(A) The Ashe County Planning Board as established by the County Board of Commissioners, hereinafter referred to as the “Appeal Board”, shall hear and decide requests for variances from the requirements of this chapter. In the event an appeal board is not designated, the County Board of Commissioners shall act as the appeal board.
(B) Any person aggrieved by the decision of the Appeal Board may appeal such decision to the Court, as provided in G.S. Chapter 7A.
(C) Variances may be issued for:
(1) The repair or rehabilitation of historic structures upon the determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and that the variance is the minimum necessary to preserve the historic character and design of the structure.
(2) Functionally dependent facilities if determined to meet the definition as stated in § 151.05, provided provisions of division (1), (2), (3), and (5) of this section have been satisfied, and such facilities are protected by methods that minimize flood damages.
(3) Any other type of development, provided it meets the requirements stated in this section.
(D) In passing upon variances, the Appeal Board shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this chapter, and:
(1) The danger that materials may be swept onto other lands to the injury of others;
(2) The danger to life and property due to flooding or erosion damage;
(3) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;
(4) The importance of the services provided by the proposed facility to the community;
(5) The necessity to the facility of a waterfront location as defined in § 151.05 as a functionally dependent facility, where applicable;
(6) The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;
(7) The compatibility of the proposed use with existing and anticipated development;
(8) The relationship of the proposed use to the floodplain management program for that area;
(9) The safety of access to the property in times of flood for ordinary and emergency vehicles;
(10) The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; and
(11) The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges.
(E) A written report addressing each of the above factors may be submitted with the application for a variance.
(F) Upon consideration of the factors listed above and the purposes of this chapter, the Appeal Board may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter.
(G) Any applicant to whom a variance is granted shall be given written notice specifying the difference between the Base Flood Elevation (BFE) and the elevation to which the structure is to be built and that such construction below the base flood elevation increases risks to life and property, and that the issuance of a variance to construct a structure below the base flood elevation will result in increased premium rates for flood insurance up to $25 per $100 of insurance coverage. Such notification shall be maintained with a record of all variance actions, including justification for their issuance.
(H) The Floodplain Administrator shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency (FEMA) and the State of North Carolina upon request.
(I) Conditions for variances:
(1) Variances shall not be issued when the variance will make the structure in violation of other federal, state, or local laws, regulations, or ordinances. Variances shall not be issued within any designated floodway or non-encroachment area if the variance would result in any increase in flood levels during the base flood discharge.
(2) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(3) Variances shall only be issued prior to development permit approval.
(4) Variances shall only be issued upon:
(a) A showing of good and sufficient cause;
(b) A determination that failure to grant the variance would result in exceptional hardship; and
(c) A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.
(J) A variance may be issued for solid waste disposal facilities, hazardous waste management facilities, salvage yards, and chemical storage facilities that are located in special flood hazard areas provided that all of the following conditions are met.
(1) The use serves a critical need in the community.
(2) No feasible location exists for the use outside the special flood hazard area.
(3) The reference level of any structure is elevated or floodproofed to at least the regulatory flood protection elevation.
(4) The use complies with all other applicable federal, state and local laws.
(5) The county has notified the Secretary of the North Carolina Department of Crime Control and Public Safety of its intention to grant a variance at least 30 calendar days prior to granting the variance.
(Ord. passed 9-21-09; Am. Ord. passed 12-19-22)