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The chief building official is hereby appointed the floodplain administrator to administer and implement the provisions of this chapter and other appropriate sections of title 44 of the Code of Federal Regulations (National Flood Insurance Program regulations) pertaining to floodplain management.
(1992 Code, § 45-14) (Ord. 70-09, passed 8-3-2009; Ord. 94-16, passed 8-2-2016; Ord. 30-19, passed 3-19-2019)
Duties and responsibilities of the floodplain administrator and designated staff shall include, but not be limited to, the following:
(b) Review floodplain development permit application to determine whether proposed building site, including the placement of manufactured homes, will be reasonably safe from flooding;
(c) Review, approve, or deny all applications for floodplain development permits required by adoption of this chapter;
(d) Review permits for proposed development to assure that all necessary permits have been obtained from those federal, state or local governmental agencies (including § 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1334, and the Endangered Species Act (ESA) of 1973) from which prior approval is required;
(e) Where interpretation is needed as to the exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions), the floodplain administrator or designated staff shall make the necessary interpretation;
(f) Notify, in riverine situations, adjacent communities and the state coordinating agency which is the water management board authorized by SDCL 46-1-6, prior to any alteration or relocation of a watercourse, and submit evidence of the notification to the Federal Emergency Management Agency;
(g) Assure that the flood-carrying capacity within the altered or relocated portion of any watercourse is maintained;
(h) When base flood elevation data has not been provided in accordance with § 156.031, the floodplain administrator or designated staff shall obtain, review, and reasonably utilize any base flood elevation data and floodway data available from a federal, state, or other source in order to administer the provisions of §§ 156.060 through 156.068;
(i) When a regulatory floodway has not been designated, the floodplain administrator or designated staff must require that no new construction, substantial improvements, or other development (including fill) shall be permitted within Zones A1-30 and AE on the community’s FIRM, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the community;
(j) Under the provisions of 44 C.F.R. Chapter 1, § 65.12, of the National Flood Insurance Program regulations, a community may approve certain development in Zones A1-30, AE, AH on the community’s FIRM which increases the water surface elevation of the base flood by more than one foot, provided that the applicant first applies for a conditional FIRM revision through FEMA (conditional letter of map revision).
(k) Upon receipt of a floodplain development permit request, the floodplain administrator or designated staff shall compare the elevation of the site to the base flood elevation. A development project is not subject to the requirements of this chapter (with the exceptions of restrictions specifically set by this chapter for areas outside the regulated floodplain) if the development project is entirely located on a portion of the land that can be shown to be:
(1) Outside the protected area; and
(2) Higher than the base flood elevation.
(l) The floodplain administrator or designated staff shall inform the applicant that the project, permit, or development may still be subject to the flood insurance purchase requirements unless the owner receives a Letter of Map Amendment from FEMA.
(1992 Code, § 45-15) (Ord. 70-09, passed 8-3-2009; Ord. 85-11, passed 11-14-2011; Ord. 94- 16, passed 8-2-2016; Ord. 77-21, passed 7-6-2021)
(a) Application for a floodplain development permit shall be presented to the floodplain administrator or designated staff on forms furnished by them and may include, but not be limited to, plans drawn to scale showing the location, dimensions, and elevation of proposed landscape alterations, existing and proposed structures, including the placement of manufactured homes, and the location of the foregoing in relation to areas of special flood hazard.
(b) Additionally, the following information is required:
(1) Elevation (in relation to mean sea level) of the lowest floor (including basement) of all new and substantially improved structures;
(2) Elevation in relation to mean sea level to which any nonresidential structure shall be “floodproofed;”
(3) A certificate from a registered professional engineer or architect that the nonresidential floodproofed structure shall meet the floodproofing criteria of § 156.066(b);
(4) Description of the extent to which any watercourse or natural drainage will be altered or relocated as a result of proposed development;
(5) Maintain a record of all information in accordance with § 156.051(a);
(6) If along an approximate Zone A or AE, a BFE will need to be determined using either a detailed study or best available data through FEMA;
(7) The elevations of the ten-, 50-, 100-, and 500-year floods where the data is available;
(8) The boundaries of the regulatory floodplain, SFHA, floodway, and channel migration area delineated in accordance with 156.065(j)(3);
(9) The proposed drainage system including, but not limited to, storm sewers, overland flow paths, detention facilities, and roads;
(10) Existing and proposed structures, fill, pavement and other impervious surfaces, and sites for storage of materials;
(11) All wetlands;
(12) Habitat areas identified for conservation or protection under state or federal or local laws or regulations (e.g., Endangered Species Act, Magnuson-Stevens Fishery Conservation and Management Act, Growth Management Act, Shorelines Management Act, Priority Habitat and Species List); and
(13) Existing native vegetation and proposed revegetation.
(c) If the proposed project includes a new structure, substantial improvement, or repairs to a substantially damaged structure that will be elevated, the application shall include the Flood Protection Elevation for the building site and the proposed elevations of the following:
(1) The top of the bottom floor (including basement, crawl space, or enclosure floor);
(2) The top of the next higher floor;
(3) The top of the slab of an attached garage;
(4) The lowest elevation of machinery or equipment servicing the structure;
(5) The lowest adjacent (finished) grade next to structure;
(6) The highest adjacent (finished) grade next to structure; and
(7) The lowest adjacent grade at the lowest elevation of a deck or stairs, including structural support.
