Chapter 5: Local Enforcement and Monitoring Program Compliance
To this point, this floodplain text has established the basis for what a floodplain management program must include and the state and local requirements necessary to meet the National Flood Insurance program (NFIP) requirements and the local flood ordinance. Now that your community is participating in the NFIP, how do you set up your program and make it work? Besides the development permit, what tools are available to enforce local program regulations and to monitor compliance.
A floodplain ordinance cannot effectively reduce the severity of flood damages unless it is properly enforced. Adequate, uniform and fair enforcement requires that:
Communities need to establish a procedure to ensure these two requirements are met. For example, the best way to ensure the first requirement is to have a PERMIT certificate displayed at the development site in full view. Such a certificate should be brightly colored so it is easily seen. It should be printed on durable material to withstand the weather during the construction period. If construction is taking place without a permit, it can be readily observed.
Communities can ensure the development is built to NFIP standards by having the local administrator make inspections during the construction period. Such inspections should be documented in the project file.
After a structure is built, the NFIP regulations require a community to "obtain and maintain the elevation of the lowest floor or the floodproofed elevation of all new or substantially improved structures". The burden of providing this requirement is on the permit applicant though proper submittal of elevation certificates.
THE LEGAL BASIS
There are important reasons why your community must enforce its floodplain management ordinance. First and foremost is the need to protect the lives and property of the community's residents, both present and future. Second is the need to meet state and federal requirements agreed to when the community applied to participate in the NFIP, Your community has the same responsibilities and enforcement powers for floodplain management as it does for other code-related violations (such as Fire/Building/Electrical and Plumbing).
Although one violation may not cause a measurable increase in risk or damage, the cumulative effects can be devastating. By allowing violations to go unabated, the community creates an atmosphere and establishes precedent that may make future enforcement much more difficult. It is imperative that the communities actively enforce its floodplain management ordinance to insure that all new development is compliant and to protect existing development from the increased risk of flooding.
The basis for enforcement of any ordinance/code is the Penalty Section, which prescribes the action local officials can take to enforce the community's ordinance/code.
The authority for state, county, or municipal floodplain boards to enforce floodplain management regulations is provided in 82 OS 2001, §1604.
There are other statutes available to community officials that can be used to assist in the enforcement of floodplain management. These other statutes include Titles 11, 19, 50 and 74 of the Oklahoma Statues. Titles 11 and 74 are for cities and towns, Titles 19 and 74 are for counties and Title 50 is for dealing with public nuisances. Planning, zoning and land use can be regulated through these authorities. More specifically, general authority may be found in Article 22 of Title 11 of the Oklahoma Statutes, which provides for abatement safety hazards, dilapidated buildings, weeds, trash, junk cars and unsanitary conditions. In summary, communities in Oklahoma have the basic legislative tools to deal with situations that may jeopardize their floodplain safety.
IMPACTS OF ORDINANCE VIOLATIONS
Over 370 communities, counties and tribes in Oklahoma have adopted floodplain management ordinances that regulate development and establish special conditions for development in the floodplains.
Development in the floodplain falls into six categories, construction (including mining, dredging, excavating and drilling operations), filling, grading, excavating, paving, and storage. It is important for the enforcement official to know what constitutes each of these activities and the impact of those activities that do not meet the requirements of the community's ordinance.
Buoyant materials pose a threat since they can be washed into a downstream structure causing a damming effect and additional damage to other structures. The community should also pay attention to the means of elevating stored materials to assure that the means are structurally sound and secure. Structural failure could lead to the loss of life and property. Anchoring is one of the more important forms of securing structures both in and out of a floodplain.
Preventing increased damage is the primary objective of floodplain management. To accomplish that objective, any type of activity that could block or divert water, increase velocities, or send floodwater onto properties that would not otherwise be flooded must be regulated. It is the community's responsibility to review and evaluate the impact of all floodplain development and to approve and permit only the activities that meet the requirements of the local floodplain management regulations. The community is responsible to prevent the negative effects of unwise and/or improper development in the floodplain and ensure no adverse impact.
The ways to resolve a violation are as varied as the types of violations that may occur. There are, however, two common threads that hold all violations together: either the violator did not obtain a permit prior to construction or the violator did not follow the requirements of the approved permit application. In either case it is the community's responsibility (normally the Floodplain Administrator) to ensure that the regulation requirements are met.
