A.

The North Carolina State Building Code is the basis for all building inspections as authorized in N.C.G.S. 106D-1104. The code includes: North Carolina Building Code, North Carolina Residential Code, North Carolina Energy Conservation Code, North Carolina Mechanical Code, North Carolina Plumbing Code, North Carolina Fuel Gas Code, North Carolina Administrative Codes and Policies, Regulations for Manufactured Homes; and all subsequent editions and amendments. The code is hereby adopted by reference as fully as though set forth in this section, to include any and all future amendments thereto that may, from time to time, be adopted and approved by the state.

B.

In addition, the town adopts locally the following recommended practices of the International Residential Code the same as if set out at length herein, as the same may be amended from time to time:

1.

Appendix AF: Radon Control Methods

Water line leak prevention. To minimize leaks and conserve water, the Town of Black Mountain requires a test of 100 pounds of pressure on all water supply piping to structures in new construction, and on replacement water lines in existing structures.

(Ord. No. O-24-12, 8-12-2024)

Copies of cited codes, the North Carolina Green Builder Program Guidelines and the LEED ^TM (Leadership in Energy and Environmental Design) Green Building Rating System of the U.S. Green Building Council shall be maintained within the building inspections office for reference.

Except as specifically hereinafter modified, permits shall be issued in accordance with Section 204.3 of the North Carolina State Building Code: Administrative Code and Policies.

A.

Zoning, stormwater and fire safety certification required. No building permit shall be issued until:

1.

The zoning administrator has certified that the proposed structure and use is compliant with the zoning district in which it is located;

2.

The planning director or subdivision administrator has certified that the project is compliant with the terms or conditions of any existing development approval;

3.

The fire marshal has certified that the project is compliant with the fire code;

4.

The stormwater administrator has certified that the project is compliant with the stormwater ordinance; and

5.

The floodplain administrator has certified that the project is compliant with the flood damage prevention ordinance.

B.

Permits issued for approved developments and lots only. No building permit shall be issued for construction of infrastructure in a new major or minor subdivision until the preliminary plat is approved. Building permits for construction on new lots created by the subdivision of land shall not be issued until the subdivision plat is approved.

C.

Application for a building permit. No building permit shall be issued until a complete permit application has been submitted to the building inspector. The building inspector shall make available a list of information which must be submitted with the application.

A.

No building used for commercial, institutional or industrial purposes shall be used or occupied, nor shall a change in occupancy occur, nor shall the use of the building or part of a building change, until a certificate of compliance and occupancy, or "C.O." is obtained from the building inspector.

B.

No new residential structure shall be occupied until a certificate of compliance and occupancy is obtained from the building inspector.

C.

A residence shall not be converted to a non-residential use until a certificate of compliance and occupancy is obtained from the building inspector.

D.

Applications for a CO must be submitted to the planning department and shall be accompanied by a site plan, applicable fees, approved final plat, or other such plans and specifications as the building inspector, fire marshal and zoning administrator may require regarding the conformity of the proposed use, reuse, construction or renovation to the applicable development regulations.

E.

The CO shall be issued only when the building inspector, fire marshal and zoning administrator certify that the project is in compliance with applicable development regulations and the site and building improvements have been completed in accordance with the previously submitted and approved plans.

F.

A temporary certificate of compliance may be issued permitting occupancy for a stated period of specific portions of a building or system that the inspector finds safe for occupancy prior to final completion of the entire building or system.

No building or construction material shall be placed or left on any street, alleyway, sidewalk or other public property except with permission from the town manager. Permits for use of town right-of-way may be granted by the town manager only when the request will not endanger public safety, and for renewable periods of no longer than 45 days. In issuing any such permit, the town manager may impose conditions as necessary in the interest of public safety and to minimize restrictions on the free and unobstructed use of streets or sidewalks.

A.

Permit fees are established by the town council and are published in a schedule of building permit and inspection fees available through the planning department.

B.

The town provides building and permit fee incentives for construction that meets town goals related to the environment and community development.

1.

To encourage energy efficient, high performance and sustainable building practices, the town will provide a rebate of 50 percent or $500.00, whichever is greater, for construction projects certified by the NC Healthy Built Homes Program or a Certified Level in the LEED rating systems. Contact the Western North Carolina Green Building Council website for up-to-date information at www.wncgbc.org.

2.

To encourage new home and rental development to be available at median to low-income market prices, the town will provide a rebate equal to 50 percent of the calculated building permit fee for construction projects developed by a housing agency utilizing federal or state CDBG, HOME, HUD or other grant funds designated for the purpose of affordable housing. A 50 percent rebate will also be provided to any developer who provides documentation that the unit on which the fee was paid was sold at a price level consistent with affordable housing guidelines as established by Buncombe County.

3.

For new construction that meets the criteria of both paragraphs one and two above, a 50 percent rebate will be provided from the building permit fee and all required mechanical, electrical and plumbing inspections will be conducted for a flat, comprehensive fee of $100.00 per unit.

A.

The building inspector is appointed to exercise the powers of condemnation as provided in Article 11 of Chapter 160D of the North Carolina General Statutes.

B.

Inspection of non-residential buildings. The inspector may make periodic inspections for unsafe, unsanitary, or otherwise hazardous and unlawful conditions in buildings or structures. The inspector shall have the right to enter on any premises within the jurisdiction of the department at all reasonable hours for the purposes of inspection or other enforcement action, upon presentation of proper credentials.

C.

Inspection of residential buildings. The inspector may make periodic inspections of residential buildings or structures following the provisions of section 2.2.6.B.

D.

Defects to be corrected. When the inspector finds any defect in a building or structure or finds that the building or structure has not been constructed in accordance with applicable state and local laws, or that a building because of its condition is dangerous or contains fire hazardous conditions, it shall be the inspector's duty to notify the owner or occupant of the defects, hazardous conditions, or failure to comply with law. The owner or occupant shall each immediately remedy the defects, hazardous conditions, or violations of law in the property. The notice required by this subsection shall be sent by certified mail, return receipt requested, to the owner's or occupant's last known address or by personal service.

E.

Condemnation. Every building that shall appear to the inspector to be especially dangerous to life because of its liability to fire or because of bad condition of walls, overloaded floors, defective construction, decay, unsafe wiring or heating system, inadequate means of egress, or other causes, shall be held to be unsafe, and the inspector shall affix a notice of the dangerous character of the structure to a conspicuous place on the exterior wall of the building.

F.

Failure to take corrective action. If the owner of a building or structure that has been condemned as unsafe shall fail to take prompt corrective action, the inspector shall give written notice by certified mail, return receipt requested, to the owner's last known address or by personal service, of all of the following:

1.

That the building or structure is in a condition that appears to meet one or more of the following:

a.

Constitutes a fire or safety hazard;

b.

Is dangerous to life, health, or other property;

c.

Is likely to cause or contribute to blight, disease, vagrancy, or danger to children; or

d.

Has a tendency to attract persons intent on criminal activities or other activities that would constitute a public nuisance;

2.

That an administrative hearing will be held before the inspector at a designated place and time not later than ten days after the date of the notice, at which time the owner shall be entitled to be heard in person or by counsel and to present arguments and evidence pertaining to the matter; and

3.

That following the hearing, the inspector may issue such order to repair, close, vacate, or demolish the building or structure as appears appropriate.

If the name or whereabouts of the owner cannot, after due diligence, be discovered, the notice shall be considered properly and adequately served if a copy is posted on the outside of the building or structure in question at least ten days prior to the hearing and a notice of the hearing is published in a newspaper having general circulation in the Town of Black Mountain at least once not later than one week prior to the hearing.

