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Maverick
Maverick, Lawyer
Category: Real Estate Law
Satisfied Customers: 6392
Experience:  20 years professional experience
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I am trying to build a bridge to a property that is inaccessibleI

Customer Question

I am trying to build a bridge to a property that is inaccessible
I received the go ahead from county planner and a structural engineer that there was no flood risk. At the last minute and many thousand dollars later North Carolina Dept. of Public Safety is requiring a no rise study to the tune of $15,000. My question is: How do I challenge this cost prohibitive regulatory snarl? The proposed bridge is 57' foot span across a small river. Every effort has been taken to preserve integrity of the river. Any help is appreciated.
Barbara T
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  Maverick replied 2 years ago.
Welcome! My name is Maverick. I very much enjoy what I do and I hope that you will benefit from this information.
What legal authority have they cited, if any, to require the study?
Customer: replied 2 years ago.
FEMA
Customer: replied 2 years ago.
Under the auspices of NC Dept of Public Safety.
Customer: replied 2 years ago.
I know FEMA is an eight hundred lb gorilla but the NC statute is vague as far as their point of intervention. They require the no rise study as I have said. Is there any way to challenge this regulatory shell game?
Customer: replied 2 years ago.
As long as I have blank boxes .. The County Planner , by his own admission, was new on the job when he stated the requirements- a no flood certificate. Unfortunately the engineer took 6 months to get it to Planners desk. In the interim Planner was appointed Regional FEMA manager so his tone changed. Meanwhile I am paying for his learning curve. I know this may be useless info but it's the reason I am where I am. I believe it would be unwise politically to attack the County Planner. I look forward to hearing from you.
Expert:  Maverick replied 2 years ago.
44 CFR Section 60.3(d)(3) states that a community shall “prohibit
encroachments, including fill, new construction, substantial
improvements, and other development within the adopted regulatory
floodway 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.” In order to comply with this regulation, local
communities must obtain, review, and approve a certification to that
effect prepared by a professional engineer and supported by hydraulic
modeling. This is commonly referred to as a “No-Rise” or “No-Impact”
certification, although these terms are not interchangeable.
So, if you want to challenge the need for a "no-rise" study, you first have to show that the above law does not, in someway or another, apply to your property or proposed construction.
Given the obscure nature of this issue, to get ideas on how to challenge this, I would suggest that you first find annotated version of the code of federal regulations [usually it is a maroon colored set of encyclopedic books kept at a local county law library or law school. Look up this code section and read the case excerpts underneath the statute to see how others may have handled this issue.
If you find an angle that allows you to argue that the study should not be required for your bridge, then you can sue the agency that is requiring it in a declaratory judgment action for a court order that says the study is not necessary. The links below may help:
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_1/Article_26.pdf
https://www.nccrimecontrol.org/div/EM/Documents/NFIP-No-RiseGuidanceDocument.pdf
http://federalpracticemanual.org/node/53
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Customer: replied 2 years ago.
Thank you for the response. It is obvious that you put some time into the research. I will pursue your suggestions. Thank you
Expert:  Maverick replied 2 years ago.
Your welcome. Please remember to assign a feed back rating so that JA will compensate me for my time. Thank you.

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