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Legal - Assessing impact of Houston’s overhaul of Floodplains Building Regulation

image Ian Faria, Partner, Bradley Arant Boult Cummings LLP, Houston, TX

Houston - On April 4, 2018, the Houston City Council voted to significantly overhaul regulations on building within the 100- and 500-year floodplains. The proposal to amend Chapter 19 of the City of Houston Code of Ordinances, the City’s Floodplain Regulation Ordinance, was first introduced in late January and was specifically fast-tracked through the ordinance revision process. Several groups voiced concerns about the unintended consequences of such a drastic change. For instance, the new requirements will likely have a negative effect on housing affordability and inventory in Houston. 

    In short, the new floodplain development regulation changes will be effective Sept. 1, 2018. For anyone developing and building in Houston, they need to be aware that the 100-year floodplain will now be regulated at the 500-year Base Flood Elevations (BFE), plus two feet. The 500-year floodplain will be regulated at the 500-year BFE, plus two feet. Furthermore, net fill will not be allowed in the 500-year floodplain (it is already prohibited in the 100-year), unless a property owner can demonstrate no impact to existing sheetflow. Finally, additions larger than one-third of an existing property in the 500-year floodplain must be raised to the 500 BFE, plus two feet.
    This is a significant step for Houston that may have a wide impact on residential and commercial development. Many cities in the greater Houston area use or draw from the City of Houston and Harris County development criteria in lieu of their own floodplain regulations and may update their own ordinances to reflect similar changes.
    While many view the new regulations as only impacting residential construction, that may not be the case. The regulations apply to any “structures.” A “structure” is defined:
    …shall mean an edifice or building of any kind or piece of work that is artificially built up or composed of parts joined together in a definite manner, including, but not limited to, a modular home or a manufactured home, or a gas or liquid storage tank when such tank is principally located above ground. Sec. 19-2. Definitions.
    The new City of Houston regulations follow those implemented on Jan. 1, 2018, made by unincorporated Harris County. In fact, some consider the new regulations adopted by unincorporated Harris County to be some of the nation’s strictest flood plain regulations. These new regulations split permitting into Class I permits for sites outside the 100-year flood plain and Class II permits for sites within the 100-year flood plain. Both Class I and II permits have raised the minimum finished floor elevation required by the county. Class II permits will now require pier and beam foundations and additional wind design requirements. That means no more slab on grade construction, a standard in the industry. Mechanical and electrical units will have to be elevated to the first floor. Requiring foundations to be constructed with pier and beam allows water to pass through and be detained beneath the foundation.
    While taking action to prevent major catastrophic loss due to natural disasters is necessary, the implications to the construction industry as a whole should be taken into consideration. It is unclear what impact these new regulations will have throughout Texas. However, based on the focus on Houston post-Harvey, it is reasonable to expect that other cities and municipalities will follow the lead of Houston. It will be very important when looking to develop new commercial and residential projects that these new regulations are taken into consideration and are strictly adhered to.

    Ian P. Faria is a member of the Construction and Government Contracts Practice Group and Managing Partner of the Houston office of Bradley Arant Boult Cummings LLP. He represents developers, general contractors, subcontractors, homebuilders, business owners and individuals in a variety of disputes, as well as in OSHA compliance and investigation matters. He can be reached at ifaria@bradley.com.

    Bradley Arant Boult Cummings LLP has offices in Birmingham, AL; Charlotte,  NC; Houston, TX; Huntsville, AL;  Jackson,  MS; Montgomery, AL;  Nashville, TN; Tampa, FL and Washington DC.

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