(A) Designation of Floodplain Administrator. The Land Use Administrator or his, her, or their designee, hereinafter (for the purposes of this subchapter) referred to as the Floodplain Administrator, is hereby appointed to administer and implement the provisions of this subchapter.
(B) Floodplain development application, permit, and certification requirements.
(1) Application requirements. Application for a floodplain development permit or flood of record contours shall be made to the Floodplain Administrator prior to any development activities located within Special Flood Hazard Areas or flood or record contours. The following items shall be presented to the Floodplain Administrator to apply for a floodplain development permit:
(a) A plot plan drawn to scale which shall include, but shall not be limited to, the following specific details of the proposed floodplain development:
1. The nature, location, dimensions, and elevations of the area of development/disturbance; existing and proposed structures, utility systems, grading/pavement areas, fill materials, storage areas, drainage facilities, and other development;
2. The boundary of the special flood hazard area as delineated on the FIRM or other flood map as determined in this subchapter, or a statement that the entire lot is within the special flood hazard area;
3. The boundary of the flood of record contour or a statement that the entire lot is within the flood of record contour when the lot is within or appears to be within the flood of record contour as shown on the community’s flood of record contour map(s);
4. Flood zone(s) designation of the proposed development area as determined on the FIRM or other flood map as determined in this section;
5. The boundary of the floodway(s) or non-encroachment area(s) as determined in § 152.407(B);
6. The base flood elevation (UFE) where provided as set forth in this subchapter;
7. The old and new location of any watercourse that will be altered or relocated as a result of proposed development; and
8. Certification of the plot plan by a registered land surveyor or professional engineer.
(b) Proposed elevation, and method thereof, of all development within a special flood hazard area or flood of record contours including but not limited to:
1. Elevation in relation to mean sea level of the proposed reference level (including basement) of all structures;
2. Elevation in relation to mean sea level to which any nonresidential structure in Zone AE, A or AO will be flood-proofed; and
3. Elevation in relation to mean sea level to which any proposed utility systems will be elevated or flood-proofed.
(c) If flood-proofing, a flood-proofing certificate (FEMA Form 81-65) with supporting data and an operational plan that includes, but is not limited to, installation, exercise, and maintenance of flood-proofing measures;
(d) A foundation plan, drawn to scale, which shall include details of the proposed foundation system to ensure all provisions of this subchapter are met. These details include but are not limited to:
1. The proposed method of elevation, if applicable (i.e., fill, solid foundation perimeter wall, solid backfilled foundation, open foundation on columns, posts, piers, piles, shear walls); and
2. Openings to facilitate equalization of hydrostatic flood forces on walls in accordance with this subchapter when solid foundation perimeter walls are used in Zones A, AO, AE, and A1-30.
(e) Usage details of any enclosed areas below the regulatory flood protection elevation;
(f) Plans and/or details for the protection of public utilities and facilities such as sewer, gas, electrical, and water systems to be located and constructed to minimize flood damage;
(g) Copies of all other local, state, and federal permits required prior to floodplain development permit issuance (wetlands, endangered species, erosion and sedimentation control, riparian buffers, mining, and the like); and
(h) Documentation for placement of recreational vehicles and/or temporary structures, when applicable, to ensure the requirements of this subchapter are met. A description of proposed watercourse alteration or relocation, when applicable, including an engineering report on the effects of the proposed project on the flood-carrying capacity of the watercourse and the effects to properties located both upstream and downstream; and a map (if not shown on plot plan) showing the location of the proposed watercourse alteration or relocation.
(2) Permit requirements. The floodplain development permit shall include, but not be limited to:
(a) A description of the development to be permitted under the floodplain development permit;
(b) The special flood hazard area determination for the proposed development per available data specified in § 152.407;
(c) The regulatory flood protection or flood of record elevation required for the reference level and all attendant utilities;
(d) The regulatory flood protection or flood of record elevation required for the protection of all public utilities;
(e) All certification submittal requirements with timelines;
(f) A statement that fill material or other development shall not encroach into the floodway or non-encroachment area of any watercourse, as applicable;
(g) The flood openings requirements, if in Zones A, AO, AE, or A1-30; and
(h) Limitations of below BFE enclosure uses (if applicable) (i.e., parking, building access and limited storage only).
(3) Certification requirements.
(a) Elevation certificates.
1. An elevation certificate (FEMA Form 81-31) is required prior to the actual start of any new construction. It shall be the duty of the permit holder to submit to the Floodplain Administrator a certification of the elevation of the reference level, in relation to mean sea level. The Floodplain Administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder prior to the beginning of construction. Failure to submit the certification or failure to make required corrections shall be cause to deny a floodplain development permit.
