Sec. 7-11-7. Flexible development standards.

(a)   Purpose. The purpose of this section is to provide the planning and development director, design review boards, and city council, as applicable, with the authority to allow deviations from the development standards for setbacks, front and corner side setbacks, lot area and dimension, number of parking spaces, signage, open space, landscaping, height, and building floor area set forth in this chapter provided that certain conditions exist. The intent of this section is to promote the orderly and efficient development of property.

(b)   Approval of flexible development standards. Regardless of the minimum development standards otherwise required in this Code, the planning and development director shall administer the following flexible development standards for the purpose of facilitating the orderly development and redevelopment of property within the City of Asheville. Determination of the applicability of flexible development standards shall be made by the planning and development director, design review boards, and city council, as applicable and as provided in this section. The planning and development director, design review boards, and city council may place conditions on an approval to assure that the circumstances which warranted the application of the flexible development standards are maintained. Decisions by the planning and development director shall be in writing and may be appealed to the board of adjustment by following the procedures for such appeals provided in section 7-6-2 of this chapter.

(c)   Flexible development standards permitted. The cumulative total of any flexible development standard applied to a property by category or location shall not exceed the maximums set forth in this section. The planning and development director shall maintain appropriate records to insure compliance with this provision.

(1)   Setbacks. The planning and development director is authorized to approve requests that deviate from required setbacks set forth in article VIII of this chapter as follows:

a.   Building additions - all zoning districts. Setbacks may be adjusted when flexibility is needed to accommodate a building addition that is less than 50 percent of the pre-existing gross floor area. In these instances, a deviation of ten percent or 24 inches, whichever is greater, may be granted upon determining that one or more of the following conditions exists:

i.   The lot does not meet the dimensional standards established for the zoning district in which it is located.

ii.   The structure is physically in line with an existing, legally established wall or walls of a principal structure already within the minimum setback area.

iii.   The part of the proposed structure that would encroach into the minimum setback area is less than 50 percent of the width of the affected building facade(s), provided the part of the structure that would encroach into a front setback shall either be open, unheated space (such as a porch or screen room) or not subject to occupancy (such as a chimney).

iv.   The part of the proposed structure that encroaches into the minimum setback area is necessitated by a life-safety code, flood hazard reduction, Americans with Disabilities Act standard, or other public safety code requirements.

b.   Structures located in local historic districts and local historic landmarks. Setbacks may be adjusted for structures undergoing design review when flexibility is needed in order to comply with design standards. In these instances setbacks may be adjusted as follows:

i.   Primary structures. Setbacks may be adjusted up to ten percent or 24 inches, whichever is greater.

ii.   Accessory structures. Side and rear setbacks may be adjusted up to 36 inches.

(2)   Parking garages and parking lots. Except for parking required for residential development of less than five units, the planning and development director is authorized to approve parking garages and parking lots in connection with a permitted use that has up to 25 percent less than the required number of spaces set forth in article XI of this chapter upon determining that one or more of the following conditions exists:

a.   The applicant is proposing an adaptive reuse that does not expand the pre-existing floor area of an existing structure with a permitted use.

b.   The applicant is constructing an addition to an existing structure or site and sufficient new parking will be provided to accommodate the additional square footage without reducing the amount of parking serving the existing structure or site prior to the addition.

c.   The proposed parking lot or garage will allow the preservation of an existing aquatic buffer or floodway.

d.   The proposed parking lot or garage will accommodate a tree canopy preservation area where the entirety of the requirement is met by preserving existing canopy.

These reductions may not be used in conjunction with reductions offered elsewhere in this chapter.

(3)   Variances. No variances shall be allowed under article VI of this chapter with regard to deviations from development standards that have been approved pursuant to this section of the city Code nor shall any deviations from these development standards make void or otherwise modify any variance decision by the board of adjustment.

(Ord. No. 2637, § 1(a), 11-9-99; Ord. No. 2777, § 1(j), 12-19-00; Ord. No. 2896, § 1, 2-12-02; Ord. No. 2912, §§ 1(a)—1(c), 4-9-02; Ord. No. 3118, § 1, 5-11-04; Ord. No. 3156, § 1, 8-24-04; Ord. No. 3417, § 1(d), 11-28-06; Ord. No. 4361, § 1ii, 3-23-21)

Sec. 7-11-8. Sidewalk requirements.

(a)   Purpose. The purposes of this section are to insure that adequate provision of transportation and other public requirements, the promotion of health, safety and the general welfare and the coordination of streets and other public facilities are considered in the development and use of property and that development and use of property are done in accordance with an adopted City of Asheville (herein "city"), transportation or corridor plan, including but not limited to such plans as the Transportation Improvement Program (TIP), greenway, neighborhood, small area, and pedestrian thoroughfare plans. The city council hereby incorporates by reference as if set forth in full herein the findings of the city's pedestrian thoroughfare plan and further finds and declares that the construction of sidewalks advances those interests of the city and, in order to accomplish those purposes, this section sets out requirements for the construction of sidewalks and, where a developer requests it and certain conditions exist, for the payment of a fee in lieu of the requirement for construction of sidewalks.

(b)   Guidelines for requiring sidewalks. Sidewalks shall be required for all new construction and for renovations, additions and/or expansions to existing structures which fall into one or more of the following categories:

(1)   All new single-family residential development which consists of 20 or more single-family homes (see "new development" explication below);

(2)   AH new multi-family residential development, except for the construction of less than ten units (see "new development" explication below);

(3)   All new office, institutional, commercial, and industrial development (see "new development" explication below);

(4)   All existing office, institutional, commercial, and industrial development additions or expansions to structures where the expansion results in an increase of more than 75 percent value of the structure as defined in section 7-11-1 of this chapter.

(5)   All new streets, improved streets or extension to streets.

"New development" shall be interpreted to include all new construction in addition to the use of a building or property where the use has, ceased for a period of more than 180 days. See also subsections 7-17-5(c) and 7-17-5(d) concerning "overcoming presumption of cessation of use". This does not include minor additions or expansions that do not meet the city's threshold standards identified in subsection (3) above.

(c)   Additional conditions for requiring sidewalks. Notwithstanding (b) above, the following findings must be made prior to the city engineer/designee requiring the construction of a new sidewalk or a "fee in lieu of constructing a sidewalk for an applicable project. One or more of the following conditions must be met, as determined by the city engineer/designee.

(1)   The applicable project area, including the street frontage, is identified as a needed pedestrian linkage within an adopted city transportation or corridor plan, including but not limited to such plans as the Transportation Improvement Program (TIP), greenway, neighborhood, small area, and pedestrian thoroughfare plans.

(2)   The current or projected (within five years) average daily traffic count (ADT) for the street is 300 vehicles per day or more as determined by the city traffic engineer. Traffic generated from the applicable project or any additions to the applicable project will be included in calculating the ADT for this condition.

In the event that the sidewalk is not required, the developer must provide a recorded easement, if necessary, for the future development of the sidewalk. The developer wherever practical shall grade for the future development of a sidewalk.

(d)   Public and private streets. Sidewalks shall be constructed along all public and private street frontages that meet the requirements of section 7-11-8(c) of the lot for which the development is proposed.

All sidewalks shall be constructed in accordance with the standards set forth in the city's Standard Specifications and Details Manual.

(e)   Fee in lieu of construction. Where a new sidewalk is required to be constructed, a fee in lieu of that sidewalk may be paid if one or more of the following conditions apply:

(1)   The sidewalk is proposed to be constructed within an existing right-of-way where sufficient right-of- way or easement width does not exist or cannot be dedicated to build the sidewalk without reducing existing transportation facilities such as travel lanes, on-street parking, bike lanes, and the adaptive reuse or preservation of an existing building or structure prevents extending the sidewalk onto private property. In these instances, compliance to the maximum extent practicable is required and a fee is paid for the balance of sidewalk not constructed.

(2)   The sidewalk is a part of a publicly funded project that includes sidewalks and construction is scheduled to begin within two years of permitting. In this case, the developer would pay the fee based on the public agency's design.

(3)   The total project costs are less than $100,000.00 and the cost of the construction of the sidewalk would exceed 15 percent of the total cost of the approved project.

(4)   The traffic volumes on an existing road, including any added trips expected as a result of the project, do not exceed 500 vehicles per day and the required sidewalk is more than 1,320 feet (one-fourth mile) from an existing sidewalk, measured from the closest points along the road frontage.

(5)   When the sidewalk would require the relocation of multiple public utility facilities or structures.

(6)   The sidewalk would be located in a floodway and a no rise certification can not be obtained and a CLOMR cannot be approved without the requirement of purchasing additional affected properties.

(7)   The sidewalk would require construction and/or grading to occur on adjacent property to connect to future sidewalk and where there is no right-of-way or easement available. In these instances, compliance to the maximum extent practicable is required and a fee is paid for the balance of sidewalk not constructed. Additionally, an easement sufficient to provide future connections shall be provided.

The fee shall be based on the amounts identified in the city's Fees and Charges Manual and may be prorated based on partial compliance. In no case shall the fee in lieu of constructing the sidewalk exceed 15 percent of the total cost of the approved project. The total cost of the project shall include all construction costs associated with the improvement as approved by the city.

In the event that a fee in lieu of constructing a sidewalk is approved, the developer must provide a recorded easement if necessary for the future development of the sidewalk. All fees shall be paid prior to the issuance of the zoning permit and shall not transfer to future projects on the same property.

The developer wherever practical shall grade for the future development of a sidewalk.

(f)   Use of fees. All fees collected by the city pursuant to these provisions shall be accounted for separately from other monies, shall be expended only for the construction or rehabilitation of sidewalks or other pedestrian improvements in the city.

(Ord. No. 2664, § 1(a), 2-8-00; Ord. No. 2904, § 1(a), 3-12-02; Ord. No. 3417, § 1(e), 11-28-06; Ord. No. 3791, §§ 1c, d, 9-22-09; Ord. No. 3816, § 1, 12-15-09; Ord. No. 4424, § 1a, 6-9-15; Ord. No. 4361, § 1jj, 3-23-21)

Sec. 7-11-9. Emergency wireless communications.

(a)   Purpose. The purpose of this section is to ensure that buildings and structures shall not interfere with the city's communication network. Developments shall be modified to accommodate the needs of the city's communications network, to eliminate any interference a development would create or otherwise accommodate the needs of the city's communication network within the development proposal. Adequate provisions shall be made for a radio signal booster system which will correct for a reduction in the radio signal to a level below that required to assure the 95 percent area coverage reliability needed for public safety communications.

(b)   Radio signal booster system required. Except as otherwise provided no person shall maintain, own, erect, or construct, any building or structure or any part thereof, or cause the same to be done which fails to support adequate radio coverage for public safety entities, including, but not limited to, firefighters, emergency medical services and police officers. The following structures are exempt from these requirements:

(1)   Single-family residential buildings; any building constructed of wood frame; any building 25 feet high or less; as long as none of the aforementioned buildings make primary use of metal on concrete construction or contain below grade storage or parking areas. For purposes of this section, parking structures are included in the definition of buildings, and stair shafts are included in the definition of all parts of a building, but elevators may be excluded.