DISCOVERY, NOTIFICATION, AND INSPECTION
Once a community has discovered or received notification of a possible violation, an inspection should be scheduled. This action may be as simple as stopping and talking to the violator and receiving his/her assurance that the violation (dumping trash or fill in a drainage ditch or failing to post his permit) can and will be corrected.
If the violation cannot be resolved on the spot, the inspector may need to check the code and site information before visiting the site. Essential information includes:
If there is an active permit, the inspector may enter the property. However, if there is not an active permit, permission from the owners or occupants must be received prior to entering private property.
If the property owner is willing to talk to the inspector, the inspector may wish to hold an informal meeting and register the community's concern or determine that no violation has occurred. If the inspector is able to resolve the violation through this type of meeting and discussion, the community is ahead of the game and the public has been well served. However, the inspector must keep a record of the conversation and meeting because they could be used later in court.
If permission to enter the property is not obtained, the inspector should make a note in the record and leave the property. The inspector may inspect the property from any site accessible to the general public, such as roads, bridges, or parks. The inspector may also inspect the site from adjacent property if the adjacent owner gives permission.
Under no circumstances should the inspector force his/her way onto the property or gain access through intimidation. If access is denied, discuss the next means of action with the appropriate supervisors or the municipal/district attorney.
Once assured that a violation may be taking place, consult and get guidance from the municipal/district attorney before taking the next step. Posting the notice and sending the stop work order could be risky and questionable unless they are authorized in the state law.
Violation notices should always be sent by certified mail, with a copy of the receipt and the letter placed in the file. Often, violations have been dismissed in court because the community could not prove that the violator had been notified. If the violator refuses to sign the receipt, then it may be necessary to have the notice delivered by a law officer or two staff members (one to serve as witness). When the order is served to the developer, it is recommended a photograph is taken and that accurate identification is verified with a photo ID. The notice should also specify a date by which the owner must respond to the notice. The period of time must be reasonable and should be based on the potential threat to life/property. This date establishes the timing for additional action.
VIOLATION MEETING AND ENFORCEMENT OPTIONS
Assuming that the property owner wishes to clear up the violation (no-action will be discussed later under litigation), a violation meeting should be scheduled as soon as possible. The stop work order should remain effective until the violation is resolved.
The enforcement official should be prepared for all eventualities, from voluntary removal of the violation through the worst-case scenario, litigation. Explaining the possible ramifications of the violation may go a long way in convincing the violator to remove the violation without the need for litigation. Again, it is very important to keep a record of what was said at the meeting(s) because this information could be used later for a court record.
REMEMBER-Litigation is the most time-consuming and costly method of abating a violation. It may be the only way that a violation can be abated but SHOULD BE USED ONLY WHEN ALL OTHER EFFORTS FAIL.
Here are several violation scenarios and how you might deal with them:
Violation: Fill in floodway - No Permit
Too much fill put into floodway to repair erosion damage.
Possible Abatement Options:
This may entail more than removing a pile of dirt. If the fill has been graded and the original "natural" elevation can no longer be discerned, you will have to determine (as near as possible) the original elevations and slope. Then, you must require that the violator remove the fill only to that elevation and slope.
OPTION 2: LEAVE FILL
Have the violator apply for a permit and get a Letter Of Map Revision (LOMR). Then, you must give the violator copies of all pertinent application forms and establish a specific date by which you must receive all applications and data. You then need to coordinate your response with all other applicable agencies and inform the Oklahoma Water Resources Board and FEMA in writing of your actions. You must monitor the situation and be ready to fall back to Option 1 if the violator fails to meet his/her part of the agreement.
If you do not receive the permit application and LOMR data as agreed, then the violation must be considered active and all violation notices should remain in effect until the LOMR and the permit application are received. You should inform the violator that the violation is still active, provide a second due date for the submission of the data, and inform him/her that if the information is not received that the community will initiate litigation.
Violation: Fill in floodplain - No Permit
Fill for low water crossing into a property on the other side of a designated
floodplain is being placed without a permit and with no drainage openings.
