The general purpose of this section is to effectively protect the water resources of the city with zoning provisions that regulate development in floodplains in a manner that, at a minimum, meets the requirements of the Federal Emergency Management Administration (FEMA) for participation in their National Flood Insurance Program (NFIP). Specifically, the purposes of the floodplain overlay district are to:

(1)

Ensure public safety through reducing the threats to life and personal injury;

(2)

Eliminate new hazards to emergency response officials;

(3)

Prevent the occurrence of public emergencies resulting from water quality, contamination, and pollution due to flooding;

(4)

Avoid the loss of utility services which if damaged by flooding would disrupt or shut down the utility network and impact regions of the community beyond the site of flooding;

(5)

Eliminate costs associated with the response and cleanup of flooding conditions; and

(6)

Reduce damage to public and private property resulting from flooding waters.

(7)

Discourage the development of hazard-prone areas so as to reduce damage, cleanup costs and repetitive loss, particularly in response to reports by FEMA and other federal and state agencies indicating that sea levels will rise during the coming decades.

(Ord. of 6-25-12(2))

The following definitions shall apply to the interpretation and implementation of terms used in this section only. Unless otherwise defined herein, all terms hereunder shall be interpreted consistent with those general definitions contained in section II-B entitled "definitions."

Area of special flood hazard is the land in the floodplain within a community subject to a one (1) percent or greater chance of flooding in any given year. The area may be designated as zone A, AO, AH, AE, or VE.

Base flood means the flood having a one (1) percent chance of being equaled or exceeded in any given year.

Coastal high hazard area means an area of special flood hazard extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high velocity wave action from storms or seismic sources. The area is designated on a FIRM as zone VE.

Development means any manmade change to improved or unimproved real estate, including but not limited to building or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.

District means floodplain overlay district.

Federal Emergency Management Agency (FEMA) administers the National Flood Insurance Program. FEMA provides a nationwide flood hazard area mapping study program for communities as well as regulatory standards for development in the flood hazard areas.

Flood insurance rate map (FIRM) means an official map of a community on which FEMA has delineated both the areas of special flood hazard and the risk premium zones applicable to the community.

Flood insurance study means an examination, evaluation, and determination of flood hazards, and, if appropriate, corresponding water surface elevations, or an examination, evaluation and determination of flood-related erosion hazards.

Floodway means the channel of the river, creek or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height.

Functionally dependent use means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, but does not include long-term storage or related manufacturing facilities.

Highest adjacent grade means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

Historic structure means any structure that is:

(a)

Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register:

(b)

Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district:

(c)

Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior: or

(d)

Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either:

1.

By an approved state program as determined by the Secretary of the Interior or

2.

Directly by the Secretary of the Interior in states without approved programs.

Lowest floor means the lowest floor of the lowest enclosed area (including basement or cellar). An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor, provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of NFIP Regulations 60.3.

Manufactured home means a structure, transportable in one (1) or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. For floodplain management purposes the term "manufactured home" also includes park trailers, travel trailers, and other similar vehicles placed on a site for greater than one hundred eighty (180) consecutive days. For insurance purposes, the term "manufactured home" does not include park trailers, travel trailers, and other similar vehicles.

Manufactured home park or subdivision means a parcel (or contiguous parcels) of land divided into two (2) or more manufactured home lots for rent or sale.

New construction means, structures for which the start of construction commenced on or after the effective date of the first floodplain management code, regulation, ordinance, or standard adopted by the authority having jurisdiction, including any subsequent improvements to such structures. New construction includes work determined to be substantial improvement.

One-hundred-year flood. See "base flood". Recreational vehicle means a vehicle which is:

(a)

Built on a single chassis;

(b)

Four hundred (400) square feet or less when measured at the largest horizontal projection;

(c)

Designed to be self-propelled or permanently towable by a light duty truck; and

(d)

Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.

Regulatory floodway. See "floodway."

Special flood hazard area means the land area subject to flood hazards and shown on a FIRM or other flood hazard map as Zone A, AE, A1-30, A99, AR, AO, AH, V, VO, VE or V1-30.

