GONZALES — Facing criticism they've been dragging their feet, Ascension Parish officials are taking early steps to cap the amount of dirt builders can use in raising homes and to establish new financial requirements to maintain detention ponds, a key flood protection method now left to homeowners to keep up.
In response to the August 2016 flood that inundated much of the area, the moves come amid public criticism about the way the parish has developed its lowest-lying areas and in an election year for Parish Council members and the parish president.
The proposed rules, which recently received backing from the council's key policy making committee and a preliminary nod of the full council, would limit construction-related use of dirt, or fill, to 3 feet high. That rule would broaden a 3-foot limit already in place for some small-scale homes to include medium-sized lots and neighborhood-sized and commercial projects.
The parish legal adviser has been directed to draw up new ordinances ahead of workshops and a public hearing, though some question whether the new height requirements would be as beneficial as advertised, and also whether the new set of rules could withstand a legal challenge.
Under the proposed guidelines, in the lowest parts of Ascension, new homes and businesses that need to be higher off the ground than 3 feet to comply with parish elevation rules would have to use alternative means, such as chain walls or pier-and-beam construction, to meet the requirements.
The proposed rules would allow dirt and the other methods to be used in combination with one another, however.
The fill policy often comes into play when dirt is dumped on land naturally below the projected height of a 100-year flood, so new homes can sit above that level after construction.
Often said colloquially as "being in the flood plain," these low-lying lands are projected, without fill, to take on water during the benchmark inundation used for insurance purposes, the 100-year flood. That flood has a 1 percent chance of happening in any given year.
One development group is already saying the proposed changes in Ascension would raise the cost of construction and price out some homebuyers, though some advocates point to past parish development restrictions, like road impact fees, that have passed amid similar concerns and haven't halted Ascension's growth patterns.
Karen Zito, executive director of the Capital Region Builders Association, pointed to a National Association of Home Builders study that found a $1,000 increase in the cost of a median-priced home in the Baton Rouge area would knock 395 households out of the market.
"When the development costs increase, so does the lot and ultimately the cost of the home," Zito said.
In Ascension, subdivision developers haven't had limits on fill because they have long been required to build detention ponds to mitigate against flood impact on their future neighbors, but that practice has drawn criticism, in part, over how well the ponds work and how well they are maintained.
The proposed ordinance would still require detention ponds for rainfall runoff, employing a tougher 25-year standard adopted last year, and require mitigation of dirt used up to the height of the 100-year flood.
For many years, the parish has not taken responsibility to maintain these ponds, except in very limited circumstances. That job has been left to homeowners.
Under the proposed rules, the parish would not take on added responsibility but require that developers or homeowners associations file maintenance bonds for newly built ponds.
Councilman Bill Dawson said he also would also like to start requiring inspections of newly built ponds, though that language didn't appear in versions of the ordinance circulating last week.
But even as Parish Council members pushed forward the drainage recommendations, which have been stalled since last year after the parish paid engineering consultant HNTB to develop them, other doubts remained.
The legal questions came up after HNTB engineering consultant Melissa Kennedy said last week the 3-foot cap is an expansion of what the parish already used but that she didn't know how that cap number first became law in Ascension.
Council Chairwoman Teri Casso had said to her colleagues on the panel last week that she was concerned that proposed “one-size-fits-all” rules would be considered arbitrary, a key legal term that can be grounds to block government action in court. In reply, Kennedy told the council, “Where the original 3 foot came from, that originally was in there, I do not know.”
Later, O'Neil Parenton Jr., the parish attorney, told Casso he could not find another parish or city that has an absolute cap. He said many employed "net zero fill" policies that rely on mitigation to counteract the effect of dirt. Others had specialized fill requirements based on studies of drainage basins.
"If the number 3 comes up, … is found to be arbitrary, then you've got a problem," Parenton said.
Kennedy has explained to parish officials that the 3-foot cap she used was part of an initial cleanup of the parish's ordinances and policies and that more-localized fill restrictions — potentially even no fill — would be required through basin-level studies yet to be done.
Councilman Daniel "Doc" Satterlee, who has been one of the more vocal advocates for restricting the use of fill, said he doesn't look forward to additional studies but believes what HNTB has proposed so far is a good starting point until those studies can be done.
"We need to start drawing some lines in the sand," Satterlee said. "This is a beginning line."
He also questioned that if the 3-foot cap posed such a legal risk, why haven't the parish's rules already sparked a legal challenge.
Asked about that Monday, Casso said the difference is these changes would apply the cap more widely.
"I think the more restrictive you get across the parish, the more likely it is to draw litigation," Casso said. "This is getting is very broad and starting to cover a lot of property."
Casso, who said she doesn't want to see the changes put on the back burner, said these questions are why she wanted to wait until LSU finished an economic impact analysis of proposed fill limits in May. She said she plans to use the coming workshops to learn more about how the new rules would work.
"I want to understand it, and I don’t want to put us in jeopardy," she said.