The Henderson City-County Planning Commission is hereby appointed
to administer and implement the provisions of this chapter by granting
or denying development permits in accordance with its provisions and
by designating an administrative and enforcement officer, herein referred
to as the "Floodplain Administrator."
A development permit shall be obtained before any construction or other development begins within any special flood hazard area established in § 145-7. Endorsement of the Floodplain Administrator is required before a state floodplain construction permit can be processed. Application for a development permit shall be made to the Floodplain Administrator on forms furnished by him or her prior to any development activities, and may include, but not be limited to, the following: plans in duplicate drawn to scale 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. Specifically, the following information is required:
A.
Application stage.
(1)
Proposed elevation in relation to mean sea level of the proposed
lowest floor (including basement) of all structures in Zone A and
elevation of highest adjacent grade; or
(2)
Proposed elevation in relation to mean sea level to which any nonresidential
structure will be floodproofed;
(3)
All appropriate certifications from a Kentucky registered professional engineer or architect that the nonresidential floodproofed building will meet the floodproofing criteria in § 145-19B;
(4)
Description of the extent to which any watercourse will be altered
or relocated as a result of proposed development; and
B.
Construction stage: provide a floor elevation or floodproofing certification
after the lowest floor is completed. Upon placement of the lowest
floor and before construction continues, or floodproofing by whatever
construction means, it shall be the duty of the permit holder to submit
to the Floodplain Administrator and to the state a certification of
the elevation of the lowest floor or floodproofed elevation, as built,
in relation to mean sea level. In AE and A Zones where the County
has adopted a regulatory base flood elevation, said certification
shall be prepared by or under the direct supervision of a Kentucky
registered land surveyor or professional engineer and certified by
same. When floodproofing is utilized for a particular building, said
certification shall be prepared by or under the direct supervision
of a Kentucky registered professional engineer or architect and certified
by same. Any work undertaken prior to the submission of the certification
shall be at the permit holder's risk. The Floodplain Administrator
shall review the lowest floor and floodproofing elevation survey data
submitted. Deficiencies detected by such review shall be corrected
by the permit holder immediately and prior to further progressive
work being permitted to proceed. Failure to submit the survey or failure
to make said corrections required hereby shall be cause to issue a
stop-work order for the project.
The Floodplain Administrator and/or staff is hereby appointed,
authorized and directed to administer, implement and enforce the provisions
of this chapter. The Floodplain Administrator is further authorized
to render interpretations of this chapter which are consistent with
its spirit and purpose by granting or denying development permits
in accordance with its provisions. The duties and responsibilities
of the Floodplain Administrator shall include, but not be limited
to, the following:
A.
Permit review. Review all development permits to ensure that:
(1)
Permit requirements of this chapter have been satisfied;
(2)
All other required state and federal permits have been obtained.
Review proposed development to assure that all necessary permits have
been received from those governmental agencies from which approval
is required by federal or state law, including Section 404 of the
Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C 1344;
(3)
Flood damages will be reduced in the best possible manner; and
(4)
The proposed development does not adversely affect the carrying capacity
of affected watercourses. For purposes of this chapter, "adversely
affects" means that the cumulative effect of the proposed development,
when combined with all other existing and anticipated development,
will increase the water surface elevation of the base flood more than
one foot at any point.
B.
Review and use of any other base flood data. When base flood elevation data has not been provided in accordance with § 145-7, the Floodplain Administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal or state agency, or other source, in order to administer Article V. Any such information shall be submitted to the appropriate governing body for adoption.
C.
Notification of other agencies. The Floodplain Administrator shall:
(1)
Notify adjacent communities, the Kentucky Division of Water, and
any other federal and/or state agencies with statutory or regulatory
authority prior to any alteration or relocation of the watercourse;
and
(2)
Submit evidence of such notification to the Federal Insurance Administration,
Federal Emergency Management Agency (FEMA); and
(3)
Assure that the flood-carrying capacity within the altered or relocated
portion of said watercourse is maintained and not diminished.
D.
Documentation of floodplain development. The Floodplain Administrator
shall obtain and maintain for public inspection and make available
as needed the following:
(1)
Certification required by § 145-19A (lowest floor elevations) as shown on a completed and certified elevation certificate; verify and record the actual elevation (in relation to mean sea level) of the lowest floor (including basement) of all new or substantially improved structures, in accordance with § 145-15B;
(2)
Certification required by § 145-19B (elevation or floodproofing of nonresidential structures) as shown on a completed and certified floodproofing certificate; verify and record the actual elevation (in relation to mean sea level) to which the new or substantially improved structures have been floodproofed, in accordance with § 145-15B;
(6)
Assure that maintenance is provided within the altered or relocated
portion of said watercourse so that the flood-carrying capacity is
not diminished;
(7)
Review certified plans and specifications for compliance;
E.