(2)   Buildings constructed prior to the effective date of this section (February 12, 2008) shall be required to comply with public safety radio coverage provisions of this section. However, should exempted structures undergo renovation or modification where the cost of the renovation or modification exceeds 75 percent of the appraised value of the structure this exemption shall not apply.

(c)   Easements. The city may require an easement to utilize the roof for communications infrastructure components to support current and future public safety communication needs. This includes, but is not limited to a 12 feet × 25 feet rooftop area for; antennas, base stations, UPS power supplies, and microwave dish antennas. The building owners shall provide a secure climate controlled environment, no less than ten feet × 20 feet × ten feet, suitable for sensitive electronic equipment. This room shall be located within the top floor of roof area to allow for less than 100-foot cable runs to the antenna locations. Power for the equipment in this room shall be fed from the building emergency generator. Additional construction specifications will be made available as required.

(d)   Specifications. All emergency wireless communications shall be constructed in accordance with the standards set forth in the City of Asheville Standards and Specifications Manual.

(e)   Alternative standards. Based on sound telecommunication engineering practices, the information technology director or his designee may approve alternative standards that are equal to or better than those set forth in this chapter and in the City of Asheville Standards and Specifications Manual.

(Ord. No. 3583, § 1(b), 2-12-08; Ord. No. 3791, § 1e, 9-22-09)

Sec. 7-11-10. Outdoor lighting standards.

(a)   Purpose. The purpose of this section is to promote the public health, safety, security, and the nighttime use and enjoyment of property, including:

· To protect and improve safe travel for all modes of transportation;

· To reduce light pollution, light trespass, glare, and unnecessary high light levels and intensity;

· To promote energy efficient lighting practices and systems; and

· To maintain and improve nighttime aesthetics of Asheville, including preservation of the night sky.

This ordinance provides basic outdoor lighting requirements based on industry standards. Creative use of outdoor lighting to supplement building architecture, enhance outdoor enjoyment and other uses of lighting are encouraged within the framework of ordinance requirements.

(b)   Definitions. For the purposes of this section, the following terms are defined.

Cutoff Classifications:

Full cutoff. A luminaire light distribution where zero candela intensity occurs at or above an angle of 90° above nadir. Additionally the candela per 1,000 lamp lumens does not numerically exceed 100 (ten percent) at or above a vertical angle of 80° above nadir. This applies to all lateral angles around the luminaire.

Cutoff. A luminaire light distribution where the candela per 1,000 lamp lumens does not exceed 25 (2.5 percent) at or above an angle of 90° above nadir, and 100 (ten percent) at or above a vertical angle 80° above nadir. This applies to all lateral angles around the luminaire.

Semicutoff. A luminaire light distribution where the candela per 1,000 lamp lumens does not exceed 50 (five percent) at or above an angle of 90° above nadir, and 200 (20 percent) at or above a vertical angle 80° above nadir. This applies to all lateral angles around the luminaire.

Noncutoff. A luminaire light distribution where there is no candela limitation in the zone above maximum candela.

Other Definitions:

Backlight, uplight, and glare (BUG) rating. A luminaire classification system that classifies backlight (B), uplight (U), and glare (G) ratings to evaluate luminaire optical performance related to light trespass, sky glow, and high angle brightness control.

Ballast. A device used with an electric-discharge lamp to obtain the necessary circuit conditions (voltage, current, and waveform) for starting and operating.

Candela. The metric unit luminous intensity (that is, power emitted by a light source in a particular direction, with wavelengths weighted by the luminosity function, a standardized model of the sensitivity of the human eye).

Direct glare. Glare resulting from high luminances or insufficiently shielded light sources in the field of view. It is usually associated with bright areas, such as luminaires, ceilings, and windows that are outside the visual task or region being viewed. A direct glare source can also affect performance by distracting attention.

Directional lighting. Lighting provided on the workplane or on an object. Light that is predominantly from a preferred direction.

Fixture. See luminaire.

Flood lamp. A form of lighting designed to direct its output in a specific direction with a reflector formed from the glass envelope of the lamp itself. Such lamps are so designated by the manufacturers and are typically used in residential outdoor area lighting.

Flood light. A form of lighting designed to direct its output in a diffuse, more or less specific direction, with reflecting or refracting elements located external to the lamp. These lights are prohibited in the City of Asheville.

Footcandle (FC). A quantitative unit measuring the amount of light (illumination) falling onto a given point. One footcandle equals one lumen per square foot.

Fully shielded. A light fixture constructed, installed and maintained in such a manner that all light emitted from the fixture, either directly from the lamp or a diffusing element, or indirectly by reflection or refraction from any part of the fixture, is projected below the horizontal plane through the fixtures lowest light emitting part.

Glare. The effect produced by a light source within the visual field that is sufficiently brighter than the level to which the eyes are adapted, to cause annoyance, discomfort, or loss of visual performance and ability.

Horizontal footcandles. A quantity of illumination (footcandle(s)) at a given point that is measured or calculated at a specified height in a plane parallel to the line of sight when looking at the brightest light source in the field of view.

IESNA. The Illuminating Engineering Society of North America, a non-profit professional organization of lighting specialists that has established recommended design standards for various lighting applications.

Illuminance. The amount of light (luminous flux incident) at a point on a surface (measured in lux or footcandles).

Internal refractive lens. A glass or plastic lens installed between the lamp and the sections of the outer fixture globe or enclosure. Refractive refers to the redirection (bending) of the light as it goes through the lens, softening and spreading the light being distributed from the light source thereby reducing direct glare.

Lamp. The device in a lighting fixture that provides illumination, typically a bulb, florescent tube, or light emitting diode (LED).

Light source. The element of a lighting fixture that is the point of origin of the lumens emitted by the fixture.

Light trespass. Unwanted light spilling onto an adjacent property and/or an excessive brightness (i. e. glare) is occurring in the normal field of vision.

Low luminosity lighting. Lighting fixtures whose lumen output does not exceed 1,000 lumens. See also Very low luminosity lighting.

Low level decorative lighting. Lighting fixtures whose lumen output does not exceed 60 lumens.

Low voltage lighting. Lighting equipment powered through a transformer such as a cable conductor that lowers the voltage supplied to the luminaires to 25v or less.

Lumen. A quantitative unit used to identify the amount of light emitted by a light source. A lamp is generally rated in lumens.

Luminaire (light fixture). A complete lighting unit consisting of a lamp or lamps and ballast(s) (when applicable) together with the parts designed to distribute the light, to position and protect the lamps, and to connect the lamps to the power supply.

Lux. A unit of illuminance. One lux equals one lumen per square meter. One footcandle equals 10.76 lux (often rounded to 10 lux for ease of use).

Maintained footcandles. Illuminance of lighting fixtures adjusted for a maintenance factor accounting for dirt build-up and lamp output depreciation. The maintenance factor used in the design process to account for this depreciation cannot be lower than 0.72 for high-pressure sodium and 0.64 for metal halide and mercury vapor.

Medium base. The size of lamp socket designed to accept a medium or Edison base lamp (typical size used in the home).

Nadir. The point directly below the luminaire.

Outdoor display area. Areas used to show products, merchandize, or other items for evaluation (i.e. cars, RVs, boats, etc.).

Outdoor performance area. An area permanently dedicated to the public presentation of music, dance, theater, media arts, storytelling, oratory, or other performing arts, whether publicly or privately owned, including but not limited to amphitheaters and similar open or semi-enclosed structures.

Post mounted decorative fixtures. Luminaires/fixtures that are mounted on a post (typically a 20-foot mounting height or less) and are decorative in style and appearance.

Right-of-way. An interest in land to the city which provides for the perpetual right and privilege of the city, its agents, franchise holders, successors, and assigns to construct, install, improve, reconstruct, remove, replace, inspect, repair, maintain, and use a public street, including related and customary uses of street rights-of-way such as sidewalks, bike paths, landscaping, mass transit facilities, traffic control, traffic control devices and signage, sanitary sewer, stormwater drainage, water supply, cable television, electric power, gas, and telephone transmission and related purposes in, upon, over, below, and across the rights-of-way.

Seasonal lighting. Holiday/temporary lighting displays to be utilized less than 30 days in any one year.

Shield. A device that is attached onto or inserted into a luminaire to alter the direction of light being emitted. A luminaire that has a shield attached or inserted is considered to be "shielded".

Street light. A luminaire that is used to light a street or roadway.

Top shield. A shield that is attached onto the top part of the luminaire or inserted into a luminaire to reduce/prevent uplight.

Uplight. The portion of luminous flux (light) from a luminaire emitted at angles above the horizontal.

Vehicular canopy. A roofed, open, drive-through structure designed to provide temporary shelter for vehicles and their occupants while making use of a business' services.

Vertical footcandles. A quantity of illumination (footcandle(s)) at a given point that is measured or calculated at a specified height in a plane perpendicular to the line of sight when looking at the brightest light source in the field of view.

Very low luminosity lighting. Temporary, seasonal, or permanent lighting fixtures whose luminosity does not exceed 15 lumens. See also low luminosity lighting.

Wall-mounted fixture. A luminaire/fixture that is typically mounted on or attached to a wall, column or building surface.

Wall pack. A type of light luminaire/fixture typically flush-mounted on a vertical wall surface.

Wide-body refractive globe. A translucent lamp enclosure used with some outdoor fixtures to provide a decorative look (including but not limited to acorn- and carriage light-style fixtures). "Wide-body" refers to a wider than average size globe (greater than 15.75 inches in diameter). "Refractive" refers to the redirection (bending) of the light as it goes through the lens, rendering the light fixture more effective. Wide-body refractive globes are intended to soften and spread the light being distributed from the light source thereby reducing direct glare.

(c)   Light measurement technique. Light level measurements shall be made at the property line of the property upon which light to be measured is being generated. If measurement on private property is not possible or practical, light level measurements may be made at the boundary of the public street right-of-way that adjoins the property of the complainant or at any other location on the property of the complainant. Measurements shall be made at finished grade (ground level), with the light-registering portion of the meter held parallel to the ground pointing up. The meter shall have cosine and color correction and have an accuracy tolerance of no greater than plus or minus five percent. Measurements shall be taken with a light meter that has been calibrated within two years. Light levels are specified, calculated and measured in footcandles. All footcandle values below are maintained footcandles.

(d)   Applicability. This section shall apply to all outdoor lighting fixtures and land uses established after the effective date of this ordinance [November 25, 2008] in all of the following conditions:

(1)   New development requiring Level I, II, or III site plan review pursuant to section 7-5-9 of this chapter;

(2)   New residential lighting for one- and two-family dwelling units;

(3)   All new street lighting for all private and publicly maintained streets within the City of Asheville and all streets that are subject to City of Asheville construction standards and subdivision review pursuant to section 7-5-8.

(4)   New outdoor lighting systems as part of an existing commercial, industrial, or multi-family residential lighting installation even if the original lighting installation was purchased and/or installed before the effective date of this ordinance, unless part of an expansion not greater than ten percent of the original outdoor fixture count.

(e)   Exemptions to outdoor lighting standards. The following conditions are exempted from the standards set forth in this subsection, provided that they do not constitute a public safety concern or create a nuisance, and are maintained in a safe condition.

(1)   All lighting required by state and federal agencies.

(2)   Seasonal lighting displays or very low luminosity lighting displays using multiple lamps.