G.

If, after a hearing, the inspector shall find that the building or structure is in a condition that constitutes a fire or safety hazard or renders it dangerous to life, health, or other property, the inspector shall issue an order in writing, directed to the owner of such building or structure, requiring the owner to remedy the defective conditions by repairing, closing, vacating, or demolishing the building or structure or taking other necessary steps within such period as the inspector may prescribe; provided, however that such period shall not be less than 60 days unless the inspector finds that there is imminent danger to life or other property.

H

Any owner who has received such an order may appeal to the town council by giving notice of appeal in writing to the town clerk within ten days following issuance of the order. The town council shall hear and render a decision in the appeal within a reasonable time. The council may affirm, modify and affirm, or revoke the order. In the absence of an appeal, the order of the inspector shall be final.

I.

If the owner of a building or structure fails to comply with an order issued pursuant to N.C.G.S. § 160D-1120 from which no appeal has been taken, or fails to comply with an order of the town council following an appeal, the owner shall be guilty of a Class 1 misdemeanor. In lieu of civil or criminal penalties, the town council may authorize the initiation of appropriate actions or proceedings to prevent, restrain, correct, or abate the violation or to prevent the occupancy of the building or structure involved.

A.

All non-residential structures shall be maintained in a state of good repair that prevents further decay from wind, rain and external weather and secures the structure from any unauthorized admittance from humans, animals, or birds. All non-residential structures shall be free of nuisances and any hazards to the safety of occupants, customers or other persons utilizing the premises or to pedestrians and/or vehicles passing thereby. Without limiting the foregoing, the existence of any of the following conditions shall be deemed a violation of this section and must be corrected:

1.

Such damage by fire, wind or other causes as to render the building unsafe;

2.

Dilapidation, decay, unsanitary conditions or disrepair, which is dangerous to the health, safety and welfare of the occupants or other people in the town;

3.

Defects significantly increasing the hazards of fire, accident or other calamities;

4.

Buildings and environs shall be kept clear of accumulations of garbage, trash, or rubbish, which creates health and sanitation problems;

5.

Flammable, combustibles, explosive or other dangerous or hazardous materials shall be stored in a manner approved for such materials and consistent with the town fire prevention code;

6.

The building and environs surfaces shall be kept clear of broken glass, loose shingles, and similar hazardous conditions;

7.

The building and environs shall be kept free of objects and elements protruding from building walls, roof and environs which are unsafe or not properly secured or which can create a hazard such as abandoned electrical boxes and conduits, wires, sign brackets, and other similar objects;

8.

Attached and unattached accessory structures shall not cause a safety hazard and shall be in good repair;

9.

Advertising sign structures, attached or freestanding awnings, marquees and their supporting members and other similar attachments and structures shall be maintained in good repair and shall not cause a safety hazard to the occupants, pedestrians or other residents of the town;

10.

Floors or roofs shall have adequate support members and strength to be reasonably safe;

11.

Steps, railings, landing, porches, fire escapes or other parts or appurtenances, shall be maintained in such condition that they will not fail or collapse.

In accordance with Article 12 of Chapter 160D of the North Carolina General Statutes, and the North Carolina Rental Agreement Act, this code is adopted to protect the health, safety, and welfare of the residents of the Town of Black Mountain by establishing minimum housing standards for all renter occupied dwellings and to eliminate unsafe housing.

A.

The provisions of this minimum housing code are applicable to all existing dwelling units and all dwelling units hereafter constructed, renovated or repaired within the Town of Black Mountain which are used or intended for use as rental property for human habitation.

B.

This minimum housing code applies only to renter occupied dwellings. owner occupied dwellings in which a room or portion of the structure in which the owner resides is leased or rented, and owner-occupied manufactured homes on rented lots, such as a manufactured home park, are exempt from this minimum housing code.

C.

Definitions relating to this code may be found in chapter 1, section 1.2.3.

A.

Every renter occupied dwelling or dwelling unit shall comply with all of the minimum housing standards as established by this code. No person shall rent any dwelling or dwelling unit which does not comply will all of the minimum housing standards established by this code.

B.

Owners or agents of renter occupied dwellings may voluntarily provide one of the following to the town as documentation to ensure compliance:

1.

A certificate of occupancy issued within the previous three years; or

2.

Documentation of a photograph of the "red label" indicating compliance with the HUD Manufactured Home Construction and Safety Standards within the previous three years; or

3.

Documentation from HUD-Section 8 that the structure is presently in compliance with the rental criteria for safety under Section 8 Guidelines; or

4.

Documentation of a third-party inspection (such as that of a real estate transaction, loan, or annual inspection (not an appraisal report but a home inspection)) completed within the previous three years and identified issues corrected in compliance with this minimum housing code; or

5.

A safety checklist as completed by the inspector or other qualified building inspector issued within the previous three years.

C.

The planning director and his/her designee may waive inspection fees to encourage completion of a safety checklist. Any subsequent inspection required as a result of a failed safety inspection or the investigation of complaints shall require payment of the standard inspection fee as established by the town.

A.

Notwithstanding any other methods available for determining whether a dwelling is fit for human habitation, the inspector shall apply the minimum standards set forth below:

1.

Street address. Each dwelling shall bear a street number of a color contrasting with the surface on which the number is mounted. Such number shall be of sufficient size to be visible from the nearest street but not less than two inches in height. If the dwelling is not visible from the nearest street, a sign or standard bearing the address number shall also be placed on the principal street access point to the dwelling, such number to meet the standards set forth herein.

2.

Light and ventilation.

a.

Windows. Every habitable room shall have at least one window or skylight facing directly to the outdoors. Each window required for ventilation of habitable rooms shall be capable of being easily opened or closed and secured in position by window hardware.

b.

Mechanical ventilation. Every habitable room may have a means of mechanical ventilation or the ability to demonstrate alternate means of ventilation.

c.

Lighting in halls and stairways. Every hall and stairway of every dwelling shall be lighted including exterior stairways and stairways in halls and public spaces.

3.

Electrical systems.

a.

Electrical service. The minimum capacity of the service supply and the main disconnect switch shall be sufficient to adequately carry the load required in accordance with the state electrical code.

b.

Lights and outlets.

i.

Every habitable room or space shall contain at least two separate and remove duplex receptacle outlets.

ii.

Every hall, water closet compartment, bathroom, laundry room or furnace room shall contain at least one ceiling-mounted or wall-mounted fixture outlet. For purposes of this section, a laundry closet shall be considered a laundry room.

iii.

In bathrooms, the lighting outlet shall be controlled by a wall switch or fixture pull-chain. In addition to the lighting outlet in every bathroom and laundry room, there shall be provided at least one receptacle outlet. Any new or replacement bathroom receptacle outlet shall have ground fault circuit interrupter protection.

iv.

All outlets, switches, wiring and light fixtures shall be safe and operable. No extension cords shall be spliced or used as fixed wiring in a dwelling. Electrical odor, flickering lights, visibly frayed wiring, broken switch plates or outlet plates or failure of circuit-tester check shall be evidence of an unsafe electrical system.

4.

Exterior and interior.

a.

Foundation. The building foundation system shall be maintained in a safe manner and capable of supporting the load which normal use may cause to be placed thereon. Beneath the dwelling, there must be firm, reasonably dry ground ("reasonably dry" means no mud, standing water, running water or evidence of same). Manufactured homes shall be set up and secured as required by the state building code's regulations for manufactured housing.

b.

Roofs.

i.

