(a) Appeals. Whenever a person or entity is aggrieved by a decision of the Floodplain Manager with respect to the provisions of this article, it is the right of that person or entity to appeal to the Building Code Board of Appeals sitting as the Floodplain Appeals Board. Such appeal must be filed with the Appeals Board or Floodplain Manager in writing, within thirty (30) days after notification of the decision of the Floodplain Manager as announced at a regularly scheduled Planning Commission Meeting. Said Appeal shall be served by the aggrieved person by regular mail on all interested parties on the date that said Appeal is filed. Upon receipt of such appeal, the Building Code Board of Appeals shall set a time, date and place not less than ten (10) days nor more than sixty (60) calendar days for the purpose of hearing the appeal. Notice of the time, date and place of the hearing shall be given to all interested parties by placing an announcement of said hearing date, time and place on the agenda of the next regularly scheduled Building Code Board of Appeals meeting notice and to announce the date, time and place of the appeal hearing not sooner than ten (10) calendar days from said announcement date, at which time all may appear and be heard. The determination by the Building Code Board of Appeals shall be final in all cases, subject to any Appeal to the Circuit Court of Ohio County, West Virginia or any other Court of competent jurisdiction.
In the event an Appeal is filed wherein a Floodplain Permit grant has been ruled by the Floodplain Manager, the Floodplain Manager 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 Building Code Board of 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 of Wheeling may, upon 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 Floodplain Appeals Board upon (i) a showing of good and sufficient cause, (ii) a determination that failure to grant the permit would result in exceptional hardship to the applicant, and (iii) 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, regulations or ordinances.
(2) An affirmative decision granting a variance shall be issued only upon determination that it is the minimum necessary, considering the SFHA, 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 Floodplain Appeals Board shall notify the applicant in writing and signed by a majority of the Floodplain Appeals Board that (i) the issuance of a decision to allow construction of a structure below the BFE will result in increased premium rates for flood insurance, and (ii) such construction below the BFE increases risk to life and property. Such notification shall be maintained with a record of all decisions as required in this article; and
(5) The Building Code Board of Appeals shall (i) maintain a record of all decisions including justification for the decisions, and (ii) report such decisions issued in its biannual report to FEMA.
(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 BFE.
(d) Penalties. Any person, who fails to comply with any or all of the requirements or provisions of this article or direction or Order of the Floodplain Manager, or any other authorized employee of, shall be unlawful and shall be referred to the City of Wheeling Legal Department who shall expeditiously prosecute all such violators. A violator shall, upon conviction, pay a fine to the City of Wheeling of not less than fifty dollars ($50.00) or more than five hundred dollars ($500.00) plus cost of prosecution. 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 such persons 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 City Manager and/or City Council to be a public nuisance and abated as such subject to other applicable laws and exhaustion of appellate rights.
(Ord. 15476. Passed 10-20-20.)