OPTION 1: REMOVE FILL
Although removal of the fill would abate the violation, it could cause considerable inconvenience (not a hardship) to the property owner and only delays the final decision regarding an otherwise valid land use, when properly permitted. Additional factors, such as the effect of removal, possible replacement, and the potential for damage from the existing fill on the water quality of the stream, must be evaluated before the meeting with the property owner.
OPTION 2: LEAVE FILL
The fill will have to be removed until its effect on the base flood elevation is determined and construction plans approved by the community and a permit issued. At the meeting, the violator proposes to breach the illegal fill but not remove all of it. If the permit is not approved, he will remove the remaining fill. If the permit is approved, he would not have to bear the cost of returning that portion of the fill that he proposes to leave in place temporarily. As the enforcement official, you determine breaching the fill would relieve the threat of flooding to adjacent properties and not increase the base flood elevation, and accept his proposal based on his providing construction plans and applying for a development permit within 10 working days. It is very important to keep a record of what was said at the meeting, because this information may have to be entered as part of a court record. Also make sure that the property owner is aware that the violation will be pursued if the conditions of the agreement reached at the meeting are not met.
Violation: Single-family dwelling was not constructed to required elevation.
A single-family dwelling was built with its lowest floor (including basement) three feet below the elevation required by the local ordinance and is now one foot below the Base Flood Elevation (in violation of both the local ordinance and FEMA regulations).
Possible Abatement Actions:
OPTION 1: ELEVATE STRUCTURE
If the structure was built over a basement or crawl space, elevation may not be a viable option. If the structure was built on slab, elevation may be an option but probably more expensive. Special care must be taken to ensure that the new elevation meets the elevation requirements of the ordinance.
If the structure is built over a basement, then the first floor may be at or above the ordinance elevation, which may be more than the minimum FEMA requirement. If this is the case, you may wish to require that the basement be abandoned and filled. This option could be accomplished by moving all heating, plumbing and utilities and utility equipment to the first floor or higher and back-fill the basement.
OPTION 2: ALLOW STRUCTURE TO REMAIN
If you agree that the structure should remain on the site as is, then several actions should be taken:
OPTION 3: DEMOLISH STRUCTURE
Although demolition would not normally be required for a structure with the lowest floor (including basement) one foot below the base flood elevation outside of a designated floodway, this is an option that must be considered. If the structure were in a floodway or more than one foot below the base flood elevation, demolition becomes a more appropriate option.
When determining what action your community should take in abating violations,
you should remember that normally the agency does not have the authority to
enter someone's property to correct a violation or to order another agency or
contractor to perform the work. Always discuss the community's options with
the community's legal counsel prior to taking or agreeing to any action. Remember,
if the structure remains, the community will eventually be providing emergency
community services and possibly other financial assistance to the residents.
Several communities have begun using the citation or "ticket" approach to enforce zoning and floodplain development requirements. If the floodplain ordinance permit requirement falls under the zoning or building code requirements, then the "ticket" approach is feasible. If violations of the floodplain ordinance are declared to be public nuisances, the "ticket" approach is also feasible. This system should mirror local zoning and nuisance enforcement techniques that already exist in most communities.
If the community has a floodplain board or has assigned those duties to a planning
or zoning board or uses a board of adjustment, it can use that system and procedure
to hear appeals from and review any order, requirement, decision, or determination
made by any official charged with enforcing the floodplain requirements.
There are limits on the types of penalties that can be imposed. A misdemeanor
offense is punishable by imprisonment in a county jail not exceeding one year
or by a fine not exceeding $500, or both fine and imprisonment. Where punishment
is not prescribed, local counsel should be obtained if such actions are seriously
considered or become the action of last resort.
In determining whether to use this option, the enforcement official should determine whether the action will have the desired effect of encouraging the removal or abatement of the violation. The best way to record the violation should be discussed with legal counsel. This option should not be used if in the opinion of the enforcement official there will not be a transfer of the property in the near future (three years or less is recommended). This option should not be used unless a violation letter is recorded.
IF ALL OTHER MEANS OF OBTAINING COOPERATION IN REMOVING OR ABATING A VIOLATION FAIL, then the final step is to request the Municipal Attorney or the District Attorney to initiate legal action against the violator.
Prior to taking the case to the attorney, the enforcement officer should make sure that the chronology and the documentation of past action is in order and easily discernible including significant dates, actions taken, and matters discussed. An inspection and meeting record should be attached, outlining the course of action taken up to this point.
