The code enforcement officer is hereby appointed as the local administrator to administer, implement and enforce this chapter by granting or denying floodplain development permits in accordance with its provisions.
A.
Purpose. A floodplain development permit is hereby established for all construction and other development to be undertaken in areas of special flood hazard in this Town for the purpose of protecting its citizens from increased flood hazards and ensuring that new development is constructed in a manner that minimizes its exposure to flooding. It shall be unlawful to undertake any development in an area of special flood hazard, as shown on the Flood Insurance Rate Map enumerated in § 204-11 of this chapter, without a valid floodplain development permit. Application for a permit shall be made on forms furnished by the local administrator and may include, but not be limited to: plans, in duplicate, drawn to scale and showing: the nature, location, dimensions, and elevations of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities, and the location of the foregoing.
B.
Fees. An application fee in the amounts set forth in a fee schedule established from time to time by a resolution of the Town Board shall be submitted with the application. In addition, the applicant shall be responsible for reimbursing the Town for any additional costs necessary for review, inspection and approval of this project. The local administrator may require a deposit of no more than $500 to cover these additional costs.
C.
Application. To obtain a floodplain development permit, the applicant shall first file an application therefor in writing on a form furnished by the local administrator for that purpose. This application shall provide all the following information:
(1)
A description of the location, nature, extent and scope of the proposed work.
(2)
Be signed by the owner.
(3)
Payment of the application fee.
(4)
Proposed elevation, in relation to mean sea level, of the lowest floor (including basement or cellar) of any new or substantially improved residential structure to be in a special flood hazard area. Upon completion of the lowest floor, the owner shall submit to the local administrator a FEMA elevation certificate, certified by a land surveyor or professional engineer.
(5)
Proposed elevation, in relation to mean sea level, of the lowest floor (including basement or cellar) of any new or substantially improved non-residential structure to be in Zones A1-A30, AE, or AH or Zone A if base flood elevation data are available. Upon completion of the lowest floor, the owner shall submit to the local administrator a FEMA elevation certificate, certified by a land surveyor or professional engineer.
(6)
Proposed elevation, in relation to mean sea level, to which any new or substantially improved non-residential structure will be floodproofed. Upon completion of the floodproofed portion of the structure, the owner shall submit to the local administrator a FEMA elevation certificate and as-built floodproofed elevation, certified by a land surveyor or professional engineer.
(7)
A certificate from a registered design professional that any utility floodproofing will meet the criteria prescribed in this chapter.
(8)
A certificate from a registered design professional that any non-residential floodproofed structure will meet the floodproofing criteria prescribed in this chapter.
(9)
A description of the extent to which any watercourse will be altered or relocated as a result of proposed development. Computations by a professional engineer must be submitted that demonstrate that the altered or relocated segment will provide equal or greater conveyance than the original stream segment. The applicant must submit any maps, computations or other material required by FEMA to revise the documents enumerated in § 204-11 of this chapter, when notified by the local administrator, and must pay any fees or other costs assessed by FEMA for this purpose. The applicant must also provide assurances that the conveyance capacity of the altered or relocated stream segment will be maintained.
(10)
If required by the local administrator, a technical analysis prepared, signed and sealed by a professional engineer that shows whether proposed development to be in an area of special flood hazard may result in physical damage to any other property.
(11)
In Zone A, when no base flood elevation data are available from other sources, base flood elevation data shall be provided by the applicant for a subdivision and other proposed developments (including proposals for manufactured home and recreational vehicle parks and subdivisions) that are greater than either 50 lots or five acres, whichever is more restrictive.
(12)
Give such other information as required by the local administrator.
D.
Inclusion of permit conditions. The local administrator may include in a floodplain development permit such terms and conditions as he/she/they deem necessary or appropriate to ensure safety or to further the purposes and objectives of this chapter.
E.
Construal of permit provisions. The issuance or granting of a floodplain development permit shall not be construed to be a permit for, or an approval of, any violation of any of the provisions of this chapter. A floodplain development permit presuming to give authority to violate or cancel such provisions shall not be valid. The issuance of a floodplain development permit based on technical documents, reports and/or other data shall not prevent the local administrator from requiring the correction of errors in such documents, reports and/or other data.
F.
Revocation of permit. The local administrator is authorized to revoke a floodplain development permit issued under the provisions of this chapter when it is found by inspection or otherwise that there has been a false statement or misrepresentation as to the material facts in the application or construction documents on which such permit or approval was based, including, but not limited to, any one of the following:
(1)
The floodplain development permit is used for a location (e.g., lot) or establishment other than that for which it was issued.
(2)
The floodplain development permit is used for a condition or activity other than that listed in this permit.
