Planning

NELSON COUNTY PLANNING COMMISSION
MEETING MINUTES
April 28, 2010

Present: Chair Philippa Proulx, Vice Chair Emily Hunt, Commissioners Linda Russell, Michael Tapager, and Supervisor Allen Hale

Staff Present:  Planning Director Fred Boger and Secretary Betty Fortune

Call to Order:  Chair Proulx called the meeting to order at 7:30 P. M. in the Board of Supervisors meeting room, County Courthouse, Lovingston.

Approval of Minutes – March 24, 2010.  Commissioner Hunt  made a motion to approve the minutes as presented, Commissioner Tapager provided the second, and motion passed 3-0, with Chair Proulx abstaining.

Special Use Permit #2010-001 – Helen Park
Mr. Boger reported that Mrs. Parks is petitioning for a Special Use Permit for a public garage in which to store automobiles on a long-term basis.  The property is located at the corner of Thomas Nelson Highway and Morse Lane, Arrington, Tax Map #76-10-3, and is zoned A-1, Agricultural.  The proposed building will be 100’ x 200’ with a height of 20 feet at the peak.  Following is a sketch of the proposed building.

Mr. Boger stated that in his opinion, the proposed use will have minimum impact on the area.  A condition could be placed on the permit that no outside storage or mechanical work on vehicles can take place at this site and that outside lighting should be restricted.

Mr. and Mrs. Park were present at the meeting.  Mr. Park stated that the building is almost invisible from Rt. 29.  There will be a chain link fence surrounding the building and there is no plan for outdoor lighting.  Motion lights are used at his other sites for security purposes.

The public hearing was opened, there were no comments, and the public hearing was closed.

Supervisor Hale recused himself from the discussion and vote to avoid any appearance of conflict of interest since his firm, Old Dominion Map Company, prepared the site plan for Mrs. Park.

Commissioner Tapager asked Mr. Boger why this request was returned by the Board of Supervisors without a decision.  Mr. Boger stated that the tax map which showed the location of the property was incorrect, resulting in the appropriate adjacent land owners not being notified.  That situation was corrected and the appropriate property owners notified.   Mr. Park added that at the Board of Supervisors meeting two citizens expressed concern about a garage being placed on the property, not understanding exactly what type of building was planned.  Mr. Park has contacted adjoining property owners since then and noted that no one spoke tonight in opposition of the building.

Commissioner Tapager said that he thought it fit into the general area.  Chair Proulx agreed, but feels a restriction against outside storage would be appropriate.  Commissioner Russell said that residents may want to request some type of buffering on the northeast side of the property.

Commissioner Russell made a motion to recommend approval to the Board of Supervisors, as stated in the following resolution :

The Nelson County Planning Commission recommends to the Board of Supervisors approval of Special Use Permit #2010-001 for Helen Park for a public garage in which to store automobiles, indoors only, on a long term basis, on property located at the corner of Thomas Nelson Highway (Rt. 29) and Morse Lane, in Arrington, Virginia, Tax Map #76-10-3, with the following conditions:  1)  no mechanical work performed on the property; and 2) no outside lighting unless approved by the Planning Director.

Commissioner Tapager provided the second, and motion passed 5-0.  The Board of Supervisors will consider this request on May 11, 2010.

Rezoning #2010-001 – Vito’s Restaurant
Mr. Boger reported that Mr. Barry Harker, on behalf of Salvatore Mannino, owner of Vito’s Restaurant, has submitted a request to rezone approximately .33 acre of land located at 8181 Thomas Nelson Highway, Lovingston, from Agricultural, A-1 to Business, B-1.  Mr. Mannino wishes to construct an 8’ x 8’ vestibule and two handicap ramps at the front of the existing building, which is nonconforming in that it has a front yard setback of 35’.  The current A-1 zoning requires a 50’ setback, whereas B-1 has no setback requirements from the VDOT right-of-way.

Mr. Boger added that the property is located in an area which appears to be identified in the Comprehensive Plan as light industrial/mixed commercial.  It is surrounded by properties zoned B-1, M-2, and A-1. Rezoning it to B-1 would allow the proposed addition on the building’s front since there is no required front yard setback other than being located behind the street right-of-way.  There are already 27 parking spaces on the site which exceeds the number required.

Mr. Harker said the proposed vestibule will trap insects which come in when the door is opened and alleviate this health hazard, as well as adding additional waiting space and an additional handicap ramp.  Side entrances were considered, but it would cut down on parking spaces on one side and the other has a utility pole beside the building.  A front entrance is the simplest and best solution for the owner.

The public hearing was opened.

Mr. Johnnie Ponton owns property on both sides of Vito’s.  He was under the impression that his property, Vito’s, and several others were B-1, but has found that only the lot behind Vito’s is B-1.  He spoke in favor of having the property rezoned to B-1.

The public hearing was closed.

Commissioner Russell was concerned about rezoning a single piece of property for a single property owner.  In her opinion, all properties between parcel 20 and 9A should be rezoned to B-1.

Supervisor Hale made a motion to recommend to the Board of Supervisors approval of this rezoning, as stated in the following resolution :

Planning Commission recommends to the Board of Supervisors approval of application #2010-001 for Salvator Mannino D/B/A Vito’s Restaurant to rezone approximately .33 acre from A-1 to B-1 to allow for the addition of an 8’ x 8’ entrance vestibule to the front of the restaurant which is located at 8181 Thomas Nelson Highway, Lovingston, Virginia, Tax Map #67-A-14A.

Commissioner Russell said she supports the rezoning of Vito’s Restaurant, but is not comfortable with spot zoning for a single property owner.  Chair Proulx agreed, but will support Vito’s rezoning and initiate a request to rezone other properties.  Commissioner Russell asked Mr. Boger to provide a map of the adjoining parcels and the present zoning on each.

Commissioner Tapager provided the second, and motion passed 4-1, with Commissioner Russell voting “no.”  The Board of Supervisors will consider this request on May 11, 2010.

Conditional Use Permit #2010-003 – Byrd Leavell
Mr. Boger reported that Jeff Winder is representing Dr. Leavell in a request for a CUP to establish a corporate training center at 1100 Mill Pond Road, Faber, Virginia, Tax Map #48-A-15.  In the application, Mr. Winder states:

“The Wayside Center proposes to establish a corporate training center at 1100 Mill Pond Road in Faber. To groups and non-profit organizations working on social change issues, we hope to offer space for workshops, training, strategic planning and board retreats. The house will accommodate groups of 24 or less several weekends a month. Groups will have the option of renting the kitchen for their own use or hiring a local caterer for their meals. Occasionally, several times a year, larger groups may use the facility for day and/or overnight events. Guests beyond the capacity of the house will camp in the meadow towards the farthest point from the road and larger events will be held outside under a rented tent. A yurt, which is a semi-permanent tent (see photo) will be erected behind the existing house. In most cases, meetings will occur in the existing house or the yurt, with outdoor meetings concentrated in the area behind the house where it is most sheltered from the road. Guests may occasionally use the field for recreational activities like a game of soccer.”