Start of construction means the date of issuance for new construction and substantial improvements to existing structures, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement or other improvement is within one hundred eighty (180) days after the date of issuance. The actual start of construction means the first placement of permanent construction of a building (including a manufactured home) on a site, such as the pouring of a slab or footings, installation of pilings or construction of columns.

Permanent construction does not include land preparation (such as clearing, excavation, grading or filling), the installation of streets or walkways, excavation for a basement, footings, piers or foundations, the erection of temporary forms or the installation of accessory buildings such as garages or sheds not occupied as dwelling units or not part of the main building. For a substantial improvement, the actual "start of construction" means the first alteration of any wall, ceiling, floor or other structural part of a building, whether or not that alteration affects the external dimensions of the building.

Structure means, for floodplain management purposes, a walled and roofed building, including a gas or liquid storage tank, that is principally above ground, as well as a manufactured home.

Structure, for insurance coverage purposes, typically means a walled and roofed building, other than a gas or liquid storage tank, that is principally above ground and affixed to a permanent site, as well as a manufactured home on foundation. For the latter purpose, the term includes a building while in the course of construction, alteration, or repair, but does not include building materials or supplies intended for use in such construction, alteration, or repair, unless such materials or supplies are within an enclosed building on the premises.

Substantial damage means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damaged condition would equal or exceed fifty (50) percent of the market value of the structure before the damage occurred.

Substantial improvement means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds fifty (50) percent of the market value of the structure either (a) before the improvement or repair is started, or (b) if the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition, "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure.

Substantial repair to a foundation means when work to repair or replace a foundation results in the repair or replacement of a portion of the foundation with a perimeter along the base of the foundation that equals or exceeds fifty (50) percent of the perimeter of the base of the foundation measured in linear feet, or repair or replacement of fifty (50) percent of the piles, columns or piers of a pile, column or pier supported foundation, the building official shall determine it to be substantial repair of a foundation. Applications determined by the building official to constitute substantial repair of a foundation shall require all existing portions of the entire building or structure to meet the requirements of 780 CMR.

Variance means a grant of relief by a community from the terms of a flood plain management regulation.

Violation means the failure of a structure or other development to be fully compliant with the community's flood plain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in §60.3 is presumed to be in violation until such time as that documentation is provided.

(Ord. of 6-25-12(2); Ord. of 6-3-25(1))

(1)

Establishment: There is hereby established a floodplain overlay district which shall be governed by the regulations specified in this section.

(2)

Floodplain overlay district boundaries: See section III-B definition "floodplain overlay district." All zones within said floodplain overlay district shall be as defined in the US Code of Federal Regulations, Title 44, Part 64.3, which are follows:

ZONE

A means an area of special flood hazard without water surface elevations determined.

ZONE

A1-30 and ZONE AE means area of special flood hazard with water surface elevations determined.

ZONE

AH means areas of special flood hazards having shallow water depths and/or unpredictable flow paths between (1) and (3) feet, and with water surface elevations determined.

ZONE

AO means area of special flood hazards having shallow water depths and/or unpredictable flow paths between (1) and (3) ft. (Velocity flow may be evident: such flooding is characterized by ponding or sheet flow.)

ZONES

B, C, and X means areas of minimal or moderate flood hazards or areas of future-conditions flood hazard. (Zone X replaces Zones B and C on new and revised maps.)

ZONE

V1-30 and ZONE VE (for new and revised maps) means area of special flood hazards, with water surface elevations determined and with velocity, that is inundated by tidal floods (coastal high hazard area).

(3)

Base flood elevation data. Base flood elevation data is required for any subdivision proposal, any new building or development, and any other development that would result in additional impervious surface within any area of the floodplain overlay district.

(a)

Unnumbered A Zones: In A Zones, in the absence of FEMA BFE data and floodway data, the building department and floodplain administrator shall obtain, review and reasonably utilize base flood elevation and floodway data available from a federal, state, or other source as criteria for requiring new construction, substantial improvements, or other development in Zone A and as the basis for elevating residential structures to or above base flood level, for floodproofing or elevating nonresidential structures to or above base flood level. and for prohibiting encroachments in floodways.

