County Floodplain Regulations Called ‘Unreasonable’

Should Fayette County landowners have to get a floodplain permit to build even when their property is out of the floodplain? What about if all they plan to build is a fence or a garden?

Those were some of the questions posed at last Thursday’s Commissioners Court meeting by Plum resident and former Fayette County Judge candidate William Bernsen.

Bernsen called some of the County’s floodplain regulations “unreasonable.” He especially took issue with the fact that Fayette County requires a flood permit for all development in the County, even when it takes place outside of the floodplain. He said Fayette County has expanded its flood regulations beyond those required by the State of Texas and the federal government. Bernsen said these regulations infringe on citizens’ property rights.

“I am not advocating for the elimination of the regulations,” Bernsen said. “I don’t like how they’ve been expanded beyond the scope outlined by the State.”

The State of Texas and Fayette County define “development” as “any man-made change to 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.”

The County’s regulations go on to state “Prior to any development within the unincorporated areas of Fayette County, an application for development must be submitted to the Office of Floodplain Administration for approval.”

Bernsen proposed that the regulations should only apply to those areas of the County that lie within the official floodplain.

“All that stuff is reasonable when you limit it to the areas prone to flooding,: Bernsen said. “The second you try to apply these regulations to outside those flood-prone areas, it breaks down and that’s where it becomes unreasonable.”

County Inspector Clint Sternadel gave an overview of the County’s floodplain regulations. For development on land outside the official floodplain, Sternadel said the County requires only a simple registration with a $20 fee.

“If the project is in the 100year flood zone, then a whole gamut of other regulations apply, whether you are elevating or moving dirt around,” Sternadel said. “Based on your scope of work, we would tell you what else is required. Those permits are $100.”

Sternadel said the State of Texas requires counties to impose flood damage regulations for safety and insurance purposes. The regulations also allow the County to apply for flood disaster relief funds.

“In the event we get another Hurricane Harvey, if we’re participating in this program, it makes the county eligible for lots of funding opportunities. If we have homes wash out, and we’re in compliance, it makes us eligible for relief funding.”

In addition, the flood regulations give Fayette County residents lower flood insurance rates through the National Flood Insurance Program.

“The other issue is the National Flood Insurance Program,” said Pct. 1 Commissioner Jason McBroom. “If we don’t keep these regulations going, that will go away. That would affect lots of people and lots of financial institutions in the case of a big flood.” Bernsen said the County requires landowners to apply for a permit whenever they make any minor change to their property, such as planting a garden or building a fence.

“My wife’s garden includes fill material, and according to these regulations, my wife’s fabulous garden is a non-conforming development,” Bernsen said. “She brought in fill material and built a fence. Because she didn’t get a permit, her garden is non-conforming. So whatever you think about the reasonableness of these regulations and the necessity to regulate the flood zone, you can’t turn around and apply it to the entire county. You can’t require me to get a $20 permit to plant a garden.”

According to the regulations, Bernsen said, he could be subject to hundreds of dollars in daily fines for having a nonpermitted “development” on his property.

Sternadel said his office does not regulate gardens in practice. Sternadel said the flood regulations grant his office discretion in applying the regulations. He said that if anyone called and asked about installing a garden, his office would tell them no flood permit was required.

“What good is a regulation if you’re not going to enforce it?” Bernsen said. “If you’re not going around to force all these people to get permits you require, why have it in the first place?”

Pct. 3 Commissioner Harvey Berckenhoff recalled an incident in which a county floodplain official under a prior administration prohibited a landowner from rebuilding a fence that had washed away in a flood.

“A fence had washed down and she wouldn’t let him rebuild the fence unless he got a permit,” Berckenhoff said.

“That’s unreasonable. How are you supposed to keep the cows in? I agree, this needs to be revisited,” he added.

McBroom said the regulations greatly aid the County in preventing structures from being built in the floodplain. Without the blanket permit requirement, McBroom said, some new landowners might buy property and build a home next to a dry waterway without knowing that it floods on occasion.

County Judge Joe Weber asked whether real estate agents notify buyers if the property they want to buy is located in the floodplain.

County Floodplain Manager Amber Hielscher said real estate agents notify buyers most of the time. However, Hielscher said she has dealt with some landowners who said they were not notified at the time of purchase. McBroom said that not all property transactions go through a real estate agent who would notify the buyers about floodplain issues.

“You don’t have to go through a real estate agent. You can inherit the property,” said McBroom. “There are a lot of scenarios.”

Bernsen said landowners should check flood maps before building. He estimated that about five percent of Fayette County landowners own property in the two categories of flood zone, Zone A or Zone AE. The remainder of the County is Zone X, which are areas not prone to flooding.

“You say ‘Put (the map) on the website,’ but is that going to reach everybody?” McBroom asked.

“It’s not my responsibility,” Bernsen said.

“I know, it’s our’s, and that’s what we’re trying to do,” McBroom said.

“When I’m trying to exercise my rights in my private domain, I shouldn’t have to come to you for permission,” Bernsen said. “It’s not my job to make your job easier.”

Bernsen said he believes the County’s current leadership and flood officials reasonably apply the regulations. However, he raised concerns about how future leaders will use the regulations.