Mr. Boger added that the plan currently shows that 5 yurts are to be located on the property which is approximately 24.460 acres, a portion of which falls within the 100-year floodplain of Cove Creek.  The cabins/yurts must comply with USBC (Uniform Statewide Building Code) and the USE Group/Type of Construction, including the design and required equipment to be provided for the Certificate of Use and Occupancy.  Sanitation facilities and the water system must also comply with the USBC and the Health Department. In addition, an E & S Control Plan may be required, and VDOT approval of the entrance.  A final site plan will be required if the CUP is approved.  Mr. Boger stated that a Corporate Training Center could work in this area, provided it maintains a quiet profile in the community and complements the existing rural character of the community.

Mr. Winder showed a concept sketch to Commissioners and assured them that the location of the yurts will be outside the floodplain area.  An engineer is working with Tom Eick of the Health Department to determine sanitary facility needs.     Commissioner Proulx asked Mr. Winder what the “Wayside Center” actually does.  Mr. Winder said the center supports groups and non-profit organizations working on social change issues.  Some of the organizations connected with the Wayside Center are Witness for Peace, Virginia Organizing Project, Training for Change, etc.  Funding will come from fees and from the Virginia Organizing Project.

Mr. Winder said that at the inception of the center there will be no full-time employees on-site. A live-in caretaker may be employed at a later time.  He has contacted two of the adjoining property owners (Mr. Goff and Mr. Ragland) who expressed no concerns. He plans to contact the Knights before the BOS meeting.  The existing house will accommodate 24 people sleeping dormitory-style.  Traffic safety rules will be covered with participants prior to their arrival at the center.  He also stated that some of the adjoining property owners have hunted on this land for many years, and he doesn’t wish to curtail that activity.

The public hearing was opened, there were no comments, and public hearing was closed.

Chair Proulx said that she felt conditions should be placed on the permit which would restrict shooting activities, i.e. shooting ranges, skeet shooting, etc., as well as noise restrictions, i.e. amplified music.

Supervisor Hale said that the topography shown on the concept plan appears to be incorrect in that the yurts are shown to be inside the floodplain.  Mr. Winder said that will be corrected on the final site plan.  He also said that there may possibly be musical events that would require amplified music and he prefers that some degree of regulation be stated rather than “no amplified music.”

Commissioner Russell made a motion to recommend to the Board of Supervisors approval of this CUP, as stated in the following resolution :

Planning Commission recommends that the Board of Supervisors approval of Conditional Use Permit #2010-003 pursuant to Article 4, Section 4-1-27a, to establish a corporate training center at 1100 Mill Pond Road, Faber, Virginia, Tax Map #48-A-15, with the following conditions:  1)  No shooting activity except for hunting; and 2) Conditional Use Permit is not transferrable.

Commissioner Hunt provided the second.

After discussion, Commissioner Russell made a motion to amend her original motion as follows:

Planning Commission recommends that the Board of Supervisors approval of Conditional Use Permit #2010-003 pursuant to Article 4, Section 4-1-27a, to establish a corporate training center at 1100 Mill Pond Road, Faber, Virginia, Tax Map #48-A-15, with the following conditions:  1)  No shooting ranges permitted; and 2) Conditional Use Permit is not transferrable.

Mr. Winder stated that in the very near future, Dr. Leavell will be transferring this property to his daughter.  He anticipates the final transfer will take place before the BOS hears his application.

Commissioner Hunt provided the second, and motion passed 5-0.

Other Business

1)    Zoning Ordinance Amendment – Article 10 – Floodplain District
The Commission discussed comments that were made at the April 22 public hearing.  They discussed the difference between floodway and floodplain.  [Note:  See minutes of April 22 for further information.]  One change was made in the definition of Freeboard as follows:

Freeboard: A factor of safety usually expressed in feet above a flood level for purposes of floodplain management.  “Freeboard” tends to compensate for the many unknown factors that could contribute to flood heights greater than the height calculated for a selected size flood and floodway conditions, such as wave action, bridge openings, and the hydrological effect of urbanization in the watershed.  When a freeboard is included in the height of a  structure, the flood insurance premiums will be significantly cheaper.

Supervisor Hale made a motion to recommend to the Board of Supervisors the adoption of the proposed amendments to the Zoning Ordinance .  Commissioner Russell provided the second, and motion passed 5-0.

2)    Zoning Ordinance Amendment – Communication Tower

Chair Proulx referred to a letter received from Lori Schweller of LeClair Ryan, a legal firm representing Verizon, regarding the Communication Tower ordinance.  Ms. Schweller worked with the committee to revise this article of the Z. O.  In light of her comments, Chair Proulx questioned whether the PC wishes her to notify the BOS that no amendments are being recommended at this time.  Commissioner Russell said she would like to postpone discussion on this until May since most of the Commissioners did not receive a copy of Ms. Schweller’s letter prior to the meeting.  Commissioners agreed.

3)    Rezoning Section of Rt. 29 near Vito’s Restaurant

Commissioners discussed the process involved in rezoning several parcels that are near Vito’s Restaurant since several are business-related properties.  Commissioner Russell asked Mr. Boger to prepare as soon as possible a map showing these parcels, along with names of property owners.  This will be discussed further at the May meeting.

4)    Zoning Ordinance Amendments – Articles 2, 12, 13, 16

Commissioner Russell reported that she, Mr. Boger, and Massie Saunders met to re-address some of the issues connected with Article 13.  These have been distributed, and will be discussed in depth at the May meeting.

5)    Zoning Ordinance Amendments – Miscellaneous

The Planning Secretary has identified several corrections which need to be made in the ordinance and Code of Nelson.  Commissioner Russell asked that these be presented for action at the May meeting.

6)    Communication Tower Ordinance Enforcement

Mr. Boger told the Commission that there are several cases where the antenna installation was treated like a TV antenna installation by the Planning Director.  Recent changes in their design may have resulted in a zoning violation.  Carriers will be notifed where necessary and the zoning violation process initiated.

Board of Supervisor Liaison – Allen Hale

Mr. Hale said that there is much concern over stray dogs, as reported in the April 22 BOS meeting.

Adjournment

At 9:40 P. M., Commissioner Tapager made a motion to adjourn.  Motion passed 5-0.

Respectfully submitted,

Betty M. Fortune, Secretary

A RESOLUTION RECOMMENDING
APPROVAL OF SPECIAL USE PERMIT #2010-001
FOR HELEN PARK

WHEREAS, Ms. Helen Park has submitted a request for a Special Use Permit pursuant to Article 4, Section 4-1-4b, of the Nelson County Zoning Ordinance, for a public garage in which to store automobiles on a long term basis on property located at the corner of Thomas Nelson Highway (Rt. 29) and Morse Lane, in Arrington, Virginia, Tax Map #76-10-3, and zoned Agricultural, A-1; and

WHEREAS, a notice of Public Hearing for the review of the SUP by the Nelson County Planning Commission was published in the Nelson County Times on April 8 and 15, 2010; and

WHEREAS, the Planning Commission also considered Staff comments and reviewed all documentation submitted for this SUP; and

WHEREAS, adjoining property owners were notified of the review of this SUP by letter dated April 13, 2010; and

WHEREAS, on April 28, 2010, the Nelson County Planning Commission held the required public hearing on said SUP;

NOW, THEREFORE, BE IT RESOLVED BY THE NELSON COUNTY PLANNING COMMISSION as follows:

The Nelson County Planning Commission recommends to the Board of Supervisors approval of Special Use Permit #2010-001 for Helen Park for a public garage in which to store automobiles, indoors only, on a long term basis, on property located at the corner of Thomas Nelson Highway (Rt. 29) and Morse Lane, in Arrington, Virginia, Tax Map #76-10-3, with the following conditions:  1)  no mechanical work performed on the property; and 2) no outside lighting unless approved by the Planning Director.

