Loading...
HomeMy WebLinkAbout1990 02-01 PCP PLANNING CCMMISSION AGENDA CITY OF BROOKLYN CENTER FEBRUARY 1, 1990 STUDY SESSION 1. Call to Order: 7:30 p.m. 2. Roll Call 1989 Planning Commission 3. Approval of Minutes - December 7, 1989 4. Adjourn 1989 Planning Commission 5. Administer Oath of Office: (Commissioners Sander, Malecki, Johnson and Holmes) 6. Call to Order 1990 Planning Commission 7. Roll Call 1990 Planning Commission 8. Election of 1990 Chairman Pro tem 9. Chairperson's Explanation: The Planning Commission is an advisory body. One of the Commission's functions is to hold public hearings. In the matters concerned in these hearings, the Commission makes recommendations to the City Council. The City Council makes all final decisions in these matters. 10. Discussion Items a) Group Home Study b) New Flood Plain Ordinance 11. Adjournment r . � L k ;8NING w LAW REPORT Vol. 12,No.8 September 1989 THE FAIR HOUSING ACT AMENDMENTS OF 1988: POTENTIAL IMPACT ON ZONING PRACTICES REGARDING GROUP HOMES FOR THE HANDICAPPED by William D.McElyea Bill,McElyea is an associate in the Chicago-based law firm of Siemon,Larsen & Purdy where he practices in the areas of planning,zoning and eminent domain law.He has written on important land use topics,including an article on use quotas which appeared in the 1988 Zoning and Planning Law Handbook(Clark Boardman Co.,Ltd). • Potential Impact of Act's Legality of Spacing Requirements Handicap Provisions • Ordinance Definitions of`Family"Limiting Group Home Occupancy (The adoption of the Fair Housing Act Amendments of 1988 AIDS, and other persons who may come under the Amend- heralded a new era for protecting the rights of handicapped ments'definition of"handicap,"are now protected by the Fair persons to housing. Among other things, the Amendments, Housing Act. Unfortunately, the Amendments and the House which appear as Public Law 100L430(September 13, 1988) Committee Report accompanying their adoption continue to and are codified with the rest of the Fair Housing Act at 42 leave local governments guessing about the validity of various U.S.CA.§§3601 et seq.(West Supp.1989),extended to hand- zoning regulations and practices which they apply to group icapped persons(as well as to families with children under 18) homes for the handicapped. The purpose of this article is to the same protection that the Act already provided against point out a number of issues that the Amendments raise with discrimination on the basis of race, color, religion, sm or regard to zoning practices dealing with group homes for the national origin.Thus,developmentally disabled persons,men- handicapped, and that are likely to be the subject of Fair tally ill persons,physically handicapped persons,persons with Housing Act litigation for years to come.) Zoning and Plannin_ Law Report is pubiished by Clark Boardman Company, Ltd. 435 Hudson Street,New York. NY 10014. ISSN 0161-8113 --I s ot.:-cation,,s:es+g-?:!::r:v,ce acc.,ate and authoritative 1-or'Tat om n ward tothe suoject matter covered.It is vWo won•-e�n0erstand.rg that the oublisher Is not encagec encenng e':ai a::o.,nnn: r o!ne,--:•ess o al sew-ce.If legal acv"or ore,exoe. m4-l'ancea required,the services of a compe!ent ae-scn should be sougnt.—From a Declaration c'z- _c es:o-n!ly 2csc!ec:.a C:— ce?:"-.A—e,,can=a-As50c:at.on anc a CC--nee c.z-_:I.sners. rr Introduction: General Provisions Governing the Although this language does not explicitly provide that Handicapped zoning actions are subject to the Act, the courts have The Fair Housing Act Amendments of 1988 take im- previously applied similar"otherwise make unavailable portant strides toward ensuring that private-sector prac- or deny"language in the Act,see 42 U.S.C.A. §3604(a), tices in the housing market do not discriminate on the to hold that municipalities are liable for violating the Act - basis of handicap.Discriminatory practices in the private due to their zoning actions.See,e.g.,United States v.Cip; market have traditionally operated to deprive hand- ofBlackJack,508 F.2d 1179(8th Cir.1974),cert.denied, icapped persons of housing opportunities which are a- 422 U.S. 1042(1975).In addition,the House Committee vailable to non-handicapped persons. As a result of the Report accompanying the adoption of the Amendments, Amendments, the housing sales, rental, brokering, in- which is the key document explaining the legislative surance,and financing practices of the private sector may history of the Amendments, clearly indicates that local n n the basis of hand- zoning decisions fall under the purview of the Act. See not discriminate against someone o g icap (or even perceived handicap),just as they may not House of Representatives Committee Report,H.R. Rep. discriminate on the basis of race,color, religion, sex, or No. 100-711 at 24. national origins. See, e.g., 42 U.S.C.A. §§ 3604(c), (d), (e), (f)(1), (f)(2); compare 42 U.S.C.A. §§ 3604 (a), (b) (West Supp.1989).Thus,"red-lining"practices by lend- Proving a Fair Housing Act Violation ing institutions and insurers,evictions of tenants,refusing There are two ways that a plaintiff in a Fair Housing to sell or rent,and other housing-related practices which Act suit may prove that a zoning decision or policy discriminate on the basis of handicap are now prohibited. violates the Fair Housing Act. First, the plaintiff may In addition, the Amendments establish nationwide offer proof that the decision or policy is motivated by a standards requiring multifamily dwellings with four or discriminatory purpose,that is,that it involves intention- more dwelling units to be constructed so that common al discrimination against a class of persons protected by areas and individual units are accessible to and adaptable the Act.See, e.g., United States v. Yonkers Bd.of Educ., by handicapped residents. 42 U.S.C.A. § 3204(f)(3)(C). 837 F.2d 1181 (2d Cir. 1987). Second,the plaintiff may The Amendments also require that the owner of an exist- prove a violation of the Act by showing that the decision ing dwelling allow a handicapped tenant, at the tenant's or policy has a discriminatory effector"disparate impact" expense, to make reasonable modifications of the pre- on the classes of persons protected by the Act,even where mises in order to give that person full enjoyment of the an actual intent to discriminate is absent.See,e.g.,Metro- premises. 42 U.S.C.A. § 3204(f)(3)(A). Thus, the Fair politan Housing Dev.Co.v.Village ofArlington Heights, Housing Act Amendments of 1988 are an important 558 F.2d 1283(7th Cir.1977),cert.denied,434 U.S.1025 milestone in guaranteeing handicapped persons equal (1978);Huntington Branch,N.AA.C.P.v.Town of Hun- access to housing opportunities. tington,844 F.2d 926(2d Cir. 1988),off d without argu- ment, 109 S.CL 276(1988). Both types of actions, and Applicability to Local Zoning Regulations the tests applied by the courts therein,have been exten- The Amendments apply to local government zoning sively discussed elsewhere over the 20 years that the Fair regulations and decisions as well as to private actions. Housing Act has been in effect. See, e.g., Schwemm, The Amendments make it unlawful for anyone: Housing Discrimination Law 125-44 (1983); Schwartz, 'The Fair Housing Act and `Discriminatory Effect': A To discriminate in the sale or rental, or to otherwise New Perspective," 11 Nova L. Rev. 71 (1986); Blaesser make unavailable or deny,a dwelling to any buyer or &Stansell,"Municipal Liability Under the Fair Housing renter because of a handicap of— Act:An Update,"40 Zoning Digest at 3(October 1988). (A) that buyer or renter, While the 1988 Amendments were pending as House (B) a person residing in or intending to reside in Bill 1158,Representative Swindall and others submitted that dwelling after it is so sold,rented,or made avail- an amendment to the bill which would have required a able; finding of"intent"to discriminate before a local govern- (C) any person associated with that buyer or renter. ment could be held to violate the Act.See H.R.Rep. No. 42 U.S.C.A.§3204(f)(1)(West Supp. 1989)(empha- 100-711 at 89.The Committee on the Judiciary rejected sis added). this amendment, reflecting its intention that the"effect" For the purposes of this section, "discrimination" in- tests which have been applied by the courts should con- cludes "a refusal to make reasonable accommodations tinue to govern judicial review of local regulations under in rules, policies, practices, or services, when such the Fair Housing Act. Thus, local zoning decisions not accommodations may be necessary to afford such per- only may violate the Act if they are made with the son equal opportunity to use and enjoy a dwelling."42 intention of discriminating against handicapped persons, U.S.C.A. § 3204(f)(3)(B). but also may violate the Act if they have the"effect" of 146 denying housing to handicapped persons, so as to con- government may require group homes to go through a stitute"discrimination"under the Act. special use or conditional use approval process; (4) the extent to which local governments may regulate the num- Effect on Zoning of Group Homes for the ber of unrelated persons occupying a dwelling unit; and Handicapped (5) the extent to which a local government may impose Perhaps the most confusing and controversial context separation requirements on group homes.The remainder in applying the Amendments to local zoning will be re- of this article addresses each of these issues in turn. garding the establishment of group homes for the hand- icapped. Unfortunately, the Amendments do not clearly Restrictions on Types of Handicapped Persons Who spell out what types of land use regulations or zoning May Occupy or Establish Group Homes decisions regarding group homes run afoul of the Act.The The Fair Housing Act Amendments define"handicap" Committee Report discusses local land use, health, and as: safety regulations,but is not specific and clear regarding which regulations will or will not pass muster under the (1) a physical or mental impairment which substan- Amendments. Many people hoped that the regulations wally limits one or more of such person's major life promulgated under the Amendments by the U.S.Depart- activities, ment of Housing and Urban Development would provide (2) a record of having such an impairment,or guidance to local governments regarding the types of land (3) being regarded as having such an impairment,but use regulations and decisions which run afoul of the Act, such term does not include current, illegal use of or Unfortunately, HUD expressly refrained from adopting addiction to a controlled substance (as defined in regulations governing local land use and zoning decisions, section 102 of the Controlled Substances Act (21 in light of the fact that enforcement of the Act against local U.S.C.802)). zoning practices falls to the Department of Justice rather 42 U.S.C.A.§3602(h)(West Supp. 1989). than HUD.See 54 Fed.Reg.at 3240,3246(Jan.23, 1989). As explained by the report of the House Judiciary Com- HUD has therefore left local governments with little if any mittee accompanying the adoption of the Amendments, guidance as to the impact of the Amendments on local the definition of"handicap""is substantially similar to zoning decisions and regulations. the definition under the primary federal law prohibiting Thus,local governments throughout the nation are left discrimination against the handicapped,the Rehabilita- in somewhat of a muddle. Due to Congress's lack of tion Act of 1973.The Committee intends that the defini- clarity,the judicial arena will remain the forum forresoly- tion be interpreted consistent with regulations ing the various issues regarding the effect of the Amend- clarifying the meaning of the similar provision found in ments on local zoning practices dealing with :group Section 504 of the Rehabilitation Act (29 U.S.C.A. homes for the handicapped. This means that it may be § 706(8)(B) (West Supp. 1988)]." H.R. Rep. No. 100- many years before a clear picture emerges regarding the 711 at 22. effect of the Amendments on local zoning practices. The Rehabilitation Act has been interpreted to cover, among other types of"handicapped persons": (1) men- Issues Raised by the 1988 Amendments Concerning tally ill persons,see Doe v.Colautti,592 F.2d 704,707-08 Group Homes Outside of situations where a community denies a permit for a group home solely because of unfounded ZONING AND PLANNING prejudices or fears that neighborhood residents may have toward handicapped residents of the group home, which �w REPORT may amount to the clearest case of how local zoning decisions may violate of the Act, compare, City of Cle- burne v. Cleburne Living Center, 473 U.S. 432, 448-50 Editor (1985), there are several other issues confronting S.Dennison g loca Asst Assistant Editor governments as they try to figure out how local laws may Bob Franko or may not regulate group homes in the community. Production Editor Perhaps the most common and nettlesome