Roof shall be structurally sound and maintained in a safe manner and have no defects which might admit rain or cause dampness in the walls or interior portion of the dwelling. The following may constitute evidence of defects:

(a)

Missing shingles;

(b)

Flashing(s) missing;

(c)

Roof deflection deeper than one-sixth of the depth of the rafter and/or cracked rafters;

(d)

Damage to ceiling (ceiling plaster loose or falling, brown spots, etc.), sheet rock hanging, etc. in rooms below roof; or

(e)

Fire damage.

c.

Stairs, porches and appurtenances.

i.

Every inside and outside stair, porch or any appurtenance thereto shall be safe to use and capable of supporting the load that normal use may cause to be placed thereon and shall be kept in sound condition and good repair. Stairs and steps shall be free of holes, grooves, and/or cracks large enough to constitute accident hazards. Stair coverings shall be securely mounted and shall not interfere.

d.

Structure supports.

i.

Every structural element of the dwelling shall be maintained in a structurally sound condition and show no evidence of deterioration which would render it incapable of carrying normal loads. Termites, termite damage, fire damage, absence of footing or cracked or split wood structure supports are examples of evidence of deterioration.

ii.

When additional direct support is required, piers shall be used under girders, at walls or other primary support points. Stiff knees shall not be used under girders, at walls or other primary support points, but may be used for indirect support only.

5.

Space requirements.

a.

Required space. Every dwelling shall contain at least the minimum room size in each habitable room as required by the state building code.

b.

Required space in sleeping rooms. In every dwelling unit and in every rooming unit, every room occupied for sleeping purposes shall contain at least 70 square feet of floor area for each intended occupant.

c.

Ceiling height. Habitable rooms other than kitchens, storage rooms and laundry rooms shall have a ceiling height of not less than seven feet. Hallways, corridors, bathrooms, water closet rooms, and kitchens shall have a ceiling height of not less than seven feet measured to the lowest projection from the ceiling. If any room in a dwelling has a sloping ceiling, the prescribed ceiling height of the room is required in only one-half of the room area. No portion of the room measuring less than five feet from the finished floor to the finished ceiling shall be included in any computation of the minimum room area.

d.

Occupancy below grade. No basement or cellar space shall be used as a habitable room or dwelling unless:

i.

The floor and walls are resistant to the leakage of underground and surface runoff water and show no evidence of recent water leakage or accumulations;

ii.

An easily accessible means of fire escape in addition to the basement or cellar stairs is provided; and

iii.

One operable means of emergency escape and rescue opening as prescribed per the state building code.

6.

Heating systems.

a.

Every dwelling shall have heating facilities which are properly installed, are maintained in safe and good working conditions, and are capable of safety and adequately heating all habitable rooms and bathrooms in every dwelling regulated herein to a temperature of at least 68 degrees F (20 degrees C) at a distance of three feet above the floor level, at an outside temperature of 20 degrees Fahrenheit. Each heating system shall have at least one readily adjustable control for regulations of living space temperatures in each dwelling unit. Radiator control knobs in good working order shall be regarded as a readily-adjustable control.

b.

Where a central heating system is not provided for a dwelling, the dwelling shall be provided with properly installed baseboard electric heat, properly installed and properly vented wood or fossil fuel(s), or unvented natural gas heaters having oxygen depletion sensors listed for residential use by UL, ETL, or other North Carolina recognized texting laboratories and installed in accordance with the manufacturer's instructions.

c.

The following heating devices do not meet the requirements of subsection 6.b. of this section:

i.

Portable electric heating units; and

ii.

Unvented fuel-burning heaters.

d.

The use of unvented fuel-burning heaters is prohibited in any bedroom.

7.

Chimneys.

a.

Chimney inspections shall be conducted by a certified chimney sweep or masonry contractor. All other heating system flue inspections shall be conducted by a licensed mechanical contractor.

b.

Unless they are closed off and cannot be used, chimneys must be safe for use as specified and intended with:

i.

Flue liner intact;

ii.

Chimney mortar and bricks secure;

iii.

Flue unobstructed;

iv.

Fireplace bricks intact; and

v.

Stove piping placed and secured with:

(a)

Minimum 18-inch masonry surrounding thimble as clearance separation from combustible; or

(b)

Minimum nine-inch air separation for insulated listed stove piping; or

(c)

Minimum two-inch air separation for insulated listed stove piping with one-inch of air space between the inner and outer chimney components; and

(d)

As otherwise described in the National Fire Protection Association Standards 211: Chimneys, Fireplaces, Vents and Solid Burning Fuel Appliances.

c.

Chimneys that do not meet these standards shall be either repaired or sealed.

A.

The inspector shall determine that a dwelling is unsafe and represents a threat to life and property, if any of the following conditions exist:

1.

No operating heating facilities that would maintain a minimum room temperature of 68 degrees at a point three feet above the floor in all habitable rooms with an outside temperature of 20 degrees Fahrenheit.

2.

No potable water supply.

3.

No hot water supply.

4.

No electricity.

5.

Presence of overloaded, non-isolated electrical circuits, or unsafe or exposed electrical wiring.

6.

Lack of properly functioning sanitary facilities.

7.

The presence of raw sewage or open sewer inside the dwelling, whether from broken or plugged fixtures or pipes inside the dwelling, or migrating into the dwelling from the outside, or the presence of inadequate ventilation of sewer systems.

8.

Presence of unsafe structural conditions:

a.

Foundations, foundation walls, piers or other foundation supports; exterior walls, interior structural walls, joists, rafters, sills, floors, and other structural members which are not capable of supporting the load which normal use would cause to be placed thereon;

b.

Roofs, flashing, exterior walls, basement walls, foundation walls, floors, hatchways, windows, which are not maintained so as to be in good condition;

c.

The ground used as a floor or any wood floors that are placed on the ground;

d.

Outside or inside stairs, steps, porches, landings and other parts or appurtenances which are in such donation as may increase the hazards of collapse, tripping, falling, rodent or pest infestation, fire or otherwise endanger the health or safety of the occupants, including broken windows; or

e.

Floors, interior walls, or partitions, the ceilings of all rooms, closets, and hallways which are not finished or covered with suitable material or which are not maintained free of flaking paint.

9.

Presence of uncontained flammable or combustible liquids or gases, poisonous solids, liquids or gases that threaten life or health and that are the property of the owner.

10.

Missing portion of roof or ceiling which allows drafts, severe bulging, or large amounts of loose or falling surface materials such as plaster.

11.

Chimneys and other heating systems that do not meet minimum standards.

12.

The building is a physical threat due to the immediate possibility of collapse.

13.

The primary means of exit in the event of emergency is structurally unsafe.

14.

Interior wall sheathing or sheeting that is not present or has been removed causing diminished protection from the spread of fire from story to story or from habitable spaces to bedrooms.

15.

Insulations and weatherproofing which did not meet the state building code at the time of construction or is not properly maintained.

B.

Every dwelling shall be provided with an approved smoke detector on each level of the dwelling and in all stairwells, hallways, and other common areas of multiple unit dwellings. Dwellings that utilize gas shall also be provided with a carbon monoxide detector. Detectors shall be installed in accordance with the manufacturer's recommendations and listing and when activated shall provide an audible alarm. The detector shall be listed in accordance with Underwrites Laboratories Listing 217 ("Single and Multiple Station Smoke Detectors"). Safety standards for detectors recommend that these should be tested on an annual basis at a minimum.

A.

Notification in writing of needed repairs. North Carolina Law requires that tenants request repairs in writing. The Town of Black Mountain will require evidence of written communication from the tenants to the landlord, owner, or agent. The landlord, owner, or agent shall be given 30 days to make repairs to unsafe conditions before enforcement procedures are initiated.