Motion made by Commissioner:  Linda Russell
Motion seconded by Commissioner:  Michael Tapager
Motion Passed:      5-0                APPROVED: ___________________________
CHAIR
ATTEST: _______________________________
Planning Commission Secretary                                    DATE:     April 28, 2010

A RESOLUTION
RECOMMENDING APPROVAL OF
REZONING APPLICATION #2010-001 FOR
SALVATOR MANNINO D/B/A VITO’S RESTAURANT

WHEREAS, Salvator Mannino D/B/A has filed an application to rezone approximately .33 acre from A-1 to B-1 in order to add an 8’ x 8’ entrance vestibule to the front of the building which is located at 8181 Thomas Nelson Highway, Tax Map #67-A-14A, and  located 35’ from the right-of-way of Thomas Nelson Highway; and

WHEREAS, a notice of Public Hearing for the review of the application by the Nelson County Planning Commission was published in the Nelson County Times on April 8 and 15, 2010; and

WHEREAS, on April 14, 2010 adjoining property owners were notified of the public hearing on this application; and

WHEREAS, on April 28, 2010, the Nelson County Planning Commission held the required public hearing on said rezoning application; and

NOW, THEREFORE, BE IT RESOLVED BY THE NELSON COUNTY PLANNING COMMISSION as follows:

Planning Commission recommends to the Board of Supervisors approval of application #2010-001 for Salvator Mannino D/B/A Vito’s Restaurant to rezone approximately .33 acre from A-1 to B-1 to allow for the addition of an 8’ x 8’ entrance vestibule to the front of the restaurant which is located at 8181 Thomas Nelson Highway, Lovingston, Virginia, Tax Map #67-A-14A.

Motion made by Commissioner:  Allen Hale
Motion seconded by Commissioner:  Michael Tapager
Motion Passed:     4-1 (Linda Russell        APPROVED: __________________________
voting no)                                    CHAIR
ATTEST: ______________________________
Planning Commission Secretary                                DATE:     April 28, 2010

A RESOLUTION
RECOMMENDING APPROVAL OF
CONDITIONAL USE PERMIT #2010-003 FOR
BYRD LEAVELL

WHEREAS, Mr. Byrd Leavell has filed an application for a Conditional Use Permit pursuant to Article 4, Section 4-1-27a, to establish a corporate training center at 1100 Mill Pond Road, Faber, Virginia, Tax Map #48-A-15; and

WHEREAS, a notice of Public Hearing for the review of the application by the Nelson County Planning Commission was published in the Nelson County Times on April 8 and 15, 2010; and

WHEREAS, on April 14, 2010 adjoining property owners were notified of the public hearing on this application; and

WHEREAS, on April 28, 2010, the Nelson County Planning Commission held the required public hearing on said rezoning application; and

NOW, THEREFORE, BE IT RESOLVED BY THE NELSON COUNTY PLANNING COMMISSION as follows:

Planning Commission recommends that the Board of Supervisors approval of Conditional Use Permit #2010-003 pursuant to Article 4, Section 4-1-27a, to establish a corporate training center at 1100 Mill Pond Road, Faber, Virginia, Tax Map #48-A-15, with the following conditions:  1)  No shooting ranges permitted; and 2) Conditional Use Permit is not transferrable.

Motion made by Commissioner:  Linda Russell
Motion seconded by Commissioner:  Emily Hunt
Motion Passed:     5-0                APPROVED: __________________________
CHAIR
ATTEST: ______________________________
Planning Commission Secretary                                DATE:     April 28, 2010

ARTICLE 10.  GENERAL FLOODPLAIN DISTRICT FP

ARTICLE I.  GENERAL PROVISIONS

Section 1.1
10.1.      Purpose.

The purpose of these provisions is to prevent the loss of life and property, the creation of health and safety hazards, the disruption of commerce and governmental services, the extraordinary and necessary expenditure of public funds for flood protection and relief, and the impairment of the tax base by:

A. Regulating uses, activities, and development which, alone or in combination    with other existing or future uses, activities, and development, will cause unacceptable increases in flood heights, velocities, and frequencies.

B. Restricting or prohibiting certain uses, activities, and development from locating within districts subject to flooding.

C. Requiring all those uses, activities, and developments that do occur in flood-prone districts to be protected and/or flood-proofed against flooding and flood damage.

D. Protecting individuals from buying land and structures which are unsuited for intended purposes because of flood hazards.

Section 1.2
10.2.      Applicability.

These provisions shall apply to all lands within the jurisdiction of Nelson County and identified as being in the 100-year floodplain by the Federal Insurance Administration.
________
*Editor’s note—An ordinance adopted October 8, 1991, amended App. A, Art. 10 in its entirety to read as herein set out.  Formerly Art. 10 derived unamended from the zoning ordinance adopted January 11, 1977 as amended through May 31, 2007.
Cross references—Buildings, Ch. 4; flood hazards, ξ 4-51 et seq; erosion and sediment control, ξ 9-51 et seq.
Section 1.3

Section 1.3
10.3.      Compliance and liability.

A.     No land shall hereafter be developed and no structure shall be located, relocated, constructed, reconstructed, enlarged, or structurally altered except in full compliance with the terms and provisions of this ordinance and any other applicable ordinances and regulations, which apply to uses within the jurisdiction of this ordinance.

B.     The degree of flood protection sought by the provisions of this ordinance is considered reasonable for regulatory purposes and is based on acceptable engineering methods of study.  Larger floods may occur on rare occasions.  Flood heights may be increased by manmade or natural causes, such as ice jams and bridge openings restricted by debris.  This ordinance does not imply that districts outside the floodplain district or that land uses permitted within such district will be free from flooding or flood damages.

C.     Records of actions associated with administering this ordinance shall be kept on file and maintained by the Planning and Zoning Director.

D.     This ordinance shall not create liability on the part of Nelson County or any officer or employee thereof for any flood damages that result from reliance on this ordinance or any administrative decision lawfully made hereunder.

Section1.4
10.4.      Abrogation and greater restrictions.

This ordinance supersedes any ordinance currently in effect in flood prone districts.  However, any underlying ordinance shall remain in full force and effect to the extent that its provisions are more restrictive than this ordinance.

Section 1.5
10.5.      Severability.