(3)
Conditions and limitations set forth in the floodplain development permit have been violated.
(4)
There have been any false statements or misrepresentations as to the material fact in the application for floodplain development permit or the submitted documents.
(5)
The floodplain development permit is used by a different person than the name for which it was issued.
(6)
The owner failed, refused or neglected to comply with orders or notices duly served in accordance with the provisions of this chapter within the time provided therein.
(7)
The floodplain development permit was issued in error or in violation of this chapter.
Duties of the local administrator shall include, but not be limited to the following:
A.
Permit application review. The local administrator shall conduct the following permit application review before issuing a floodplain development permit:
(1)
Review all applications for completeness and for compliance with the provisions and standards of this chapter.
(2)
Review applications for all subdivisions and other proposed new developments, including manufactured home parks, to determine whether proposed building sites will be reasonably safe from flooding. If a proposed building site is in an area of special flood hazard, all new construction and substantial improvements shall meet the applicable standards of this chapter.
(3)
Determine whether any proposed development in an area of special flood hazard may result in physical damage to any other property (e.g., stream bank erosion and increased flood velocities). The local administrator may require the applicant to submit additional technical analyses and data necessary to complete the determination.
(a)
If the proposed development may result in physical damage to any other property or fails to meet the provisions and/or standards of this chapter, no permit shall be issued. The applicant may revise the application to include measures that mitigate or eliminate the adverse effects and re-submit the application.
(4)
Determine that all necessary permits have been received from AHJs from which approval is required by state or federal law.
A.
When FEMA has designated areas of special flood hazard on the community's FIRM but has neither produced water surface elevation data (these areas are designated Zone A or V on the FIRM) nor identified a floodway, the local administrator shall obtain, review and reasonably utilize any base flood elevation and floodway data available from a federal, state, or other authoritative source, including data from a technical analysis by a professional engineer, as criteria for requiring that new construction, substantial improvements or other proposed development meet the requirements of this law.
B.
When base flood elevation data are not available, the local administrator may use flood information from any other authoritative source, such as historical data, to establish flood elevations within the areas of special flood hazard, for the purposes of this chapter.
C.
When an area of special flood hazard, base flood elevation, and/or floodway data are available from a federal, state, or other authoritative source, but differ from the data provided within § 204-11 of this chapter, the local administrator may reasonably utilize the other flood information to enforce more restrictive development standards.
A.
Notification to adjacent municipalities that may be affected and the NYSDEC prior to permitting any alteration or relocation of a watercourse, and submit evidence of such notification to the Regional Administrator, Region II, Federal Emergency Management Agency.
B.
Determine that the owner has provided for maintenance within the altered or relocated portion of said watercourse so that the flood-carrying capacity is not diminished.
A.
In Zones A1-A30, AE and AH, and also Zone A if base flood elevation data are available, upon placement of the lowest floor or completion of floodproofing of a new or substantially improved structure, obtain from the owner a FEMA elevation certificate of the as-built elevation of the lowest floor or floodproofed elevation, in relation to mean sea level. This certificate shall be prepared by or under the direct supervision of a land surveyor or professional engineer and certified by same. For manufactured homes, the owner shall submit the FEMA elevation certificate upon placement of the structure on the site. A FEMA elevation certificate must also be submitted for a recreational vehicle if it remains on a site for 180 consecutive days or longer unless it is fully licensed and ready for highway use.
B.
Any further work undertaken prior to submission and approval of the FEMA elevation certificate shall be at the owner's risk. The local administrator shall review all data submitted. Deficiencies detected shall be cause to issue a stop-work order for the project unless immediately corrected.
A.
Work to be in accordance with the permit and/or variance. All work shall be performed in accordance with the documents accepted as part of an application for a floodplain development permit and/or any variance. The local administrator and/or the owner's professional engineer or registered architect shall make periodic inspections at appropriate times throughout the period of construction to monitor compliance with permit conditions and enable said inspector to certify, if requested, that the development is compliant with the requirements of the floodplain development permit and/or any variance provisions. The owner shall immediately notify the local administrator of any change occurring during the course of the work. If this administrator determines that such change warrants a new or amended permit, such change shall not be made until and unless a new or amended permit reflecting such change is issued.
B.
Registered design professional. The registered design professional shall perform periodic inspections and certify that the work is compliant with the floodplain development permit and/or any variance if the documents accepted as part of an application for a floodplain development permit bears his/her/their signature and seal.
C.
Preliminary inspection.
(1)
Authority. Before issuing a floodplain development permit, the local administrator is authorized but not required to examine buildings, structures and/or premises for which an application has been submitted.
