable state and local anchoring requirements for resisting wind
forces. Specific requirements may be:
a. Over-the-top ties be provided at each of the four corners of the manufactured home, with two additional ties per side at intermediate locations, with manufactured homes less than 50 feet long requiring one additional tie per side;
b. Frame ties be provided at each corner of the home with five additional ties per side at intermediate points, with manufactured homes less than 50 feet long requiring four additional ties per side;
c. All components of the anchoring system be capable of carrying a force of 4,800 pounds;
d. Any additions to the manufactured home be similarly anchored.
B. Construction Materials and Methods
1. All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.
2. All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage.
3. All new construction and substantial improvements shall be constructed with electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding.
C. Utilities
1. All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system;
2. New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharge from the systems into flood waters;
3. On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.
D. Subdivision Proposals
1. All subdivision proposals shall be consistent with the need to minimize flood damage;
2. All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage;
3. All subdivision proposals shall have adequate drainage provided to reduce exposure to flood damage; and
4. Base flood elevation data shall be provided for subdivision proposals and other proposed development which contain at least 50 lots or5 acres (whichever is less).
5-0418. PROVISIONS FOR FLOOD HAZARD REDUCTION--SPECIFIC STANDARDS. In all areas of special flood hazards where base flood elevation data has been provided as set in Section 5-0408 BASIS FOR ESTABLISHING THE AREAS OF SPECIAL FLOOD HAZARD or Section 5-0415(B), Use of Other Base Flood Data, the following provisions are required:
A. Residential Construction
1. New construction and substantial improvement of any residential structure shall:
a. be floodproofed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water according to the Flood Proofing Code of Harwood, approved by the Federal Emergency Management Agency and adopted by the City of Harwood;
b. be designed so that the lowest foundation opening is at least one foot above the base flood elevation. Any basement area, together with attendant utilities and sanitary facilities, below that level must be designed so that the structure is watertight without human intervention (i.e., the base or sill of all external openings such as windows and doors must be one foot above the 100-year base
flood elevation). Basement walls must be built with the capability to resist hydrostatic and hydrodynamic loads and the effects of buoyancy resulting from the 100-year frequency flood and must be designed so that minimal structural damage will occur if this design is exceeded.
c. Basements constructed in accordance with these regulations must not be used for sleeping purposes.
d. be certified by a registered professional engineer that the floodproofing measures used in the structure satisfy the Flood Proofing Code of Harwood.
e. The Floodplain Administrator will verify that the structure has been built in accordance with the floodproofing code approved by the Federal Emergency Management Agency.
B. Nonresidential Construction
New construction and substantial improvement of any commercial, industrial or other nonresidential structure shall either have the lowest floor, including basement, elevated on fill to at least one foot above the base flood elevation; or, together with attendant utility and sanitary facilities, shall:
1. Be floodproofed to at least two feet above the base flood elevation, so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water;
2. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and
C. Manufactured Homes
1. Manufactured homes shall be anchored in accordance with Section 5-0417(A).
2. All manufactured homes or those to be substantially improved shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated on fill to at least one foot above the base flood elevation and is securely anchored to an adequately anchored foundation system.
D. All elevation readings required by this section shall be certified by a registered professional surveyor, engineer or architect, and all compliance with Flood proofing regulations must be certified to by a registered professional engineer or architect.
5-0419. FLOODWAYS. Located within areas of special flood hazard established in Section 5-0408 are areas designated as floodways. Since the floodway is an extremely hazardous area due
to the velocity of flood waters which carry debris, potential projectiles, and erosion potential, the following provisions apply:
1. Prohibit encroachment, including fill, new construction, substantial improvements, and other development unless certification by a registered professional engineer or architect is provided demonstrating that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.
2. If Section 5-0419(1) is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of Sections 5-0417, 5-0418 and 5-0419.
5-0420. VALIDITY. If any section, clause, paragraph, provision, or portion of these regulations shall be held invalid or unconstitutional by any court of competent jurisdiction, such holding shall not affect any other section, clause, paragraph, provision, or portion of these regulations.
5-0421. PENALTY. Any person violating any section of this chapter shall be guilty of an infraction and shall be subject to the penalties set forth in Section 1-0211. Each day such violation
continues shall be considered a separate offense.