§ 70-160. Variance procedures.

(a)

Designation of variance and appeals board. The board of zoning adjustment and appeal (BZA) as established by the town commission shall hear and decide appeals and requests for variances from the requirements of this article.

(b)

Duties of variance and appeals board. The board shall hear and decide appeals when it is alleged an error in any requirement, decision, or determination is made by the floodplain management administrator in the enforcement or administration of this article. Any person aggrieved by the decision of the board may appeal such decision to the circuit court.

(c)

Variance procedures. In acting upon such applications, the BZA shall consider all technical evaluations, all relevant factors, standards specified in other sections of this Code, and:

(1)

The danger that materials may be swept onto other lands to the injury of others;

(2)

The danger of life and property due to flooding or erosion damage;

(3)

The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

(4)

The importance of the services provided by the proposed facility to the community;

(5)

The necessity to the facility of a waterfront location, where applicable;

(6)

The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

(7)

The compatibility of the proposed use with existing and anticipated development;

(8)

The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

(9)

The safety of access to the property in times of flood for ordinary and emergency vehicles;

(10)

The expected heights, velocity, duration, rate of rise, and sediment of transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and

(11)

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.

(d)

Conditions for variances.

(1)

Variances shall only be issued when there is:

a.

A showing of good and sufficient cause;

b.

A determination that failure to grant the variance would result in exceptional hardship; and

c.

A determination that the granting of a variance will not result in increased flood heights, additional threats to public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.

(2)

Variances shall only be issued upon a determination that the variance is the minimum necessary deviation from the requirements of this article.

(3)

The floodplain administrator shall maintain the records of all variance actions, including justification for their issuance or denial, and report such variances in the community's NFIP biennial report or upon request to FEMA and the state, department of community affairs, NFIP coordinating office.

(e)

Potential impact of variance. Applicants applying for a variance shall be given written notice by the floodplain administrator and shall sign the notice verifying that:

(1)

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 amounts as high as $25.00 for $100.00 of insurance coverage; and

(2)

Such construction below the base flood level increases risks to life and property.

If the variance is granted, a copy of the notice shall be recorded by the floodplain administrator in the office of the clerk of court and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land. All costs for recordation shall be paid by the applicant.

(f)

Historic structures. Variances may be issued for the repair or rehabilitation of historic structures meeting the definition in this article, upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure.

(g)

Structures in regulatory floodway. Variances shall not be issued within any designated floodway if any impact in flood conditions or increase in flood levels during the base flood discharge would result.

(Code 1999, § 78-195; Ord. No. 2009-04, art. I, 12-8-2009)