ORD-2007-002 - Amendment to the Flood Damage Prevention Ordinance

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12/12/2006 TU8 16:47 FAR Page 7 of 8 The N.G Flood Damage Prevention Ordinance provides for the automatic adoption of revisions to such ordinance without any further legislative action by the appropriate city council. and the board of county commissioners. It incorporates future changes in NFIP floodplain management criteria. I< specifies that maps "as ari~ended" "and gny revision thereto" are automatically adopted by the Ordinance without an amendment of the ordinance. Adoption of new FFi1+1A maps may impact hazazds mapping and zones. Property maybe `Yezoned" if the local government adopts or amends an ordinance that limits or prohibits land uses that previously were allowed in the a~eected zone. An orrinance that proposes to rezone ProP~Y ~1~ certain notice to the affected landowners. A zoning ordinance tf,at incorporates by reference all future amend~ertts br modifications of flood inswrance maps and subsequent revisions is an unlawful delegation of legislative authority..' To incorporate future changes to nit ordinance wiU unlawfully delegate to another body, person of emity such as FEIvIA the power to change the - ordinance, which is a power thaf should be reserved to the city council or the board of eourity camrnissioners. ~ . State law at N.GG.S. § 143-215:56(p,) provides that once FEMA approves the floodplain map for the NFIP, then, eac~h'local government affected by the floodplain must incorporate the revised map into its floodplain ordinance. State law at N.C.G.S. § 153A-47 and.N.C.G.S. §160A- 76(b) provide that a city or county may adopt in an ordinance regulations protnulgated.by a public agency. These statutes, N.GG.S. §1S3A-47 and §1b0A-76(b), seem to permit a county or city to adopt the federal regulations promulgataed by a public agency, FEMA. Specifically, these . statutes, N.C.G.S. §153A-47 and § 16QA-7b(b); seam to permit a county or city to adopt FEMA's rules,, including but may not be tirnited to, 44 C.FR Parts 59 and 65, for the mapping of special flood hazard areas. ~ These statutes seem to suggest that the city or county may adopt in its ordinance Fl?1RA's regulations for mapping special flood hazard areas. Ii is unclear whether these statutes, N.C.G.S. §] 53A-41 and § 160A-7b(b), permit a city or county to incorporate FEMA's ,future rules or future amendments for mapping special flood hazard areas. . State law at N.C.G.S. § 160A-384, § 153A-343 and § l 53A-344 outline specifCC procedures for amending zoning ordinances for cities, towns and counties, respectively, including but may not be limited to, providing notice to certain landowners and a public hearing. Adoption of amendments to the Flood Insurance Study or the Flood Insurance Maps for an area under the local jurisdiction must be done in accordance with the statutory procedures at N_C.G.S. § 1 b0A- 384, § i 53A--343 and § 153A-344. "While N.C.G.S. §§ l 53A-4 and 160A-4 mandate that g~rauts of authority to local governments be broadly interpreted, zoning authority cannot be exercised in a manner contrary to the express provisions of the zoning enabling authority." In~ty of Lancaster v. Meck[enbura County, 334 N.C. 496, 434. S.E.2d 604 (1993). It is settled law in North Carolina any zoning ordinance must be amended in acxordance with state law. "[A] zoning ordinance or an amendment thereto which is not adopted in acxordance with the enabling statutes is invalid and ineffective." Sellers v_ Cit~- of Asheville.. 33 N:C. APP. 544, 236 S.E.2d 283 (] 977). It has been held that in addition to complying with the state statutory requirement, local zoning authority must comply with ail requirements of its own local zoning ordinance before ®als/ozl 14 .