Map determinations. The Floodplain Administrator shall make interpretations
where needed as to the exact location of the boundaries of the special
flood hazard areas; for example, where there appears to be a conflict
between a mapped boundary and actual field conditions.
(1)
Where interpretation is needed as to the exact location of boundaries of the areas of special flood hazard (for example, where there appears to be a conflict between a mapped boundary and actual field conditions), the Floodplain Administrator shall make the necessary interpretation. The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in § 145-17B.
(2)
When base flood elevation data or floodway data has not been provided in accordance with § 145-7, then the Floodplain Administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal, state, or other source, in order to administer the provisions of Article V.
(3)
When floodproofing is utilized for a particular structure, the Floodplain Administrator shall obtain certification from a Kentucky registered professional engineer or architect, in accordance with § 145-19B, a floodproofing certificate.
(4)
All records pertaining to the provisions of this chapter shall be
maintained in the office of the Floodplain Administrator and shall
be open for public inspection.
F.
Right of entry.
(1)
Whenever necessary to make an inspection to enforce any of the provisions
of this chapter, or whenever the Floodplain Administrator has reasonable
cause to believe that there exists in any structure or upon any premises
any condition or ordinance violation which makes such structure or
premises unsafe, dangerous or hazardous, the Floodplain Administrator
may enter such structure or premises at all reasonable times to inspect
the same or perform any duty imposed upon the administrator by this
chapter.
(2)
If such structure or premises are occupied, he/she shall first present
proper credentials and request entry. If such structure or premises
are unoccupied, he shall first make a reasonable effort to locate
the owner or other persons having charge or control of such request
entry.
(3)
If entry is refused, the Floodplain Administrator shall have recourse
to every remedy provided by law to secure entry.
(4)
When the Floodplain Administrator shall have first obtained a proper
inspection warrant or other remedy provided by law to secure entry,
no owner or occupant or any other persons having charge, care or control
of any structure or premises shall fail or neglect, after proper request
is made as herein provided, to promptly permit entry therein by the
administrator for the purpose of inspection and examination pursuant
to this chapter.
G.
Stop-work orders. Upon notice from the Floodplain Administrator,
work on any structure or premises that is being done contrary to the
provisions of this chapter shall immediately cease. Such notice shall
be in writing and shall be given to the owner of the property, or
to his agent, or to the person doing the work, and shall state the
conditions under which work may be resumed.
H.
Revocation of permits.
(1)
The Floodplain Administrator may revoke a permit or approval, issued
under the provisions of this chapter, in case there has been any false
statement or misrepresentation as to the material fact in the application
or plans on which the permit or approval was based.
(2)
The Floodplain Administrator may revoke a permit upon determination
by the Administrator that the construction, erection, alteration,
repair, moving, demolition, installation, or replacement of the structure
for which the permit was issued is in violation of, or not in conformity
with, the provisions of this chapter.
I.
Liability. Any officer, employee, or member of the Floodplain Administrator's
staff, charged with the enforcement of this chapter, acting for the
applicable governing authority in the discharge of his duties, shall
not thereby render himself personally liable, and is hereby relieved
from all personal liability, for any damage that may accrue to persons
or property as a result of any act required or permitted in the discharge
of his duties. Any suit brought against any officer, employee, or
member because of such act performed by him or her in the enforcement
of any provision of this chapter shall be defended by the Department
of Law until the final termination of the proceedings.
J.
Expiration of floodplain construction permit. A floodplain construction
permit, and all provisions contained therein, shall expire if the
holder of a floodplain construction permit has not commenced construction
within 180 calendar days from the date of its issuance by the Floodplain
Administrator.
A.
The variance criteria set forth in this section are based on the
general principle of zoning law that variances pertain to a piece
of property and are not personal in nature. A variance may be granted
for a parcel of property with physical characteristics so unusual
that complying with the requirements of this chapter would create
an exceptional hardship to the applicant or cause damage to the surrounding
property owners. The characteristics must be unique to the property
and not be shared by adjacent parcels. The unique characteristic must
pertain to the land itself, not to the structure, its inhabitants,
or the property owners. It is the duty of Henderson County to help
protect its citizens from flooding. This need is so compelling and
the implications of the cost of insuring a structure built below flood
level are so serious that variances from the flood elevation or from
other requirements in the flood ordinance should be rare. The long-term
goal of preventing and reducing flood loss and damage can only be
met if variances are strictly limited. Therefore, the variance guidelines
provided in this chapter are more detailed and contain multiple provisions
that must be met before a variance can be properly granted. The criteria
are designed to screen out those situations in which alternatives
other than a variance are more appropriate.