issues in this Charles Annis regard will be:(1)the extent to which a local government Published eleven times per year by may restrict the t Clark Boardman Company,Ltd. Y types of handicapped persons who may 435 Hudson Street occupy group homes; (2) the extent to which a local New York,New York, 10014 government may permit group homes for non-handi- Subscription:$115 for eleven issues capped persons but not permit group homes for hand- COPy601:0 1989 by Clark Boardman Company, Ltd. icapped persons; (3) the extent to which a local I ISSN 0161-8113 147 (3d Cir. 1979); (2)persons with AIDS or infected by the speculation are insufficient to prove the requisite r HIV virus, see, e.g., Thomas v. Atascadero Unified threat to others. School Dist., 662 R Supp. 376 (C.D. Cal. 1987);Ray v. H.R.Rep.No. 100-711 at 29. School Dist.of DeSoto County,666 F.Supp. 1524(M.D. Fla. 1987); (3) persons with infectious diseases,see Ar- The House Committee intended for the"direct threat" 0 line v. School Bd. of Nassau County, 107 S.Ct. 1123 requirement to incorporate the standard under the Re- (1987); and (4) chronic alcoholics, see, e.g., ?inch v. habilitation Act set forth by the Supreme Courtin School Walters,765 F.2d 599(6th Cir. 1985);Sullivan v.City of Bd. of Nassau County v.Arline, 107 S.Ct. 1123 (1987). Pittsburgh, 811 F.2d 171 (3d Cir. 1987). Additional dis- H.R.Rep.No. 100-711 at 29.In Arline,107 S.Ct.at 1131, cussion in the Committee Report further indicates Con- the Supreme Court held that any exclusion of a handi- gress's intent to include such persons within the Fair capped person from the protection afforded by the Re- Housing Act's definition of"handicap."See H.R. Rep. habilitation Act must be based on an individualized No. 100-711 at 18, 22. The definition of"handicap" in inquiry regarding the risks that the person may present to the Fair Housing Act Amendments therefore is broad,and the health and safety of others.The Supreme Court stated is designed to protect a wide range of people from hous- that "courts normally should defer to the reasonable ing discrimination.This implies that local zoning regula- medical judgments of public health officials." Id. This tions and decisions must treat group homes for one type implies that local health officials could make a deter- of handicapped person the same as group homes for other mination as to whether any individual living in a group types of handicapped persons. For example, if a com- home constitutes a direct threat to the health and safety munity allows group homes for developmentally dis- of others,or that the municipality could require the group abled persons to locate in the community, then refusing home operator to certify that no resident of the group to allow group homes for mentally ill persons or for home constitutes such a threat persons with AIDS would be likely to run afoul of the The fact that the person has a particular handicap does Act. not,by itself,prove that there is a threat to others."In the case of a person with a mental illness,for example,there must be objective evidence from the person's prior be- "Direct Threat"Exclusion havior that the person has committed overt acts which Section 804(f)(7)of the Amendments,however,states caused harm or which directly threatened harm." H.R. that: Rep. No. 100-711 at 29.Therefore, a blanket exclusion r Nothing in this subsection[prohibiting discrimination of any particular class of handicapped persons from on the basis of handicap] requires that a dwelling be group homes,based on some assumption or fear that such made available to an individual whose tenancy would persons are dangerous to others,would be likely to violate constitute a direct threat to the health or safety of other the Act. individuals or whose tenancy would result in substan- tial physical damage to the property of others. 42 U.S.C.A. §3604(f)(7)(.West Supp. 1989). Allowing Group Homes for Non-Handicapped Persons But Not for Handicapped Persons Therefore, any person whose residency in a group The Fair Housing Act Amendments raise a similar home would constitute a direct threat to the health and issue regarding whether a community may prohibit group safety of others, or would result in substantial physical homes for the handicapped while at the same time allow- damage to the property of others,could be excluded from ing group homes (or other forms of"congregate living a group home. arrangements") for non-handicapped persons. One ex- Such a determination would have to be made on a ample of this would be where the community's zoning case-by-case basis, given the history of the particular regulations allow dormitories,nursing homes,and board- individual, and not be based on general, unfounded as- ing houses in some residential districts,but do not allow sumptions regarding the threat that a class of handicapped group homes for the handicapped in those districts.The persons may present.The House Committee categorical- same concerns arise under the Equal Protection Clause ly rejected the notion of excluding an entire category of of the federal constitution, as illustrated by the Supreme handicapped persons from the protection of the Fair Court's decision in City of Cleburne v. Cleburne Living Housing Act based on any assumption that all persons in Center,473 U.S.432(1985).The Cleburne decision can that category will present a threat to others. Rather, the be broadly interpreted to mean that a community must Committee Report states that: allow group homes for the handicapped to the same Any claim that an individual's tenancy poses a direct extent, and in the same manner,as other residential uses threat and a substantial risk of harm must be estab- which involve similar functions and similar densities of lished on the basis of a history of overt acts or current residents. (Under a narrower reading, Cleburne may Conduct. General assumption, subjective fears, and mean only that, in those districts where the community 148 decides to pennit group homes,the community must not per se;rather,it indicated that acommunity's zoning must subject them to a special use process if it allows similar treat group homes the same as it would other dwellings uses as permitted uses.)The Amendments reinforce Cle- housing a like number of persons and having similar burne and appear to require a community to allow group impacts on the community. homes for the handicapped in a residential district if it Even though the Committee Report does not discuss also allows dormitories,boardinghouses,nursing homes, the Cleburne decision in any detail,this seems to be the and other "congregate living arrangements" in that dis- thrust of the Fair Housing Act Amendments as well not trict. that housing for handicapped persons should be granted some preferred status or privileges greater than those Subjecting Group Homes to Special Use Approval received by non-handicapped persons, but that housing Requirements for handicapped persons should be treated the same as The Amendments also raise the issue of whether a housing for non-handicapped persons. For example, if community may require group homes for the handi- dormitories, boarding houses,and all other similar uses capped to go through a"special use"or"conditional use" must obtain special use approval in a particular zoning approval process, rather than allowing them as "per- district,then it may be legitimate to require group homes mitted uses"which are not subject to any special form of in that district to obtain special use approval as well. review by a local planning commission, local board of Nonetheless,an argument might also be made that the adjustment, or local legislative body. According to the special use process is,by its very nzture,so burdensome House Committee Report,the Amendments are"intend- for group homes for the handicapped that it essentially ed to prohibit the application of special requirements prevents the establishment of group homes in the com- through land-use regulations, restrictive covenants, and munity.The potential costs and delays associated with a conditional or special use permits that have the effect of community's special use approval process, such as for limiting the ability of such [handicapped] individuals to hiring attorneys and experts for public hearings, could live in the residence of choice in their community."H.R. end up imposing such a burden on group home providers Rep.No. 100-711 at 24(emphasis added).This statement that it effectively prevents the development of adequate could be interpreted to mean that a community may never housing opportunities for the handicapped in the com- require a group home for handicapped persons to go munity. If this is the effect of a community's special use through a special use review process. process, then requiring group homes to go through spe- On the other hand, it could merely indicate that sub- cial use approval may violate the Fair Housing Act. jecting housing for the handicapped to a special use However, if the special use process does not have this approval process will run afoul of the Fair Housing Act effect,such as if the community has a history of approv- only if it has the effect of restricting the housing choices ing special use applications for group homes and the of handicapped persons and thus restrains the housing community treats similar land uses in the same manner, choices of handicapped persons to a greater extent than then it would seem more difficult for a court to find a housing for non-handicapped persons.If requiring a spe- violation of the Act. cial use permit does not have such an effect in the com- munity,then it may be legitimate for local governments Restrictions on the Number of Unrelated Persons to require special use approval as a way to ensure that the Who May Occupy a Dwelling Unit potential zoning impacts of group homes can be ad- The Amendments also call into question the validity dressed on a case-by-case basis, the same as other land of regulations which limit the number of unrelated per- uses which are subjected to the special use process. sons, whether handicapped or not, who may occupy a single dwelling unit as a"family."This may end up being Relation to the Cleburne Decision the most difficult zoning practice for the courts to tackle The thrust of the Supreme Court's decision in Cle- under the Fair Housing Act. burne was that similar uses must be treated similarly. In Approximately 30 states have enacted statutes which Cleburne, a group home for 13 unrelated mentally re- .,preempt" local zoning of group homes for some types tarded adults was required to go through a special use of handicapped persons by requiring local zoning to treat review and approval process,even though other uses with group homes(up to some particular number of residents) similar impacts on the community (such as apartment the same as single-family dwellings.See,e.g.,Md.Health buildings,dormitories,and nursing homes)were allowed Code Ann. § 7-603 (Supp. 1988); Cal. Health & Safety in the same zoning district as permitted uses.The Court Code§ 1566.3(West Supp. 1989).Communities in these therefore found that the only basis for subjecting the states have thus been spared some of the difficulty of group home to the special use process was that its resi- deciding whether or not to treat group homes for hand- dents were mentally retarded.Cleburne,473 U.S.at 450. icapped persons in precisely the same fashion as single- The Court did not assail the use of the special use process family dwellings.Communities in other states,however, 149 are left with the difficult task of determining whether a prohibited an unmarried couple from living together in a { zoning ordinance's definition of"family," or any other single-family residential district,even though the couple regulation which limits the number of unrelated persons shared the same bedroom, maintained a joint checking sharing a dwelling unit, has the "effect" of denying account for household expenses, and disciplined each handicapped persons an equal opportunity to live in the other's children. community and thus violates the Fair Housing Act.The federal courts still have not clearly settled or stated what Reconciling Belle Terre with Moore constitutes"discriminatory effect"under the Fair Hous- Three years after the decision in Belle Terre, the Su- ing Act or what impact a showing of "discriminatory preme Court once again considered a local land use effect"has on a municipality's liability under the Act.See regulation controlling the composition of a"family."In Keith v.Volpe,618 F.Supp.1132, 1148(C.D.Cal. 1985), Moore v. City of East Cleveland, 431 U.S. 494 (1977), and cases cited therein. the Court invalidated a local regulation that defined"fam- In addition, the Amendments provide an exemption ily"in such a way that prohibited a woman,her son,and from the coverage of the Fair Housing Act which might two grandsons from sharing a single dwelling unit,where encompass local restrictions on the number of unrelated the grandsons were only cousins. In reconciling the persons who may share a dwelling unit.The Amendments Court's decision with Belle Terre,the plurality opinion in state that: Moore noted that the ordinance in Belle Terre"affected Nothing in this title limits the applicability of any only unrelated individuals." 