(b)

Subdivisions: When proposing subdivisions or other developments greater than fifty (50) lots or five (5) acres (whichever is less), the proponent must provide technical data to determine base flood elevations for each developable parcel shown on the design plans.

(Ord. of 6-25-12(2); Ord. of 6-3-25(1))

(1)

Applicability: No structure or building shall be erected, constructed, expanded, substantially improved, or moved and no earth or other materials shall be dumped, filled, excavated, transferred, or otherwise altered in the floodplain overlay district except in accordance with this section.

(2)

General exemptions: For the purposes of this section, a permit shall not be required for any demolition or other activity that reduces impervious surface on a lot within the floodplain overlay district. This exemption applies only to this section of the ordinance.

(3)

Emergency repairs: The requirements of this section shall not apply to emergency repairs or projects necessary for the protection of the health, safety or welfare of the general public which are to be performed or which are ordered to be performed by a city department, or the commonwealth, or a political subdivision thereof. In no case shall any filling, dredging, excavating, or otherwise extend beyond the time necessary to abate the emergency.

(4)

Floodplain administrator: The City of Newburyport hereby designates the position of building commissioner (inspector when acting in their capacity hereunder) to be the official floodplain administrator for the town/city.

(5)

Permits required for all proposed development within the Floodplain Overlay District: The City of Newburyport requires a permit for all proposed construction or other development in the Floodplain Overlay District, including new construction or changes to existing buildings, placement of manufactured homes, placement of agricultural facilities, fences, sheds, storage facilities or drilling, mining, paving and any other development that might increase flooding or adversely impact flood risks to other properties.

Review by the floodplain administrator and issuance of a building permit or other approval hereunder requires that the proponent also obtain all local, state and federal permits that will be necessary in order to carry out the proposed development in the Floodplain Overlay District. The proponent must acquire all necessary permits, and must demonstrate that all necessary permits have been acquired by submitting a copy of all such permits at the time of application for a permit and approval hereunder.

(Ord. of 6-25-12(2); Ord. of 6-3-25(1))

(1)

Reference to existing regulations: The floodplain overlay district is established as an overlay district to all other districts. All development in the district, including structural and non-structural activities, whether permitted by right or by special permit must be in compliance with the following:

(a)

Massachusetts General Laws (M.G.L.), Chapter 131, Section 40 (The Wetlands Protection Act)

(b)

Sections of the Massachusetts State Building Code which address floodplain and coastal high hazard areas (currently 780 CMR including but not limited to section 2102.0 entitled "floodplain resistant construction");

(c)

Wetlands protection regulations, Department of Environmental Protection (DEP) (currently 310 CMR 10.00);

(d)

Inlands wetlands restrictions, DEP (currently 310 CMR 13.00);

(e)

Coastal wetlands restrictions, DEP (currently 310 CMR 12.00);

(f)

Minimum requirements for the subsurface disposal of sanitary sewage, DEP (currently 310 CMR 15, Title 5);

Any variance from the provision and requirements of the above referenced state regulations may only be granted in accordance with the required procedures of these state regulations.

(2)

Coastal high hazard areas: Located within the floodplain overlay district are areas designated as coastal high hazard areas (zone V and zone VE). Since these areas are extremely hazardous due to high velocity waters from tidal surges and hurricane wave wash, the following provisions shall apply:

(a)

All proposals must adhere to the requirements of section XIII-E(1)

(b)

All new construction shall be located landward of the reach of the mean high tide.

(c)

Manmade alteration of sand dunes, which would increase potential flood damage, is now prohibited.

(3)

Floodway development and encroachments prohibited:

(a)

Floodway data: In Zones A and AE. along watercourses that have not had a regulatory floodway designated, the best available Federal, State, local, or other floodway data shall be used to prohibit encroachments in floodways which would result in any increase in flood levels within the community during the occurrence of the base flood discharge.

(b)

Hydrologic and hydraulic analysis: In Zones AE, along watercourses that have a regulatory floodway designated on the City's FIRM encroachments are prohibited, including fill, new construction, substantial improvements, and other development within the adopted regulatory floodway unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment would not result in any increase in flood levels within the community during the occurrence of the base flood discharge.

