It is the intent of this article to promote the health, safety,
and welfare of the Borough by minimizing adverse environmental impacts
through establishing standards to regulate the development of areas
containing environmentally sensitive lands including floodplains and
floodways, steeply sloped land, wetlands and woodlands, and to evaluate
potential environmental impacts on these sensitive natural resources
and protect these resources through the implementation of standards
contained herein.
[Amended 9-5-2006 by Ord.
No. 2006-11; 7-18-2017 by Ord. No. 2017-3]
A.
Statutory authorization. The Legislature of the Commonwealth
of Pennsylvania has, by the passage of the Pennsylvania Flood Plain
Management Act of 1978,[1] delegated the responsibility to local governmental units
to adopt floodplain management regulations to promote public health,
safety, and the general welfare of its citizenry. Therefore, the Council
of the Borough of Malvern does hereby order as follows.
[1]
Editor's Note: See 32 P.S. § 679.101 et seq.
B.
General provisions.
(1)
Intent. The intent of this section is to:
(a)
Promote the general health, welfare, and safety
of the community.
(b)
Encourage the utilization of appropriate construction
practices in order to prevent or minimize flood damage in the future.
(c)
Minimize danger to public health by protecting
water supply and natural drainage.
(d)
Reduce financial burdens imposed on the community,
its governmental units, and its residents by preventing excessive
development in areas subject to flooding.
(e)
Comply with federal and state floodplain management
requirements.
(2)
Permit from Administrator required. It shall be unlawful for
any person, partnership, business or corporation to undertake, or
cause to be undertaken, any construction or development anywhere within
the Borough of Malvern unless a permit has been obtained from the
Floodplain Administrator.
(3)
Abrogation and greater restrictions. This section supersedes
any other conflicting provisions which may be in effect in identified
floodplain areas. However, any other ordinance provisions shall remain
in full force and effect to the extent that those provisions are more
restrictive. If there is any conflict between any of the provisions
of this section, the more restrictive shall apply.
(4)
Severability. If any section, subsection, paragraph, sentence,
clause, or phrase of this section shall be declared invalid for any
reason whatsoever, such a decision shall not affect the remaining
portions of the Ordinance, which shall remain in full force and effect,
and for this purpose the provisions of this section are hereby declared
to be severable.
(5)
Warning and disclaimer of liability.
(a)
The degree of flood protection sought by the provisions
of this section is considered reasonable for regulatory purposes and
is based on accepted engineering methods of study. Larger floods may
occur or flood heights may be increased by man-made or natural causes,
such as ice jams and bridge openings restricted by debris. This section
does not imply that areas outside any identified floodplain areas,
or that land uses permitted within such areas will be free from flooding
or flood damages.
(b)
This section shall not create liability on the
part of the Borough of Malvern or any officer or employee thereof
for any flood damages that result from reliance on this section or
any administrative decision lawfully made thereunder.
C.
Administration.
(1)
Designation of Floodplain Administrator.
(a)
The Borough Zoning Officer is hereby appointed
to administer and enforce this section and is referred to herein as
the "Floodplain Administrator." The Floodplain Administrator may:
a) fulfill the duties and responsibilities set forth in these regulations,
b) delegate duties and responsibilities set forth in these regulations
to qualified technical personnel, plan examiners, inspectors, and
other employees, or c) enter into a written agreement or written contract
with another agency or private sector entity to administer specific
provisions of these regulations. Administration of any part of these
regulations by another entity shall not relieve the community of its
responsibilities pursuant to the participation requirements of the
National Flood Insurance Program as set forth in the Code of Federal
Regulations at 44 CFR 59.22.
(b)
In the absence of a designated Floodplain Administrator,
the Floodplain Administrator duties are to be fulfilled by the Borough
Manager.
(2)
Permits required. A permit shall be required before any construction
or development is undertaken within any area of the Borough of Malvern.
(3)
Duties and responsibilities of Floodplain Administrator.
(a)
The Floodplain Administrator shall issue a permit
only after it has been determined that the proposed work to be undertaken
will be in conformance with the requirements of this section and all
other applicable codes and ordinances.
(b)
Prior to the issuance of any permit, the Floodplain
Administrator shall review the application for the permit to determine
if all other necessary government permits required by state and federal
laws have been obtained, such as those required by the Pennsylvania
Sewage Facilities Act (Act 1966-537, as amended);[2] the Pennsylvania Dam Safety and Encroachments Act (Act
1978-325, as amended);[3] the Pennsylvania Clean Streams Act (Act 1937-394, as amended);[4] and the United States Clean Water Act, Section 404, 33
U.S.C. § 1344. No permit shall be issued until this determination
has been made.
(c)
In the case of existing structures, prior to the
issuance of any development permit, the Floodplain Administrator shall
review the proposed cost of improvements or repairs and the pre-improvement
market value of the structure, so that a substantial improvement/substantial
damage determination can be made, in accordance with FEMA's Substantial
Improvement/Substantial Damage Desk Reference.
(d)
In the case of existing structures, prior to the
issuance of any development permit, the Floodplain Administrator shall
review the history of repairs to the subject building, so that any
cumulative substantial damage concerns can be addressed before the
permit is issued.
(e)
During the construction period, the Floodplain
Administrator or other authorized official shall inspect the premises
to determine that the work is progressing in compliance with the information
provided on the permit application and with all applicable municipal
laws and ordinances. He/she shall make as many inspections during
and upon completion of the work as are necessary.
(f)
In the discharge of his/her duties, the Floodplain
Administrator shall have the authority to enter any building, structure,
premises or development in the identified floodplain area, upon presentation
of proper credentials, at any reasonable hour to enforce the provisions
of this section.
(g)
In the event the Floodplain Administrator discovers
that the work does not comply with the permit application or any applicable
laws and ordinances, or that there has been a false statement or misrepresentation
by any applicant, the Floodplain Administrator shall revoke the permit
and report such fact to the Council for whatever action it considers
necessary.
(h)
The Floodplain Administrator shall maintain in
perpetuity, or for the lifetime of the structure, all records associated
with the requirements of this section, including, but not limited
to, finished construction elevation data, permitting, inspection and
enforcement.
(i)
The Floodplain Administrator is the official responsible
for submitting a biennial report to FEMA concerning community participation
in the National Flood Insurance Program as requested.
(j)
The responsibility, authority and means to implement
the commitments of the Floodplain Administrator can be delegated from
the person identified. However, the ultimate responsibility lies with
the person identified in the floodplain ordinance as the Floodplain
Administrator/Manager.
(k)
The Floodplain Administrator shall consider the
requirements of 34 Pa. Code and the 2009 IBC and the 2009 IRC, or
the latest revision thereof as adopted by the Commonwealth of Pennsylvania.
(4)
Application procedures and requirements.
(a)
Application for such a permit shall be made, in
writing, to the Floodplain Administrator on forms supplied by the
Borough of Malvern. Such application shall contain the following:
[1]
Name and address of applicant.
[2]
Name and address of owner of land on which proposed
construction is to occur.
[3]
Name and address of contractor.
[4]
Site location, including address.
[5]
Listing of other permits required.
[6]
Brief description of proposed work and estimated
cost, including a breakout of flood-related cost and the market value
of the building before the flood damage occurred, where appropriate.
[7]
A plan of the site showing the exact size and location
of the proposed construction as well as any existing buildings or
structures.
(b)
If any proposed construction or development is
located entirely or partially within any identified floodplain area,
applicants for permits shall provide all the necessary information
in sufficient detail and clarity to enable the Floodplain Administrator
to determine that:
[1]
All such proposals are consistent with the need
to minimize flood damage and conform with the requirements of this
section and all other applicable codes and ordinances;
[2]
All utilities and facilities, such as sewer, gas,
electrical and water systems are located and constructed to minimize
or eliminate flood damage;
[3]
Adequate drainage is provided so as to reduce exposure
to flood hazards;
[4]
Structures will be anchored to prevent flotation,
collapse, or lateral movement;
[5]
Building materials are flood-resistant;
[6]
Appropriate practices that minimize flood damage
have been used; and
[7]
Electrical, heating, ventilation, plumbing, air-conditioning
equipment, and other service facilities have been designed and located
to prevent water entry or accumulation.
(c)
Applicants shall file the following minimum information
plus any other pertinent information as may be required by the Floodplain
Administrator to make the above determination:
[1]
A completed permit application form.