(2)
Evaluation. The local administrator is authorized to require an existing building, structure and/or premises to be evaluated by a registered design professional and/or third-party inspector. Such professional and/or inspector shall notify the local administrator if any nonconformance with the provisions and/or standards of this chapter are observed.
D.
Work to remain accessible and exposed. Work shall remain accessible and exposed until inspected and accepted by the registered design professional and/or third-party inspector.
E.
Third-party inspector. The local administrator has the right to have a third-party inspector inspect any work for which a permit is required to ensure compliance with this chapter.
F.
Inspection requests. It shall be the duty of the owner or owner's agent to notify the local administrator, registered design professional, and/or a third-party inspector when elements of the work are ready for inspection. It shall be the duty of the owner or owner's agent to provide safe access to and means for inspection of such elements. The local administrator, registered design professional nor the third-party inspector shall be held responsible for the failure of the owner or owner's agent to schedule any required inspection.
G.
Inspection results. After inspection, the work or a portion thereof shall be noted as satisfactory as completed, or the owner or owner's agent shall be notified as to the manner in which the work fails to comply with this chapter. Work not in compliance with any applicable provision and/or standard of this chapter shall remain exposed until such work shall have been brought into compliance, reinspected, and found satisfactory as completed. Neither the local administrator nor the Town shall be liable for expenses entailed in the removal, relocation, and/or replacement of any material required to allow an inspection.
A.
Certificate required. In areas of special flood hazard, it shall be unlawful to occupy or to permit the use or occupancy of any building or premises, or both, or part thereof hereafter created, erected, changed, converted or wholly or partly altered or enlarged in its use or structure until a certificate of compliance has been issued by the local administrator stating that the building or land conforms to the requirements of this chapter.
B.
Issuance of a certificate.
(1)
A certificate of compliance shall be issued by the local administrator upon satisfactory completion of all development in areas of special flood hazard.
(2)
Issuance of the certificate shall be based upon the inspections conducted as prescribed in this chapter, and/or any certified elevations, hydraulic data, floodproofing, anchoring requirements or encroachment analyses which may have been required as a condition of the approved permit.
C.
Certificate conditions. The local administrator may include in a certificate of compliance such terms and conditions as he/she/they deem necessary and/or appropriate to ensure safety or to further the purposes and objectives of this chapter.
D.
Revocation of a certificate. The local administrator is authorized to, in writing, suspend or revoke a certificate of compliance issued under the provisions of this chapter wherever such certificate is issued in error, or based on incorrect information supplied, or where it is determined that the land or structure or portion thereof is in violation of this chapter.
A.
Authority to issue order. The local administrator is authorized to issue a stop-work order to halt any of the following work:
B.
Content of order and method of service. The content of a stop-work order and its method of service shall comply with the applicable provision(s) of the Zoning Law.
C.
Effect of order. Upon issuance of a stop-work order, the owner of the affected property and any other person performing, taking part in, or assisting in the work shall immediately cease all work which is the subject of the stop-work order, other than work expressly authorized by the local administrator to correct the reason for issuing the stop-work order.
D.
Remedy is not exclusive. The issuance of a stop-work order shall not be the exclusive remedy available to address any event described in this chapter, and the authority to issue a stop-work order shall be in addition to, and not in substitution for or limitation of, the right and authority to pursue any other remedy or impose any other penalty prescribed in this chapter or any other applicable law. Any such remedy or penalty may be pursued at any time, whether prior to, at the time of, or after the issuance of a stop-work order.
A.
Violations are unlawful. It shall be unlawful for any land, structure and/or use to be in violation of this chapter, or fail in any manner to comply with any notice, directive or order of the local administrator.
B.
Public nuisance. Any condition caused or permitted to exist in violation of any provision of this chapter shall be deemed a public nuisance and shall be abated as such by the owner pursuant to law.
C.
Content of order and method of service. The content of a notice of violation and its method of service shall comply with the applicable provision(s) of the Zoning Law.
D.
Compliance with notices. A notice of violation issued or served as provided by this chapter shall be complied with by the owner, operator, occupant and other person responsible for the condition or violation to which the notice of violation pertains.
E.
Abatement of unlawful acts. An action or proceeding may be instituted in the name of this Town, in a court of competent jurisdiction, to prevent, restrain, enjoin, correct, or abate any violation of, or to enforce, any provision of this chapter, or any term or condition of any notice of violation order or other notice or order issued by the local administrator pursuant to any provision of this chapter. No action or proceeding described in this subsection shall be commenced without the appropriate authorization from the Town Board.
F.
