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ADOPT TITLES 15 AND 16 CODE AMENDMENTS TO COMPLY WITH SENATE BILL 5 RELATED TO 200-YEAR FLOOD PROTECTION
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RECOMMENDATION
It is recommended that the City Council accept the Planning Commission’s recommendation to adopt an Ordinance approving:
1. An amendment to Title 15 of the Stockton Municipal Code, Section 15.44.040, “Definitions;”
2. The addition of Section 15.44.135, “Allowable Land Uses and Permit Requirements;”
3. Amendments to Title 16 of the Stockton Municipal Code, Section 16.20.020, Table 2-2, “Allowable Land Uses and Permit Requirements” and Section 16.36.110, “Setback regulations and exceptions;” and
4. The addition of Chapter 16.90 “Floodplain Management Findings” related to compliance with state law requirements for 200-year flood protection (Senate Bill 5).
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Summary
On June 23, 2015, the City Council approved a General Plan Amendment to comply with State law requirements for 200-year flood protection, commonly referred to as Senate Bill 5 (SB 5), which requires cities to take action to mitigate a 200-year flood risk and provide additional protections. SB 5 mandates that the City amend its zoning ordinance within 12 months from the date of the General Plan amendment to incorporate new findings related to development in the 200-year floodplain and ensure the code is consistent with the General Plan. The consequences of non-compliance can include a shift of flood damage liability from the State to the City, potential legal challenges to development proposals, and creating an environment of economic uncertainty. As a result, staff has identified both short and long-term strategies to meet the SB 5 mandates.
The short-term strategy is to put in place local zoning and building code amendments to comply with SB 5. These zoning and building code changes allow the city to comply with SB 5, by requiring specific findings prior to approving certain projects located within a flood hazard zone. However, the proposed changes also streamline the regulatory process of making those specific findings for the development of commercial and residential land uses. As an example, the proposed changes would redefine certain commercial discretionary uses into permitted “by-right” uses. This means that many commercial land use projects that are consistent with the applicable zoning district will only need ministerial site plan and design review and therefore SB 5 findings would not be required.
The proposed changes also include new levee setback requirements that are proposed to address forthcoming state levee setback standards and state guidelines for flood fighting next to levees.
Finally, SB 5 further requires that the city make findings to address ministerial building permits for any building permit resulting in the creation of a new residence. As a strategy to address this requirement, local standards and criteria will be prepared under the Community Development Director’s authority to be consistent with the State’s guidance while offering greater local flexibility for applicants to provide evidence for flood protection of life and property. The local standards and criteria would address a project’s ability to raise building pads and finished floors to the 200-year floodplain level, provide flood proofing for non-residential structures below the floodplain level, and allow the replacement of structures in the case of fire damage.
The City’s long-term strategy includes continued collaborative efforts with the San Joaquin Area Flood Control Agency (SJAFCA) and their lead agency efforts in the Lower San Joaquin River Feasibility Study and the associated implementation efforts for leveraging state and federal funding.
The Planning Commission considered the proposed amendments in a public hearing held on May 12th and is recommending that the City Council adopt an ordinance approving the amendments.
DISCUSSION
Background
The Central Valley Flood Protection Act of 2007 (Chp. 364, Stats. 2007), commonly referred to as SB 5, contained provisions requiring local agencies to incorporate flood risk considerations into land use planning. This legislation primarily focused on establishing a higher level of flood protection for the Sacramento-San Joaquin Valley within an area defined as the Sacramento-San Joaquin Hydrologic Regions (See Attachment A - Regional Flood Map).
SB 5 required each city and county within the Sacramento-San Joaquin Valley, including charter cities like Stockton, to amend its general plan by July 2, 2015 to include data and analysis from the State’s Flood Protection Plan and goals and policies for the protection of lives and property that will reduce the risk of flood damage from a 200-year flood event. This 200-year flood event protection is referred to as the “urban level of flood protection.” A 200-year flood event is one that statistically occurs on the average of once every 200 years, or has a 0.5 percent chance of occurring in any given year. On June 23, 2015, the City Council approved a General Plan amendment to modify existing and incorporate new goals, policies, and implementation measures related to 200-year flood risk and protection (Resolution No. 2015-06-23-1601). Additionally, SB 5 requires each of those cities and counties to amend its zoning ordinance to be consistent with its general plan amendment within 12 months, which means a June 23, 2016 deadline for Stockton.
As mentioned above, the consequences of non-compliance can include a shift of flood damage liability from the State to the City, potential legal challenges to development proposals, and creating an environment of economic uncertainty. As a result, staff has identified short and long term strategies to provide multiple paths for SB 5 compliance.
