Development in Areas Prone to Flooding

Development in flood prone areas is regulated by a combination of federal, state and local regulations to reduce the possibility of loss of life and property, and to reduce the cost associated with development and rebuilding in these areas. The Federal Emergency Management Agency (“FEMA”) publishes flood maps that identify the regulatory floodplain. Congress has enacted various changes to existing legislation to discourage development in special hazard areas and to facilitate the purchase of flood insurance in by property owners in flood prone areas. Under current laws, communities that want to make national flood insurance available to its residents must participate in the National Flood Insurance Program. This required communities to adopt certain minimum standards that regulate development in areas that are prone to flooding, including standards that prohibit new development in special hazard areas.

Regulating flood plains is based on FEMA’s maps, but the maps are not always accurate. If a development is contemplated in the regulatory floodplain as shown on a FEMA map, an engineer can perform a study for submission to FEMA and obtain a letter of map revision (LOMR) or a letter of map amendment (LOMA) that redefines the regulatory floodplain and will allow development based on the revised map. Communities that participate in the national Flood Insurance Program have adopted procedures for this procedure, which has the effect of revising the national flood insurance program maps.

New development in floodplains or special hazard areas can involve the use of fill, which is also strictly regulated by local, state and federal authorities to ensure that a plan to use fill demonstrates that the fill will not cause additional flooding problems. Many historic structures are present in floodplains since waterways were traditionally the first “highways,” and our first industries and commercial centers first occurred next to rivers. Federal, state and local regulations provide for floodplain variances to allow the redevelopment or adaptive re-use of historic structures. Without a waiver for historic structures, it would be nearly impossible to redevelop these buildings for twenty first century uses. Granting a waiver typically requires a hearing by a specially appointed local board. Flood-proofing measures, such as special barriers that can be employed during a flood, are typically incorporated into the design.

When a developer encounters a property with floodplain, rather than rejecting it immediately, further investigation may show that the property is worth the time and effort if the floodplain issues can be satisfactorily resolved.

For assistance with development of real property in flood –prone areas, contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

CWestoverChristine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

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