Prosecution of a violation. If the notice of violation is not complied within the period of time prescribed within such notice, the local administrator is authorized to request the Town Board to authorize the Town Attorney to institute the appropriate proceeding at law or in equity to restrain, correct or abate such violation, or to require the removal or termination of the unlawful structure and/or use in violation of the provisions of this chapter or of the order or direction made pursuant thereto.
G.
Penalties for offenses.
(1)
Penalties for non-compliance. No structure in an area of special flood hazard shall hereafter be constructed, located, extended, converted, or altered and no land shall be excavated or filled without full compliance with the terms of this chapter and any other applicable regulations. Any infraction of the provisions of this chapter by failure to comply with any of its requirements, including infractions of conditions and safeguards established in connection with conditions of the permit, shall constitute a violation. Any person who violates this chapter or fails to comply with any of its requirements shall, upon conviction thereof, be fined no more than $250 or imprisoned for not more than 15 days, or both. Each day of noncompliance shall be considered a separate offense. Nothing herein contained shall prevent the Town from taking such other lawful action as necessary to prevent or remedy an infraction. Any structure found not compliant with the requirements of this chapter for which the owner and/or owner's agent has not applied for and received an approved variance under this chapter will be declared non-compliant and notification sent to the Federal Emergency Management Agency. Lastly, the penalties provided by this subsection shall be recoverable in an action instituted in the name of this Town.
(2)
Restoration. A court of competent jurisdiction may order or direct a violator to restore the affected land and/or structure to its condition prior to the offense, insofar as that is possible. The court shall specify a reasonable time for the completion of such restoration, which shall be effected under the supervision of the local administrator or his/her/their designate.
A.
General. The Zoning Board of Appeals is hereby appointed as the designated approval authority as it pertains to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the local administrator.
B.
Procedure. The designated approval authority shall conform to the procedures for an appeal as prescribed by the Zoning Law. Those aggrieved by the decision of the Town may appeal such a decision to the Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules.
C.
Application. An applicant applying for an appeal shall submit a complete application as prescribed by the Zoning Law.
D.
Determination criteria. An application for an appeal shall be based on a claim that the true intent of this chapter or the requirements legally adopted thereunder have been incorrectly interpreted, the provisions of this chapter do not fully apply, or an equal or better form of compliance is proposed.
E.
Limitations on authority. The designated approval authority shall have no authority to amend or waive any requirement of this chapter.
A.
Interpretation from FEMA and/or NYSDEC. The local administrator shall have the authority to request an interpretation from FEMA and/or NYSDEC to assist in this administrator's interpretation of a floodplain management regulation prescribed in this chapter or other law.
B.
Limitations on authority. The local administrator shall be permitted to make interpretations in any manner it deems fit; however, such administrator shall not have the authority to alter or change this chapter or allow an action that which would be inconsistent with this chapter; provided, however, that in interpreting and applying the provisions of this chapter, the requirements shall be deemed to be the spirit and intent of this chapter and do not constitute the granting of a special privilege.
A.
General. The Zoning Board of Appeals is hereby appointed as the designated approval authority as it pertains to denying or granting a variance as set forth in this section.
B.
Procedure. The designated approval authority shall utilize the procedure for a variance as prescribed by 44 CFR Part 60, Criteria for Land Management and Use, Subpart A — Requirements for Floodplain Management Regulations, Section 60.6 (44 CFR § 60.6), as currently in effect and amended from time to time, and including the following actions:
C.
Application. An applicant applying for a variance shall submit an application to the local administrator, along with any applicable fee and payment of incurred costs. Such an application shall be in writing, on a form furnished by the Town for that purpose. At a minimum, such an application shall contain all the following:
(1)
The applicant's contact information and signed consent to the filing of this application.
(2)
Written testimony, which shall include competent evidence, that is prepared and attested by a qualified professional(s), that explains how the requested variance satisfies all the determination criteria as prescribed in this section as well as all the following:
(a)
A showing of good and sufficient cause.
(b)
Explanation that failure to grant a variance will result in exceptional hardship to the applicant.
(c)
Technical documents and/or reports that justify the granting of a variance will not increase flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud or victimization of the public, or conflict with any applicable law.
(3)
A site plan that is prepared and sealed by a land surveyor or registered design professional.
(4)
A full EAF.
(5)
Any other information deemed necessary by the designated approval authority to explain the nature of the variance, its potential environmental impacts under SEQRA, and its consistency with the standards established by this chapter.
D.