2. An elevation certificate (FEMA Form 81-31) is required after the reference level is established. Within seven calendar days of establishment of the reference level elevation, it shall be the duty of the permit holder to submit to the Floodplain Administrator a certification of the elevation of the reference level, in relation to mean sea level. Any work done within the seven day calendar period and prior to submission of the certification shall be at the permit holder’s risk. The Floodplain Administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to further work being permitted to proceed. Failure to submit the certification or failure to make required corrections shall be cause to issue a stop-work order for the project.
3. A final as-built elevation certificate (FEMA Form 81-31) is required after construction is completed and prior to certificate of compliance/occupancy issuance. It shall be the duty of the permit holder to submit to the Floodplain Administrator a certification of final as-built construction of the elevation of the reference level and all attendant utilities. The Floodplain Administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to certificate of compliance/occupancy issuance. In some instances, another certification may be required to certify corrected as-built construction. Failure to submit the certification or failure to make required corrections shall be cause to withhold the issuance of a certificate of compliance/occupancy.
(b) Flood-proofing certificate. If nonresidential flood-proofing is used to meet the regulatory flood protection elevation requirements, a flood-proofing certificate (FEMA Form 81-65), with supporting data and an operational plan, is required prior to the actual start of any new construction. It shall be the duty of the permit holder to submit to the Floodplain Administrator a certification of the flood-proofed design elevation of the reference level and all attendant utilities, in relation to mean sea level. Flood-proofing certification shall be prepared by or under the direct supervision of a professional engineer or architect and certified by same. The Floodplain Administrator shall review the certificate data and plan. Deficiencies detected by such review shall be corrected by the applicant prior to permit approval. Failure to submit the certification or failure to make required corrections shall be cause to deny a floodplain development permit. Failure to construct in accordance with the certified design shall be cause to withhold the issuance of a certificate of compliance/occupancy.
(c) Engineered foundation certification. If a manufactured home is placed within Zone A, AO, AE, or A1-30 and the elevation of the chassis is more than 36 inches in height above grade, an engineered foundation certification is required per § 152.409.
(d) Alteration or relocation. If a watercourse is to be altered or relocated, a description of the extent of watercourse alteration or relocation; a professional engineer’s certified report on the effects of the proposed project on the flood-carrying capacity of the watercourse and the effects to properties located both upstream and downstream; and a map showing the location of the proposed watercourse alteration or relocation shall all be submitted by the permit applicant prior to issuance of a floodplain development permit.
(e) Certification exemptions. The following structures, if located within Zone A, AO, AE or A1-30, are exempt from the elevation/flood-proofing certification requirements specified in divisions (B)(3)(a) and (B)(3)(b) above:
1. Recreational vehicles meeting requirements of § 152.409(B);
2. Temporary structures meeting requirements of § 152.409(B)(6); and
3. Accessory structures less than 150 square feet meeting requirements of § 152.409(B)(7).
(C) Duties and responsibilities of the Floodplain Administrator. The Floodplain Administrator shall perform, but not be limited to, the following duties:
(1) Review all floodplain development applications and issue permits for all proposed development within special flood hazard areas or flood or record contours to assure that the requirements of this subchapter have been satisfied;
(2) Advise permittee that additional federal or state permits (wetlands, endangered species, erosion and sedimentation control, riparian buffers, mining, and the like) may be required, and require that copies of such permits be provided and maintained on file with the floodplain development permit;
(3) Notify adjacent communities and the state’s Department of Crime Control and Public Safety, Division of Emergency Management, the state’s Coordinator for the National Flood Insurance Program prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Emergency Management Agency (FEMA);
(4) Assure that maintenance is provided within the altered or relocated portion of said watercourse so that the flood-carrying capacity is not diminished;
(5) Prevent encroachments into floodways and non-encroachment areas unless variance requirements are met;
(6) Obtain actual elevation (in relation to mean sea level) of the reference level (including basement) and all attendant utilities of all new or substantially improved structures, in accordance with § 152.408(B)(3);
(7) Obtain actual elevation (in relation to mean sea level) to which all new and substantially improved structures and utilities have been flood-proofed, in accordance with this § 152.408(B)(3);
(8) Obtain actual elevation (in relation to mean sea level) of all public utilities in accordance with this § 152.408(B)(3);
(10) Where interpretation is needed as to the exact location of boundaries of the special flood hazard areas or of flood of record contours (for example, where there appears to be a conflict between a mapped boundary and actual field conditions or legal title), make the necessary interpretation. The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in this subchapter;