(3)   Temporary lighting for emergency, repair, construction, special events or similar activities.

(4)   Ornamental gas lights that meet the definition of low level decorative lights.

(5)   Historic landmark structures.

(6)   Lighting fixtures located in a local Historic District when compliance with these standards conflicts with the district's guidelines.

(7)   Low voltage landscape lighting, but such lighting should be shielded in such a way as to eliminate glare and light trespass.

(8)   A suspended string of lights when found in one of the following conditions:

a.   On properties supporting one- and two-family dwelling units, when located outside of required setbacks, or

b.   Around, in, or over the permitted dining area(s), belonging to a lawful eating and drinking establishment, when the following output limits are met:

i.   Incandescent lights—no more than 25 lumens per bulb; or

ii.   LED lights—no more than 50 lumens per bulb.

Lights must be turned off when the outdoor dining area is not in use.

(9)   All lighting required by the North Carolina State Building Code.

(f)   Lighting prohibitions. The following types of outdoor lighting are specifically prohibited:

(1)   Lighting that could be confused for a traffic control device.

(2)   Lighting that is oriented upward, except as otherwise provided for in this ordinance.

(3)   Search lights, laser source lights, or any similar high intensity lights unless otherwise exempt.

(4)   Blinking, flashing, moving, flickering, changing intensity, changing color lights not otherwise permitted in this ordinance.

(5)   Any exposed lamp or bulb visible from the property boundary of the parcel on which the light is located, unless otherwise exempted.

(6)   A suspended string of lights with individual lamps larger than 15 lumens, unless otherwise exempted.

(7)   Any lighting fixture or device that is operated in such manner as to constitute a hazard or danger to persons, or to safe vehicular operation.

(8)   Unshielded accent building mounted luminous tube (such as neon, LED, fluorescent or other similar technology).

(9)   Flood lights.

(10)   Internally illuminated wall panels.

(11)   Lighting of any angled building surface (i.e. roof pitch).

(g)   General standards for new outdoor lighting. Unless otherwise exempted or allowed by this ordinance, the following standards shall apply to all outdoor lighting.

(1)   All exterior light fixtures shall be classified as providing full cutoff light distribution.

(2)   The maximum light level at any property line shall be 0.5 footcandle maintained.

(3)   Directional lighting allowed by the ordinance shall be directed downward.

(4)   All flood lamps shall not exceed 1,250 fixture lumens and must be shielded and aimed down 60 degrees from horizontal. Lamps shall be aimed such that the main beam from the light source is not visible from adjacent properties or the public street right-of-way.

(5)   All pole mounted lights shall not exceed 37-foot mounting height above grade.

(6)   All new dusk-to-dawn security lights shall be full cutoff fixtures with a maximum rating of not to exceed 9,500 fixture lumens (6,000 fixture lumens in residential zoning districts) or comply with subsection (n) (Non-conformities) with a mounting height not to exceed 25 feet.

a.   All new dusk-to-dawn utility type fixtures must be equipped with a reflector shield that provides a full cutoff light distribution as defined in subsection (b) of this article. An approved alternative is to install a different type of fixture that has a full cutoff light distribution with a maximum rating of not to exceed 9,500 lumens.

b.   All new LED dusk-to-dawn utility type fixtures shall comply with the LED standards listed in subsection (8) below.

(7)   Where land elevations to be lighted are higher or lower than a nearby street, residential dwelling or other type of facility and the lighting installation causes offensive light trespass and/or glare, the city planning director may request one or more of the following:

a.   Shields to be installed on the fixtures,

b.   Change the aiming of offending fixtures,

c.   Change the location and/or mounting height or the offending poles,

d.   Change the light distribution pattern of the offending fixtures, or

e.   Remove the offending poles and fixtures from the site.

(8)   All LED lighting shall meet the B-U-G ratings noted in the applicable subsections and comply with all other applicable requirements, and shall also meet the following standards:

a.   The LED correlated color temperature (CCT) shall not be higher than 4,300 K (Kelvin degrees).

b.   The maximum number of fixture lumens shall not exceed 6,500 in residential districts and no more than 20,000 lumens in non-residential districts or for legal non-residential uses in residential districts, unless otherwise allowed or exempted.

(9)   Reserved.

(h)   Street lighting.

(1)   The director of public works shall be responsible for executing the street lighting program and policies.

(2)   The director of public works or his designee shall evaluate requests for additions, removals or other changes to street lighting and respond to the requestor within 30 days.

(3)   These standards shall not apply to residential subdivisions lawfully established prior to the effective date of this ordinance (November 25, 2008) or extend to those properties acquired as part of such communities prior to November 25, 2008, provided it can be demonstrated that these properties were included in a documented community master plan.

(3a)   Existing non-LED street lights may be replaced with similar non-LED fixtures where warranted by NCDOT and approved by the director of public works.

(4)   General design standards.

a.   Spacing. Newly installed standard pole mounted street lights shall be placed at the following intervals as measured along the street centerline:

i.   In residential areas street lights shall be placed at intervals of 125 feet to 150 feet. The public works director may approve wider spacing for low density residential subdivisions provided the overall density is less than two units per acre and both the streets and light fixtures are privately maintained.

ii.   On major arterial roadways, street lights shall be placed at intervals of 75 feet to 100 feet.

iii.   In business districts, street lights shall be placed at intervals of 55 feet to 80 feet.

iv.   Preference in placement shall be given to street intersections and street curves.

v.   Alleys are excluded from the spacing and placing requirements of this policy but are encouraged to be illuminated using private security lights, wall packs, or other fixture utilizing a full-cutoff design.

vi.   In areas where post-mounted fixtures (18-foot mounting height or less) are installed, the spacing of posts should be adjusted to the particular fixtures used and as approved by the director of public works or his/her designee. IESNA Recommended Practice 8 (Roadway Lighting) should be used as a guide for street lighting design.

b.   Alignment. Street lighting on newly constructed streets shall be alternately staggered on each side of the street wherever possible.

c.   Luminance. Newly installed street lighting fixtures shall utilize the city's standard and meet the following lumen ratings:

i.   In residential districts — no greater than 6,500 fixture lumens, with exceptions noted in subsection (5) below.

ii.   In commercial districts — no greater than 20,000 fixture lumens, with exceptions noted in subsection (5) below.

d.   Mounting support. It is preferred that existing poles and associated mounting hardware be used to mount street lights. However, decorative poles and associated mounting hardware may be used upon agreement between the requestor, Progress Energy and the City of Asheville.

e.   Historic district. Full cut-off fixtures are required, however, semi-cutoff and cutoff decorative post-mounted fixtures (18-foot mounting height or less) may be used in historic districts when compliance with the district's design guidelines require it. All fixtures should limit glare, light trespass and light pollution.

f.   Interstate highway lighting. The installation of lighting on existing or future interstate highways within the City of Asheville shall require a municipal agreement between the city and the NC Department of Transportation.

g.   Assumption of private street lighting. The City of Asheville may also, upon approval of the governing body, assume responsibility for streetlights that at the time of construction of private roadways, providing the following conditions are met:

· The street lights are installed in accordance with this policy.

· The private roadway(s) served by the streetlights are accepted into the City of Asheville or NCDOT road system.

h.   Variations in land elevations. Where land elevations vary and cause the street lighting poles to be installed higher or lower than adjacent roads or property, thus causing offensive light trespass and/or glare, the standards set forth in subsection (g)(7) may also be applied to street lighting.

(5)   All LED street lighting shall comply with the standards in subsection (g)(8) and shall have a maximum BUG rating of B3, U3, G3 on commercial streets and major arterial DOT and City of Asheville roads, and a maximum of B2, U1, G2 on residential streets.

Exceptions:

a.   Use of LED street lights in residential areas over 6,500 and up to 8,200 fixture lumens are allowed at intersections and safety sensitive locations, as deemed necessary by the director of public works.

b.   Use of LED street lights on commercial and major arterial roads over 20,000 fixture lumens are allowed to ensure public safety as deemed necessary by NCDOT and by the director of public works.

(6)   The director of public works may grant exceptions to these standards when, based on the director's determination, conditions (including but not limited to topography, road geometry, heavy foliage, and criminal activity, etc.) are adversely impacting public safety and welfare.

(i)   Site lighting. All ground mounted light fixtures shall comply with the general standards listed in subsection (g) above as well as the standards listed here.

(1)   Pedestrian lighting on posts with a mounting height of 18 feet or less shall be directed to paths and sidewalks. Lighting should be placed to provide good uniformity, to limit glare, light trespass, light pollution and the casting of shadows on sidewalks. All pedestrian lighting fixtures shall comply with the other sections of this ordinance.

(2)   Outdoor display areas, as defined in article 2 of this chapter, shall have a maximum average of illuminance of 20 maintained footcandles.

(3)   The mounting height of all outdoor lighting, except outdoor sports field lighting and outdoor performance area lighting, shall not exceed 37 feet above finished grade.

(4)   Illumination of all open or surface parking and outdoor commercial areas shall comply with the following light levels limits, uniformity ratios and other criteria listed below:

a.   Open parking facilities - For lighted parking lots the recommended minimum light level shall be no less than 0.2 footcandles. All light levels are measured at ground level. The minimum light level requirements vary depending on the activity classification. The specified minimum FC value above 0.2 FC as outlined in the following table means that the lowest light level point or location in the parking lot must not exceed the minimum stated FC value in the table (i.e. 0.9 FC for large shopping centers). An average to minimum uniformity ratio of 4:1 means that the average FC to minimum FC ratio cannot be worse (higher) than 4:1. See the following table:

 

Light Levels for Open Outdoor Parking Facilities*
Use/Task	Maintained Footcandles	Uniformity Avg./Min.
(a) Parking, residential, multi- family
· Low to medium vehicular/pedestrian activity	Range from 0.2 Min. to 0.7 Min.	4:1
(b) Parking, industrial/commercial/Institutio nal/municipal
· High activity, i.e. large shopping centers/fast food facilities, major athletic/civic cultural events	0.9 Min.	4:1
· Medium/low activity, i.e. community shopping, office parks, hospitals, commuter lots, cultural/civic/recreational events, residential neighborhood shopping, industrial employee parking, schools, church parking	Range from 0.2 Min. to 0.7	4:1

 

* Source: IESNA 8th Edition Lighting Handbook; Modifications: Medium and Low Activity Level recommendations have been combined and modified.

Notes:

1.   Illumination levels are horizontal on the task, e.g. pavement or area surface.

2.   Uniformity ratios dictate that average illuminance values shall not exceed minimum values by more than the product of the minimum value and the specified ratio. For example, for commercial parking medium/low activity, the average footcandles shall not be in excess of 2.8 (0.7 × 4).

3.   The planning director or his/her designee shall be responsible for determining the activity level for a development based on the criteria found in subsection 7-8-1(d)(1).

(5)   All LED site lighting shall comply with the standards in subsection (g)(8) and comply with the following.

a.   Post-mounted decorative fixtures shall have a maximum BUG rating of B3, U1, G1 when 9,500 fixture lumens or less and not taller than 18-feet, unless otherwise exempted.

b.   LED site lighting greater than 9,500 fixture lumens or taller than 18 feet shall have a maximum BUG rating of B3-U0-G3, unless otherwise excepted.