If any section, subsection, paragraph, sentence, clause, or phrase of this ordinance shall be declared invalid for any reason whatever, such decision shall not affect the remaining portions of this ordinance.  The remaining portions shall remain in full force and effect and for this purpose, the provisions of this ordinance are hereby declared to be severable.

Section 1.6
10.6.      Penalties.

A.     Any person who fails to comply with any of the requirements or provisions of this ordinance or directions of the zoning officer Planning and Zoning Director or any other authorized employee of the Nelson County shall be guilty of a misdemeanor and subject to the penalties as provided in Section 15-2 of the Zoning Ordinance.

B.     In addition to the above penalties, all other actions are hereby reserved, including an action of equity for the proper enforcement of this ordinance.  The imposition of a fine or penalty for any violation of, or noncompliance with, this ordinance shall not excuse the violation or noncompliance to permit it to continue, and all such persons shall be required to correct or remedy such violations or noncompliance within a reasonable time.  Any structure constructed, reconstructed, enlarged, altered or relocated in noncompliance with this ordinance may be declared by the Board of Supervisors to be     a public nuisance and abatable as such.  Flood insurance may be withheld from     structures constructed in violation of this ordinance.

ARTICLE II.  DEFINITIONS
10.7.    Definitions
For the purpose of this Article, words and terms are defined as follows:

A. Base flood/100-year flood:  A flood that, on the average, is likely to occur once every one hundred years (100) years (i.e., that has a one (1) percent chance of occurring each year, although the flood may occur in any year). The flood having a one percent chance of being equaled or exceeded in any given year.

B.Base Flood Elevations (BFE):  The Federal Emergency Management Agency designated 100-year water surface elevation. The Federal Emergency Management Agency designated one hundred (100)-year water surface elevation.  The water surface elevation of the base flood in relation to the datum specified on the community’s Flood Insurance Rate Map. For the purposes of this ordinance, the one hundred (100) year flood or 1% annual chance flood.

Basement:  Any area of the building having its floor sub-grade (below ground level) on all sides.

C.Board of Zoning Appeals:  The board appointed to review appeals made by individuals with regard to decisions of the zoning administrator in the interpretation of this ordinance.

Building: Any structure having a roof supported by columns or walls and intended for the shelter, housing, or enclosure of any individual, animal, process, equipment, goods, or equipment of any kind.

D.Development:  Any man made change to improved or unimproved real estate, including, but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.

Drop-down Fence:  A fence design that gives way under the pressure of flood flows to lay flat on the ground, and which can be re-erected after the flood.
Elevated building: A non-basement building built to have the lowest floor elevated above the ground level by means of fill, solid foundation perimeter walls, pilings, or columns (posts and piers).
Encroachment: The advance or infringement of uses, plant growth, fill, excavation, buildings, permanent structures or development into a floodplain, which may impede or alter the flow capacity of a floodplain.

E.Flood or flooding:

(a)     A general and temporary condition of partial or complete inundation of normally dry land areas from:

(1)     The overflow of inland or tidal waters.
(2)     The unusual and rapid accumulation or runoff of surface waters from any source.
(3)     Mudslides (i.e. mudflows) which are proximately caused by flooding as defined in paragraph (a) (2) of this definition and are akin to a river of liquid and flowing mud on the surfaces of normally dry land areas, as when earth is carried by a current of water and deposited along the path of the current.

(b) The collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as a flash flood or by some similarly unusual and unforeseeable event which results in flooding as defined in (a) (1) of this definition.

F.Flood-prone area:  Any land area susceptible to being inundated by water from any source.
Flood Insurance Rate Map (FIRM): An official map of a community, on which the Federal Insurance Administrator has delineated both the special hazard areas and the risk premium zones applicable to the community.  A FIRM that has been made available digitally is called a Digital Flood Insurance Rate Map (DFIRM).
Flood Insurance Study (FIS): An examination, evaluation and determination of flood hazards and, if appropriate, corresponding water surface elevations, or an examination, evaluation and determination of mudflow and/or flood-related erosion hazards.

G.Floodplain:

(a)     A relatively flat or lowland area adjoining a river, stream or watercourse which is subject to partial or complete inundation;

(b)     An area subject to the unusual and rapid accumulation or runoff of surface water from any source.

Flood-proofing: Any combination of structural and non-structural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents.

H.Floodway:  The designated area of the floodplain required to carry and discharge flood waters of a given magnitude.  For the purposes of this ordinance, the floodway shall be capable of accommodating a flood of the 100-year magnitude.

Freeboard: A factor of safety usually expressed in feet above a flood level for purposes of floodplain management.  “Freeboard” tends to compensate for the many unknown factors that could contribute to flood heights greater than the height calculated for a selected size flood and floodway conditions, such as wave action, bridge openings, and the hydrological effect of urbanization in the watershed.

Highest adjacent grade: The highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

I.Historic structure:  Any structure that is:

(a)     Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;

(b)     Certified or preliminarily determined by the Secretary of the   Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the secretary to qualify as a registered historic district;

(c) Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior; or

(d) Individually listed on a local inventory of historic places in  communities with historic     preservation programs that have been certified either:

(1)     By an approved state program as determined by the Secretary of the Interior; or
(2)     Directly by the Secretary of the Interior in states without approved programs.

Lowest floor: The lowest floor of the lowest enclosed area (including basement).  An unfinished or flood-resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building’s lowest floor provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of Federal Code 44CFR  §60.3.

J.Manufactured home:  A structure subject to federal regulations which is transportable in one or more sections, is eight (8) body feet or more in width and forty (40) body feet or more in length in the traveling mode, or is three hundred twenty (320) or more square feet when erected on site, is built on a permanent chassis, is designed to be used as a single family dwelling, with or without a permanent foundation when connected to the required facilities, and includes the plumbing, heating, air conditioning and electrical system contained in the structure.

K.Manufactured home park/subdivision:  A parcel (or contiguous parcels) of land divided into two (2) or more lots for rent or sale.

L.New construction:  For the purposes of determining insurance rates, structures for which the “start of construction” commended on or after the effective date of any initial FIRM or after December 31, 1974, whichever is later, and includes any subsequent improvements to such structures.  For floodplain management purposes “new construction” means structures for which the “start of construction” commenced on or after the effective date of a floodplain management regulation adopted by a community and includes any subsequent improvements to such structures.

M.Recreational vehicle:  A vehicle which is:

(a)     Built on a single chassis;
(b)     Four hundred (400) square feet or less when measured at the largest horizontal projection;
(c)     Designed to be self-propelled or permanently towable by a light duty truck; and
(d)     Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational camping, travel, or season use.

Special flood hazard area: The land in the floodplain subject to a one (1%) percent or greater chance of being flooded in any given year as determined in Section 10-10 of this ordinance.

N.Start of construction:  The date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within one hundred eighty (180) days of the permit date.  The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation.  Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure.  For a substantial improvement, the actual start of construction means the first alteration on any wall, ceiling, floor, or other structural part of a building, whether or not the alteration affects the external dimensions of the building.
Structure: A combination of materials that form a construction for use, occupancy,  ornamentation, including a fence, a gas or liquid storage tank, whether installed on, above, or below the surface of land or water.