FEMA floodplain management bulletin. The applicant and the designated approval authority shall utilize FEMA P-993 entitled "FEMA Floodplain Management Bulletin - Variances and the National Flood Insurance Program", as currently in effect and as hereafter amended from time to time, to ensure compliance with the NFIP. This bulletin outlines the floodplain management variance criteria as set forth in 44 CFR Part 60, Criteria for Land Management and Use, Subpart A - Requirements for Floodplain Management Regulations, Section 60.6 (44 CFR § 60.6), as currently in effect and as hereafter amended from time to time.
E.
Review by the Town Attorney and Town Engineer. Upon receipt of an application from the applicant, the local administrator shall transmit such an application to the Town Attorney and Town Engineer for his/her/their review and recommendations. The cost of such a review shall be at the expense of the applicant. Lastly, such application shall not be deemed "complete" nor submitted to the designated approval authority until this attorney's and engineer's review is concluded and recommendations received.
F.
Determination criteria.
(1)
The designated approval authority shall review all facts and information that is the subject of an applicant for a variance to determine whether to approve such application or not. In doing so, the designated approval authority shall consider all technical evaluations, all relevant factors, standards specified in other sections of this chapter and the following criteria:
(b)
The danger that materials may be swept onto other lands to the injury of others.
(c)
The danger to life and property due to flooding or erosion damage.
(d)
The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner.
(e)
The importance of the services provided by the proposed facility to the community.
(f)
The necessity to the facility of a waterfront location, where applicable.
(g)
The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage.
(h)
The compatibility of the proposed use with existing and anticipated development.
(i)
The relationship of the proposed use to the comprehensive plan, Zoning Law and any other applicable law.
(j)
The safety of access to property in times of flood for ordinary and emergency vehicles.
(k)
The costs to local governments and the dangers associated with conducting search and rescue operations and/or other required operations (e.g., building and fire safety, public health, etc.) during and after flood conditions.
(l)
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.
(m)
The costs of providing, but not limited to, emergency response, government, and utility services during and after flood conditions, including search and rescue operations, maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems and streets and bridges.
(n)
The variance is the minimum necessary, considering the flood hazard, to afford relief.
(2)
Upon consideration of the factors of this subsection and the purposes of this chapter. The Town may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter. The local administrator shall maintain the records of all appeal actions including technical information and report any variances to FEMA upon request.
G.
Unique circumstances. The designated approval authority shall consider the following unique circumstances as part of its determination:
(1)
Designated floodway. The designated approval authority shall not grant a variance within any designated floodway if any increase in flood levels during the base flood discharge would result.
(2)
Functionally dependent use. The designated approval authority may grant a variance for the construction of, substantial improvement to, and for other development necessary for the conduct of a functionally dependent use provided that:
(3)
Historic structures. The designated approval authority may grant a variance for the repair or rehabilitation of a historic structure upon determination that:
(4)
Lots of 1/2 acre or less. The designated approval authority may grant a variance for new construction and substantial improvements to be erected on a lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood elevation, provided that the determination criteria prescribed in this section have been fully considered. Furthermore, as the lot size increases beyond the 1/2 acre, the technical justification required for issuing a variance increases.
H.
Conditions imposed upon a variance.
(1)
The designated approval authority may include in a variance such terms and conditions as he/she/they deem necessary or appropriate to ensure safety or to further the purposes and purposes of this chapter. Furthermore, the following conditions shall be prescribed in a variance, if applicable:
(a)
Any applicant to whom a variance is granted for a building with the lowest floor below the base flood elevation shall be given written notice over the signature of a community official that:
[1]
The issuance of a variance to construct a structure with its lowest floor below the base flood elevation will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage; and
[2]
The issuance of a variance to construct a structure with its lowest floor below the base flood elevation increases risk to life and property.
(2)
Such notification shall be maintained with the record of all variance actions as required in this chapter.
A.
General. The records of the local administrator shall be managed in accordance with Article 57-A, Local Government Records Law, of the Arts and Cultural Law of NYS, as currently in effect and as hereafter amended from time to time, or any successor rules, regulations or statutes.
B.
Freedom of information. Public access to the records of the local administrator shall comply with § 84-90, Freedom of Information Law, of Article 6 of the Public Officers Law of NYS as well as the Records Law of the Town, as currently in effect and as hereafter amended from time to time, or any successor rules, regulations or statutes.
C.
Records to be retained. The local administrator shall retain all the following:
(1)
Floodplain development permits and certificates of compliance issued pursuant to this chapter.
(2)
FEMA elevation certificates of structures whether the structures contain a basement or not.
(3)
Floodproofing certificates whether the structures contain a basement or not.
(4)
Variances issued pursuant to this chapter.
(5)
Orders and/or notices issued pursuant to this chapter.
D.
Request from FEMA and NYSDEC. The records of the local administrator shall be made available to FEMA and NYSDEC upon request.