(6)   Historic districts require the use of full cut-off fixtures; however, semi-cutoff and cutoff decorative post-mounted fixtures (18-foot mounting height or less) may be used in historic districts when compliance with the district's design guidelines requires it. All fixtures should limit glare, light trespass and light pollution.

(7)   Post mounted lawn luminaires may be installed in residential applications provided the fixture delivers a maximum of 1,000 lumens output (equivalent to a 60 watt incandescent bulb) and utilizes a translucent lens covering the light source. The height of the post shall not exceed eight feet above the finished grade.

(8)   All ornamental or aesthetic lighting of buildings and landscaping lighting not attached to a building shall be located, aimed, and shielded so that direct illumination is focused exclusively on the building façade, plantings, and other intended site feature and away from adjoining properties, the night sky, and the public street right-of-way. Additionally, these fixtures shall also meet the following standards:

a.   Illumination on any vertical surface shall not exceed .5 FC average maintained and shall not spill over roof lines or building edges. Reflected glare bouncing off windows or other glazing that is visible from adjacent property is prohibited.

b.   All ground mounted landscape and residential façade lighting systems not aimed downward shall utilize low level decorative lighting fixtures and shall be aimed no greater than 60 degrees from the horizontal ground level. The luminaires shall be shielded and aimed such that the light source cannot be seen from adjacent property or public areas or rights-of-way.

(j)   Lighting attached to structures or buildings. All light fixtures attached or mounted against a building or structure shall comply with the general standards listed in subsection (g) above as well as the standards listed here.

(1)   Covered parking facilities. Top levels of garages open to the sky shall comply with the requirements outlined in subsection (i)(4) for open parking facilities. The mounting height on the top level of a garage shall not be greater than 22 feet above the parking deck top floor including raised foundations and the light fixture classification shall be full cutoff.

Additionally, all lighting within open parking garages shall be fully shielded so as not to create glare off- site.

(2)   Lighting for vehicular canopies. Areas under a vehicular canopy shall have an average maximum horizontal illuminance of 20 maintained footcandles (FC). Areas outside the vehicular canopy shall be regulated by the standards of subsection (i) above. Lighting under vehicular canopies shall be designed so as not to create glare off-site. Acceptable methods include one or more of the following:

a.   Recessed fixture incorporating a lens cover that is either recessed or flush with the bottom surface (ceiling) of the vehicular canopy that provides a full cutoff or fully shielded light distribution.

b.   Surface mounted fixture incorporating a flat glass that provides a full cutoff light distribution.

(3)   Skylights. Buildings equipped with skylights or other horizontal daylighting openings must control the light trespass and light pollution that is projected upward from the interior lighting system through the daylight glazing into the outdoor night environment and shall also meet the following standards:

a.   Skylight glazing shall specify a maximum light transmission of 20 percent.

b.   Businesses operating on a 24-hour basis shall employ the use of shielding, louvers or other approved control devices installed to restrict light trespass, light pollution and glare.

c.   Light fixtures shall not be located in or directly below light wells that are not utilizing shielding or louvers.

Exception: This subsection does not apply to one- and two-family dwelling units.

(4)   Ornamental and general use lighting. All ornamental and general use fixtures attached to buildings or structures shall be located, aimed, and shielded so that direct illumination is focused exclusively on the building façade or the ground immediately below the fixture. Additionally, these fixtures shall also meet the following standards:

a.   All wall-mounted fixtures, wall packs, porch lights, ceiling mounted and pendant style fixtures shall be full cutoff fixtures.

Exception: The fixture delivers a maximum of 1,000 lumens output (equivalent to a 60 watt incandescent bulb) and utilizes a translucent lens covering the light source.

b.   All recessed ceiling fixtures incorporating a lens cover shall be restricted to lenses that are either recessed or flush with the ceiling.

c.   Lamps providing minimum exit discharge lighting as required by the NC Building Codes shall be shielded unless otherwise exempt.

d.   Dual purpose fixtures (general use and exit discharge) fitted with battery back-up for emergency use shall be full cut-off. Those fixtures that come on only during an emergency or power outage are exempt.

Comparison of efficacy by power (120 Volt incandescent lamps)

 

Output (Lumens)	Power (Watt)
	Incan	CFL	LED
500	40	8—10	9
850	60	13—18	12—15
1,200	75	18—22	15
1,700	100	23—28	18

 

(5)   All LED lighting attached to buildings or structures shall comply with the standards in subsection (g)(8) and shall have a maximum BUG rating of B2, U0, G2, unless otherwise exempted or excepted.

(k)   Outdoor sports and outdoor performance area lighting. Outdoor lighting for all sports court, sports field, and outdoor performance areas, along with the associated seating, shall be subject to the following standards when such facilities are open to the public and are the primary use on the property. These standards do not apply when the facility is ancillary to other uses on the property in which case, general standards shall apply.

(1)   The mounting height for outdoor sports field, stadium seating, and outdoor performance area lighting fixtures shall not exceed 90 feet from finished grade. The mounting height for outdoor sports courts shall not exceed 50 feet from finished grade.

(2)   All outdoor sports and outdoor performance area lighting fixtures shall be equipped with a glare control package (louvers, shields, or similar devices). The fixtures must be aimed so that their beams are directed and fall within the primary playing or performance area and not into adjacent property or road rights-of-way.

(3)   The hours of operation for the lighting system for any game or event shall not exceed one hour after the end of the event.

(4)   The maximum number of fixture lumens shall not exceed 38,600 lumens for sports courts and 121,000 lumens for sports fields and outdoor performance areas.

(5)   The maximum correlated color temperature (CCT) shall not be higher than 4,300 K (Kelvin degrees) for sports courts and 5,700 K for sports fields and outdoor performance areas.

(l)   Signs.

(1)   Lighting fixtures illuminating signs shall be carefully located, aimed, and shielded so that light is directed only onto the sign façade and glare is significantly reduced. Lighting fixtures shall not be aimed toward adjacent streets, roads, or properties.

(2)   Internally illuminated signs are permitted so long as the sign is not too bright from the surroundings and does not create a nuisance or hazard to motorists.

(3)   Lighting fixtures shall be directed downward rather than upward.

(4)   This ordinance does not regulate signs. See the City of Asheville sign ordinance for this information.

(m)   Permits. The applicant for any permit required for work involving outdoor lighting shall submit documentation at time of site plan or plot plan approval that the proposed lighting plan complies with the provisions of this Code. The submission shall contain, but not be limited to the following, all or part of which may be part of or in addition to the information required elsewhere in this Code:

(1)   For all Level III projects, a point-by-point footcandle array in a printout format indicating the location and aiming of illuminating devices must be furnished. For lower level projects, a point by point array must be furnished upon request. The printout shall indicate compliance with the maintained footcandle limit required by the appropriate section of this Code.

(2)   For all Level III projects, a description of the illuminating devices, fixtures, lamps, supports, reflectors, poles, raised foundations and other devices including but not limited to manufacturers or electric utility catalog specification sheets and/or drawings, and photometric report indication fixture classification (cutoff fixture, wallpack, flood light, etc) must be furnished. For lower level projects, this same information will be required upon request.

(3)   All Level III projects, special use permit projects and conditional zoning projects will be evaluated on a case specific basis and may be held to a standard that exceeds those minimum standards set forth in this ordinance.

(4)   Inspection or plan review personnel may waive any or all of the above permit requirements, provided the applicant can otherwise demonstrate compliance with this Code.

(n)   Non-conformities.

(1)   Any lighting fixture lawfully in place or approved by the city prior to the adoption of this ordinance shall be exempt from these requirements. Routine maintenance, including changing the lamp, starter, photo control, lens, and other required components is permitted for all existing fixtures.

(2)   All dusk to dawn utility type lights installed prior to November 25, 2008, will be exempted from full cutoff requirements for five years from this date. After five years, all such lights shall be discontinued, removed or made to conform to the provisions of this ordinance.

(3)   All utility owned flood lights installed prior to [insert effective date here] will be exempted from the prohibition on flood lights for five years from this adoption date. After five years, all such lights shall be discontinued, removed or replaced with conforming fixtures. Existing floodlights that are privately owned my continue to be used provided the light fixture is angled down and/or shielded so that it produces a full cutoff distribution.

(4)   Should the property owner fail to bring the lighting system into compliance, the owner shall be subject to the civil penalties set forth in subsection 7-18-2(b).

(o)   Appeals. Appeals regarding the interpretation or application of this ordinance may be taken to the board of adjustment in the manner provided in article VI.

(Ord. No. 3676, § 1, 11-25-08; Ord. No. 4148, § 1, 12-11-12; Ord. No. 4275, § 1, 1-28-14; Ord. No. 4686, § 1a—e, 7- 24-18; Ord. No. 4361, § 1kk, ll, 3-23-21; Ord. No. 5057, § 1k, 1-23-24)

ARTICLE XII. ENVIRONMENTAL PROTECTION STANDARDS

Sec. 7-12-1. Flood damage prevention.

(a)   Authority, purpose, objectives, findings.

(1)   Authority: This section is adopted pursuant to Part 6, Article 21 of Chapter 143; Article 6 of Chapter 153A; Article 8 of Chapter 160A; and Article 7, 9, and 11 of Chapter 160D of the North Carolina General Statutes.

(2)   Purpose: It is the purpose of this section to promote public health, safety, and general welfare and to minimize public and private losses due to flood conditions within flood prone areas by provisions designed to:

a.   Restrict or prohibit uses that are dangerous to health, safety, and property due to water or erosion hazards or that result in damaging increases in erosion, flood heights, or velocities;

b.   Require that uses vulnerable to floods, including facilities that serve such uses, be protected against flood damage at the time of initial construction;

c.   Control the alteration of natural floodplains, stream channels, and natural protective barriers, which are involved in the accommodation and restrain of floodwaters;

d.   Control filling, grading, dredging, and all other development that may increase erosion or flood damage; and

e.   Prevent or regulate the construction of flood barriers that will unnaturally divert flood waters or which may increase flood hazards to other lands.

(3)   Objectives: The objectives of this section are to:

a.   Protect human life, safety, and health;

b.   Minimize damage to public facilities and utilities (i.e. water and gas mains, electric, telephone, cable and sewer lines, streets, and bridges) that are located in flood prone areas;

c.   Minimize expenditure of public money for costly flood control projects;

d.   Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;

e.   Minimize prolonged business losses and interruptions;

f.   Ensure that potential buyers are aware that property is in a special flood hazard area;

g.   Help maintain a stable tax base by providing for the sound use and development of flood prone areas in such a manner as to minimize future flood damage;

h.   Minimize damage to private and public property due to flooding;

i.   Make flood insurance available to the community through the National Flood Insurance Program; and

j.   Maintain the natural and beneficial functions of floodplains.

k.   Maintain the City's participation in the National Flood Insurance Program.

(4)   Findings:

a.   The flood prone areas within the jurisdiction of the City of Asheville (city) are subject to periodic inundation which results in loss of life, property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures of flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare.

b.   These flood losses are caused by the cumulative effect of obstructions in floodplains causing increases in flood heights and velocities and by the occupancy in flood prone areas of uses vulnerable to floods or hazardous to other lands which are inadequately elevated, flood-proofed, or otherwise protected from flood damage.