431 U.S. at 498. The or- reasonable local,State,or Federal restrictions regard- dinance in Moore, however, regulated how related per- ing the number of occupants permitted to occupy a sons could live together,"slicing deeply into the family dwelling. itself."Id.The ordinance thus infringed on the fundamen- 42 U.S.C.A. § 3607(b)(1) (West Supp. 1989) (em- tal "freedom of personal choice in matters of marriage phasis added). and family life" and required the Court to invoke heightened scrutiny.431 U.S.at 498-99.This fundamen- This language indicates that a local government may tal interest was absent in Belle Terre. (Justices Stewart, impose reasonable limitations on the number of persons Rehnquist, and White, however, appeared to have no who may occupy a dwelling,as long as they are applied problem with regulations which would limit the number and do not discriminate on the basis of dwelling. See to all occupants of related persons who could occupy a d e g S race, color, religion, sex, national origin, handicap or Moore,431 U.S. at 535-37(Stewart,J.,dissenting);431 familial status.See H.R.Rep.No.100-711 at 31.It leaves U.S.at 549-51 (White,J.,dissenting)). open, however, the question of what constitutes a"rea- sonable"limitation on the number of occupants per unit, State Court Decisions on"Family"Limitations and whether it is legitimate for local zoning regulations The subsequent case law regarding limits on the num- to distinguish between related and unrelated persons.The ber of unrelated persons who may occupy a dwelling answer to these questions is not clear from the Amend- remains conflicting and unclear. Notwithstanding the ments,or from related case law. decision in Belle Terre, the courts of some states have gone on to invalidate limitations on the number of unre- Supreme Court Interpretations of"Family" lated persons who may occupy a dwelling as a"family," In Village of Belle Terre v.Boraas,416 U.S. 1 (1974), holding that such limitations are unreasonable.See,e.g., the United States Supreme Court upheld as reasonable a State v.Baker,405 A.2d 368(N.J.1979);McMinn v.Town local zoning regulation(the definition of"family's which of Oyster Bay, 66 N.Y.2d 544,488 N.E.2d 1240(1985), allowed no more than two unrelated persons to occupy a followed in Baer v. Town of Brookhaven,73 N.Y.2d 942, dwelling unit. The Court's decision included what has 537 N.E.2d 619, 540 N.Y.S.2d 234 (1989). Such deci- become a famous homily to the "blessings of quiet se- sions are typically based on the due process and/or equal clusion."Belle Terre,416 U.S.at 9("A quiet place where protection provisions of the state constitution,perhaps as yards are wide,people few,and motor vehicles restricted a way to provide greater protection to unrelated persons are legitimate guidelines in a land-use project addressed than is provided under the federal constitution as inter- to family needs.")It also held that regulating the number preted in Belle Terre. of unrelated persons who could share a dwelling unit did There are decisions from other states,however,which not, on its face, infringe with any fundamental rights to have upheld zoning ordinance definitions of "family" association, travel, or privacy. 416 U.S. at 7-8. Other which have operated to prohibit the establishment of courts have followed the decision in Belle Terre on nu- group homes. These include definitions of "family" merous occasions, including City of Ladue v.Horn,720 which restrict the number of unrelated persons who may S.W2d 745 (Mo. App. 1986),where the Missouri Court share a dwelling unit.See, e.g.,Hayward v.Gaston,542 of Appeals upheld a zoning definition of"family"which A.2d 760(Del. 1988),discussed in 11 ZONING& PLAN. 150 • v L. REP. at 87 (December 1988). In many of these cases, tainment businesses (despite the obvious First Amend- the courts have seen the group home as falling more under ment implications), see, e.g., Young v. American Mini the rubric of a "boarding house" than a "single-family Theatres,427 U.S.50(1976);City of Renton v.Playtime dwelling"or"single housekeeping unit."See,e.g.,Gar- Theatres, Inc., 475 U.S. 41 (1986). Therefore, there is cia v. Si}frin, 407 N.E.2d 1369 (Ohio 1980); Civitans nothing wrong per se with applying a separation require- Care,Inc.v.Bd.ofAdjustment,437 So.2d 540(Ala.App. ment to a category of land use. 1983). These courts therefore view group homes, and It is well established, however, that spacing require- restrictions on the living arrangements of unrelated per- ments effectively banning adult entertainment businesses sons, in a different light. from the community or confining them to a very few Unfortunately, the Committee Report for the;Fair available sites are invalid.See,e.g.,Keego Harbor Co.v Housing Act Amendments never mentions Belle Terre or City of Keego Harbor, 657 F.2d 94(6th Cir. 1981). The any of the other case law addressing the somewhat com- community may not rely on the argument that such estab- mon local practice of limiting the number of unrelated lishments nonetheless would be available in nearby com- persons that may constitute a "family" occupying the munities.See Schad v.Borough of Mt.Ephraim,452 U.S. same dwelling unit.As a result.Congress appears to have 61, 77(198 1)(Blackmun,J.,concurring).Thus,it is the left open the question of whether a community may exclusionary effect of these spacing requirements that the continue to restrict the number of unrelated persons who courts are likely to find objectionable. may share a single dwelling unit,or whether the Amend- Similarly, a separation requirement for group homes ments prohibit a community from applying such a provi- could be a problem under the FairHousing Act if it results sion to handicapped persons to the same extent that it in narrowing the number of available sites to such a small applies the restriction to non-handicapped persons. The number that it renders infeasible the development of courts will therefore have to sift through and make sense adequate housing for handicapped persons in the com- out of the existing case law in order to determine what, munity, and thus has the effect of denying or otherwise as a matter of federal law under the Fair Housing Act, making unavailable housing opportunities for handi- constitutes a "reasonable" limitation on the number of capped persons. The more the separation requirement occupants per unit. restricts the number of available sites for the development of group homes,the greater the likelihood that the separa- Spacing/Separation Requirements tion requirement will be held to violate the Act. Perhaps the most common form of land use regulation applied to group homes for the handicapped is the re- Conclusion quirement that group homes be separated some minimum The Fair Housing Act Amendments of 1988 raise a distance from other group homes and/or other similar variety f issues regarding local zoning uses. Many of the state "preemption"statutes discussed y g Practices regard- uses. Many or allow local governments to require,that ing group homes for the handicapped.Because Congress did not address specific group homes be separated from each other by some stated local zoning practices clearly and distance. The minimum separation distances stated in directly in the Fair Housing Act Amendments of 1988,or in the Committee Report accompanying the adoption of these statutes range widely. See, e.g., Conn. Gen. Stat. the Amendments,the task falls to the covets to resolve the Ann.ch. 124, § 8.3f(1989)(1,000 feet);Del.Code Ann. issues raised above.Con y y tit. 22, § 309(c) (1987) (5,000 feet). Similar separation its traditional reluctance two exert directccontro over local requirements also appear in state regulations governing land use decisions. Nonetheless, the issues discussed the licensing of group homes. See, e.g., 59 Ill. Admin. above—and many others—are likely to appear in future Code § 113.70(8)(9)(1985)(600 feet). litigation under the new provisions of the Fair Housing Analogy to Spacing Requirements for Other Uses Act.It is impossible,at this early stage,to predict precise- The courts have upheld separation requirements in ly what the courts will do. other contexts.It is not uncommon forlocal governments to fulfill the purposes of zoning by establishing spacing RECENT DEVELOPMENT requirements for uses that,if clustered too heavily in one Stymied Developer Seeks Certiorari Review on area, would have an adverse impact on the surrounding Validity of Marin County Large Lot Zoning Scheme neighborhood. Courts have upheld ordinances imposing Now that two federal courts have upheld agricultural spacing requirements on a variety of land uses, most zoning affecting a 561-acre ranch in the Nicasio Valley notably gasoline service stations,see.e.g.,Ross v City of Basin of Marin County, California. the landowner has Miami,205 So.2d 5.35(Fla. App. 1968),businesses sell- decided to take his case to the nation's highest tribunal. ing alcoholic beverages,see, e.g., City of Norfolk v. Tiny Richard Barancik,owner of Loma Alta Ranch,wishes to House,Inc., 281 S.E.2d 836(Va. 1981),and adult enter- build 28 vacation homes on his property, but under the 151 J .c County's large tract zoning scheme,he is only permitted NOTED IN BRIEF to build nine.In what has thus far been viewed as a victory An ordinance confining adult businesses to an in-{ for open space preservation, Marin County's denial of dustrial zoning district will not constitute content- B arancik's rezoning application has been upheld in feder- based regulation when the ordinance seeks to ameliorate al court.Barancik v.County ofMarin,872 F.2d 834(9th the effects of urban blight and provides for amortization Cir. 1988),discussed in 11 ZONING &PLAN.L.REP. at of businesses already located in other areas.Town of 1slrp 70-71 (October 1988).The court concluded that the agri- v.Caviglia,73 N.Y.2d 544,540 N.E.2d 215,542 N.Y.S.2d cultural zoning restriction on Mr. Barancik's property 139 (1989). By a 4-3 vote, New York's highest court was rationally related to the County's objective of promo- found this ordinance sufficiently narrowly tailored to ting agriculture in the area. affect only those establishments shown to produce un- Last month, Mr. Barancik's attorney, Brian W. wanted secondary effects,and allowed such uses reason- Blaesser, filed a petition for certiorari with the U.S. able alternative areas to locate on the more than 6,000 Supreme Court. Mr. Blaesser, a partner with Chicago- acres of land zoned industrial. based Siemon, Larsen& Purdy, seeks review of a sig- The dissenters argued that the town failed to de- nificant threshold issue that was dismissed by the federal monstrate that the ordinance was"no broader than neces- court on a motion for summary judgment, namely, the may,„as called for under its earlier decision in People ex constitutionality of imposing California's one-year sta- rel. Arcara v. Cloud Books, 68 N.Y.2d 553, 558, 503 tute of limitations for§ 1983 claims to in effect forever N.E.2d 492, 510 N.Y.S.2d 844 (1986). In Arcara, the bar all facial challenges to a land use regulation unless court determined that the New York State Constitution the landowner seeking to challenge the constitutionality was more protective of freedom of expression than the of the ordinance on its face,brings suit within one year Federal Constitution. 68 N.Y.2d at 557-59. The dissent after acquiring property then subject to the regulation. regarded the majority's position in Caviglia as an aban- Mr. Blaesser believes that the Ninth Circuit erred in not donment of the State's highly protective view of free applying the "continuing wrong"doctrine to extend the speech announced in Arcara, and an adoption of the statute of limitations. That doctrine holds that wrongful lesser "content-based" standard outlined in Renton v. zoning is a continuing wrong—each day an unconstitu- Playtime Theatres,475 U.S.41 (1986). tional ordinance is law, the constitution is violated. Mr. Blaesser also considers the one-year statutory limitation A municipality may frustrate the finality of zoning Ask directly at odds with the federal courts'reasoning behind board decisions by passing an ordinance permitting the "ripeness" doctrine. He states that "by requiring a landowners to bring successive rezoning requests every landowner to hung up and litigate before the one-year time limitation on facial challenges has passed,the whole twelve months.Price v. City of Georgetown,375 S.E.2d policy behind the concept of ripeness is contravened. 