O.Substantial damage:  Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before predamaged condition would equal or exceed fifty (50) percent of the market value of the structure before the damage occurred.

Substantial improvement:  Any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds fifty (50) percent of the market value of the structure before the “start of construction” of the improvement.  This term includes structures, which have incurred “structural damage” regardless of the actual repair work performed.  The term does not, however, include either:

(1) any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which     are the minimum necessary to assure safe living conditions or

(2) any alteration of a “historic structure”, provided that the alteration will not preclude the structures continued designation     as a “historic structure”.

Suspended cable fence:  A steel cable or chain suspended across the waterway between two secured posts.  From the cable a fence made of galvanized chain, chain mesh, galvanized mesh or prefabricated fencing or netting is attached.  The suspended cable remains taut during the flood while the flood gate fence remains flexible and rises with the flow.  Some variations of the flood gate fence have foam or plastic floats at the bottom of the fence to aid in flotation on the surface of the flood flow.

Violation: The failure of a structure or other development to be fully compliant with the community’s floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in Code of Federal Regulations, Title 44: Emergency Management and Assistance, Part 60-Criteria For Land Management and Use, Subpart A-Requirements for Land Management Regulations, Sec. 60.3(b)(5), (c)(4), (c)(10), (d)(3), (e)(2), (e)(4), or (e)(5) is presumed to be in violation until such time as that documentation is provided.

Watercourse – A lake, river, creek, stream, wash, channel or other topographic feature on                                            or over which waters flow at least periodically. Watercourse includes specifically designated areas in which substantial flood damage may occur.

ARTICLE III.  ESTABLISHMENT OF ZONING DISTRICTS

Section 3.1. Description of districts.
10.8.    Establishment of Floodplain Districts

A.    Description of districts.

1. Basis of districts.  The various floodplain districts shall include areas subject to inundation by waters of the 100-year flood. special flood hazard areas.  The basis for the delineation of these districts shall be the Flood Insurance Study (FIS) and the Flood Insurance Rate Maps (FIRM) for Nelson County, prepared by the Department of Housing and Urban Development, Federal Insurance Administration, dated February, 1978, as amended. Federal Emergency Management Agency, Federal Insurance Administration, dated June 18, 2010 and any subsequent revisions or amendments thereto.

The boundaries of the Special Flood Hazard Area and Floodplain Districts are established as shown on the Flood Insurance Rate Map which is declared to be a part of this ordinance and which shall be kept on file at the Nelson County Planning and Zoning office.

The Floodway District is delineated, for purposes of this ordinance, using the criterion that certain areas within the floodplain must be capable of carrying the waters of the 100-year flood without increasing the water surface elevation of that flood more than one (1) foot at any point.  The areas included in this district are specifically defined in Table 2 of the above referenced flood insurance study and shown on the accompanying Flood Boundary and Floodway Map or Flood Insurance Rate Map.
(1)     The Flood-Fringe District shall be that area of the 100-year floodplain not included in the Floodway District.  The basis for the outermost boundary of the district shall be the 100-year flood elevations contained in the flood profiles of the above referenced flood insurance study and as shown on the accompanying Flood Boundary and Floodway Map or Flood Insurance Rate Map.
(2)     The Flood-Fringe District shall be that area of the 100-year floodplain not included in the Floodway District.  The basis for the outermost boundary of the district shall be the 100-year flood elevations contained in the flood profiles of the above referenced flood insurance study and as shown on the accompanying Flood Boundary and Floodway Map or Flood Insurance Rate Map.

(3)     The Approximated Floodplain District shall be that floodplain area for which no detailed flood profiles or elevations are provided, but where a 100-year floodplain boundary has been approximated.  Such areas are shown as Zone A on the maps accompanying the flood insurance study.  For these areas, the 100-year flood elevations and floodway information from federal, state, and other acceptable sources shall be used, when available.  Where the specific 100-year flood elevation cannot be determined for this area using other sources of data, such as the U.S. Army Corps of Engineers Floodplain Information Reports, U.S. Geological Survey Flood prone Quadrangles, etc., then the applicant for the proposed use, development and/or activity shall determine this elevation in accordance with hydrologic and hydraulic engineering techniques. Only professional engineers shall undertake hydrologic and hydraulic analyses or others of demonstrated qualifications, who shall certify that the technical methods used correctly reflect currently accepted technical concepts. Studies, analyses, computations, etc., shall be submitted in sufficient detail to allow a thorough review by Nelson County.

1.    The Floodway District is delineated, for purposes of this ordinance, using the criterion that certain areas within the floodplain must be capable of carrying the waters of the one hundred (100)-year flood without increasing the water surface elevation of that flood more than one (1) foot at any point. The areas included in this District are specifically defined in Table 4 of the above-referenced Flood Insurance Study and shown on the accompanying Flood Insurance Rate Map.

2.    The Special Floodplain District shall be those areas identified as an AE Zone on the maps accompanying the Flood Insurance Study for which one hundred (100)-year flood elevations have been provided.

3.    The Approximated Floodplain District shall be those areas identified as an A or A99 Zone on the maps accompanying the Flood Insurance Study.  In these zones, no detailed flood profiles or elevations are provided, but the one hundred (100)-year floodplain boundary has been approximated.  For these areas, the one hundred (100)-year flood elevations and floodway information from federal, state, and other acceptable sources shall be used, when available. Where the specific one hundred (100)-year flood elevation cannot be determined for this area using other sources of data, such as the U.S. Army Corps of Engineers Flood Plain Information Reports, U.S. Geological Survey Flood-prone Quadrangles, etc., then the applicant for the proposed use, development and/or activity shall determine this elevation in accordance with hydrologic and hydraulic engineering techniques. Hydrologic and hydraulic analyses shall be undertaken only by professional engineers or others of demonstrated qualifications, who shall certify that the technical methods used correctly reflect currently accepted technical concepts. Studies, analyses, computations, etc., shall be submitted in sufficient detail to allow a thorough review by the governing body.

B.     Overlay concept.

1.    The floodplain districts described above shall be overlays to the existing underlying districts as shown on the Official Zoning Ordinance Map, and as such, the provisions for the floodplain districts shall serve as a supplement to the underlying district provisions.

2.    Any conflict between the provisions or requirements of the floodplain districts and those of any underlying district, the more restrictive provisions and/or those pertaining to the floodplain districts shall apply.

3.     In the event any provision concerning a floodplain district is declared inapplicable as a result of any legislative or administrative actions or judicial decision, the basic underlying provisions shall remain applicable.

Section 3.2
10.9.      Official Zoning Map.  The boundaries of the floodplain districts are established as shown on the (Flood Boundary and Floodway Map and/or Flood Insurance Rate Map dated June 18, 2010 which is declared to be a part of this ordinance and which shall be kept on file at the Nelson County Administrators Planning and Zoning office.

Section 3.3
10.10. District boundary changes.  The delineation of any of the floodplain districts may be revised by the Board of Supervisors where natural or manmade changes have occurred and/or where more detailed studies have been conducted or undertaken by the U.S. Army Corps of Engineers or other qualified agency, or an individual documents the need for such change.  However, prior to any such change, approval must be obtained from the Federal Insurance Administration.