(d) If the proposed project will result in a new elevated building, substantial improvements to an elevated building, or repairs that require the building become elevated, a non-conversion agreement will need to be signed by the permit applicant and filed at the county register of deeds office. The non-conversion agreement shall:
(1) Acknowledge the risk associated with this building practice;
(2) Acknowledge the use of the area that was permitted as an enclosure will be used solely on nonresidential accessory or appurtenant structure of low value whose usage is only for building access, parking, or storage;
(3) Allow for community, state, and/or federal officials to conduct periodic inspections to ensure compliance; and
(4) Prior to issuance of certificate of occupancy or final inspection, whichever occurs last, the property owner must execute a non-conversion agreement and the agreement must be recorded with the county real estate records. The agreement will be in the form of a restrictive covenant or other county-approved binding instrument, where the benefits of the covenant run in favor of the city of Sioux Falls. The covenant must be drafted to run with the land and bind successors in perpetuity. The purpose of the covenant is to document the current owner's understanding of the limitations on construction and use of the enclosed area in accordance with the provisions of this chapter, and to put prospective purchasers on notice of such restrictions. The covenant will also reference retrofitting criteria necessary to properly convert accessory buildings or structures to habitable space, should the owner choose to do so. In addition to any other enforcement mechanisms available, violation of the agreement will be considered a violation of this chapter and subject to all applicable zoning enforcement procedures.
(e) For any nonresidential construction that has been wet floodproofed, a non-conversion agreement must be completed as part of the permitting process. The non-conversion agreement:
(1) Acknowledges the risk associated with this building practice;
(2) Acknowledges the use of the area that was wet floodproofed will be used solely on nonresidential accessory or appurtenant structure of low value whose usage is only for building access, parking, or storage;
(3) Allows for community, state, and/or federal officials to conduct periodic inspections to ensure compliance; and
(4) Prior to issuance of certificate of occupancy or final inspection, whichever occurs last, the property owner must execute a non-conversion agreement and the agreement must be recorded with the county real estate records. The agreement will be in the form of a restrictive covenant or other county-approved binding instrument, where the benefits of the covenant run in favor of the city of Sioux Falls. The covenant must be drafted to run with the land and bind successors in perpetuity. The purpose of the covenant is to document the current owner's understanding of the limitations on construction and use of the enclosed area in accordance with the provisions of this chapter, and to put prospective purchasers on notice of such restrictions. The covenant will also reference retrofitting criteria necessary to properly convert accessory buildings or structures to habitable space, should the owner choose to do so. In addition to any other enforcement mechanisms available, violation of the agreement will be considered a violation of this chapter and subject to all applicable zoning enforcement procedures.
(1992 Code, § 45-16) (Ord. 70-09, passed 8-3-2009; Ord. 94-16, passed 8-2-2016; Ord. 77-21, passed 7-6-2021)
Approval or denial of a floodplain development permit by the floodplain administrator shall be based on all of the provisions of this chapter and the following relevant factors:
(a) The danger to life and property due to flooding or erosion damage;
(b) The susceptibility of the proposed facility and its contents to flood damage and the effect of the damage on the individual owner;
(c) The danger that materials may be swept onto other lands to the injury of others;
(d) The compatibility of the proposed use with existing and anticipated development;
(e) The safety of access to the property in times of flood for ordinary and emergency vehicles;
(f) The costs of providing governmental services during and after flood conditions including maintenance and repair of streets and bridges, and public utilities and facilities such as sewer, gas, electrical and water systems;
(g) 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;
(h) The necessity to the facility of a waterfront location, where applicable;
(i) The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use; and
(j) The relationship of the proposed use to the comprehensive plan for that area.
(1992 Code, § 45-17) (Ord. 70-09, passed 8-3-2009)
The building board of appeals as established by the community shall hear and render judgment on requests for variances from the requirements of this chapter.
(a) Any person or persons aggrieved by the decision of the building board of appeals may appeal the decision in the courts of competent jurisdiction.
(b) The floodplain administrator shall request an opinion letter from the Federal Emergency Management Agency and the state Office of Emergency Management prior to hearing any variance. Additionally, the floodplain administrator shall maintain a record of all actions involving an appeal and shall report variances to the Federal Emergency Management Agency and the state Office of Emergency Management upon issuing a variance.
(c) Variances may be issued for:
(1) 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 the relevant factors in division (f)(2) below have been fully considered. As the lot size increases beyond the one-half acre, the technical justification required for issuing the variance increases.
(2) The repair or rehabilitation of historic structures upon a 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.
(d) Upon consideration of the factors noted above and the intent of this chapter, the building board of appeals may attach those conditions to the granting of variances as it deems necessary to further the purpose and objectives of this chapter. (See § 156.003.)
(e) Variances shall not be issued:
(1) A. To habitable structures within any designated floodway that impacts upstream and downstream per requirements within 44 C.F.R. § 60.6 (a) (1) and 44 C.F.R.§ 60.3 that need to be addressed to eliminate any increase in flood levels during the base flood discharge.
B. Regarding floodway variances: The structures must be accessory buildings and represent a low cost in potential to damage to building materials as well as public expense;
(2) To reduce the base flood elevation requirement within § 156.066(a) Residential construction; or
(3) To reduce the freeboard and/or base flood elevation requirement within § 156.066(b) Nonresidential construction.
(f) Prerequisites for granting variances.
(1) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(2) Variances shall only be issued upon:
A. Showing a good and sufficient cause;
B. A determination that failure to grant the variance would result in exceptional hardship to the applicant; and
C. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.
(3) Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with the lowest floor elevation below the base flood elevation, and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.
(1992 Code, § 45-18) (Ord. 70-09, passed 8-3-2009; Ord. 94-16, passed 8-2-2016; Ord. 78-17, passed 8-15-2017; Ord. 32-18, passed 5-2-2018; Ord. 77-21, passed 7-6-2021)
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