(a) Authority, purpose, objectives, findings.
(1) Authority: This section is adopted pursuant to N.C.G.S. part 6, article 21 of chapter 143; part 23 of article 9 of chapter 160D; and article 8 of chapter 160A.
(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 floodprone 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; 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 floodprone areas;
b. Minimize expenditure of public money for costly flood control projects; minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;
c. Minimize prolonged business losses and interruptions; ensure that potential buyers are aware that property is in a special flood hazard area;
d. Help maintain a stable tax base by providing for the sound use and development of floodprone areas in such a manner as to minimize future flood damage.
(4) Findings:
a. The floodprone 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 floodprone 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 and extra-territorial jurisdiction.
(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) 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 Flood Insurance Rate Maps (FIRM), for Buncombe County dated January 6, 2010, all of which are adopted by reference and declared to be a part of this section. For purpose of grandfathering, the initial FIRMs for the Buncombe County unincorporated area are dated August 1, 1980 and for the City of Asheville are dated July 16, 1980.
(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 Crime Control and 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 mean sea level) 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 mean sea level) of all public utilities in accordance with the provisions of subsection 7-12-1(d)(3).
g. Obtain actual elevation (in relation to mean sea level) 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).
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. 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).
o. 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);
(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 mean sea level of the proposed reference level (including basement) of all structures;
(ii) Elevation in relation to mean sea level 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 mean sea level to which any proposed utility systems will be elevated or flood-proofed;
c. If flood-proofing, a flood-proofing certificate (FEMA Form 81-65) 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).
(3) Certification requirements:
a. Elevation certificates.
(i) An elevation certificate (FEMA Form 81-31), 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 mean sea level. 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 81-31) 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 81-65), 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 mean sea level. 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 (1) and (2) 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 meeting requirements of subsection 7-12-1(e)(2)h.
(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.
c. All new construction and substantial improvements shall be constructed by methods and practices that minimize flood damages.
d. Electrical, heating, ventilation, plumbing, air conditioning equipment, and other service facilities shall be designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding to the regulatory flood protection elevation. These 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.
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. Any alteration, repair, reconstruction, or improvements to a structure, which is in compliance with the provisions of this section, shall meet the requirements of "new construction" as contained in this chapter.
i. Nothing in this section shall prevent the repair, reconstruction, or replacement of a building or structure existing on the effective date of this section and located totally or partially within the floodway, non-encroachment area, or stream setback, provided there is no additional encroachment below the regulatory flood protection elevation in the floodway, non- encroachment area, or stream setback, and provided that such repair, reconstruction, or replacement meets all of the other requirements of this section.
j. 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).
k. All subdivision proposals and other development proposals shall be consistent with the need to minimize flood damage.
l. 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.
m. All subdivision proposals and other development proposals shall have adequate drainage provided to reduce exposure to flood hazards.
n. 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.
o. 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.
p. 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.
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 floodprone 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 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.
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.
(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. If any nonconforming use or structure or substantial improvement is destroyed by any means, including floods, said use or structure may be replaced provided the replacement of said structure and/or substantial improvements thereto will not result in an increase in the level of the current regulatory flood level. In all instances, a registered professional engineer or architect shall provide the floodplain administrator with an acceptable certification demonstrating that said replacement would not result in an increase in the current regulatory flood levels.
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.
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 Crime Control and 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 maybe 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 maybe 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)