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(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)
ARTICLE III. FLOOD HAZARD REDUCTION
In all special flood hazard areas, the following provisions are required:
(A) All new construction and substantial improvements shall be adequately anchored to prevent flotation, collapse, and lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy;
(B) Manufactured homes shall be anchored to prevent flotation, collapse, and lateral movement. Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors. This standard shall be in addition to and consistent with applicable state requirements for resisting wind forces.
(C) All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage;
(D) New construction and substantial improvements shall be constructed by methods and practices that minimize flood damage;
(E) Electrical, heating, ventilation, plumbing, air condition 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;
(F) Within Zones AH or AO, so that there are adequate drainage paths around structures on slopes to guide flood waters around and away from proposed structures;
(G) New and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system;
(H) New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters;
(I) On-site waste disposal systems shall be located and constructed to avoid impairment to them or contamination from them during flooding;
(J) Any alteration, repair, reconstruction, or improvements to a structure which is not in compliance with the provisions of this chapter, shall meet the requirements of "new construction" as contained in this chapter;
(K) Any alteration, repair, reconstruction, or improvements to a structure, which is not in compliance with the provisions of this chapter, shall be undertaken only if said non-conformity is not furthered, extended, or replaced.
(Ord. No. 23-88, 9-30-88; Amd. Ord. 13-2012, passed 8-21-12)
In all special flood hazard areas where base flood elevation data have been provided, as set forth in § 75.005, the following provisions are required:
(A) Residential Construction. New construction and substantial improvement of any residential structure (including manufactured home) shall have the lowest floor, including basement, mechanical equipment, and ductwork elevated no lower than two (2) feet above the base flood elevation. Should solid foundation perimeter walls be used to elevate a structure, openings sufficient to facilitate automatic equalization of hydrostatic flood forces on walls shall be provided in accordance with standards of § 75.026(C).
(1) In an AO zone, the lowest floor shall be elevated above the highest adjacent grade to a height equal to or higher than the depth number specified in feet on the FIRM, or elevated at least two (2) feet above the highest adjacent grade if no depth number is specified.
(2) In an A zone, where no technical data has been produced by the Federal Emergency Management Agency, the floodplain administrator will determine the method by which base flood elevations are determined. Methods include, but are not limited to, detailed hydrologic and hydraulic analyses, use of existing data available from other sources, approximate methods, use of historical data, best supportable and reasonable judgment in the event no data can be produced. The lowest floor shall be elevated no lower than two (2) feet above such base flood elevation. Title 401 KAR (Kentucky Administrative Regulations) Chapter 4, Regulation 060, Section 5(5)a, states as a part of the technical requirements for a state floodplain permit: The applicant shall provide cross sections for determining floodway boundaries (and thereby base flood elevations) at any proposed construction site where FEMA maps are not available. All cross sections shall be referenced to mean sea level and shall have vertical error tolerances of no more than + five-tenths (0.5) foot Cross sections elevations shall be taken at those points which represent significant breaks in slope and at points where hydraulic characteristics of the base floodplain change. Each cross section shall extend across the entire base floodplain and shall be in the number and at the locations specified by the cabinet. If necessary to ensure that significant flood damage will not occur, the cabinet may require additional cross sections or specific site elevations which extend beyond those needed for making routine regulatory floodway boundary calculations.
(3) In all other zones, elevated two (2) feet above the base flood elevation.
Upon the completion of the structure, the elevation of the lowest floor (including basement) shall be certified by a registered professional engineer or surveyor, and verified by the community building inspection department to be properly elevated. Such certification and verification shall be provided to the floodplain administrator.
(B) Non-Residential Construction. New construction and substantial improvement of any commercial, industrial, or non-residential structure (including manufactured homes used for nonresidential purposes) shall be elevated to conform with § 75.026(A) or together with attendant utility and sanitary facilities:
(1) Be floodproofed to an elevation two (2) feet above the level of the base flood elevation so that the structure is watertight with walls substantially impermeable to the passage of water;
(2) Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy and debris;
(3) A registered professional engineer or architect shall certify that the standards of this subsection are satisfied. Such certification along with the design and operational maintenance plans shall be provided to the floodplain administrator.
(4) Manufactured homes shall meet the standards in § 75.026(D).
(5) All new construction and substantial improvement with fully enclosed areas below the lowest floor (including basements) that are usable solely for parking of vehicles, building access or storage, and which are subject to flooding, shall be constructed of flood resistant materials to an elevation two (2) feet above the base flood elevation, and, shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwater. Openings for meeting this requirement must meet or exceed the standards of § 75.026(C).
(C) Elevated Structures. New construction and substantial improvements of elevated structures on columns, posts, or pilings that include fully enclosed areas formed by foundation and other exterior walls below the lowest floor shall be designed to preclude finished living space and designed to allow for the entry and exit of floodwaters to automatically equalize hydrostatic flood forces on exterior walls.
(1) Openings for complying with this requirement must either be certified by a professional engineer or architect or meet the following minimum criteria:
(a) Provide a minimum of two (2) openings having a total net area of not less than one (1) square inch for every square foot of enclosed area subject to flooding;
(b) The bottom of all openings shall be no higher than one (1) foot above foundation interior grade (which must be equal to in elevation or higher than the exterior foundation grade); and
(c) Openings may be equipped with screens, louvers, valves, or other coverings or devices provided they permit the automatic flow of floodwaters in both directions.
(2) Access to the enclosed area shall be the minimum necessary to allow for parking of vehicles (garage door), limited storage of maintenance equipment used in connection with the premises (standard exterior door), or entry to the living area (stairway or elevator); and
(3) The interior portion of such enclosed areas shall not be finished or partitioned into separate rooms.
