(A) Permit requirements.
(1) Permit required. A permit issued by the Zoning Administrator in conformity with the provisions of this subchapter shall be secured prior to the erection, addition or alteration of any building, structure or portion thereof, prior to the use or change of use of a building, structure or land; prior to the change or extension of a nonconforming use; and prior to the placement of fill, excavation of materials or the storage of materials or equipment within the floodplain.
(2) Application for permit. Application for a permit shall be made to the Zoning Administrator on forms furnished by the Zoning Administrator and shall include the following where applicable: plans in duplicate drawn to scale, showing the nature, location, dimensions and elevations of the lot; existing or proposed structures, fill or storage of materials; and the location of the foregoing in relation to the stream channel.
(3) State and federal permits. Prior to granting a permit or processing an application for a conditional use permit or variance, the Zoning Administrator shall determine that the applicant has obtained all necessary state and federal permits.
(4) Certificate of zoning compliance for a new, altered or nonconforming use. It shall be unlawful to use, occupy or permit the use or occupancy of any building or premises or part thereof hereafter created, erected, changed, converted, altered or enlarged in its use or structure until a certificate of zoning compliance shall have been issued by the Zoning Administrator stating that the use of the building or land conforms to the requirements of this subchapter.
(5) Construction and use to be as provided on applications, plans, permits, variances and certificates of zoning compliance. Permits, conditional use permits or certificates of zoning compliance issued on the basis of approved plans and applications authorize only the use, arrangement and construction set forth in the approved plans and applications, and no other use, arrangement or construction. Any use, arrangement or construction at variance with that authorized shall be deemed a violation of this subchapter, and punishable as provided by § 154.147(E).
(6) Certification. The applicant shall be required to submit certification by a registered professional engineer, registered architect or registered land surveyor that the finished fill and building elevations were accomplished in compliance with the provisions of this subchapter. Floodproofing measures shall be certified by a registered professional engineer or registered architect.
(7) Record of first floor elevation. The Zoning Administrator shall maintain a record of the elevation of the lowest floor (including basement) of all new structures and alterations or additions to existing structures in the floodplain. The Zoning Administrator shall also maintain a record of the elevation to which structures and alterations or additions to structures are floodproofed.
(8) Penalty, see § 154.147(E).
(B) Board Of Adjustments and Appeals.
(1) Rules. The Board of Adjustments and Appeals shall adopt rules for the conduct of business and may exercise all of the powers conferred on the boards by state law.
(2) Administrative review. The Board shall hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement or administration of this subchapter.
(3) Variances. The Board of Adjustment and Appeals may authorize, upon appeal in specific cases, the relief or variances from the terms of this subchapter 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. In the granting of the variance, the Board of Adjustments and Appeals shall clearly identify in writing the specific conditions that existed consistent with the criteria specified in the respective enabling legislation which justified the granting of the variance. 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.
(4) Hearings. Upon filing with the Board of Adjustments and Appeals decision of the Zoning Administrator, or an application for a variance, the Board shall fix a reasonable time for a hearing and give due notice to the parties in interest as specified by law. The Board 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.
(5) Decisions. The Board of Adjustment and Appeals shall arrive at a decision on the appeal or variance within 45 days. In passing upon an appeal, the Board may, so long as the action is in conformity with the provisions of this subchapter, reverse or affirm, wholly or in part, or modify the order, requirement, decision or determination of the Zoning Administrator 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 Board may prescribe appropriate conditions and safeguards such as those specified in § 154.147(C)(7), which are in conformity with the purposes of this subchapter. Violations of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this subchapter punishable under § 154.147(E). A copy of all decisions granting variances shall be forwarded by mail to the Commissioner of Natural Resources within ten days of the action.
(6) Appeals. Appeals from any decision of the Board of Adjustment and Appeals may be made and as specified in this community's official controls and also state statutes.
(a) Flood insurance notice and record keeping.
(b) The Zoning Administrator shall notify the applicant for a variance that:
1. The issuance of a variance to construct a structure below the base flood level will result in increased premium for flood insurance;
2. The construction below the 100-year or regional flood level increases risks to life and property; and
3. 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.
(C) Conditional uses.
(1) The City Planning and Zoning Commission shall hear and the City Council shall decide applications for conditional uses permissible under this subchapter. Applications shall be submitted to the Zoning Administrator who shall forward the application to the Planning and Zoning Commission for consideration.
(2) Hearings. Upon filing with the Planning and Zoning Commission an application for a conditional use permit, the Planning and Zoning 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.
(3) Decisions. The City Council shall arrive at a decision on a conditional use within 30 days. In granting a conditional use permit, the City Council shall prescribe appropriate conditions and safeguards, in addition to those specified in § 154.147(C)(7), 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 § 154.147(E). 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.