(11) When base flood elevation (BFE) data has not been provided in accordance with § 152.407(B), obtain, review, and reasonably utilize any base flood elevation (BFE) data, along with floodway data or non-encroachment area data available from a federal, state, or other source, including data developed pursuant to § 152.409(D)(2) in order to administer the provisions of this subchapter;
(12) When base flood elevation (BFE) data is provided but no floodway nor non-encroachment area data has been provided in accordance with § 152.407, obtain, review, and reasonably utilize any floodway data or non-encroachment area data available from a federal, state, or other source in order to administer the provisions of this subchapter;
(13) When the lowest ground elevation of a parcel or structure in a special flood hazard area is above the base flood elevation, advise the property owner of the option to apply for a letter of map amendment (LOMA) from FEMA. Maintain a copy of the letter of map amendment (LOMA) issued by FEMA in the floodplain development permit file;
(14) Permanently maintain all records that pertain to the administration of this subchapter and make these records available for public inspection;
(15) Make on-site inspections of work in progress. As the work pursuant to floodplain development permit progresses, the Floodplain Administrator or each member of his, her, or their Inspection Department shall make as many inspections of the work as may be necessary to ensure that the work is being done according to the provisions of the local ordinance and the terms of the permit. In exercising this power, the Floodplain Administrator (i.e., Land Use Administrator) has a right, upon presentation of proper credentials, to enter on any premises within the jurisdiction of the county and within the jurisdiction of any other community whose governing body agrees, by resolution, to such applicability at any reasonable hour for the purposes of inspection or other enforcement action;
(16) Issue stop-work orders as required. Whenever a building or part thereof is being constructed, reconstructed, altered, or repaired in violation of this chapter, the Floodplain Administrator may order the work to be immediately stopped. The stop-work order shall be in writing and directed to the person doing the work. The stop-work order shall state the specific work to be stopped, the specific reason(s) for the stoppage, and the condition(s) under which the work may be resumed. Violation of a stop-work order constitutes a misdemeanor;
(17) Revoke floodplain development permits as required. The Floodplain Administrator may revoke and require the return of the floodplain development permit by notifying the permit holder in writing stating the reason(s) for the revocation. Permits shall be revoked for any substantial departure from the approved application, plans, or specifications; for refusal or failure to comply with the requirements of state or local laws; or for false statements or misrepresentations made in securing the permit. Any floodplain development permit mistakenly issued in violation of an applicable state or local law may also be revoked;
(18) Make periodic inspections throughout all special flood hazard areas within the jurisdiction of the county and within the jurisdiction of any other community whose governing body agrees, by resolution, to such applicability. The Floodplain Administrator and each member of his, her, or their Inspections Department shall have a right, upon presentation of proper credentials, to enter on any premises within the territorial jurisdiction of the Department at any reasonable hour for the purposes of inspection or other enforcement action;
(19) Follow through with corrective procedures of this section;
(20) Review, provide input, and make recommendations for variance requests;
(21) Maintain a current map repository to include, but not limited to, the FIS Report, FIRM, and other official flood maps and studies adopted in accordance with § 152.407, including any revisions thereto including letters of map change, issued by FEMA;
(22) Coordinate revisions to FIS reports and FIRMs, including letters of map revision based on fill (LOMR-F) and letters of map revision (LOMR); and
(23) Coordinate the collection of data from record floods and ensure updates to the flood of record contours map.
(D) Corrective procedures.
(1) Violations to be corrected. When the Floodplain Administrator finds violations of applicable state and local laws, it shall be his, her, or their duty to notify the owner or occupant of the building of the violation. The owner or occupant shall immediately remedy each of the violations of law cited in such notification.
(2) Actions in event of failure to take corrective action. If the owner of a building or property shall fail to take prompt corrective action, the Floodplain Administrator shall give the owner written notice, by certified or registered mail to the owner’s last known address or by personal service, stating that:
(a) The building or property is in violation of the flood damage prevention ordinance;
(b) A hearing will be held before the Floodplain Administrator at a designated place and time, not later than ten days after the date of the notice, at which time the owner shall be entitled to be heard in person or by counsel and to present arguments and evidence pertaining to the matter; and
(c) Following the hearing, the Floodplain Administrator may issue an order to alter, vacate, or demolish the building; or to remove fill as appears appropriate.
(3) Order to take corrective action. If, upon a hearing held pursuant to the notice prescribed above, the Floodplain Administrator shall find that the building or development is in violation of the flood damage prevention ordinance, they shall issue an order in writing to the owner, requiring the owner to remedy the violation within a specified time period, not less than 60 calendar days, nor more than 180 calendar days. Where the Floodplain Administrator finds that there is imminent danger to life or other property, they may order that corrective action be taken in such lesser period as may be feasible.
