(a) Interpretations. For the purpose of this article, the following interpretations shall apply:
(1) Words used in the present tense include the future tense
(2) The singular includes the plural
(3) The plural includes the singular
(4) The word "person" includes a corporation, unincorporated association or partnership as well as an individual
(5) The term "shall" or "will" is always mandatory
(6) The word "building" or "structure" shall be construed as if followed by the phrase "or part thereof"
(7) The word "ordinance" shall refer to the Floodplain Ordinance.
(b) Definitions. Unless specifically defined below, words and phrases used in this Ordinance shall be interpreted so as to give this Ordinance it's most reasonable application.
(1) Appurtenant Structure. A structure on the same parcel of property as the principal structure and the use of which is incidental to the use of the principal structure. This does not include a gas or liquid storage tank. These structures cannot be used as living space.
(2) Base Flood. Means the flood having a one percent (1%) chance of being equaled or exceeded in any given year.
(3) Base Flood Elevation (BFE). The water surface elevation of the base flood in relation to the datum specified on the CITY OF KEYSER'S Flood Insurance Rate Map. For the purposes of this Ordinance, the one hundred (100) year flood or 1% annual chance flood.
(4) Basement. Any area of the building having its floor sub grade (below ground level) on all sides.
(5) Certificate of Compliance. A certification that all development is in compliance with all the provisions of this Ordinance.
(6) Compensatory storage. An artificially excavated, hydraulically equivalent volume of storage within the special flood hazard area used to balance the loss of natural flood storage capacity when artificial fill or structures are placed within the special flood hazard area.
(7) Contractor - WV State Code §21-11-3(c).
A. A person who in any capacity for compensation, other than as an employee of another, undertakes, offers to undertake, purports to have the capacity to undertake, or submits a bid to construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, structure or excavation associated with a project, development or improvement, or to do any part thereof, including the erection of scaffolding or other structures or works in connection therewith, where the cost of undertaking is one thousand dollars or more. Contractor includes a construction manager who performs management and counseling services on a construction project for a professional fee.
B. Contractor does not include:
1. One who merely furnishes materials or supplies without fabricating or consuming them in the construction project;
2. A person who personally performs construction work on the site of real property which the person owns or leases whether for commercial or residential purposes;
3. A person who is licensed or registered as a professional and who functions under the control of any other licensing or regulatory board, whose primary business is real estate sales, appraisal, development, management and maintenance, who acting in his or her respective professional capacity and any employee of such professional, acting in the course of his or her employment, performs any work which may be considered to be performing contracting work;
4. A pest control operator licensed under the provisions of section seven, article sixteen-a, chapter nineteen of this code to engage in the application of pesticides for hire, unless the operator also performs structural repairs exceeding one thousand dollars on property treated for insect pests; or
5. A corporation, partnership or sole proprietorship whose primary purpose is to prepare construction plans and specifications used by the contractors defined in this section and who employs full time a registered architect licensed to practice in this State or a registered professional engineer licensed to practice in this State. Contractor also does not include employees of such corporation, partnership or sole proprietorship.
(8) Critical Facility. Any facility in which even a slight chance of flooding is too great a threat. Typical critical facilities include hospitals, fire stations, police stations, storage of critical records, and similar facilities. These should be given special consideration when formulating regulatory alternatives and floodplain management plans. A critical facility should not be located in a special flood hazard area if at all possible. If a critical facility must be located in a special flood hazard area it should be provided a higher level of protection so that it can continue to function and provide services during a flood.
(9) Development. Any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations, or storage of equipment or materials.
(10) Flood. A general and temporary inundation of water in an area of normally dry land.
(11) Flood Insurance Rate Map (FIRM). The official map on which the Federal Emergency Management Agency has delineated both the special flood hazard areas and the risk premium zones applicable to the City of Keyser. A FIRM that has been made available digitally is called a Digital Flood Insurance Rate Map (DFIRM)
(12) Flood Insurance Study. The official report in which the Federal Emergency Management Agency has provided flood profiles, floodway information, and water surface elevations.
(13) Floodplain.
A. A relatively flat or low land area adjoining a river, stream, or watercourse which is subject to partial or complete inundation;
B. An area subject to the unusual and rapid accumulation or runoff of surface waters from any source.
(14) Floodway. The channel of a river or other watercourse and the adjacent land area that must be reserved to discharge the base flood without increasing the water surface elevation of that flood more than one foot at any point.
(15) Flood Proofing. Any combination of structural and non-structural additions, changes or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents.
(16) Freeboard. A factor of safety usually expressed in feet above a flood level for purposes of floodplain management. Freeboard tends to compensate for unknown factors that may contribute uncertainty to flood heights of any given flood and floodway condition, such as wave action, blockage at stream crossings, and increased runoff from urbanization of the watershed. Freeboard also tends to lower the cost of flood insurance.