335 (S.C. App. 1988). Under this ordinance, the same landowner may make subsequent requests for the same Under the ripeness doctrine,a landowner must first pun- sue all available administrative and state court remedies change on the same property, in effect abolishing the prior to bringing an `as applied' challenge in federal doctrine of res judicata insofar as it might relate to any year-old ruling by the city zoning board.No showing of court.Ironically,by the time the landowner is entitled to challenge the land use regulation in a federal forum, a changed circumstances would be necessary in later ac facial challenge is barred by the one-year statute of uo�' limitations."For a discussion of the ripeness doctrine,see Mandelker&Blaesser,"Applying the Ripeness Doctrine UPCOMING CONFERENCE in Federal Land Use Litigation," I1 ZONING&PLAN.L. REP.45-55(July/August 1988). Municipal Solid Waste: Disposal Strategies, En- According to Blaesser, this is exactly what happened vironmental Regulation, and Contracts and Financ- to Barancik. After successfully clearing the "ripeness" ing, sponsored by ALI-ABA on September 21-22 in hurdle,a trial on the merits of his challenge to the agricul- Washington,DC.Learn cost-effective and environmen- tural zoning ordinance on its face and on equal protection tally sound methods of managing the growing problem grounds was barred by the one-year time period. As of municipal solid waste.A diverse panel of experienced Blaesser sees it: "Because of the ripeness doctrine, the professionals will offer valuable guidance from various door to federal court as it is, is only open a crack to points of view on all topics related to this important topic, plaintiff-landowners.The one-year statute of limitations including discussions on emerging regulatory issues,spe- effectively slams the door the rest of the way for those cial wastes, recycling and waste reduction, financing of landowners who challenge an ordinance on its face." solid waste projects, and enforcement actions. For more Perhaps the Supreme Court will agree to resolve this information, call Alexander Hart at (215)243-1630 or important issue. (800)CLE-NEWS (toll free,except Pennsylvania). 152 J + j Of interest _ 1. Nev.-fit' 1"_,_r-= ru_4 ,_ nity will be expected to adopt a new that no new flood insurance studies will manciaT ' cran5es to ordinance or amend its existing ordi- be done in Minnesota. Our funding for nance to become compliant with the technical analysis work will be shifted '��' �vvu_�iiu�:. new regulations. State law allows a to emphasize re-studies and mapping ordinances community six months to amend its changes on existing st-idies. ordinance but federal laws only allow "More emphasis will be placed on byy Joe Gibson, DNR three months so it is a good idea to community compliance than we have in In July, 1988 the Federal Emergency amend the zoning ordinance as rapidly the past,"Norb continued. "This means Management Agency and the Minne- as feasible to avoid possible federal more community assessment visits sots Department of Natural Resources sanctions. (CAV's) and more effort on follow-up to completed negotiations that will require About 30 counties and cities cur- ensure that any ordnance administration most counties and cities in Minnesota rently are in the process of adopting deficiencies are corrected." to revise their floodplain zoning ordi- the new, compliant language. Many are A common problem the Division of nances. These changes are needed to simply repealing their old ordinances Waters has noted is the failure of corn. bring local floodplain zoning ordinances entirely and adopting the new model in munities to certify the as-built elevations into compliance with changes in federal its place. on structures built in the floodplain. This regulations which were actually effec- Since most communities revise and is a very important gage of whether a tive in 1986. upgrade their zoning ordinances period- community is adequately administering The negotiation process has resulted rcaUY, we encourage any in that situa- its ordinance. When this is noted in the in the creation of a new set of "model tion to consider upgrading their CAV process, the community is usually floodplain ordinances" for Minnesota. fl00dPlain ordinances at the same time. required to submit after-the-fact evi- Below is a list of major changes that This may help reduce hearing and dence that the structure was built to the have been included in the revised notice costs. Any community in that proper elevation. model floodplain ordinances: situation should contact DNR or FEMA In the southern U.S., FEMA has 1. The definition of"basement"was and get a copy of the new model been forced to place several communi- expanded to include all below grade ordinance that is applicable to your ties on probation for failure to certify areas enclosed on all four sides. community. One way or another all ordinances or to correct ordinance vio- 2. Provisions were included to regu- local government units participating in lations they were instructed to imple- late the placement of travel trailers and the National Flood Insurance Program ment. Ultimately, if compliance is not travel vehicles. (NFIP) will be contacted during the achieved, these communities will be 3. Changes were made in the a PP li- next three years. suspended from the NFIP. cation of wet or dry floodproofing tech- As always, your DNR Area Hydrol- While there are many complicated niques for accessory structures and ogist or the Floodplain Management issues related to floodphdri manage- substantial improvement to primary Program staff in St. Paul will be happy ment, local permitting officials must structures, to provide assistance and advice in keep in mind the three most important 4. Changes were made requiring adopting or amending your ordinance. ones: elevation, elevation and ele- replacement manufactured homes to be You can also call on these same people vation. Properly elevated and anchored. if you have questions about your flood 1. When reviewing project plans and 5. Changes were made to incorpo- insurance rate maps, state or federal permit applications, you must first rate specific enforcement procedures laws and regulations or interpretations determine what the proper flood pro- for dealing with ordinance violations. of your local ordinance. tection elevation is for the site. 6. Minor grammatical changes were 2. When the building permit is also incorporated to clarify confusing Flood insurance program issued, specify on the permit what language. emphasis changes in elevation the structure must be built The end result of this process is that 1989 to or above. This will lead to less essentially all local floodplain zoning conflict, especially when several sub- ordinances in the state are now non- 1989 will be marked by"New Begin- contractors may be involved in the compliant with federal regulations. This rings" in the National Flood Insurance Project. is a serious problem but don't panic. Program (NFIP). 3. After the structure is built, make The DNR has also negotiated a sched- This message was relayed to DNR certain that the as built elevation is ule for revising local ordinances and staff by Norbert (Korb) Schwartz at certified in accordance with your ordi- these revisions will occur over a three- our September coordination meeting. nance before a certificate of occupancy Year time period. FEMA agreed to this Norb is the Branch Chief of the Federal or zoning compliance is issued. strategy with the hope that a more Emergency Management Agency's Do this and your community should thorough upgrade process will be (FEMA) Region 5 Natural Hazards have very few problems with the Federal accomplished. Branch in Chicago. Emergency Management Agency. ■ How will this process affect local Norb said, "In Minnesota, all com- Reprinted with permission from governments?If DNR or FEMA sched- munities in the Emergency Phase of Water Talc, Volume 3, Issue, Fall, ules a Community Assistance Visit the NFIP will be converted to the 1988, Minnesota Department of Natu- (CAV) in your community, the commu- Regular Phase. In essence this means ral Resources, Division of Waters. 12 Minnesota Cities i y Explanation of 1988 Changes in the Sample Floodplain Zoning Ordinance for a. 3 - District, Two - Map* Local Government Unit Section 1: No Changes Section 2: Primary change was to definitions in Section 2.8. It was felt t hat a ng efinitions of Conditional Use and variance would make the ordinance understandable (the definitions provided are consistent with the proposed more definitions to be provided in the consolidated planning and zoning statute under considerations). These two definitions are optional. A definition of "Basement" was added to essentially deal with enclosed, below grade areas such as crawl spaces or non-residential below grade enclosed areas. If these types of below grade spaces are allowed for new construction/addition then this definition must be added along with the standards contained in s' Sections 5.42 and 5.43. Section 3: The compliance language was moved to Section 3.0 and.ex and warn against the more common mistakes and oversights that are made b loc l building code officials. This language is not mandatory but strongly al recommended. Section 4.0: The format of this section was revised to more clears state uses are permitted or conditional) Y to which standards for each. This new formatpisnrecommendedh but pnotcre required. Other changes to this section include: q ed. Other -Provisions for regulating travel trailers and travel vehicles consistent with FEMA's new standards (also see Section 9.3). travel vehicles not meeting the exemptions in Sction 9.31,comm travel language in Sections 4.37, 5.56 and 9.3 or something similar must be included in their ordinance. -Section 4.0, and specifically 4.38, was amended to recommend a ma 10-year flood height for agricultural levees that protected crops ximum - Section 4.44 was amended to require a long-term site and ultimate development plan for uses requiring storage for significant volumes of materials in the floodway. This language is recommended for communities having to deal with long-term dredge spoil operation, sand and gravel businesses, etc. -Section 4.45 was amended to cldrify which accessory structures can be wet-flood, in lieu of dry flccd proofing. If a community's existing ordinance presently allcws wet-floodproofed accessory structures (see language in Sections e.e are the language now provided d in 4 of 1978, 3-District Sample Ordinance), ..;5 must be included in the ordinance. *Similar changes apply to other lccd' government units with variations on this rdinance type. s r 4 Section 5.0: The format of this Section was revised and the major clarification prove a are as below: -Section 5.41 was provided to specifically cite "construction" and "use of space" standards for elevated buildings not in fill and are required when this construction technique is allowed. -As mentioned in Comment #2 above, the language in Section 5.42 is required - when below grade, enclosed spaces are allowed. -FEMA has specific fill compaction standards for issuance of LOMR's and FEMA does not require these specific development standards to be stated on a building permit. The language in Sections 5.54 .and 7.3 was included as a warning for those who may be requesting a LOMR once construction is complete. Section 6.0: The case-by-case floodway/flood fringe determination procedure was moved up to this section where it more logically belongs and Section 6.0 was also revised to have the City Council/County Board approve the final fl oodway alignment. This language is recommended but optional. Section 7.0: As previously mentioned in Section 5.0 above, FEMA LOMR standards are cited as a warning for new construction. This language is -optional but recommended. Section 8.0: If the community allows on-site sewer and water, then language simi a1 r to 8.3 is required. Section 9.0: The language in Sections 9.1-9.2 must be included where necessary to c ear y require replacement manufactured homes outside of floodway to be properly elevated to the RFPE and that sufficient over-the-top or ground anchors be provided. For the discussion in Section 9.3 for travel trailer/vehicles, see comments for Section 4.0 above. Section 10.37: Technically under FEMA standards the language and notice in must accompany local variances. As noted earlier, the case-by-case analysis for the General Flood Plain District was moved to Section 6.0. Section 11.0: Section 11.0 was revised to clarify that non "substantial" improve can be either "wet" or "dry" flood proofed and that "substantial" improvement must be dry flood proofed or elevated to RFPE. This is the minimum acceptable language. Section 12.0: This Section was amended to incorporate specific enforcement procedures and options for dealing with violators. Language similar to this must be incorporated where there is a documented pattern (more than one) of local ordinance enforcement deficiencies. i r CITY OF BROOKLYN CENTER Notice is hereby given that a public hearing will be held on the day of , 1990, at p.m. at City Hall, 6301 Shingle Creek Parkway, to consider a new Flood Plain Management Ordinance. Auxiliary aids for handicapped persons are available upon request at least 96 hours in advance. Please contact the Personnel Coordinator at 561-5440 to make arrangements. ORDINANCE NO. AN ORDINANCE REPEALING ORDINANCE NO. 82-1 (FLOOD PLAIN MANAGEMENT) AND ADOPTING A NEW FLOOD PLAIN MANAGEMENT ORDINANCE CONSISTENT WITH STATE AND FEDERAL REGULATIONS The City Council of the City of Brooklyn Center does ordain as follows: Section 1. Section 35-2100 through Section 35-2190 inclusive of the Brooklyn Center Zoning Ordinance are hereby repealed. Section 35-2100 FLOOD PLAIN MANAGEMENT. Section 35-2110. STATUTORY AUTHORIZATION, FINDINGS OF FACT AND PURPOSE. 