Vermont towns and residents are starting to rebuild after Irene’s blow to Vermont in August. With cold and snow not far off, time is of the essence—but the rush to rebuild must heed critical legal issues.
One of those is maintaining town participation in the National Flood Insurance Program (NFIP), which is administered by FEMA but is largely carried out at the state and local levels.
The NFIP provides flood insurance protection to property owners in flood-prone areas, but towns must participate in the NFIP and meet its requirements for residents to be eligible to purchase flood insurance. Towns must also participate in the NFIP to receive financial assistance in future flooding events.
One NFIP requirement is that towns must regulate development proposed in a floodplain. Participating towns must review all permit applications to determine whether a proposed building will be reasonably safe from flooding.
But permits are not only required for new development. Towns must regulate rebuilding of “substantially damaged” structures, and a structure is “substantially damaged” when restoration costs are 50% or more than its market value before the damage. If town officials determine that rebuilding work qualifies as repair of “substantial damage,” then the structure must comply with NFIP requirements for new construction.
The challenge for towns is how to balance the strong interests to make sure their participation in NFIP is not threatened in the wake of Irene, yet at the same time allow homeowners to rebuild in a timely fashion. Thus, for example, towns may want to implement interim zoning regulations to avoid lengthy conditional use review. Authorizing a zoning administrator to issue permits on a temporary, interim basis can move the process along. In the event repair work was conducted before obtaining necessary permits, some towns are encouraging property owners to obtain after-the-fact permits.
Towns and residents must also note that ANR reviews local permits to ensure compliance with NFIP minimum standards. Zoning permit applications should be sent to the ANR River Management Program, which must provide comments within 30 days.
This is only one of several issues towns must consider when undertaking flood recovery, so look for more posts on post-Irene from Dunkiel Saunders in the future.