[2]
A plan of the entire site, clearly and legibly
drawn at a scale of one inch being equal to 100 feet or less, showing
the following:
[a]
North arrow, scale, and date;
[b]
Topographic contour lines, if available;
[c]
The location of all existing and proposed buildings,
structures, and other improvements, including the location of any
existing or proposed subdivision and development;
[d]
The location of all existing streets, drives, and
other accessways; and
[e]
The location of any existing bodies of water or
watercourses, identified floodplain areas, and, if available, information
pertaining to the floodway, and the flow of water, including direction
and velocities.
[3]
Plans of all proposed buildings, structures and
other improvements, drawn at suitable scale, showing the following:
[a]
The proposed lowest floor elevation of any proposed
building based upon North American Vertical Datum of 1988;
[b]
The elevation of the base flood;
[c]
Supplemental information as may be necessary under
34 Pa. Code, the 2009 IBC or the 2009 IRC, or the latest revision
thereof as adopted by the Commonwealth of Pennsylvania.
[4]
The following data and documentation:
[a]
Detailed information concerning any proposed floodproofing
measures and corresponding elevations.
[b]
If available, information concerning flood depths,
pressures, velocities, impact and uplift forces and other factors
associated with a base flood.
[c]
Documentation, certified by a registered professional engineer or architect, to show that the cumulative effect of any proposed development within any identified floodplain area [see Subsection D(1)] when combined with all other existing and anticipated development, will not cause any increase in the base flood elevation.
[d]
A document, certified by a registered professional
engineer or architect, which states that the proposed construction
or development has been adequately designed to withstand the pressures,
velocities, impact and uplift forces associated with the base flood.
[e]
Such statement shall include a description of the
type and extent of floodproofing measures which have been incorporated
into the design of the structure and/or the development.
[f]
[g]
The appropriate component of the Department of
Environmental Protection's Planning Module for Land Development."
[h]
Where any excavation or grading is proposed, a
plan meeting the requirements of the Department of Environmental Protection
to implement and maintain erosion and sedimentation control.
(d)
Applications for permits shall be accompanied by
a fee, payable to the municipality, based upon the estimated cost
of the proposed construction as determined by the Floodplain Administrator.
(5)
Review of application by others. A copy of all plans and applications
for any proposed construction or development in any identified floodplain
area to be considered for approval may be submitted by the Floodplain
Administrator to any other appropriate agencies and/or individuals
(e.g., Planning Commission, Municipal Engineer, etc.) for review and
comment.
(6)
Changes. After the issuance of a permit by the Floodplain Administrator,
no changes of any kind shall be made to the application, permit or
any of the plans, specifications or other documents submitted with
the application without the written consent or approval of the Floodplain
Administrator. Requests for any such change shall be in writing, and
shall be submitted by the applicant to Floodplain Administrator for
consideration.
(7)
Placards. In addition to the permit, the Floodplain Administrator
shall issue a placard, or similar document, which shall be displayed
on the premises during the time construction is in progress. This
placard shall show the number of the permit and the date of its issuance,
and shall be signed by the Floodplain Administrator.
(8)
Start of construction.
(a)
Work on the proposed construction or development
shall begin within 180 days after the date of issuance of the development
permit. Work shall also be completed within 12 months after the date
of issuance of the permit or the permit shall expire unless a time
extension is granted, in writing, by the Floodplain Administrator.
The issuance of development permit does not refer to the zoning approval.
(b)
The "actual start of construction" means either
the first placement of permanent construction of a structure on a
site, such as the pouring of slab or footings, the installation of
piles, the construction of columns, or any work beyond the stage of
excavation; or the placement of a manufactured home on a foundation.
Permanent construction does not include land preparation, such as
clearing, grading, and filling; nor does it include the installation
of streets and/or walkways; nor does it include excavation for a basement,
footings, piers, or foundations or the erection of temporary forms;
nor does it include the installation on the property of accessory
buildings, such as garages or sheds not occupied as dwelling units
or not part of the main structure. For a substantial improvement,
the "actual start of construction" means the first alteration of any
wall, ceiling, floor, or other structural part of a building, whether
or not that alteration affects the external dimensions of the building.
(c)
Time extensions shall be granted only if a written
request is submitted by the applicant, who sets forth sufficient and
reasonable cause for the Floodplain Administrator to approve such
a request, and the original permit is compliant with the ordinance
and FIRM/FIS in effect at the time the extension is granted.
(9)
Enforcement.
(a)
Notices. Whenever the Floodplain Administrator
or other authorized municipal representative determines that there
are reasonable grounds to believe that there has been a violation
of any provisions of this section, or of any regulations adopted pursuant
thereto, the Floodplain Administrator shall give notice of such alleged
violation as hereinafter provided. Such notice shall:
[1]
Be in writing;
[2]
Include a statement of the reasons for its issuance;
[3]
Allow a reasonable time not to exceed a period
of 30 days for the performance of any act it requires;
[4]
Be served upon the property owner or his agent
as the case may require; provided, however, that such notice or order
shall be deemed to have been properly served upon such owner or agent
when a copy thereof has been served with such notice by any other
method authorized or required by the laws of this state;
[5]
Contain an outline of remedial actions which, if
taken, will effect compliance with the provisions of this section.
(b)
Penalties. Any person, partnership, or corporation
who or which has violated or permitted the violation of the provisions
of this section shall, upon being found liable therefor in a civil
enforcement proceeding commenced hereunder, pay a judgment of not
more than $500, plus all court costs, including reasonable attorney's
fees incurred by the Borough as a result thereof.
(10)
Appeals.
(a)
Any person aggrieved by any action or decision
of the Floodplain Administrator concerning the administration of the
provisions of this section may appeal to the Zoning Hearing Board.
Such appeal must be filed, in writing, within 30 days after the decision,
determination or action of the Floodplain Administrator.
D.
Identification of floodplain areas.
(1)
Identification. The identified floodplain area shall be:
(a)
Any areas of Borough of Malvern classified as special
flood hazard areas (SFHAs) in the Flood Insurance Study (FIS) and
the accompanying Flood Insurance Rate Maps (FIRMs) dated September
29, 2017, and issued by the Federal Emergency Management. Agency (FEMA)
or the most recent revision thereof, including all digital data developed
as part of the Flood Insurance Study.
(b)
The above-referenced FIS and FIRMs, and any subsequent
revisions and amendments, are hereby adopted by Borough of Malvern
and declared to be a part of this section.
(2)
Description and special requirements of identified floodplain
areas. The identified floodplain area shall consist of the following
specific areas:
(a)
The Floodway Area shall be those areas identified
in the FIS and the FIRM as floodway and which represent the channel
of a watercourse and the adjacent land areas that must be reserved
in order to discharge the base flood without increasing the water
surface elevation by more than one foot at any point. This term shall
also include floodway areas which have been identified in other available
studies or sources of information for those special flood hazard areas
where no floodway has been identified in the FIS and FIRM.
[1]
Within any floodway area, no encroachments, including
fill, new construction, substantial improvements, or other development
shall be permitted unless it has been demonstrated through hydrologic
and hydraulic analyses performed in accordance with standard engineering
practice that the proposed encroachment would not result in any increase
in flood levels within the community during the occurrence of the
base flood discharge.
[2]
Within any floodway area, no new construction or
development shall be allowed unless the appropriate permit is obtained
from the Department of Environmental Protection Regional Office.
(b)
The AE Area/District shall be those areas identified
as an AE Zone on the FIRM included in the FIS prepared by FEMA for
which base flood elevations have been provided.
[1]
The AE Area adjacent to the floodway shall be those
areas identified as an AE Zone on the FIRM included in the FIS prepared
by FEMA for which base flood elevations have been provided and a floodway
has been delineated.
[2]
AE Area without floodway shall be those areas identified
as an AE Zone on the FIRM included in the FIS prepared by FEMA for
which base flood elevations have been provided but no floodway has
been determined.
[a]
No encroachments, including fill, new construction,
substantial improvements, or other development, shall be permitted
in an AE Zone without floodway unless it has been demonstrated through
hydrologic and hydraulic analyses performed in accordance with standard
engineering practice that the proposed development, together with
all other existing and anticipated development, would not result in
an increase in flood levels within the entire community during the
occurrence of the base flood discharge.
