News

County eases restrictions on development in floodways

By Bill Moss, Published: October 25, 2023

Brushing aside a planning board recommendation for denial, a fire chief’s warning that it could endanger the public and a prediction from their fellow county commissioner that the county will see a “cascade” of permit applications, Henderson County commissioners last week opened the door to development close to streams, creeks and rivers.

By approving a text amendment in the county’s land development code, the board in a 3-2 vote relaxed the county’s strict prohibition against building in the floodway — the flood-prone land closest to waterways.
The text amendment means landowners and developers may now apply for a permit to build in floodways if they receive a “no-rise” certification from an engineer showing that “the encroachment will not result in any increase in the flood levels” during a flood. The county's land development code currently bars any fill or construction in the floodway.

“I believe that if this board chooses to approve this text amendment, I think we’re going to see an increase in these applications,” Commissioner Bill Lapsley, who is retired from a 45-year career as a civil engineer, warned his colleagues. “And I believe that when this board is presented with all the technical information, it’s going to be very hard to say no. When the engineers prove their case and the federal and state regulations say it’s allowed, I think this board is going to approve them and I think once we do that it sets a precedent and I think it’ll just cascade.”
Lapsley recalled that as a working engineer involved in dozens of large developments around the county he was intimately involved in the discussions in 2005 when the Board of Commissioners adopted the current rules governing development in federally designated floodplain zones.
“And I was very vocal in my support of allowing fill” within parts of the floodplain — the area farther away from waterways than floodways, he said. “The debate on this issue of filling in the floodplain was vigorous and considered both the individual property rights perspective and it considered the community impact perspective.”
County Commission Chair Rebecca McCall joined Lapsley in voting against the amendment, citing the potential for riverside development to displace agricultural land.
“Everybody knows I’m an advocate for farmland preservation,” she said. “We have about roughly 15-16,000 acres of farmland right now and it’s dwindling fast.”

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Michael Edney, David Hill and Daniel Andreotta voted yes.

Edney suggested the change is inconsequential because floodway land makes up less than 1 percent of the county’s total acreage.

“Things were different” in 2005, he said. “The board is obviously different. And they created what I would describe as a draconian flood ordinance that’s the most strict in the state or at least locally. All we’re doing here is giving them permission to ask.”

Planning board says no

The planning board voted 5-2 last month to reject the idea — the second time this year that the advisers had swatted down an effort to ease building restrictions in flood zones —after members warned that the change would lead to a loss of farmland and potentially endanger the public by causing more hazardous floods.
“Why are we sitting here discussing the possibility of exacerbating what is already a very serious problem in Henderson County?” Rick Livingston, who is chief of Mills Fire & Rescue, asked his fellow planning board members at the Sept. 21 meeting. “If we approve this tonight, I want this board to just be aware that what we’re doing is opening the floodgates for further fill in our floodplain and our floodways.”
While the planning board heeded Livingston’s warning, three county commissioners ignored Lapsley’s.
“In our role as county commissioners we’re tasked with looking beyond the technical aspects of the issue,” he said. “We have to consider the impact of allowing widespread filling of floodplain areas across the county. Just because the technical aspects of it says we can do this, that doesn’t mean we should do it.”