Model Code
One key use of 1041 regulations is to address development activity in natural hazard areas. Three specific natural hazards can be addressed through 1041 regulations:
- Flood
- Geologic hazard areas
- Wildfire hazard areas
Below are samples of 1041 permit review language for each of these natural hazard designations. While 1041 regulations may be tailored to fit individual conditions, much of the language found in local 1041 regulations is directly from the state statute. Model language is in beige shading. Commentary is located in the column at the right. The model language is based on existing ordinances from communities around the state, including municipalities and counties. The language is illustrative only; consult local counsel to tailor language for your jurisdiction.
Commentary
Location of 1041 Regulations: Most local governments adopt separate 1041 regulations that re-state the procedures included in state statutes. However, some have merged their 1041 process with other land use approval processes to minimize repetition and consolidate review times.
Authority for External Review: 1041 powers also allow local jurisdictions to review and regulate projects proposed by a state agency, other governmental authority, or special district that may otherwise be exempt from local land use review and permitting procedures.
Flood
- Definition and boundaries: The requirements and standards in this section apply to mapped floodplain hazard areas as depicted in the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map (FIRM), National Flood Insurance Program (NFIP), and to areas later mapped and found to be in flood hazard areas.
- Floodplains shall not be designated by [City Council or Board of County Commissioners] unless the Colorado Water Conservation Board (CWCB), through the local conservation district, identifies such area for designation.
- These regulations apply if development is not otherwise regulated under other provisions of this code regulating floodplains.
- Standards for Review: The permit authority shall grant approval of a development proposed in a flood hazard area if the following standards, in addition to the general standards for 1041 natural hazard area review, are met:
- Land use shall preserve the integrity of the flood hazard area by not altering or impacting it in any way which is likely to pose a significant threat to public health or safety or to property (including the subject property, other impacted properties, or the environment).
- Development that, in time of flooding, will likely pose a significant threat to public health or safety or to property (including the subject property, other impacted properties, or the environment), shall be prohibited. In determining whether there will likely be a significant threat, the following factors shall be considered:
- Creation of obstructions from the proposed development during times of flooding;
- Vulnerability of the proposed development to flooding;
- Use of flood protection devices or floodproofing methods;
- Nature or intensity of the proposed development;
- Increases in impervious surface area caused by the proposed development;
- Increases in surface runoff flow rate and amount caused by the proposed development;
- Increases in flood water flow rate and amount caused by the proposed development;
- Proximity and nature of adjacent or nearby land uses;
- Impacts to downstream properties or communities; and
- Impacts on shallow wells, waste disposal sites, water supply systems, and sewage disposal or on-site wastewater systems.
- Development shall comply with all other Floodplain regulations of this code.
Flood Hazard Mapping: Some communities may use other sources for their flood hazard mapping. Sources normally used by local authorities to set floodplain boundaries and enforce regulations should be referenced here.
Permit Authority: The permit authority is authorized by the local governing body and should be identified along with the process for designating a natural hazard area for 1041 regulations in the procedural section of the local land development code.
Geologic Hazard Area
- Definition and boundary: All geologic hazard areas delineated on the Geologic Hazard Map for [name of local government], available at the [Planning Department], are subject to review and permitting under this section. Geologic hazard areas included on the Geologic Hazard Map are defined as follows:
- "Avalanche" means a mass of snow or ice and other material which may become incorporated therein as such mass moves rapidly down a mountain slope.
- "Expansive soils and rocks" means any mineral, clay, rock or other type of geologic deposit having the property of absorbing water with an accompanying swelling to several times their original volume.
- "Geologic hazard" means a geologic phenomenon that is so adverse to past, current, or foreseeable construction or land use as to constitute a significant hazard to public health and safety or to property. The term includes, but is not limited to: avalanches, landslides, rock falls, mudflows, unstable or potentially unstable slopes, seismic effects, radioactivity, and ground subsidence.
- "Geologic hazard area" means an area which contains or is directly affected by a geologic hazard.
- "Ground subsidence" means a process characterized by the downward displacement of surface material caused by natural phenomena such as removal of underground fluids, natural consolidation or dissolution of underground minerals, or man-made phenomena such as underground mining.
- "Initial control area" means an area suspected, but not finally determined, to be a natural hazard area or a mineral resource area."Landslide" means a mass movement where there is a distinct surface of rupture, or zone of weakness, which separates the slide material from more stable underlying material.
- "Mudflow" means a flowing mass of predominately fine-grained earth material possessing a high degree of fluid during movement.
- "Nonconforming use" means any structure, development, or land use in existence as of the date of the adoption of these regulations, and not permitted under the terms and provisions of these regulations.
- "Radioactivity" means a condition related to various types of radiation emitted by natural radioactive minerals that occur in natural deposits or rocks, soils, and water.
- "Rock fall" means the rapid free-falling, bounding, sliding, or rolling of large masses of rock or individual rocks.
- "Seismic effects" means direct and indirect effects caused by a natural earthquake or a man-made phenomenon.
- "Unstable or potentially unstable slope" means an area susceptible to a landslide, a mudflow, a rock fall, or accelerated creep of slope-forming materials.
- Standards for Review: The permit authority shall approve an application for a permit for development in a geologic hazard area if all of the following criteria are met:
- Provision shall be made for the long-term health, welfare, and safety of the public from geologic hazards to life, property, and associated investments.
- Permitted land uses, including public facilities, which serve such uses shall avoid or mitigate geologic hazards at the time of initial construction.
- Man-made changes shall not initiate or intensify adverse natural conditions within a geologic hazard area.
- Recommendations concerning the proposed development in the designated geologic hazard area by the Colorado Geological Survey shall be solicited and considered. The Colorado Geological Survey shall be allowed no less than twenty-four (24) days in which to respond to such referrals.
Geologic Hazards: Each local community should include only those geologic hazards mapped in their community and found within the area designated as a geologic natural hazard. The definitions shown here are from the state statute. Most communities incorporate the state definitions and procedures into their 1041 regulations.
Review by State Agencies: Colorado statutes (ยง24.65.1-301 and 302) state that it is the function of local governments to receive recommendations from state agencies, and it is the function of state agencies to provide recommendations and technical assistance concerning the designation and guidelines for matters of state interest.
Wildfire Hazard Area
- Definition and boundary: All wildfire hazard areas delineated on the Wildfire Hazard Map for [name of local government], available at the [Planning Department or equivalent], are subject to review and permitting under this section.
- Standards for Review: The permit authority shall approve an application for a permit for development in a wildfire hazard area if all of the following criteria are met:
- Any authorized development will have adequate roads for service by fire trucks, fire-fighting personnel, and other safety equipment, as well as fire breaks and other means of reducing conditions conducive to fire.
- All precautions required to reduce or eliminate wildfire hazards will be provided for at the time of initial development.
- A Wildfire Mitigation or Forest Management Plan will be prepared by a professional forester, reviewed and approved by [name of local government] [Planning Department or equivalent] and executed prior to issuance of building permits.
- The development will adhere to the guidelines and criteria for Wildfire Hazard Areas promulgated by the Colorado State Forest Service.