(b)   General provisions.

(1)   Applicability: This section shall apply to all special flood hazard areas within the city's territorial jurisdiction, including extra-territorial jurisdictions (ETJs), as allowed by law, of the City of Asheville.

(2)   Effect upon outstanding floodplain development permits: Nothing herein contained shall require any change in the plans, construction, size, or designated use of any development or any part thereof for which a floodplain development permit has been granted by the floodplain administrator or his or her authorized agents before the time of passage of this section; provided, however, that when construction is not begun under such outstanding permit within a period of six months subsequent to the date of issuance of the outstanding permit, construction or use shall be in conformity with the provisions of this section.

(3)   Establishing Special flood hazard areas: The special flood hazard areas are those identified under the Cooperating Technical State (CTS) Agreement between the State of North Carolina, FEMA, its Flood Insurance Study (FIS), and its accompanying Digital Flood Insurance Rate Maps (DFIRM), for Buncombe County dated January 6, 2010, or any subsequent FIS for the City of Asheville and associated DFIRM panels, including any digital data developed as part of the FIS, all of which are adopted by reference and declared to be a part of this section, and all revisions thereto.

(4)   Compliance: No structure or land shall hereafter be located, extended, converted, altered, or developed in any way without full compliance with the terms of this section and other applicable regulations.

(5)   Abrogation and greater restrictions: This section is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions; however, where this section and another conflict or overlap, whichever imposes the more stringent restrictions shall prevail.

(6)   Interpretation: In the interpretation and application of this section, all provisions shall be: (a) considered as minimum requirements; (b) liberally construed in favor of the city; and (c) deemed neither to limit nor repeal any other powers granted under state statutes.

(7)   Warning and disclaimers of liability: The degree of flood protection required by this section is considered reasonable for regulatory purposes and is based on scientific and engineering consideration. Larger floods can and will occur. Actual flood heights may be increased by manmade or natural causes. This section does not imply that land outside the special flood hazard areas or uses permitted within such areas will be free from flooding or flood damages. This section shall not create liability on the part of the city or any officer or employee thereof for any flood damages that result from reliance on this section or any administrative decision lawfully made hereunder.

(c)   Administration.

(1)   Floodplain administrator: The public works director is hereby designated to administer and implement the provisions of this section. Except as specifically stated, any act authorized by this section to be carried out by the floodplain administrator may be carried out by his/her designee.

(2)   Duties and responsibilities of the floodplain administrator: In addition to all other customary and incidental powers of the floodplain administrator as well as the powers and duties that may be conferred by other ordinances of the city and other applicable laws, statutes, rules and regulations, the floodplain administrator shall perform, but not be limited to, the following duties:

a.   Review all floodplain development applications and issue permits for all proposed development within special flood hazard areas to assure that the requirements of this section have been satisfied.

b.   Review all proposed development within special flood hazard areas to assure that all necessary local, state, and federal permits have been received.

c.   Notify adjacent communities and the North Carolina Department of Public Safety, Division of Emergency Management, State Coordinator for the National Flood Insurance Program prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Emergency Management Agency (FEMA).

d.   Assure that maintenance is provided within the altered or relocated portion of the watercourse as referenced in the preceding paragraph, so that the flood-carrying capacity is maintained.

e.   Prevent encroachments into floodways and non-encroachment areas unless the certification and flood hazard reduction provisions of subsection 7-12-1(e)(5) are met.

f.   Obtain actual elevation (in relation to NAVD 1988) of the reference level (including basement) and all attendant utilities of all new and substantially improved structures, in accordance with subsection 7-12-1(d)(3); and obtain actual elevation (in relation to NAVD 1988) of all public utilities in accordance with the provisions of subsection 7-12-1(d)(3).

g.   Obtain actual elevation (in relation to NAVD 1988) to which all new and substantially improved structures and utilities have been flood-proofed, in accordance with the provisions of subsection 7-12-1(d)(3).

h.   When flood-proofing is utilized for a particular structure, obtain certifications from a registered professional engineer or architect in accordance with the provisions of subsection 7-12-1(d)(3) and subsection 7-12-1(e)(2)b.

i.   Where interpretation is needed as to the exact location of boundaries of the special flood hazard areas, floodways, or non-encroachment areas (for example, where there appears to be a conflict between a mapped boundary and actual field conditions), make the necessary interpretation.

j.   When base flood elevation (BFE) data has not been provided in accordance with subsection 7-12-1(b)(3), obtain, review, and reasonably utilize any BFE data, along with floodway data or non- encroachment area data available from a federal, state, or other source, including data developed pursuant to subsection 7-12-1(e)(3)b.2, in order to administer the provisions of this section.

k.   When base flood elevation (BFE) data is provided but no floodway or non-encroachment area data has been provided in accordance with subsection 7-12-1(b)(3), obtain, review, and reasonably utilize any floodway data or non-encroachment area data available from a federal, state, or other source in order to administer the provisions of this section.

l.   Permanently maintain all records that pertain to the administration of this section and make these records available for public inspection, recognizing that such information may be subject to the Privacy Act of 1974, as amended.

m.   Make on-site inspections of work in progress and make periodic inspections throughout the special flood hazard areas within the jurisdiction of the community; issue stop-work orders, revoke floodplain development permits, serve notice of violations and issue civil penalty assessments.

n.   Maintain a current map repository to include, but not limited to, the FIS Report, FIRM and other official flood maps and studies adopted in accordance with subsection (b)(2), including any revisions thereto, letters of map change, issued by FEMA.

o.   Notify state and FEMA of mapping needs; coordinate revisions to FIS reports and FIRMs, including letters of map revision based on fill (LOMR-F) and letters of map revision (LOMR).

p.   Review, provide input, and make recommendations for variance requests; and apply and enforce any and all provisions of this section.

(d)   Floodplain development application, permit and certification requirements.

(1)   Application requirements: Application for a floodplain development permit shall be made to the floodplain administrator prior to any development activities located within special flood hazard areas. Along with the application, the applicant must submit the following additional information for a floodplain development permit:

a.   A plot plan drawn to scale which shall include, but shall not be limited to, the following specific details of the proposed floodplain development:

(i)   The nature, location, dimensions, and elevations of the area of development/disturbance; existing and proposed structures, utility systems, grading/pavement areas, fill materials, storage areas, drainage facilities, and other development;

(ii)   The boundary of the special flood hazard area as delineated on the FIRM or other flood map as determined in subsection 7-12-1(b)(3), or a statement that the entire lot is within the special flood hazard area;

(iii)   Flood zone(s) designation of the proposed development area as determined on the FIRM or other flood map as determined in subsection 7-12-1(b)(3);

(iv)   The boundary of the floodway(s) or non-encroachment area(s) as determined in subsection 7-12-1(b)(3);

(v)   The base flood elevation (BFE) where provided as set forth in subsection 7-12-1(b)(3); subsection 7-12-2(c)(2); or subsection 7-12-1(e)(3);

(vi)   The old and new location of any watercourse that will be altered or relocated as a result of proposed development;

(vii)   The certification of the plot plan by a registered land surveyor, landscape architect, or professional engineer.

b.   Proposed elevation, and method thereof, of all development within a special flood hazard area including but not limited to:

(i)   Elevation in relation to NAVD 1988 of the proposed reference level (including basement) of all structures;

(ii)   Elevation in relation to NAVD 1988 to which any non-residential structure in zones referenced on the FIRM as AE, A or AO will be flood-proofed; and

(iii)   Elevation in relation to NAVD 1988 to which any proposed utility systems will be elevated or flood-proofed;

c.   If flood-proofing, a flood-proofing certificate (FEMA Form FF-206-FY 22-153) with supporting data and an operational plan that includes, but is not limited to, installation, exercise, and maintenance of flood-proofing measures.

d.   A foundation plan, drawn to scale, which shall include details of the proposed foundation system to ensure all provisions of this section are met. These details include but are not limited to:

(i)   The proposed method of elevation, if applicable (i.e., fill, solid foundation perimeter wall, solid backfilled foundation, open foundation on columns/posts/piers/piles/shear walls);

(ii)   Openings to facilitate automatic equalization of hydrostatic flood forces on walls in accordance with subsection 7-12-1(e)(2)d.3 when solid foundation perimeter walls are used in the zones referenced on the FIRM as A, AO, AE, and A1-30;

e.   Usage details of any enclosed areas below the lowest floor.

f.   Plans and/or details for the protection of public utilities and facilities such as sewer, gas, electrical, and water systems to be located and constructed to minimize flood damage.

g.   Certification that all other local, state and federal permits required prior to floodplain development permit issuance have been received.

h.   Documentation for placement of recreational vehicles and/or temporary structures, when applicable, to ensure that the provisions of subsection 7-12-1(e)(2)f. and g. are met.

i.   A description of proposed watercourse alteration or relocation, when applicable, including an engineering report on the effects of the proposed project on the flood-carrying capacity of the watercourse and the effects to properties located both upstream and downstream; and a map (if not shown on plot plan) showing the location of the proposed watercourse alteration or relocation.

(2)   Permit requirement: A floodplain development permit shall be required in conformance with the provisions of this section prior to the commencement of any development activities within special flood hazard areas. The floodplain development permit shall include, but not be limited to:

a.   A description of the development to be permitted under the floodplain development permit.

b.   The special flood hazard area determination for the proposed development in accordance with available data specified in subsection 7-12-1(b)(3).

c.   The regulatory flood protection elevation required for the reference level and all attendant utilities.

d.   The regulatory flood protection elevation required for the protection of all public utilities.

e.   All certification submittal requirements with timelines.

f.   A statement that no fill material or other development shall encroach into the floodway or non-encroachment area of any watercourse, as applicable.

g.   The flood openings requirements, if in zones A, AO, AE or A1-30 as referenced on the FIRM.

h.   Limitations of below BFE enclosure uses (if applicable). (i.e., parking, building access and limited storage only).

i.   A statement that all materials below the regulatory flood protection elevation must be flood resistant materials.

(3)   Certification requirements:

a.   Elevation certificates.

(i)   An elevation certificate (FEMA Form FF-206-FY 22-152), which includes among other requirements, the highest adjacent grade, the lowest adjacent grade and top of bottom floor, is required prior to the actual start of any new construction. It shall be the duty of the permit holder to submit to the floodplain administrator a certification of the elevation of the reference level, in relation to NAVD 1988. The floodplain administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder prior to the beginning of construction. Failure to submit the certification or failure to make required corrections shall be cause to deny a floodplain development permit.