(4) Appeal. Any owner who has received an order to take corrective action may appeal the order to the town’s Board of Commissioners by giving notice of appeal in writing to the Floodplain Administrator and the Town Clerk within ten days following issuance of the final order. In the absence of an appeal, the order of the Floodplain Administrator shall be final. The Board of Commissioners shall hear an appeal within a reasonable time and may affirm, modify and affirm, or revoke the order.
(5) Failure to comply with order. If the owner of a building or property fails to comply with an order to take corrective action for which no appeal has been made or fails to comply with an order of the town’s Board of Commissioners following an appeal, the owner shall be guilty of a Class 3 misdemeanor and shall be punished at the discretion of the court.
(E) Variance procedures.
(1) The town’s Board of Adjustment shall hear and decide requests for variances from the requirements of this subchapter.
(2) Any person aggrieved by the decision of the Board of Adjustment may appeal such decision to the court, as provided in G.S. Ch. 7A.
(3) Variances may be issued for:
(a) 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 that the variance is the minimum necessary to preserve the historic character and design of the structure.
(b) Functionally dependant facilities if determined to meet the definition as stated in this § 152.406, provided provisions of this division (E) have been satisfied, and such facilities are protected by methods that minimize flood damages.
(c) Any other type of development, provided it meets the requirements stated in this section.
(4) In passing upon variances, the Board of Adjustment consider all technical evaluations, all relevant factors, all standards specified in other sections of this subchapter, and:
(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 necessity to the facility of a waterfront location as defined under § 152.406 as a functionally dependant facility, where applicable;
(f) The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;
(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 floodwaters and the effects of wave action, if applicable, expected at the site; and
(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.
(5) A written report, signed and sealed by a licensed engineer in the state, addressing each of the above factors shall be submitted with the application for a variance.
(6) Upon consideration of the factors listed above and the purposes of this subchapter, the Board of Adjustment may attach such conditions to the granting of variances as it deems necessary to further the purposes of this subchapter.
(7) Any applicant to whom a variance is granted shall be given written notice specifying the difference between the base flood elevation (BFE) or flood of record elevation and the elevation to which the structure is to be built and that such construction below the base flood elevation increases risks to life and property, and that 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 $25 per $100 of insurance coverage. Such notification shall be maintained with a record of all variance actions, including justification for their issuance.
(8) The Floodplain Administrator shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency and the state upon request.
(9) Conditions for variances are as follows.
(a) Variances shall not be issued when the variance will make the structure in violation of other federal, state, or local laws, regulations, or ordinances.
(b) Variances shall 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.
(c) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(d) Variances shall only be issued prior to development permit approval.
(e) Variances shall only be issued upon:
1. A showing of good and sufficient cause;
2. A determination that failure to grant the variance would result in exceptional hardship; and
3. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.
(10) A variance may not be issued for hazardous waste management facilities, salvage yards, and chemical storage facilities. A variance may be issued for solid waste disposal facilities or critical facilities located in special flood hazard areas or within an area bounded by a flood of record contour provided that all of the following conditions are met.
(a) The use serves a critical need in the community.
(b) No feasible location exists for the use outside the special flood hazard area.
(c) The reference level of any structure is elevated or flood-proofed to at least the regulatory flood protection elevation or flood of record contour elevation.
(d) Critical facilities shall have at last one access road connected to land outside of the area bounded by a flood of record contour that is capable of supporting a 4,000-pound vehicle. The top of the access road must be no lower than one-half feet below either the regulatory flood protection elevation or the flood of record contour elevation.
(e) The use complies with all other applicable federal, state, and local laws.
(f) The town has notified the Secretary of the state’s Department of Crime Control and Public Safety of its intention to grant a variance at least 30 calendar days prior to granting the variance.
(11) The following provisions, in addition to standards outlined in this divisions (A) and (B) above shall apply to all development within floodways or non-encroachment zones:
(a) No encroachments, including fill, new construction, substantial improvements and other developments shall be permitted unless it has been demonstrated that:
1. The proposed encroachment would not result in any increase in the flood levels during the occurrence of the base flood, based on hydrologic and hydraulic analyses performed in accordance with standard engineering practice and presented to the Floodplain Administrator prior to issuance of floodplain development permit; or
2. A conditional letter of map revision (CLOMR) has been approved by FEMA. A letter of map revision (LOMR) must also be obtained upon completion of the proposed encroachment.
(b) If this section is satisfied, all development shall comply with all applicable flood hazard reduction provisions of this subchapter; and
(c) No manufactured homes shall be permitted, except replacement manufactured homes in an existing manufactured home park or subdivision, provided the following provisions are met:
1. The anchoring and the elevation standards of § 152.409(B)(3); and
2. The “no encroachment” standard of this subchapter.
(Ord. passed 12-20-2001) Penalty, see § 152.999