42-368. Variances (Flood Damage Prevention)

  1. Purposes. Flood Damage Prevention Variances are intended to provide limited relief from the requirements of Article VIII (Natural Resources) Subpart A (Flood Damage Prevention).
  2. Application.
    1. Application. Each application for a Flood Damage Prevention Variance shall be submitted along with a written report addressing each of the factors identified by §42-368 (Variances (Flood Damage Prevention)) E(1) (Granting Variances).
    2. Fees. The Board of Commissioners shall establish a Schedule of Fees, charges and expenses, and a collection procedure, for Flood Damage Prevention Variances and other matters pertaining to Article VIII (Natural Resources) Subpart A (Flood Damage Prevention). No application for a Flood Damage Prevention Variance, shall be processed unless or until such fees, as established, and all estimated expenses have been paid in full.
  3. Eligibility for Flood Damage Prevention Variance. Flood Damage Prevention Variances may  be issued for:
    1. The repair or rehabilitation of historic structures upon the determination that the proposed repair or rehabilitation will not preclude the structure’s continued designation as an historic structure and the Flood Damage Prevention Variance is the minimum necessary to preserve the historic character and design of the structure;
    2. Functionally dependent facilities if determined to meet the definition as stated in Article XIV, provided provisions of §42-368 (Variances (Flood Damage Prevention)) have been satisfied, and such facilities are protected by methods that minimize flood damages during the base flood and create no additional threats to public safety; or
    3. Any other type of development, provided it meets the requirements of §42-368 (Variances (Flood Damage Prevention)) and Article VIII (Natural Resources) Subpart A (Flood Damage Prevention); or
    4. Solid waste disposal facilities, hazardous waste management facilities, salvage yards, and chemical storage facilities that are located in Special Flood Hazard Areas provided that all of the following conditions are met:
      1. The use serves a critical need in the community;
      2. No feasible location exists for the use outside the Special Flood Hazard Area;
      3. The reference level of any structure is elevated or floodproofed to at least the regulatory flood protection elevation;
      4. The use complies with all other applicable Federal, State and local laws;
      5. Henderson County has notified the Secretary of the North Carolina department of Crime Control and Public Safety of its intention to grant a variance at least 30 calendar days prior to granting the variance.
    5. But not for special fill permits, pursuant to §42-354 (Special Fill Permits) herein.
  4. Public Hearing. Prior to considering the Flood Damage Prevention Variance application, the Flood Damage Prevention Board shall hold a public hearing on the application in accordance with §42-371 (Quasi-Judicial Process Standards).
  5. Granting Flood Damage Prevention Variances.
    1. In determining whether to grant or deny Flood Damage Prevention Variances, the Flood Damage Prevention Board shall consider all technical evaluations, all relevant factors, all standards specified in Article VIII (Natural Resources) Subpart A (Flood Damage Prevention), and:
      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 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, including the retention of land for agriculture;
      5. The necessity to the facility of a waterfront location as defined under Article XIV (Definitions) as a functionally dependent facility, where applicable;
      6. The availability of alternative locations, not subject to flooding or erosion damage, for the proposed 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 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 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 roads and bridges.
    2. Upon consideration of the factors listed above and the purposes of Article VIII (Natural Resources) Subpart A (Flood Damage Prevention), the Flood Damage Prevention Board may attach such conditions to the granting of Flood Damage Prevention Variances as it deems necessary to further the purposes and objectives of Article VIII (Natural Resources) Subpart A (Flood Damage Prevention).
    3. There are additional considerations of the Flood Damage Prevention Board in determining whether to grant or deny a Flood Damage Prevention Variance. Flood Damage Prevention Variances shall:
      1. Not be issued when the Flood Damage Prevention Variance will make the structure in violation of other Federal, State, or local laws, regulations, or ordinances.
      2. Not be issued within any designated floodway or non-encroachment area if any increase in flood levels during the base flood discharge would result.
      3. Only be issued upon a determination that the Flood Damage Prevention Variance is the minimum necessary, considering the flood hazard, to afford relief.
      4. Only be issued prior to Floodplain Development Permit (see §42-349 (Floodplain Development Permits)) approval.
      5. Only be issued upon:
        1. A showing of good and sufficient cause;
        2. A determination that failure to grant the Flood Damage Prevention Variance would result in exceptional hardship; and
        3. A determination that the granting of a Flood Damage Prevention Variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.
  6. Written Notice. Any applicant to whom a variance is granted shall be given written notice specifying the difference between the Base Flood Elevation (BFE) and the elevation to which the structure is to be built and a written statement that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced reference level Such notification shall be maintained with a record of all variance actions.