Dealing With Floodplain Violations What s a Floodplain Manager Do?

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Ohio Department of Natural Resources - Floodplain Management Program

Dealing With Floodplain

Violations – What’s a

Floodplain Manager Do?

Presented for:

West Virginia Floodplain Managers

Seminar and State Organizational Meeting

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WARNING!!!

Specific legal advice should be sought from

your community’s legal counsel.

This presentation is not meant to

be construed as legal advice;

rather, it is a topical overview of

code enforcement from a planning

perspective.

What is a Violation?

A

Violation

is the the failure of a

structure or other development to be

fully compliant with a community’s

floodplain management regulations.

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How Do Violations Occur?

• Incorrect interpretation of standards by Floodplain Manager or developer

• Community’s floodplain development permitting program does not ensure compliance

• Lack of citizen knowledge about locally adopted floodplain management requirements

• Failure of the developer/property owner to obtain a floodplain development permit

• Disregard for regulations

What is Violation Remedy?

To remedy a violation means to bring the

structure or other development into full or

partial compliance with State or local

regulations or, if this is not possible, to

reduce the impacts of its

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Why Remedy Floodplain

Violations?

• Violations increase the risk of flood damage within your community

• Violation remedy is a condition of participation in the National Flood Insurance Program (NFIP)

• Damages the credibility of a community floodplain management program

• Can result in legal actions against a community • Can lead to formal sanctions against the community

by FEMA (44CFR59.24(b)(3))

Prerequisites for

Successful Enforcement

• Good code administration is the foundation for good code enforcement.

• Keep accurate and detailed records!

• Beware of Constitutional Issues – Due Process and Equal Protection

• Be ready for the long haul!

• Get to know your community’s legal counsel • Communication

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Types of Enforcement Actions

• Administrative

–Initiated and led by the Floodplain Manager –Generally less “formal” than judicial methods

–Relies on “good faith effort” by violator; no real penalties • Judicial

–Initiated by Floodplain Manager, led by community’s legal counsel –Includes formalized process

–Violator faces penalties • Section 1316

–Unique to NFIP

Meeting with Violator

• Informal

• Can be telephone, but better if in person • Floodplain Managershould be prepared to

discuss violation, section of code violated, and possible remedies

• Goal should be to obtain a commitment from violator to remedy the violation

• Document the encounter!

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• More formal warning to violator

• Should be used when meeting cannot be arranged or did not work

• Send by certified mail, return receipt requested • Goal is to get violator to contact your office to

discuss the issue.

Notice of Violation

Administrative:

• Common elements include:

– Name of property’s record owner – Street address

– Code sections in violation

– Description of the property’s condition which violates the applicable code

– List of necessary corrective actions

– Deadline to bring violation into compliance – Reference to penalties for noncompliance

Notice of Violation

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• Semi-formal meeting between violator

and Floodplain Manager

• Floodplain Manager and violator may

have legal counsel present

• Floodplain Manager must be prepared to

discuss violations and corrective actions

Office Hearing

Administrative:

• Technique where a trained, neutral third party mediates a discussion between violator and floodplain administrator

• Goal is to have an objective discussion of issue, explore options to correct violation and arrive at a written agreement signed by all parties

• Agreement should identify tasks and establish a timeline for completion

Mediation

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• Developed by Ohio’s Floodplain

Management Program

• It is a variation of mediation

• Used for particularly difficult violations

• Provides a standardized process for

violation remedy

Alternative Violation Remedy

Process (AVRP)

Administrative:

• Can result in an injunction being issued against the violator

• Process may take time

• Injunction spells out a remedy to the violation • Contempt charges can be filed if violator fails to

remedy violation

• Important for Floodplain Manager to follow standardized procedure for pursuing violations that will result in judicial actions

Civil Actions

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• May result in fines and/or imprisonment of

violator

• Process takes less time to get court order

than civil actions

• Burden of proof higher than in civil actions

• Important for Floodplain Manager to follow

standardized procedure for pursuing

violations that will result in judicial actions

Criminal Prosecution

Judicial:

The decision must be made in

consultation with your community’s legal

counsel

How do you choose:

Civil or

Criminal?

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Helpful Hints

• Keep a detailed chronology of contact – it will be extremely useful if the violation remedy is pursued in court

• Educate your legal counsel regarding local floodplain management regulations – don’t wait until a violation occurs to start building a relationship

• When going to court, remember the goal is to remedy the violation and reduce flood risk associated with the development

Section 1316 Insurance

Denial

• Communities can request that FEMA deny insurance coverage on structures that are violations of flood damage prevention regulations • If approved, flood insurance coverage would not

be available under the NFIP for the life of the structure

• Serious ramifications to property owner

• Last resort option, even after administrative and judicial options have been pursued.

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Section 1316 Insurance

Denial

• Declaration by community must contain the following:

– Name of property owner and description of property – Declaration of violation

– Statement that public body making declaration of violation has authority to do so

– Evidence that property owner has been provided notice of violation and prospective denial of insurance

– Statement that declaration is being submitted pursuant to Section 1316

The Takings Threat

Fact or Fiction??