[b]
No new construction or development shall be located
within the area measured 50 feet landward from the top-of-bank of
any watercourse, unless the appropriate permit is obtained from the
Department of Environmental Protection Regional Office.
(c)
A Area/District.
[1]
The A Area/District shall be those areas identified
as an A Zone on the FIRM included in the FIS prepared by FEMA and
for which no base flood elevations have been provided. For these areas,
elevation and floodway information from other federal, state, or other
acceptable sources shall be used when available. Where other acceptable
information is not available, the base flood elevation shall be determined
by using the elevation of a point on the boundary of the identified
floodplain area which is nearest the construction site.
[2]
In lieu of the above, the municipality may require
the applicant to determine the elevation with hydrologic and hydraulic
engineering techniques. Hydrologic and hydraulic analyses shall be
undertaken only by professional engineers or others of demonstrated
qualifications, who shall certify that the technical methods used
correctly reflect currently accepted technical concepts. Studies,
analyses, computations, etc., shall be submitted in sufficient detail
to allow a thorough technical review by the municipality. In the absence
of any of the above data or documentation, the community may require
elevation of the lowest floor to be at least three feet above the
highest adjacent grade.
(d)
The AO and AH Area/District shall be those areas
identified as Zones AO and AH on the FIRM and in the FIS. These areas
are subject to inundation by one-percent-annual-chance shallow flooding
where average depths are between one and three feet. In Zones AO and
AH, drainage paths shall be established to guide floodwaters around
and away from structures on slopes.
(3)
Changes in identification of area. The identified floodplain area may be revised or modified by the Council where studies or information provided by a qualified agency or person documents the need for such revision. However, prior to any such change to the special flood hazard area, approval must be obtained from FEMA. Additionally, as soon as practicable, but not later than six months after the date such information becomes available, a community shall notify FEMA of the changes to the special flood hazard area by submitting technical or scientific data. See Subsection E(1)(b) for situations where FEMA notification is required.
(4)
Boundary disputes. Should a dispute concerning any identified
floodplain boundary arise, an initial determination shall be made
by the Borough of Malvern and any party aggrieved by this decision
or determination may appeal to the Council. The burden of proof shall
be on the appellant.
(5)
Jurisdictional boundary changes. Prior to development occurring
in areas where annexation or other corporate boundary changes are
proposed or have occurred, the community shall review flood hazard
data affecting the lands subject to boundary changes. The community
shall adopt and enforce floodplain regulations in areas subject to
annexation or corporate boundary changes which meet or exceed those
in 44 CFR 60.3.
E.
Technical provisions.
(1)
General.
(a)
Alteration or relocation of watercourse.
[1]
No encroachment, alteration, or improvement of
any kind shall be made to any watercourse until all adjacent municipalities
which may be affected by such action have been notified by the municipality,
and until all required permits or approvals have first been obtained
from the Department of Environmental Protection Regional Office.
[2]
No encroachment, alteration, or improvement of
any kind shall be made to any watercourse unless it can be shown that
the activity will not reduce or impede the flood-carrying capacity
of the watercourse in any way.
[3]
In addition, FEMA and the Pennsylvania Department
of Community and Economic Development shall be notified prior to any
alteration or relocation of any watercourse.
(b)
When Borough of Malvern proposes to permit the
following encroachments: any development that causes a rise in the
base flood elevations within the floodway; or any development occurring
in Zones A1-30 and Zone AE without a designated floodway which will
cause a rise of more than one foot in the base flood elevation; or
alteration or relocation of a stream (including but not limited to
installing culverts and bridges), the applicant shall (as per 44 CFR
65.12):
[1]
Apply to FEMA for conditional approval of such
action prior to permitting the encroachments to occur.
[2]
Upon receipt of the FEMA Administrator's conditional
approval of map change and prior to approving the proposed encroachments,
a community shall provide evidence to FEMA of the adoption of floodplain
management ordinances incorporating the increased base flood elevations
and/or revised floodway reflecting the post-project condition.
[3]
Upon completion of the proposed encroachments,
the applicant shall provide as-built certifications. FEMA will initiate
a final map revision upon receipt of such certifications in accordance
with 44 CFR Part 67.
(c)
Any new construction, development, uses or activities
allowed within any identified floodplain area shall be undertaken
in strict compliance with the provisions contained in this section
and any other applicable codes, ordinances and regulations.
(d)
Within any identified floodplain area, no new structures
shall be located within the area measured 50 feet landward from the
top-of-bank of any watercourse unless the appropriate permit is obtained
from the Department of Environmental Protection Regional Office.
(e)
Permitted uses. The following uses and activities
are permitted, provided they are in compliance with the provisions
of the underlying district and are not prohibited by another ordinance
and provided that they do not require structures, fill or storage
of materials and equipment.
[1]
Agricultural uses, such as general farming, pasture,
grazing, outdoor plant nurseries, horticulture, truck farming, forestry,
sod farming and wild crop harvesting.
[2]
Public and private recreational uses and activities,
such as parks, day camps, picnic grounds, golf courses, boat launching
and swimming areas, hiking and horseback riding trails, wildlife and
nature preserves, fish hatcheries, and fishing areas.
[3]
Municipal use.
[4]
Temporary uses such as carnivals or festivals,
provided that natural vegetative ground cover remains as it was prior
to the temporary event and is not destroyed, removed or altered in
a way to create sedimentation or erosion.
[5]
Accessory uses, such as yard areas, open space
areas, gardens, play areas, and pervious parking areas, driveways,
and roadways.
(2)
Elevation and floodproofing requirements. Within any identified floodplain area, any new construction or substantial improvements not listed in Subsection E(1)(e) above shall be prohibited. If a variance is obtained for new construction or substantial improvements in the identified floodplain area in accordance with the criteria in Subsection H, then the following provisions apply:
(a)
Residential structures.
[1]
In AE, A1-30, and AH Zones, any new construction
or substantial improvement shall have the lowest floor (including
basement) elevated up to, or above, the regulatory flood elevation.
[2]
In A Zones, where there are no base flood elevations specified on the FIRM, any new construction or substantial improvement shall have the lowest floor (including basement) elevated up to, or above, the regulatory flood elevation determined in accordance with Subsection E(2)(c) of this section.
[3]
In AO Zones, any new construction or substantial
improvement shall have the lowest floor (including basement) at or
above the highest adjacent grade at least as high as the depth number
specified on the FIRM.
[4]
The design and construction standards and specifications
contained in the 2009 International Building Code (IBC) and in the
2009 International Residential Code (IRC) or the latest edition thereof
adopted by the Commonwealth of Pennsylvania, and ASCE 24 and 34 Pa.
Code (Chapters 401 through 405, as amended) shall be utilized, where
they are more restrictive.
(b)
Nonresidential structures.
[1]
In AE, A1-30 and AH Zones, any new construction
or substantial improvement of a nonresidential structure shall have
the lowest floor (including basement) elevated up to, or above, the
regulatory flood elevation, or be designed and constructed so that
the space enclosed below the regulatory flood elevation:
[2]
In A Zones, where no base flood elevations are specified on the FIRM, any new construction or substantial improvement shall have the lowest floor (including basement) elevated or completely floodproofed up to, or above, the regulatory flood elevation determined in accordance with Subsection E(2)(c) of this section.
[3]
In AO Zones, any new construction or substantial
improvement shall have its lowest floor elevated or completely floodproofed
above the highest adjacent grade to at least as high as the depth
number specified on the FIRM.
[4]
Any nonresidential structure, or part thereof,
made watertight below the regulatory flood elevation shall be floodproofed
in accordance with the W1 or W2 space classification standards contained
in the publication entitled "Flood-Proofing Regulations," published
by the United States Army Corps of Engineers (June 1972, as amended
March 1992), or with some other equivalent standard. All plans and
specifications for such floodproofing shall be accompanied by a statement
certified by a registered professional engineer or architect which
states that the proposed design and methods of construction are in
conformance with the above-referenced standards. There should be a
statement submitted with the permit application and a statement submitted
with the as-built floodproofing certificate prior to the issuance
of the certificate of occupancy.
