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Prineville council chooses FEMA "permit-to-permit" default amid legal concerns
Summary
After a detailed staff briefing and council questions, the Prineville City Council directed staff to proceed under the FEMA pre-implementation compliance measure (PICM) option 3 — a permit-based approach — citing legal and practical limits to adopting the model code or prohibiting development in floodplains.
Prineville — The City of Prineville on Nov. 26 directed staff to proceed under option 3 of the FEMA pre-implementation compliance measures (PICMs), a permit-to-permit approach, after a lengthy public hearing and staff presentation on the implications of the agency's biological opinion (BiOp).
Joshua Smith, the city's planning director, told the council the December 1 deadline had passed and the city had defaulted to option 3. He described the three choices as: prohibit development in all floodplain areas (option 1), adopt a FEMA model ordinance (option 2), or use a permit-based approach with guidance yet to define criteria or responsible reviewers (option 3). Smith said option 2 is “extremely difficult to administer and enforce” and that option 1 raises constitutional takings risks.
City attorney Jared Reed urged caution about legal feasibility. Reed told the council the rule-making and timelines required under Oregon land-use law made the December 1 adoption of a new land-use code effectively infeasible and said legal opinions would inform any follow-up steps.
Staff recommended the council keep the city on option 3 and consider sending a comment letter to FEMA expressing concerns; Smith noted some jurisdictions had submitted similar letters and received acknowledgments but said the exercise was largely symbolic.
After council members asked detailed questions about floodplain delineations, the effect on existing development and the practical challenges of habitat assessments, a councilor moved to proceed with option 3. The motion was seconded and approved by voice vote.
Next steps: staff will return with the operational details for a permit-to-permit approach, any proposed local code changes if required, and legal analysis about compliance and liability before any formal ordinance is adopted.
What was said
“Staff recommendation is to stay with option 3 where we defaulted,” Joshua Smith said during the presentation. Jared Reed noted that “there was no actual way to have the code passed by December 1 and truly follow Oregon land use code and the timelines that are involved.”
The council did not adopt a new ordinance at the meeting; it instead directed staff to pursue option 3 and report back with the required procedural steps and legal analysis.
