United States: New Jersey Enacts New Rebuilding Rules In Response To Superstorm Sandy

Last Updated: February 11 2013
Article by Thomas M. Letizia and Kevin Ulrich

The impact of Superstorm Sandy on New Jersey was enormous: nearly 346,000 housing units either destroyed or damaged and 190,000 businesses affected.1 Sandy demonstrated just how vulnerable to damage much of the low-lying areas in the state are to major flooding events. Because the storm's devastation was so severe it became apparent to state policymakers and regulators that the past construction norms and flood elevation levels in these areas would have to be significantly altered for any rebuilding. Moreover, developers and property owners alike were faced with the uncertainty of rising flood insurance premiums and huge reconstruction costs.

On January 24, 2013, Gov. Christie approved emergency regulations proposed by the New Jersey Department of Environmental Protection (DEP) that set forth revised rebuilding guidelines in the flood hazard areas throughout the state. The amended Flood Hazard Area Control Act (Flood Act) regulations, among other things, adopt the Advisory Base Flood Elevation (ABFE) maps that were recently updated by the Federal Emergency Management Agency (FEMA). According to the DEP statement accompanying the emergency rules, the objective of the new regulations is to encourage residents and businesses of New Jersey to rebuild stronger and as soon as possible and to do it using the best available flood elevation data for setting proper design elevations.

Below is a summary of the key elements of the new Flood Act regulations. The rules are effective immediately and will be officially published in the February 19, 2013 edition of the New Jersey Register.

  1. In adopting the ABFE maps, the DEP has established the state standard for reconstruction and new construction in flood-prone areas based upon the height requirements set forth in the FEMA maps. Under the rules, property owners who wish to rebuild must build to the new height requirements if more than 51 percent of their buildings were destroyed. Any new construction within a flood hazard area must also adhere to the higher elevation. Those property owners whose structures experienced 50 percent or less in damage are permitted to rebuild to the structure's former footprint elevation. However, by doing so, they face the risk of significant increases in flood insurance premiums should the rebuilt structure be below the new height requirement in the final flood elevation maps issued by FEMA.
  2. Property owners who rebuild their structures to the ABFE height levels (plus one additional foot as already required by the Flood Act regulations) may be permitted to do so without first applying to the DEP for a Flood Hazard Area permit. Such activity will be authorized through a Permit by Rule. In order to qualify for the Permit by Rule, the following criteria must be satisfied when reconstructing, relocating and/or elevating an existing building: (a) the footprint cannot be increased by more than 300 square feet; (b) the lowest floor must be raised to at least one foot above the flood hazard area design elevation; (c) the building cannot be relocated or expanded closer to any regulated water; (d) the building being relocated must be moved outside any riparian zone (i.e., buffer area of any regulated waterbody) or situated within an area where previous development or disturbance has occurred; (e) vegetation may not be removed, cleared or cut in a riparian zone except for that within 20 feet of the building; and (f) any vegetation that is removed must be replanted with indigenous, non-invasive species. The Permit by Rule is intended to expedite the rebuilding process and save qualifying owners at least $500 in permit fees plus design and engineering expenses associated with an application of this type.
  3. The construction method known as "wet floodproofing" will now be permitted for non-residential buildings. This method permits owners of non-residential buildings to construct structures in a way that allows the building to flood, but structurally withstand the water. This new regulation is anticipated to have the greatest impact in flood-prone cities such as Hoboken and Margate.
  4. The requirement that permitted certain building foundations to have only three walls is now eliminated. The regulation does away with what many developers considered to be an unsafe and dangerous construction method even before Sandy made landfall.

The governor and his administration believe strongly that the emergency Flood Act regulations will reduce the impacts from future flooding events on homes and businesses and protect the safety of their inhabitants because new construction will now be based upon proper elevation requirements. The regulations make certain that every development uniformly use the same base elevation standards in the flood hazard areas throughout each municipality in the state. The regulations also enhance pre-existing DEP construction requirements by taking into consideration the flood-related damage upon structures in the aftermath of Sandy.

In addition, state officials argue that the new standards will have a dramatic impact on flood insurance rates. The following example is cited by Gov. Christie: if a property owner were to rebuild to the suggested ABFE and the appropriate applicable construction standards for the owner's zone, the annual premium (phased-in) would be approximately $7,000. If the owner were to rebuild two feet above the ABFE utilizing the construction standards for their flood zone, the annual premium would be about $3,500. In contrast, a property owner in a high-risk flood area (four feet below the ABFE) that does not rebuild to the new standards, is likely to face an annual flood insurance premium (phased-in) of up to $31,000.

There is opposition to the emergency regulations, particularly from shore communities in the southern portion of the state where meeting the new construction standards will be very difficult or impossible due to physical constraints and small lot sizes. Critics charge that the cost of rebuilding to the new standards and raising a home or commercial structure would far exceed what the building is worth. They also claim that property values in the areas most affected by an increase in the flood elevation heights would plummet because the cost to reconstruct in those areas would be substantially higher forcing owners to either abandon their homes and businesses or sell at a significantly reduced price.

Although controversial, the emergency Flood Act regulations, in some form, are likely be part of the "new normal" for construction in New Jersey. They will have a major impact on the reconstruction, relocation, elevation and flood-proofing of all structures in flood hazard areas. As such, an understanding of the regulations is vital to the New Jersey development community.

Pepper will continue to monitor the new Flood Act regulations and other post-Sandy initiatives proposed by the governor and the legislature that impact development in New Jersey. Questions concerning this article may be directed to the authors.

Footnotes

1. The Associated Press, Tuesday, January 29, 2013 at 11:59 a.m. EST.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Thomas M. Letizia
Kevin Ulrich
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions