New Jersey Adopts Emergency Rebuilding Guidelines Based on FEMA's Updated Advisory Base Flood Elevation Maps

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In the wake of superstorm Sandy, many of New Jersey's residents are eager to start rebuilding homes and businesses, but are wary to rebuild based on old construction standards and flood maps. Governor Chris Christie yesterday released New Jersey's new emergency rebuilding guidelines as the first statewide change to construction requirements in the aftermath of Sandy. New Jersey can now start to rebuild, rather than risk substantially higher flood insurance premiums by waiting 18-24 months (time it is estimated to take for the final federal flood elevation maps to be released).

The new state flood hazard regulations are now based on the Advisory Base Flood Elevation (ABFE) maps prepared by the Federal Emergency Management Agency (FEMA). While compliance with these new requirements can lead to significantly higher construction costs, it also may significantly lower flood insurance premiums which could exceed $31,000 annually under the current federal program subsidies. For the estimated 3.8 million New Jersey residents who live in flood hazard areas, the savings can be significant and greatly offset if not exceeded by the added construction costs. Some properties will qualify for FEMA grants necessary to comply with the new regulations, further offsetting costs.

Before these new guidelines were released, the Advisory maps were not binding unless adopted by the State or local municipalities, which potentially could lead to a patchwork of requirements. While FEMA had been working on the maps for quite some time, the Advisory maps were rushed out in the wake of superstorm Sandy due to the urgent need to rebuild. If the final federal flood elevation maps, expected to be released by FEMA in the next 18-24 months, are less severe than the Advisory maps, constructed or reconstructed properties will benefit from significant reductions in future flood insurance premiums. Residents will still have the option of waiting to rebuild until the updated federal requirements are released, but, according to Chris Christie, FEMA will not provide housing for residents in the interim, and it is important for New Jersey to rebuild as soon as possible to restore normalcy.

Under the new rebuilding guidelines and the Permit by Rule, property owners who rebuild to the ABFEs (plus the one additional foot required by the New Jersey Flood Hazard Area Control Act of 2007) may do so without the added expense and time of obtaining a Flood Hazard Area Permit. Given the Department of Environmental Protection's legendary bureaucracy, which it has been working hard to change, the result could be a major time and cost savings, with permit fees alone costing at least$500.

The new guidelines allow "wet floodproofing" for non-residential buildings, allowing a building to flood as long as it maintains the structural requirements to withstand the water. This technique allows urban redevelopment that might otherwise be cost-prohibitive if compliance with elevation requirements or dry floodproofing standards continued to apply. The guidelines also eliminate the potentially unsafe construction whereby certain building foundations were permitted with only three walls.

As New Jersey's FEMA Czar and various state agencies, as well as the legislature, continue to review and tackle the tough issues of rebuilding post Sandy, more changes are expected. The new Flood Hazard Control Act guidelines have been the first conclusive action taken.

Gary S. Forshner is a Shareholder in Stark & Stark's Real Estate, Zoning & Land Use Group. Mr. Forshner is the Secretary and Director of the Land Use Section of the New Jersey State Bar Association. Mr. Forshner serves as Chair of the Master Sponsor Committee and Director to the New Jersey Builders Association.  For questions, please contact Mr. Forshner.

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