1. Statutory Authorization -1- The Legislature of the State of Minnesota has, in Minnesota Statutes Chapter 104 and Chapter 368.01, delegated the responsibility to local governmental units to adopt regulations designed to minimize flood losses. Therefore, the City Council of the City of Brooklyn Center, Minnesota does ordain as follows: 2. Findings of Fact a. The flood hazard areas of the City of Brooklyn Center, Minnesota, are subject to periodic inundation which results in potential loss of life, loss of property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare. b. Methods of Use to Analyze Flood Hazards. This ordinance is based upon a reasonable method of analyzing flood hazards which is consistent with the standards established by the Minnesota Department of Natural Resources. 3. Statement of Purpose It is the purpose of this ordinance to promote the public health, safety, and general welfare and to minimize those losses -2- described in Section 35-2110.2a by provisions contained herein. Section 35-2120 GENERAL PROVISIONS. 1. Lands to which Ordinance Applies This ordinance shall apply to all lands within the jurisdiction of the City of Brooklyn Center shown on the Official Zoning Map and/or the attachments thereto as being located within the boundaries of the Floodway, Flood Fringe, or General Flood Plain Districts. 2. Establishment of Official Zoning Map The Official Zoning Map together with all materials attached. thereto is hereby adopted by reference and declared to be a part of this ordinance. The attached material shall include the Flood Insurance Study for the City of Brooklyn Center prepared by the Federal Insurance Administration dated August 17, 1981, and the Flood Boundary and Floodway Maps and Flood Insurance Rate Maps therein, all as amended by the attached Amendment No. 1, prepared by Barr Engineering. The Official Zoning Map shall be on file in the Office of the City Clerk and the Zoning Administrator. 3. Regulatory Flood Protection Elevation -3- The Regulatory Flood Protection Elevation shall be an elevation no lower than one foot above the elevation of the regional flood plus an y increases in flood elevation caused by encroachments on the flood plain that result from designation of a floodway. 4. Interpretation a. In their interpretation and application, the provisions of this ordinance shall be held to be minimum requirements and shall be liberally construed in favor of the governing body and shall not be deemed a limitation or repeal of any other powers granted by State Statutes. i b. The boundaries of the zoning districts shall be determined by scaling distances on the Official Zoning Map.p. Where interpretation is needed as to the exact location of the boundaries of the district as shown on the Official Zoning Map, as for example where there appears to be a conflict between a mapped boundary and actual field conditions and there is a formal appeal of the decision of the Zoning Administrator, the Board of Adjustment shall make the necessary interpretation. All decisions will be based on elevation on the regional (100 year) flood profile and other available technical data. Persons i contesting the location of the district boundaries shall be given a reasonable opportunity to present their case to the Board of Adjustment and to submit technical evidence. -4- • a i r 5. Abrogation and Greater Restrictions r It is not intended by this ordinance to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this ordinance imposes greater restrictions, the provisions of this ordinance shall prevail. All other ordinances inconsistent with this ordinance are hereby repealed to the extent of the inconsistency only. 6. Warning and Disclaimer of Liability This ordinance does not imply that areas outside the flood plain districts or land uses permitted within such districts will be free from flooding or flood damages. This ordinance shall not create liability on the part of the City of Brooklyn Center or any officer of employee thereof for any flood damages that result from reliance on this ordinance or any administrative decision lawfully made thereunder. 7. Severability If any section, clause, provision, or portion of this ordinance is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this ordinance shall not be affected thereby. -5- r Y 8. Definitions Unless specifically defined below, words or phrases used in this ordinance shall be interpreted so as to give them the same meaning as they have in common usage and so as to give this ordinance its most reasonable application. Accessory Use or Structure - a use or structure on the same lot with, and of a nature customarily incidental and subordinate to, the principal use or structure. Basement - means any area of a structure, including crawl spaces, having its floor or base subgrade (below ground level) on all four sides, regardless of the depth of excavation below ground level. Special Use - means a specific type of structure or land use listed in the official control that may be allowed but only after an in-depth review procedure and with appropriate conditions or restrictions as provided in the official zoning controls or building codes and upon a finding that: (1) certain conditions as detailed in the zoning ordinance exist and (2) the structure and/or land use conform to the comprehensive land use plan and are compatible with the existing neighborhood. Equal Decree of Encroachment - a method of determining the -6- I location of floodway boundaries so that flood plain lands on both sides of a stream are capable of conveying yang a proportionate share r of flood flows. Flood - a temporary increase in the flow or stage of a stream or in the stage of a wetland or lake that results in the inundation of normally dry areas. Flood Freauency - the frequency for which it is expected that a specific flood stage or discharge may be equalled or exceeded. Flood Fringe - that portion of the flood plain outside of the floodway. Flood fringe is synonymous with the term "floodway fringe" used in the Flood Insurance Study for the City of Brooklyn Center. Flood Plain _ the beds ro e p p r and the areas adjoining a wetland, lake or watercourse which have been or hereafter may be covered by the regional flood. Flood-Proofing - a combination of structural provisions, changes, or adjustments to properties and structures subject to flooding, primarily for the reduction or elimination of flood damages. Flo_ odwav - the bed of a wetland or lake and the channel of a watercourse and those portions of the adjoining flood plain which -7- t �. are reasonably required to carry or store the regional flood discharge. Obstruction - any dam, wall wharf, embankment, levee, dike, pile, y abutment, projection, excavation, channel modification, culvert, building, wire, fence, stockpile, refuse, fill, structure, or matter in, along, across, or projecting into any channel, watercourse, or regulatory flood plain which may impede, retard, or change the direction of the flow of water, either in itself or by catching or collecting debris carried by such water. Principal Use or Structure - means all uses or structures that are not accessory uses or structures. Reach - a hydraulic engineering term to describe a longitudinal segment of a stream or river influenced by a natural or man-made obstruction. In an urban area, the segment of a stream or river between two consecutive bridge crossings would most typically constitute a reach. I Regional Flood - a flood which is representative of large floods known to have occurred generally in Minnesota and reasonably characteristic of what can be expected to occur on an average frequency in the magnitude of the 100-year recurrence interval. Regional flood is synonymous with the term "base flood" used in the Flood Insurance Study. -8- e !I 1 1 Regulatory Flood Protection Elevation - The Regulatory Flood Protection Elevation shall be an elevation no lower than one foot above the elevation of the regional flood plus any increases in flood elevation caused by encroachments on the flood plain that result from designation of a floodway. Structure - anything constructed or erected on the ground or attached to the ground or on-site utilities, including, but not limited to, buildings, factories, sheds, detached garages, cabins, manufactured homes, and other similar items. Variance - means a modification of a specific permitted development standard required in an official control including this ordinance to allow an alternative development standard not stated as acceptable in the official control, but only as applied lied to a particular property for the purpose of alleviating a hardship, or unique circumstance as defined in Section 35-240. I -9- I Section 35-2130. ESTABLISHMENT OF ZONING DISTRICTS 1. Districts a. Floodway District The Floodway District shall include those areas designated as floodway on the Flood Boundary and Floodway Map adopted in Section 35-2120.2. b. Flood Fringe District The Flood Fringe District shall include those areas designated as f floodway fringe on the Flood Boundary and Floodway Map adopted in Section 35-2120.2 c. General Flood Plain District The General Flood Plain District shall include those areas designated as unnumbered A Zones on the Flood Insurance Rate Map adopted in Section 35-2120.2. -10- t II 2. Compliance No new structure or land shall hereafter be used and no structure shall be located, extended, converted, or structurally altered with full compliance with the terms of this ordinance and other applicable regulations which apply to uses within the jurisdiction of this ordinance. Within the Floodway, Flood Fringe and General Flood Plain Districts, all uses not listed as permitted uses or special uses in Sections 35-2140, 2150, and 2160 that follow, respectively, shall be prohibited. In addition, a caution is provided here that: a. New manufactured homes and replacement manufactured homes are subject to the general provisions of this ordinance. b. Modifications, additions, structural alterations or repair after damage to existing nonconforming structures and nonconforming uses of structures or land are regulated by the general provisions of this ordinance and specifically Section 35-21_ C. As-built elevations for elevated or flood proofed structures must be certified by ground surveys and flood proofing techniques must be designed and certified by a registered professional engineer or architect as specified in the general provisions of this ordinance and specifically as stated in Section 35-21_ of this ordinance. -11- Section 35-2140. FLOODWAY DISTRICT (FW) . 1. Permitted Uses a. General farming, pasture, grazing, outdoor plant nurseries, horticulture, truck farming, forestry, sod farming, and wild crop harvesting. b. Industrial-Commercial loading areas, parking areas, and airport landing strips. C. Private and public golf courses, tennis courts, driving ranges, archery ranges, picnic grounds, boat launching ramps, swimming areas, parks, wildlife and nature preserves, game farms, fish hatcheries, shooting preserves, target ranges, trap and skeet ranges, hunting and fishing areas, and single or multiple purpose recreational trails. d. Residential lawns, gardens, parking areas, and play areas. 2. Standards for Floodway Permitted Uses a. The use shall have a low flood damage potential. b. The use shall be permissible in the underlying zoning district if one exists. -12- 1 C. The use shall not obstruct flood flows or increase flood elevations and shall not involve structures, fill, obstructions, excavations or storage of materials or equipment. 3. Special Uses a. Structures accessory to the uses listed in 4.1 above and the uses listed in subsection b through h. b. Extraction and storage of sand, gravel, and other materials. C. Marinas, boat rentals, docks, piers, wharves, and water control structures. d. Railroads, streets, bridges, utility transmission lines, and pipelines. e. Storage yards for equipment, machinery, or materials. f. Placement of fill. g. Travel trailers and travel vehicles either on individual lots of record or in existing or new subdivisions or commercial or condominium type campgrounds, subject to the exemptions and provisions of Section 9.3 of this ordinance. -13- h. Structural works for flood control such as levees, dikes and floodwalls constructed to any height where the intent is to protect individual structures and levees or dikes where the intent is to protect agricultural crops for a frequency flood event equal to or less than the 10-year frequency flood event. 