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§ 75.009 INTERPRETATION
   In the interpretation and application of this chapter all provisions shall be: considered minimum requirements; liberally construed in favor of the governing body; and deemed neither to limit nor repeal any other powers granted under state statutes.
(Ord. No. 23-88, 9-30-88; Amd. Ord. 13-2012, passed 8-21-12)
§ 75.010 DISCLAIMER OF LIABILITY
   The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This chapter does not imply that land outside the areas of special flood hazard or uses permitted within such areas will be free from flooding or flood damage. This chapter shall not create liability on the part of the city council or any officer or employee thereof for any flood damages that result from reliance on this chapter or any administrative decision lawfully made thereunder.
(Ord. No. 23-88, 9-30-88; Amd. Ord. 13-2012, passed 8-21-12)
ARTICLE II. ADMINISTRATION
§ 75.015 DESIGNATION OF LOCAL ADMINISTRATOR
   The city council hereby appoints the codes enforcement officer to administer, implement, and enforce the provisions of this chapter by granting or denying development permits in accordance with its provisions, and is herein referred to as the floodplain administrator.
(Ord. No. 23-88, 9-30-88; Amd. Ord. 13-2012, passed 8-21-12)
§ 75.016 PERMIT PROCEDURES
   A development permit shall be obtained before any construction or other development begins within any special flood hazard area established in § 75.005. Application for a development permit shall be made on forms furnished by the floodplain administrator prior to any development activities, and may include, but not be limited to, the following: plans in duplicate drawn to scale showing the nature, location, dimensions, and elevations of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities, and the location of the foregoing. Endorsement of the floodplain administrator is required before a state floodplain construction permit can be processed. Specifically, the following information is required:
   (A)   Application Stage.
      (1)   Proposed elevation in relation to mean sea level (MSL) of the proposed lowest floor (including basement) of all structures in Zone A and elevation of highest adjacent grade; or
      (2)   Proposed elevation in relation to mean sea level to which any non-residential structure will be flood-proofed;
      (3)   All appropriate certifications from a registered professional engineer or architect that the non-residential flood-proofed structure will meet the flood-proofing criteria in § 75.026(B) and § 75.029(B);
      (4)   Description of the extent to which any watercourse will be altered or relocated as a result of proposed development.
   (B)   Construction Stage. Upon placement of the lowest floor, and before construction continues, or flood proofing by whatever construction means, it shall be the duty of the permit holder to submit to the floodplain administrator and to the state a certification of the elevation of the lowest floor or flood-proofed elevation, as built, in relation to mean sea level. In AE, Al-30, AH, and A zones where the community has adopted a regulatory base flood elevation, said certification shall be prepared by or under the direct supervision of a registered land surveyor or professional engineer and certified by same. When flood proofing is utilized for a particular structure, said certification shall be prepared by or under the direct supervision of a certified professional engineer or architect. Any continued work undertaken prior to the submission of the certification shall be at the permit holder's risk. The floodplain administrator shall review the lowest floor and flood proofing elevation survey data submitted. Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to further progressive work being permitted to proceed. Failure to submit the survey or failure to make said corrections required hereby, shall be cause to issue a stop-work order for the project.
(Ord. No. 23-88, 9-30-88; Amd. Ord. 13-2012, passed 8-21-12)
§ 75.017 DUTIES; RESPONSIBILITIES OF LOCAL ADMINISTRATOR
   (A)   The floodplain administrator and/or staff is hereby appointed, authorized and directed to administer, implement and enforce the provisions of this chapter. The floodplain administrator is further authorized to render interpretations of this chapter, which are consistent with its spirit and purpose by granting or denying development permits in accordance with its provisions.
   (B)   The duties and responsibilities of the floodplain administrator shall include, but not be limited to the following:
      (1)   Permit Review. Review all development permits to ensure that:
         (a)   Permit requirements of this chapter have been satisfied;
         (b)   All other required state and federal permits have been obtained: review proposed development to assure that all necessary permits have been received from those governmental agencies from 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.;
         (c)   Flood damages will be reduced in the best possible manner;
         (d)   The proposed development does not adversely affect the carrying capacity of affected watercourses. For purposes of this chapter, "adversely affects" means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will increase the water surface elevation of the base flood more than one (1) foot at any point.
      (2)   Review and Use of Any Other Base Flood Data. When base flood elevation data has not been provided in accordance with § 75.005, the floodplain administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal or state agency, or other source, in order to administer the provisions of §§ 75.025 et seq. Any such information shall be submitted to the city council for adoption.
      (3)   Notification of Other Agencies.
         (a)   Notify adjacent communities, the Kentucky Division of Water, and any other federal and/or state agencies with statutory or regulatory authority prior to any alteration or relocation of the watercourse, and
         (b)   Submit evidence of such notification to the Federal Emergency Management Agency (FEMA); and
         (c)   Assure that the flood carrying capacity within the altered or relocated portion of said watercourse is maintained.
