Flood rule unconstitutional

Douglas County is rewriting its flood ordinance in the wake of a declaration by U.S. District Court that it is unconstitutional.

U.S. District Judge Brian Sandoval ruled the ordinance gave the county's community development director "unfettered discretion" in deciding whether to certify that a project met community flood plain management requirements.

The lawsuit was filed July 16, 2007, by Scotsman Development Corp. and Nevada Northwest LLC.

The lawsuit stems from the county's Nov. 7, 2002, conditional approval of a 75-acre multiple use project located east of Highway 395 between Muller Parkway and Ironwood Drive. The project included 138 single-family homes, 145 townhomes, 32 mixed-use commercial units and 10 acres of neighborhood commercial.

A portion of the property is in the flood plain for Martin Slough.

The company prepared a site improvement plan to fill for the commercial site, located off Muller Parkway. In order to get the plan approved, the company had to obtain a conditional letter of map revision that indicated filling the area would not increase the flood elevation by more than one foot.

On May 19, 2006, the company submitted their conditional letter application to former Community Development Director Mitch Dion, who served as the flood plain administrator.

Dion hired an engineering consultant who found the application was not complete and recommended Dion not sign the certification the developer needed to begin work. According to court documents, Dion also refused to pass the application to the Federal Emergency Management Agency, which administers the flood insurance program.

"These provisions grant unfettered discretion to the Douglas County flood plain administrator to condition the issuance of a development permit on the completion of a technical analysis," Sandoval wrote in his order. "They provide no guidance as to when an applicant may be required to do so, thus the circumstances under which a technical analysis or ... application will be required is wholly unclear. The applicant is thus left to guess as to the requirements of the application. The ordinance is therefore unconstitutional."

Civil Deputy District Attorney Robert Morris said an amendment to the flood ordinance may go before commissioners by May 1.

"It would set out the requirements for a letter and eliminate the vague language," he said. "I don't think it's going to have a big impact on the county. We expect that the changes we're proposing are going to fix this problem."

Morris said that one of the issues was that there was engineering done on the property that indicated that the federal flood maps weren't accurate in the area. Some projects were approved in the area without getting the map altered.

"One of the problems is that FEMA maps are not accurate all the time," Morris said. "A lot of the mapping stops at certain areas. They've done segments, not the whole river. In a lot of areas the maps don't accurately reflect what's there."

Morris said the county has received a new set of flood maps from the federal government.

Process

1. The Federal Emergency Management Agency provides subsidized flood insurance to Douglas County.

2. To participate in the insurance program, the county has to adopt the minimum requirements as a flood plain ordinance.

3. The federal government creates flood insurance rate maps to determine where there is a danger of flooding. Maps are used to calculate flood insurance premiums and where owners must obtain flood insurance.

4. If development is allowed in a certain flood zone, it must be demonstrated that it will not increase the water surface elevation by more than 1 foot.

5. If the development will increase the water surface elevation beyond 1 foot, the flood plain administrator has to sign off before the project is allowed.

6. If map revisions are approved, the federal government issues a conditional letter of map revision.

7. Then the community must adopt flood plain ordinances that account for the change and a final letter of map revision is issued.