City staff prepared amendments to Title 16 that address the requirements of SB 5 relating to zoning regulations. In addition, the proposed amendment includes sections of Title 15 (building code) to comply with requirements of SB 5 that pertain to issuance of building permits (Attachment B - Proposed Ordinance (Redline Version)). The proposed code amendments would authorize the Community Development Director to adopt standards and criteria that would address a project’s ability to raise building pads and finished floors to the 200-year floodplain level and qualify for the 3 feet shallow flooding exemption, provide flood proofing for non-residential structures below the floodplain level, and allow the replacement of structures in the case of fire damage.
Floodplain Mapping
A 200-year floodplain map was developed for the Stockton area in collaboration with the State Department of Water Resources (see Attachment C - 200-Year Floodplain Map). It shows the anticipated depth of flooding throughout the Stockton metropolitan area in the event of a 200-year flood. Shallow flooding areas (three feet or less of flooding) are not considered to be within the 200-year floodplain (shown in blue on the map). The map identifies a significant portion of the westerly side of the City near Interstate 5 and some isolated areas within the central and easterly side of the City inundated in excess of three feet during a 200-year event (shown in yellow, orange, and red on the maps). It is important to understand that this map which was prepared to comply with the State law, and is independent of the FEMA 100-year flood maps, which are associated with the National Flood Insurance Program.
Findings and Applicability
SB 5 requires that cities and counties make a “finding” related to a 200-year level of flood protection, defined in the law as the “urban level of flood protection” for any of the following land-use decisions:
• Entering into a development agreement for all types of property development
• Approving a discretionary permit or other discretionary entitlement that would result in the construction of a new building or construction that would result in an increase in allowed occupancy for an existing building.
• Approving a ministerial permit that would result in the construction of a new residence.
• Approving a tentative map consistent with the Subdivision Map Act for all subdivisions.
• Approving a parcel map for which a tentative parcel map is not required, consistent with the Subdivision Map Act.
A “finding” is commonly required for land use decisions to provide evidence on the record to support the decision. The City’s zoning ordinance contains certain findings within each of the specific land use application sections that shall be made prior to making a decision for approval.
SB 5 introduces new findings related to 200-year level of flood protection and one of these findings must be made prior to approving any of the above land use entitlements.
The available findings are as follows:
1. The facilities of the State Plan of Flood Control or other flood management facilities protect the property to the urban level of flood protection in urban and urbanizing areas or the national Federal Emergency Management Agency standard of flood protection in non-urbanized areas; or
2. The city has imposed conditions on the development agreement that will protect the property to the urban level of flood protection in urban and urbanizing areas or the national Federal Emergency Management Agency standard of flood protection in non-urbanized areas; or
3. The local flood management agency has made adequate progress (as defined in California Government Code section 65007) on the construction of a flood protection system that will result in flood protection equal to or greater than the urban level of flood protection in urban or urbanizing areas or the national Federal Emergency Management Agency standard of flood protection in non-urbanized areas for property located within a flood hazard zone, intended to be protected by the system; or
4. The property in an undetermined risk area has met the urban level of flood protection; or
5. The property is located in an area of potential flooding of three (3) feet or less from a storm event that has a 1-in-200 chance of occurring in any given year, from sources other than local drainage in urban and urbanizing areas; or
6. The property is located within a watershed with a contributing area of 10 or fewer square miles in urban and urbanizing areas.
Although the 200-Year floodplain map will offer initial supporting evidence for the required finding, the project applicant is responsible for developing and furnishing the City with the substantial evidence to support the required finding, as is typical with other required findings.
Zoning and Building Code Amendments
Keeping in mind the goal of protecting against loss of life or property during a 200-year flood event, staff has prepared multiple alternatives for complying with SB5. These amendments will authorize the Community Development Director to prepare standards and criteria, consistent with the State’s guidance (“Urban Level of Flood Protection Criteria”, dated November 2013), which will offer greater local flexibility for applicants to provide evidence of flood protection. The standards and criteria would address a project’s ability to raise building pads and finished floors to the 200-year floodplain level, provide flood proofing for non-residential structures below the floodplain level, and allow the replacement of structures in the case of fire damage.
Proposed Levee Setbacks
Specific development setback requirements are proposed adjacent to levees to align with a pending State change to setback requirements. Specifically, the Code would require a minimum 15 foot setback from the landside levee toe, as opposed to the currently required 10 foot setback. For larger development projects (greater than 5 parcels or five areas in size), an additional setback up to a maximum of 50 feet would be required. These changes support and are in harmony with the State’s guidance to provide for greater ability to monitor and maintain levees and flood fight in the event of a levee breech.