      (4)   Documentation of Floodplain Development. Obtain and maintain for public inspection and make available as needed the following:
         (a)   Certification required by § 75.026(A) (lowest floor elevations) as shown on an accurately completed and certified elevation certificate. Verify and record the actual elevation (in relation to mean sea level) of the lowest floor (including basement) of all new and substantially improved structures, in accordance with § 75.016(B);
         (b)   Certification required by § 75.026(B) (elevation or floodproofing of nonresidential structures) as shown on an accurately completed and certified FEMA floodproofing certificate. Verify and record the actual elevation (in relation to mean sea level) to which the new and substantially improved structures have been flood-proofed, in accordance with § 75.016(B);
         (c)   Certification required by § 75.026(C) (elevated structures);
         (d)   Certification of elevation required by § 75.028(A) (subdivision standards);
         (e)   Certification required by § 75.026(E) (floodway encroachments);
         (f)   Assure that maintenance is provided within the altered or relocated portion of said watercourse so that the flood-carrying capacity is maintained;
         (g)   Review certified plans and specifications for compliance; and
         (h)   Remedial Action. Take action to remedy violations of this chapter as specified in § 75.098.
      (5)   Map Determinations. Make interpretations where needed, as to the exact location of the boundaries of the special flood hazard areas, for example, where there appears to be a conflict between a mapped boundary and actual field conditions.
         (a)   Where interpretation is needed as to the exact location of boundaries of the areas of special flood hazard (for example, where there appears to be a conflict between a mapped boundary and actual field conditions) the floodplain administrator shall make the necessary interpretation. The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in § 75.018(C)(1);
         (b)   When base flood elevation data and floodway data have not been provided in accordance with § 75.005, then the floodplain administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal, state, or other source, in order to administer the provisions of §§ 75.025 et seq.;
         (c)   When flood-proofing is utilized for a particular structure, the floodplain administrator shall obtain certification from a registered professional engineer or architect, in accordance with § 75.026(B) a floodproofing certificate;
         (d)   All records pertaining to the provisions of this chapter shall be maintained in the office of the floodplain administrator and shall be open for public inspection.
      (6)   Right of Entry.
         (a)   Whenever necessary to make an inspection to enforce any of the provisions of this chapter, or whenever the floodplain administrator has reasonable cause to believe that there exists in any structure or upon any premises any condition or ordinance violation which makes such building, structure or premises unsafe, dangerous or hazardous, the floodplain administrator may enter such building, structure or premises at all reasonable times to inspect the same or perform any duty imposed upon the floodplain administrator by this chapter.
         (b)   If such structure or premises are occupied, the floodplain administrator shall first present proper credentials and request entry. If such building, structure, or premises are unoccupied, he shall first make a reasonable effort to locate the owner or other persons having charge or control of such request entry.
         (c)   If entry is refused, the floodplain administrator may seek, in a court of competent jurisdiction, an order allowing access for the purpose of enforcing the provisions of this chapter.
         (d)   When the floodplain administrator shall have first obtained a proper inspection warrant or other remedy provided by law to secure entry, no owner or occupant or any other persons having charge, care or control of any building, structure, or premises shall fail or neglect, after proper request is made as herein provided, to promptly permit entry therein by the floodplain administrator for the purpose of inspection and examination pursuant to this chapter.
      (7)   Stop Work Orders. Upon notice from the floodplain administrator, work on any building, structure or premises that is being done contrary to the provisions of this chapter shall immediately cease. Such notice shall be in writing and shall be given to the owner of the property, or to his agent, or to the person performing the work, and shall state the conditions under which work may be resumed.
      (8)   Revocation of Permits.
         (a)   The floodplain administrator may revoke a permit or approval, issued under the provisions of this chapter, in case there has been any false statement or misrepresentation as to the material fact in the application or plans on which the permit or approval was based.
         (b)   The floodplain administrator may revoke a permit upon determination that the construction, erection, alteration, repair, moving, demolition, installation, or replacement of the structure for which the permit was issued is in violation of, or not in conformity with, the provisions of this chapter.
      (9)   Liability. No officer, employee, or member of the floodplain administrator's staff, charged with the enforcement of this chapter, acting for the applicable governing authority in the discharge of his or her duties, shall thereby be personally liable, and is hereby relieved from all personal liability, for any damage that may accrue to persons or property as a result of any act required or permitted in the discharge of his or her duties. Any suit brought against any officer, employee, or member because of such act performed by him or her in the enforcement of any provision of this chapter shall be defended by the Berea Corporation counsel.
      (10)   Expiration of Floodplain Construction Permit. A floodplain development permit, and all provisions contained therein, shall expire if the "start of construction" has not occurred within one hundred and eighty (180) calendar days from the date of its issuance.
(Ord. No. 23-88, 9-30-88; Amd. Ord. 13-2012, passed 8-21-12)
§ 75.018 APPEALS AND VARIANCE PROCEDURES
   (A)   Nature of Variances.
