(A) The Planning Commission may authorize upon appeal in specific cases the relief or variance from the terms of this chapter as will not be contrary to the public interest and only for those circumstances such as hardship, practical difficulties or circumstances unique to the property under consideration, as provided for in the respective enabling legislation for planning and zoning for cities or counties as appropriate.
(B) In the granting of the variance, the Planning Commission shall clearly identify in writing the specific conditions that existed consistent with the criteria specified in this chapter, any other zoning regulations in the community, and in the respective enabling legislation that justified the granting of the variance.
(C) No variance shall have the effect of allowing in any district uses prohibited in that district, permit a lower degree of flood protection than the regulatory flood protection elevation for the particular area, or permit standards lower than those required by state law.
(D) (1) The following additional variance criteria of the Federal Emergency Management Agency must be satisfied:
(a) Variances shall not be issued by a community within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result;
(b) Variances shall only be issued by a community upon: a showing of good and sufficient cause; a determination that failure to grant the variance would result in exceptional hardship to the applicant; and 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 on or victimization of the public, or conflict with existing local laws or ordinances; and
(c) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(2) Hearings. Upon filing with the Planning Commission of an appeal from a decision of the City Manager, or an application for a variance, the Planning Commission shall fix a reasonable time for a hearing and give due notice to the parties in interest as specified by law. The Planning Commission shall submit by mail to the Commissioner of Natural Resources a copy of the application for proposed variances sufficiently in advance so that the Commissioner will receive at least ten days' notice of the hearing.
(3) Decisions. The Planning Commission shall arrive at a decision on the appeal or variance within 30 days. In passing upon an appeal, the Planning Commission may, so long as the action is in conformity with the provisions of this chapter, reverse or affirm, wholly or in part, or modify the order, requirement, decision or determination of the City Manager or other public official. It shall make its decision in writing setting forth the findings of fact and the reasons for its decisions. In granting a variance the Planning Commission may prescribe appropriate conditions and safeguards such as those specified in division (D)(6) below, which are in conformity with the purposes of this chapter. Violations of the conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter punishable under § 151.20. A copy of all decisions granting variances shall be forwarded by mail to the Commissioner of Natural Resources within ten days of the action.
(4) Appeals. Appeals from any decision of the Planning Commission may be made, and as specified in this community's official controls and also by state statutes.
(5) Flood insurance notice and record keeping.
(a) The City Manager shall notify the applicant for a variance that: the issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage; and the construction below the 100-year or regional flood level increases risks to life and property.
(b) The notification shall be maintained with a record of all variance actions. A community shall maintain a record of all variance actions, including justification for their issuance, and report the variances issued in its annual or biennial report submitted to the Administrator of the National Flood Insurance Program.
(E) Conditional uses. The Planning Commission shall hear and decide applications for conditional uses permissible under this chapter. Applications shall be submitted to the City Manager who shall forward the application to the Planning Commission for consideration.
(1) Hearings. Upon filing with the Planning Commission an application for a conditional use permit, the Planning Commission shall submit by mail to the Commissioner of Natural Resources a copy of the application for proposed conditional use sufficiently in advance so that the Commissioner will receive at least ten days' notice of the hearing.
(2) Decisions. The Planning Commission shall arrive at a decision on a conditional use within 30 days. In granting a conditional use permit, the Planning Commission shall prescribe appropriate conditions and safeguards, in addition to those specified in division (D)(6) below, which are in conformity with the purposes of this chapter. Violations of the conditions and safeguards, when made a part of the terms under which the conditional use permit is granted, shall be deemed a violation of this chapter punishable under § 151.20. A copy of all decisions granting conditional use permits shall be forwarded by mail to the Commissioner of Natural Resources within ten days of the action.
(3) Procedures to be followed by the Planning Commission in passing on conditional use permit applications within all floodplain districts.
(a) Require the applicant to furnish such of the following information and additional information as deemed necessary by the Planning Commission for determining the suitability of the particular site for the proposed use:
1. Plans in triplicate drawn to scale showing the nature, location, dimensions and elevation of the lot, existing or proposed structures, fill, storage of materials, flood proofing measures, and the relationship of the above to the location of the stream channel; and
2. Specifications for building construction and materials, flood proofing, filling, dredging, grading, channel improvement, storage of materials, water supply and sanitary facilities.
(b) Transmit one copy of the information described in division (D)(3)(a) above to a designated engineer or other expert person or agency for technical assistance, where necessary, in evaluating the proposed project in relation to flood heights and velocities, the seriousness of flood damage to the use, the adequacy of the plans for protection and other technical matters.
(c) Based upon the technical evaluation of the designated engineer or expert, the Planning Commission shall determine the specific flood hazard at the site and evaluate the suitability of the proposed use in relation to the flood hazard.
(4) Factors upon which the decision of the Planning Commission shall be based. In passing upon conditional use applications, the Planning Commission shall consider all relevant factors specified in other sections of this chapter, and:
(a) The danger to life and property due to increased flood heights or velocities caused by encroachments;
(b) The danger that materials may be swept onto other lands or downstream to the injury of others or they may block bridges, culverts or other hydraulic structures;
(c) The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination and unsanitary conditions;
(d) The susceptibility of the proposed facility and its contents to flood damage and the effect of the damage on the individual owner;
(e) The importance of the services provided by the proposed facility to the community;
(f) The requirements of the facility for a waterfront location;
(g) The availability of alternative locations not subject to flooding for the proposed use;
(h) The compatibility of the proposed use with existing development and development anticipated in the foreseeable future;
(i) The relationship of the proposed use to the comprehensive plan and floodplain management program for the area;
(j) The safety of access to the property in times of flood for ordinary and emergency vehicles;
(k) The expected heights, velocity, duration, rate of rise and sediment transport of the flood waters expected at the site; and
(l) Other factors which are relevant to the purposes of this chapter.
(5) Time for acting on application. The Planning Commission shall act on an application in the manner described above within 30 days from receiving the application, except that where additional information is required pursuant to division (D)(3) above. The Planning Commission shall render a written decision within 30 days from the receipt of the additional information.
(6) Conditions attached to conditional use permits.
(a) Upon consideration of the factors listed above and the purpose of this chapter, the Planning Commission shall attach the conditions to the granting of conditional use permits as it deems necessary to fulfill the purposes of this chapter.
(b) The conditions may include, but are not limited to, the following:
1. Modification of waste treatment and water supply facilities;
2. Limitations on period of use, occupancy and operation;
3. Imposition of operational controls, sureties and deed restrictions;
4. Requirements for construction of channel modifications, compensatory storage, dikes, levees and other protective measures; and
5. Flood proofing measures, in accordance with the State Building Code and this chapter. The applicant shall submit a plan or document certified by a registered professional engineer or architect that the flood proofing measures are consistent with the regulatory flood protection elevation and associated flood factors for the particular area.
(Ord. 202, passed 9-20-2021)