[5]
Any nonresidential structure that will be floodproofed
must submit the following to the Floodplain Administrator along with
the nonresidential floodproofing certificate and prior to the issuance
of the certificate of occupancy:
[a]
An inspection and maintenance plan detailing the
annual maintenance of floodproofed components, ensuring that all components
will operate properly under flood conditions. Components that must
be inspected include at a minimum:
[b]
A flood emergency operation plan detailing the
procedures to be followed during a flooding event, and must include
information pertaining to how all components will operate properly
under all conditions, including power failures. The design professional
must produce the plan. An adequate plan must include the following:
[i]
An established chain of command and responsibility
with leadership responsibilities clearly defined for all aspects of
the plan.
[ii]
A procedure for notification of necessary parties
when flooding threatens and flood warnings are issued. Personnel required
to be at the building should have a planned and safe means of ingress
and should have no other emergency response duties during a flood
event. Alternates should be assigned in the event that the primary
persons responsible are unable to complete their assigned duties under
the plan.
[iii]
A
list of specific duties assigned to ensure that all responsibilities
are addressed expeditiously. The locations of materials necessary
to properly install all floodproofing components must be included
in the list.
[iv]
An evacuation plan for all personnel or occupants,
those without duties for the flood emergency as well as those with
duties for implementing the plan. All possible ingress and egress
routes must be identified.
[v]
A periodic training and exercise program to keep
personnel and occupants aware of their duties and responsibilities.
Training drills should be held at least once a year and should be
coordinated with community officials.
[6]
The design and construction standards and specifications
contained in the 2009 International Building Code (IBC) and in the
2009 International Residential Code (IRC) or the latest revision thereof
as adopted by the Commonwealth of Pennsylvania, and ASCE 24 and 34
Pa. Code (Chapters 401 through 405, as amended) shall be utilized,
where they are more restrictive.
(c)
Space below lowest floor.
[1]
Basements are prohibited.
[2]
Fully enclosed space below the lowest floor (excluding
basements) which will be used solely for the parking of a vehicle,
building access, or incidental storage in an area other than a basement
shall be designed and constructed to allow for the automatic entry
and exit of floodwaters for the purpose of equalizing hydrostatic
forces on exterior walls. The term "fully enclosed space" also includes
crawl spaces.
[3]
Designs for meeting this requirement must either
be certified by a registered professional engineer or architect, or
meet or exceed the following minimum criteria:
[a]
A minimum of two openings having a net total area
of not less than one square inch for every square foot of enclosed
space installed on two separate walls.
[b]
The bottom of all openings shall be no higher than
one foot above grade.
[c]
Openings may be equipped with screens, louvers,
or other coverings or devices, provided that they permit the automatic
entry and exit of floodwaters.
(d)
Historic structures. Historic structures undergoing
repair or rehabilitation that would constitute a substantial improvement,
as defined in this section, must comply with all ordinance requirements
that do not preclude the structure's continued designation as an historic
structure. Documentation that a specific ordinance requirement will
cause removal of the structure from the National Register of Historic
Places or the State Inventory of Historic Places must be obtained
from the Secretary of the Interior or the State Historic Preservation
Officer. Any exemption from ordinance requirements will be the minimum
necessary to preserve the historic character and design of the structure.
(3)
Design and construction standards. The following minimum standards
shall apply for all construction and development proposed within any
identified floodplain area:
(a)
Fill. Within any identified floodplain area, the use of fill shall be prohibited. If a variance is obtained in accordance with the criteria in Subsection H, then the following provisions apply:
[1]
If fill is used, it shall:
[a]
Extend laterally at least 15 feet beyond the building
line from all points;
[b]
Consist of soil or small rock materials only; sanitary
landfills shall not be permitted;
[c]
Be compacted to provide the necessary permeability
and resistance to erosion, scouring, or settling;
[d]
Be no steeper than one vertical to two horizontal
feet unless substantiated data justifying steeper slopes are submitted
to, and approved by, the Floodplain Administrator; and
[e]
Be used to the extent to which it does not adversely
affect adjacent properties.
(b)
Drainage facilities. Storm drainage facilities
shall be designed to convey the flow of stormwater runoff in a safe
and efficient manner. The system shall ensure proper drainage along
streets and provide positive drainage away from buildings. The system
shall also be designed to prevent the discharge of excess runoff onto
adjacent properties.
(c)
Water and sanitary sewer facilities and systems.
[1]
All new or replacement water supply and sanitary
sewer facilities and systems shall be located, designed and constructed
to minimize or eliminate flood damages and the infiltration of floodwaters.
[2]
Sanitary sewer facilities and systems shall be
designed to prevent the discharge of untreated sewage into floodwaters.
[3]
No part of any on-site waste disposal system shall
be located within any identified floodplain area except in strict
compliance with all state and local regulations for such systems.
If any such system is permitted, it shall be located so as to avoid
impairment to it, or contamination from it, during a flood.
[4]
The design and construction provisions of the UCC
and FEMA No. 348, "Protecting Building Utilities From Flood Damages,"
and the "International Private Sewage Disposal Code" shall be utilized.
(d)
Other utilities. All other utilities such as gas
lines, electrical and telephone systems shall be located, elevated
(where possible) and constructed to minimize the chance of impairment
during a flood.
(e)
Streets. The finished elevation of all new streets
shall be no more than one foot below the regulatory flood elevation.
(f)
Storage. All materials that are buoyant, flammable, explosive, or in times of flooding could be injurious to human, animal, or plant life, and not listed in Subsection E(4), Development which may endanger human life, shall be stored at or above the regulatory flood elevation or floodproofed to the maximum extent possible.
(g)
Placement of buildings and structures. All buildings
and structures shall be designed, located, and constructed so as to
offer the minimum obstruction to the flow of water and shall be designed
to have a minimum effect upon the flow and height of floodwater.
(h)
Anchoring.
[1]
All buildings and structures shall be firmly anchored
in accordance with accepted engineering practices to prevent flotation,
collapse, or lateral movement.
[2]
All air ducts, large pipes, storage tanks, and
other similar objects or components located below the regulatory flood
elevation shall be securely anchored or affixed to prevent flotation.
(i)
Floors, walls and ceilings.
[1]
Wood flooring used at or below the regulatory flood
elevation shall be installed to accommodate a lateral expansion of
the flooring, perpendicular to the flooring grain, without causing
structural damage to the building.
[2]
Plywood used at or below the regulatory flood elevation
shall be of a marine or water-resistant variety.
[3]
Walls and ceilings at or below the regulatory flood
elevation shall be designed and constructed of materials that are
water-resistant and will withstand inundation.
[4]
Windows, doors, and other components at or below
the regulatory flood elevation shall be made of metal or other water-resistant
material.
(j)
Paints and adhesives.
[1]
Paints and other finishes used at or below the
regulatory flood elevation shall be of marine or water-resistant quality.
[2]
Adhesives used at or below the regulatory flood
elevation shall be of a marine or water-resistant variety.
[3]
All wooden components (doors, trim, cabinets, etc.)
used at or below the regulatory flood elevation shall be finished
with a marine or water-resistant paint or other finishing material.
(l)
Equipment.
[1]
Water heaters, furnaces, air-conditioning and ventilating
units, and other electrical, mechanical or utility equipment or apparatus
shall not be located below the regulatory flood elevation and shall
be anchored to resist flotation, collapse, and lateral movement.
[2]
Ductwork shall be elevated to or above the regulatory
flood elevation or floodproofed to remain water-resistant.
(m)
Fuel supply systems. All gas and oil supply systems
shall be designed to prevent the infiltration of floodwaters into
the system and discharges from the system into floodwaters. Additional
provisions shall be made for the drainage of these systems in the
event that floodwater infiltration occurs.
(n)
Uniform Construction Code coordination. The standards
and specifications contained in 34 Pa. Code (Chapters 401 through
405), as amended, and not limited to the following provisions shall
apply to the above and other subsections of this section, to the extent
that they are more restrictive and supplement the requirements of
this section.
[1]
International Building Code (IBC) 2009 or the latest
revision thereof as adopted by the Commonwealth of Pennsylvania: Sections
801, 1202, 1403, 1603, 1605, 1612, 3402, and Appendix G.
[2]
International Residential Building Code (IRC) 2009
or the latest revision thereof as adopted by the Commonwealth of Pennsylvania:
Sections R104, R105, R109, R322, Appendix E, and Appendix J.