Section 3.4
10.11. Interpretation of district boundaries.  Initial interpretations of the boundaries of the floodplain districts shall be made by the zoning administrator Planning and Zoning Director.  Should a dispute arise concerning the boundaries of any of the districts, the Board of Zoning Appeals shall make the necessary determination.  The person questioning or contesting the location of the district boundary shall be given a reasonable opportunity to present his case to the Board and to submit his own technical evidence if he so desires.

10.12. Submitting Technical Data.  A community’s base flood elevations may increase or decrease resulting from physical changes affecting flooding conditions. As soon as practicable, but no later than six months after the date such information becomes available, a community shall notify the Federal Insurance Administrator of the changes by submitting technical or scientific data. Such a submission is necessary so that upon confirmation of those physical changes affecting flooding conditions, risk premium rates and flood plain management requirements will be based upon current data.

ARTICLE IV.  DISTRICT PROVISIONS

Section 4.1
10.13.  General provisionsPermit and Application Requirements.

A.     Permit requirement.  All uses, activities, and development occurring within any floodplain district, including placement of manufactured homes, shall be undertaken only upon the issuance of a Special Use Permit.  Such development shall be undertaken only in strict compliance with the provisions of the ordinance and with all other applicable codes and ordinances, such as the Virginia Uniform Statewide Building Code (VA USBC) and the Nelson County Subdivision Regulations.  Prior to the issuance of any permit the zoning administrator Planning and Zoning Director shall require all applications to include compliance with all applicable state and federal laws.  Under no circumstances shall any use, activity, and/or development adversely affect the capacity of the channels or floodway of any watercourse, drainage ditch, or any other drainage facility or system.

B.     Alteration or relocation of watercourse.  Prior to any proposed alteration or relocation of any channels or of any watercourse, stream, etc., within this jurisdiction a permit shall be obtained from the U.S. Corps of Engineers, the Virginia State Water Control Board, and the Virginia Marine Resources Commission (a joint permit application is available from any of these organizations).  Furthermore, notification of the proposal shall be given by the applicant to all affected adjacent jurisdictions, the Division of Soil and Water Conservation (Department of Conservation and Recreation), and the Federal Insurance Administration.

C.     Site plans and permits applications.  All applications for Special Use Permit for development in the floodplain district and all building permits issued for the floodplain shall incorporate the information contained in subparagraph 1., 2., 3., 4., and 5. and the zoning administrator Planning and Zoning Director may require the applicant to furnish any and all of the following information in subparagraphs 6. through 8. As deemed necessary for determining the suitability of the particular site for the proposed use, the following is required:

1.    Plans in triplicate drawn to scale showing the nature, location, dimensions, and elevation of the lot, existing or proposed structures, fill, storage of materials, flood proofing measures, and the relationship of the above to the location of the channel, floodway, and the flood protection elevation.
2.    For structures to be elevated, the elevation of the lowest floor (including basement).
3.    For structures to be flood proofed (nonresidential only), the elevation to which the structure will be flood proofed.
4.    The elevation of the 100-year flood.
5.    Topographic information showing existing and proposed ground elevations.
6.   A typical valley cross section showing the channel of the stream, elevation of land areas adjoining each side of the channel, cross sectional areas to be occupied by the proposed development, and high water information.
7. Plans (surface view) showing elevations or contours of the ground; pertinent structure, fill, or storage of all proposed and existing structures on the site; location and elevations of streets, water supply, sanitary facilities; photographs showing existing land uses and vegetation upstream and downstream, soil types, and other pertinent information.
8. Specifications for building construction and materials, flood proofing, filling, dredging, grading, channel improvement, storage of materials, water supply, and sanitary facilities.
10.14.    General Standards

The following provisions shall apply to all permits:

A.    New construction and substantial improvements shall be according to the VA USBC, and anchored to prevent flotation, collapse or lateral movement of the structure.

B.    Manufactured shall be anchored to prevent flotation, collapse, or lateral movement.  Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors.  This standard shall be in addition to and consistent with applicable State anchoring requirements for resisting wind forces.

C.    New construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.

D.    New construction or substantial improvements shall be constructed by methods and practices that minimize flood damage.

E.    Electrical, heating, ventilation, plumbing, air conditioning equipment and other service facilities, including duct work, shall be designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

F.    New and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system.

G.    New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters.

H.    On-site waste disposal systems shall be located and constructed to avoid impairment to them or contamination from them during flooding.

In addition to provisions A. – H. above, in all special flood hazard areas, these additional provisions shall apply:

I.    Prior to any proposed alteration or relocation of any channels or of any watercourse, stream, etc., within this jurisdiction a permit shall be obtained from the U. S. Corps of Engineers, the Virginia Department of Environmental Quality, and the Virginia Marine Resources Commission (a joint permit application is available from any of these organizations).  Furthermore, in riverine areas, notification of the proposal shall be given by the applicant to all affected adjacent jurisdictions, the Department of Conservation and Recreation (Division of Dam Safety and Floodplain Management) and the Federal Insurance Administrator.

J.    The flood carrying capacity within an altered or relocated portion of any watercourse shall be maintained.

K.    Fences shall be installed parallel to a waterway.  When a fence crosses a waterway, it shall be designed as a drop-down fence or a suspended cable fence.

10.15.   Specific Standards

In all special flood hazard areas where Base Flood Elevations have been provided in the Flood Insurance Study or generated according Section 10.18, the following provisions shall apply:

A.    Residential Construction

New construction or substantial improvement of any residential structure (including manufactured homes) shall have the lowest floor, including basement, elevated one foot or more above the Base Flood Elevation.

B.    Non-Residential Construction

New construction or substantial improvement of any commercial, industrial, or non-residential building (or manufactured/mobile home) shall have the lowest floor, including basement, elevated one foot or more above the Base Flood Elevation.  Buildings located in all A1-30, AE, and AH zones may be flood-proofed in lieu of being elevated provided that all areas of the building components below the elevation corresponding to the BFE plus one foot are water tight with walls substantially impermeable to the passage of water, and use structural components having the capability of resisting hydrostatic and hydrodynamic loads and the effect of buoyancy.  A registered professional engineer or architect shall certify that the standards of this subsection are satisfied.  Such certification, including the specific elevation (in relation to mean sea level) to which such structures are flood-proofed, shall be maintained by the Planning and Zoning Director.