(17) Highest Adjacent Grade (HAG). The highest natural elevation of the ground surface immediately adjacent to the development or structure foundation. This is primarily used during insurance rating in approximated floodplains.
(18) Historic Structure. Any structure that is:
A. Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing in the National Register;
B. Certified or preliminarily determined by the Secretary of Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district;
C. Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior; or,
D. Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either:
1. By an approved state program as determined by the Secretary of the Interior; or,
2. Directly by the Secretary of Interior in states without approved programs.
(19) Licensed Manufactured Home Dealer. A business licensed to sell manufactured homes in the State of West Virginia as set forth in the WV State Code.
(20) Licensed Manufactured Home Installer. A contractor licensed to install manufactured homes in WV as set forth in the WV State Code.
(21) Licensed Professional Surveyor. Any person licensed by the WV State Board of Examiners of Land Surveyors to engage in the practice of land surveying as defined in the WV State Code.
(22) Lowest Adjacent Grade (LAG). Lowest natural elevation of the ground surface immediately adjacent to the proposed development or structure foundation. The primary use of the LAG is to determine whether the structure is located within a special flood hazard area by comparing it to the base flood elevation.
(23) Lowest Floor. The lowest floor of the lowest enclosed area (including basement). An unfinished enclosure constructed with flood resistant materials as defined in FEMA Technical Bulletin 2 and usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor; Provided, that such enclosure has proper flood openings and is not built so as to render the structure in violation of the applicable non-elevation design requirements of this Ordinance.
(24) Manufactured Home. A structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. The term "manufactured home" does not include a "recreational vehicle".
(25) New Construction. Structures for which the start of construction as herein defined commenced on or after 09/27/1991 and including any subsequent improvements to such structures. Any construction started after effective date of the City of Keyser's first floodplain ordinance adopted by City of Keyser and before the effective start date of this floodplain management ordinance is subject to the ordinance in effect at the time the ordinance was issued, provided the start of construction was within 180 days of permit issuance.
(26) One-Hundred (100) Year Flood. A flood that has one chance in one-hundred or a one percent or greater chance of being equaled or exceeded in any given year.
(27) Person. Any individual or group of individuals, corporation, partnership, association or other entity, including State and Local governments and agencies.
(28) Practice of Engineering.
A. Any service or creative work, as described in WV State Code Article 13, the adequate performance of which requires engineering education, training and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning and design of engineering works and systems; planning the use of land and water; teaching of advanced engineering subjects, engineering surveys and studies; and the review of construction for the purpose of assuring compliance with drawings and specifications any of which embraces such services or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects and industrial or consumer products or equipment of a mechanical, electrical, hydraulic, pneumatic or thermal nature, insofar as they involve safeguarding life, health or property, and including such other professional services as may be necessary to the planning, progress and completion of any engineering services. Engineering surveys include all survey activities required to support the sound conception, planning, design, construction, maintenance and operation of engineered projects.
B. Any person who practices any branch of the profession of engineering or who, by verbal claim, sign, advertisement, letterhead, card or in any other way represents himself to be a Registered Professional Engineer, or by using another title implies that he or she is a Registered Professional Engineer or that he or she is registered under WV State Code, article 13 or who holds himself or herself out as able to perform, or who performs any engineering service or work or any other service designated by the practitioner which is recognized as engineering, is considered to practice or offer to practice engineering within the meaning and intent of WV State Code article 13.
(29) Principally Above Ground. Where at least 51 percent of the Actual Cash Value of a structure, less land value, is above ground.
(30) Recreational Vehicle. A vehicle which is:
A. Built on a single chassis;
B. 400 square feet or less when measured at the largest horizontal projection;
C. Designated to be self-propelled or permanently towable by a light duty truck; and
D. Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.
(31) Registered Professional Engineer. A person who has been duly registered or licensed as a Registered Professional Engineer by the West Virginia State Board of Registration for Professional Engineers as required under WV State Code article 13 et seq.
(32) Remedy a Violation. To bring a structure or other development into compliance with the requirements of this Ordinance, or if full compliance is not possible, to reduce the adverse impact of the non-compliance to the greatest extent feasible.
(33) Reasonably Safe from Flooding. Means that during the base flood, water should not damage structures and any subsurface waters related to the base flood should not damage existing or proposed structures.
(34) Special Flood Hazard Area. The land in the Floodplain subject to a one percent or greater chance of flooding in any given year. Special flood hazard areas are designated by the Federal Emergency Management Agency in Flood Insurance Studies and on Flood Insurance Rate Maps as Zones A, AE, AO, A1-30, and A99. This term shall also include areas shown on other flood hazard maps that are specifically listed or otherwise described in this Ordinance.
