4.1.1 General.

A)

Statutory Authorization. The Legislature of the State of New Mexico having power to minimize flood hazard, (NMSA 1978, § 3-18-7) and for flood control (NMSA 1978, § 3-41-1, et seq.) has delegated the responsibility of local governmental units to adopt regulations designed to minimize flood losses. Therefore, the Council of the Town of Silver City, New Mexico does ordain as follows in this section:

B)

Findings of Fact.

1)

The flood hazard areas of the Town of Silver City, New Mexico are subject to periodic inundation which results in loss of life and property, health and safety hazards, disruption of commerce and governmental services, and extraordinary public expenditures for flood protection and relief, all of which adversely affect the public health, safety and general welfare.

2)

These flood losses are created by the cumulative effect of obstructions in floodplains which cause an increase in flood heights and velocities, and by the occupancy of flood hazards areas by uses vulnerable to floods and hazards to other lands because they are inadequately elevated, flood proofed or otherwise protected from flood damage.

C)

Statement of Purpose. It is the purpose of this section to promote the public health, safety and general welfare and to minimize public and private losses due to flood conditions in specific areas by provisions designed to:

1)

Protect human life and health;

2)

Minimize expenditure of public money for costly flood control projects; and

3)

Prevent flood hazards to other lands;

4)

Minimize prolonged business interruptions;

5)

Minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets and bridges located in floodplains;

6)

Help maintain a stable tax base by providing for the sound use and development of flood-prone areas in such a manner as to minimize future flood blight areas; and

7)

Insure that potential buyers are notified that property is in a flood area.

D)

Methods of Reducing Flood Losses. In order to accomplish its purposes, this ordinance uses the following methods:

1)

Restrict or prohibit uses that are dangerous to health, safety or property in times of flood, or cause excessive increases in flood heights or velocities;

2)

Require that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction;

3)

Control the alteration of natural floodplains, stream channels, and natural protective barriers, which are involved in the accommodation of flood waters;

4)

Control filling, grading, dredging and other development that may increase flood damage;

5)

Prevent or regulate the construction of flood barriers that will unnaturally divert flood waters or which may increase flood hazards to other lands.

4.1.2 Definitions. Unless specifically defined below, words or phrases used in this section shall be interpreted to give them the meaning they have in common usage and to give this section its most reasonable application.

A)

Alluvial Fan Flooding means flooding occurring on the surface of an alluvial fan or similar land form which originates at the apex and is characterized by high-velocity flows; active processes of erosion, sediment transport, and deposition; and unpredictable flow paths.

B)

Apex means a point on an alluvial fan or similar land form below which the flow path of the major stream that formed the fan becomes unpredictable and alluvial fan flooding can occur.

C)

Appurtenant Structure means a structure which is on the same parcel of property as the principal structure to be insured and the use of which is incidental to the use of the principal structure.

D)

Area of Future Conditions Flood Hazard means the land area that would be inundated by the 1-percent-annual chance (100 year) flood based on future conditions hydrology.

E)

Area of Shallow Flooding means a designation AO, AH, or VO zone on a community's flood insurance rate map (FIRM) with a one percent chance or greater annual chance of flooding to an average depth of one to three feet where a clearly defined channel does not exist, where the path of flooding is unpredictable and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow.

F)

Area of Special Flood Hazard is the land in the floodplain within a community subject to a one percent or greater change of flooding in any given year. The area may be designated as Zone A on the flood hazard boundary map (FHBM). After detailed rate making has been completed in preparation for publication of the FIRM, Zone A usually is refined into Zones A, AE, AH, AO, A1—99, VO, V1-30, VE or V.

G)

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

H)

Base Flood Elevation means the computed elevation to which floodwater is anticipated to rise during the base flood. Base Flood Elevations (BFEs) are shown on Flood Insurance Rate Maps (FIRMs) and on the flood profiles.

I)

Basement means any area of the building having its floor subgrade (below ground level) on all sides.

J)

Breakaway Wall means a wall that is not part of the structural support of the building and is intended through its design and construction to collapse under specific lateral loading forces, without causing damage to the elevated portion of the building or supporting foundation system.

K)

Critical Feature means an integral and readily identifiable part of a flood protection system, without which the flood protection provided by the entire system would be compromised.

L)

Development means any man-made change in improved and unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.

M)

Elevated Building means, for insurance purposes, a non-basement building, which has its lowest elevated floor raised above ground level by foundation walls, shear walls, posts, piers, pilings, or columns.

N)

Existing Construction means for the purposes of determining rates, structures for which the "start of construction" commenced before the effective date of the FIRM (May 17, 1988) "Existing construction" may also be referred to as "existing structures."

O)

Existing Manufactured Home Park or Subdivision means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before the effective date of the floodplain management regulations adopted by a community.