4. Standards for Floodway Special Uses a. All Uses. No structure (temporary or permanent) , fill (including fill for roads and levees) , deposit, obstruction, storage of materials, or equipment, or other uses may be allowed as a Special Use that will cause any increase in the stage of the 100-year or regional flood or cause an increase in flood damages in the reach or reaches affected. I b. All floodway Special Uses shall be subject to the J procedures and standards contained in Section 10.4 of this ordinance. c. The conditional use shall be permissible in the underlying zoning i district of one exists. d. Fill 1. Fill, dredge spoil and all other similar materials deposited or stored in the flood plain shall be protected from erosion by -14- vegetative cover, mulching, riprap or other acceptable method. 2. Dredge spoil sites and sand and gravel operations shall not be allowed in floodway unless a long-term site development plan is submitted which includes an erosion/sedimentation prevention element to the plan. 3. As an alternative, and consistent with Subsection (b) immediately above, dredge spoil disposal and sand an gravel operations may allow temporary, on-site storage of fill or other materials which would have caused an increase to the stage of the 100-year or regional flood but only after the Governing Body has received an appropriate plan which assures the removal of the materials from the floodway based upon the flood warning time available. The Special Use Permit must be titled registered with the property in the Office of the County Recorder. e. Accessory Structures 1. Accessory structures shall not be designed for human habitation. 2. Accessory structures, if permitted, shall be constructed and I placed on the building site so as to offer the minimum obstruction to the flow of flood waters. -15- i i I i a. Whenever possible, structures shall be constructed with the longitudinal axis parallel to the direction of flood flow, and, b. So far as practicable, structures shall be placed approximately on the same flood flow lines as those of adjoining structures. C. Accessory structures shall be elevated on fill or structurally dry flood proofed in accordance with the FP-1 or FP-2 flood proofing classifications in the State Building Code. As an alternative, an accessory structure may be flood proofed to the FP-3 or FP-4 flood proofing classification in the State Building Code provided the accessory structure constitutes a minimal investment, does not exceed 500 square feet in size, and for a detached garage, the detached garage must be used solely for parking of vehicles and limited storage. All flood proofed accessory structures must meet the following additional standards, as appropriate: 1. The structure must be adequately anchored to prevent flotation, collapse or lateral movement of the structure and shall be designed to equalize hydrostatic flood forces on exterior walls; and -16 4 2. An mechanical and utility lity equipment in a structure must ` be elevated to or above the Regulatory Flood Protection Elevation or properly flood proofed. f. Storage of Materials and Equipment 1. The storage or processing of materials that are, in time of flooding, flammable, explosive, or potentially injurious to human, animal, or plant life is prohibited. 2. Storage of other materials or equipment may be allowed if readily removable from the area within the time available after a flood warning and in accordance with a plan approved by the City of Brooklyn Center. g. Structural Works for Flood Control that will change the course, current or cross section of protected wetlands or public waters shall be subject to the provisions of Minnesota Statute, Chapter 105. Community-wide structural works for flood control intended to remove areas from the regulatory flood plain shall not be allowed in the floodway. h. A levee, dike or floodwall constructed in the floodway shall not cause an increase to the 100-year or regional flood and the technical analysis must assume equal conveyance or storage loss on -17- both sides of a stream. SECTION 35-2150: FLOOD FRINGE DISTRICT (FF) 1. Permitted Uses: Permitted Uses shall be those uses of land or structures listed as Permitted Uses in the underlying zoning use district(s) . If no pre-existing, underlying zoning use districts exist, then any residential or non residential structure or use of a structure or land shall be a Permitted Use in the Flood Fringe provided such use does not constitute a public nuisance. All Permitted Uses shall comply with the standards for Flood Fringe "Permitted Uses" listed in Section 5.2 and the standards for all Flood Fringe "Permitted and Conditional Uses" listed in Section 5.5. 2. Standards for Flood Fringe Permitted Uses: (a) All structures, including accessory structures, must be elevated on fill so that the lowest floor including basement floor is at or above the Regulatory Flood Protection Elevation. The finished fill elevation for structures shall be no lower than one (1) foot below the Regulatory Flood Protection Elevation and the fill shall extend at such elevation at least fifteen (15) feet beyond the outside limits of the structure erected thereon. (b) As an alternative to elevation on fill accessory structures that constitute a minimal investment and that do not exceed 500 square feet -18- :� l I for the outside dimension at ground level may be internally flood proofed in accordance with Section 2140.4e.c) . (c) The cumulative placement of fill where at any one time in excess of one-thousand (1,000) cubic yards of fill is located on the parcel shall be allowable only as a Special Use, unless said fill is specifically intended to elevate a structure in accordance with Section 35-2150.2a. (d) The storage of any materials or equipment shall be elevated on fill to the Regulatory Flood Protection Elevation. I (e) The provisions of Section 35-2150.5 of this Ordinance shall apply. 3. Special Uses: Any structure that is not elevated on fill or flood proofed in accordance with Section 5.21-5.22 or any use of land that does not comply with the standards in Section 35-2150.5 shall only be allowable as a Conditional Use. An application for a Special Use Permit shall be subject to the standards and criteria and evaluation procedures specified in Sections 35-2150.4 and Special 35-21_ of this Ordinance. 4. Standards for Flood Fringe Conditional Uses: (a) Alternative elevation methods other than the use of fill may be utilized to elevate a structure's lowest floor above the Regulatory Flood Protection Elevation. These alternative methods may include the -19- use of stilts, pilings, parallel walls, eta. , or above-grade, enclosed areas such as crawl spaces or tuck under garages. The base or floor of an enclosed area shall be considered above-grade and not a structure's basement or lowest floor if: 1) the enclosed area is above-grade on at least one side of the structure; 2) is designed to internally flood and is constructed with flood resistant materials; and 3) is used solely for parking of vehicles, building access or storage. The aboved-noted alternative elevation methods are subject to the following additional standards: (a) Design and Certification - The structure's design and as-built condition must be certified by a registered professional engineer or architect as being in compliance with the general design standards of 1 the State Building Code and, specifically, that all electrical, r heating, ventilation, plumbing and air conditioning equipment and other service facilities must be at or above the Regulatory Flood Protection Elevation or be designed to prevent flood water from entering or accumulating within these components during times of flooding. I (b) Specific Standards for Above-grade, Enclosed Areas - Above-grade, fully enclosed areas such as crawl spaces or tuck under t garages must be designed to internally flood and the design plans must stipulate: (1) The minimum area of openings in the walls where internal flooding is -20- � ii I I �I 1 i to be used as a flood proofing technique. When openings are placed in a structure's walls to provide for entry of flood waters to equalize pressures, the bottom of all openings shall be no higher than one-foot above grade. Openings may be equipped with screens, louvers, valves, or other coverings or devices provided that they permit the automatic entry and exit of flood waters. (2) That the enclosed area will be designed of flood resistant materials in accordance with the FP-3 or FP-4 classifications in the State Building Code and shall be used solely for building access, parking of vehicles or storage. G (b) Basements, as defined by Section 2.812 of this Ordinance, shall be subject to the following: i (a) Residential basement construction shall not be allowed below the Regulatory Flood Protection Elevation. (b) Non-residential basements may be allowed below the Regulatory Flood Protection Elevation provided the basement is structurally dry flood proofed in accordance with Section 35-2150.4c of this Ordinance. (c) All areas of non residential structures including basements to be placed below the Regulatory Flood Protection Elevation shall be flood proofed in accordance with the structurally dry flood -21- proofing classifications in the State Building Code. Structurally dry flood proofing must meet the FP-1 or FP-2 flood proofing classification in the State Building Code and this shall require making the structure watertight with the walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and the effects of buoyancy. Structures flood proofed to the FP-3 or FP-4 classification shall not be permitted. (d) When at any one time more than 1,000 cubic yards of fill or other similar material is located on a parcel for such activities as on-site storage, landscaping, sand and gravel operations, landfills, roads, dredge spoil disposal or construction of flood control works, an erosion/sedimentation control plan must be submitted unless the community is enforcing a state approved shoreland management ordinance. In the absence of a state approved shoreland ordinance, the plan must clearly specify methods to be used to stabilize the fill on site for a flood event at a minimum of the 100-year or regional flood event. The plan must be prepared and certified by a registered professional engineer. The plan may incorporate alternative procedures for removal of the material from the flood plain if adequate flood warning time exists. (e) Storage of Materials and Equipment: -22- I 1. The storage or processing of materials that are in time of flooding, flammable, explosive, or potentially injurious to human, animal, or plant life is prohibited. 2. Storage of other materials or equipment may be allowed if readily removable from the area within the time available after a flood warning and in accordance with a plan approved by the City of Brooklyn Center. (f) The provisions of Section 35-2150.5 of this Ordinance shall also apply. 5. Standards for All Flood Fringe Uses: (a) All new principal structures must have vehicular access at or above an elevation not more than two (2) feet below the Regulatory Flood Protection Elevation. If a variance to this requirement is granted the Board of Adjustment must specify limitations on the period of use or occupancy of the structure for times of flooding and only after h determining that adequate flood warning time and local flood emergency response procedures exist. (b) Commercial Uses - accessory land uses, such as yards, railroad tracks, and parking lots may be at elevations lower than the Regulatory Flood Protection Elevation. However, a permit for such facilities to be -23- • • t used by the employees or the general public shall not be granted in the absence of a flood warning system that rovides adequate p q time for evacuation if the area would be inundated to a depth greater than two feet or be subject to flood velocities greater than four feet per second upon occurrence of the regional flood. (c) Manufacturing and Industrial Uses - measures shall be taken to minimize interference with normal plant operations especially along streams having protracted flood durations. Certain accessory land uses such as yards and parking lots may be at lower elevations subject to requirements set out in Section 35-2150.5b above. In considering permit applications, due consideration shall be given to needs of an industry whose business requires that it be located in flood plain areas. (d) Fill shall be properly compacted and the slopes shall be properly protected by the use of riprap, vegetative cover or other acceptable method. The Federal Emergency Management Agency (FEMA) has established criteria for removing the special flood hazard area designation for certain structures properly elevated on fill above the 1 100-year flood elevation - FEMA's requirements incorporate specific fill compaction and side slope protection standards for ' multi-structure or multi-lot developments. These standards should be investigated prior to the initiation of site preparation if a change of special flood hazard area designation will be requested. • -24- i i (e) Flood plain developments shall not adversely affect the hydraulic capacity of the channel and adjoining flood an tributary lain of P Y Y watercourse or drainage system where a floodway or other encroachment r limit has not been specified on the Official Zoning Map. (f) All manufactured homes must be securely anchored to an adequately anchored foundation system that resists flotation, collapse and lateral movement. Methods of anchoring may include, but are not to be limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable state or local anchoring requirements for resisting wind forces. SECTION 35-2160 GENERAL FLOOD PLAIN DISTRICT 1. Permissible Uses: (a) The uses listed in Section 35-2140.1 of this Ordinance shall be permitted uses. (b) All other uses shall be subject to the floodway/flood fringe evaluation criteria pursuant to Section 35-2160.2 below. Section 35-2140 shall apply if the proposed use is in the Floodway District and Section 35-2150 shall apply if the proposed use is in the Flood Fringe District. 