Building in New Jersey after Superstorm Sandy? New Rules Regarding Construction in a Flood Zone
In January, Governor Chris Christie signed an Executive Order and proposed emergency regulations regarding construction after Superstorm Sandy in flood-prone areas of New Jersey. After a public hearing in March, the emergency regulations were made final on March 25, 2013 (“Regulations”). Below are some highlights of the new Regulations and the anticipated effects of the Regulations.
What’s Changed?
Before the storm, the building code and any flood-proofing Regulations in the state were based on flood maps adopted by the New Jersey Department of Environmental Protection (“DEP”) that were drafted in the 1970’s and 1980’s. Unfortunately, these maps underestimated the 100-year flood elevations by anywhere from one to eight feet. The Federal Emergency Management Agency (“FEMA”) is in the process of re-evaluating its flood maps for New Jersey. These maps determine what properties are in flood zones and the predicted severity of such flooding. One of the changes, which will have a widespread effect, is the adoption of FEMA’s 100-year flow rate maps, including advisory, proposed, or effective mapping.
Owners and their architects and contractors rebuilding in New Jersey will need to consider FEMA’s most recent maps (“New Maps”), regardless of whether the map at issue is considered to be final and approved. All of these maps are available on FEMA’s website at http://www.region2coastal.com/sandy/abfe.
The Regulations propose the following for construction in flood-prone areas:
- A building is substantially damaged if the cost of restoring it to its original condition would equal or exceed 50% of the market value of the structure before the storm damage occurred.
- A repair of a structure means to mend or rebuild less than 50% of the structure as long as the “size, shape or location of the structure is not altered.”
- In regards to a home, an individual permit for reconstruction, substantial improvement, or for new construction may not be issued by the DEP unless the lowest floor of the home is constructed or modified such that it is set at least one foot above the elevation set by the New Maps.
- A repair need not result in a structure that is above the flood elevations.
- The “lowest floor of a building,” including private residences, only includes a space that may be used for permanent or temporary occupation and does not include an unfinished crawl space, entryway, and/or garage if it is used solely for building access, parking, or storage.
- The DEP may issue an individual permit for reconstruction of a commercial building that has suffered damage due to the storm that is not set at least one foot above the elevation set by the New Map if an architect or engineer certifies that the building will be constructed in accordance with flood-proofing requirements.
- The Regulations also permit, for the first time, commercial buildings to be “wet flood-proofed.” Wet flood-proofing allows for flood waters to move freely in a building without damaging the structural integrity of the building.
- A mixed-use building that contains three or more units for temporary or permanent residence, such as a building with retail or office space on the first floor and apartments above, may not be “wet flood-proofed.”
What Are the Cost Implications?
When a property owner plans to rebuild, a DEP permit need not be sought as long as: (1) the “footprint” of the building is not increased by more than 300 square feet; (2) the lowest floor of the building is built at least one foot above the elevation set by the New Maps; (3) any basement or ground floor garage is not to be used for habitation; and (4) the building is not moved closer to any large body of water or into a floodway. This will save the owner the cost and potential delay associated with obtaining a DEP permit, although other permitting from municipalities likely will still be needed.
According to the Regulations, homeowners whose primary residence was substantially or severely damaged will be eligible for funding from FEMA to help cover the cost of the work associated with complying with the regulations. Flood insurance premiums are expected to rise drastically in the Garden State due to changes in the National Flood Insurance Program, and because the New Maps likely will place more properties in flood zones than before the storm, while other properties will be placed in more severe flood zones. But, FEMA anticipates that property owners who choose to comply when rebuilding could see their flood insurance premiums drop by more than 200%.
In light of the new permitting requirements imposed by the Regulations and potential cost-savings in flood insurance premiums, architects and builders should be aware of the changes. The change to the definition of “lowest floor of a building” is important when designing homes as a finished garage or basement because these areas will be considered the “lowest floor of a building” and will need to meet the elevation requirements to qualify the property owner for flood insurance savings.
Some property owners looking to renovate or expand their properties will not be required to comply with the Regulations because their structures were not “substantially damaged.” However, those owners may seek information on the potential long-term cost savings in flood insurance premiums versus the short-term increase in the cost of design and construction.
