(A) (1) Whenever any person is aggrieved by a decision of the Floodplain Administrator with respect to the provisions of this chapter, it is the right of that person to appeal to Town Council. Such appeal must be filed, in writing, within 30 days after the determination by the permit officer.
(2) Upon receipt of such an appeal, the Town Council shall set a time and place for the purpose of hearing the appeal, which shall be not less than ten nor more than 30 days from the date of the receipt of the appeal. Notice of the time and place of the hearing of the appeal shall be given to all parties, at which time they may appear and be heard. The determination by the Town Council shall be final in all cases.
(3) In ruling upon an appeal, the Town Council shall consider the criteria listed in division (C) below.
(B) (1) The special exception provisions of this chapter fulfill the regulatory mandate of 44 C.F.R. § 60.6.
(2) In passing upon applications for a special exception, the Town Council shall satisfy all relevant factors and procedures specified in other sections of this chapter and consider the factors listed in division (C) below.
(C) In considering an appeal or a request for a special exception, the Town Council shall consider the following factors:
(1) The danger to life and property due to increased flood heights or velocities caused by encroachments. No special exception or appeal shall be granted for any proposed use, development, or activity within the floodway district that will cause any increase in flood levels during the base flood;
(2) The danger that materials may be swept on to other lands or downstream to the injury of others;
(3) The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination, and unsanitary conditions;
(4) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owners;
(5) The importance of the services provided by the proposed facility to the town;
(6) The requirements of the facility for a waterfront location;
(7) The availability of alternative locations not subject to flooding for the proposed use;
(8) The compatibility of the proposed use with existing development and development anticipated in the foreseeable future;
(9) The relationship of the proposed use to the Comprehensive Plan and floodplain management program for the area;
(10) The safety of access by ordinary and emergency vehicles to the property in time of flood;
(11) The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters expected at the site;
(12) The historic nature of a structure. Special exceptions for repair or rehabilitation of historic structures may be granted upon a determination that the proposed repair or rehabilitation will not preclude the structure’s continued designation as a historic structure and the special exception is the minimum necessary to preserve the historic character and design of the structure; and
(13) Such other factors relevant to the purposes of this chapter.
(D) The Town Council may refer any application and accompanying documentation pertaining to any request for a special exception or appeal to any engineer or other qualified person or agency for technical assistance in evaluating the proposed project in relation to flood height and velocities, and the adequacy of the plans for the flood protection, and other related matters.
(E) Special exceptions shall be issued and appeals granted only upon: a showing of good and sufficient cause; after the Town Council has determined that failure to grant the special exception or appeal would result in exceptional hardship to the applicant; and after the Town Council has determined that the granting of such will not result in unacceptable or prohibited increases in flood heights, additional threats to public safety or extraordinary public expense, and will not create a nuisance, cause fraud or victimization of the public, or conflict with local laws or ordinances.
(F) While the granting of special exceptions generally is limited to a lot size less than one-half acre, deviations from that limitation may occur. However, as the lot size increases beyond one-half acre, the technical justification required for issuing a special exception increases. Special exceptions may be issued by the Town Council 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, in conformance with the provisions of this section.
(G) Special exceptions may be issued for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided that the criteria of this section are met, and the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.
(H) Special exceptions shall be issued only after the Town Council has determined that the special exception will be the minimum required to provide relief from any hardship to the applicant.
(I) The Town Council shall notify the applicant for a special exception, in writing, that the issuance of a special exception to construct a structure below the 100-year flood elevation increases the risks to life and property and will result in increased premium rates for flood insurance.
(J) A record of the notification required by division (G) above, as well as all special exception actions, including justification for their issuance, shall be maintained; and any special exceptions shall be noted in the annual or biennial report submitted to the Federal Emergency Management Agency.
(1998 Code, § 26-44) (Ord. O-2016-01, passed 2-2-2016)