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Impacts of Post-Sandy Flood Zone Changes on Regional Development

Client Advisory

March 27, 2013
In response to Hurricane Sandy, the Federal Emergency Management Agency (FEMA) began the process of revising and expanding its definition of the 100-year flood zones in the New York area. FEMA’s flood zone expansion will have a direct impact on flood insurance rates, which are likely to go up for those building in flood plains or who fail to sufficiently elevate developments to avoid the flood plain. But the changes are likely to have indirect impacts at the local zoning level, where applicants seeking discretionary city approvals will need to explain how and if they have anticipated flood impacts and sea level rise.
FEMA Revisions to Flood Zones
Earlier this year, FEMA began to release maps expanding the area that it defines as having a one percent chance of flooding in a given year – the so-called 100-year floodplain – and recommends a minimum elevation for structures in the flood zone. The maps are being replaced piecemeal as FEMA completes its analyses, and at this point have been completed for New York City, Westchester, and certain New Jersey counties.
These changes are merely “advisory” and will not in and of themselves cause flood insurance rates in the National Flood Insurance Program to increase until the new flood zone definition is finalized through a formal public review process and incorporated in updated Flood Insurance Rate Maps, a process that could take up to two years.  
The “advisory” maps are designed to provide property owners with guidance in the immediate aftermath of a disaster, so that they can begin to rebuild immediately in compliance with likely future requirements anticipated by FEMA, and thereby minimize their flood insurance costs once the changes are finalized. 
Implications for Property Owners
The major issue facing property owners is whether they should elevate the first floor in rebuilding after Sandy to meet the FEMA “base flood elevation” requirement. By meeting that requirement, property owners will minimize their flood insurance rates, which can be as much as twenty times higher for properties that fail to comply. These rate increases may be particularly painful as they come on the heels of the Biggert-Waters Flood Insurance Reform Act of 2012, which requires the National Flood Insurance Program to gradually eliminate subsidies so that rates reflect actual risk, including increasing rates on properties have suffered multiple losses. Those rate increases began to come into effect on January 1, 2013. Separately, property owners may also experience rate increases for their excess or supplemental flood policies to cover losses above the $250,000 cap for federal flood insurance on residences ($500,000 for commercial buildings).
Property owners within the expanded flood zone that are not concerned about federal insurance rates – either because they do not have mortgages that require it or because the insurance cost is not a motivating concern – may nevertheless wish to take note of the new elevation requirements. The FEMA flood zone definitions are intended to assess the likelihood of flood damage, and while property owners may be able to bear the increased insurance cost, they may wish to minimize the risk of catastrophic property damage and loss of life by elevation or other adaptations, such as moving mechanical equipment to higher floors. 
Indeed, even property owners (and developers) of properties outside the expanded flood zone should take notice of the revisions and elevation requirements. The flood zone maps are revised infrequently – the last revision was nearly thirty years ago – and recent experience from Hurricanes Irene and Sandy has shown that so-called 100-year floods are occurring at an increasing rate. 
Developers of new facilities may wish to exceed even the new requirements. The new advisory maps may significantly understate the risk of future floods, because they are based on current conditions, and do not take into account climate change.   Sims Metal Management’s new recycling facility, located on the waterfront in the flood-devastated Brooklyn neighborhood of Red Hook, escaped damage because it had planned for four feet of sea level rise during the lifetime of the facility. 
Municipal Responses Regarding Rebuilding Efforts
Municipalities are taking steps to promote rebuilding in keeping with FEMA’s guidelines. For example, New York City responded quickly to the advisory maps by issuing Executive Order 233, granting zoning exceptions to property owners in certain flood-damaged areas who would need to exceed current height or floor area restrictions to rebuild in compliance with the FEMA advisory recommendations. Municipalities will also reflect the final FEMA requirements in permanent revisions to building and zoning codes, and many will also incorporate climate change adaptation and mitigation measures. 
The expanded floodplain will also be considered by municipalities in revising zoning and building codes. Developers may be asked to add fill, raise sites, put mechanicals on upper floors, and avoid basements on a voluntary basis, in exchange for discretionary approvals, before they are part of any mandatory building or zoning requirement. For example, in certain recent developments, including Queens West in Long Island City and Avalon Bay in Rockaway, the developers voluntarily raised the grade of their sites, took other protective actions and survived Hurricane Sandy unscathed. These kinds of voluntary measures may become the norm rather than the exception. Expanded floodplains will mean that more developers and development sites will get caught up in these requirements. 
For more information concerning the matters discussed in this publication, please contact the authors, Christine A. Fazio (fazio@clm.com), Christopher Rizzo (rizzo@clm.com) or Judith Wallace (wallace@clm.com), or your regular CL&M attorney.


Carter Ledyard & Milburn LLP uses Client Advisories to inform clients and other interested parties of noteworthy issues, decisions and legislation which may affect them or their businesses. A Client Advisory does not constitute legal advice or an opinion. This document was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. © 2017 Carter Ledyard & Milburn LLP.
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