(35) Start of Construction. The date the permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond initial excavation, or the placement of a manufactured home on a foundation. Although a permit must be obtained prior to beginning, permanent construction does not include land preparation, such as clearing, grading and filling, nor does it include the installation of streets and/or walkways, nor does it include excavation for a basement, footings, piers or foundations or the erection of temporary forms, nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For an alteration, the actual start of construction means the first alteration of any wall, ceiling, floor or other structural part of a building, whether or not that alteration affects the external dimensions of the building.
(36) State Coordinating Office. The West Virginia Division of Homeland Security and Emergency Management.
(37) Stream. As defined in WV State Code §7-1-3u, any watercourse, whether natural or man-made, distinguishable by banks and a bed, regardless of their size, through which water flows continually or intermittently, regardless of its volume.
(38) Structure. A walled and roofed building, including a gas or liquid storage tank that is principally above ground, as well as a manufactured home.
(39) Substantial Damage. Damage of any origin sustained by a structure whereby the cost of restoring the structure to it's before damage condition would equal or exceed 50 percent of the market value of the structure before the damage occurred. Substantial damage also means cumulative flood-related damages sustained by a structure on two separate occasions during a 10 year period for which the cost of repairs at the time of each flood event, on the average, equals or exceeds 25 percent of the fair market value of the structure before the damage occurred. See "Substantial Improvement".
(40) Substantial Improvement.
A. Any repair, reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50 percent of the fair market value of the structure before the start of construction of the improvement.
B. This term includes structures, which have incurred "substantial damage", as defined herein regardless of the actual repair work performed. The term does not, however, include any project for improvement of a structure to correct existing violation of State or local health, sanitary or safety code specifications which have been identified by the local Code Enforcement Official and which are the minimum necessary to assure safe living conditions.
C. Historic structures undergoing repair or rehabilitation that would constitute a substantial improvement as defined above, must comply with all Ordinance requirements that do not preclude the structure's continued designation as a historic structure. Documentation that a specific Ordinance requirement will cause removal of the structure from the National Register of Historic Places or the State Inventory of Historic Places must be obtained from the Secretary of the Interior or the State Historic Preservation Officer. Any exemption from Ordinance requirements will be the minimum necessary to preserve the historic character and design of the structure.
D. For the purpose of this definition improvement is considered to occur when the first alteration of any wall, ceiling, floor or other structural part of the building commences whether or not the alteration affects the external dimensions of the structure.
(41) Top of Bank. The lines depicted on the FIRM maps delineating each side of a stream indicate the top of the bank. In the field a professional familiar with fluvial geomorphology should document the top of the bank. When a professional is not employed the top of the bank may be considered to be the top of the first significant slope landward of the water's edge when it is followed by at least 50 feet of relatively flat land.
(42) Variances. If compliance with any of the requirements of this article would result in an exceptional hardship to a prospective builder, developer or landowner, the City of Keyser may, upon request, grant relief from the strict application of the requirements.
Considerations for the issuance of Variances to this article shall adhere to the following criteria:
A. A decision granting or denying the variance request shall only be issued by the Floodplain Appeals Board upon; (i) a showing of good and sufficient cause, (ii) a determination that failure to grant the permit would result in exceptional hardship to the applicant, and (iii) a determination that granting the permit 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 laws, regulations or ordinances.
B. An affirmative decision granting a variance shall be issued only upon determination that it is the minimum necessary, considering the Special Flood Hazard Area, to afford relief. Financial hardship, used as sole criteria, shall not be considered sufficient justification to grant a variance.
C. An affirmative decision granting a Floodplain variance shall 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 necessary to preserve the historic character and design of the structure.
D. The Floodplain Appeals Board shall notify the applicant in writing and signed by a majority of the Floodplain Appeals Board that:
(i) The issuance of a decision to allow construction of a structure below the Base Flood Elevation will result in increased premium rates for flood insurance, and
(ii) Such construction below the Base Flood Elevation increases risk to life and property. Such notification shall be maintained with a record of all decisions as required in this Ordinance; and
E. The Floodplain Appeals Board shall:
(i) Maintain a record of all decisions including justification for the decisions, and
(ii) Report such decisions issued in its biannual report to the Federal Emergency Management Agency.
(43) Violation. The failure of any structure or development to be fully compliant with all the requirements of this Ordinance. Any structure or other development lacking the certifications, finished construction elevation certificate or other evidence of compliance required by this Ordinance is presumed to be in violation until such time as the documentation is provided. (Passed 2-14-18.)