(A) Designation of Variance and Appeals Board. The Board of Zoning Appeals as established by the Common Council of Elkhart shall hear and decide appeals and requests for variances from requirements of this subchapter of the Zoning Code.
(B) Duties of Variance and Appeals Board. The Board shall hear and decide appeals when it is alleged an error in any requirement, decision, or determination is made by the Floodplain Administrator in the enforcement or administration of this subchapter. Any person aggrieved by the decision of the Board may appeal such decision to any of the Elkhart County Superior Courts, or the Elkhart County Circuit Court.
(C) Variance procedures. In passing upon such applications, the Board of Zoning Appeals shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this subchapter and:
(1) The danger of life and property due to flooding or erosion damage;
(2) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;
(3) The importance of the services provided by the proposed facility to the community;
(4) The necessity to the facility of a waterfront location, where applicable;
(5) The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;
(6) The compatibility of the proposed use with existing and anticipated development;
(7) The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;
(8) The safety of access to the property in times of flood for ordinary and emergency vehicles;
(9) The expected height, velocity, duration, rate of rise, and sediment of transport of the floodwaters at the site; and
(10) 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.
(D) Conditions for variances.
(1) Variances shall only be issued when there is:
(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, extraordinary public expense, create nuisances, cause fraud or victimization of the public, or conflict with existing laws or ordinances.
(2) No variance for a residential use within a floodway subject to § 151.123(E) or (G)(1) may be granted.
(3) Any variance granted in a floodway subject to § 151.123(E) or (G)(1) will require a permit from the Indiana Department of Natural Resources.
(4) Variances to the provisions for flood hazard reduction of § 151.123(B) may be granted only when a new structure is to be located on a lot of 1/2 acre or less in size, contiguous to and surrounded by lots with existing structures constructed below the flood protection grade.
(5) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(6) Variances may be granted for the reconstruction or restoration of any structure individually listed on the National Register of Historic Places or the Indiana State Register of Historic Sites and Structures.
(7) 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 lowest floor is to be built and stating that the cost of the flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation; see division (E) below.
(8) The Floodplain Administrator shall maintain the records of appeal actions and report any variances to the Federal Emergency Management Agency or the Indiana Department of Natural Resources upon request; see division (E) below.
(E) Variance notification.
(1) Any applicant to whom a variance is granted shall be given written notice over the signature of a community official that:
(a) 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 $25 for $100 of insurance coverage; and
(b) 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 County Recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land.
(2) The Floodplain Administrator will maintain a record of all variance actions, including justification for their issuance, and report such variances issued in the community's biennial report submission to the Federal Emergency Management Agency.
(F) Historic structure. 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 an historic structure and the variance is the minimum to preserve the historic character and design of the structure.
(G) Special conditions. Upon the consideration of the factors listed in this section, and the purposes of this subchapter, the Board of Zoning Appeals may attach such conditions to the granting of variances as it deems necessary to further the purposes of this subchapter.
(Ord. 5263, passed 8-1-2011)