P)

Expansion to an Existing Manufactured Home Park or Subdivision means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads).

Q)

Flood or Flooding means a general and temporary condition of partial or complete inundation of normally dry land areas from:

1)

The overflow of inland or tidal waters.

2)

The unusual and rapid accumulation or runoff of surface waters from any source.

R)

Flood Elevation Study means an examination, evaluation and determination of flood hazards and, if appropriate, corresponding water surface elevations, or an examination, evaluation and determination of mudslide (i.e., mudflow) and/or flood-related erosion hazards.

S)

Flood Insurance Rate Map (FIRM) means an official map of a community, on which the Federal Emergency Management Agency (FEMA) has delineated both the areas of special flood hazards and the risk premium zones applicable to the community.

T)

Flood Insurance Study (FIS) is the official report provided by the FEMA Agency. The report contains flood profiles, water surface elevation of the base flood, as well as the flood boundary-floodway map.

U)

Floodplain or Flood-prone Area means any land area susceptible to being inundated by water from any source (see definition of flooding).

V)

Floodplain Development Permit means a permit issued by the Town's certified Floodplain Administrator allowing the construction of improvements in a floodplain pursuant to the terms of this Land Use Code.

W)

Floodplain Management means the operation of an overall program of corrective and preventive measures for reducing flood damage, including but not limited to emergency preparedness plans, flood control works and floodplain management regulations.

X)

Floodplain Management Regulations means zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as floodplain ordinance, grading ordinance, and erosion control ordinance) and other applications of police power. The term describes such state or local regulations, in any combination thereof, which provide standards for the purpose of flood damage prevention and reduction.

Y)

Flood Protection System means those physical structural works for which funds have been authorized, appropriated, and expended and which have been constructed specifically to modify flooding in order to reduce the extent of the areas within a community subject to a "special flood hazard" and the extent of the depths or associated flooding. Such a system typically includes hurricane tidal barriers, dams, reservoirs, levees or dikes. These specialized flood modifying works are those constructed in conformance with sound engineering standards.

Z)

Flood Proofing means any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents.

AA)

Floodway. See "Regulatory Floodway."

BB)

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.

CC)

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

DD)

Historic Structure means any structure that is:

1)

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

2)

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;

3)

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

4)

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

a)

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

b)

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

EE)

Levee means a man-made structure, usually an earthen embankment, designed and constructed in accordance with sound engineering practices to contain, control, or divert the flow of water so as to provide protection from temporary flooding.

FF)

Levee System means a flood protection system which consists of a levee, or levees, and associated structures, such as closure and drainage devices, which are constructed and operated in accordance with sound engineering practices.

GG)

Lowest Floor means the lowest floor of the lowest enclosed area (including basement). In 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 requirement of Section 60.3 of the National Flood Insurance Program regulations.

HH)

Manufactured Home means a structure transportable in one 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. The term "manufactured home" does not include a "recreational vehicle."

II)

Manufactured Home Park or Subdivision means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.

JJ)

Mean Sea Level means, for purpose of the National Flood Insurance Program, the North American Vertical Datum (NAVD) of 1988 or other datum, to which base flood elevations shown on a community's FIRM are referenced.

KK)

New Construction means, for the purpose of determining insurance rates, structures for which the "start of construction" commenced on or after the effective date of the initial FIRM (May 17, 1988) and includes any subsequent improvements to such structures. For floodplain management purposes," new construction" means structures for which the "start of construction" commenced on or after the effective date of a floodplain management regulation adopted by a community and includes any subsequent improvements to such structures.

LL)

New Manufactured Home Park or Subdivision means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after the effective date of floodplain management regulations adopted by a community.

MM)

Recreational Vehicle means a vehicle which is:

1)

Built on a single chassis;

2)

400 square feet or less when measured at the largest horizontal projections;

3)

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

4)

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

NN)

Regulatory Floodway means the channel of a river 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.

OO)

Riverine means relating to, formed by or resembling a river (including tributaries), stream, brook, etc.

PP)

Special Flood Hazard Area. See "Area of Special Flood Hazard."

QQ)

Start of Construction (for other than new construction or substantial improvements under the Coastal Barrier Resources Act (Pub. L. 97-348)), includes substantial improvement and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of a slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and or walkways; nor does it include excavation for basement, footings, piers or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. 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.

RR)

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.

SS)

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 50 percent of the market value of the structure before the damage occurred.

TT)

Substantial Improvement means any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before "start of construction" of the improvement. This includes structures which have incurred "substantial damage," regardless of the actual repair work performed. The term does not, however, include either:

1)

Any project or improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary conditions; or

2)

Any alteration of "historic structure," provided that the alteration will not preclude the structure's continued designation as a "historic structure."

UU)

Variance means a grant of relief by a community from the terms of a floodplain management regulation. (For full requirements see Section 60.6 of the National Flood Insurance Program regulations.)