(ii)   A final as-built elevation certificate (FEMA Form FF-206-FY 22-152) is required after construction is completed and prior to certificate of compliance/occupancy issuance. It shall be the duty of the permit holder to submit to the floodplain administrator a certification of final as-built construction of the elevation of the reference level and all attendant utilities. The floodplain administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to certificate of compliance/occupancy issuance. In some instances, another certification may be required to certify corrected as-built construction. Failure to submit the certification or failure to make required corrections shall be cause to withhold the issuance of a certificate of compliance/occupancy.

b.   Flood-proofing certificate. If non-residential flood-proofing is used to meet the regulatory flood protection elevation requirements, a flood-proofing certificate (FEMA Form FF-206-FY 22-153), with supporting data, an operational plan, and an inspection and maintenance plan are required prior to the actual start of any new construction. It shall be the duty of the permit holder to submit to the floodplain administrator a certification of the flood-proofed design elevation of the reference level and all attendant utilities, in relation to NAVD 1988. Flood-proofing certification shall be prepared by or under the direct supervision of a professional engineer or architect and certified by same. The floodplain administrator shall review the certificate data, the operational plan, and the inspection and maintenance plan. Deficiencies detected by such review shall be corrected by the applicant prior to permit approval. Failure to submit the certification or failure to make required corrections shall be cause to deny a floodplain development permit. Failure to construct in accordance with the certified design shall be cause to withhold the issuance of a certificate of compliance/occupancy.

c.   Foundation certificate. If a manufactured home is placed within the zones as referenced on the FIRM as A, AO, AE, or A1-30 and the elevation of the chassis is more than 36 inches in height above grade, an engineered foundation certification is required in accordance with the provisions of subsection 7-12-1 (e)(2)c.2.

d.   Certified report. If a watercourse is to be altered or relocated, a description of the extent of watercourse alteration or relocation, a professional engineer's certified report on the effects of the proposed project on the flood-carrying capacity of the watercourse and the effects to properties located both upstream and downstream, and a map showing the location of the proposed watercourse alteration or relocation shall all be submitted by the permit applicant prior to issuance of a floodplain development permit.

e.   Certification exemptions. The following structures, if located within the zones shown on the FIRM as A, AO, AE or A1-30, are exempt from the elevation/flood-proofing certification requirements specified in items (a) and (b) of this subsection:

(i)   Recreational vehicles meeting requirements of subsection 7-12-1(e)(2)f.1;

(ii)   Temporary structures meeting requirements of subsection 7-12-1(e)(2)g; and

(iii)   Accessory structures less than 150 square feet and meeting requirements of subsection 7-12-1(e)(2)h.

(4)   Determinations for existing buildings and structures: For applications for building permits to improve buildings and structures, including alterations, movement, enlargement, replacement, repair, change of occupancy, additions, rehabilitations, renovations, substantial improvements, repairs of substantial damage, and any other improvement of or work on such buildings and structures, the Floodplain Administrator, in coordination with the Building Official, shall:

a.   Estimate the market value, or require the applicant to obtain an appraisal of the market value prepared by a qualified independent appraiser, of the building or structure before the start of construction of the proposed work; in the case of repair, the market value of the building or structure shall be the market value before the damage occurred and before any repairs are made;

b.   Compare the cost to perform the improvement, the cost to repair a damaged building to its pre-damaged condition, or the combined costs of improvements and repairs, if applicable, to the market value of the building or structure;

c.   Determine and document whether the proposed work constitutes substantial improvement or repair of substantial damage; and

d.   Notify the applicant if it is determined that the work constitutes substantial improvement or repair of substantial damage and that compliance with the flood resistant construction requirements of the NC Building Code and this ordinance is required.

(e)   Flood hazard reduction.

(1)   General standards: In all special flood hazard areas, the following shall apply:

a.   All new construction and substantial improvements shall be designed (or modified) and adequately anchored to prevent flotation, collapse, and lateral movement of the structure.

b.   All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage in accordance with the FEMA Technical Bulletin 2, Flood Damage-Resistant Materials Requirements.

c.   All new construction and substantial improvements shall be constructed by methods and practices that minimize flood damages.

d.   All new electrical, heating, ventilation, plumbing, air conditioning equipment, duct systems, and other building utility systems, equipment, and service facilities shall be located at or above the RFPE and/or specially designed to prevent water from entering or accumulating within the components and installed to resist hydrostatic and hydrodynamic loads and stresses, including the effects of buoyancy, during conditions of flooding to the regulatory flood protection elevation. Utility systems, equipment, and service facilities include, but are not limited to, HVAC equipment, water softener units, bath/kitchen fixtures, ductwork, electric/gas meter panels/boxes, utility/cable boxes, hot water heaters, and electric outlets/switches.

(i)   Replacements part of a substantial improvement must also meet the above provisions.

(ii)   Replacements that are for maintenance and not part of a substantial improvement, may be installed at the original location provided the addition and/or improvements comply with the standards for new construction consistent with the code and requirements for the original structure.

e.   All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system.

f.   New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the systems and discharges from the systems into flood waters.

g.   On-site waste disposal systems shall be located and constructed to avoid impairment to them or contamination from them during flooding.

h.   New solid waste disposal facilities and sites, hazardous waste management facilities, salvage yards, and chemical storage facilities shall not be permitted, except by variance as specified in subsection 7-12-1(f)(5). A structure or tank for chemical or fuel storage incidental to an allowed use or to the operation of a water treatment plant or wastewater treatment facility may be located in a special flood hazard area only if the structure or tank is either elevated or flood- proofed to at least the regulatory flood protection elevation and certified in accordance with the provisions of subsection 7-12-1(d)(3).

i.   All subdivision proposals and other development proposals shall be consistent with the need to minimize flood damage.

j.   All subdivision proposals and other development proposals shall have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage.

k.   All subdivision proposals and other development proposals shall have adequate drainage provided to reduce exposure to flood hazards.

l.   All subdivision proposals and other development proposals shall have received all necessary permits from those governmental agencies for which approval is required by federal or state law, including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334.

m.   When a structure is partially located in a special flood hazard area, the entire structure shall meet the requirements for new construction and substantial improvements.

n.   When a structure is located in multiple flood hazard zones or in a flood hazard risk zone with multiple base flood elevations, the provisions for the more restrictive flood hazard risk zone and the highest base flood elevation shall apply.

o.   The Regulatory Flood Protection Elevation ("RFPE"), where Base Flood Elevations (BFEs) have been determined, shall be the BFE plus the freeboard of two (2) feet. In "Special Flood Hazard Areas" where no BFE has been established, the RFPE this elevation shall be at least two (2) feet above the highest adjacent grade.

p.   If the elevation requirement for any development differs from that imposed by the North Carolina State Building Code, said development shall be permitted to exceed its maximum height limitation by an amount equal to the difference in the elevation requirements set by this ordinance and that of the State Building Code.

(2)   Specific standards: In all special flood hazard areas where base flood elevation (BFE) data has been provided, as set forth in subsection 7-12-1 (b)(3), or subsection 7-12-1 (e)(3), the following provisions, in addition to the provisions of subsection 7-12-1 (e)(1), are required:

a.   Residential construction. New construction and substantial improvement of any residential structure (including manufactured homes) shall have the reference level, including basement, elevated no lower than the regulatory flood protection elevation as defined in section 7-2-5.

b.   Non-residential construction. New construction and substantial improvement of any commercial, industrial, or other non-residential structure shall have the reference level, including basement, elevated no lower than the regulatory flood protection elevation as defined in section 7-2-5. Structures located in zones referenced on the FIRM as A, AE, AO, and A1-30, may be flood- proofed to the regulatory flood protection elevation in lieu of elevation provided that all areas of the structure, together with attendant utility and sanitary facilities, below the regulatory flood protection elevation are watertight with walls substantially impermeable to the passage of water, using structural components having the capability of resisting hydrostatic and hydrodynamic loads and the effect of buoyancy. For AO zones, as reference on the FIRM, the flood-proofing elevation shall be in accordance with subsection 7-12-1 (e)(6)b. A registered professional engineer or architect shall certify that the standards of this subsection are satisfied. Such certification shall be provided to the floodplain administrator as set forth in subsection 7-12-1 (d)(3), along with the operational and maintenance plans.

c.   Manufactured homes.

1.   New and replacement manufactured homes shall be elevated so that the reference level of the manufactured home is no lower than the regulatory flood protection elevation as defined in section 7-2-5.

2.   Manufactured homes shall be securely anchored to an adequately anchored foundation to resist flotation, collapse, and lateral movement, either by certified engineered foundation system, or in accordance with the most current edition of the State of North Carolina Regulations for Manufactured Homes adopted by the Commissioner of Insurance pursuant to N.C.G.S. 143-143.15. Additionally, when the elevation would be met by an elevation of the chassis 36 inches or less above the grade at the site, the chassis shall be supported by reinforced piers or engineered foundation. When the elevation of the chassis is above 36 inches in height, an engineering certification is required.

3.   All enclosures or skirting below the lowest floor shall meet the requirements of subsection 7-12-1(e)(2)d.

4.   An evacuation plan must be developed for evacuation of all residents of all new, substantially improved or substantially damaged manufactured home parks or subdivisions located within flood prone areas. This plan shall be filed with and approved by the floodplain administrator and the local emergency management coordinator.

d.   Elevated buildings. Fully enclosed areas of new construction and substantially improved structures which are below the lowest floor:

1.   Shall not be designed or used for human habitation, but shall only be used for parking of vehicles, building access, or limited storage of maintenance equipment used in connection with the premises. Access to the enclosed area shall be the minimum necessary to allow for parking of vehicles (garage door) or limited storage of maintenance equipment (standard exterior door), or entry to the living area (stairway or elevator). The interior portion of such enclosed area shall not be finished or partitioned into separate rooms, except to enclose storage areas;

2.   Shall be constructed entirely of flood resistant materials at least to the regulatory flood protection elevation;

3.   Shall include, in zones A, AO, AE, and A1-30, as referenced on the FIRM, flood openings to automatically equalize hydrostatic flood forces on walls by allowing for the entry and exit of floodwaters. To meet this requirement, the openings must either be certified by a professional engineer or architect or meet or exceed the following minimum design criteria:

(i)   A minimum of two flood openings on different sides of each enclosed area subject to flooding;

(ii)   The total net area of all flood openings must be at least one square inch for each square foot of enclosed area subject to flooding;

(iii)   If a building has more than one enclosed area, each enclosed area must have flood openings to allow floodwaters to automatically enter and exit;

(iv)   The bottom of all required flood openings shall be no higher than one foot above the adjacent grade;

(v)   Flood openings may be equipped with screens, louvers, or other coverings or devices, provided they permit the automatic flow of floodwaters in both directions; and

(vi)    Enclosures made of flexible skirting are not considered enclosures for regulatory purposes, and, therefore, do not require flood openings. Masonry or wood underpinning, regardless of structural status, is considered an enclosure and requires flood openings as outlined above.

e.   Additions/improvements.

1.   Additions and/or improvements to pre-FIRM structures when the addition and/or improvement is in combination with any interior modifications to the existing structure are:

(i)   Not a substantial improvement: the addition and/or improvement must be designed to minimize flood damages and must not be any more non- conforming than the existing structure.

(ii)   A substantial improvement: Both the existing structure and the addition and/or improvement must comply with the standards for new construction.

2.   Additions to pre-FIRM or post-FIRM structures with no modifications to the existing structure other than a standard door in the common wall shall require only the addition to comply with the standards for new construction.

3.   Additions and/or improvements to post-FIRM structures when the addition and/or improvement is in combination with any interior modifications to the existing structure are:

(i)   Not a substantial improvement: the addition and/or improvement must only comply with the standards for new construction.

(ii)   A substantial improvement: Both the existing structure and the addition and/or improvement must comply with the standards for new construction.

