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1980 DEP Flood Map Trumps 2005 FEMA Map

In determining floodways, plains and zones, a FEMA map can only be used if a town does not have an existing DEP map.

Borough engineer, Margita Batistic, confirmed to Mayor Ann Subrizi that in the matter of flood maps, a 32-year old DEP map trumps a seven-year old FEMA map. 

During Tuesday's Planning Board meeting, Subrizi said that she had consulted with Batistic who informed her that if a town has an existing DEP map, which New Milford does, then the FEMA map cannot be used, or relied upon, in determining flood elevations. The FEMA map is primarily intended for use by the National Flood Insurance Program only.

Central to the recent Zoning Board hearings, is the developer's reliance on DEP flood maps that date to 1980. Members of New Milford's grassroots group , have been questioning experts regarding their position on the validity of the 1980 map as a tool for determining flooding on the  

Hekemian's engineer, , testified that he relied on the 1980 NJDEP state map because it is the state regulatory map and the one that Dipple said he is required to use in determining his calculations.

"If a state map is available we are required to use it," Dipple said.

Due to the flooding events that have occurred since the 1980 DEP map was created, residents want any updates to the map to reflect the reality of the area now under consideration for development by Hekemian.

During the regarding Hekemian's proposed development, members of the board, as well as many members of the audience, who have lived through Floyd, the Palm Sunday storm and Irene expressed concern that if the land is covered by impervious materials, the water will pool.

During that meeting, board attorney, Scott Sproviero, told Dipple that despite the flood maps that were on exhibit detailing the flood hazard area, the people of New Milford have lived through real storm events, citing the Palm Sunday storm and Hurricane Irene.

Sproviero said, "They know that the area floods." 

During a June meeting of the Planning Board, Subrizi reported that the NJDEP is working with FEMA to update their current flood map and showed a preliminary map outlining today's 100 and 500 year floodplain. (A copy of this draft map is available for view in the Building Department at Borough Hall.)

The 'flood plain' is the area adjacent to a body of water that is covered by floodwater when it rains. This area can shrink or expand depending on how much it rains. According to New Jersey land use law, the regulated flood plain is the area that would be covered by water during the “100 year storm” — a storm which has a 1 in 100 chance of occurring in any one year period. 

The flood plain is made up of two parts — the floodway and the flood fringe. The floodway is the inner area where floodwaters are deep and move fast. The floodway always includes the area where the water normally flows, and usually extends to the top of the bank and sometimes beyond. The flood fringe is the outer area where flood waters move more slowly, appearing more still, like a lake or pond.

According to New Jersey Land Use Law, a building in a floodway will block the water’s flow, backing up water and causing flooding upstream to worsen. A building in a flood fringe will prevent flood waters from spreading out, thus forcing floodwaters downstream faster and increasing downstream flooding. 

According to Subrizi, Batistic told her that upon reviewing all of the maps--the 1980 DEP map, 2005 FEMA map and the draft update to the 1980 DEP map-- none show the United Water property to be in the floodway. 

Subrizi told the board that the final version of the updated DEP map should be completed in approximately one year. 


