A.
The Board of Appeals shall have the power to consider and authorize
or deny variances from the strict application of the requirements
of these regulations. A variance shall be approved only if it is determined
to not be contrary to the public interest and where, owing to special
conditions of the lot or parcel, a literal enforcement of the provisions
of these regulations would result in an unnecessary hardship.
B.
Upon consideration of the purposes of these regulations, the individual
circumstances, and the considerations and limitations of this section,
the Board of Appeals may attach such conditions to variances as it
deems necessary to further the purposes of these regulations.
C.
The Board of Appeals shall notify, in writing, any applicant to whom
a variance is granted to construct or substantially improve a building
or structure with its lowest floor below the elevation required by
these regulations that the variance is to the floodplain management
requirements of these regulations only, and that the cost of federal
flood insurance will be commensurate with the increased risk, with
rates up to $25 per $100 of insurance coverage.
A.
The owner of property, or the owner's authorized agent, for which
a variance is sought shall submit an application for a variance to
the Floodplain Administrator.
B.
At a minimum, the application shall contain the following information: name, address, and telephone number of the applicant and property owner; legal description of the property; parcel map; description of the existing use; description of the proposed use; site map showing the location of flood hazard areas, designated floodway boundaries, flood zones, base flood elevations, and flood protection setbacks; description of the variance sought; and reason for the variance request. Variance applications shall specifically address each of the considerations in § 78-46.
C.
If the application is for a variance to allow the lowest floor (A
Zones) or bottom of the lowest horizontal structural member (V Zones
and Coastal A Zones) of a building or structure below the applicable
minimum elevation required by these regulations, the application shall
include a statement signed by the owner that, if granted, the conditions
of the variance shall be recorded on the deed of the property.
A.
The Floodplain Administrator shall request comments on variance applications
from MDE (NFIP State Coordinator) and shall provide such comments
to the Board of Appeals.
B.
In considering variance applications, the Board of Appeals shall
consider and make findings of fact on all evaluations, all relevant
factors, requirements specified in other sections of these regulations,
and the following factors:
(1)
The danger that materials may be swept onto other lands to the injury
of others.
(2)
The danger to life and property due to flooding or erosion damage.
(3)
The susceptibility of the proposed development and its contents (if
applicable) to flood damage and the effect of such damage on the individual
owner.
(4)
The importance of the services to the community provided by the proposed
development.
(5)
The availability of alternative locations for the proposed use which
are not subject to, or are subject to less, flooding or erosion damage.
(6)
The necessity to the facility of a waterfront location, where applicable,
or if the facility is a functionally dependent use.
(7)
The compatibility of the proposed use with existing and anticipated
development.
(8)
The relationship of the proposed use to the comprehensive plan and
hazard mitigation plan for that area.
(9)
The safety of access to the property in times of flood for passenger
vehicles and emergency vehicles.
(10)
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.
(11)
The costs of providing government 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.
(12)
The comments provided by MDE (NFIP State Coordinator).
The Board of Appeals shall make an affirmative decision on a
variance request only upon:
A.
A showing of good and sufficient cause. "Good and sufficient cause"
deals solely with the physical characteristics of the property and
cannot be based on the character of the improvement, the personal
characteristics of the owner/inhabitants, or local provision that
regulate standards other than health and public safety.
B.
A determination that failure to grant the variance would result in
exceptional hardship due to the physical characteristics of the property.
Increased cost or inconvenience of meeting the requirements of these
regulations does not constitute an exceptional hardship to the applicant.
C.
A determination that the granting of a variance for development within
any designated floodway, or flood hazard area with base flood elevations
but no designated floodway, will not result in increased flood heights
beyond that which is allowed in these regulations.
D.
A determination that the granting of a variance will not result in
additional threats to public safety; extraordinary public expense,
nuisances, fraud or victimization of the public, or conflict with
existing local laws.
E.
A determination that the building, structure or other development
is protected by methods to minimize flood damages.
F.
A determination that the variance is the minimum necessary to afford
relief, considering the flood hazard.