Inspections allowed. The inspector may inspect a residential structure when there is reasonable cause to believe that unsafe, unsanitary, or otherwise hazardous or unlawful conditions may exist. Reasonable cause includes any one or more of the following:

1.

The landlord or owner has a history of more than two verified violations of the building code, fire code, or minimum housing code within a 12-month period;

2.

There has been a complaint that substandard conditions exist within the building or there has been a request that the building be inspected;

3.

The inspection department has actual knowledge of an unsafe condition within the building; or

4.

Violations of the local ordinance or codes are visible from the outside of the property.

Inspections shall occur during reasonable hours, upon presentation of proper credentials.

Notice of violation. If it appears to the inspector that the dwelling or dwelling unit does not meet the minimum standards contained in this code, the inspector shall issue a written notice of violation pursuant to the provisions of section 1.10.6. The owner shall perform such work as is necessary to bring the dwelling unit into compliance within 30 calendar days if the building is occupied. The building inspector may grant extensions of time for completion of the required measures, but shall not be obligated to do so.

Waivers.

1.

In the event that the building inspector issues a notice of violation as to one or more plumbing, electrical, mechanical, structural, or fire safety components, the inspector may approve such components without further correction upon receipt of a report from an appropriately licensed contractor, architect, or engineer affirming that such components are in compliance with this code. Such report must be provided within 15 days after the notice of violation is served.

2.

The inspector may waive any violation of this code when all of the following conditions are met:

a.

The condition for which the waiver is sought is not one of the conditions set forth in (section 2.2.5 (unsafe conditions) of this code; and

b.

The condition for which the waiver is sought is an element of the fundamental and original construction of the dwelling. "Fundamental and original construction" includes foundation dimensions, ceiling height, organization of habitable space, and any other condition governed by the original structure of the dwelling; and

c.

There exists a demonstrable alternate means of meeting the intent of this code.

Appeals. The property owner or other parties in interest may appeal the determination of the inspector to the board of adjustment in accordance with section 1.7.2, provided however that the notice of appeal must be filed within ten days from the rendering of the inspector's determination or service of the order, whichever shall last occur. The board may reverse or affirm, wholly or partly, or may modify the decision or order appealed from, and may make any decision and order that in its opinion ought to be made in the matter, and, to that end, has all the powers of the inspector

Violations, remedies and penalty. The owner of any dwelling or dwelling unit or other. The concurring vote of four members is required to reverse or modify the decision of the inspector. The board may also, when unnecessary hardships would result from carrying out the strict letter of this code, adapt the application of the code to the necessities of the case to the end that the spirit of the code is observed, public safety and welfare secured, and substantial justice done.

Unless specifically defined below, words or phrases used in this ordinance shall be interpreted so as to give them the meaning they have in common usage and to give this ordinance its most reasonable application.

Accessory structure (appurtenant structure) means a structure detached from a principal building and located on the same lot and incidental and subordinate to the principal building or use. Garages, carports and storage sheds are common urban accessory structures. Pole barns, hay sheds and the like qualify as accessory structures on farms, and may or may not be located on the same parcel as the farm dwelling or shop building.

Addition (to an existing building) means an extension or increase in the floor area or height of a building or structure.

Area of special flood hazard. See "Special flood hazard area (SFHA)".

Base flood means the flood having a one-percent chance of being equaled or exceeded in any given year.

Base flood elevation (BFE) means a determination of the water surface elevations of the base flood as published in the flood insurance study. When the BFE has not been provided in a "special flood hazard area", it may be obtained from engineering studies available from a federal, state, or other source using FEMA-approved engineering methodologies. This elevation, when combined with the "freeboard", establishes the "regulatory flood protection elevation".

Basement means any area of the building having its floor subgrade (below ground level) on all sides.

Building. See "Structure".

Chemical storage facility means a building, portion of a building, or exterior area adjacent to a building used for the storage of any chemical or chemically reactive products.

Development means any manmade 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.

Disposal means, as defined in G.S. 130A-290(a)(6), the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste into or on any land or water so that the solid waste or any constituent part of the solid waste may enter the environment or be emitted into the air or discharged into any waters, including groundwaters.

Elevated building means a non-basement building which has its lowest elevated floor raised above ground level by foundation walls, shear walls, posts, piers, pilings, or columns.

Encroachment means the advance or infringement of uses, fill, excavation, buildings, structures or development into a floodplain, which may impede or alter the flow capacity of a floodplain.

Existing manufactured home park or manufactured home subdivision means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) was completed before the initial effective date of the floodplain management regulations adopted by the community.

Flood or flooding means a general and temporary condition of partial or complete inundation of normally dry land areas from:

(1)

The overflow of inland or tidal waters; and/or

(2)

The unusual and rapid accumulation of runoff of surface waters from any source.

Flood insurance means the insurance coverage provided under the National Flood Insurance Program.

Flood insurance rate map (FIRM) means an official map of a community, issued by the Federal Emergency Management Agency, on which both the special flood hazard areas and the risk premium zones applicable to the community are delineated.

Flood insurance study (FIS) means an examination, evaluation, and determination of flood hazards, corresponding water surface elevations (if appropriate), flood hazard risk zones, and other flood data in a community issued by the Federal Emergency Management Agency. The flood insurance study report includes flood insurance rate maps (FIRMs) and flood boundary and floodway maps (FBFMs), if published.

Floodprone area. See "Floodplain."

Flood zone means a geographical area shown on a flood hazard boundary map or flood insurance rate map that reflects the severity or type of flooding in the area.

Floodplain means any land area susceptible to being inundated by water from any source.

Floodplain administrator is the individual appointed to administer and enforce the floodplain management regulations.

Floodplain development permit means any type of permit that is required in conformance with the provisions of this ordinance, prior to the commencement of any development activity.

Floodplain management means the operation of an overall program of corrective and preventive measures for reducing flood damage and preserving and enhancing, where possible, natural resources in the floodplain, including, but not limited to, emergency preparedness plans, flood control works, floodplain management regulations, and open space plans.

Floodplain management regulations means this ordinance and other zoning regulations, subdivision regulations, building codes, health regulations, special purpose regulations, and other applications of police power. This term describes federal, state or local regulations, in any combination thereof, which provide standards for preventing and reducing flood loss and damage.

Floodproofing means any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitation facilities, structures, and their contents.

Floodway means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot.

Freeboard means the height added to the base flood elevation (BFE) to account for the many unknown factors that could contribute to flood heights greater that the height calculated for a selected size flood and floodway conditions, such as wave action, blockage of bridge openings, and the hydrological effect of urbanization of the watershed. The base flood elevation plus the freeboard establishes the "regulatory flood protection elevation."

Functionally dependent facility means a facility which cannot be used for its intended purpose unless it is located in close proximity to water, limited to a docking or port facility necessary for the loading and unloading of cargo or passengers, shipbuilding, or ship repair. The term does not include long-term storage, manufacture, sales, or service facilities.

Hazardous waste management facility means, as defined in G.S. ch. 130A, art. 9, a facility for the collection, storage, processing, treatment, recycling, recovery, or disposal of hazardous waste.

Highest adjacent grade (HAG) means the highest natural elevation of the ground surface, prior to construction, immediately next to the proposed walls of the structure.

Historic structure means any structure that is:

(a)

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

(b)

Certified or preliminarily determined by the Secretary of 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 local inventory of historic landmarks in communities with a "Certified local government (CLG) program;" or

(d)

Certified as contributing to the historical significance of a historic district designated by a community with a "Certified local government (CLG) program."

Certified local government (CLG) programs are approved by the U.S. Department of the Interior in cooperation with the North Carolina Department of Cultural Resources through the state historic preservation officer as having met the requirements of the National Historic Preservation Act of 1966 as amended in 1980.