B.
The Board of Zoning Adjustment as established by the Henderson County
Fiscal Court shall hear and decide appeals and requests for variances
from the requirements of this chapter and appeals of decisions or
determinations made by the Floodplain Administrator in the enforcement
or administration of this chapter. For purposes of this section, the
Board of Zoning Adjustment shall be referred to as the "appeals board."
C.
The appeals board shall not hear any request for a variance from
the requirements of this chapter unless the applicant has first made
application to the Kentucky Division of Water and received written
approval from same for any construction for which a variance is being
requested. However, approval from the Kentucky Division of Water shall
not guarantee approval of a request for variance from the appeals
board.
D.
Any person aggrieved by the decision of the appeals board or any
taxpayer may appeal such decision to the Circuit Court as provided
in the Kentucky Revised Statutes.
E.
Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places without regard to the procedures set forth in the remainder of this section, except for Subsection F(1) and (4), provided the proposed reconstruction, rehabilitation or restoration will not result in the structure losing its historical designation.
F.
In passing upon such applications, the appeals board shall consider
all technical evaluations, all relevant factors, all standards specified
in other sections of this chapter, 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 to the community of the services provided by the proposed
facility;
(5)
The necessity of the facility to a waterfront location, in the case
of a functionally dependent facility;
(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
streets and bridges.
G.
Upon consideration of the factors listed above, and the purposes
of this chapter, the appeals board may attach such conditions to the
granting of variances as it deems necessary to further the purposes
of this chapter.
H.
Variances shall not be issued within any mapped regulatory floodway
if any increase in flood levels during the base flood discharge would
result.
I.
Conditions for variances.
(1)
Variances shall only be issued upon a determination that the variance
is the minimum necessary, considering the flood hazard, to afford
relief. "Minimum necessary" means to afford relief with a minimum
of deviation from the requirements of this chapter. For example, in
the case of variances to an elevation requirement, this means the
appeals board need not grant permission for the applicant to build
at grade, or even to whatever elevation the applicant proposes, but
only to that elevation which the appeals board believes will both
provide relief and preserve the integrity of this chapter.
(2)
In the instance of an historic structure, a determination shall be
made that the variance is the minimum necessary to afford relief and
not destroy the historic character and design of the structure.
(3)
Variances shall only be issued upon:
(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 safety, extraordinary public expense, create nuisance, cause fraud on or victimization of the public (as defined in § 145-5 above), or conflict with existing local laws or ordinances.
(4)
Any applicant to whom a variance is granted shall be given written
notice specifying the difference between the base flood elevation
and the elevation to which the structure is to be built and stating
that the cost of flood insurance will be commensurate with the increased
risk resulting from the reduced lowest floor elevation.
(5)
The Floodplain Administrator shall maintain the records of all appeal
actions and report any variances to the Federal Emergency Management
Agency (FEMA) and the Federal Insurance Administration (FIA) upon
request.
(6)
Variances may be issued for new construction, substantial improvement, and other proposed new development necessary for the conduct of a functionally dependent use, provided that the provisions of Subsection F(1) through (11) are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and does not result in additional threats to public safety and does not create a public nuisance.
J.
Variance notification. Any applicant to whom a variance is granted
shall be given written notice over the signature of the Floodplain
Administrator that:
(1)
The issuance of a variance to construct a structure below the base
flood elevation may result in increased premium rates for flood insurance;
and
(2)
Such construction below the base flood level increases risks to life
and property. A copy of the notice shall be recorded by the Floodplain
Administrator in the Office of the County Court Clerk and shall be
recorded in a manner so that it appears in the chain of title of the
affected parcel of land by means of a land use restriction.
(3)
The Floodplain Administrator shall maintain a record of all variance
actions, including justification for their issuance, and report such
variances issued in the community's biennial report submission to
FEMA.
K.
Historic structures. Variances may be issued for the repair or rehabilitation
of historic structures upon determination that the proposed repair
or rehabilitation will not preclude the structure's continued designation
as an historic structure and the variance is the minimum necessary
to preserve the historic character and design of the structure.
