City staff propose UDO flood-ordinance clarifications, keep 2-foot freeboard; legal team warns new state law limits downzoning

At the Jan. 9 agenda briefing, Interim Public Works Director Amy Deaton and City Attorney Brad Branham outlined proposed updates to three sections of the Unified Development Ordinance (UDO) related to the flood ordinance and the legal constraints the city now faces.

Deaton said staff’s amendments are intended to “bring our regulations into compliance with state and federal requirements, to better align our regulations with best practices for floodplain management, to clarify development language, to better support permit applicants and city staff in the permitting process, and to simplify the code for all users.” She said the package is primarily technical but identified three categories for council: technical, conflict and substantive changes.

On the look-back period for calculating substantial damage and improvement, staff removed ambiguity and clarified that the city will continue to use a one-year look-back period as previously administered. On historic-structure exemptions, Deaton said the ordinance currently allows exemptions via a variance and that staff recommends continuing the variance route because historic designation decisions can be subjective and are appropriate for a quasi-judicial proceeding.

Deaton said staff recommends continuing a 2-foot freeboard requirement for new construction and for structures that are substantially damaged or improved; that standard “has been administered this way for commercial and residential structures since 2009,” she said. She noted the State’s model ordinance recommends 4 feet but that two feet is the minimum recommended by the State. Deaton warned that reducing freeboard below two feet could lower the city’s Community Rating System class and reduce flood-insurance premium discounts for policyholders.

City Attorney Brad Branham outlined a separate but related development: recent state legislation (discussed in the briefing as the bill circulated as Senate Bill 382) has become law and, in Branham’s words, “is going to place a very, very hard limits on what any local government can now do to change zoning unilaterally.” He said the law bars local governments from imposing changes that would “reduce the developable capacity” of property without the owner’s consent, and that staff and legal counsel are still analyzing how broadly that restriction will apply.

Branham said staff will return with a fuller legal analysis and suggested the council can safely take steps that “freeze” current zoning or expand allowable uses but must be cautious about imposing additional restrictions that could be interpreted as downzoning. He also discussed the administrative timeline for substantial-damage determinations: once the city issues an official determination that a structure is substantially damaged (commonly defined as repairs exceeding 50% of pre-storm value), federal “shot clocks” and appeal periods are triggered and owners have time-limited obligations to submit permits to retain eligibility for federal flood-insurance and public-assistance benefits.

Council members asked for more outreach to affected property owners and businesses. Staff said they plan individualized contacts for property owners, to use waived-fee early-assistance meetings to help owners evaluate options, and to hold off starting appeal clocks until owners have had reasonable opportunity for such conversations where possible. Brad Branham emphasized that the shot-clock rules are federal requirements the city cannot extend indefinitely.

Staff said the UDO amendments and related materials will be presented at the council’s Jan. 14 business meeting (public hearing A was noted as scheduled) and that a fuller recovery-and-CIP briefing including FEMA public-assistance process information will be presented Jan. 23. Planning staff will return Jan. 28 with additional UDO/housing-reform briefings ahead of Feb. 11 public hearings on multiple text amendments.