In the wake of Superstorm Sandy, builders seeking to rebuild demolished buildings, reconstruct buildings that have suffered substantial damage, or replace existing residential structures with new ones, must solve some new problems involving state flood hazard area regulations, the state construction code, and local zoning laws.
The New FEMA Maps
The Federal Emergency Management Agency (FEMA) has now issued Advisory Base Flood Elevation (ABFE) maps for communities bordering or containing tidal waters. These maps set the 100 year flood elevations at levels substantially higher in shore communities than existing federal flood insurance rate maps (FIRMs), and delineated new federal 100 year flood zones. They divide coastal areas within the 100 year flood zone into Coastal A, which consists of areas merely subject to flooding, and Coastal V, which consists of areas also subject to severe wave action.
The new FEMA are not “official.” FEMA will formally adopt new maps, which will become the new federal flood insurance rate maps. The State of New Jersey, however, has chosen to treat these maps as determinative — at least until FEMA formally adopts new flood insurance maps.
NJDEP’s New Flood Hazard Area Regulations
The New Jersey Department of Environmental Protection (NJDEP) has issued new flood hazard area regulations. They became effectively immediately. These regulations made the FEMA flood maps the required standard for determining both the extent of flood hazard areas and flood elevations for areas subject to flooding by tidal waters. To construct any new residential structure within a flood hazard area, an individual flood hazard permit is required. Among other things, the lowest habitable floor must be one foot above the flood hazard design elevation.
Repairs to residential structures costing less than 50 percent of the preconstruction market value of the building, and that will leave the size, shape, and location of the building unchanged, are exempt from the flood hazard area regulations. They require no permit and are not subject to NJDEP’s flood hazard regulations.
For projects that are greater in scope, NJDEP has established a so-called “permit by rule” procedure, requiring prior written notice to NJDEP 14 days prior to commencement of construction, but no formal application. This procedure is available for reconstruction of existing residential structures where the cost exceeds 50 percent of the preconstruction market value of the building, and the reconstruction would not increase the footprint of the building by more than 300 square feet.
This permit-by-rule procedure is also available for larger additions, provided that the cost of the addition together with any other repairs does not exceed 50 percent of the preconstruction value of the building. Any fully enclosed basement must be filled in or must be opened up to permit flood waters to enter and must be limited in use to parking, storage or access to the building. A still larger addition would require an individual flood hazard permit.
NJDEP is relying on determinations made by the flood management official in each municipality. That official makes the initial determination as to whether a residence has suffered “substantial damage” (damage that requires repairs costing in excess of 50 percent of the pre-flood market value of the building). Property owners and builders can rely on the determination of the local municipal flood management officer to determine whether they are required to file a prior written notice with the NJDEP and proceed under the permit-by-rule regulations.
Applicability of the New Jersey Uniform Construction Code
Although statements by the Governor have focused attention on the NJDEP flood hazard area standards, repairs, reconstruction, and rebuilding must also comply with requirements of New Jersey’s Uniform Construction Code.
Under the International Residential Code, which has been incorporated into New Jersey’s Uniform Construction Code (UCC), any new housing or any addition to a residential building must conform to current code standards for elevation above flood levels (enclosed levels must be at least one foot above the 100 year flood level). For structures in the Coastal V zone, all structural members other than pilings or pillars must be at least one foot above the 100 year flood level. If the building must be substantially demolished, the building must comply with current code standards on elevation. Other repairs, renovations, or reconstructions are governed by the rehabilitation subcode and need not comply with this standard.
The UCC also has other potential consequences. Elevation of buildings to satisfy NJDEP flood hazard requirements that increase the total height of the building are deemed additions for construction code purposes. They must, therefore, comply with the code requirements for new construction. For houses in the Coastal V zone, this would require replacing the existing foundation with pilings or pillars.
The UCC also requires that any rehabilitation not raise a building to a level higher than would be permitted for a new building of similar construction. Conventional unprotected wood frame structures cannot have a mean height for highest portion of the roof greater than 35 feet above grade. For a new structure, construction to a greater height would require full sprinkling and fire protected construction. The New Jersey Department of Community Affairs (DCA) has recommended that local code officials may grant variations from this height limitation, but only on restrictive conditions. Moreover, elevation of houses may trigger code requirements dealing with wind load, including an engineering analysis.
The accuracy of FEMA mapping is critical to property owners and builders. Property owners and builders can submit objections and alternative wave level data to FEMA.
In addition, property owners and builders may apply to NJDEP for an alternative determination of flood levels and the extent of flood hazard areas for particular properties, although NJDEP projects that few such applications will actually be successful. NJDEP is also warning that its determinations will not necessarily affect FEMA mapping, which controls flood insurance rates.
Local Zoning and Variance Issues
Property owners, builders, and renovators must deal with local zoning requirements as well. Many structures in the areas hit by Sandy are pre-existing, non-conforming uses that would not be permitted under current zoning ordinances. Rebuilding could be problematic because the Municipal Land Use Law (MLUL) does not permit the restoration of pre-existing, non-conforming structures that have been “totally” destroyed. There is likely to be significant dispute as to whether such structures have been totally destroyed.
If a municipal zoning official determines that a non-conforming structure is totally destroyed, the property owner seeking to rebuild may appeal that decision to the local zoning board of adjustment, or seek a use variance if such an appeal is denied. Moreover, property owners may have to reapply to their local boards for bulk variances that were granted years ago.
Height variances may be required if homes will be rebuilt above NJDEP’s flood hazard design elevations based upon FEMA’s ABFE maps. Homes will be elevated either by increasing the construction grade or by raising the structure on pilings or pillars. If a property owner seeks to build above the height limit allowed by the local zoning ordinance, a variance for the increased height may be required. Changes to local zoning ordinances or the MLUL could, if enacted, eliminate the need for some or all of the variances that may be required under current law.
The factors to be considered post-Sandy include national, state and local laws, as well as flood insurance complications. Builders seeking to navigate through the complex maze of statutes and regulations are well-advised to seek sound engineering advice and experienced legal counsel.