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Lori Barton August 31, 2012 at 10:41 AM
While it is legal and required to use the 1980 flood map, it is unethical to ignore the 2005 FEMA map. ALL pertinent and relevant information should be considered. We are talking about people's lives here!
Ulises August 31, 2012 at 11:25 AM
Regardless of which map is used, Suez/United Water property by the high school was never intended to get built until Mayor Frank Debari changed the Master Plan. If our current M&C had any vision in preventing development along our waterways, which is only going to strain our services, roads, sewage system, increase flooding, etc... they'd reverse the changes DeBari's Master Plan has created today. The M&C are going to rezone this land because they claim they legally have to in order to avoid being sued by developers because there is this so-called COAH requirement - HOGWASH, I say. M&C, grow a set and undo what Frank DeBari started and change the Master Plan. It would avoid the possibility of getting sued, take the COAH requirement out of this parcel of land, and save the town a lot of future grief. Written into the 1970 master plan is this, "If, in the future, the Hackensack Water Company should, for any reason, abandon the filtering area adjacent to Main Street, this land should be reserved for open space purposes both to meet the need for such land and to preserve the integrity of the River. In keeping with the proposal to build a dam and improve the recreational opportunities along the Hackensack River, the undeveloped land along the river in the southwest section of the Borough should be reserved for such purposes." http://newmilford-nj.patch.com/articles/over-the-river-and-through-the-woods-lies-the-birthplace-of-bergen-county
Lori Barton August 31, 2012 at 11:51 AM
The M&C should be doing everything in their power to pressure our legislators and governor to provide legislation that acknowledges that we already have over 2000 apartments of affordable housing. Just because they were built before COAH went into effect doesn't negate the fact that these apartments exist and are affordable. When that legislation is enacted, we will no longer have to park our COAH obligation on this property and the vision of the 1970 master plan can be achieved. We elected these people to represent US, not to kowtow to developers.
robert byrnes August 31, 2012 at 12:48 PM
Don't know if anyone has the answer or experienced the same issue. When I purchased my house in 2001 I did not need flood insurance, I was later forced by my mortgage company to retain it when the 2005 FEMA map came out. I have since jumped through hoops and had my property cleared. So if a DEP map trumps a FEMA map, does that mean my mortgage company forced me to get insurance I did not need? Can I go after them for the money I had to pay?
TommyIce August 31, 2012 at 12:57 PM
The current crop of Republican council representatives (I use that word representative loosely) and Mayor ran on the platform of going against DeBari-ville. Yet here they are finally enabling "the dream" Why is our "leadership" (another loose term) so willing to be spineless? So willing to sell out their neighbors, their constituents? After all is done and that rape of the town is behind them, will they sleep peacefully in their beds knowing so many others have suffered ad lost? Do you think they will wish they could trade back for those days when they could have stood the line, up to the barbarian invaders and said No! Not on my watch! Not in my town! Not to my neighbors! It's time to put up or shut up, Mayor and Council.
Lori Barton August 31, 2012 at 03:50 PM
No, you still need flood insurance according to the FEMA map. The DEP trumps FEMA only in the area of development. This is why the DEP is useless. They do far more for developers than they do for the environment. You would think that anyone with an ounce of sense or any degree of morals would use the FEMA map. No, they're not required so they don't even take it into consideration. Hopefully, our elected officials will keep FEMA in mind and not rezone this property.
Denise August 31, 2012 at 04:10 PM
Flood Plain-the area can shrink or expand acoording to how much it rains. I still say that if UW opened and closed the Oradel dam properly when there is a known heavy rain storm coming, perhaps flooding wouldn't occur at all...... SOD OUT!!!!!
Dave Battaglia August 31, 2012 at 04:24 PM
@robert byrnes... The answer to your question is no. The FEMA map determines who must pay flood insurance. Anyone within the FEMA Special Flood Hazard Area must have flood insurance. The only way to get out of it is to prove that their map is incorrect by getting a Letter of Map Amendment (LOMA). This is a document from a surveyor that proves that the lowest ground elevation adjacent to your building is higher than the flood hazard elevation. The NJDEP map controls construction. Anyone within the NJDEP Flood Hazard Area is required to build in accordance with NJAC 7:13. Flood fringe construction is permitted with conditions. The FEMA map also has construction implications, but only when FEMA is more restrictive than NJDEP. The map's are not consistently different throughout the state. A municipality cannot simply kill a project they don't like. If the developer has proven that the design complies with regulations then the development must be permitted or the municipality risks spending a lot of money defending the denial in court. Which they will lose. The only option left is for objectors to buy the property themselves. It doesn't always make everyone happy, but these are the current rules of the game. For more info on LOMA's and NJDEP reg's feel free to peruse our Township's Important Flood Information webpage at www.peqtwp.org/flood. I have links there to all the regulations. Dave Battaglia Pequannock Township Engineer