(D) Standards for Manufactured Homes and Recreational Vehicles.
(1) (a) All new and substantially improved manufactured homes placed on sites located within A, Al-30, AO, AH, and AE on the community's Flood Insurance Rate Map (FIRM) must meet all the requirements for new construction, including elevation and anchoring. Locations include:
(i) On individual lots or parcels;
(ii) In expansions to existing manufactured home parks or subdivisions;
(iii) In new manufactured home parks or subdivisions or
(iv) In substantially improved manufactured home parks or subdivisions;
(v) Outside of a manufactured home park or subdivision; and
(vi) In an existing manufactured home park or subdivision on a site upon which a manufactured home has incurred "substantial damage" as the result of a flood.
(b) All such manufactured homes must be:
(i) Elevated on a permanent foundation; and
(ii) Have its lowest floor elevated no lower than two (2) feet above the level of the base flood elevation; and
(iii) Be securely anchored to an adequately anchored foundation system to resist flotation, collapse and lateral movement.
(2) Except manufactured homes that have incurred substantial damage as a result of a flood, all manufactured homes placed or substantially improved in an existing manufactured home park or subdivision must be elevated so that:
(a) The manufactured home is securely anchored to an adequately anchored foundation system to resist flotation, collapse and lateral movement, so that either:
(i) The lowest floor of the manufactured home is elevated no lower than two (2) feet above the base flood elevation, or
(ii) The manufactured home chassis is supported by reinforced piers or other foundation elements of at least an equivalent strength, of no less than thirty-six (36) inches in height above the highest adjacent grade.
(3) (a) All recreational vehicles placed on sites located within A, Al-30, AO, AH, and AE on the community's Flood Insurance Rate Map (FIRM) must either:
(i) Be on the site for fewer than one hundred eighty (180) consecutive days,
(ii) Be fully licensed and ready for highway use, or
(iii) Meet the permit requirements for new construction of this chapter, including anchoring and elevation requirements for "manufactured homes".
(b) A recreational vehicle is ready for highway use if it is licensed and insured in accordance with the State of Kentucky motor vehicle regulations, is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions.
(E) Floodways. Located within areas of special flood hazard established in § 75.005, are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of flood waters which carry debris, potential projectiles and has erosion potential, the following provisions shall apply:
(1) Prohibit encroachments, including fill, new construction, substantial improvements, and other developments unless certification (with supporting technical data) by a registered professional engineer is provided demonstrating that encroachments shall not result in any increase in the base flood elevation levels during occurrence of base flood discharge;
(Ord. No. 23-88, 9-30-88; Amd. Ord. No. 13-95, 6-26-95; Amd. Ord. 13-2012, passed 8-21-12)
Located within the special flood hazard areas established in § 75.005, where streams exist but where no base flood data has been provided or where base flood data has been provided without floodways, the following provisions apply:
(A) No encroachments, including fill material or structures, shall be located within special flood hazard areas, unless certification 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 of the base flood more than one foot at any point within the community. The engineering certification should be supported by technical data that conforms to standard hydraulic engineering principles.
(B) New construction and substantial improvements of structures shall be elevated or flood proofed to elevations established in accordance with § 75.005.
(Ord. No. 23-88, 9-30-88; Amd. Ord. 13-2012, passed 8-21-12)
(A) All subdivision proposals shall identify the flood hazard area and the elevation of the base flood and be consistent with the need to minimize flood damage.
(B) All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage.
(C) All subdivision proposals shall have adequate drainage provided to reduce exposure to flood hazards.
(D) In areas where base flood elevation and floodway data is not available, base flood elevation and floodway data for subdivision proposals and other proposed development (including manufactured home parks and subdivisions) greater than fifty (50) lots or five (5) acres, whichever is the lesser, shall be provided.
(E) All subdivision plans will include the elevation of proposed structure(s) and lowest adjacent grade. If the site is filled above the base flood elevation, the lowest floor and lowest adjacent grade elevations shall be certified by a registered professional engineer or surveyor and provided to the floodplain administrator.
(Ord. No. 23-88, 9-30-88; Amd. Ord. 13-2012, passed 8-21-12)
Located within the special flood hazard areas established in § 75.005, are areas designated as shallow flooding areas. These areas have flood hazards associated with base flood depths of one (1) to three (3) feet where a clearly defined channel does not exist and where the path of flooding is unpredictable and indeterminate; therefore, the following provisions apply:
(A) All new construction and substantial improvements of residential structures shall have the lowest floor, including basement, elevated to or above either the base flood elevation or in Zone AO the flood depth specified on the flood insurance rate map above the highest adjacent grade. In Zone AO, if no flood depth is specified, the lowest floor, including basement, shall be elevated no less than two (2) feet above the highest adjacent grade.
(B) All new construction and substantial improvements of substantial of non-residential structures shall:
(1) Have the lowest floor, including basement, elevated to or above either the base flood elevation or in Zone AO the flood depth specified on the flood insurance rate map, above the highest adjacent grade. In Zone AO, if no flood depth is specified, the lowest floor, including basement shall be elevated no less than two (2) feet above the highest adjacent grade.
(2) Together with attendant utility and sanitary facilities be completely floodproofed either to the base flood elevation or above or, in Zone AO, to or above the specified flood depth plus a minimum of one (1) foot so that any space below that level is 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 as stated in § 75.026(B).
(Ord. No. 23-88, 9-30-88; Amd. Ord. 13-2012, passed 8-21-12)
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