§ 152.12 VARIANCES.
   (A)   General. A variance from the minimum development standards of these regulations may be allowed. An approved variance would permit construction in a manner otherwise as required or prohibited by these regulations.
(44 C.F.R. § 59.1) (ARM 36.15.218))
   (B)   Variance application requirements.
      (1)   Prior to any consideration of a variance from any development standard in these regulations, a completed floodplain permit application and required supporting material must be submitted.
      (2)   Additionally, supporting materials in a variance application specific to the variance request including facts and information addressing the criteria in this section must be submitted.
      (3)   If the floodplain permit application and variance application is deemed not correct and complete, the Floodplain Administrator shall notify the applicant of deficiencies within a reasonable time not to exceed 30 days. Under no circumstances should it be assumed that the variance is automatically granted.
   (C)   Notice requirements for floodplain variance application. Public notice of the floodplain permit application and variance application shall be given pursuant to § 152.08(B).
   (D)   Evaluation of variance application.
      (1)   A floodplain permit and variance shall only be issued upon a determination that the variance is the minimum allowance necessary, considering the flood hazard, to afford relief from these regulations and provided all of the following criteria are met:
         (a)   There is a good and sufficient cause. Financial hardship is not a good and sufficient cause;
(44 C.F.R. § 60.6(a)(3))
         (b)   Failure to grant the variance would result in exceptional hardship to the applicant;
(44 C.F.R. § 60.3(a)(3)) and ARM 36.15.218(b))
         (c)   Residential and nonresidential buildings are not in the floodway, except for alterations or substantial improvement to existing buildings, Residential dwellings including basements and attached garages do not have the lowest floor elevation below the base flood elevation;
         (d)   Any enclosure including a crawl space must meet the requirements of § 152.10(B)(14), wet floodproofing, if the enclosure interior grade is at or below the base flood elevation;
         (e)   Granting of a variance will not result in increased flood heights to existing buildings, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with other existing local laws or ordinances;
(44 C.F.R. § 60.6 (a)(3)) (ARM 36.15.218(a))
         (f)   The proposed use is adequately floodproofed;
(ARM 36.15.218(c))
         (g)   The variance is the minimum necessary, considering the flood hazard, to afford relief; (44 C.F.R. § 60.6(a)(4))
         (h)   Reasonable alternative locations are not available;
(M.C.A. § 76-5-406(3) (ARM 36.15.218(d))
         (i)   An encroachment does not cause an increase to the base flood elevation that is beyond that allowed in these regulations; and
(44 C.F.R. § 60.6(a)(1))
         (j)   All other criteria for a floodplain permit besides the specific development standard requested by variance are met.
      (2)   An exception to the variance criteria may be allowed as follows.
         (a)   For either new construction of a structure outside of the floodway only or for substantial improvements or an alteration of a structure, on a lot of one-half acres or less that is contiguous to and surrounded by lots with existing structures constructed below the base flood elevation; or
(44 C.F.R. § 60.6(a).
         (b)   For historic structures, variances may be issued for the repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure’s continued designation as a historic structure and the variance is the minimum relief necessary to preserve the historic character and design of the structure.
         (c)   The historic nature of the building must be designated as a preliminary or historic structure by U.S. Secretary of Interior or an approved state or local government historic preservation program.
(44 C.F.R. 60.6(a))
   (E)   Decision. The Board of Adjustments of the city shall:
      (1)   Evaluate the floodplain permit application and variance application using the criteria in division (D) above, and the application requirements and minimum development standards in §§ 152.09 and 152.10;
      (2)   Make findings and approve, conditionally approve or deny a floodplain permit and variance within 180 days of a complete application;
      (3)   If approved, attach conditions to the approval of floodplain permit and variance, including a project completion date and inspections during and after construction;
      (4)   Notify the applicant that the issuance of a floodplain permit and variance to construct a structure not meeting the minimum building requirements in these regulations may result in increased premium rates for flood insurance and that flood insurance premiums are determined by actuarial risk and will not be modified by the granting of a variance; and
(44 C.F.R. 60.6(a))
      (5)   Submit to the Floodplain Administrator a record of all actions involving a floodplain permit and variance, including the findings and decision and send a copy of each variance granted to DNRC.
(44 C.F.R. § 60.6(a)(6) (M.C.A. § 76-5-405)
   (F)   Judicial review. Any person or persons aggrieved by the floodplain permit and variance decision may appeal such decision to the District Court for the county.
(Ord. 2018-01, passed 5-21-2008)