VV)

Violation means the failure of a structure or other development to be fully compliant with the community's floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in Section 60.3(b)(5), (c)(4), (c)(10), (d)(3), (e)(2), (e)(4), or (e)(5) of the National Flood Insurance Program regulations is presumed to be in violation until such time as that documentation is provided.

WW)

Water Surface Elevation means the height, in relation to the North American Vertical Datum (NAVD) of 1988 (or other datum, where specified), of floods of various magnitudes and frequencies in the floodplains of coastal or riverine areas.

4.1.3 General Provisions.

A)

Lands to which this Section Applies. This section shall apply to all areas of special flood hazard within the jurisdiction of the Town of Silver City, New Mexico.

B)

Basis for Establishing the Areas of Special Flood Hazard. The areas of special flood hazard identified by the Federal Emergency Management Agency in the current scientific and engineering report entitled, "The Flood Insurance Study, Grant County, New Mexico and Incorporated Areas," dated January 6, 2011, with the most effective Flood Insurance Rate Maps (FIRM) dated January 6, 2011.

C)

Establishment of Floodplain Development Permit. A Floodplain Development Permit shall be required to ensure conformance with the provisions of this section.

D)

Compliance. No structure or land shall hereafter be located, altered or have its use changed without full compliance with the terms of this section and other applicable regulations.

E)

Abrogation and Greater Restrictions. This section is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this section and another conflict or overlap, whichever imposes the more stringent restrictions shall prevail.

F)

Interpretation. In the interpretation and application of this section, all provisions shall be:

1)

Considered as minimum requirements;

2)

Liberally constructed in favor of the governing body; and

3)

Deemed neither to limit nor repeal any other powers granted under state statutes.

G)

Warning and Disclaimer of Liability. The degree of flood protection required by this section is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. On rare occasions greater floods can and will occur and flood heights may be increased by man-made or natural causes. This section does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This section shall not create liability on the part of the community or any official or employee thereof for any flood damages that result from reliance on this section or any administrative decision lawfully made thereunder.

4.1.4 Administration.

A)

Designation of Floodplain Administrator. The Town's Floodplain Manager will be designated to administer and implement the provisions of this section and other appropriate sections of 44 CFR (Emergency Management and Assistance—National Flood Insurance Program Regulations) pertaining to floodplain management.

B)

Duties and Responsibilities of Floodplain Administrator. Duties and responsibilities of the floodplain administrator shall include, but not be limited to, the following:

1)

Maintain and hold open for public inspection all records pertaining to the provisions of this section.

2)

Review Zoning and Floodplain Development Permits applications to determine whether proposed building sites, including the placement of manufactured homes, will be reasonably safe from flooding.

3)

Review, approve or deny all applications for Zoning and Floodplain Development Permits required by adoption of this section.

4)

Review Zoning and Floodplain Development Permits for proposed development to assure that all necessary permits have been obtained from those federal, state, or local governmental agencies (including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334) from which prior approval is required.

5)

Where interpretation is needed so as to the exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions) the floodplain administrator shall make the necessary interpretation.

6)

Notify, in riverine situations, adjacent communities and the state coordinating agency, which is the New Mexico Department of Homeland Security and Emergency Management, prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the FEMA.

7)

Assure that the flood-carrying capacity within the altered or relocated portion of any watercourse is maintained.

8)

When base flood elevation data has not been provided in accordance with Section 4.1.3(B) of this Land Use Code, the floodplain administrator shall obtain, review and reasonably utilize any base flood elevation data and floodway data available from a federal, state or other source, in order to administer the provisions of this ordinance.

9)

When a regulatory floodway has not been designated, the floodplain administrator must require that no new construction, substantial improvements, or other development (including fill) shall be permitted within Zones A1—30 and AE on the community's FIRM, unless it is demonstrated that the cumulative effect of the proposed development, will not increase the water surface elevation of the base flood more than one foot at any point within the community.

10)

Under the provisions of 44 CFR Chapter 1, Section 65.12, of the National Flood Insurance Program regulations, a community may approve certain development in Zones A1—30, AE, AH, on the community's FIRM which increases the water surface elevation of the base flood by more than one foot, provided that the community first applies for a conditional FIRM revision through FEMA.

C)

Permit Procedures.