Lowest adjacent grade (LAG) means the elevation of the ground, sidewalk or patio slab immediately next to the building, or deck support, after completion of the building.

Lowest floor means 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 limited storage in an area other than a basement area is not considered a building's lowest floor, provided that such an enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of this ordinance.

Manufactured home means a structure, transportable in one or more sections, which is built on a permanent chassis and designed to be used with or without a permanent foundation when connected to the required utilities. The term "manufactured home" does not include a "recreational vehicle".

Manufactured home park or subdivision means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.

Market value means the building value, not including the land value and that of any accessory structures or other improvements on the lot. Market value may be established by independent certified appraisal; replacement cost depreciated for age of building and quality of construction (actual cash value); or adjusted tax assessed values.

Mean sea level means, for purposes of this ordinance, the National Geodetic Vertical Datum (NGVD) as corrected in 1929, the North American Vertical Datum (NAVD) as corrected in 1988, or other vertical control datum used as a reference for establishing varying elevations within the floodplain, to which base flood elevations (BFEs) shown on FIRM are referenced. Refer to each FIRM panel to determine datum used.

New construction means structures for which the "start of construction" commenced on or after the effective date of the initial floodplain management regulations and includes any subsequent improvements to such structures.

Non-encroachment area means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot as designated in the flood insurance study report.

Post-FIRM means construction or other development for which the "start of construction" occurred on or after the effective date of the initial flood insurance rate map.

Pre-FIRM means construction or other development for which the "start of construction" occurred before the effective date of the initial flood insurance rate map.

Principally above ground means that at least 51 percent of the actual cash value of the structure is above ground.

Public safety and/or nuisance means anything which is injurious to the safety or health of an entire community or neighborhood, or any considerable number of persons, or unlawful obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin.

Recreational vehicle (RV) means a vehicle, which is:

(a)

Built on a single chassis;

(b)

Four hundred 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 seasonal use.

Reference level is the top of the lowest floor for structures within the special flood hazard area.

Regulatory flood protection elevation means the "base flood elevation" plus the "freeboard." in "special flood hazard areas" where base flood elevations (BFEs) have been determined, this elevation shall be the BFE plus two feet of freeboard. In "special flood hazard areas" where no BFE has been established, this elevation shall be at least two feet above the highest adjacent grade.

Remedy a violation to bring the structure or other development into compliance with state and community floodplain management regulations, or, if this is not possible, to reduce the impacts of its noncompliance. Ways that impacts may be reduced include protecting the structure or other affected development from flood damages, implementing the enforcement provisions of the regulations or otherwise deterring future similar violations, or reducing Federal financial exposure with regard to the structure or other development.

Riverine means relating to, formed by, or resembling a river (including tributaries), stream, brook, etc.

Salvage yard means any non-residential property used for the storage, collection, and/or recycling of any type of equipment, and including but not limited to vehicles, appliances and related machinery.

Solid waste disposal facility means any facility involved in the disposal of solid waste, as defined in G.S. 130A-290(a)(35).

Solid waste disposal site means, as defined in G.S. 130A-290(a)(36), any place at which solid wastes are disposed of by incineration, sanitary landfill, or any other method.

Special flood hazard area (SFHA) means the land in the floodplain subject to a one-percent or greater chance of being flooded in any given year, as determined in article 3, section B. of this ordinance.

Start of construction includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition placement, or other improvement was within 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 of any wall, ceiling, floor, or other structural part of the building, whether or not that alteration affects the external dimensions of the building.

Substantial damage means damage of any origin sustained by a structure during any one-year period whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred. See definition of "substantial improvement." Also means flood-related damage sustained by a structure on two separate occasions during a ten-year period for which the cost of repairs at the time of each such flood event, on the average, equals or exceeds 25 percent of the market value of the structure before the damage occurred.

Substantial improvement means any combination of repairs, reconstruction, rehabilitation, addition, or other improvement of a structure, taking place during any one-year period for which the cost equals or exceeds 50 percent of the market value of the structure before the "start of construction" of the improvement. This term includes structures which have incurred "substantial damage", regardless of the actual repair work performed. The term does not, however, include either:

(a)

Any correction of existing violations of state or community health, sanitary, or safety code specifications which have been identified by the community code enforcement official and which are the minimum necessary to assure safe living conditions; or

(b)

Any alteration of a historic structure, provided that the alteration will not preclude the structure's continued designation as a historic structure.

Violation means 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 Articles 4 and 5 is presumed to be in violation until such time as that documentation is provided.

Water surface elevation (WSE) means the height, in relation to mean sea level, of floods of various magnitudes and frequencies in the floodplains of coastal or riverine areas.

Watercourse means 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.

The North Carolina General Assembly has in G.S. ch. 143, art. 21, pt. 6; G.S. ch. 160D, art. 9, pt. 2, sect. 923; and G.S. ch. 160A, art. 8, delegated to local governmental units the responsibility to adopt regulations designed to promote the public health, safety, and general welfare.

(1)

The flood prone areas within the jurisdiction of the Town of Black Mountain are subject to periodic inundation which results in loss of life, property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures of flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare.

(2)

These flood losses are caused by the cumulative effect of obstructions in floodplains causing increases in flood heights and velocities and by the occupancy in flood prone areas of uses vulnerable to floods or other hazards.

It is the purpose of this ordinance to promote public health, safety, and general welfare and to minimize public and private losses due to flood conditions within floodprone areas by provisions designed to:

(1)

Restrict or prohibit uses that are dangerous to health, safety, and property due to water or erosion hazards or that result in damaging increases in erosion, flood heights or velocities;

(2)

Require that uses vulnerable to floods, including facilities that serve such uses, be protected against flood damage at the time of initial construction;

(3)

Control the alteration of natural floodplains, stream channels, and natural protective barriers, which are involved in the accommodation of floodwaters;

(4)

Control filling, grading, dredging, and all other development that may increase erosion or flood damage; and

(5)

Prevent or regulate the construction of flood barriers that will unnaturally divert floodwaters or which may increase flood hazards to other lands.

The objectives of this ordinance are to:

(1)

Protect human life, safety, and health;

(2)

Minimize expenditure of public money for costly flood control projects;

(3)

Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;

(4)

Minimize prolonged business losses and interruptions;

(5)

Minimize damage to public facilities and utilities (i.e., water and gas mains, electric, telephone, cable and sewer lines, streets, and bridges) that are located in floodprone areas;

(6)

Help maintain a stable tax base by providing for the sound use and development of floodprone areas; and

(7)

Ensure that potential buyers are aware that property is in a special flood hazard area.

This ordinance shall apply to all special flood hazard areas within the jurisdiction of the Town of Black Mountain and within the jurisdiction of any other community whose governing body agrees, by resolution, to such applicability.

The special flood hazard areas are those identified under the cooperating technical state (CTS) agreement between the State of North Carolina and FEMA in its flood insurance study (FIS) and its accompanying flood insurance rate maps (FIRM), for Buncombe County dated January 6, 2010, are adopted by reference and declared to be a part of this ordinance.

The initial flood insurance rate maps are as follows for the jurisdictional areas at the initial date:

Town of Black Mountain, dated April 15, 1980

Buncombe County, dated August 1, 1980

A floodplain development permit shall be required in conformance with the provisions of this ordinance prior to the commencement of any development activities within special flood hazard areas determined in accordance with the provisions of article 3, section B of this ordinance.

No structure or land shall hereafter be located, extended, converted, altered, or developed in any way without full compliance with the terms of this ordinance and other applicable regulations.