(4) Procedures to be followed by the City Council 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 City Council 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 lot, existing or proposed structures, fill, storage of materials, floodproofing measures and the relationship of the above to the location of the stream channel; and
2. Specifications for building construction and materials, floodproofing, filling, dredging, grading, channel improvement, storage of materials, water supply and sanitary facilities.
(b) Transmit one copy of the information described in § 154.147(C)(4)(a) 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 City Council shall determine the specific flood hazard at the site and evaluate the suitability of the proposed use in relation to the flood hazard.
(5) Factors upon which the decision of the City Council shall be based In passing upon conditional use applications, the City Council shall consider all relevant factors specified in other sections of this subchapter and:
(a) The danger to life and property due to increased flood 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 floodwaters expected at the site; and
(l) Other factors which are relevant to the purposes of this chapter.
(6) Time for acting on application. The City Council shall act on an application in the manner described above within 60 days from receiving the application, except that where additional information is required pursuant to § 154.147(C)(5). The City Council shall render a written decision within 60 days from the receipt of the additional information.
(7) Conditions attached to conditional use permits. Upon consideration of the factors listed above and the purpose of this subchapter, the City Council shall attach the conditions to the granting of conditional use permits as it deems necessary to fulfill the purposes of this subchapter. The conditions may include, but are not limited to, the following:
(a) Modification of waste treatment and water supply facilities;
(b) Limitations on period of use, occupancy and operation;
(c) Imposition of operational controls, sureties and deed restrictions;
(d) Requirements for construction of channel modifications, compensatory storage, dikes, levees and other protective measures; and
(e) Floodproofing measures, in accordance with the State Building Code and this subchapter. The applicant shall submit a plan or document certified by a registered professional engineer or architect that the floodproofing measures are consistent with the regulatory flood protection elevation and associated flood factors for the particular area.
(D) Amendments to zoning map or ordinance.
(1) The floodplain designation on the official zoning map shall not be removed from floodplain areas unless it can be shown that the designation is in error or that the area has been filled to or above the elevation of the regional flood lands outside the floodplain. Special exceptions to this rule may be permitted by the Commissioner of Natural Resources if he or she determines that, through other measures, lands are adequately protected for the intended use.
(2) All amendments to this subchapter, including amendments to the official zoning map, must be submitted to and approved by the Commissioner of Natural Resources prior to adoption. Changes in the official zoning map must meet the Federal Emergency Management Agency's (FEMA) technical conditions and criteria and must receive prior FEMA approval before adoption. The Commissioner of Natural Resources must be given ten days' written notice of all hearings to consider an amendment to the ordinance codified in this subchapter and the notice shall include a draft of the ordinance amendment or technical study under consideration.
(E) Penalty.
(1) Violation of the provisions of this subchapter or failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with grants of variances or conditional uses) shall constitute a misdemeanor and shall be punishable as defined by law.
(2) Nothing herein contained shall prevent the city from taking such other lawful action as is necessary to prevent or remedy any violation. Such actions may include but are not limited to:
(a) In responding to a suspected ordinance violation, the Zoning Administrator and local government may utilize the full array of enforcement actions available to it including but not limited to prosecution and fines, injunctions, after-the-fact permits, orders for corrective measures or a request to the National Flood Insurance Program for denial of flood insurance availability to the guilty party. The community must act in good faith to enforce these official controls and to correct ordinance violations to the extent possible so as not to jeopardize its eligibility in the National Flood Insurance Program.
(b) When a violation is either discovered by or brought to the attention of the Zoning Administrator, the Zoning Administrator shall immediately investigate the situation and document the nature and extent of the violation of the official control. As soon as is reasonably possible, this information will be submitted to the appropriate Department of Natural Resources and Federal Emergency Management Agency Regional Office along with the community of action to correct the violation to the degree possible.
(3) The Zoning Administrator shall notify the suspected party of the requirements of this subchapter and all other official controls and the nature and extent of the suspected violation of these controls. If the structure and/or use is under construction or development, the Zoning Administrator may order the development immediately halted until a proper permit or approval is granted by the community. If the construction or development is already completed, then the Zoning Administrator may either:
(a) Issue an order identifying the corrective actions that must be made within a specific time period to bring the use or structure into compliance with the official controls; or
(b) Notify the responsible party to apply for an after-the-fact permit/development approval within a specified period of time not to exceed 30 days.
(4) If the responsible party does not appropriately respond to the Zoning Administrator within the specified period of time, each additional day that lapses shall constitute an additional violation of this subchapter and shall be prosecuted accordingly. The Zoning Administrator shall also, upon the lapse of the specified response period, notify the landowner to restore the land to the condition which existed prior to the violation of this subchapter.
(Ord. 879, passed 10-28-2020)