C.    Elevated Buildings

Fully enclosed areas, of new construction or substantially improved structures, which are below the regulatory flood protection elevation shall:

1. Not be designed or used for human habitation, but shall only be used for   parking of vehicles, building access, or limited storage of maintenance equipment used in connection with the premises.  Access to the enclosed area shall be the minimum necessary to allow for parking of vehicles (garage door) or limited storage of maintenance equipment (standard exterior door), or entry to the living area (stairway or elevator);

2. Be constructed entirely of flood resistant materials below the regulatory flood protection elevation;

3. Include, in Zones A, AO, AE, and A1-30, measures to automatically equalize hydrostatic flood forces on walls by allowing for the entry and exit of floodwaters.  To meet this requirement, the openings must either be certified by a professional engineer or architect or meet the following minimum design criteria:

a.    Provide a minimum of two openings on different sides of each enclosed area subject to flooding;

b.    The total net area of all openings must be at least one (1) square inch for each square foot of enclosed area subject to flooding;

c.    If a building has more than one enclosed area, each area must have openings to allow floodwaters to automatically enter and exit;

d.    The bottom of all required openings shall be no higher than one (1) foot above the adjacent grade;

e.    Openings may be equipped with screens, louvers, or other opening coverings or devices, provided they permit the automatic flow of floodwaters in both directions;

f.    Foundation enclosures made of flexible skirting are not considered enclosures for regulatory purposes, and, therefore, do not require openings.  Masonry or wood underpinning, regardless of structural status, is considered an enclosure and requires openings as outlined above.

D.     Manufactured homes.  Manufactured homes that are placed or substantially improved on sites shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated to or above the base flood elevation and be securely anchored to an adequately anchored foundation system to resist floatation collapse and lateral movement.

E.     Recreational vehicles:  Recreational vehicles placed on sites either:

(i)     Be on the site for fewer than one hundred eighty (180) consecutive days, be fully licensed and ready for highway use, or
(ii)     Meet the permit requirements for placement and the elevation and anchoring requirements for manufactured homes in paragraph 4.1.D. above.

A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is     attached to the site only by quick disconnect type utilities and security devices, and has no     permanently attached additions.

D.    Standards for Manufactured Homes and Recreational Vehicles

1.    All manufactured homes placed, or substantially improved, on individual lots or parcels, in expansions to existing manufactured home parks or subdivisions, in a new manufactured home park or subdivision or in an existing manufactured home park or subdivision on which a manufactured home has incurred substantial damage as the result of a flood, must meet all the requirements for new construction, including the elevation and anchoring requirements in Section 10.13 A. and B. and Section 10.15 A.

2.    All recreational vehicles placed on sites must either:

a.    be on the site for fewer than 180 consecutive days;
b.    be fully licensed and ready for highway use (a recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices and has no permanently attached additions); or,
c.    meet all the requirements for manufactured homes in Section 10.13 and Section 10.15 D.
Section 4.2.  Floodway District.  In the Floodway District no encroachments, including fill, new construction, substantial improvements, or other development shall be permitted unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that tile proposed encroachment would not result in any increase in the 100-year flood elevation.
10.16.  Standards for the Floodway District

The following provisions shall apply within the Floodway District:

A.    Encroachments, including fill, new construction, substantial improvements and other developments are prohibited unless certification such as hydrologic and hydraulic analyses (with supporting technical data) is provided demonstrating that encroachments shall not result in any increase in flood levels during occurrence of the base flood.  Hydrologic and hydraulic analyses shall be undertaken only by professional engineers or others of demonstrated qualifications, who shall certify that the technical methods used correctly reflect currently accepted technical concepts. Studies, analyses, computations, etc., shall be submitted in sufficient detail to allow a thorough review by the Planning and Zoning Director.

Development activities which increase the water surface elevation of the base flood may be allowed, provided that the property owner first applies and obtains the following:

1.    Receives an endorsement from the State’s Floodplain Program Engineer;
2.    Receives a Special Use Permit from The Nelson County Board of Zoning   Appeals  for a conditional Flood Insurance Rate Map and floodway revision; and
3.    Receives the approval of the Federal Emergency Management Agency.

B.    If Section 10.19 is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of this Article.

C.    The placement of manufactured homes (mobile homes) is prohibited, except in an existing manufactured homes (mobile homes) park or subdivision.  A replacement manufactured home may be placed on a lot in an existing manufactured home park or subdivision provided the anchoring, elevation, and encroachment standards are met.

Section 4.3
10.17.  Permitted Uses in the Floodway District.  The following uses and activities are permitted, provided that they are in compliance with the provisions of the underlying area and are not prohibited by any other ordinance and provided that they do not require structures, fill, or storage of materials and equipment:

A.     Agricultural uses, such as general farming, pasture, grazing, outdoor plant nurseries, horticulture, truck farming, forestry, sod farming, and wild crop harvesting.
B.     Public and private recreational uses and activities, such as parks, day camps, picnic grounds, golf courses, boat launching and swimming area, horseback riding and hiking trails, wildlife and nature preserves, game farms, fish hatcheries, trap and skeet game ranges, and hunting and fishing areas.
C.     Accessory residential uses, such as yard areas, gardens, play areas, and pervious loading areas;
D.    Accessory industrial and commercial uses, such as yard areas, pervious parking and loading areas, airport landing strips, etc.
E.     Flood warning aids and water measurement devices.

Section 4.4.  Flood Fringe and Approximated Floodplain Districts.  In the Flood Fringe and Approximated Floodplain Districts, the development and/or use of the land shall be permitted by special use permit in accordance with the regulations of the underlying area provided that all such uses, activities, and/or development shall be undertaken in strict compliance with the flood proofing and related provisions contained in the Virginia Uniform Statewide Building Code and all other applicable codes and ordinances.

Within the Approximated Floodplain District, the applicant shall also delineate a floodway area based on the requirement that all existing and future development not increase the 100-year flood elevation more than one foot at any one point.  The engineering principle-equal reduction of conveyance shall be used to make the determination of increased flood heights.

Within the floodway area delineated by the applicant, the provisions of Section 4.2 shall apply.

10.18.  Standards for the Special Floodplain District

The following provisions shall apply within the Special Floodplain District:

Until a regulatory floodway is designated, no new construction, substantial improvements, or other development (including fill) shall be permitted within the areas of special flood hazard, designated as Zones A1-30 and AE on the Flood Insurance Rate Map, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within Nelson County.

Development activities in Zones Al-30, AE, and AH, on the Nelson County’s Flood Insurance Rate Map which increase the water surface elevation of the base flood by more than one foot may be allowed, provided the property owner first applies, with the Nelson County Board of  Zoning Appeal’s endorsement, for a conditional Flood Insurance Rate Map revision, and receives the approval of the Federal Emergency Management Agency.

10.19.  Standards for Approximated Floodplain

The following provisions shall apply with the Approximated Floodplain District:

The Approximated Floodplain District shall be that floodplain area for which no detailed flood profiles or elevations are provided, but where a one hundred (100)-year floodplain boundary has been approximated. Such areas are shown as Zone A on the maps accompanying the Flood Insurance Study. For these areas, the one hundred (100)-year flood elevations and floodway information from federal, state, and other acceptable sources shall be used, when available.

Where the specific one hundred (100)-year flood elevation cannot be determined for this area using other sources of data, such as the U. S. Army Corps of Engineers Floodplain Information Reports, U. S. Geological Survey Flood-Prone Quadrangles, etc., then the applicant for the proposed use, development and/or activity shall determine this elevation.  For development proposed in the approximate floodplain the applicant must use technical methods that correctly reflect currently accepted technical concepts, such as point on boundary, high water marks, or hydrologic and hydraulic analyses.  Studies, analyses, computations, etc., shall be submitted in sufficient detail to allow a thorough review by the Planning and Zoning Director.