1)

Application for a Floodplain Development Permit shall be presented to the floodplain administrator on forms furnished by him/her and may include, but not be limited to, plans in duplicate drawn to scale showing the location, dimensions, and elevation of proposed landscape alterations, existing and proposed structures, including the placement of manufactured homes, and the location of the foregoing in relation to areas of special flood hazard. Additionally, the following information is required:

a)

Elevation (in relation to mean sea level), of the lowest floor (including basement) of all new and substantially improved structures;

b)

Elevation in relation to mean sea level to which any non-residential structure shall be flood proofed;

c)

A certificate from a registered professional engineer or architect that the non-residential flood proofed structure shall meet the Flood proofing criteria of Section 4.1.5(B)(2) of this Land Use Code.

d)

Description of the extent to which any watercourse or natural drainage will be altered or relocated as a result of proposed development.

e)

Maintain a record of all such information in accordance with Section 4.1.4(B)(1) of this Land Use Code.

2)

Approval or denial of a Floodplain Development Permit by the floodplain administrator shall be based on all of the provisions of this section and the following relevant factors:

a)

The danger to life and/or property due to flooding or erosion damage;

b)

The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

c)

The danger that materials may be swept onto other lands to the injury of others;

d)

The compatibility of the proposed use with existing and anticipated development;

e)

The safety of access to the property in times of flood for ordinary and emergency vehicles;

f)

The costs of providing governmental services during and after flood conditions including maintenance and repair of streets and bridges, and public utilities and facilities such as sewer, gas, electrical and water systems;

g)

The expected heights, velocity, duration, rate of rise and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site;

h)

The necessity to the facility of a waterfront location, where applicable;

i)

The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use; and

j)

The relationship of the proposed use to the Comprehensive Plan for that area.

D)

Variance Procedures.

1)

The appeal board as established by the community shall hear and render judgment on requests for variances from the requirements of this section. The Planning and Zoning Commission is designated as the appeal board.

2)

The appeal board shall hear and render judgment on an appeal only when it is alleged there is an error in any requirement, decision, or determination made by the floodplain administrator in the enforcement or administration of this ordinance.

3)

Any person or persons aggrieved by the decision of the appeal board may appeal such decision in the courts of competent jurisdiction.

4)

The floodplain administrator shall maintain a record of all actions involving an appeal and shall report variances to the FEMA upon request.

5)

Variances may be issued for construction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in the remainder of this section.

6)

Variances may be issued for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing the relevant factors in Section 4.1.4(C) of this section have been fully considered. As the lot size increases beyond the one-half acre, the technical justification required for issuing the variance increases.

7)

Upon consideration of the factors noted above and the intent of this section, the appeal board may attach such conditions to the granting of variances as it deems necessary to further the purpose and objectives of this section.

8)

Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.

9)

Variances may be issued for the repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.

10)

Prerequisites for granting variances:

a)

Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

b)

Variances shall only be issued upon:

i)

Showing a good and sufficient cause;

ii)

A determination that failure to grant the variance would result in exceptional hardship to the applicant, and

iii)

A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, created nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.

c)

Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with the lowest floor elevation below the base flood elevation, and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.

11)

Variances may be issued by a community for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided that:

a)

The criteria outlined in (D)(1) through (D)(9) above are met, and

b)

The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

4.1.5 Provisions for Flood Hazard Reduction.

A)

General Standards. In all areas of special flood hazards the following provisions are required for all new construction and substantial improvements:

1)

All new construction or substantial improvements shall be designed (or modified) and adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy;

2)

All new construction or substantial improvements shall be constructed by methods and practices that minimize flood damage;

3)

All new construction or substantial improvements shall be constructed with materials resistant to flood damage;

4)

All new construction or substantial improvements shall be constructed with electrical, heating ventilation, plumbing, and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

5)

All new replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system;

6)

New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the system and discharge from the systems into flood waters; and,

7)

On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.

B)

Specific Standards. In all areas of special flood hazards where base flood elevation data has been provided as set forth in: (1) Section 4.1.3(B); (2) Section 4.1.4(B)(8); or (3) Section 4.1.5(C)(3), the following provisions are required:

1)

Residential construction. New construction and substantial improvements of any residential structure shall have the lowest floor (including basement), elevated to a minimum of 12 inches above the base flood elevation. A registered professional engineer, architect, or land surveyor shall submit a certification to the floodplain administrator that the standard of this subsection as proposed in Section 4.1.4(C)(1)(a), is satisfied.

2)

Non-residential construction. New construction and substantial improvements of any commercial, industrial or other non-residential structure shall either have the lowest floor (including basement) elevated to a minimum of 12 inches above the base flood level. A registered professional engineer or architect shall develop and/or review structural design, specifications, and plans for the construction, and he shall certify that the design and methods of construction are in accordance with accepted standards or practice as outlined in this section. A record of such certification which includes the specific elevation (in relation to mean sea level) to which such structures are flood proofed shall be maintained by the floodplain administrator.

3)

Enclosures. New construction and substantial improvements, with fully enclosed areas below the lowest floor that are usable solely for parking of vehicles, building access or storage in an area other than a basement and which are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of flood water. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or meet or exceed the following minimum criteria:

a)

A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided.

b)

The bottom of all openings shall be no higher than one foot above grade.

c)

Openings may be equipped with screens, louvers, valves, or other coverings or devices provided that they permit the automatic entry and exit of flood water.