M. August 31, 2012 at 05:59 PM
According to FEMA the developer of this property will likely need a LOMA.
John DeSantis August 31, 2012 at 07:19 PM
Irregardless of the maps and the flooding that has hurt so many folks in this town, the developer is asking for variances for a piece of property that is currently zoned for single family homes. He is proposing a huge super market, 221 apt. units, a 4 story parking garage, a bank, and a huge area of ground level parking. I think the town can legally and should morally deny this application. What makes you think the town would lose in court. If there were no variances involved or only minor ones you might be right. That is not the case. This is why it is so important that the Mayor and Council do not change the current zoning of this property.
Michelle August 31, 2012 at 08:37 PM
Mr. Battaglia, and suppose they wanted to build a 15-story building chock full of kids that we have to find classrooms for, or a 50-story building, or an empire state building, right there next to the high school? Does anything go? Does it not matter that people are going to be hurt by this development? A developer and/or property owner “is not allowed to adversely affect the property or rights of others. It is consistent with ancient legal principle, ‘Sic utere tuo ut alienum non laedas,” or “so use your own property that you do not injure another’s property.’” That is the issue here, and that is why people are upset. A whole community will be hurt by this. We can either lay down and let the cancer overtake us, or take a stand and fight. While I admire your pragmatism, the mentality you are displaying is the same mentality that let this whole country go down the tubes.
Barbara August 31, 2012 at 08:41 PM
Yes, people's lives. I would think professional would use the heist standard possible. Or at least common sense. Not with this case.
Barbara August 31, 2012 at 08:44 PM
As it is written, so it shall be done. New Milford Mayor and council do what is right. How you handle this issue is how you will be remembered. This is your legacy!
Dave Battaglia September 01, 2012 at 01:35 AM
I'm not familiar with the development beyond this article...so I'm not really in a position to discuss the merits or demerits of the specific application. I am vaguely familiar with the area having worked in Bergenfield and Allendale. I am very familiar with flooding though, by virtue of Pequannock being just as bad as it gets from that perspective. So I thought I could offer some general insight to Mr. Byrnes' question on flood insurance. It certainly isn't impossible for a developer to lose in court, just unusual. When a developer spends 10's or 100's of thousands of dollars on an application they generally make sure they have everything in order. If, as Mr. Desantis points out, there are major variances in play, then the Board may have more latitude to deny. A Board has to be careful what they specify as their reason to deny an application. They can't "morally" deny it. For example, if a Board member votes "nay" for a use variance, then that Board member cannot mention flooding when he explains his vote...because construction in the flood fringe is permitted. Instead, he has to explain how the site is not suited for that use based on the adjacent uses, or the intent of the municipal Master Plan, or something like that. I hope that this situation works out for the best of your community. As someone who continues to, daily, deal with people who have yet to recover from Irene, I certainly do not wish anything to be done to negatively impact flooding.
Pat September 01, 2012 at 02:37 AM
Michelle, there are land use laws that dictate the sizes of structures based on the zoned use. The developer is "proposing" the maximum allowed size building of the New Milford land use ordinance, that is 4 stories or 50 feet in the case of MFTH's (res E). I think what Dave is saying they will sue if they have to, and our town will more than likely loose. They have the ability to out spend us. Everyone needs to remember how this process works, I am guessing most do not. There will be a lot of give and take. What is proposed is most likely not what will be built. I do understand the emotion involved for most people, however this is a game of laws, ordinances and appeals. The end game is the developer will ultimately win, the question is to what extent. The developer has spend a good amount of money already, and if you think they are going to walk away I have bad news for you. The Mayors, council people, and the zoning board can only follow the rules as written. I am sure, contrary to many opinions, this is not the route they were hoping for.
Pat September 01, 2012 at 02:37 AM