Permitting Requirements
As noted above, these requirements were drafted by maintaining a careful balance between the goal of protecting life and property in the event of a 200-year flood event and the City’s obligation to make appropriate findings when issuing permits subject to the SB 5 requirements. The strategies and proposed Code amendments prepared by staff maintain that balance by providing different standards for residential versus commercial land uses. For example, the proposed changes will maintain individual plan review requirements for residential building permits to insure protections against loss of life and property. For commercial building permits, the zoning standards will define the necessary protections to address loss of property issues and allow for more by right uses. This aligns with SB5, which does not subject a non-discretionary commercial building permit to a 200-year protection finding.
Land Use table changes-zoning codes
The proposed Code amendment includes revisions to Table 2-2 Allowable Land Uses and Permit Requirements. Specifically, proposed revisions will change the level of permitting required for certain non-residential land uses from a discretionary permit to allowable, subject to obtaining a ministerial permit (permitted “by-right”). Under SB 5, non-residential ministerial permits are not subject to making a finding. The specific non-residential land use types proposed to be changed are uses that do not typically result in significant impacts on surrounding areas. As an example, an office building use in the Commercial, Office (CO) zoning district is recommended for change to a permitted use since this use is considered to be innocuous if located within the CO zone. Although the proposed changes would result in certain land uses not being subject to SB 5 findings, staff had intended to recommend these changes, regardless of SB 5, to improve permit streamlining and efficiencies.
In order to promote additional permit streamlining and efficiencies, staff is also recommending changes to the level of permitting required for certain residential land uses. The proposed changes will reduce permit requirements from a discretionary permit to allowable, subject to obtaining a ministerial permit (permitted “by-right”). Since a SB 5 finding would still be required for a ministerial permit for a new residence, this change does not change floodplain regulations related to SB 5, but staff felt this was an opportune time to address a more comprehensive update to Table 2-2 to improve permit streamlining and efficiencies.
Definitions
The amendment also includes changes to Title 15. The first adds a definition of “Flood Hazard Zone” and the second indicates the requirement to make a finding prior to approving a building permit that would result in the construction of a new residence within a flood hazard zone.
Effective Date
The proposed amendment will become effective on July 2, 2016, which aligns with the deadline specified under state law. Although this deviates from the usual 30-day effective period, it is consistent with the Charter and staff felt it was more appropriate to align with the date specified under state law.
Planning Commission Public Hearing
On May 12, 2016, a public hearing was held before the Planning Commission. The public hearing was noticed with a legal ad in The Record as per the SMC 16.88 requirements.
At the hearing, the Planning Commission inquired about the process for a typical master plan development and the proposed amendments required for 200-year flood protection. Staff indicated that (1) staff has been working with the development community and informing project developers of these new requirements; and (2) developers have been actively engaging engineers to evaluate flood protection improvement needed for complying with SB5.
The Planning Commission also asked whether retail uses could also be added as permitted uses “by right” to the proposed zoning amendments and still be compliant. Staff responded that retail uses were also proposed as a part of the proposed amendments. The basis of including retail uses is due to their integral part of the growth of any neighborhood.
Finally, the Planning Commission asked about the need to make the applicable findings given the varying flood depth areas of the 200-year floodplain map. Staff indicated that in those varying situations, the applicable findings would be to condition a project to meet 200-year flood protection (raising site pads, raising building elevations) or that a shallow flood exemption as allowed under SB5 would be the appropriate and legally consistent finding. Staff also indicated that these policies were consistent with allowances and requirements of SB5.
The Planning Commission approved a recommendation to forward the ordinance to the City Council for approval (Attachment D - Planning Commission Resolution).
Environmental Review
The proposed SMC amendments are exempt from the California Environmental Quality Act (CEQA) under the “general rule” that CEQA applies only to projects that have the potential for causing significant environmental effects, as specified in Section 15061(b)(3). Approval of the required amendments constitutes an administrative action that will not result in direct or indirect physical changes in the environment, and any future projects that would rely on these amendments will require further case-specific environmental review under CEQA.
FINANCIAL SUMMARY
There is no anticipated financial impact to the City of Stockton as a result of the proposed Code amendment. The project will simply bring the City into compliance with the state law.
Attachment A - Regional Flood Map
Attachment B - Proposed Ordinance (Redline Version)
Attachment C - 200-Year Floodplain Map
Attachment D - Planning Commission Resolution