4)

Manufactured homes.

a)

Require that all manufactured homes to be placed within Zone A on a community's FHBM or FIRM shall be installed using methods and practices which minimize flood damage. For the purposes of this requirement, manufactured homes must be elevated and anchored to resist flotation, collapse, or lateral movement. Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable state and local anchoring requirements for resisting wind forces.

b)

Require that manufactured homes that are placed or substantially improved within Zones A1—30, AH, and AE on the community's FIRM on sites:

i)

Outside of a manufactured home park or subdivision;

ii)

In a new manufactured home park or subdivision;

iii)

In an expansion to an existing manufactured home park or subdivision; or

iv)

In an existing manufactured home park or subdivision on which a manufactured home has incurred "substantial damage" as a result of a flood; be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated to a minimum of 12 inches above the base flood elevation and be securely anchored to an adequately anchored foundation system to resist flotation, collapse, and lateral movement.

c)

Require that manufactured homes be placed or substantially improved on sites in an existing manufactured home park or subdivision with Zones A1—30, AH and AE on the community's FIRM that are not subject to the provisions of paragraph (4) of this section be elevated so that either:

i)

The lowest floor of the manufactured home is at a minimum of 12 inches above the base flood elevation, or

ii)

The manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than 36 inches in height above grade and be securely anchored to an adequately anchored foundation system to resist flotation, collapse, and lateral movement.

5)

Recreational vehicles. Require that recreational vehicle placed on sites within Zone A1—30, AH, and AE on the community's FIRM either:

a)

Be on the site for fewer than 180 consecutive days, or

b)

Be fully licensed and ready for highway use, or

c)

Meet the requirements of Section 4.1.4(C)(1)(a), and the elevation and anchoring requirements for "manufactured homes" in paragraph (4) of this section.

A recreational vehicle is ready for highway use if it is on its wheels or jacking system, attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached condition.

C)

Standards for Subdivision Proposals.

1)

All subdivision proposals including the placement of manufactured home parks and subdivisions shall be consistent with subsections 4.1.1(B) and (C) and Section 4.1.2 of this Land Use Code.

2)

All proposals for the development of subdivisions including the placement of manufactured home parks and subdivisions shall meet Zoning Permit requirements of subsections 4.1.3(C), 4.1.4(C), and Section 4.1.5 of this Land Use Code.

3)

Base flood elevation data shall be generated for subdivision proposals and to proposed development including the placement for manufactured home parks and subdivisions which is greater than 50 lots or five acres, whichever is lesser, if not otherwise provided pursuant to subsection 4.1.3(B) or subsection 4.1.4(B)(8) of this Land Use Code.

4)

All subdivision proposals including the placement of manufactured home parks and subdivisions shall have adequate drainage provided to reduce exposure to flood hazards.

5)

All subdivision proposals including the placement of manufactured home parks and subdivisions shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize or eliminate flood damage.

D)

Standards for Areas of Shallow Flooding (AO/AH Zones). Located within the areas of special flood hazard established in subsection 4.1.3(B) are areas designated as shallow flooding. These areas have special flood hazards associated with base flood depths of one to three feet where a clearly defined channel does not exist and where the path of flooding is unpredictable and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow; therefore, the following provisions apply:

1)

All new construction and substantial improvements of residential structures have the lowest floor (including basement) elevated above the highest adjacent grade at least as high as the depth number specified in feet on the community's FIRM (at least two feet if no depth number is specified).

2)

All new construction and substantial improvements of non-residential structures shall:

a)

Have the lowest floor (including basement) elevated above the highest adjacent grade at least as high as the depth number specified in feet on the community's FIRM (at least two feet if no depth number is specified); or

b)

Together with attendant utility and sanitary facilities be designed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads or effects of buoyancy.

c)

A registered professional engineer or architect shall submit a certification to the floodplain administrator that the standards of this section, as proposed in subsection 4.1.4(C)(1)(a), are satisfied.

d)

Require within Zones AH or AO adequate drainage path around structures on slopes, to guide flood waters around and away from proposed structures.

E)

Floodways. Floodways located within areas of special flood hazard established in subsection 4.1.3(B) are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of flood waters which carry debris and potential projectiles, the following provisions shall apply:

1)

[Encroachments.] 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.

2)

[Compliance.] If subparagraph (1) above is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazards reduction provisions of this division.

3)

[Criteria.] Under the provisions of 44 CFR Chapter 1, Section 65.1 of the National Flood Insurance Regulations, a community may permit encroachments within the adopted regulatory floodway that would result in an increase in base flood elevations, provided that the community first completes all of the provisions required by Section 65.12.

