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, an unnecessary hardship would
result.
B.
Upon consideration of the purposes of these regulations,
the individual circumstances, and the considerations and limitations
of this article, 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 § 79-39.
C.
If the application is for a variance to allow the lowest
floor 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.
D.
If the application is for a variance for an historic structure pursuant to § 79-23 of these regulations, the application shall contain documentation that the proposed work does not preclude the structure's continued eligibility and designation as an historic structure. The documentation shall be obtained from a source that is authorized to make such determinations (see definition of "historic structure").
The Floodplain Administrator shall request comments on variance
applications from MDE (NFIP State Coordinator) and shall provide such
comments to the Board of Appeals. 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:
A.
The danger that materials may be swept onto other lands
to the injury of others.
B.
The danger to life and property due to flooding or erosion
damage.
C.
The susceptibility of the proposed development and its
contents (if applicable) to flood damage and the effect of such damage
on the individual owner.
D.
The importance of the services to the community provided
by the proposed development.
E.
The availability of alternative locations for the proposed
use which are not subject to, or are subject to less, flooding or
erosion damage.
F.
The necessity to the facility of a waterfront location,
where applicable, or if the facility is a functionally dependent use.
G.
The compatibility of the proposed use with existing and
anticipated development.
H.
The relationship of the proposed use to the Comprehensive
Plan and hazard mitigation plan for that area.
I.
The safety of access to the property in times of flood
for passenger vehicles and emergency vehicles.
J.
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.
K.
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.
L.
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.
