(a) The planning board as established by Bald Head Island, hereinafter referred to as the "appeal board", shall hear and decide requests for variances from the requirements of this article.
(b) Any person aggrieved by the decision of the appeal board may appeal such decision to the court, as provided in G.S. ch. 7A.
(c) Variances may be issued for:
(1) The repair or rehabilitation of historic structures upon the determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and that the variance is the minimum necessary to preserve the historic character and design of the structure;
(2) Functionally dependent facilities if determined to meet the definition as stated in section 14-35, provided provisions of section 14-65(i)2, 3, and 5 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; or
(3) Any other type of development provided it meets the requirements of this section.
(d) In passing upon variances, the appeal board shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this article, and:
(1) The danger that materials may be swept onto other lands to the injury of others;
(2) The danger to life and property due to flooding or erosion damage;
(3) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;
(4) The importance of the services provided by the proposed facility to the community;
(5) The necessity to the facility of a waterfront location as defined under section 14-35 as a functionally dependent facility, where applicable;
(6) The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;
(7) The compatibility of the proposed use with existing and anticipated development;
(8) The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;
(9) The safety of access to the property in times of flood for ordinary and emergency vehicles;
(10) The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and
(11) The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges.
(e) A written report addressing each of the above factors shall be submitted with the application for a variance.
(f) Upon consideration of the factors listed above and the purposes of this article, the appeal board may attach such conditions to the granting of variances as it deems necessary to further the purposes and objectives of this article.
(g) Any applicant to whom a variance is granted shall be given written notice specifying the difference between the 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 may result in increased premium rates for flood insurance up to $25 per $100 of insurance coverage. Such notification shall be maintained with a record of all variance actions, including justification for their issuance.
(h) The floodplain administrator shall maintain the records of all appeal actions and report any variances to the FEMA and the State of North Carolina upon request.
(i) Conditions for variances.
(1) Variances shall not be issued when the variance will make the structure in violation of other federal, state, or local laws, regulations, or ordinances.
(2) Variances shall not be issued within any designated floodway or non-encroachment area if the variance would result in any increase in flood levels during the base flood discharge.
(3) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(4) Variances shall only be issued prior to development permit approval.
(5) Variances shall only be issued upon:
a. A showing of good and sufficient cause;
b. A determination that failure to grant the variance would result in exceptional hardship; and
c. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.
(j) A variance may be issued for solid waste disposal facilities or sites, hazardous waste management facilities, salvage yards, and chemical storage facilities that are located in special flood hazard areas provided that all of the following conditions are met.
(1) The use serves a critical need in the community.
(2) No feasible location exists for the use outside the special flood hazard area.
(3) The reference level of any structure is elevated or floodproofed to at least the Regulatory Flood Protection Elevation.
(4) The use complies with all other applicable federal, state and local laws.
(5) Bald Head Island has notified the Secretary of the North Carolina Department of Public Safety of its intention to grant a variance at least 30 calendar days prior to granting the variance.
(Ord. of 9-26-2008, Art. 4, § D; Ord. of 3-20-2018; Ord. No. 2021-0607, § 2, 6-28-2021)