4)

Permitted uses. The following uses have a low flood danger potential and, if not obstructing flood flows, shall be permitted within the floodway district, provided they are not prohibited by any other ordinance, and provided they do not require permanent structures, fill or storage of materials or equipment, and meet the requirements of Federal Regulations, 44 CFR, Part 60.3 and Section 4.1.5 of this title:

a)

Agricultural uses such as general farming, pasture, grazing, outdoor plant nurseries, horticulture, truck farming, forestry, sod farming and wild-crop harvesting;

b)

Residential uses such as lawn, gardens, parking areas and play areas;

c)

Private and public recreational uses including, but not limited to, ball fields, golf courses, tennis courts, driving ranges, archery ranges, picnic grounds, parks, wildlife and nature preserves, game farms, shooting preserves, target ranges, trap and skeet ranges, hiking and riding trails; and

5)

Prohibited uses.

a)

No structures (temporary or permanent), fill (including fill for roads and levees), deposit, obstruction, storage of materials or equipment, or other uses, shall be allowed which, acting alone or in combination with existing or future uses, shall unduly affect the capacity of the floodway as determined by the city.

b)

Residential structures are prohibited in the floodway except for:

i)

Repairs, reconstruction or improvements to an existing structure that do not increase the ground floor area; and

ii)

Repairs, reconstruction or improvements to an existing structure, the cost of which does not exceed 50 percent of the market value of the structure either:

(a)

Before the repair, reconstruction or improvement is started, or

(b)

If the structure has been damaged and is being restored, before the damage occurred.

iii)

Work done on structures to comply with existing health, sanitary, or safety codes or to structures identified as historic places shall not be included in the fifty percent determination.

6)

Conditional uses. The following uses which involve structures (temporary or permanent), or fill in the floodway may be permitted if approved along with the floodplain development permit when in compliance with subsection 7 of this section.

a)

Uses or structures accessory to uses permitted in the floodway district;

b)

Extraction of sand, gravel and other material;

c)

Railroads, streets, bridges, utility transmission lines and pipelines; and

7)

Conditional use standards.

a)

Fills:

i)

Any fill permitted must have a beneficial purpose, and the size of the fill must relate to achieving said purpose. A plan shall be submitted illustrating the uses proposed for the fill and its dimensions.

ii)

Such fill or other materials shall be protected against erosion by rip rap, vegetation cover or bulk heading.

b)

Structures temporary or permanent provided:

i)

Structures shall have a low flood-damage potential.

ii)

When permitted, structures shall offer minimum obstruction to the flow of floodwaters:

(a)

By being parallel to the direction of the flood flow; and

(b)

By locating on the same flood flow lines as adjoining structures.

iii)

Structures shall be firmly anchored to prevent flotation.

iv)

Electrical and heating equipment shall be constructed two feet above the regulatory flood protection elevation.

c)

As a minimum, special property uses shall satisfy the requirements of Federal Regulations Title 44 CFR, Part 60.3 and Section 4.1.5 of this title.

F)

Non-conforming Uses. Notwithstanding any provisions found in this Code, for purposes of this title any structure or the use of a structure or premises in the floodway or flood fringe that was lawful before the effective date of the ordinance codified in this title but which is not in conformity with the provisions of this title may be continued subject to the following conditions.

1)

No such use shall be substantially (see definition of "substantial improvement" in Section 4.1.2) improved except in conformance with Section 4.1.

2)

If a non-conforming use or structure is destroyed by any means, including floods, to an extent of fifty percent or more of its value before the damage occurred, it shall not be reconstructed except in conformity with the provisions of this section.

3)

Residential structures in the floodway shall conform to requirements of Section 4.1.5.

(Ord. No. 1305, 8-24-2021)

4.2.1 Specific Purposes. The purposes of the Historic Overlay Zoning District are to preserve the surviving historic character of the Silver City Historic District, the Black's Addition Historic District, the Chihuahua Hill Historic District, and the North Addition Historic District (using boundaries as defined in the registration of these districts by the New Mexico Historic Preservation Division),while encouraging new investment that reinforces the scale, distinguishing features, and appearance of those districts; to recognize the unique character of the Town by protecting and maintaining its cultural heritage and by prohibiting the unnecessary destruction or defacement of its remaining cultural assets; to promote and enhance the economic and social viability of Silver City and its historic districts; and to encourage the reuse and maintenance of historic structures within those districts in keeping with Silver City's designation as a Certified Local Government (CLG). Rules for the Historic Overlay Zoning District and the Design Review Committee are authorized by the Historic District Landmark Act of 1965 (4 NMAC 10.10), as modified from time to time.

4.2.2 Applicability. The program shall apply to all existing and proposed structures located in the Historic Overlay Zoning District. No exterior construction, reconstruction, exterior alteration or demolition planned to be undertaken by any owner, department, agency, officer or commission of the Town or by any entity of the government shall begin without first having been properly reviewed by the Design Review Committee.

