Tight FEMA deadline on floodplains, transitional housing discussed at session

The city of McMinnville may have to further restrict development in floodplain areas to meet federal requirements related to the Endangered Species Act.

City Council held a work session Tuesday to discuss “pre-implementation compliance measures” for a Federal Emergency Management Agency (FEMA) mandate for Oregon cities that participate in the National Flood Insurance Program.

The program requires local governments to enforce floodplain management ordinances in exchange for enabling residents to purchase federal flood insurance. McMinnville currently has 21 properties enrolled in the insurance program, according to Community Development Director Heather Richards.

“If we don’t come into compliance with the pre-compliance measures, we could potentially lose the NFIP program in this community,” Richards said.

Under the pre-compliance rules, cities can choose to prohibit all development in the floodplain, incorporate the Endangered Species Act (ESA) into local ordinances or require permit applicants to show development in the floodplain will result in no net loss to an area’s undeveloped space, pervious surface and trees, according to Richards.

“That’s a pretty tough test in terms of those three different elements,” she said.

McMinnville already greatly restricts development in the floodplain through its comprehensive plan and zoning rules, only allowing farming, public parks or sewage pump stations as permitted uses.

The measures are the latest step in an ongoing process to update the ESA following a 2009 lawsuit from an advocacy group alleging FEMA failed to consider how the insurance program impacts endangered species.

A Biological Opinion was published in 2016 affirming the allegations and FEMA was sued again last year for taking too long to implement changes, resulting in a short compliance timeline for responding cities, according to Richards.

Cities were notified in July about the December mandate and Gov. Tina Kotek wrote a letter to FEMA in September asking to pause the pre-compliance program and work with Oregon agencies to set up a collaborative framework.

“This is a daily evolving discussion within the state,” Richards said.

The city could adopt a ESA model ordinance, but it would be a time crunch complete by the deadline; many smaller cities are saying it is too difficult to manage, Richards said.

“Very few cities are actually choosing this pathway,” she said.

The city could also ban all development in the floodplain zones; however, that would present similar timing issues and would require notice to the state and every property owner in the floodplain. There is potential to use that scenario to place an up to 120-day moratorium on development, Richards said.

“It might buy us time to figure out the pathway we want to take,” she said.

The most likely scenario (and default if FEMA isn’t notified of a specific choice) is to handle development on a permit by permit basis.

Permits would require a Habitat Assessment (which are costly to produce and review) to ensure the development is meeting the “no net loss” policy, Richards said.

“We really have very few permits that come through that are relative to our floodplain, so if we did this on a permit to permit basis, the number would be really low,” she said.

Some uses, such as routine city maintenance, would still be allowed without a permit or assessment. For existing parks in the floodplain, such as Joe Dancer Park, current uses can be maintained, but not expanded without an assessment, Richards said.

“Any park that we have that has structures in it today, or roads or parking lots, things like that, that are in the floodplain, the existing conditions can remain, they can be maintained, they just can’t be expanded without going through a habitat assessment,” she said.

No decision was made by city council at the work session, as dialog needs to continue among city staff, Richards said.

“We’re working with legal counsel to understand the different nuances of these three different pathways available to the city and what makes the most sense for us,” she said. “You will see something from us prior to December 1. We may not be able to get through our process of adoption by Dec. 1, but we are going to bring you something as soon as we can.”

Also at the session, council heard an update on transitional housing rules that are currently being ironed out by the Planning Commission.

City committees have been discussing the need for year-round transitional housing (which represents a step between living on the streets or in an emergency shelter and permanent housing) and are close to finalizing code amendments that would set rules for the facilities.

Councilors had similar objections as planning commissioners over neighborhood noticing for transitional projects. The proposed policy only requires administrative review and no neighborhood meetings or noticing in an effort to mitigate protests from neighbors.

Councilors Chris Chenoweth, Adam Garvin and Jessica Payne questioned the policy.

“I really feel like as a city one of the most (important) things we need to do is be transparent and be open to our constituents and that would include noticing and having conversation and dialog with them before we bring such things into their neighborhood,” Chenoweth said.

Garvin questioned whether the city has adequate providers to carry out a successful transitional facility.

“My main concern is, we open this up from a land use perspective, but do we actually have an operator that can pull this off in a consistent fashion that is equitable for the entire community and keep the lines in the sand per se on behavior and sobriety and all the other things?” he asked. “I don’t know if we’re there and so I don’t know if we should have the zoning to allow that to happen, to create a problem, until we have partners in the community that could operate this and pull this off.”

Councilor Kellie Menke (who is also a member of the Affordable Housing Committee which started the push for transitional housing) expressed full support for the rules.

“This is a need that the Affordable Housing Committee feels strongly about because it’s taking at least four years for people to get into any form of housing, even if they’re waiting for vouchers or whatever,” Menke said. “So it’s very necessary and it would be wonderful to get some of these established.”

The Planning Commission is expected to return to City Council with final rule proposals later this year.