§ 1361.08. Appeals and penalties.

(a)

Appeals. Whenever any person is aggrieved by a decision of the Floodplain Administrator with respect to the provision of this Article, it is the right of that person to appeal to the Town Council of the City of Hurricane which shall be known as the Appeals Board. Such appeal shall be filed with the Town Council of the City of Hurricane, in writing, within 30 days after notification of the decision. Upon receipt of such appeal, the Appeals Board shall set a time and place not less than ten nor more than 60 days for the purpose of hearing the appeal. Notice of the time and place of the hearing shall be given to all parties at which time they may appear and be heard. The determination by the Appeals Board shall be final in all cases.

(b)

Appeal review criteria.

(1)

All appeals contesting only the permit fee, the cumulative substantial damage requirement, the flood protection setback requirement, or the freeboard requirements, may be handled at the discretion of the Appeals Board.

(2)

All decisions on appeals to all other provisions of this Article shall adhere to the following criteria:

a.

Affirmative decisions shall only be issued by the Appeals Board upon:

1.

A showing of good and sufficient cause;

2.

A determination that failure to grant the appeal would result in exceptional hardship to the applicant; and

3.

A determination that the granting of an appeal 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 locals laws or ordinance.

b.

An affirmative decision shall be issued only upon determination that it is the minimum necessary, considering the flood hazard, to afford relief. Financial hardship, as a sole criterion, shall not be considered sufficient justification to grant an appeal.

c.

An affirmative decision shall be issued for 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.

d.

The Appeals Board shall notify the applicant in writing over the signature of a City of Hurricane official that (i) the issuance of a decision to allow construction of a structure below the base flood elevation will result in increased premium rates for flood insurance, (ii) such construction below the base flood elevation increases risk to life and property. Such notifications shall be maintained with a record of all decisions as required in subsection (b)(5) of this section; and

e.

The Appeals Board shall:

1.

Maintain a record of all decisions including justification for their issuance, and

2.

Report such decisions issued in its biannual report to the Federal Emergency Management Agency (FEMA).

f.

An affirmative decision shall not be granted for any construction, development, use or activity within any floodway area that would cause any increase in the base flood elevation.

(c)

Penalties. Any person who fails to comply with any or all of the requirements or provisions of this Article or direction of the Floodplain Administrator, or any other authorized employee of the City of Hurricane, shall be unlawful and shall be referred to the prosecuting attorney who shall expeditiously prosecute all such violators. A violator shall, upon conviction, pay a fine to the City of Hurricane of not less than $50.00 or more than $500.00 plus cost of prosecution. In default of such payment such person shall be imprisoned for a period not to exceed ten days. Each day during which any violation of this Article continues shall constitute a separate offense. In addition to the above penalties, all other actions are hereby reserved including an action in equity for the proper enforcement of this Article. The imposition of a fine or penalty for any violation of, or non-compliance with, this Article shall not excuse the violation or non-compliance with the Article or permit it to continue; and all such persons shall be required to correct or remedy such violations or non-compliance within a reasonable time. Any structure constructed, reconstructed, enlarged, altered or relocated in non-compliance with this Article may be declared by the Town Council of the City of Hurricane to be a public nuisance and abatable as such.

(Ord. of 1-3-2012)