      (1)   The variance criteria set forth in this section are based on the general principle of zoning law that variances pertain to a piece of property and are not personal in nature. A variance may be granted for a parcel of property with physical characteristics so unusual that complying with the requirements of this chapter would create an exceptional hardship to the applicant or the surrounding property owners. The characteristics must be unique to the property and not be shared by adjacent parcels. The unique characteristic must pertain to the land itself, not to the structure, its inhabitants, or the property owners.
      (2)   It is the duty of the city council to help protect its citizens from flooding. This need is so compelling and the implications of the cost of insuring a structure built below flood level is so serious that variances from the flood elevation or from other requirements in the flood chapter are quite rare. The long-term goal of preventing and reducing flood loss and damage can only be met if variances are strictly limited. Therefore, the variance guidelines provided in this chapter are more detailed and contain multiple provisions that must be met before a variance can be properly granted. The criteria are designed to screen out those situations in which alternatives other than a variance are more appropriate.
   (B)   Designation of Variance and Appeal Board. The duties of the variance and appeal board shall be exercised by the code enforcement board.
   (C)   Duties of Variance and Appeals Board.
      (1)   The variance and appeal board shall hear and decide requests for variances from the requirements of this chapter and appeals of decisions or determinations made by the floodplain administrator in the enforcement or administration of this chapter.
      (2)   Any person aggrieved by the decision of the variance and appeal board may appeal such decision to the Madison Circuit Court within thirty (30) days of the final decision appealed from.
   (D)   Variance Procedures. In passing upon such applications, the variance and appeal board shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this chapter, and:
      (1)   The danger that materials may be swept onto other lands to the injury of others;
      (2)   The danger to life and property due to flooding or erosion damage;
      (3)   Susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the existing individual owner and future owners of the property;
      (4)   Importance to the community of the services provided by the existing or proposed facility;
      (5)   Necessity that the facility be located on a waterfront, in the case of functionally dependent use;
      (6)   Availability of alternative locations, which are not subject to flooding or erosion damage;
      (7)   Compatibility of the proposed use with existing and anticipated development;
      (8)   Relationship of the proposed use to the comprehensive plan and floodplain management program for that area;
      (9)   Safety of access to the property in times of flood for ordinary and emergency vehicles;
      (10)   Expected height, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; and
      (11)   Costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, water systems, streets, and bridges and culverts.
   (E)   Conditions for Variances. Upon consideration of the factors listed above and the purposes of this chapter, the variance and appeal board may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter.
      (1)   Variances shall not be issued within any mapped regulatory floodway if any increase in flood levels during the base flood discharge would result.
      (2)   Variances shall only be issued upon a determination that the variance is the "minimum necessary" to afford relief considering the flood hazard. "Minimum necessary" means to afford relief with a minimum of deviation from the requirements of this chapter. For example, in the case of variances to an elevation requirement, this means the variance and appeal board may grant permission for the applicant to build at grade, or even to whatever elevation the applicant proposes, but only to that elevation which the variance and appeal board believes will both provide relief and preserve the integrity of the local chapter.
      (3)   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 to the applicant; and
         (c)   A determination that the granting of a variance will not result in increased flood height, additional threats to public safety, cause extraordinary public expense, create nuisance (as defined in § 75.003 under "Public safety and nuisance"), cause fraud or victimization of the public (as defined in § 75.003) or conflict with existing local laws or ordinances.
      (4)   Any applicant to whom a variance is granted shall be given written notice specifying the difference between the base flood elevation and the elevation to which the structure is to be built and stating that the cost of flood insurance will be commensurate with the increased risk resulting from the lowest floor being situated below the base flood elevation.
      (5)   The floodplain administrator shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency (FEMA) upon request.
      (6)    Variances may be issued for new construction, substantial improvement, and other proposed new development necessary for the conduct of a functionally dependent use provided that the provisions of § 75.018(D) are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and does not result in additional threats to public safety and does not create a public nuisance.
   (F)   Variance Notification. Any applicant to whom a variance is granted shall be given written notice over the signature of a community official that:
      (1)   The issuance of a variance to construct a structure below the base flood elevation will result in increased premium rates for flood insurance up to amounts as high as twenty-five dollars ($25) for one hundred dollars ($100) of insurance coverage;
      (2)   Such construction below the base flood level increases risks to life and property. A copy of the notice shall be recorded by the floodplain administrator in the Office of the Berea Recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land.
      (3)   The floodplain administrator shall maintain a record of all variance actions, including justification for their issuance or denial, and report such variances issued in the community's biennial report submission to the Federal Emergency Management Agency.
   (G)   Historic Structures. Variances may be issued for the repair or rehabilitation of "historic structures" (see definition in § 75.003) upon determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.
(Ord. No. 23-88, 9-30-88; Amd. Ord. 13-2012, passed 8-21-12)
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