This ordinance is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this ordinance and another conflict or overlap, whichever imposes the more stringent restrictions shall prevail.

In the interpretation and application of this ordinance, all provisions shall be:

(a)

Considered as minimum requirements;

(b)

Liberally construed in favor of the governing body; and

(c)

Deemed neither to limit nor repeal any other powers granted under state statutes.

The degree of flood protection required by this ordinance is considered reasonable for regulatory purposes and is based on scientific and engineering consideration. Larger floods can and will occur. Actual flood heights may be increased by manmade or natural causes. This ordinance does not imply that land outside the special flood hazard areas or uses permitted within such areas will be free from flooding or flood damages. This ordinance shall not create liability on the part of the Town of Black Mountain or by any officer or employee thereof for any flood damages that result from reliance on this ordinance or any administrative decision lawfully made hereunder.

Violation of the provisions of this ordinance or failure to comply with any of its requirements, including violation of conditions and safeguards established in connection with grants of variance or special exceptions, shall constitute a misdemeanor. Any person who violates this ordinance or fails to comply with any of its requirements shall, upon conviction thereof, be fined not more than $25,000.00 or imprisoned for not more than 30 days, or both. Each day such violation continues shall be considered a separate offense. Nothing herein contained shall prevent the Town of Black Mountain from taking such other lawful action as is necessary to prevent or remedy any violation.

The building inspector or his/her designee hereinafter referred to as the "floodplain administrator" is hereby appointed to administer and implement the provisions of this ordinance.

(1)

Application requirements. Application for a floodplain development permit shall be made to the floodplain administrator prior to any development activities located within special flood hazard areas. The following items shall be presented to the floodplain administrator to apply for a floodplain development permit:

(a)

A plot plan drawn to scale which shall include, but shall not be limited to, the following specific details of the proposed floodplain development:

(i)

The nature, location, dimensions, and elevations of the area of development/disturbance; existing and proposed structures, utility systems, grading/pavement areas, fill materials, storage areas, drainage facilities, and other development;

(ii)

The boundary of the special flood hazard area as delineated on the FIRM or other flood map as determined in article 3, section B, or a statement that the entire lot is within the special flood hazard area;

(iii)

Flood zone(s) designation of the proposed development area as determined on the FIRM or other flood map as determined in article 3, section B;

(iv)

The boundary of the floodway(s) or non-encroachment area(s) as determined in article 3, section B;

(v)

The base flood elevation (BFE) where provided as set forth in article 3, section B; article 4, section C; or article 5, section D;

(vi)

The old and new location of any watercourse that will be altered or relocated as a result of proposed development; and

(vii)

The certification of the plot plan by a registered land surveyor or professional engineer.

(b)

Proposed elevation, and method thereof, of all development within a special flood hazard area including but not limited to:

(i)

Elevation in relation to mean sea level of the proposed reference level (including basement) of all structures;

(ii)

Elevation in relation to mean sea level to which any non-residential structure in zones AE, A or AO will be floodproofed; and

(iii)

Elevation in relation to mean sea level to which any proposed utility systems will be elevated or floodproofed.

(c)

If floodproofing, a floodproofing certificate (FEMA form 81-65) with supporting data and an operational plan that includes, but is not limited to, installation, exercise, and maintenance of floodproofing measures.

(d)

A foundation plan, drawn to scale, which shall include details of the proposed foundation system to ensure all provisions of this ordinance are met. These details include but are not limited to:

(i)

The proposed method of elevation, if applicable (i.e., fill, solid foundation perimeter wall, solid backfilled foundation, open foundation on columns/posts/piers/piles/shear walls); and

(ii)

Openings to facilitate automatic equalization of hydrostatic flood forces on walls in accordance with article 5, section B(4)(c) when solid foundation perimeter walls are used in zones A, AE, and A1—30.

(e)

Usage details of any enclosed areas below the lowest floor.

(f)

Plans and/or details for the protection of public utilities and facilities such as sewer, gas, electrical, and water systems to be located and constructed to minimize flood damage.

(g)

Certification that all other local, state and federal permits required prior to floodplain development permit issuance have been received.

(h)

Documentation for placement of recreational vehicles and/or temporary structures, when applicable, to ensure that the provisions of article 5, section B, subsections (6) and (7) of this ordinance are met.

(i)

A description of proposed watercourse alteration or relocation, when applicable, including an engineering report on the effects of the proposed project on the flood-carrying capacity of the watercourse and the effects to properties located both upstream and downstream; and a map (if not shown on plot plan) showing the location of the proposed watercourse alteration or relocation.

(2)

Permit requirements. The floodplain development permit shall include, but not be limited to:

(a)

A description of development to be permitted under the floodplain development permit.

(b)

The special flood hazard area determination for the proposed development in accordance with available data specified in article 3, section B.

(c)

The regulatory flood protection elevation required for the reference level and all attendant utilities.

(d)

The regulatory flood protection elevation required for the protection of all public utilities.

(e)

All certification submittal requirements with timelines.

(f)

A statement that no fill material or other development shall encroach into the floodway or non-encroachment area of any watercourse, as applicable.

(g)

The flood openings requirements, if in zones A, AE or A1—30.

(h)

Limitations of below BFE enclosure uses if applicable. (i.e., parking, building access and limited storage only).

(3)

Certification requirements.

(a)

Elevation certificates.

(i)

An elevation certificate (FEMA form 81-31) is required prior to the actual start of any new construction. It shall be the duty of the permit holder to submit to the floodplain administrator a certification of the elevation of the reference level, in relation to mean sea level. The floodplain administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder prior to the beginning of construction. Failure to submit the certification or failure to make required corrections shall be cause to deny a floodplain development permit.

(ii)

An elevation certificate (FEMA form 81-31) is required after the reference level is established. Within seven calendar days of establishment of the reference level elevation, it shall be the duty of the permit holder to submit to the floodplain administrator a certification of the elevation of the reference level, in relation to mean sea level. Any work done within the seven-day calendar period and prior to submission of the certification shall be at the permit holder's risk. The floodplain administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to further work being permitted to proceed. Failure to submit the certification or failure to make required corrections shall be cause to issue a stop-work order for the project.

(iii)

A final as-built elevation certificate (FEMA form 81-31) is required after construction is completed and prior to certificate of compliance/occupancy issuance. It shall be the duty of the permit holder to submit to the floodplain administrator a certification of final as-built construction of the elevation of the reference level and all attendant utilities. The floodplain administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to certificate of compliance/occupancy issuance. In some instances, another certification may be required to certify corrected as-built construction. Failure to submit the certification or failure to make required corrections shall be cause to withhold the issuance of a certificate of compliance/occupancy.

(b)

Floodproofing certificate.

If non-residential floodproofing is used to meet the regulatory flood protection elevation requirements, a floodproofing certificate (FEMA form 81-65), with supporting data, an operational plan, and an inspection and maintenance plan are required prior to the actual start of any new construction. It shall be the duty of the permit holder to submit to the floodplain administrator a certification of the floodproofed design elevation of the reference level and all attendant utilities, in relation to mean sea level. Floodproofing certification shall be prepared by or under the direct supervision of a professional engineer or architect and certified by same. The floodplain administrator shall review the certificate data, the operational plan, and the inspection and maintenance plan. Deficiencies detected by such review shall be corrected by the applicant prior to permit approval. Failure to submit the certification or failure to make required corrections shall be cause to deny a floodplain development permit. Failure to construct in accordance with the certified design shall be cause to withhold the issuance of a certificate of compliance/occupancy.