4.2.3 Registered Historic Structures. The Historic Overlay Zoning District encompasses four historic districts listed on the New Mexico State Register of Cultural Properties and/or the National Register of Historic Places. Through the registration process, certain structures within these districts have been designated as contributing to the historic character and integrity of their respective districts, and are eligible for any benefits provided under state and national register listing. These registered historic structures have met the requirements for registration of historic structures established by the New Mexico Historic Preservation Division. However, other structures within these districts that have not been officially designated as having contributing status may be eligible for such designation. The Design Review Committee shall review nominations and maintain a current list of registered historic structures.

4.2.4 Zoning Map Designation. The Historic Overlay Zoning District shall consist of those areas within the boundaries of the four historic districts: Silver City Historic District, Black's Addition Historic District, Chihuahua Hill Historic District, and North Addition Historic District. The zoning map shall indicate those properties subject to the requirements of the Historic Overlay Zoning District by adding the designations to the underlying zone district designations as follows.

For example, property located in both the C zoning district and the Chihuahua Hill Historic District would be designated "C-CH" on the zoning map.

4.2.5 Silver City Landmark Structures. Within the Historic Overlay Zoning District, the Design Review Committee shall establish a list of prospective properties to be registered as Silver City Landmark Structures, a voluntary landmark designation program. The Design Review Committee shall solicit the involvement of owners of those properties in the landmark program. The owner of any structure that is a registered historic structure may apply to the Design Review Committee to have such structure listed as a Silver City Landmark Structure.

4.2.6 Design Standards. New construction in the Historic Overlay Zoning District shall conform to the design standards set forth in Table 4.2.4, and described in more detail in the descriptions that follow the table.

A)

Consultation with Design Review Committee.

1)

Structures in the Historic Overlay Zoning District. Prior to the approval of a building permit for external modification, demolition, new construction, or relocation of a structure within the Historic Overlay Zoning District, the owner of the structure shall consult with the Design Review Committee established in Section 6.1.8 for recommendations that will protect the historic character of the structure and neighborhood, based on The Secretary of the Interior's Standards for Rehabilitation. The Committee will review the project for compliance with the design standards of section 4.2.6 of the Land Use Code. Compliance with these standards is required; however, the applicant is not required to comply with other recommendations of the Committee unless the structure is a designated Silver City Landmark Structure.

2)

Silver City Landmark Structures. Prior to the approval of a building permit for internal or external modification of a Silver City Landmark Structure, the owner of such landmark structure shall consult with the Design Review Committee for recommendations that will protect the historic character of the structure, and shall be required to comply with such recommendations. Recommendations shall be in writing, consider economic hardship, and be based upon the Secretary of the Interior's Standards for Rehabilitation (36 CFR 67).

The most current edition of The Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings, published by the Department of the Interior National Park Service, will be used as the standard followed by the Design Review Committee in the architectural review process, and is appended by reference.

B)

Matching Lot Size. In order to maintain the historic scale of lot patterns in each historic district, no subdivision, re-subdivision, or lot merger within the Historic Overlay Zoning District shall be permitted to create a new lot or building site with a size more than 200 percent of the average size of all lots on the same block occupied by structures more than 50 years old.

C)

Compatible Construction Materials. In order to maintain the distinctive character and appearance of the various historic districts, all new primary structures erected in the Historic Overlay Zoning District, and all modifications or expansions of existing buildings in the Historic Overlay Zoning District, shall have exterior surfaces and roofs constructed of materials compatible with the character of materials traditionally used in the applicable historic district, with the character of neighboring historic structures, and (in the case of modifications or expansions of existing building) with historic exterior materials of the structure itself. Retention of historic window materials, proportions, and styles is encouraged.

1)

New construction. All new primary structures erected in the Historic Overlay Zoning District shall have exterior walls predominantly finished with materials that are compatible with the character of the applicable historic district and with the character of the block on which the structure is to be located. Metal, vinyl, and thin brick veneer siding shall be prohibited.

2)

Modifications and expansions. All modifications or expansions of existing buildings in the Historic Overlay Zoning District shall have exterior walls predominantly finished with materials compatible with the character of the applicable historic district and of the block on which the structure is located. Metal, vinyl, and thin brick veneer siding shall be prohibited.

3)

Predominant use of compatible materials. For purposes of this standard, compatible exterior wall finish materials shall include any of the following materials which are in common usage on the block of the property in question: masonry (including brick [four-inch nominal], stone, stucco, ceramic tile, and adobe, but excluding concrete block, cinderblock, or slump block), wood shingles, clapboard or other wood board construction; or materials as otherwise authorized by the Design Review Committee. A structure shall be of predominantly masonry or wood finish if at least 75 percent of the wall surface, excluding window and door frames and openings, is faced with such materials. Window finishes shall be compatible with existing finishes and colors on the structure and preserve the architectural design of the building. Size and shape of windows should be maintained as close to the original as possible without damaging the structure.

