(A) The Board of Adjustment, as established by the Town of Newport, hereinafter referred to as the "Appeal Board", will hear and decide requests for variances from the requirements of this chapter.
(B) Any person aggrieved by the decision of the Appeal Board may appeal such decision to the court, as provided in G.S. Ch. 7A.
(C) Variances may be issued for:
(1) The repair or rehabilitation of historic structures, upon the 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;
(2) Functionally dependent facilities, if determined to meet the definition as stated in § 150.015, provided provisions of § 150.054(I)(2), (3) and (5) have been satisfied, and the facilities are protected by methods that minimize flood damages during the base flood, and create no additional threats to public safety; or
(3) Any other type of development, provided it meets the requirements of this section.
(D) In passing upon variances, the Appeal Board must consider all technical evaluations, all relevant factors, all standards specified in other sections of this chapter, and:
(1) The danger that materials may be swept onto other lands to the injury of others;
(2) The danger to life and property due to flooding or erosion damage;
(3) The susceptibility of the proposed facility and its contents to flood damage, and the effect of such damage on the individual owner;
(4) The importance of the services provided by the proposed facility to the community;
(5) The necessity to the facility of a waterfront location, as defined in § 150.015, as a functionally dependent facility, where applicable;
(6) The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;
(7) The compatibility of the proposed use with existing and anticipated development;
(8) The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;
(9) The safety of access to the property in times of flood for ordinary and emergency vehicles;
(10) The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters, and the effects of wave action, if applicable, expected at the site; and
(11) The costs of providing governmental services during and after flood conditions, including the maintenance and repair of public utilities and facilities, such as sewer, gas, electrical and water systems, and streets and bridges.
(E) A written report, addressing each of the above factors, will be submitted with the application for a variance.
(F) 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.
(G) Any applicant to whom a variance is granted shall be given written notice, specifying the difference between the BFE and the elevation to which the structure is to be built, and that such construction below the BFE increases risks to life and property, and that the issuance of a variance to construct a structure below the BFE may result in increased premium rates for flood insurance, up to $25 per $100 of insurance coverage. The notification will be maintained with a record of all variance actions, including justification for their issuance.
(H) The Floodplain Administrator will maintain the records of all appeal actions, and report any variances to FEMA and the State of North Carolina upon request.
(I) Conditions for variances.
(1) Variances will not be issued when the variance will make a structure in violation of other federal, state or local laws, regulations or ordinances.
(2) Variances will not be issued within any designated floodway or non-encroachment area, if the variance would result in any increase in flood levels during the base flood discharge.
(3) Variances will only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(4) Variances will only be issued prior to development permit approval.
(5) Variances will 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; and
(c) A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, will not create a nuisance, will not cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.
(J) A variance may be issued for solid waste disposal facilities or sites, hazardous waste management facilities, salvage yards, and chemical storage facilities located in special flood hazard areas, provided that all of the following conditions are met:
(1) The use serves a critical need in the community;
(2) No feasible location exists for the use outside the special flood hazard area;
(3) The reference level of any structure is elevated or floodproofed to at least the regulatory flood protection elevation;
(4) The use complies with all other applicable federal, state and local laws; and
(5) The town has notified the Secretary of the North Carolina Department of Public Safety of its intention to grant a variance at least 30 calendar days prior to granting the variance.
(Ord. passed 7-15-2003; Ord. 2019-09, passed 9-12-2019; Ord. 2020-02, passed 6-11-2020)