(c)

If a manufactured home is placed within zones A, AE, or A1—30 and the elevation of the chassis is more than 36 inches in height above grade, an engineered foundation certification is required in accordance with the provisions of article 5, section B(3)(b).

(d)

If a watercourse is to be altered or relocated, a description of the extent of watercourse alteration or relocation; a professional engineer's certified report on the effects of the proposed project on the flood-carrying capacity of the watercourse and the effects to properties located both upstream and downstream; and a map showing the location of the proposed watercourse alteration or relocation shall all be submitted by the permit applicant prior to issuance of a floodplain development permit.

(e)

Certification exemptions. The following structures, if located within zones A, AE or A1—30, are exempt from the elevation/floodproofing certification requirements specified in items (a) and (b) of this subsection:

(i)

Recreational vehicles meeting requirements of article 5, section B(6)(a);

(ii)

Temporary structures meeting requirements of article 5, section B(7); and

(iii)

Accessory structures less than 150 square feet meeting requirements of article 5, section B(8).

The floodplain administrator shall perform, but not be limited to, the following duties:

(1)

Review all floodplain development applications and issue permits for all proposed development within special flood hazard areas to assure that the requirements of this ordinance have been satisfied.

(2)

Review all proposed development within special flood hazard areas to assure that all necessary local, state and federal permits have been received.

(3)

Notify adjacent communities and the North Carolina Department of Crime Control and Public Safety, Division of Emergency Management, State Coordinator for the National Flood Insurance Program prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Emergency Management Agency (FEMA).

(4)

Assure that maintenance is provided within the altered or relocated portion of said watercourse so that the flood-carrying capacity is maintained.

(5)

Prevent encroachments into floodways and non-encroachment areas unless the certification and flood hazard reduction provisions of article 5, section F are met.

(6)

Obtain actual elevation (in relation to mean sea level) of the reference level (including basement) and all attendant utilities of all new and substantially improved structures, in accordance with the provisions of article 4, section B(3).

(7)

Obtain actual elevation (in relation to mean sea level) to which all new and substantially improved structures and utilities have been floodproofed, in accordance with the provisions of article 4, section B(3).

(8)

Obtain actual elevation (in relation to mean sea level) of all public utilities in accordance with the provisions of article 4, section B(3).

(9)

When floodproofing is utilized for a particular structure, obtain certifications from a registered professional engineer or architect in accordance with the provisions of article 4, section B(3) and article 5, section B(2).

(10)

Where interpretation is needed as to the exact location of boundaries of the special flood hazard areas, floodways, or non-encroachment areas (for example, where there appears to be a conflict between a mapped boundary and actual field conditions), 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 this article.

(11)

When base flood elevation (BFE) data has not been provided in accordance with article 3, section B, obtain, review, and reasonably utilize any base flood elevation (BFE) data, along with floodway data or non-encroachment area data available from a federal, state, or other source, including data developed pursuant to article 5, section D(2)(b), in order to administer the provisions of this ordinance.

(12)

When base flood elevation (BFE) data is provided but no floodway or non-encroachment area data has been provided in accordance with article 3, section B, obtain, review, and reasonably utilize any floodway data or non-encroachment area data available from a federal, state, or other source in order to administer the provisions of this ordinance.

(13)

When the lowest grade floor and the lowest adjacent grade of a structure or the lowest ground elevation of a parcel in a special flood hazard areas is above the base flood elevation, advise the property owner of the option to apply for a letter of map amendment (LOMA) from FEMA. Maintain a copy of the letter of map amendment issued by FEMA in the floodplain development permit file.

(14)

Permanently maintain all records that pertain to the administration of this ordinance and make these records available for public inspection, recognizing that such information may be subject to the Privacy Act of 1974, as amended.

(15)

Make on-site inspections of work in progress. As the work pursuant to a floodplain development permit progresses, the floodplain administrator shall make as many inspections of the work as may be necessary to ensure that the work is being done according to the provisions of the local ordinance and the terms of the permit. In exercising this power, the floodplain administrator has a right, upon presentation of proper credentials, to enter on any premises within the jurisdiction of the community at any reasonable hour for the purposes of inspection or other enforcement action.

(16)

Issue stop work orders as required. Whenever a building or part thereof is being constructed, reconstructed, altered, or repaired in violation of this ordinance, the floodplain administrator may order the work to be immediately stopped. The stop-work order shall be in writing and directed to the person doing or in charge of the work. The stop-work order shall state the specific work to be stopped, the specific reason(s) for the stoppage, and the condition(s) under which the work may be resumed. Violation of a stop-work order constitutes a misdemeanor.

(17)

Revoke floodplain development permits as required. The floodplain administrator may revoke and require the return of the floodplain development permit by notifying the permit holder in writing stating the reason(s) for the revocation. Permits shall be revoked for any substantial departure from the approved application, plans, and specifications; for refusal or failure to comply with the requirements of state or local laws; or for false statements or misrepresentations made in securing the permit. Any floodplain development permit mistakenly issued in violation of an applicable state or local law may also be revoked.

(18)

Make periodic inspections throughout the special flood hazard areas within the jurisdiction of the community. The floodplain administrator and each member of his or her inspections department shall have a right, upon presentation of proper credentials, to enter on any premises within the territorial jurisdiction of the department at any reasonable hour for the purposes of inspection or other enforcement action.

(19)

Follow through with corrective procedures of article 4, section D.

(20)

Review, provide input, and make recommendations for variance requests.

(21)

Maintain a current map repository to include, but not limited to, the FIS report, FIRM and other official flood maps and studies adopted in accordance with article 3, section B of this ordinance, including any revisions thereto including letters of map change, issued by FEMA. Notify state and FEMA of mapping needs.

(22)

Coordinate revisions to FIS reports and FIRMs, including letters of map revision based on fill (LOMR-F) and letters of map revision (LOMR).

(1)

Violations to be corrected: When the floodplain administrator finds violations of applicable state and local laws, it shall be his or her duty to notify the owner or occupant of the building of the violation. The owner or occupant shall immediately remedy each of the violations of law cited in such notification.

(2)

Actions in event of failure to take corrective action: If the owner of a building or property shall fail to take prompt corrective action, the floodplain administrator shall give the owner written notice, by certified or registered mail to the owner's last known address or by personal service, stating:

(a)

That the building or property is in violation of the floodplain management regulations;

(b)

That a hearing will be held before the floodplain administrator at a designated place and time, not later than ten days after the date of the notice, at which time the owner shall be entitled to be heard in person or by counsel and to present arguments and evidence pertaining to the matter; and

(c)

That following the hearing, the floodplain administrator may issue an order to alter, vacate, or demolish the building; or to remove fill as applicable.

(3)

Order to take corrective action: If, upon a hearing held pursuant to the notice prescribed above, the floodplain administrator shall find that the building or development is in violation of the flood damage prevention ordinance, they shall issue an order in writing to the owner, requiring the owner to remedy the violation within a specified time period, not less than 60 calendar days, nor more than 180 calendar days. Where the floodplain administrator finds that there is imminent danger to life or other property, they may order that corrective action be taken in such lesser period as may be feasible.

(4)

Appeal: Any owner who has received an order to take corrective action may appeal the order to the local elected governing body by giving notice of appeal in writing to the floodplain administrator and the clerk within ten days following issuance of the final order. In the absence of an appeal, the order of the floodplain administrator shall be final. The local governing body shall hear an appeal within a reasonable time and may affirm, modify and affirm, or revoke the order.

(5)

Failure to comply with order: If the owner of a building or property fails to comply with an order to take corrective action for which no appeal has been made or fails to comply with an order of the governing body following an appeal, the owner shall be guilty of a misdemeanor and shall be punished at the discretion of the court.