(4)
Development which may endanger human life. Within any identified floodplain area, any structure of the kind described in Subsection E(4)(a), below, shall be prohibited. If a variance is obtained in accordance with the criteria in Subsection H, then the following provisions apply [Subsection E(4)(b), (c), and (d)]:
(a)
In accordance with the Pennsylvania Flood Plain
Management Act,[7] and the regulations adopted by the Department of Community
and Economic Development as required by the Act, any new or substantially
improved structure which: will be used for the production or storage
of any of the following dangerous materials or substances; or will
be used for any activity requiring the maintenance of a supply of
more than 550 gallons, or other comparable volume, of any of the following
dangerous materials or substances on the premises; or will involve
the production, storage, or use of any amount of radioactive substances
shall be subject to the provisions of this section, in addition to
all other applicable provisions. The following is a list of materials
and substances that are considered dangerous to human life:
|
Acetone
|
|
Ammonia
|
|
Benzene
|
|
Calcium carbide
|
|
Carbon disulfide
|
|
Celluloid
|
|
Chlorine
|
|
Hydrochloric acid
|
|
Hydrocyanic acid
|
|
Magnesium
|
|
Nitric acid and oxides of nitrogen
|
|
Petroleum products (gasoline, fuel oil, etc.)
|
|
Phosphorus
|
|
Potassium
|
|
Sodium
|
|
Sulfur and sulfur products
|
|
Pesticides (including insecticides, fungicides, and rodenticides)
|
|
Radioactive substances, insofar as such substances are not otherwise
regulated
|
[7]
Editor's Note: See 32 P.S. § 679.101 et seq.
(b)
Within any identified floodplain area, any new or substantially improved structure of the kind described in Subsection E(4)(a), above, shall be prohibited within the area measured 50 feet landward from the top-of-bank of any watercourse.
(c)
Within any floodway area, any structure of the kind described in Subsection E(4)(a), above, shall be prohibited. Where permitted within any identified floodplain area, any new or substantially improved residential structure of the kind described in Subsection E(4)(a), above, shall be elevated to remain completely dry up to at least 1 1/2 feet above base flood elevation and built in accordance with Subsection E(1), (2), and (3).
(d)
(e)
Any such structure, or part thereof, that will
be built below the regulatory flood elevation shall be designed and
constructed in accordance with the standards for completely dry floodproofing
contained in the publication "Flood-Proofing Regulations" (United
States Army Corps of Engineers, June 1972, as amended March 1992),
or with some other equivalent watertight standard.
(5)
Special requirements for subdivisions and development. All subdivision
proposals and development proposals containing at least 50 lots or
at least five acres, whichever is the lesser, in identified floodplain
areas where base flood elevation data are not available shall be supported
by hydrologic and hydraulic engineering analyses that determine base
flood elevations and floodway information. The analyses shall be prepared
by a licensed professional engineer in a format required by FEMA for
a conditional letter of map revision (CLOMR) and letter of map revision
(LOMR). Submittal requirements and processing fees shall be the responsibility
of the applicant.
F.
Prohibited activities.
(1)
General. In accordance with the administrative regulations promulgated
by the Department of Community and Economic Development to implement
the Pennsylvania Flood Plain Management Act,[8] the following activities shall be prohibited within any
identified floodplain area, and no variance shall be granted:
(a)
The commencement of any of the following activities;
or the construction, enlargement, or expansion of any structure used,
or intended to be used, for any of the following activities:
[1]
Hospitals.
[2]
Nursing homes.
[3]
Jails or prisons.
[4]
The commencement of, or any construction of, a
new manufactured home, new manufactured home park or manufactured
home subdivision, or substantial improvement to an existing manufactured
home or manufactured home park or manufactured home subdivision.
[5]
Cemeteries.
[6]
Sanitary landfills, dumps, and junkyards.
[8]
Editor's Note: See 32 P.S. § 679.101 et seq.
G.
Existing structures in identified floodplain areas.
(1)
Existing structures. The provisions of this section do not require any changes or improvements to be made to lawfully existing structures. However, when an improvement is made to any existing structure, the provisions of Subsection G(2) shall apply.
(2)
Improvements. The following provisions shall apply whenever
any improvement is made to an existing structure located within any
identified floodplain area:
(a)
No expansion or enlargement of an existing structure shall be allowed within any identified floodplain area that would cause any increase in BFE. In A Area/District(s), BFEs are determined using the methodology in Subsection D(2)(c).
(b)
Any modification, alteration, reconstruction, or
improvement of any kind to an existing structure to an extent or amount
of 50% or more of its market value shall constitute a substantial
improvement and shall be undertaken only in full compliance with the
provisions of this section.
(c)
The above activity shall also address the requirements
of 34 Pa. Code, as amended, and the 2009 IBC and the 2009 IRC or most
recent revision thereof as adopted by the Commonwealth of Pennsylvania.
(d)
Within any Floodway Area/District [see Subsection D(2)(a)], no new construction or development shall be allowed unless the appropriate permit is obtained from the Department of Environmental Protection Regional Office.
(e)
Within any AE Area/District without floodway [see Subsection D(2)(b)], no new construction or development shall be located within the area measured 50 feet landward from the top-of-bank of any watercourse, unless the appropriate permit is obtained from the Department of Environmental Protection Regional Office.
(f)
Any modification, alteration, reconstruction, or
improvement of any kind to an existing structure, to an extent or
amount of less than 50% of its market value, shall be elevated and/or
floodproofed to the greatest extent possible.
(g)
Any modification, alteration, reconstruction, or
improvement of any kind that meets the definition of "cumulative substantial
damage" shall be undertaken only in full compliance with the provisions
of this section.
H.
Variances.
(1)
General. If compliance with any of the requirements of this
section would result in an exceptional hardship to a prospective builder,
developer or landowner, the Borough of Malvern Zoning Hearing Board
may, upon request, grant relief from the strict application of the
requirements.
(2)
Variance procedures and conditions. Requests for variances shall be considered by the Borough of Malvern Zoning Hearing Board in accordance with the procedures contained in Subsection C(10) and the following:
(a)
No variance shall be granted within any identified floodplain area that would cause any increase in BFE. In an A Area/District, BFEs are determined using the methodology in Subsection D(2)(c).
(b)
Except for a possible modification of the regulatory flood elevation requirement involved, no variance shall be granted for any of the other requirements pertaining specifically to development regulated by Subsection E(4), Development which may endanger human life.
(d)
If granted, a variance shall involve only the least
modification necessary to provide relief.
(e)
In granting any variance, the Borough of Malvern
Zoning Hearing Board shall attach whatever reasonable conditions and
safeguards it considers necessary in order to protect the public health,
safety, and welfare, and to achieve the objectives of this section.
(g)
In reviewing any request for a variance, the Borough
of Malvern Zoning Hearing Board shall consider, at a minimum, the
following:
(h)
A complete record of all variance requests and
related actions shall be maintained by the Borough of Malvern Zoning
Hearing Board. In addition, a report of all variances granted during
the year shall be included in the annual report to FEMA.
(3)
Notwithstanding any of the above, however, all structures shall
be designed and constructed so as to have the capability of resisting
the one-percent annual chance flood.
I.
Definitions.
(1)
Interpretation. Unless specifically defined below or elsewhere
in this chapter, words and phrases used in this section shall be interpreted
so as to give this section its most reasonable application. In interpreting
this section, any conflict in the defined terms below with the definitions
provided for elsewhere in this chapter shall be resolved in favor
of the specific definitions defined herein.
