§ 33-6. Variance procedure.

A. 

Appeals board.

(1) 

The Board of Zoning Appeals, as established by the Town of Brookhaven, shall hear and decide appeals and requests for variances from the requirements of this chapter.

(2) 

The Board of Zoning Appeals shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the local administrator in the enforcement or administration of this chapter.

(3) 

Those aggrieved by the decision of the Board of Zoning Appeals may appeal such decision to the Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules.

(4) 

In passing upon such applications, the Board of Zoning Appeals shall consider all technical evaluations, all relevant factors, standards specified in other sections of this chapter and:

(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 facility and its contents to flood damage and the effect of such damage on the individual owner;

(d) 

The importance of the services provided by the proposed facility to the community;

(e) 

The necessity to the facility of a waterfront location, where applicable;

(f) 

The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

(g) 

The compatibility of the proposed use with existing and anticipated development;

(h) 

The relationship of the proposed use to the comprehensive plan and floodplain management program of that area;

(i) 

The safety of access to the property in times of flood for ordinary and emergency vehicles;

(j) 

The costs to local governments and the dangers associated with conducting search and rescue operations during periods of flooding;

(k) 

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

(l) 

The costs of providing governmental 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.

(5) 

Upon consideration of the factors of § 33-6A(4) and the purposes of this chapter, the Board of Zoning Appeals may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter.

(6) 

The local administrator shall maintain the records of all appeal actions including technical information and report any variances to the Federal Emergency Management Agency upon request.

B. 

Conditions for variances.

(1) 

Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood elevation, providing items in Subsection A(4)(a) through (l) in § 33-6 have been fully considered. As the lot size increases beyond the 1/2 acre, the technical justification required for issuing the variance increases.

(2) 

Variances may be issued for the repair or rehabilitation of historic structures upon determination that:

(a) 

The proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure; and

(b) 

The variance is the minimum necessary to preserve the historic character and design of the structure.

(3) 

Variances may be issued for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use, provided that:

(a) 

The criteria of Subsection B(1), (4), (5) and (6) of this section are met; and

(b) 

The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threat to public safety.

(4) 

Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.

(5) 

Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

(6) 

Variances shall only be issued upon receiving written justification of:

(a) 

A showing of good and sufficient cause;

(b) 

A determination that failure to grant the variance would result in exceptional hardship to the applicant; 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 nuisances, cause fraud on or victimization of the public or conflict with existing local laws or ordinances.

(7) 

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 the cost of flood insurance will be commensurate with the increased risk resulting from lowest floor elevation.