WHEREAS, Substitute Ordinance BL2002-1021 was adopted by the Metropolitan Council and became effective on April 5, 2003;

WHEREAS, a process is needed for properties containing natural floodplain and/or floodway areas and where development proposes to disturb, alter, modify, change, or encroach on twenty percent or more of the natural floodplain and/or floodway areas;

WHEREAS, development within the floodplain may occur provided development does not jeopardize the long-term, environmental viability of rivers and creeks within Davidson County nor the Metropolitan Government of Nashville and Davidson County’s eligibility for federal or state-funded flood insurance or other forms of disaster relief.

NOW, THEREFORE, BE IT ENACTED BY THE COUNTY OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY:

Section 1. By amending Section 17.28.040.A.1, “Floodplain/Floodway Development Standards”, by modifying text as follows:

A. 1. Preserved floodplain. Except as noted below, aAll development proposed on property that is not developed, as defined herein, encumbered by natural floodplain or floodway, as of April 5, 2003 the effective date of this ordinance in this section, shall leave a minimum of fifty percent of the natural floodplain area, including all of the floodway area, or all of the floodway area plus fifty feet on each side of the waterway, whichever is greater, undisturbed and in its original, natural state. The preserved floodplain shall be adjacent to the floodway or, as otherwise approved by the zoning administrator or by the metropolitan planning commission if the property is the subject of a subdivision or rezoning application. The clearing of trees and brush within the undisturbed area shall be prohibited. For purposes of this subsection, a portion of a lot shall be deemed to be developed if a grading or building permit has been issued or, if a portion of the lot has been disturbed by grading or, if a portion of the lot is improved with any material that substantially reduces or prevents the infiltration of stormwater by the total horizontal area of the lot including, but not limited to, roofs, streets, sidewalks and parking lots paved with asphalt, concrete, compacted sand, compacted gravel or clay. Evidence that a portion of the property is developed shall include grading or building permits and/or aerial photographs. Absent grading or building permits, a lot shall not be deemed developed under this section if the use of the property was for agricultural activities. Except as noted below, no encroachment into the preserved natural floodplain area shall be permitted.

Section 2. By amending Section 17.28.040.B, “Floodplain/Floodway Development Standards”, by modifying text as follows:

B.A. Encroachments Affecting 20% or Less of the Preserved Natural Floodplain Area. Limited encroachments into the preserved natural floodplain may be authorized as a variance by the Board of Zoning Appeals Stormwater Management Committee following a written recommendation from the Stormwater Management Committee, as provided in Chapter 17.40, Article VIII of this title and Chapter 15.64 of the Metropolitan Code of Laws. Such variances shall be approved only if the Committee Board of Zoning Appeals finds that the encroachment(s) reduces the flood danger or would improve and enhance the environmental quality of the affected floodplain section. Of the fifty percent of the natural floodplain area required to be preserved, variances granted under this section shall not be approved for greater than twenty percent of this floodplain area required to be preserved. See Table 17.28.040 for encroachment examples.

Table 17.28.040.A: Encroachment Examples

Section 2. By amending Section 17.28.040, “Floodplain/Floodway Development Standards”, by adding the following new paragraph as paragraph “B” and renumbering paragraphs “C”, “D”, “E”, and “F” to read “D”, “E”, “F”, and “G”:

B. Encroachments Affecting More Than 20% of the Preserved Natural Floodplain Area. Development (including all phases) may disturb, alter, modify, change or encroach on more than twenty percent of the natural floodplain and/or floodway area required to be preserved, provided the base zoning district has not changed after April 5, 2003, and the applicant submits and the metropolitan council approves, a planned unit development district or urban design overlay district application, as provided below.

1. Overlay District Applied. The applicant shall submit an application for a planned unit development district as set forth in Chapter 17.36 along with a master development plan created pursuant to this section, or an application to apply an urban design overlay district as set forth in Article XIII of this title.

a) A request for a planned unit development district or urban design overlay district may not be accompanied by a concurrent request to change the base zoning.

b) Any planned unit development district that utilizes a cluster lot subdivision for single-family or two-family development shall comply with the provisions of Section 17.36.070 regarding the amount of floodway and floodplain areas required to be preserved and not the amount specified under “Preserved Floodplain” in Section 17.28.040. Notwithstanding the above, all other provisions of Section 17.28.040 shall apply.

c) The planning commission shall consider a planned unit development district or an urban design overlay district request under this section, after it has been reviewed by the Stormwater Management Committee. The Committee shall provide a written recommendation to the planning commission, prior to the commission meeting, based upon the proposed development complying with all of the following criteria:

I) The encroachment does not jeopardize the long-term, environmental viability of rivers and creeks within Davidson County;

II) The encroachment does not jeopardize the Metropolitan Government of Nashville and Davidson County’s eligibility for federal or state-funded flood insurance or other forms of disaster relief;

III) The encroachment does not inhibit, prevent, constrain, restrict, or impede the design or construction of any greenway or park as shown on the adopted general plan; and,

IV) The encroachment does not create or materially increase a flooding hazard to persons or other property located within the natural floodplain and/or floodway area.

4. Subsequent Change in Base Zoning. Following adoption of a planned unit development district or urban design overlay district pursuant to this section, any subsequent change in the base zoning district classification shall eliminate the right under this section to disturb, alter, modify, change or encroach on more than twenty percent of the natural floodplain and/or floodway area required to be preserved.