(2)
ACCESSORY USE OR STRUCTURE
BASE FLOOD
BASE FLOOD DISCHARGE
BASE FLOOD ELEVATION (BFE)
BASEMENT
BUILDING
CUMULATIVE SUBSTANTIAL DAMAGE
DECLARATION OF LAND RESTRICTION (NONCONVERSION AGREEMENT)
DEVELOPMENT
EXISTING MANUFACTURED HOME PARK OR SUBDIVISION
EXPANSION TO AN EXISTING MANUFACTURED HOME PARK OR SUBDIVISION
FLOOD
FLOOD INSURANCE RATE MAP (FIRM)
FLOOD INSURANCE STUDY (FIS)
FLOODPLAIN AREA
FLOODPROOFING
FLOODWAY
HIGHEST ADJACENT GRADE
HISTORIC STRUCTURES
(a)
(b)
(c)
(d)
IDENTIFIED FLOODPLAIN AREA
LOWEST FLOOR
MANUFACTURED HOME
MANUFACTURED HOME PARK OR SUBDIVISION
NEW CONSTRUCTION
NEW MANUFACTURED HOME PARK OR SUBDIVISION
PERSON
POST-FIRM STRUCTURE
PRE-FIRM STRUCTURE
RECREATIONAL VEHICLE
(a)
(b)
(c)
(d)
REGULATORY FLOOD ELEVATION
SPECIAL FLOOD HAZARD AREA (SFHA)
START OF CONSTRUCTION
STRUCTURE
SUBDIVISION
SUBSTANTIAL DAMAGE
SUBSTANTIAL IMPROVEMENT
UNIFORM CONSTRUCTION CODE (UCC)
VARIANCE
VIOLATION
Specific definitions. As used in this section, the following
terms shall have the meanings indicated:
A use or structure on the same lot with, and of a nature
customarily incidental and subordinate to, the principal use or structure.
A flood which has a one-percent chance of being equaled or
exceeded in any given year (also called the "one-hundred-year flood"
or "one-percent annual chance flood").
The volume of water resulting from a base flood as it passes
a given location within a given time, usually expressed in cubic feet
per second (cfs).
The elevation shown on the Flood Insurance Rate Map (FIRM)
for Zones AE, AH, and A1-30 that indicates the water surface elevation
resulting from a flood that has a one-percent or greater chance of
being equaled or exceeded in any given year.
Any area of the building having its floor below ground level
on all sides.
A combination of materials to form a permanent structure
having walls and a roof. Included shall be all manufactured homes
and trailers to be used for human habitation.
Flood-related damages sustained by a structure on two or
more separate occasions during a ten-year period for which the cost
of repairs at the time of each such flood event, on average, equals
or exceeds 25% of the market value of the structure before the damages
occurred.
A form signed by the property owner to agree not to convert
or modify, in any manner that is inconsistent with the terms of the
permit and these regulations, certain enclosures below the lowest
floor of elevated buildings and certain accessory structures. The
form requires the owner to record it on the property deed to inform
future owners of the restrictions.
Any man-made change to improved or unimproved real estate,
including but not limited to the construction, reconstruction, renovation,
repair, expansion, or alteration of buildings or other structures;
the placement of manufactured homes; streets, and other paving; utilities;
filling, grading and excavation; mining; dredging; drilling operations;
storage of equipment or materials; and the subdivision of land.
A manufactured home park or subdivision for which the construction
of facilities for servicing the lots on which the manufactured homes
are to be affixed (including, at a minimum, the installation of utilities,
the construction of streets, and either final site grading or the
pouring of concrete pads) is completed before the effective date of
the floodplain management regulations adopted by a community.
The preparation of additional sites by the construction of
facilities for servicing the lots on which the manufactured homes
are to be affixed (including the installation of utilities, the construction
of streets, and either final site grading or the pouring of concrete
pads).
A temporary inundation of normally dry land areas.
The official map on which the Federal Emergency Management
Agency has delineated both the areas of special flood hazard and the
risk premium zones applicable to the community.
The official report provided by the Federal Emergency Management
Agency that includes flood profiles, the Flood Insurance Rate Map,
the Flood Boundary and Floodway Map, and the water surface elevation
of the base flood.
A relatively flat or low land area which is subject to partial
or complete inundation from an adjoining or nearby stream, river or
watercourse; and/or any area subject to the unusual and rapid accumulation
of surface waters from any source.
Any combination of structural and nonstructural additions,
changes, or adjustments to structures which reduce or eliminate flood
damage to real estate or improved real property, water and sanitary
facilities, structures and their contents.
The channel of a river or other watercourse and the adjacent
land areas that must be reserved in order to discharge the base flood
without cumulatively increasing the water surface elevation more than
one foot.
The highest natural elevation of the ground surface prior
to construction next to the proposed walls of a structure.
Any structure that is:
Listed individually in the National Register of Historic Places
(a listing maintained by the Department of the Interior) or preliminarily
determined by the Secretary of the Interior as meeting the requirements
for individual listing on the National Register;
Certified or preliminarily determined by the Secretary of the
Interior as contributing to the historical significance of a registered
historic district or a district preliminarily determined by the Secretary
to qualify as a registered historic district;
Individually listed on a state inventory of historic places
in states which have been approved by the Secretary of the Interior;
or
Individually listed on a local inventory of historic places
in communities with historic preservation that have been certified
either:
This term is an umbrella term that includes all of the areas within which the community has selected to enforce floodplain regulations. It will always include the area identified as the special flood hazard area on the Flood Insurance Rate Maps and Flood Insurance Study, but may include additional areas identified by the community. See Subsection D(1) and (2) for the specifics on what areas the community has included in the identified floodplain area.
The lowest floor of the lowest fully enclosed area (including
basement). An unfinished, flood-resistant partially enclosed area,
used solely for parking of vehicles, building access, and incidental
storage, in an area other than a basement area is not considered the
lowest floor of a building, provided that such space is not designed
and built so that the structure is in violation of the applicable
nonelevation design requirements of this section.
A structure, transportable in one or more sections, which
is built on a permanent chassis, and is designed for use with or without
a permanent foundation when attached to the required utilities. The
term includes park trailers, travel trailers, recreational vehicles
and other similar vehicles which are placed on a site for more than
180 consecutive days.
A parcel (or contiguous parcels) of land divided into two
or more manufactured home lots for rent or sale.
Structures for which the start of construction commenced
on or after the effective start date of this floodplain management
section, and includes any subsequent improvements to such structures.
Any construction started after January 16, 1981, and before the effective
start date of this floodplain management section is subject to the
ordinance in effect at the time the permit was issued, provided the
start of construction was within 180 days of permit issuance.
A manufactured home park or subdivision for which the construction
of facilities for servicing the lots on which the manufactured homes
are to be affixed (including, at a minimum, the installation of utilities,
the construction of streets, and either final site grading or the
pouring of concrete pads) is completed on or after the effective date
of floodplain management regulations adopted by a community.
An individual, partnership, public or private association
or corporation, firm, trust, estate, municipality, governmental unit,
public utility or any other legal entity whatsoever which is recognized
by law as the subject of rights and duties.
A structure for which construction or substantial improvement
occurred after December 31, 1974, or on or after the community's initial
Flood Insurance Rate Map (FIRM) dated January 16, 1981, whichever
is later, and, as such, would be required to be compliant with the
regulations of the National Flood Insurance Program.
A structure for which construction or substantial improvement
occurred on or before December 31, 1974, or before the community's
initial Flood Insurance Rate Map (FIRM) dated January 16, 1981, whichever
is later, and, as such, would not be required to be compliant with
the regulations of the National Flood Insurance Program.
A vehicle which is:
Built on a single chassis;
Not more than 400 square feet, measured at the largest horizontal
projections;
Designed to be self-propelled or permanently towable by a light-duty
truck;
Not designed for use as a permanent dwelling but as temporary
living quarters for recreational, camping, travel, or seasonal use.
The base flood elevation (BFE) or estimated flood height
as determined using simplified methods plus a freeboard safety factor
of 1 1/2 feet. The freeboard safety factor also applies to utilities
and ductwork.
An area in the floodplain subject to a one-percent or greater
chance of flooding in any given year. It is shown on the FIRM as Zone
A, AO, A1-A30, AE, A99, or AH.
Includes substantial improvement and other proposed new development
and means the date the permit was issued, provided the actual start
of construction, repair, reconstruction, rehabilitation, addition,
placement, or other improvement was within 180 days after the date
of the permit and shall be completed within 12 months after the date
of issuance of the permit unless a time extension is granted, in writing,
by the Floodplain Administrator. The "actual start" means either the
first placement of permanent construction of a structure on a site,
such as the pouring of slab or footings, the installation of piles,
the construction of columns, or any work beyond the stage of excavation;
or the placement of a manufactured home on a foundation. Permanent
construction does not include land preparation, such as clearing,
grading, and filling; nor does it include the installation of streets
and walkways; nor does it include excavation for a basement, footings,
piers, or foundations or the erection of temporary forms; nor does
it include the installation on the property of accessory buildings,
such as garages or sheds not occupied as dwelling units or not part
of the main structure. For a substantial improvement, the "actual
start of construction" means the first alteration of any wall, ceiling,
floor, or other structural part of a building, whether or not that
alteration affects the external dimensions of the building.