(4)

Flood prevention in subdivisions: All proposed subdivisions must be designed to assure that:

(a)

The proposed project will minimize flood damage;

(b)

All public utilities and facilities are located and constructed to minimize or eliminate flood damage; and

(c)

Adequate drainage is provided to reduce exposure to flood hazards.

(5)

Consideration of new scientific and/or engineering data: Where the applicant for a permit provides documentation of an approved physical map revision (PMR) or letter of map change (LOMC) [i.e. letter of map amendment (LOMA), letter of map revision (LOMR) or letter of map revision based on fill (LOMR-F)] from FEMA for the subject property subsequent to the baseline FEMA/FIRM maps adopted herein and referenced in sections III-B and III-C, the requirements of section XIII: "floodplain overlay district regulations" shall be reduced to the extent that portions of the subject property (and/or related structures) are no longer considered by FEMA to be within the applicable floodplain district and/or floodway.

Copies of applicable PMR and LOMC approvals from FEMA shall be kept on file in the office of the building inspector and office of planning and development.

(6)

Notification of watercourse alterations or relocations in riverine areas: The office of planning and development shall notify, in a riverine situation, the following agencies (and their future or successor agencies) of any alteration or relocation of a watercourse:

(a)

Adjacent (abutting) communities, especially upstream and downstream.

(b)

NFIP State Coordinator

Massachusetts Department of Conservation and Recreation

(c)

NFIP Program Specialist

Federal Emergency Management Agency, Region I

(d)

Bordering States, if affected

(7)

Required submission of new technical data to FEMA: If the town/city acquires data that changes the base flood elevation in the FEMA mapped special flood hazard areas, the town/city will, within six (6) months, notify FEMA of these changes by submitting the technical or scientific data that supports the change(s). Notification shall be submitted to:

(a)

NFIP State Coordinator

Massachusetts Department of Conservation and Recreation

(b)

NFIP Program Specialist

Federal Emergency Management Agency, Region I

(8)

AO and AH Zones drainage requirements: Within Zones AO and AH on the FIRM. Adequate drainage paths must be provided around structures on slopes, to guide floodwaters around and away from proposed structures.

(9)

Recreational vehicles: In A, AO, AE and VE Zones, all recreational vehicles to be placed on a site must be elevated and anchored in accordance with the zone's regulations for foundation and elevation requirements or be on the site for less than one hundred eighty (180) consecutive days or be fully licensed and highway ready.

(10)

Variances to building code floodplain standards: For any state-issued variances to any flood-resistant standards otherwise required within the state building code, the city (acting through the building department) shall:

(a)

Request from the state building code appeals board a written and/or audible copy of the portion of the hearing related to the variance, and will maintain this record in the community's files.

(b)

Issue a letter to the property owner regarding potential impacts to the annual premiums for the flood insurance policy covering that property, in writing over the signature of a community official that (i) the issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as twenty five ($25) dollars for one hundred ($100) dollars of insurance coverage and (ii) such construction below the base flood level increases risks to life and property. Such notification shall be maintained with the record of all variance actions for the referenced development in the floodplain overlay district.

(11)

Variances to local zoning ordinances related to community compliance with the National Flood Insurance Program (NFIP): Any variance from these Floodplain Overlay District regulations must meet the requirements set out by state law, and may only be granted if: 1) Good and sufficient cause and exceptional non-financial hardship exist; 2) the variance will not result in additional threats to public safety, extraordinary public expense, or fraud or victimization of the public; and 3) the variance is the minimum action necessary to afford relief.

(Ord. of 6-25-12(2); Ord. of 6-3-25(1))

The floodplain management regulations found in this Floodplain Overlay District section shall take precedence over any less restrictive conflicting local laws, ordinances or codes.

(Ord. of 6-3-25(1))

The degree of flood protection required by this ordinance and section is considered reasonable, and consistent with requirements under the National Flood Insurance Program (NFIP), but does not imply total flood protection.

(Ord. of 6-3-25(1))

If any section, provision or portion of this ordinance and/or section is deemed to be unconstitutional or invalid by a court, the remainder of the ordinance and/or section shall remain effective.

(Ord. of 6-3-25(1))