• Performance-oriented regulations of the

NFIP have been deemed a “takings”

– Responsible Citizens vs. Ashville

• Regulations going beyond NFIP minimum standards should be evaluated carefully • In some other states compensation laws for

“diminished value” of land are new and have not been evaluated as to impact

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Alternative Violation

Remedy Process

(AVRP)

The AVRP is a process that can be used

to remedy violations without pursuing

enforcement through formal legal

procedures.

Components of the AVRP

Document

The AVRP contains:

• Background Information

• Step-By-Step Instructions

• Remediation Plan

• Remediation Plan Review Form

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AVRP Process

1. Floodplain Manager establishes the violation. All

documentation (elevation certificates, photographs, site plan, etc.) must be collected to demonstrate the violation. 2. Floodplain Manager consults with community’s legal counsel

to determine if AVRP is appropriate enforcement method. 3. Floodplain Manager writes a Notice of Violation to the property

owner, suggesting AVRP as an option to remedy violation. 4. Floodplain Manager schedules an AVRP meeting with

property owner and possibly the community’s legal counsel, architect/engineer for the property owner, or other experts.

AVRP Process

continued…

5. AVRP development meeting is conducted. A third-party facilitator/mediator is recommended

• Discuss purpose of meeting, nature of violation, AVRP, anticipated outcome, process for writing the RP and submitting it to State NFIP-Coordinating Office and FEMA for comments and concurrence.

• Discuss corrective actions necessary achieve full compliance with the community’s flood damage prevention regulations • Discuss whether the corrective actions to attain full compliance

are achievable

• Discuss alternative corrective actions that would achieve less than full compliance

• Select corrective actions • Develop a timeline for completion

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6. Floodplain Manager and/or property owner writes the RP. The RP must include the following information:

• Property address

• Name and address of property owner • Nature of the violation

• What corrective actions would be needed to achieve full compliance with the community’s flood damage prevention regulations

• Corrective actions that have been selected

• Rationale for selecting corrective actions that do not achieve full compliance

• Timeline for completion

• Signature by the Floodplain Manager and property owner

AVRP Process

continued…

7. Floodplain Manager sends the RP to State NFIP-Coordinating Office for review and comment

8. State NFIP-Coordinating Office forwards RP to FEMA for review

9. The RP will be returned to the Floodplain Manager with State NFIP-Coordinating Office and FEMA’s comments. 10. Mediator/facilitator conducts follow-up meeting with

property owner to discuss any changes to the RP based on the State NFIP-Coordinating Office /FEMA comments and finalize RP. Floodplain Manager and property owner sign RP

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11. RP is implemented by identified parties.

12. Implementation of RP is monitored by Floodplain Manager. 13. Upon completion of corrective actions in RP, Floodplain

Manager gives final sign-off. Copies of signed plan are provided to State NFIP-Coordinating Office

14. The Floodplain Manager establishes and maintains a AVRP file of all AVRP actions taken

Your State NFIP-Coordinating Officeis available to provide technical assistance, including options for corrective actions,

during the AVRP process or for any other floodplain management issues.

AVRP Process

continued…

Improve Your Chances of

Success

• Don’t have preconceived opinions about a particular violations (i.e. Beware of feuding neighbors!)

• Make an attempt to speak with the violator before sending a NOV or other written correspondence

– explain the violation – intent of the regulations

– potential remedies to the violations

The violator may not like what you are saying, but may be more likely to resolve an issue if the regulations are explained to them

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When Is It Appropriate to

Use the AVRP?

• Present owner of a property in violation was not the owner at the time the structure became non-compliant

• The violation occurred a number of years ago • The permit issued for a development violated

local floodplain management regulations • A particular remedial measure would

undermine the credibility/ability of local officials or their efforts to achieve compliance.

When Is It NOT Appropriate

to Use the AVRP?

• Observance or discovery of a violation in

progress

• Discovery of a minor violation that is

easily corrected

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• Can be an effective way to resolve violations • If successful, the AVRP eliminates time and

cost of more formal judicial enforcement actions

• The implemented Remediation Plan will reduce flood risk, at least minimally

• Is another tool in the Floodplain Manager’s toolbox for code enforcement

Advantages

AVRP

• The AVRP or Remediation Plan lacks any mechanism to guarantee compliance – A community MAY have to resort to formal enforcement action

• If completed successful, the action taken may not result in a reduced flood insurance premium for the property owner

• The AVRP sets a precedent for allowing less than full compliance

Disadvantages

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• Using the AVRP for violations identified by a Community Assistance Visit performed by FEMA or NFIP-State Coordinating Office does not guarantee that the community will not face sanctions (i.e. probation and/or suspension)

Disadvantages

continued…

AVRP

Keep focused…

• Educate your community about locally adopted floodplain management regulations • Tour floodplain areas often to monitor

development and identify potential violations early

• Keep your community’s efforts directed toward reducing local flood risk

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