(A) Nature of variances.
(1) The variance criteria set forth in this section of the ordinance are based on the general principle of zoning law that variances pertain to a piece of property and are not personal in nature. A variance may be granted for a parcel of property with physical characteristics so unusual that complying with the requirements of this chapter would create an exceptional hardship to the applicant or the surrounding property owners. The characteristics must be unique to the property and not be shared by adjacent parcels. The unique characteristic must pertain to the land itself, not to the structure, its inhabitants, or the property owners.
(2) It is the duty of the Fiscal Court to help protect its citizens from flooding. This need is so compelling and the implications of the cost of insuring a structure built below flood level is so serious that variances from the flood elevation or from other requirements in the flood ordinance are quite rare. The long-term goal of preventing and reducing flood loss and damage can only be met if variances are strictly limited. Therefore, the variance guidelines provided in this chapter are more detailed and contain multiple provisions that must be met before a variance can be properly granted. The criteria are designed to screen out those situations in which alternatives other man a variance are more appropriate.
(B) Designation of Variance and Appeal Board. The Fiscal Court of the county shall establish an Appeal Board consisting of designated county offices to serve on Appeal Board.
(C) Duties of Variance and Appeals Board.
(1) The Appeal Board shall hear and decide requests for variances from the requirements of this chapter and appeals of decisions or determinations made by the Floodplain Administrator in the enforcement or administration of this chapter.
(2) Any person aggrieved by the decision of the Appeal Board or any taxpayer may appeal such decision to the District Court, as provided in state statutes.
(D) Appeals variance procedures. In passing upon such applications, the Appeal Board shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this chapter, and the:
(1) Danger that materials may be swept onto other lands to the injury of others;
(2) Danger to life and properly due to flooding or erosion damage;
(3) Susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the existing individual owner and future owners of the property;
(4) Importance to the community of the services provided by the proposed facility;
(5) Necessity that the facility be located on a waterfront, in the case of functionally dependent facility;
(6) Availability of alternative locations which are not subject to flooding or erosion damage;
(7) Compatibility of the proposed use with existing and anticipated development;
(8) Relationship of the proposed use to the comprehensive plan and floodplain management program for that area;
(9) Safety of access to the property in times of flood for ordinary and emergency vehicles;
(10) Expected height, velocity, duration, rate of rise and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; and
(11) Costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, water systems, streets and bridges.
(E) Conditions for variances. Upon consideration of the factors listed above and the purposes of this chapter, the Appeal Board may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter.
(1) Generally, variances may be issued for new construction, substantial improvement and other proposed new development to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing that the procedures of §§ 171.25 through 171.27 and §§ 171.40 through 171.46 have been fully considered. As the lot size increases beyond one-half acre, the technical justification required for issuing the variance increases.
(2) Variances shall not be issued within any mapped regulatory floodway if any increase in flood levels during the base flood discharge would result
(3) Variances shall only be issued upon a determination that the variance is the “minimum necessary” to afford relief considering the flood hazard. MINIMUM NECESSARY means to afford relief with a minimum of deviation from the requirements of this chapter. For example, in the case of variances to an elevation requirement, this means the Fiscal Court need not grant permission for the applicant to build at grade, or even to whatever elevation the applicant proposes, but only to that elevation which the Fiscal Court believes will both provide relief and preserve the integrity of the local ordinance.
(4) Variances shall only be issued upon a determination that the variance is the “minimum necessary” to afford relief considering the flood hazard. In the instance of an historical structure, a determination shall be made that the variance is the minimum necessary to afford relief and not destroy the historic character and design of the structure.
(5) Variances shall only be issued upon:
(a) A showing of good and sufficient cause;
(b) A determination that failure to grant the variance would result in exceptional hardship to the applicant (as defined in this chapter); and
(c) A determination that the granting of a variance will not result in increased flood height, additional threats to public safety, cause extraordinary public expense, create nuisance (as defined in the definition section under “public safety and nuisance”), cause fraud or victimization of the public (as defined in the definition section) or conflict with existing local laws or ordinances.
(6) 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 structure is to be built and stating that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.
(7) The Floodplain Administrator shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency (FEMA) and the Federal Insurance Administration (FIA) upon request.
(8) Variances may be issued for new construction, substantial improvement and other proposed new development necessary for the conduct of a functionally dependent use provided that the provisions of divisions (A) through (E) above are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and does not result in additional threats to public safety and does not create a public nuisance.
(F) Variance notification. Any applicant to whom a variance is granted shall be given written notice over the signature of a community official that:
(1) 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;
(2) 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; and
(3) The Floodplain Administrator shall 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.
(G) Historic structures. Variances may be issued for the repair or rehabilitation of “historic structures” (see definition) upon 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 necessary to preserve the historic character and design of the structure.
(H) No impact certification within the floodway. Variances shall not be issued within any mapped or designated floodway if any increase in flood levels during the base flood discharge would result.
(Ord. 2011-12, passed 12-19-2011)