2. Procedures for Floodway and Flood Fringe Determinations Within the -25- t General Flood Plain District. a. Upon receipt of an application for a Conditional Use Permit for a use within the General Flood Plain District, the applicant shall be required to furnish such of the following information as is deemed necessary by the Zoning Administrator for the determination of the Regulatory Flood Protection Elevation and whether the proposed use is within the Floodway or Flood Fringe District. 1. A typical valley cross-section showing the channel of the stream, elevation of land areas adjoining each side of the channel, cross-sectional areas to be occupied by the proposed development, and high water information. 2. Plan (surface view) showing elevations or contours of the ground; pertinent structure, fill, or storage elevations; size, location, and spatial arrangement of all proposed and existing structures on the site; location and elevations of streets; photographs showing existing land uses and vegetation upstream and downstream; and soil type. 3. Profile showing the slope of the bottom of the channel or flow line of the stream for at least 500 feet in either direction from the proposed development. -26- i (b) The applicant shall be responsible to submit one copy of the above information to a designated engineer or other expert person or agency for technical assistance in determining whether the proposed use is in the Floodway or Flood Fringe District and to Y' determine the Regulatory Flood Protection Elevation. Procedures consistent with Minnesota Regulations 1983, Parts 6120.5000 - 6120.6200 shall be followed in this expert evaluation. The designated engineer or expert is strongly encouraged to discuss the proposed technical evaluation methodology with the respective Department of Natural Resources' Area Hydrologist prior to commencing the analysis. The designated engineer or expert shall: 1. Estimate the peak discharge of the regional flood. 2. Calculate the water surface profile of the regional flood based upon a hydraulic analysis of the stream channel and overbank areas. 3. Compute the floodway necessary to convey or store the regional flood without increasing flood stages more than 0.5 foot. A lesser stage increase than .5' shall be required if, as a result of the additional stage increase, increased flood damages would result. An equal degree of encroachment on both sides of the stream within the reach shall be assumed in computing floodway boundaries. -27- Y I e (c) The Zoning Administrator shall resen p t the technical evaluation and findings of the designated engineer or expert to the Governing Body. The Governing Body must formally accept the technical evaluation and the recommended Floodway and/or Flood Fringe District boundary or deny the permit application. The Governing Body, prior to official action, may submit the application and all supporting data and analyses to the Federal Emergency Management Agency, the Department of Natural Resources or the Planning Commission for review and comment. Once the Floodway and Flood Fringe Boundaries have been determined, the Governing Body shall refer the matter back to the Zoning Administrator who shall process the permit application consistent with the applicable provisions of Section 35-2140 and 2150 of this Ordinance. -28- Y SECTION 35-2170 SUBDIVISI0NS2 1. Review Criteria: No land shall be subdivided which is unsuitable for the reason of flooding, inadequate drainage, water supply or sewage treatment facilities. All lots within the flood plain districts shall contain a building site at or above the Regulatory Flood Protection Elevation. All subdivisions shall have water and sewage treatment facilities that comply with the provisions of this Ordinance and have road access both to the subdivision and to the individual building sites no lower than two feet below the Regulatory Flood Protection Elevation. For all subdivisions in the flood plain, the Floodway and Flood Fringe boundaries, the Regulatory Flood Protection Elevation and the required elevation of all access roads shall be clearly labelled on all preliminary plat drawings. 2. Floodway/Flood Fringe Determinations in the General Flood Plain District: In the General Flood Plain District, applicants shall provide the information required in Section 35-2160.2 of this Ordinance to determine the 100-year flood elevation, the Floodway and Flood Fringe District boundaries and the Regulatory Flood Protection Elevation for the subdivision site. 7.3 Removal of Special Flood Hazard Area Designation: The Federal Emergency Management Agency (FEMA) has established criteria for removing the special flood hazard area designation for certain structures properly elevated on fill above the 100-year flood -29- elevation. FEMA's requirements incorporate specific fill compaction • and side slope protection standards for multi-structure or multi-lot developments. These standards should be investigated prior to the initiation of site preparation if a change of special flood hazard area designation will be requested. SECTION 35-2180 PUBLIC UTILITIES, RAILROADS, ROADS, AND BRIDGES 1. Public Utilities. All public utilities and facilities such as gas, electrical, sewer, and water supply systems to be located in the flood plain shall be flood-proofed in accordance with the State Building Code or elevated to above the Regulatory Flood Protection Elevation. 2. Public Transportation Facilities. Railroad tracks, roads, and bridges to be located within the flood plain shall comply with Sections 35-2140 and 35-2150 of this Ordinance. Elevation to the Regulatory Flood Protection Elevation shall be provided where failure or interruption of these transportation facilities would result in danger to the public health or safety or where such facilities are essential to the orderly functioning of the area. Minor or auxiliary roads or railroads may be constructed at a lower elevation where failure or interruption of transportation services would not endanger the public health or safety. h3. On-site Sewage Treatment and Water Supply Systems: Where public utilities are not provided: 1) On-site water supply systems must be -30- 1 designed to minimize or eliminate infiltration of flood waters into the systems; and 2) New or replacement on-site sewage treatment systems Y must be designed to minimize or eliminate infiltration of flood waters r into the systems and discharges from the systems into flood waters and they shall not be subject to impairment or contamination during times of flooding. Any sewage treatment system designed in accordance with the State's current statewide standards for on-site sewage treatment systems shall be determined to be in compliance with this Section. SECTION 35-2181 MANUFACTURED HOMES. Manufactured homes shall conform to the definition contained in Section 35-900 of this ordinance and shall also be subject to the provisions of Section 35-530 regarding buildings in the R1 and R2 districts. For the purposes of flood plain regulation, manufactured homes shall be subject to the same restrictions as site built homes. SECTION 35-2190 ADMINISTRATION 1. Zoning Administrator: A Zoning Administrator designated by the City Manager shall administer and enforce this Ordinance. If the Zoning Administrator finds a violation of the provisions of this Ordinance the Zoning Administrator shall notify the person responsible for such violation in accordance with the procedures stated in .Section 35-2210 of the Ordinance. 2. Permit Requirements: -31- r ■ t (a) Permit Required. A Permit issued by the Zoning Administrator in conformity with the provisions of this Ordinance shall be secured prior to the erection, addition, or alteration of any building, structure, or portion thereof; prior to the use or change of use r of a building, structure, or land; prior to the change or extension of a nonconforming use; and prior to the placement of fill, excavation of materials, or the storage of materials or equipment within the flood plain. (b) Application for Permit. Application for a Permit shall be made in duplicate to the Zoning Administrator on forms furnished by the Zoning Administrator and shall include the following where applicable: plans in duplicate drawn to scale, showing the nature, location, dimensions, and elevations of the lot; existing • or proposed structures, fill, or storage of materials; and the location of the foregoing in relation to the stream channel. (c) State and Federal Permits. Prior to granting a Permit or processing an application for a Conditional Use Permit or Variance, the Zoning Administrator shall determine that the applicant has obtained all necessary State and Federal Permits. (d) Certificate of Zoning Compliance for a New, Altered, or Nonconforming Use. It shall be unlawful to use, occupy, or permit the use or occupancy of any building or premises or part thereof hereafter created, erected, changed, converted, altered, -32- or enlarged in its use or structure until a Certificate of Zoning Compliance shall have been issued by the Zoning Administrator stating that the use of the building or land conforms to the r requirements of this Ordinance. (e) Construction and Use to be as Provided on Applications, Plans, Permits, Variances and Certificates of Zoning Compliance. Permits, Conditional Use Permits, or Certificates of Zoning Compliance issued on the basis of approved plans and applications authorize only the use, arrangement, and construction set forth in such approved plans and applications, and no other use, arrangement, or construction. Any use, arrangement, or construction at variance with that authorized shall be deemed a violation of this Ordinance, and punishable as provided by Section 35-2210 of this Ordinance. (f) Certification. The applicant shall be required to submit certification by a registered professional engineer, registered architect, or registered land surveyor that the finished fill and building elevations were accomplished in compliance with the provisions of this ordinance. Flood-proofing measures shall be certified by a registered professional engineer or registered architect. (g) Record of First Floor Elevation. The Zoning Administrator shall maintain a record of the elevation of the lowest floor (including -33- ;� 1 { basement) of all new structures and alterations or additions to existing structures in the flood plain. The Zoning Administrator shall also maintain a record of the elevation to which structures or and alterations additions to structures are flood-proofed. 