This article is a follow up article to an article written by Nicholas Racioppi Esq. as Riker Danzig continues to monitor the latest developments regarding revisions to the FEMA Flood Insurance Rate Maps and New Jersey's Flood Hazard Area Control Act Rules.

MORRISTOWN, NJ-On Dec. 15, 2012, in the wake of Hurricane Sandy, the Federal Emergency Management Agency issued a new set of Advisory Flood Insurance Rate Maps for the New York and New Jersey coastal area. FIRMS are the official depiction of flood hazards for each community and the properties located within it. Since many of the existing FIRMS for this area were more than 25 years old, the purpose of the newly released AFIRMS was to provide an updated set of maps to support Sandy reconstruction efforts. 

The maps were originally scheduled for release in 2013, but FEMA accelerated their release so that rebuilding at the coastal shore areas could be done in accordance with more recent flood elevation data. 

FIRMS are used to determine national flood insurance program requirements and to indicate where state or local floodplain development regulations apply in a given community. Each FIRM shows the areas subject to flooding by a storm or flood event that has a one percent chance of being equaled or exceeded in any given year. The highest risk areas are designated on the FIRMS as A Zones and V Zones. V Zones are areas along the coast that are subject to inundation by the 100 year flood and 3 foot breaking waves. Virtually the entire Hudson River waterfront area in Hudson County is newly designated as a V Zone on the AFIRMS.

FEMA acknowledges that the AFIRMS are merely advisory and will not form the basis for the NFIP until they are final and officially adopted. The V Zones on the AFIRMS are very rough and do not reflect the completed wave analysis modeling required by FEMA to accurately depict the limits and extent of V Zones. FEMA anticipates issuing more thoroughly developed “preliminary” maps in June, 2013, and then going through a statutorily required process where the maps will be subject to community and public notice, comment and appeal before becoming effective sometime in 2014.

Notwithstanding that the AFIRMS are merely advisory, on Jan. 24, 2013, the New Jersey Department of Environmental Protection adopted an emergency rule formally incorporating the AFIRMS into New Jersey's Land Use Regulation Program. Pursuant to pre-existing coastal zone regulations, all residential development is prohibited in V Zones and commercial development is discouraged. Hence, all residential development on the Hudson River waterfront is prohibited and commercial development discouraged as a consequence of the emergency rule.

By hastily adopting the AFIRMS into state law only days after their publication, without considering either their accuracy or their impact on other regions of the state, NJDEP has inadvertently done great damage to the expanding urban waterfront in Hudson County. In Jersey City alone, 5,658 units of affected residential development have already been approved and 10,554 more have been planned. Obviously, this ban on development would create a significant financial hardship on urban waterfront developers who have invested billions of dollars in land and permitting costs. In addition to this direct negative impact, the ripple effect includes loss of employment opportunities and municipal and state tax revenues that would otherwise be generated by the proposed development.

Yet, in this delicately recovering economy, it seems unlikely that New Jersey's pro-business administration intended to bring development in this part of the state to a screeching halt. After holding a public hearing and receiving 185 written comments from the public, on March 25, 2013, NJDEP adopted the emergency rule with no changes as a final rule.

Only time will tell whether the harshness of these rules is ameliorated by a significant reduction of Hudson County V Zone designations on the next set of FIRMS or a later amendment for the Hudson River waterfront area from the blanket ban on residential development in the V Zone.

Marilynn R. Greenberg is a partner at Riker Danzig, Scherer, Hyland & Perretti LLP. The views expressed in this column are the author's own.