The Planning and Zoning Director reserves the right to require a hydrologic and hydraulic analyses for any development.

When such base flood elevation data is utilized, the lowest floor shall be elevated to one foot above the base flood elevation. During the permitting process, the Planning and Zoning Director shall obtain:

1.    the elevation of the lowest floor (including the basement) of all new and substantially improved structures; and,

2.    if the structure has been flood-proofed in accordance with the requirements of this article, the elevation (in relation to mean sea level) to which the structure has been flood-proofed.

10.20.   Standards for Subdivision Proposals

A.    All subdivision proposals shall be consistent with the need to minimize flood damage;

B.    All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage;

C.    All subdivision proposals shall have adequate drainage provided to reduce exposure to flood hazards; and

D.    Base flood elevation data shall be provided for subdivision proposals and other development proposals (including manufactured home parks and subdivisions) that exceed fifty lots or five acres, whichever is the lesser.

Section 4.5
10.21.  Design criteria for utilities and facilities.

A.     Sanitary sewer facilities.  All new or replacement sanitary sewer facilities and private package sewage treatment plants (including all pumping stations and collector systems) shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into the flood waters.  In addition, they should be located and constructed to minimize or eliminate flood damage and impairment.

B.     Water facilities.  All new or replacement water facilities shall be designed to minimize or eliminate infiltration of flood waters into the system and be located and constructed to minimize or eliminate flood damages.

C.     Drainage facilities.  All storm facilities shall be designed to convey the flow of surface waters without damage to persons or property.  The systems shall ensure drainage away from buildings and on site waste disposal sites.  The Board of Supervisors may require a primarily underground system to accommodate frequent floods and a secondary surface system to accommodate large, less frequent floods.  Drainage plans shall be consistent with local and regional drainage plans.  The facilities shall be designed to prevent the discharge of excess runoff onto adjacent properties.

D.     Utilities.  All utilities, such as gas lines, electrical and telephone systems being placed in flood prone areas should be located, elevated (where possible), and constructed to minimize the chance of impairment during a flooding occurrence.

E.     Streets and sidewalks.  Streets and sidewalks should be designed to minimize their potential for increasing and aggravating the levels of flood flow.  Drainage openings shall be required to sufficiently discharge flood flows without unduly increasing flood heights.

ARTICLE V.  SPECIAL USE PERMITS OR VARIANCES;
FACTORS TO BE CONSIDERED

In passing upon applications for special use permits or variances, the Board of Zoning Appeals shall satisfy all relevant factors and procedures specified in other sections of the zoning ordinance and consider the following additional factors:

10.22.     Variances and Special Use Permits
Variances and Special Use Permits shall be issued by the Board of Zoning Appeals upon:
A.    A showing of good and sufficient cause;
B.    Determination by the Board of Zoning Appeals that failure to grant the variance would result in exceptional hardship to the applicant; and
C.    Determination by the Board of Zoning Appeals that the granting of such Variance or Special Use Permit will not result in:

1.    Unacceptable or prohibited increases in flood heights;
2.    Additional threats to public safety;
3.    Extraordinary public expense;
4.    Nuisances being created;
5.    Fraud or victimization of the public; or
6.    Conflict with local laws or ordinances.

While the granting of variances generally is limited to a lot size less than one-half acre, deviations from that limitation may occur. However, as the lot size increases beyond one-half acre, the technical justification required for issuing a variance increases.  Variances may be issued by the Board of Zoning Appeals 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 level, in conformance with the provisions of this section.

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 the criteria of this section are met, and the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

In passing upon applications for Variances and Special Use Permits, the Board of Zoning Appeals shall satisfy all relevant factors and procedures specified in other sections of the zoning ordinance and consider the following additional factors:

A.     The danger to life and property due to increased flood heights or velocities caused by encroachments.  No Special Use Permit or Variance shall be granted for any proposed use, development, or activity within any floodway district that will cause any increase in the 100-year flood elevation Base Flood Elevation (BFE).
B.     The danger that materials may be swept on to other lands or downstream to the injury of others.
C.     The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination, and unsanitary conditions.
D.     The susceptibility of the proposed facility and its contents to flood damage and effect of such damage on the individual owners.
E.     The importance of the services provided by the proposed facility to the community.
F.     The requirements of the facility for a waterfront location.
G.     The availability of alternative locations not subject to flooding for the proposed use.
H.     The compatibility of the proposed use with existing development and development anticipated in the foreseeable future.
I.     The relationship of the proposed use to the Comprehensive Plan and floodplain management program for the area.
J.     The safety of access by ordinary and emergency vehicles to the property in time of flood.
K.     The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters expected at the site.
L.     The repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure’s continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.
M. Such other factors which are relevant to the purposes of this ordinance.

The Board of Zoning Appeals may refer any application and accompanying documentation pertaining to any request for a Special Use Permit or Variance to any engineer or other qualified person or agency for technical assistance in evaluating the proposed project in relation to flood heights and velocities, and the adequacy of the plans for flood protection and other related matters.

Special use permits or variances shall be issued only after the Board of Zoning Appeals has determined that the granting of such will not result in (a) unacceptable or prohibited increases in flood heights, (b) additional threats to public safety, (c) extraordinary public expense; and will not (d) create nuisances, (e) cause fraud or victimization of the public, or (f) conflict with local laws or ordinances.

Special Use Permits or Variances shall be issued only after the Board of Zoning Appeals has determined that Special Use Permit or Variance will be the minimum required to provide relief from any hardship to the applicant.

The Board of Zoning Appeals shall notify the applicant for a Special Use Permit or Variance, in writing, that the issuance of a Special Use Permit or Variance to construct a structure below the 100-year flood elevation Base Flood Elevation: (a) increases the risks to life and property: and (b) will result in increased premium rates for flood insurance.

A record shall be maintained of the above notification as well as all Special Use Permits or Variance actions, including justification for the issuance of a Special Use Permit or Variance.  Any Special Use Permit or Variance which is issued shall be noted in the annual or biennial report submitted to the Federal Insurance Administrator.

ARTICLE VI.  EXISTING STRUCTURES IN FLOODPLAIN DISTRICTS
10.23.     Existing Structures in Floodplain Districts
A structure or use of a structure or premises which lawfully existed before the enactment of these provisions but which is not in conformity with these provisions may be continued subject to the following conditions:

A.     Existing structures in the Floodway District shall not be expanded or enlarged unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed expansion would not result in any increase in the 100-year flood elevation Base Flood Elevation.

B.     Any modifications, alteration, repair, reconstruction, or improvement of any kind to a structure and/or use, located in any floodplain area to an extent or amount of less than fifty (50) percent of its market value, shall be elevated and/or flood-proofed to the greatest extent possible.

C.     The modifications, alteration, repair, reconstruction, or improvement of any kind to a structure and/or use, regardless of its location in a floodplain area to an extent or amount of fifty (50)  percent or more of its market value, shall be undertaken only in full compliance with the provisions of this ordinance and the Virginia Uniform Statewide Building Code.