Section 3. By amending Section 17.28.040.E.2, “Residential Development: Cluster Lots”, by adding the following text:

2. Cluster Lots. A single and/or two-family subdivision proposed on property containing natural floodplain and floodway areas is encouraged to employ the cluster lot option of Sections 17.12.080 or 17.36.070. Any cluster lot subdivision proposed pursuant to Section 17.36.070, and which intends to encroach into the natural floodplain area required to be preserved by that section shall also comply with A or B of Section 17.28.040. Residential lots under the cluster lot option may be clustered within the manipulated areas of the natural floodplain. Any residential lot, or any portion of a residential lot, containing natural floodplain shall be designated as a "critical lot" and minimum finished floor elevations shall be established on the final plat of subdivision approved by the metropolitan planning commission and the department of public works. Protected floodway and floodplain areas shall not be excluded from the calculation of gross land area for purposes of determining lot yield pursuant to Section 17.12.080.

Section 4. By amending Section 17.36.070.B, “Residential Standards: Common Open Space”, for a planned unit development district, by adding the following text:

B. Common Open Space. Except for those portions of a master development plan required for the installation of streets and essential utilities, the following areas shall be designated as common open space and protected by a recorded plat in accordance with Sections 17.28.040 and 17.40.120.

Section 5. By amending Section 17.36.080, “Non-Residential and Mixed-Use Standards” for a planned unit development district, by modifying the section title and inserting the following text:

• Multi-family, Nnon-residential, and mixed-use standards.

  C. Floodplain development. Any master development plan proposing to disturb, alter, modify, change, or encroach on any portion of the natural floodplain and/or floodway area shall comply with Section 17.28.040 of this title.

Section 6. By amending Article VIII, “Urban Design Overlay District”, by adding a new section, “17.36.305” as follows:

17.36.305 Floodplain development.
Any design plan proposing to disturb, alter, modify, change, or encroach on any portion of the natural floodplain and/or floodway area shall comply with Section 17.28.040 of this title. Following adoption of an urban design overlay district, any subsequent change in the base zoning district classification shall eliminate the right under Section 17.28.040.B to disturb, alter, modify, change or encroach on more than twenty percent of the natural floodplain and/or floodway area required to be preserved.

Section 7. By amending Sections 17.40.120.F.1b and 17.40.120.F.4, “Changes to a Planned Unit Development District”, by adding the text that follows:

1b. Modification of special performance criteria, design standards, or other requirements specified by the enacting ordinance, or any floodplain encroachment specified by the enacting ordinance or shown on the council approved plans, shall be authorized by council ordinance;

4. Subsequent Change in Zoning District. Following adoption of a PUD district, no subsequent change in zoning district classification shall occur within that PUD without concurrent reapproval of the master development plan by the planning commission and council., except any subsequent change in the base zoning district classification for a PUD approved pursuant to Section 17.28.040.B shall eliminate the right under that section to disturb, alter, modify, change or encroach on more than twenty percent of the natural floodplain and/or floodway area required to be preserved.

Section 8. By amending Section 17.40.130.E, “Changes to an Urban Design Overlay District”, by adding the text that follows:

E. Changes to an Urban Design Overlay District. An application to modify an approved urban design overlay district shall be filed with the planning commission. The planning commission shall review all proposed changes according to the procedures of subsection C of this section. A proposed change in the geographic boundary of an urban design overlay district on the official zoning map or any floodplain encroachment approved pursuant to Section 17.28.040.B shall be considered by the council according to the procedures of Article III of this chapter (Amendments).

Section 9. By amending Section 17.40.340, “Limits to Jurisdiction”, by adding the text that follows:

The board shall not grant variances to the land use provisions of Section 17.08.030, the density or floor area ratio (FAR) standards of Tables 17.12.020B and 17.12.020C, nor the required size of residential lots approved by the planning commission under the authority of Section 17.12.070, (Lot averaging), Section 17.12.080, (Cluster lot option) or Section 17.36.070C (PUD), nor any floodplain encroachment approved pursuant to Section 17.28.040.B. Further, the board shall not act on a variance application within a planned unit development (PUD), urban design overlay or institutional overlay district without first considering a recommendation from the planning commission.

Section 10. By amending Section 17.40.530, “Zoning Permit Application”, by modifying the text that follows:

17.40.530 Zoning permit application.
The application requirements for a zoning permit shall be established by the zoning administrator in a form and content appropriate to demonstrate that all structures or use of property will be done in compliance with all applicable provisions of this code. No zoning permit shall be issued:

A. Prior to approval of a final site plan by the planning commission for properties located within a planned unit development (PUD) overlay district, or any other overlay district requiring approval by the planning commission under Section 17.40.170B;

B. For development within a floodplain overlay district or containing natural floodplain or floodway as provided in Section 17.28.040, prior to approval of a grading and drainage plan by the department of water servicespublic works;

C. For erection of a structure within the airport overlay district prior to approval by the metropolitan Nashville Airport Authority;

D. For an adult entertainment establishment unless all locational standards established by Chapter 17.36, Article VII are satisfied;

E. For a special exception use prior to approval by the board of zoning appeals; or

F. For any manufacturing use or other use, where a compliance certification is required pursuant to Section 17.28.103 of this code.

Section 11. Be it further enacted, that this ordinance take effect immediately after its passage and such change be published in a newspaper of general circulation, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: John Summers