3. Board of Adjustment: (a) Rules. The Board of Adjustment shall adopt rules for the conduct of business and may exercise all of the powers conferred on such Boards by State law. (b) Administrative Review. The Board shall hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement or administration of this Ordinance. (c) Variances. The Board may authorize upon appeal in specific cases such relief or variance from the terms of this Ordinance are consistent with the provisions of Section 35-240 of the Zoning Ordinance. In the granting of such variance, the Board of Adjustment shall clearly identify in writing the specific conditions that existed consistent with the criteria specified in Section 35-240 which justified the granting of the variance. No Variance shall have the effect of allowing in any district uses prohibited in that district, permit a lower degree of flood protection than the Regulatory Flood Protection Elevation for the -34- 1 particular area, or permit standards lower than those required by • State law. (d) Hearings. Upon filing with the Board of Adjustment of an appeal from a decision of the Zoning Administrator, or an application for a variance, the Board shall fix a reasonable time for a hearing and give due notice to the parties in interest as specified by law. The Board shall submit by mail to the Commissioner of Natural Resources a copy of the application for proposed Variances sufficiently in advance so that the Commissioner will receive at least ten days notice of the hearing. (e) Decisions. The Board shall arrive at a decision on such appeal or Variance within 48 days of referral to the Board. In assin P g upon an appeal, the Board may, so long as such action is in conformity with the provisions of this Ordinance, reverse or affirm, wholly or in part, or modify the order, requirement, decision or determination of the Zoning Administrator or other public official. It shall make its decision in writing setting forth the findings of fact and the reasons for its decisions. In granting a Variance the Board may prescribe appropriate conditions and safeguards such as those specified in Section 35- 2190.4f10.46, which are in conformity with the purposes of this Ordinance. Violations of such conditions and safeguards, when made a part of the terms under which the Variance is granted, -35- shall be deemed a violation of this Ordinance punishable under Section 35-2210. A copy of all decisions granting Variances shall be forwarded by mail to the Commissioner of Natural Resources within ten (10) days of such action. (f) Appeals. Appeals from any decision of the Board may be made,,and as specified in this Community's Official Controls and also Minnesota Statutes. (g) Flood Insurance Notice and Record Keeping. The Zoning Administrator shall notify the applicant for a variance that: 1) The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage and 2) Such construction below the 100-year or regional flood level increases risks to life and property. Such notification shall be maintained with a record of all variance actions. A community shall maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its annual or biennial report submitted to the Administrator of the National Flood Insurance Program. 4. Special Uses. The Board of Adjustment (Governing Body/Planning Comm./Bd. of Adjust. shall hear and decide applications for Special Uses permissible under this ordinance. Applications shall be submitted to the Director of -36- 1 r t Planning and Inspections who shall forward the application to the Planning Commission for consideration. (Designated Body) (a) Hearings. Upon filing with the Planning & Inspection Dept. an (Designated Body) application for a Special Use Permit, the Dir. of Plannin &g Insp. (Designated Body) shall submit by mail to the Commissioner of Natural Resources a copy of the application for proposed Special Use sufficiently in advance so that the Commissioner will receive at least ten days notice of the hearing. (b) Decisions. The City Council shall arrive at a decision on a (Designated Body) Special Use within 48 days of a recommendation by the Planning Commission. In granting a Special Use Permit the City Council (Desig. Body) shall prescribe appropriate conditions and safeguards, in addition to those specified in Section 35-2190.4f, which are in conformity with the purposes of this Ordinance. Violations of such conditions and safeguards, when made a part of the terms under which the Conditional Use Permit is granted, shall be deemed a violation of this Ordinance punishable under Section 35- 2210. A copy of all decisions granting Special Use Permits shall be forwarded by mail to the Commissioner of Natural Resources -37- within ten (10) days of such action. (c) Procedures to be followed by the City Council in Passing on (Designated Body) Special Use Permit Applications Within all Flood Plain Districts. 1. Require the applicant to furnish such of the following information and additional information as deemed necessary by the Board of Adjustment for determining the suitability of (Designated Body) (1) Five Sets of Plans in triplicate drawn to scale showing the nature, location, dimensions, and elevation of the lot, existing or proposed structures, fill, storage of materials, flood-proofing measures, and the relationship of the above to the location of the stream channel. (2) Specifications for building construction and materials, flood-proofing, filling, dredging, grading, channel improvement, storage of materials, water supply and sanitary facilities. (b) Transmit one copy of the information described in subsection (a) to a designated engineer or other expert person or agency for technical assistance, where necessary, in -38- evaluating the proposed project in relation to flood heights and velocities, the seriousness of flood damage to the use, the adequacy of the plans for protection, and other technical matters. (c) Based upon the technical evaluation of the designated engineer or expert, the Board of Adjustment shall determine the (Designated Body) specific flood hazard at the site and evaluate the suitability of the proposed use in relation to the flood hazard. (d) Factors Upon Which the Decision of the Board of Adjustment (Designated Body) Shall Be Based. In passing upon Special Use applications, the Board of Adjustment shall consider all relevant factors (Designated Body) specified in other sections of this Ordinance, and: (a) The danger to life and property due to increased flood eights or velocities caused by encroachments. (b) The danger that materials may be swept onto other lands or downstream to the injury of others or they may block bridges, culverts or other hydraulic structures. (c) The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination, and unsanitary conditions. -39- (d) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner. (e) The importance of the services provided by the proposed facility to the community. (f) The requirements of the facility for a waterfront location. (g) The availability of alternative locations not subject to flooding for the proposed use. (h) The compatibility of the proposed use with existing development and development anticipated in the foreseeable future. (i) The relationship of the proposed use to the comprehensive plan and flood plain management program for the area. Q) The safety of access to the property in times of flood for ordinary and emergency vehicles. (k) The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site. (1) Such other factors which are relevant to the purposes of this Ordinance. (e) Time for Acting on Application. The Board of Adjustment (Designated Body) shall act on an application in the manner described above -40- 4 within 48 days from receiving a recommendation from the Planning Commission on the application, except that where additional information is required pursuant to Section 35- 2190.4d of this Ordinance. The Board of Adjustment shall (Designated Body) shall render a written decision within 30 days from the receipt of such additional information. (f) Conditions Attached to Special Use Permits. Upon consideration of the factors listed above and the purpose of this Ordinance, the Board of Adjustments shall attach such (Designated Body) conditions to the granting of Conditional Use Permits as it deems necessary to fulfill the purposes of this Ordinance. Such conditions may include, but are not limited to, the following: (a) Modification of waste treatment and water supply facilities. (b) Limitations on period of use, occupancy, and operation. (c) Imposition of operational controls, sureties, and deed restrictions. (d) Requirements for construction of channel modifications, compensatory storage, dikes, levees, and other protective measures. (e) Flood-proofing measures, in accordance with the State -41- t Building Code and this Ordinance. The applicant shall submit a plan or document certified by a registered professional engineer or architect that the • flood-proofing measures are consistent with the Regulatory Flood Protection Elevation and associated flood factors for the particular area. SECTION 35-2200 NONCONFORMING USES IN THE FLOOD HAZARD ZONES 1. A structure or the use of a structure or premises which was lawful before the passage or amendment of this Ordinance but which is not in conformity with the provisions of this Ordinance may be continued subject to the following conditions: (a) No such use shall be expanded, changed, enlarged, or altered in a way which increases its nonconformity. (b) Any alteration or addition to a nonconforming structure or nonconforming use which would result in increasing the flood damage potential of that structure or use shall be protected to the Regulatory Flood Protection Elevation in accordance with any of the elevation on fill or flood proofing techniques ( i.e. FP-1 thru FP-4 floodproofing classifications) allowable in the State Building Code, except as further restricted in Subsection C below. -42- t (c) The cost of any structural alterations or additions to any nonconforming structure over the life of the structure shall not exceed 50 percent of the market value of the structure unless the conditions of this Section are satisfied. The cost of all structural alterations and additions constructed since the adoption of the Community's initial flood plain controls must be calculated into today's current cost which will include all costs such as construction materials and a reasonable cost placed on all manpower or labor. If the current cost of all previous and proposed alterations and additions exceeds 50 percent of the current market value of the structure, then the structure must meet the standards of Section 35-2140 or 35-2150 of this Ordinance for new structures depending upon whether the structure is in the Floodway or Flood Fringe, respectively. (d) If any nonconforming use is discontinued for 12 consecutive months, any future use of the building premises shall conform to this Ordinance. The assessor shall notify the Zoning Administrator in writing of instances of nonconforming uses which have been discontinued for a period of 12 months. (e) If any nonconforming use or structure is destroyed by any means, including floods, to an extent of 50 percent or more if its market value at the time of destruction, it shall not be reconstructed except in conformity with the provisions of this -43- Ordinance. The applicable provisions for establishing new uses or new structures in Sections 35-2140, 2150, or 2160 will apply depending upon whether the use or structure is in the Floodway, Flood Fringe or General Flood Plain District, respectively. SECTION 35-2210 PENALTIES FOR VIOLATION 1. Violation of the provisions of this Ordinance or failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with grants of Variances or Conditional Uses) shall constitute a misdemeanor and shall be punishable as defined by law. 2. Nothing herein contained shall prevent the City of Brooklyn Center (local unit) from taking such other lawful action as is necessary to prevent or remedy any violation. Such actions may include but are not limited to. I (a) In responding to a suspected ordinance violation, the Zoning Administrator and Local Government may utilize the full array of enforcement actions available to it including but not limited to prosecution and fines, injunctions, after-the-fact permits, orders for corrective measures or a request to the -44- l National Flood Insurance Program for denial of flood insurance availability to the guilty party. The community must act in good faith to enforce these official controls and to correct ordinance violations to the extent possible so as not to jeopardize its eligibility in the National Flood Insurance Program. (b) When an ordinance violation is either discovered by or brought to the attention of the Zoning Administrator, the Zoning Administrator shall immediately investigate the situation and document the nature and extent of the violation of the official control. As soon as is reasonably possible, t�is information will be submitted to the appropriate Department of Natural Resources' and Federal Emergency Management Agency Regional Office along with the Community's plan of action to correct the violation to the degree possible. (c) The Zoning Administrator shall notify the suspected party of the requirements of this Ordinance and all other Official Controls and the nature and extent of the suspected violation of these controls. If the structure and/or use is under construction or development, the Zoning Administrator may order the construction or development immediately halted until a proper permit or approval is granted by the Community. If the construction or development is already completed, then the Zoning Administrator may either (1) issue an order identifying -45- t