REPORT TO COUNCIL
SUBJECT
Title
Introduce an Ordinance Repealing Chapter 16.62 (Prevention of Flood Damage), Adopting Chapter 16.62 (Floodplain Management) of Title 16 (Buildings and Construction), Amending Section 1.04.010 (Violation-Misdemeanor or infraction) of Chapter 1.04 (General Penalty) of Title 1 (General Provisions) of the Sunnyvale Municipal Code, and Find that the Action is Exempt from the California Environmental Quality Act (CEQA) Pursuant to Public Resources Code Section 21080(b)(1) and CEQA Guidelines Sections 15061(b)(3), 15268, and 15308
Report
BACKGROUND
The City of Sunnyvale is an active participant in the National Floodplain Insurance Program’s Community Rating System (NFIP-CRS). Participation in the program is voluntary, and the City currently holds a rating of 7. In communities that participate in the Program, flood insurance premium rates are discounted to reflect the reduced flood risk resulting from the community’s efforts to address the three goals of the Program. Ratings are from 1-10, with 10 being the lowest, and 1 being the highest. Sunnyvale’s rating of 7 entitles residents to have a 15% discount on flood insurance. The highest discount of 45% is available for communities with a rating of 1. Each 500 points translates to one change in tier rating. At the last verification visit, Sunnyvale received 1,741 points for its efforts supporting CRS. There are about 1,500 communities participating in the program: about 1% have a rating of 1-4; 51% have a rating of 5-7 and 48% have a rating of 8-9 (a rating of 10 means a community is not participating). Most of the cities near Sunnyvale have a rating of 7.
Activities performed by the staff in support of the program are tallied as points, and points are then translated to the rating system. The Floodplain Manager duties are a function of Community Development, while the CRS functions are housed within Public Works. Staff work collaboratively each year to maintain the status in the program.
Every five years, a verification is required from the Federal Emergency Management Agency (FEMA). The next visit is scheduled for November 2023.
EXISTING POLICY
Sunnyvale General Plan, Chapter 6 speaks to hazards and disaster preparedness and response. In particular, the following two policies discuss flood hazards.
• Policy SN1.1: Evaluate and consider existing and potential hazards in developing land use policies. Make land use decisions based on an awareness of the hazards and potential hazards for the specific parcel of land.
• Policy SN1.2: Take measures that will protect life and property from the effects of a 1 percent (100 year) flood.
ENVIRONMENTAL REVIEW
The adoption of the updated floodplain management ordinance is exempt from environmental review under Section 15308 of the California Environmental Quality Act because it is an action by a regulatory agency for the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment. The regulations will prevent flooding that can harm groundwater, wildlife and plants, sensitive habitats, and human health. In addition, adoption of these standards is mandatory to conform to federal regulations required by the National Flood Insurance Program. As a result, the adoption of the ordinance is a ministerial action that is statutorily exempt from CEQA under Public Resources Code Section 21080(b)(1) and CEQA Guidelines Section 15268. Finally, the ability to charge violations of the ordinance as misdemeanors does not require CEQA review because it can be seen with certainty that there is no possibility that the action will have a significant environmental effect. (CEQA Guidelines Section 15061(b)(3).)
DISCUSSION
There are several areas in Sunnyvale that are classified as Special Flood Hazard Areas, commonly referred to as “in a flood zone”. Most of Sunnyvale is in Zone X, classified as areas above the 500-year flood level (which is not considered a special flood hazard area). The land sections that are within the special flood hazard areas, and subject to needing flood insurance, are shown on Attachment A.
Sunnyvale is well positioned to keep its CRS rating of 7. The 1,741 points allocated from the last verification visit allow for minor fluctuation in scoring during the upcoming visit. Dropping down to tier 8 would require a loss of 241 points, and going up to Tier 6 would require Sunnyvale to perform another 259 points worth of effort.
As prework for preparation for the upcoming verification visit, staff engaged with the State’s CRS coordinator. One of the items identified is that the City’s Floodplain Ordinance, Chapter 16.62 of the Sunnyvale Municipal Code (SMC) requires updating. This chapter of the City’s municipal code has not had a major update since 1994. If the City’s ordinance does not update SMC Chapter 16.62 to conform to current FEMA standards, FEMA has indicated that the City’s CRS rating will increase to a rating of 8, resulting in a 5% increase in flood insurance premiums for Sunnyvale residents.