D)

Matching Street Setbacks. In order to maintain the historic street front character of the Historic Overlay Zoning District, no new structure, including sheds, garages, carports, and decorative walls, shall be constructed with a front setback more than five feet closer or further from the front lot line than the average of the front setbacks of the two nearest structures located on either side of the new structure on the same side of the street. In the case of new construction on a corner lot, the front setback shall be no more than five feet closer or further from the front lot line than the nearest existing structure located within 100 feet of the new structure on the same side of the street.

E)

Exempt from Side Setback Requirements. In order to encourage the reuse, rather than replacement, of existing structures in the Historic Overlay Zoning District, modifications and expansions of existing structures shall be allowed to encroach on required setback areas provided that the modification or expansion complies with the Secretary of the Interior's standards for such construction and with any applicable standards for fire protection of adjacent or nearby structures.

F)

Building Width No More Than 75 Feet. In order to maintain the historic scale of the small residential structures in the Chihuahua Hill Historic District, no new structures in that district shall have a width of more than 75 feet within 25 feet of the front property line.

G)

Building Height No More Than One Story Taller Than Neighbors. In each historic district, no new structure shall be constructed with a height more than one story taller than the taller of the two nearest structures located on either side of the new structure on the same side of the street. In the case of new construction on a corner lot, the two structures used to determine permissible height shall be those to one side and to the immediate rear of the proposed structure. In the event that there is only one existing structure within 100 feet of the proposed structure, the new structure shall not be constructed with a height more than one story taller than that existing structure. This standard shall not result in the restriction of any new structure to a height of less than two stories. Attic areas not designed for occupancy shall not be considered a story for purposes of this standard.

H)

Exempt From Parking Requirements. Buildings in the Silver City Historic District shall not be required to comply with the off-street parking requirements described in Section 5.9.

I)

Sign Size Restriction. Within the Silver City Historic District, no sign shall be erected measuring more than 40 square feet in area and/or 12 feet in height.

J)

Storage Units/Shipping Containers. The regulation of storage units/shipping containers within the Historic Overlay Zoning Districts shall be controlled by and shall conform to the regulations prescribed in this section:

1)

A storage unit/shipping container means a unit originally or specifically designed or used to store goods or merchandise during shipping or hauling by container ships, rail, commercial trucks, or other types of transportation.

2)

At no time shall any storage unit/shipping container be placed on property in the Historic Overlay Zoning Districts, except as permitted in this section.

3)

Storage units/shipping containers shall only be allowed for temporary use during active construction on property with a State Issued Building Permit for a period no greater than 90 days.

4)

Any existing storage unit/shipping container currently located on any property within the Historic Overlay Zoning Districts shall be removed within six months after the effective date of this ordinance.

5)

Alternatively, the owner may consult with the Historic Design Review Committee and the New Mexico Construction Industries Division to convert the container into a permanent structure within six months after the effective date of this ordinance.

4.2.7 Variances. Any applicant or owner may request a variance to or exemption from any requirement of this section, except for the restrictions on demolition contained in Section 4.2.8 below, through the same procedure used to request a variance set forth in Section 6.3.19. In addition to the findings required in Section 6.3.19(D), the standards for approval of such variance shall be that:

A)

Applicant/owner can demonstrate that proposed alternative materials or solutions will be compatible with neighboring structures.

B)

The character of the historic district would not be compromised - or would be enhanced - by the grant of the variance or exception.

4.2.8 Demolition.

A)

Six-Month Waiting Period Prior to Demolition. No structures in the Historic Overlay Zone or Silver City Landmark Structures shall be demolished before the owner or applicant has first met with the Design Review Committee to determine the potential impact of the demolition on the historic character of the neighborhood. After review, the Design Review Committee may require a six-month evaluation period to inspect the structure as to its relative safety and to allow time to pursue alternatives to demolition, such as public or private purchase, rehabilitation, or expansion so as to make the structure appropriate for the intended use of the site.

4.2.9. Maintenance. All structures in the Historic Overlay Zoning District and Silver City Landmark Structures shall be maintained in a safe and attractive condition. In the event that historic features such as brickwork, decorative trim, decorative or structural metalwork, or door and window moldings become broken or deteriorated, they shall be promptly repaired or repainted so that they do not detract from the historic integrity of the Historic Overlay Zoning District. If repair is not feasible, replacement shall be allowed if the historic integrity of the block and the applicable historic district is maintained. Preservation of detailing and matching of historic materials shall be utilized wherever possible.

(Ord. No. 1305, §§ 1, 2, 8-24-2021)