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05/16/2023 12:26 PMA public hearing on the new Flood Plain Ordinance drew a number of residents concerned with aspects of the new measure designed to conform Madison flood regulations in line with most other shoreline towns. The Board of Selectmen (BOS) did not take any final actions on the ordinance at their meeting, but the ordinance appears headed for enactment by the board.
The ordinance requires homeowners and public buildings in the Federal Emergency Management Agency (FEMA) flood plain zone to physically raise their homes one story should they invest, repair or restore above 50% of their home’s value within a one-year window. The cost of lifting a house another story is a staggering sum, ranging from $200,000 to $1 million, depending on a number of factors.
One issue raised is that if a property owner decides to renovate a new kitchen and two months later, a hurricane destroys or damages the home, the total cost of those actions might legally mandate the owner to raise the structure. One aspect of Madison’s ordinance that is starkly different from other towns, including Guilford, Clinton, and Westbrook, is the much shorter “look back” period.
Those municipalities have five-year windows of potential accruement, greatly increasing the chances that a threshold might be reached, while Madison’s is currently only being contemplated for one year, making that scenario far less likely.
According to state records, other towns, such as East Haven and Old Saybrook, have 10-year look-back windows.
Local lawyer and resident Kim Brunstad spoke at the meeting, and though she praised the board for minimizing that look-back period, she did raise several points on the legality of the proposed fines included in the proposed ordinance. Several members spoke of the impacts the ordinance might have, including a criminal misdemeanor charge for noncompliance, which Brunstad said raised potential legal issues and questioned whether the board had the authority to implement such a penalty.
“We are very happy that we stayed with a one-year look-back period,” said Brunstad. “One area I’d like to focus on is the penalty section of the ordinance. I’d ask that you consider a major tweak, that’s take out the misdemeanor violation that exists in the current flood plain ordinance. There’s no such penalty under FEMA laws or regulations. I believe the town should not be able to impose criminal penalties…I believe that is a prosecutorial function before a criminal court, anyway. In terms of other nearby towns, they do not impose criminal penalties.”
The other aspect is a $250 per day fine for noncompliance with the ordinance. Several people brought up a scenario where after a devasting region-wide storm or hurricane, a homeowner might be unable to comply in a reasonable amount of time due to the demand for services thrust upon builders and contractors if such an event ever occurred, prompting a lack of availability of licensed contractors to perform such work.
“I’m also concerned about the $250…fine or fee that’s currently on the books. That seems excessive. If a homeowner suddenly gets hit with a hurricane, and then suddenly they’re supposed to immediately go out and locate a contractor to bring an estimate, and that contractor is likely unavailable because there are hundreds of other people with damage suddenly facing a $250 a day fine and then they suddenly have to raise their house,” Brunstad said. “I think that puts the public in an untenable position. They’re supposed to somehow come up with a contractor who is getting hundreds of calls for business. Any type of fine imposed needs to be reasonable, and we need to think about when that would kick in and why.”
Residents were also concerned about whether general repair costs to their homes would be factored into any accruement toward that critical 50% threshold that triggers the mandatory raising of a structure.
At the BOS meeting held after the hearing, board members expressed some of the same concerns and said further review of the penalty and fines would be needed.
Selectman Bruce Wilson said he had misgivings about how threshold calculations will be made.
“I’m definitely in favor of recognizing the difference between good stewardship and repairing a house that’s been substantially damaged due to some weather incident,” said Wilson. “This doesn’t discriminate between the type of weather event. The house could lose a roof because of wind and then be subject to a flood ordinance. And that’s a difficult one for me to reconcile. This flood plain is all over Madison, and for every very, very nice house on the water, there is a much more modest house somewhere else in Madison that is subject to this ordinance. And we’ve had some wide problems where I just think the homeowner has been unfairly caught up in the routine of this ordinance.”
Selectman Al Goldberg also expressed concerns about unintended costs and issues that could befall residents under this regulation.
“I’m neither a liberal nor a conservative on this issue; I think I’m a minimalist,” said Goldberg. “I believe that the role of town government here is to only put in place as much regulation that is needed to help protect the health and economic vitality of the community. As such, I want to continue to encourage homeowners to invest in their property. I think that’s good for the town and great for the homeowners. In terms of the three issues raised here tonight by a number of folks here, I would like to learn more about…the difference between appraisal and assessment. I need more information. I’m not quite sure why we want to make it more difficult for people to invest in their homes.”
The board is expected to finalize an ordinance at its June meeting.