The California Department of Water Resources (DWR), as a partner in the NFIP-CRS, has developed a model ordinance for agencies to utilize. The proposed updates to SMC Chapter 16.62 are based on the model ordinance, with minor modifications that have been approved by FEMA and the DWR.
The updated Ordinance adds new flood protection requirements for manufactured homes (e.g., mobile homes) located in the floodplain. Because mobile home parks are under state jurisdiction, the City’s ordinance will only apply to manufactured homes located outside of mobile home parks. However, the requirements will also apply to recreational vehicles that are permanently placed on a site. An RV that is parked for more than 180 days must be fully licensed and ready for highway use.
The updated Ordinance coordinates the special flood hazard area construction requirements of the California Building Code and the California Residential Code with the FEMA construction requirements. The California Residential Code specifies the lowest floor elevation shall be at least 1 foot above the base flood elevation and the California Building Code requires construction at or above the base flood elevation.
Enforcement
SMC Section 1.04.010 specifies which violations of the code will be treated as infractions versus misdemeanors. An infraction is the lowest level of criminal charge, resulting only in monetary fines but no jail time. By contrast, a misdemeanor conviction can be punished by up to a year in county jail.
In order to comply with FEMA requirements for effective enforcement, staff recommends adding the floodplain ordinance to the list of misdemeanor offenses in Section 1.04.010(b)(7). Currently, the Fire Code (SMC chapter 16.52) is the only Title 16 violation that is chargeable as a misdemeanor. As a clean-up item, staff also recommends deleting two outdated cross-references to previously repealed sections of Title 16 from the list of misdemeanor violations.
Note that even if a violation is chargeable as a misdemeanor, the City Attorney has prosecutorial discretion to charge the violation as an infraction (SMC Section 1.04.010(d)) based on the factual circumstances and seriousness of the offense.
FISCAL IMPACT
There is no fiscal impact associated with this action.
PUBLIC CONTACT
Public contact was made by posting the Council meeting agenda on the City's official-notice bulletin board at City Hall, at the Sunnyvale Public Library and in the Department of Public Safety Lobby. In addition, the agenda and this report are available at the NOVA Workforce Services reception desk located on the first floor of City Hall at 456 W. Olive Avenue (during normal business hours), and on the City's website.
ALTERNATIVES
1. Introduce an Ordinance Repealing Chapter 16.62 (Prevention of Flood Damage), Adopting Chapter 16.62 (Floodplain Management) of Title 16 (Buildings and Construction), Amending Section 1.04.010 (Violation-Misdemeanor or infraction) of Chapter 1.04 (General Penalty) of Title 1 (General Provisions) of the Sunnyvale Municipal Code, and Find that the Action is Exempt from the California Environmental Quality Act (CEQA) Pursuant to Public Resources Code Section 21080(b)(1) and CEQA Guidelines Sections 15061(b)(3), 15268, 15308.
2. Do not Introduce an Ordinance Repealing Chapter 16.62 (Prevention of Flood Damage), Adopting Chapter 16.62 (Floodplain Management) of Title 16 (Buildings and Construction), Amending Section 1.04.010 (Violation-Misdemeanor or infraction) of Chapter 1.04 (General Penalty) of Title 1 (General Provisions) of the Sunnyvale Municipal Code.
3. Take other action as directed by Council.
STAFF RECOMMENDATION
Recommendation
Alternative 1: Introduce an Ordinance Repealing Chapter 16.62 (Prevention of Flood Damage), Adopting Chapter 16.62 (Floodplain Management) of Title 16 (Buildings and Construction), Amending Section 1.04.010 (Violation-Misdemeanor or infraction) of Chapter 1.04 (General Penalty) of Title 1 (General Provisions) of the Sunnyvale Municipal Code, and Find that the Action is Exempt from the California Environmental Quality Act (CEQA) Pursuant to Public Resources Code Section 21080(b)(1) and CEQA Guidelines Sections 15061(b)(3), 15268, and 15308.
Justification
Adoption of this Ordinance should preserve Sunnyvale’s rating of rating of 7, which entitles residents to have a 15% discount on flood insurance.
Staff
Prepared by: Jennifer Ng, Assistant Director of Public Works/City Engineer
Reviewed by: Chip Taylor, Director, Public Works
Reviewed by: Teri Silva, Assistant City Manager
Approved by: Kent Steffens, City Manager
ATTACHMENTS
1. Flood Zone Map
2. Draft Ordinance