A walled and roofed building, including a gas or liquid storage
tank that is principally above ground, as well as a manufactured home.
The division or redivision of a lot, tract, or parcel of
land by any means into two or more lots, tracts, parcels or other
divisions of land, including changes in existing lot lines for the
purpose, whether immediate or future, of lease, partition by the court
for distribution to heirs or devisees, transfer of ownership or building
or lot development; provided, however, that the subdivision by lease
of land for agricultural purposes into parcels of more than 10 acres,
not involving any new street or easement of access or any residential
dwelling, shall be exempted.
Damage from any cause sustained by a structure whereby the
cost of restoring the structure to its before-damaged condition would
equal or exceed 50% or more of the market value of the structure before
the damage occurred.
Any reconstruction, rehabilitation, addition, or other improvement
of a structure, of which the cost equals or exceeds 50% of the market
value of the structure before the start of construction of the improvement.
This term includes structures which have incurred substantial damage
or cumulative substantial damage, regardless of the actual repair
work performed. The term does not, however, include any project for
improvement of a structure to correct existing violations of state
or local health, sanitary, or safety code specifications which have
been identified by the local code enforcement official and which are
the minimum necessary to assure safe living conditions.
The statewide building code adopted by the Pennsylvania General
Assembly in 1999 applicable to new construction in all municipalities,
whether administered by the municipality, a third party or the Department
of Labor and Industry. Applicable to residential and commercial buildings,
the code adopted the International Residential Code (IRC) and the
International Building Code (IBC), by reference, as the construction
standard applicable with the state floodplain construction. For coordination
purposes, references to the above are made specifically to various
sections of the IRC and the IBC.
A grant of relief by a community from the terms of a floodplain
management regulation.
The failure of a structure or other development to be fully
compliant with the community's floodplain management regulations.
A structure or other development without the elevation certificate,
other certifications, or other evidence of compliance required in
44 CFR 60.3(b)(5), (c)(4), (c)(10), (d)(3), (e)(2), (e)(4), or (e)(5)
is presumed to be in violation until such time as that documentation
is provided.
J.
Enactment. This section shall be effective upon the date of
enactment or as dictated by law and shall remain in force until modified,
amended or rescinded by Borough of Malvern, Chester County, Pennsylvania.
A.
Intent. It is the intent of this section to establish supplemental
regulations to control the development of areas containing steeply
sloped land for the purpose of promoting the health, safety and general
welfare in order to minimize disturbance of steep slopes to:
(1)
Limit soil erosion and sedimentation;
(2)
Protect watersheds and limit increases in stormwater runoff;
(3)
Protect residents of the Borough from property damage and personal
injury caused by runoff;
(4)
Erosion and landslides attributable to nearby development on
steeply sloping land;
(5)
Protect the quality of stream water, subject to degradation
by indiscriminate grading and development;
(6)
Protect the natural vegetative cover in steep slopes and to
maintain adequate foliage and vegetative cover thereon;
(7)
Protect streams from increases in sediment and pollution; and
(8)
Minimize the necessity for expenditure of Borough funds for
corrective public works caused by soil erosion and subsidence, sedimentation
and landslides.
B.
Identification.
(1)
Steep slopes are defined as follows:
(a)
Precautionary steep slopes. Precautionary steep
slopes are those sloping 15% to 20% vertical to horizontal on the
United States Geological Survey Topographic Maps or Topographical
Survey Map prepared by a qualified registered architect or engineer
licensed to practice in the Commonwealth of Pennsylvania.
(b)
Prohibitive steep slopes. Prohibitive slopes are
those sloping more than 20% vertical to horizontal on the United States
Geological Survey Topographic Map or Topographical Survey Map prepared
by a qualified registered architect or engineer licensed to practice
in the Commonwealth of Pennsylvania.
(2)
Slope is defined as follows: The percentage of the change in
vertical distance (rise) over the horizontal distance (run), as measured
between consecutive contour lines. Contour intervals shall not exceed
two feet.
C.
Rules for interpretation of steep slopes. Steep slopes, as defined
in § 220-2202B, shall be determined by the Zoning Officer
by scaling distances on the United States Geological Survey Topographic
Map or a Topographical Survey Map prepared by a qualified registered
architect or engineer, where such interpretation is necessary. Initially,
and upon any appeal, the person contesting the location of the boundary
of any such slopes, as determined by the Zoning Officer, or the slope
as stated, shall have the burden of establishing that the land in
question does not lie within the applicable steep slopes, as defined
above.
D.
Precautionary steep slopes.
(1)
Plan requirements. Where any map identified in § 220-2202B
shows the existence of precautionary steep slopes, the applicant shall
supply the following information in addition to that required in § 220-2205
prior to the issuance of any building permit or subdivision and land
development approval:
(a)
Site plan of the property indicating the existing
grades with contour lines at two-foot intervals and proposed grades
within the area of the proposed construction. It shall also indicate
existing and proposed structures, a plan for on-site sewage disposal
facilities, if connection to a public sanitary sewer system is not
feasible, and impervious surface coverage. All steep slope areas shall
be shaded.
(b)
Landscaping plan indicating existing and proposed
paved areas, storm drainage facilities, retaining walls, vegetation,
and groundcover, together with trees and ornamental shrub locations.
(c)
Architectural plans, elevations and sections for
all permitted buildings, structures or construction, accompanied by
conservation plan including drainage facilities and an erosion and
sedimentation control in compliance with the Malvern Borough Subdivision
and Land Development Ordinance.[1]
(d)
Plan, profile and typical cross-sections of the
entrance drive and the proposed public street providing access to
such drive.
(e)
A statement prepared, signed and sealed by a registered
architect or a licensed civil or structural engineer describing in
detail the building methods to be used in overcoming foundation and
other structural problems created by slope conditions, how the natural
slopes and watershed will be preserved substantially undisturbed,
the method proposed to prevent soil erosion and details of how overground
stormwater runoff and groundwater will be diverted away from all building
areas below finish grade.
(2)
Standards for disturbance or development on precautionary steep
slopes. The construction, erection and development of buildings or
structures on precautionary steep slopes shall be subject to the following
limitations:
(a)
No more than 40% of such areas shall be built-upon,
altered, or disturbed. The maximum impervious surface coverage permitted
on precautionary steep slopes shall be 20%. These standards shall
apply on a per-lot basis.
(b)
Each such lot shall contain a minimum contiguous
lot area having a slope of less than 15% equal to 50% of the minimum
lot size required in the zoning district.
(c)
Any stockpiles of earth occurring during or after
any land disturbance activity shall be seeded or otherwise stabilized
when stored for more than 30 days.
E.
Prohibitive steep slopes.
(1)
Plan requirements. Where any map identified in § 220-2202B
shows the existence of prohibitive steep slopes, the applicant shall
delineate their limits in accordance with § 220-2202D(1)
as applicable, and § 220-2205 prior to the issuance of any
building permit or subdivision and land development approval.
(2)
Standards for disturbance or development on prohibitive steep
slopes. Disturbance on prohibitive steep slopes shall be subject to
the following limitations:
(a)
There shall be no erection or construction of any
building, structure, road, driveway, parking area or other similar
structure or impervious surface on prohibitive steep slopes, except
for one primary road or driveway which is designed and intended to
serve as sole access to a subdivision or lot therein, provided there
is no other access to the property or lot which complies with this
article and the access is approved by the Borough Council as part
of the final subdivision plan.
(b)
If a driveway is to be located on a prohibitive
steep slope, a driveway grading plan shall be submitted for approval
to the Zoning Officer and Borough Engineer, subject to accepted engineering
criteria consistent with the other applicable requirements of Borough
ordinances. The grading plan shall be prepared by a licensed civil
engineer and shall show:
(c)
No more than 15% of such areas shall be altered
or disturbed. The maximum impervious surface coverage of such areas
shall be 5%. These standards shall apply on a per-lot basis.
(d)
Any stockpiles of earth occurring during or after
any land disturbance activity shall be seeded or otherwise stabilized
when stored for more than 30 days.
(3)
Uses. The uses permitted on prohibitive steep slopes shall be
limited to the following:
(a)
Open space reserved as part of a land development
so long as no more than 25% of the open space has a slope greater
than 25%.