When taking the case to the attorney, the enforcement official should have
a clear idea of the type of resolution being requested. This organization will
assist the attorney in determining the course of action to be pursued, such
as demolition, restoration, or another type of violation resolution.
If the attorney's actions fail to gain compliance, the enforcement official must be ready for a trial. This means either being ready to give testimony and/or lining up "expert witnesses" to give testimony. In these efforts, the enforcement official should follow the lead of the attorney who will actually prepare and present the case in court. The enforcement official is the best witness in any floodplain violation case because the enforcement official has:
The community may also wish to obtain "expert witnesses" to further clarify the community's position and the effects of non-compliance. Expert witnesses may be paid consultants with knowledge regarding violations of this type or officials from other communities with experience in these matters. It is important to explain to the court how the witnesses relate to this case and their area and field of expertise.
STATE ROLE IN LOCAL ENFORCEMENT EFFORTS
The NFIP regulations state that it is the community's responsibility to enforce the requirements of its floodplain management ordinance and any other more restrictive regulations of the state. However, at the request of FEMA, each Governor has designated an agency of State or territorial government to coordinate that State's or territory's NFIP activities. These agencies often assist communities in developing and adopting necessary floodplain management measures. As the designated state coordinator, the OWRB will provide consultation in dealing with a violation and a violator. Staff will work with the local officials to determine the best way to deal with the violation problem. However, it is ultimately the community's responsibility to pursue the appropriate course of action.
Conscientious enforcement of the floodplain ordinance must be undertaken. Communities that do not strictly maintain a permit system, do not keep adequate records, or have developed a pattern of granting variances, have violated their agreement with FEMA. Communities must practice floodplain management as set forth in their floodplain ordinance. Failure to adequately do so could trigger a visit from OWRB or FEMA representatives. This visit is called a Community Assistance Visit (CAV). The nature of a CAV will vary according to the circumstances of each community. If OWRB and FEMA find deficiencies in a community's management of their floodplain ordinance, OWRB and FEMA may request corrective actions be initiated by the community.
COMMUNITY ASSISTANCE VISITS
An on-site visit by FEMA and/or OWRB personnel consists of:
Following the on-site visit, a follow-up letter will be sent by FEMA or OWRB to the community outlining:
FEMA GUIDELINES ON PROGRAM DEFICIENCIES
EXAMPLES OF SUBSTANTIAL PROGRAM DEFICIENCIES:
EXAMPLES OF SUBSTANTIAL VIOLATIONS:
Although all participating communities are required to enforce compliant NFIP ordinances, not all communities have the same capabilities and the seriousness of deficiencies and violations will vary. Because of this, various mitigating and aggravating factors are taken into consideration by FEMA, and all enforcement actions are handled on a case-by-case basis. Mitigating factors do not relieve a community of its obligation to correct all deficiencies and remedy violations.
EXAMPLES OF MITIGATING FACTORS:
EXAMPLES OF AGGRAVATING FACTORS:
EXAMPLES OF WAYS TO CORRECT PROGRAM DEFICIENCIES:
EXAMPLES OF WAYS TO REMEDY VIOLATIONS:
During probation, an additional premium charge of $50 per policy will be levied on all new and renewed flood insurance policies. This surcharge is based on a one-year time period beginning with the imposition of probation and will be in effect this first year and during successive one-year periods during which the community remains on probation. If the probation period lasts three months, the surcharge is still in effect for the remainder of the year; if probation lasts 13 months, the surcharge is in effect for 24 months.
Probation is lifted or extended at the discretion of the FEMA Regional Director.
Subrogation is an action brought when flood damages have occurred, flood insurance claims have been paid, and all or part of the damage can be attributed to acts or omissions of a community. FEMA then sues a third party to recover flood insurance claims it has paid.
Before subrogation can take place
In seeking subrogation:
Denial of Flood Insurance and Disaster Assistance
Denial of flood insurance coverage makes commercial financing for unauthorized floodplain structures difficult to obtain. If the property has a 1316 and the owner corrects the deficiency, the 1316 can be lifted.
©1998-2013, Oklahoma Water Resources Board
Page last updated: February 05, 2008