4.   Any combination of repair, reconstruction, rehabilitation, addition or improvement of a building or structure taking place during a one (1) year period, the cumulative cost of which equals or exceeds 50 percent of the market value of the structure before the improvement or repair is started must comply with the standards for new construction. For each building or structure, the one (1) year period begins on the date of the first improvement or repair of that building or structure subsequent to the effective date of this ordinance. If the structure has sustained substantial damage, any repairs are considered substantial improvement regardless of the actual repair work performed. The requirement does not, however, include either:

(i)   Any project for improvement of a building required to correct existing health, sanitary or safety code violations identified and notified by the building official and that are the minimum necessary to assume safe living conditions.

(ii)   Any alteration of a historic structure provided that the alteration will not preclude the structure's continued designation as a historic structure, as determined by obtainment of a variance as specified in section 7-12-1(f).

f.   Recreational vehicles. Recreational vehicles shall either:

1.   Be on site for fewer than 180 consecutive days and be fully licensed and ready for highway use (a recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities, and has no permanently attached additions); or

2.   Meet all the requirements for new construction.

g.   Temporary non-residential structures. Prior to the issuance of a floodplain development permit for a temporary structure, the applicant must submit to the floodplain administrator a plan for the removal of such structure(s) in the event of a hurricane, flash flood, or other type of flood warning notification. The following information shall be submitted in writing to the floodplain administrator for review and written approval:

1.   A specified time period for which the temporary use will be permitted. Time specified may not exceed three months, renewable up to one year;

2.   The name, address, and phone number of the individual responsible for the removal of the temporary structure;

3.   The time frame prior to the event at which a structure will be removed (i.e., minimum of 72 hours before landfall of a hurricane or immediately upon flood warning notification);

4.   A copy of the contract or other suitable instrument with the entity responsible for physical removal of the structure; and

5.   Designation, accompanied by documentation, of a location outside the special flood hazard area, to which the temporary structure will be moved.

h.   Accessory structures. When accessory structures (sheds, detached garages, etc.) are to be placed within a special flood hazard area, the following criteria shall be met:

1.   Accessory structures shall not be used for human habitation (including working, sleeping, living, cooking, or restroom areas);

2.   Accessory structures shall not be temperature-controlled;

3.   Accessory structures shall be designed to have low flood damage potential;

4.   Accessory structures shall be constructed and placed on the building site so as to offer the minimum resistance to the flow of floodwaters;

5.   Accessory structures shall be firmly anchored in accordance with the provisions of subsection 7-12-1(e)(1)a;

6.   All service facilities such as electrical shall be installed in accordance with the provisions of subsection 7-12-1(e)(1)d; and

7.   Flood openings to facilitate automatic equalization of hydrostatic flood forces shall be provided below regulatory flood protection elevation in conformance with the provisions of subsection 7-12-1(e)(2)d.3.

An accessory structure with a footprint less than 150 square feet that satisfies the criteria outlined above does not require an elevation or flood-proofing certificate. Elevation or flood- proofing certifications are required for all other accessory structures in accordance with subsection 7-12-1(d)(3).

(3)   Standards for floodplains without established base flood elevations: Within the special flood hazard areas designated as approximate zone A as referenced on the FIRM and established in subsection 7-12-1 (b)(3), where no base flood elevation (BFE) data has been provided by FEMA, the following provisions, in addition to the provisions of subsection 7-12-1 (e)(1), shall apply:

a.   No encroachments, including fill, new construction, substantial improvements or new development shall be permitted within a distance of 20 feet each side from top of bank or five times the width of the stream, whichever is greater, unless certification with supporting technical data by a registered professional engineer is provided demonstrating that such encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.

b.   The base flood elevation (BFE) used in determining the regulatory flood protection elevation shall be determined based on the following criteria:

1.   When BFE data is available from other sources, all new construction and substantial improvements within such areas shall also comply with all applicable provisions of this section and shall be elevated or flood-proofed in accordance with standards in subsection 7-12-1(e)(1) and (2).

2.   When floodway data is available from a federal, state, or other source, all new construction and substantial improvements within floodway areas shall also comply with the requirements of subsection 7-12-1(e)(2) and (5).

3.   All subdivision, manufactured home parks and other development proposals shall provide BFE data if development is greater than five acres or has more than 50 lots/manufactured home sites. Such BFE data shall be adopted by reference in accordance with subsection 7-12-1(b)(3) and utilized in implementing this chapter.

4.   When BFE data is not available from a federal, state, or other source as outlined above the reference level shall be elevated or flood-proofed (nonresidential) to or above the regulatory flood protection elevation. All other applicable provisions of subsection 7-12-1(e) shall also apply.

(4)   Standards for riverine floodplains with BFE but without established floodways or non-encroachment areas: Along rivers and streams where BFE data is provided by FEMA or is available but neither floodway nor non-encroachment areas are identified for a special flood hazard area on the FIRM or in the FIS report, the following requirements shall apply to all development within such areas:

a.   Standards of subsection 7-12-1(e)(1) and (2); and

b.   Until a regulatory floodway or non-encroachment area is designated, no encroachments, including fill, new construction, substantial improvements, or other development, shall be permitted unless certification with supporting technical data by a registered professional engineer is provided demonstrating that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation during the occurrence of the base flood more than one foot at any point within the community.

(5)   Floodways and non-encroachment areas: Areas designated as floodways or non-encroachment areas are located within the special flood hazard areas established in subsection 7-12-1 (b)(3). The floodways and non-encroachment areas are extremely hazardous areas due to the velocity of floodwaters that have erosion potential and carry debris and potential projectiles. The following provisions, in addition to standards outlined in subsection 7-12-1 (e)(1) and (2), shall apply to all development within such areas:

a.   No encroachments, including fill, new construction, substantial improvements and other developments shall be permitted unless:

1.   It is demonstrated that the proposed encroachment will not increase the water surface elevations during the occurrence of the base flood, based on hydrologic and hydraulic analyses performed by a registered professional engineer in accordance with standard engineering practice and presented to the floodplain administrator prior to issuance of floodplain development permit, or

2.   A conditional letter of map revision (CLOMR) has been approved by FEMA. A letter of map revision (LOMR) must also be obtained upon completion of the proposed encroachment.

b.   If subsection 7-12-1(e)(5)a. is satisfied, all development shall comply with all applicable flood hazard reduction provisions of this section.

c.   No manufactured homes shall be permitted, except replacement manufactured homes in an existing manufactured home park or subdivision, provided the following provisions are met:

1.   The anchoring and the elevation standards of subsection 7-12-1(e)(2)c; and

2.   The no encroachment standard of subsection 7-12-1(e)(5)a.

d.   No new habitable structures or substantial improvements to habitable structures shall be permitted in floodways and non-encroachment areas, except this subsection shall not be applicable to structures that have substantial damage, provided the rebuilt habitable structure meets the standards of this Section (7-12-1).

(6)   Standards for areas of shallow flooding (zone AO as referenced on the FIRM): Located within the special flood hazard areas established in subsection 7-12-1(b)(3), are areas designated as shallow flooding areas. These areas have special flood hazards associated with base flood depths of one to three feet where a clearly defined channel does not exist and where the path of flooding is unpredictable and indeterminate. In addition to subsection 7-12-1(e)(1) and (2), all new construction and substantial improvements shall meet the following requirements:

a.   The reference level shall be elevated at least as high as the depth number specified on the flood insurance rate map (FIRM), in feet, plus a freeboard of two feet, above the highest adjacent grade; or at least two feet above the highest adjacent grade if no depth number is specified.

b.   Non-residential structures may, in lieu of elevation, be flood-proofed to the same level as required in subsection 7-12-1(e)(6)a. so that the structure, together with attendant utility and sanitary facilities, below that level shall be watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. Certification is required in accordance with subsection 7-12-1(d)(3) and subsection 7-12-1(e)(2)b.

c.   Adequate drainage paths shall be provided around structures on slopes, to guide floodwaters around and away from proposed structures.

(7)   Nonconforming uses: A structure(s) or the use(s) of a structure or premises which are lawful before the effective date of this section, or before any amendment to this section after that date, but which is not in conformity with the provisions herein may be continued as a nonconforming use, or for the purposes of this section may be changed to another nonconforming use (changes in use shall be made in conformance with subsection 7-12-1(e)). Changes in ownership of any property under the jurisdiction of this section shall not affect the continued operation of the nonconforming use. All nonconforming uses shall be subject to the following conditions:

a.   Any substantial improvement of a nonconforming structure shall be made in compliance with the provisions of this section.

b.   If the nonconforming use is discontinued for a period of 180 or more consecutive days, and there are no substantial good faith efforts to re-establish the use during this period, any future use of the building and/or premises shall conform to this section. Obtaining permits to maintain the existing use or significant continuous efforts to market the property for sale or lease for the existing use (e.g., MLS listing, realtor contract, etc.), shall be regarded as substantial good faith efforts. A nonconforming use shall be deemed discontinued after a period of more than two years regardless of any substantial good faith efforts to re-establish the use and any future use of the building and/or premises shall conform to section.

c.   Notwithstanding the provisions of Section 7-17-4, if any nonconforming use or structure or substantial improvement is destroyed or substantially damaged by any means, including floods, said use or structure may only be repaired or replaced if it is brought into compliance with the requirements of this ordinance (Sec. 7-12-1. Flood Damage Prevention). In all instances, a registered professional engineer shall provide the floodplain administrator with an acceptable certification demonstrating that said replacement would not result in an increase in the current regulatory flood elevation.

d.   Any use which has been permitted as a restricted use and is in full compliance with this section and attached standards shall be considered a conforming use.

e.   Any change of a nonconforming use as specified herein shall be approved by the board of adjustment under the provisions of this section. Proposed changes in a nonconforming use to a residential use shall be expressly prohibited.

(f)   Variances.

(1)   Petition for a variance: Any aggrieved person may petition for a variance to the board adjustment for the following:

a.   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.

b.   Functionally dependent facilities provided the provisions of subsections 7-12-1(f)(3) and (f)(4) have been satisfied, and such facilities are protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

c.   Any other type of development, provided it meets the requirements of this section.

(2)   Prerequisites to considering a request for a variance: Prior to considering a request for a variance, the board of adjustment shall be provided with a written report from the floodplain administrator specifying whether all technical evaluations, all relevant factors, all standards specified in this section have been met. Additionally, a separate written report addressing each of the following factors shall be submitted with the application for a variance:

a.   Whether there exists any danger that materials may be swept onto other lands to the injury of others;

b.   Whether there is any danger to life and property due to flooding or erosion damage;

c.   The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

d.   The importance of the services provided by the proposed facility to the community;

e.   The necessity to the facility of a waterfront location as a functionally dependent facility, where applicable;

f.   The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;

g.   The compatibility of the proposed use with existing and anticipated development;

h.   The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

i.   The safety of access to the property in times of flood for ordinary and emergency vehicles;

j.   The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and

k.   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.