(b)
Wildlife sanctuary, woodland preserve, arboretum
(exclusive of buildings or structures) and recreation areas (exclusive
of buildings or structures).
(c)
Tree farming, forestry and other agricultural uses
(exclusive of buildings or structures) when conducted according to
conservation measures approved by the Soil Conservation Service.
(4)
Special exception uses on prohibitive steep slopes. The following uses shall be permitted as a special exception when authorized by the Zoning Hearing Board, subject to the requirements of this article. In addition to the criteria contained in Article XXVIII, the Board shall consider the extent to which the requested use will disrupt the stability of soils and natural vegetation and contribute to erosion before and after construction or installation of the permitted use. The Board shall attach such reasonable conditions as it determines necessary and reasonable in furthering the intent and purpose of this article.
(a)
Sealed public water supply wells that have been
approved by all regulatory agencies having jurisdiction.
(b)
Sanitary or storm sewers that have been approved
by all regulatory agencies having jurisdictions.
(c)
Access roads suitable for passage of emergency
vehicles in the event of fire or accident. Such roads shall be constructed
only when no viable alternative for emergency access exists, providing
all requirements of applicable codes and ordinances are met, and subject
to approval by all regulatory authorities having jurisdiction.
F.
Liability. Neither the approval, nor the granting of any building
permit, subdivision or land development approval, or site development
plan involving any land governed by the provisions of this article,
by an officer, employee or agency of the Borough, shall constitute
a representation, guarantee or warranty of any kind by the Borough,
or its officers, officials, employees or agencies, of the practicality
or safety of any structure, use or development, and the same shall
create no liability upon or cause of action against the Borough, its
officers, agencies, agents or employees for any damage that may result
pursuant thereto. This chapter does not imply that areas outside defined
steep slopes areas or land uses permitted within steep slope areas
will always be totally free from the adverse effects of erosion or
the effects of nearby steep slopes.
All uses and activities established after the effective date
of this chapter shall comply with the following standards.
A.
Applicability.
(1)
Site alterations, regrading, filling or clearing of vegetation
prior to the submission of applications for zoning or building permits
or the submission of plans for subdivision or land development shall
be a violation of this chapter.
(2)
Wetland areas shall not be altered, regraded, developed, filled,
piped, diverted or built upon, except where state and federal permits
have been obtained.
B.
Identification. An applicant shall identify and delineate wetlands
on a site prior to the issuance of any building permit or subdivision
and land development approval in accordance with this section and
§ 220-2205. Wetlands boundaries shall be delineated through
a full wetlands report conducted by a qualified scientist and such
report shall certify that the methods used correctly reflect current
accepted technical approaches. Such a professional shall certify that
the methods used correctly reflect the currently accepted technical
concepts, including identification and analysis of wetland vegetation,
hydric soils, and hydrologic indicators. The wetland report shall
include a determination of whether wetlands are present on the site
and a full delineation, area measurement (in square feet), and description
of any wetlands determined to be present. In the event that a wetlands
delineation validated by the United States Army Corps of Engineers
is shown to vary from the wetlands boundary derived from the wetlands
report, the Corps delineation shall govern.
C.
Federal and state regulations. For proposed uses, activities
or improvements which would entail the regrading or replacement of
fill in wetlands, the applicant shall provide the Borough with proof
that the Pennsylvania Department of Environmental Protection (Bureau
of Dams and Waterway Safety) and the United States Army Corps of Engineers
have been contacted to determine the applicability of state and federal
wetland regulations for areas identified as wetlands on National Wetland
Inventory (NWI) maps, United States Fish and Wildlife Service, or
which meet these agencies' definitions of wetlands.
D.
No more than 20% of a wetland margin area shall be altered,
regraded, filled or built upon. Additionally, any Department of Environmental
Protection regulations concerning activities related to wetland margins
shall be met.
[Amended 3-21-2006 by Ord. No. 2006-5]
The intent of this section is to promote conservation of woodland
resources in the Borough through resource identification, planning
and development limitations. An applicant shall identify and delineate
woodlands on a site prior to the issuance of any building permit or
subdivision and land development approval in accordance with this
section and § 220-2205.
A.
Standards for land disturbance.
(1)
Unless undertaken as an approved tree harvesting activity conducted
in compliance with the requirements, as follows, no more than 60%
of woodlands shall be regraded, cleared, built upon or otherwise altered.
Where woodlands overlap other protected natural resources, the more
restrictive disturbance standard shall apply.
(2)
Replacement plantings shall be required as provided in § 181-525D
of the Malvern Borough Subdivision and Land Development chapter where
any land disturbance exceeds the standards set forth therein.
(3)
Preserved woodlands may be used to provide vegetative buffers required by Article XXIII of this chapter.
(4)
A tree harvesting plan may be required by the Borough, and shall
include a description through text and maps of proposed actions involving
the removal of trees from a tract of land. Such plan shall have been
prepared by a licensed forester with demonstrable expertise in forest
management, and shall document measures to be taken to protect water
quality; minimize impacts from skid trails and logging roads, land
areas, and the tree removal process; and ensure site restoration.
B.
Guidelines for determining permitted woodland disturbance. In
determining where permitted woodland disturbance will occur, the following
factors shall be considered:
(1)
Each building or structure shall be constructed in such a manner
as to provide the least alteration necessary of the existing woodland.
Where possible, clear-cutting shall be minimized and trees shall be
selectively removed.
(2)
Where possible, the remaining undisturbed woodlands and other
vegetation shall interconnect with woodlands or wooded areas of adjacent
properties to preserve continuous woodland corridors and allow for
the normal movement, dispersion, and migration of wildlife.
(3)
Woodland alterations that would threaten the growth of remaining
trees shall be avoided.
C.
Protection of specimen vegetation.
(1)
No specimen vegetation shall be removed from any lot or tract
except where applicant demonstrates to the satisfaction of the Borough
that such removal is essential to eliminate hazardous condition(s).
In consideration of any need for tree removal, the Borough may engage
the services of an arborist, reasonable costs therefor to be borne
by the applicant.
(2)
To the minimum extent necessary to permit retention of specimen
vegetation while providing for lawful use, modification to otherwise
applicable area and bulk requirements may be approved in the following
situations:
(a)
Where approved by the Borough Council as part of
any applicable subdivision or land development application; or
(b)
Where approved by the Zoning Officer upon approval
of any applicable building permit; and
(c)
Provided that no applicable yard area setback shall
be reduced more than 50%, except where approved as a variance by the
Zoning Hearing Board.
(3)
Where any applicant for building, zoning, subdivision or land
development approval establishes conservation restrictions acceptable
to the Borough which shall result in the conservation of specimen
vegetation, all such specimen vegetation to be retained shall be credited
toward any tree replacement required as provided in the Malvern Borough
Subdivision and Land Development Ordinance,[1] at the ratio of four trees credited for each tree or plant
to be retained which has been identified as specimen vegetation.
[Amended 3-21-2006 by Ord. No. 2006-5]
In order to meet the natural resource protection standards of
this article, the following information shall be submitted by the
applicant.
A.
A site plan which clearly delineates the limits of all natural
resources on the site as outlined in this article, including areas
of floodplain, steep slopes, wetlands and woodlands, and the proposed
use of the site including any existing or proposed structures. This
site plan shall include the site's watershed and the water quality
designation of the watershed in which the property in question is
located.
B.
The limits of all encroachments and disturbances necessary to
establish the proposed use on the site, including a grading plan showing
existing and proposed contours at two-foot intervals.
C.
The identification of the minimum buildable area(s). The purpose
is to ensure that sufficient area is provided for the general location
of buildings, driveways, and other improvement while meeting the requirements
of the natural resource protection standards.
D.
Calculations indicating the area of the site with natural resources
and the area of natural resources that would be disturbed or encroached
upon. The calculations shall be shown on the site plan.
[Added 5-20-2014 by Ord.
No. 2014-6]
The Malvern Borough Stormwater Management Ordinance of 2014,
including all of its appendices, shall be appended to this Zoning
Ordinance as "Appendix: Stormwater Management" and is incorporated
herein by this reference as fully as if set forth here, at length,[1] and shall be applicable in all instances where any activity
or development regulated thereby does not constitute subdivision or
land development regulated pursuant to Section 517 of the Malvern
Borough Subdivision and Land Development Ordinance.[2]