cont. I will go on record and say this. I personally am not necessarily against development on that property. I do not like the current plan, but I do think there can be a smaller version that can work in town, I will be hated i am sure for this part, but I do not see this changing the flooding situation as I firmly believe that the dam and the policy's are the cause of our problems. I do not like seeing homes flooded and lives ruined. My very good friend lost his house in Irene. Not here in NM, but in Oakland. I have spent a year rebuilding his house, at night after my normal work and on weekends. It is truly heartbreaking watching the pieces try to be put back together, and dealing with the complete rip-off that is flood insurance. This is a very complicated case. There are multiple land use zones , developer and attorneys that fight these battles every day. They know the system better than the people that designed it. The property has been uses for commercial purposes for a very long time and an appeal will be very easy for them. It will have to be a mixed use of residential and business to be worth any money to a developer. I do think the town can have a good amount of control of the end product. There is NO decision that will make everyone happy. There will always be losers and winners, we need to get the best possible outcome for all the residents of this community.
Ulises September 01, 2012 at 03:06 AM
Pat, you seem to know a lot that goes on boro hall... A new Master Plan reversing all the previous mayor did sounds to me likes a worthier shot or leaving the zoning residential would be the easiest approach for now. Why won't this work for those that want the 1970 Master Plan reinstated, concerning this parcel of land, which calls for this property to remain open space? Just caving in to developers and because you think the flooding is all due to poor management by the water company is a meek explanation, never do you state overdevelopment as a key reason why flooding has worsen. Please keep in mind, the Mayor of Oradell, a man who sides with his constituents, has threaten to sue New Milford if our meek politicians decide to overdevelop this land.
Pat September 01, 2012 at 03:29 AM
Ulises, I hear what you are saying, however it is simply not that easy. A master plan means nothing and everyone knows that. The only way it could remain open space is if the boro owned it, and as we know they do not. It is privete property and the owner will sell it to whoever offers the most. The problem I see, and i do not work for the town and I am not an attorney, is the history of the land. The owners, Suez, has used that property for commercial purposes and that will hold up in court. It is not so much caving, as having your hands pretty well tied. The Oradell mayor can say whatever he wants, on what basis would he bring a law suit? ( this I will look into, as I do not know what possibilities are there) Trust me when I tell you, I am not looking for a fight with you or anyone else, I have an opinion, and until now I have kept it to myself. You have yours and I completely respect that. I am not looking to change anyone's mind. The over development is obviously a problem. This is where the land use laws and the ability of a town to control its own destiny need serious work. The problem is what is existing is a developers playground. They are very good at getting what they want.
Ulises September 01, 2012 at 03:58 AM
Pat, it's a commercial property with special tax breaks because it's a utility company. It's not a retail commercial zone. The master plan changes since 1970 changed it all. For you to say the master plan is meaningless, I beg to differ, and if means nothing, why is it alway referenced by all experts hired by the town and the developers. My question to whomever out there, why does a utility company have a parcel of land zoned residential to begin with? Suez/United Water only pays $58k in taxes and their property is assessed at $2M, how do they get away with bilking our town all these years with this tax assessment when their market value is over $7M, today, undeveloped??? A lot of funny business going on since the last and the current M&C, a lot!!!
Michelle September 01, 2012 at 04:24 AM
What are you saying Pat, that ignorance of the process is causing people to fight, and if they’d only learn what you already know, they would quit being such a nuisance and agree to this development? Or that simple-minded lay people like us can’t possibly win in court against people who do this every day? (Oradell/Walgreens?) Or because you want this development, that we should just allow them to imperviously cover 9 acres, and put our high school kids in harm’s way, not to mention all those people who live downstream? My hyperbole with the empire state building was made to point out the fact that this is an issue of “rights,” not because I truly feel they would be allowed to erect a skyscraper in New Milford. And I understood what Mr. Battaglia was saying, but I am not agreeing with the defeatism I’m hearing when he says we will lose. As for the flooding, visit the Sheffield in Englewood, a new Hekemian development much like what is being proposed here. The water that couldn’t infiltrate the ground they imperviously covered had to go somewhere during the last two floods that brought the water to their building’s foundation. As for winning, I still have faith in humankind. Not all judges can be bought off, etc. Everyone against this development knows the odds, but if we lose, so what. I’d rather be on the side of the people who had the courage to stand up to the Goliath, than those who folded and ran like sissys when his shadow entered their realm.
Michelle September 01, 2012 at 04:25 AM
David, thanks for the insights, we have an awesome Zoning Board, thank God, but every little bit helps!