(3)   Requirements for the granting of variances: The board of adjustment may only grant a variance if the applicant satisfies all of the following requirements:

a.   The variance is the minimum necessary, considering the flood hazard, to afford relief.

b.   No development permit has been approved. [For purposes of this section, trade permits (i.e. to elevate electric structures and get power back on) or permits associated with post-event demolition and debris removal are not considered development permits.]

c.   A showing of good and sufficient cause.

d.   Failure to grant the variance would result in exceptional hardship.

e.   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.

f.   The granting of the variances will not make the structure in violation of other federal, state, or local laws, regulations, or ordinances; and

g.   The granting of the variance is within the designated floodway or non-encroachment area and will not result in any increase in flood levels during the base flood discharge.

(4)   Conditions: The board of adjustment may attach such conditions to the granting of variances as it deems necessary to further the purposes and objectives of this section.

(5)   Special facilities: Solid waste disposal facilities or sites, hazardous waste management facilities, salvage yards, auto salvage-wrecking yards, and chemical storage facilities that are located in special flood hazard areas are prohibited unless, in addition to meeting all of the above mentioned variance requirements, the following additional requirements are met.

a.   The use serves a critical need in the community.

b.   No feasible location exists for the use outside the special flood hazard area.

c.   The reference level of any structure is elevated or flood-proofed to at least the regulatory flood protection elevation.

d.   The use complies with all other applicable federal, state and local laws.

e.   The city has notified the Secretary of the North Carolina Department of Public Safety of an application for the issuance of a variance at least 30 calendar days prior to the consideration of the variance request.

(6)   Notice: The floodplain administrator shall provide written notice to any applicant to whom a variance is granted 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 BFE increases risks to life and property, and that the issuance of a variance to construct a structure below the BFE will result in increased premium rates for flood insurance up to $25.00 per $100.00 of insurance coverage. Such notification shall be maintained with a record of all variance actions, including justification for their issuance.

(7)   Records: The floodplain administrator shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency and the State of North Carolina upon request.

(g)   Entry upon public/private property.

(1)   City inspections: The floodplain administrator and each member of his or her inspections department shall perform routine, random, complaint based, systematic inspections or a combination hereof to ensure continued compliance with the requirements of this section. The city may also conduct joint inspections with other agencies inspecting under environmental or safety laws. Notice of the right to inspect shall be included in the approval of each permit application. Inspections may include, but are not limited to, compliance checks of the approved permit, reviewing for compliance according to the provisions of this section and to carry out enforcement duties.

(2)   City investigations: The city shall have the power to conduct an investigation as it may reasonably deem necessary to carry out its duties as prescribed in this section and, for this purpose, to enter at reasonable times upon any property, public or private, for the purpose of investigating and inspecting the sites of any activity regulated in this section. No person shall refuse entry or access to any authorized representative or agent of the city, who requests such entry for purposes of inspection, and who presents appropriate credentials, nor shall any person obstruct, hamper, willfully resist, delay or interfere with any such representative while in the process of carrying out his/her official duties.

(3)   Administrative inspection warrant: If the owner or occupant of any property refuses to permit a city inspection, the floodplain administrator shall proceed to obtain an administrative inspection warrant pursuant to N.C.G.S. 15-27.2. No person shall obstruct, hamper or interfere with the office of the floodplain administrator while carrying out the official duties of this section.

(h)   Violations and notices.

(1)   General violations: It shall constitute a violation of this section for any person to fail to obtain a permit prior to any development located in special flood hazard areas, fail to comply with an approved permit or fail to comply with any other requirements set forth in this section. Each day a violation continues shall constitute a separate and distinct violation.

(2)   Notice of violation: If through inspection, it is determined that a person has violated this section, the office of the floodplain administrator shall immediately serve a notice of violation upon that person. The notice shall be in writing and served by personal delivery, electronic delivery or by certified or registered mail, return receipt requested. In addition service may be made in accordance with Rule 4 of the N.C. Rules of Civil Procedure. The notice of violation shall be served upon the holder of the development approval and the landowner of the property involved, if the landowner is not the holder of the development approval, and may provide by similar means to the occupant of the property or the person undertaking the work or activity in addition the notice of violation may be posted on the property involved, in accordance with N.C.G.S. § 160D-404(a). The violation notice shall contain the following:

a.   That the building or property is in violation of this section, the measures needed to comply, the time within such measures must be completed and warn that failure to correct the violation within the time period shall subject the violator and/or property owner to civil and/or other enforcement action.

b.   In determining the measures required and the time allowed for compliance, the office of the floodplain administrator shall take into consideration the economic feasibility, technology, the quantity of work required, and shall set reasonable and attainable time limits of compliance.

(3)   Failure to take corrective action: If the violator and/or property owner should fail to take prompt corrective action to remedy the violation, then the floodplain administrator shall proceed in accordance with subsection 7-12-1(i) of this section.

(i)   Enforcement.

(1)   Civil penalty: Any person who violates the flood protection regulations of this section shall be subject to a civil penalty. The maximum civil penalty for a violation is $25,000.00. A civil penalty may be assessed from the date of the violation. Each day of a continuing violation shall constitute a separate violation. The floodplain administrator is hereby charged with the responsibility of preparing a table of civil penalties, setting forth the per day and maximum penalties that may be assessed for violations of this section taking into consideration the guidelines for penalty assessment as outlined herein, so as to be in compliance with the $25,000.00 maximum civil penalty involving the same subject matter within a six-month period of time.

(2)   Civil penalty assessment: Upon the failure to comply within the time frame set forth in the notice of violation, the floodplain administrator shall give notice of assessment of a civil penalty by providing notice of the civil penalty amount and the basis for assessment to the person assessed. The assessment of a penalty shall be served personally or by any means authorized under Rule 4 of the N.C. Rules of Civil Procedure and shall direct the violator to either pay the assessment or contest the assessment in writing, within 30 days after receipt of the notice of assessment. The office of the floodplain administrator shall initially assess the civil penalty.

(3)   Guidelines for penalty assessment: In determining the amount of the penalty to assess, the floodplain administrator shall be guided by the degree and extent of harm to the natural resources of the city, to the public health, or to private property resulting from the violation; the duration and gravity of the violation; the effect on water quality; the cost of rectifying the damage; the amount of money the violator saved by noncompliance, whether the violation was committed willfully and the prior record of the violation in complying or failing to comply with this ordinance.

(4)   Criminal penalties: A violation of this section subjects the offender to a civil penalty pursuant to the authority granted by N.C.G.S. 160A-175 and does not subject the offender to the criminal penalty provisions of N.C.G.S. 14-4 and section 1-5 of Chapter 1 of the Code of Ordinances of the City of Asheville.

(5)   Stop work order: If, through inspection, it is determined that a building or part thereof is being constructed, reconstructed, altered, or repaired in violation of this section, or other applicable local development regulation or any state law delegated to the local government for enforcement purposes in lieu of the state undertaken in substantial violation of any state or local law, or in a manner that endangers life or property, staff may order the work or activity to be immediately stopped. The stop- work order shall be in writing and directed to the person doing or in charge of the work. The stop-work order shall state the specific work to be stopped, the specific reason(s) for the stoppage, and the condition(s) under which the work may be resumed. The city shall send the stop work order in writing pursuant to section 7-12-1(h)(2) above.

(6)   Revocation: The floodplain administrator may revoke and require the return of the floodplain development permit by notifying the permit holder in writing stating the reason(s) for the revocation. Permits shall be revoked for any substantial departure from the approved application, plans, and specifications; for refusal or failure to comply with the requirements of state or local laws; or for false statements or misrepresentations made in securing the permit. Any floodplain development permit mistakenly issued in violation of an applicable state or local law may also be revoked. The notice of revocation shall be served in writing pursuant to section 7-12-1(h)(1) above, stating the reason for the revocation and the revocation shall follow the same permit approval and review process required for issuance of the permit, including notice requirements.

(7)   Permit reinstatement. A new permit application and approved plan including all permit fees must be submitted prior to reinstatement of the revoked permit. For permit reinstatement, the site must be deemed to be in compliance with the requirements of this section and all penalties have been paid in full or penalty appeal has been filed within the given time frame.

(8)   Order to abate: If, subsequent to an appeal hearing, the floodplain administrator find that the building or development is in violation of this section, a written order shall be issued to the property owner requiring the owner to remedy the violation and such remedial action may consist of an order to alter, vacate, remove, or demolish the building, as long as the notice of violation provided prior notice that such an order may be entered and such order may require that such remedial action be taken not less than 60 calendar days, nor more than 180 calendar days. Where the floodplain administrator finds that there is imminent danger to life or other property, the order may require that corrective action be taken in such lesser period as may be feasible. An appeal may be taken from the order as set forth herein.

(9)   Action for failure to comply and failure to appeal and/or pay: If violations are not cured or corrected within the time specified in the notice of violation and/or the violator fails to give timely notice of appeal or fails to pay the civil penalty assessed within the prescribed time period, then the matter may be referred to the city's debt set-off program and/or referred to the city attorney for institution of a civil action in the name of the city in a court of competent jurisdiction. In addition to, or in lieu of, the other remedies set forth in this section, the city attorney may institute an injunctive action, mandamus action, or other appropriate proceeding. Upon determining that an alleged violation is occurring or is threatened, a court hearing an appeal for relief shall enter such orders and/or judgments as are necessary to abate or prevent the violation. The institution of an action for injunctive or other relief under this section shall not relieve any party to such proceeding from any civil penalty prescribed by this section for violations of this section.

(j)   Appeals.

(1)   Appeals: Any aggrieved party may file an appeal for or from the issuance of a variance, or from a penalty assessment, notice of violation, permit disapproval, order, requirement, determination or interpretation rendered under the provisions of this section. The appeals process shall be as follows:

a.   To the floodplain administrator: With the exception of appealing for the issuance of a variance, all appeals must initially be heard by the floodplain administrator. The appeal must be submitted in writing within 30 days of receipt of an adverse action and shall specify the specific grounds for relief and what relief is requested. The floodplain administrator shall schedule a hearing no later than 30 days from receipt of the written notice of appeal. The owner shall be entitled to be heard in person or by counsel and to present arguments and evidence pertaining to the matter. Further appeal may be taken to the board of adjustment as set forth below. in the absence of an appeal, the order of the floodplain administrator shall be final.

b.   To the Asheville Board of Adjustment: Further appeal may be taken to the Asheville Board of Adjustment in accordance with and pursuant to the written requirements of the board and section 7-6-2 of the UDO.

c.   To the Buncombe County Superior Court: Every decision of the board shall be subject to review by the superior court by proceedings in the nature of certiorari. Petition for review by the superior court shall be filed with the clerk of superior court within 30 days after the decision of the board is filed in the office of the board or after a written copy thereof is delivered to every person who has filed a written request for such copy with the board at the time of its hearing of the case, whichever is later. The appeal shall be limited to the record before the board. Provided however, nothing herein shall modify, abrogate or amend the requirements set forth in N.C.G.S. 143-215.57 and to the extent of conflict, the language of the statute shall prevail.

(Ord. No. 2369, § 1, 5-27-97; Ord. No. 2902, §§ 1(k)—1(s), 3-12-02; Ord. No. 3381, § 1(c), 7-25-06; Ord. No. 3730, § 1, 4-28-09; Ord. No. 3809, § 1, 11-24-09; Ord. No. 4837, § 1(b)—(h), 10-27-20; Ord. 5114, § 2, 1-28-25)