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(A) Appeals Board established. The Board of Zoning Appeals as established per § 150.1006(A) and (C) of the Montgomery Codified Ordinances shall serve as the Appeals Board for the administration of this Chapter.
(B) Powers and duties.
(1) The Appeals Board shall hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Floodplain Administrator in the administration or enforcement of these regulations.
(2) Authorize variances in accordance with § 157.66 of these regulations.
(C) Appeals. Appeals will be heard pursuant to the procedures established in Chapter 150.20, §§ 150.2001 through 150.2009.
(Ord. 5-2004, passed 5-5-04; Am. Ord. 7-2004, passed 6-2-04)
Any person believing that the use and development standards of these regulations would result in unnecessary hardship may file an application for a variance. The Appeals Board shall have the power to authorize, in specific cases, such variances from the standards of these regulations, not inconsistent with Federal regulations, as will not be contrary to the public interest where, owning to special conditions of the lot or parcel, a literal enforcement of the provisions of these regulations would result in unnecessary hardship.
(A) Criteria for determination of variances.
(1) The applicant shall present such statements and evidence as the Appeals Board requires. In considering such variance applications, the Appeals Board shall consider and make findings of fact on all evaluations, all relevant factors, standards specified in other sections of these regulations and the following factors:
(a) The danger that materials may be swept onto other lands to the injury of others.
(b) The danger to life and property due to flooding or erosion damage.
(c) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner.
(d) The importance of the services provided by the proposed facility to the community.
(e) The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage.
(f) The necessity to the facility of a waterfront location, where applicable.
(g) The compatibility of the proposed use with existing and anticipated development.
(h) The relationship of the proposed use to the comprehensive plan and floodplain management program for that area.
(i) The safety of access to the property in times of flood for ordinary and emergency vehicles.
(j) The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site.
(k) 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.
(2) 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 due to the physical characteristics of the property. Increased cost or inconvenience of meeting the requirements of these regulations does not constitute an exceptional hardship to the applicant.
(c) A determination that the granting of a variance will not result in increased flood heights beyond that which is allowed in these regulations; additional threats to public safety; extraordinary public expense, nuisances, fraud on or victimization of the public, or conflict with existing local laws.
(d) A determination that the structure or other development is protected by methods to minimize flood damages.
(e) A determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(3) Upon consideration of the above factors and the purposes of these regulations, the Appeals Board may attach such conditions to the granting of variances as it deems necessary to further the purposes of these regulations.
(B) Other conditions for variances.
(1) Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.
(2) Generally, variances may be issued for new construction and substantial improvements 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 items in § 157.66(A)(1)(a) through (k) have been fully considered. As the lot size increases beyond one-half acre, the technical justification required for issuing the variance increases.
(3) Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.
(Ord. 5-2004, passed 5-5-04; Am. Ord. 7-2004, passed 6-2-04)
ENFORCEMENT
(A) No structure or land shall hereafter be located, erected, constructed, reconstructed, repaired, extended, converted, enlarged or altered without full compliance with the terms of these regulations and all other applicable regulations which apply to uses within the jurisdiction of these regulations, unless specifically exempted from filing for a development permit as stated in § 157.46.
(B) Failure to obtain a floodplain development permit shall be a violation of these regulations and shall be punishable in accordance with § 157.82.
(C) Floodplain development permits issued on the basis of plans and applications approved by the Floodplain Administrator authorize only the use, and arrangement, set forth in such approved plans and applications or amendments thereto. Use, arrangement, or construction contrary to that authorized shall be deemed a violation of these regulations and punishable in accordance with § 157.82.
(Ord. 5-2004, passed 5-5-04; Am. Ord. 7-2004, passed 6-2-04)
Whenever the Floodplain Administrator determines that there has been a violation of any provision of these regulations, he shall give notice of such violation to the person responsible therefore and order compliance with these regulations as hereinafter provided. Such notice and order shall:
(A) Be put in writing on an appropriate form;
(B) Include a list of violations, referring to the section or sections of these regulations that have been violated, and order remedial action which, if taken, will effect compliance with the provisions of these regulations;
(C) Specify a reasonable time for performance;
(D) Advise the owner, operator, or occupant of the right to appeal;
(E) Be served on the owner, occupant, or agent in person. However, this notice and order shall be deemed to be properly served upon the owner, occupant, or agent if a copy thereof is sent by registered or certified mail to the person's last known mailing address, residence, or place of business, and/or a copy is posted in a conspicuous place in or on the dwelling affected.
(Ord. 5-2004, passed 5-5-04; Am. Ord. 7-2004, passed 6-2-04)
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