Donovan September 01, 2012 at 06:10 AM
Courage and perseverance have a magical talisman, before which difficulties disappear and obstacles vanish into air — JOHN QUINCY ADAMS • Act boldly and unseen forces will come to your aid — DOROTHEA BRANDE • It is not the critic who counts, nor the man who points out how the strong man stumbled, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat; who strives valiantly; who knows great enthusiasms, great devotions; who spends himself in a worthy cause; who, at best, knows in the end the triumph of high achievement, and who, at worst, if he fails, at least fails while daring greatly, so that his place shall never be with those timid souls who know neither victory nor defeat — Theodore Roosevelt • The hope of a secure and livable world lies with disciplined nonconformists who are dedicated to justice, peace and brotherhood — Martin Luther King Jr. • Courage is the price that life exacts for granting peace — AMELIA EARHART • The possible’s slow fuse is lit, by the Imagination — EMILY DICKINSON • If you have faith as a grain of mustard seed... NOTHING will be impossible for you — Matthew 17:20, Bible
Pat September 01, 2012 at 01:15 PM
Michelle, I am quite sure that is not what I said at all. Fight it, I did not say not to. There is no need for the confrontational attitude. I am merely having a discussion about differing opinions.
Michelle September 01, 2012 at 02:44 PM
Look Pat, I don’t hate anyone who is for this development, but I am responding to your saying: “Everyone needs to remember how this process works, I am guessing most do not … There are multiple land use zones, developer and attorneys that fight these battles every day. They know the system better than the people that designed it … The end game is the developer will ultimately win … if you think they are going to walk away I have bad news for you … I personally am not necessarily against development on that property … I do not see this changing the flooding situation.” I am wondering if you have attended any of the SOD meetings to hear their convincing presentations; or whether you have been to the zoning board meetings to hear their ludicrous testimony. I’m wondering if you’ve checked out the site plans and visited Hekemian’s Brownstones in Englewood to get a feel for the monstrosity that is being proposed here. Or if you’ve been to Boulder Run and had the lady who had Hekemian’s Stop & Shop sprout up directly across the street from her express their fear and regret about the investment they made and thank you for allowing her to vent about the lack of sleep they were getting because of the light spillage and tractor-trailer traffic, and the thousands of dollars they are out in an effort to regain the peace in their home that they had prior to the development. cont...
Michelle September 01, 2012 at 02:45 PM
Cont… I’m wondering if you’ve seen your neighbors standing before these high-powered arrogant monsters struggling to ascertain how screwed they’re going to be once this thing goes down. I am also wondering how much you care about your neighbors when you make JOKES like: “I am waiting on SOD to say that fixing the firehouse will contribute to the flooding problem in the flood zone.” 9:07 pm on Friday, August 24, 2012 Pat http://newmilford-nj.patch.com/articles/committee-ok-d-to-explore-firehouse-expansion#comments. Or if you’re just armchair quarterbacking because you’d like to have a SuperShopRite. Well, I’d like to have a SuperShopRite too, but not at the expense of my neighbors and our highschool kids. I am inspired by SOD. I am sickened by Hekemian. I am saddened by what is happening to our town, and I am tired of watching my world crumble around me and doing nothing about it. There is a point where you don’t care if you lose, you just care that you are on the opposite side of the monsters.
John DeSantis September 01, 2012 at 03:29 PM
Pat, By no means should those who oppose this development consider conceding defeat. They take a position on an issue based on what they feel is right, not on whether the odds are in thier favor or not. Clearly, it is very difficult to win against a huge developer who has a well oiled machine already in place and prepared to squash any opposition, but it is not impossible. If they don't try they have no chance at all.
Pat September 01, 2012 at 03:46 PM
John I agree with you. The worst thing that happens is you lose and at least help change things. I think the more important fight will be to change land use laws and regulations. Things will only get worse as cash strapped towns make deals with the devil. Although I may not completely agree with SOD, I must admit there is a part of me that is proud to see them stand up and fight for what they truly believe in. That is a truly unique American ability.
Robert September 02, 2012 at 05:46 PM
That is kind and gracious and courageous of you to say Pat SOD!
Michelle September 04, 2012 at 07:02 AM
They are respected members of our community, that's why we elected them. Let's keep it in perspective. If we are to fight this thing, we will have to stick together as a community. United we stand...on all fronts.
Denise September 08, 2012 at 04:14 PM
As I have said many times before I may be naive, however, if there is a law saying that an apartment building cannot be more 2 stories in NM and this developer wants to build 4 stories is that not breaking the law?


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