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(1) Whenever a person or entity is aggrieved by a decision of the Floodplain Administrator with respect to the provisions of this article, it is the right of that person or entity to appeal to the Board of Zoning Appeals sitting as the floodplain appeals board. Such appeal must be filed with the Board of Zoning Appeals, in writing, within thirty (30) days after notification of the decision by the Floodplain Administrator. Said appeal shall be served by the aggrieved person by regular mail on all interested parties on the date that said appeal is filed. The aggrieved person shall include a list of all interested parties with addresses who were served when submitting the appeal to the Board of Zoning Appeals.
(2) Upon receipt of such appeal, the Board of Zoning Appeals shall set a time, date, and place not less than ten (10) nor more than sixty (60) calendar days for the purpose of hearing the appeal. Notice of the time, date, and place of the appeal hearing shall be given to all interested parties by regular mail, to the aggrieved person by certified mail, and to the public by announcing said hearing date, time, and place during a meeting of City Council at least 10 calendar days prior to the time of the appeal. The determination by the Board of Zoning Appeals shall be final in all cases, subject to any appeal to the Circuit Court of Kanawha County, West Virginia, or any other court of competent jurisdiction.
(3) In the event an appeal is filed wherein a floodplain permit has been granted by the Floodplain Administrator, the Floodplain Administrator shall immediately issue a stop work order notice that shall remain in effect until a resolution of said appeal.
(b) Appeal Review Criteria. All appeals contesting only the permit fee, the cumulative substantial damage requirement, the flood protection setback requirement, or the freeboard requirements, may be handled at the discretion of the Board of Zoning Appeals.
(c) Variances. If compliance with any of the requirements of this article would result in an exceptional hardship to a prospective builder, developer, or landowner, the City may, upon written request, grant relief from the strict application of the requirements. Considerations for the issuance of variances to this article shall adhere to the following criteria:
(1) A decision granting or denying the variance request shall only be issued by the Board of Zoning Appeals upon (A) a showing of good and sufficient cause, (B) a determination that failure to grant the permit would result in exceptional hardship to the applicant, and (C) a determination that granting the permit 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 laws, rules, regulations, or ordinances.
(2) An affirmative decision granting a variance shall be issued only upon determination that it is the minimum necessary, considering the special flood hazard area, to afford relief. Financial hardship, used as sole criteria, shall not be considered sufficient justification to grant a variance.
(3) An affirmative decision granting a floodplain variance shall be issued for 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.
(4) The Board of Zoning Appeals shall inform the applicant that (A) the issuance of a decision to allow construction of a structure below the base flood elevation will result in increased premium rates for flood insurance, and (B) such construction below the base flood elevation increases risk to life and property.
(5) The Board of Zoning Appeals shall (A) maintain a record of all decisions, including justification for the decisions, and (B) report such decisions issued in its annual or biennial report to the Federal Emergency Management Agency per 44 CFR 59.22.
(6) An affirmative decision shall not be granted for issuance of a floodplain variance for any construction, development use, or activity within any floodway area that would cause any increase in the base flood elevation.
(d) Penalties. Any person or entity that fails to comply with any or all of the requirements or provisions of this article or a direction or order of the Floodplain Administrator or his or her substitute shall, upon conviction, be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00). Each day during which any violation of this article continues shall constitute a separate offense. In addition to the above penalties, all other actions are hereby reserved, including an action in equity for the proper enforcement of this article. The imposition of a fine or penalty for any violation of, or non-compliance with, this article shall not excuse the violation or non-compliance with the article or permit it to continue; and all violators shall be required to correct or remedy such violations or non-compliance within a reasonable time. Any structure constructed, reconstructed, enlarged, altered or relocated in non-compliance with this article may be declared by the Property Board to be a public nuisance and abated as such, subject to other applicable laws and exhaustion of appeal rights. (Ord. 2261. Passed 8-16-18.)