(1)

The board of adjustment shall hear and decide requests for variances from the requirements of this ordinance pursuant to the process set forth in section 1.7 of this code.

(2)

Variances may be issued for:

(a)

The repair or rehabilitation of historic structures upon the determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and that the variance is the minimum necessary to preserve the historic character and design of the structure;

(b)

Functionally dependent facilities if determined to meet the definition as stated in article 2 of this ordinance, provided provisions of article 4, section E(9)(b), (c), and (e) have been satisfied, and such facilities are protected by methods that minimize flood damages during the base flood and create no additional threats to public safety; or

(c)

Any other type of development, provided it meets the requirements of this section.

(3)

In passing upon variances, the board of adjustment shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this ordinance, 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 as defined under article 2 of this ordinance as a functionally dependent facility, where applicable;

(f)

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

(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 for that area;

(i)

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

(j)

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

(k)

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.

(4)

A written report addressing each of the above factors shall be submitted with the application for a variance.

(5)

Upon consideration of the factors listed above and the purposes of this ordinance, the board of adjustment may attach such conditions to the granting of variances as it deems necessary to further the purposes and objectives of this ordinance.

(6)

Any applicant to whom a variance is granted shall be given written notice specifying the difference between the base flood elevation (BFE) and the elevation to which the structure is to be built and that such construction below the base flood elevation increases risks to life and property, and that the issuance of a variance to construct a structure below the base flood elevation will result in increased premium rates for flood insurance up to $25.00 per $100.00 of insurance coverage. Such notification shall be maintained with a record of all variance actions, including justification for their issuance.

(7)

The floodplain administrator shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency and the State of North Carolina upon request.

(8)

Conditions for variances:

(a)

Variances shall not be issued when the variance will make the structure in violation of other federal, state, or local laws, regulations, or ordinances.

(b)

Variances shall not be issued within any designated floodway or non-encroachment area if the variance would result in any increase in flood levels during the base flood discharge.

(c)

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

(d)

Variances shall only be issued prior to development permit approval.

(e)

Variances shall only be issued upon:

(i)

A showing of good and sufficient cause;

(ii)

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

(iii)

A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.

(9)

A variance may be issued for solid waste disposal facilities or sites, hazardous waste management facilities, salvage yards, and chemical storage facilities that are located in special flood hazard areas provided that all of the following conditions are met.

(a)

The use serves a critical need in the community.

(b)

No feasible location exists for the use outside the special flood hazard area.

(c)

The reference level of any structure is elevated or floodproofed to at least the regulatory flood protection elevation.

(d)

The use complies with all other applicable federal, state and local laws.

(e)

The Town of Black Mountain has notified the Secretary of the North Carolina Department of Crime Control and Public Safety of its intention to grant a variance at least 30 calendar days prior to granting the variance.

In all special flood hazard areas the following provisions are required:

(1)

All new construction and substantial improvements shall be designed (or modified) and adequately anchored to prevent flotation, collapse, and lateral movement of the structure.

(2)

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

(3)

All new construction and substantial improvements shall be constructed by methods and practices that minimize flood damages.

(4)

Electrical, heating, ventilation, plumbing, air conditioning equipment, and other service facilities shall be designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding to the regulatory flood protection elevation. These include, but are not limited to, HVAC equipment, water softener units, bath/kitchen fixtures, ductwork, electric/gas meter panels/boxes, utility/cable boxes, hot water heaters, and electric outlets/switches.

(5)

All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system.

(6)

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

(7)

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

(8)

Any alteration, repair, reconstruction, or improvements to a structure, which is in compliance with the provisions of this ordinance, shall meet the requirements of "new construction" as contained in this ordinance.

(9)

Nothing in this ordinance shall prevent the repair, reconstruction, or replacement of a building or structure existing on the effective date of this ordinance and located totally or partially within the floodway, non-encroachment area, or stream setback, provided there is no additional encroachment below the regulatory flood protection elevation in the floodway, non-encroachment area, or stream setback, and provided that such repair, reconstruction, or replacement meets all of the other requirements of this ordinance.

(10)

New solid waste disposal facilities and sites, hazardous waste management facilities, salvage yards, and chemical storage facilities shall not be permitted, except by variance as specified in article 4, section E(10). A structure or tank for chemical or fuel storage incidental to an allowed use or to the operation of a water treatment plant or wastewater treatment facility may be located in a special flood hazard area only if the structure or tank is either elevated or floodproofed to at least the regulatory flood protection elevation and certified in accordance with the provisions of article 4, section B(3).

(11)

All subdivision proposals and other development proposals shall be consistent with the need to minimize flood damage.

(12)

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

(13)

All subdivision proposals and other development proposals shall have adequate drainage provided to reduce exposure to flood hazards.

(14)

All subdivision proposals and other development proposals shall have received all necessary permits from those governmental agencies for 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. 1334.

(15)

When a structure is partially located in a special flood hazard area, the entire structure shall meet the requirements for new construction and substantial improvements.

(16)

When a structure is located in multiple flood hazard zones or in a flood hazard risk zone with multiple base flood elevations, the provisions for the more restrictive flood hazard risk zone and the highest base flood elevation shall apply.

In all special flood hazard areas where base flood elevation (BFE) data has been provided, as set forth in article 3, section B, or article 5, section D, the following provisions, in addition to the provisions of article 5, section A, are required:

(1)

Residential construction. New construction and substantial improvement of any residential structure (including manufactured homes) shall have the reference level, including basement, elevated no lower than the regulatory flood protection elevation, as defined in article 2 of this ordinance.

(2)

Non-residential construction. New construction and substantial improvement of any commercial, industrial, or other non-residential structure shall have the reference level, including basement, elevated no lower than the regulatory flood protection elevation, as defined in article 2 of this ordinance. Structures located in A, AE, AO, and A1—30 zones may be floodproofed to the regulatory flood protection elevation in lieu of elevation provided that all areas of the structure, together with attendant utility and sanitary facilities, below the regulatory flood protection elevation are watertight with walls substantially impermeable to the passage of water, using 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 floodproofing standards of this subsection are satisfied. Such certification shall be provided to the floodplain administrator as set forth in article 4, section B(3), along with the operational plan and inspection and maintenance plan.

(3)

Manufactured homes.

(a)

New and replacement manufactured homes shall be elevated so that the reference level of the manufactured home is no lower than the regulatory flood protection elevation, as defined in article 2 of this ordinance.

(b)

Manufactured homes shall be securely anchored to an adequately anchored foundation to resist flotation, collapse, and lateral movement, either by certified engineered foundation system, or in accordance with the most current edition of the State of North Carolina Regulations for Manufactured Homes adopted by the commissioner of insurance pursuant to G.S. 143-143.15. Additionally, when the elevation would be met by an elevation of the chassis 36 inches or less above the grade at the site, the chassis shall be supported by reinforced piers or engineered foundation. When the elevation of the chassis is above 36 inches in height, an engineering certification is required.

(c)

All enclosures or skirting below the lowest floor shall meet the requirements of article 5, section B(4).

(d)

An evacuation plan must be developed for evacuation of all residents of all new, substantially improved or substantially damaged manufactured home parks or subdivisions located within floodprone areas. This plan shall be filed with and approved by the floodplain administrator and the local emergency management coordinator.

(4)

Elevated buildings. Fully enclosed area, of new construction and substantially improved structures, which is below the lowest floor:

(a)

Shall 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). The interior portion of such enclosed area shall not be finished or partitioned into separate rooms, except to enclose storage areas;

(b)

Shall be constructed entirely of flood resistant materials at least to the regulatory flood protection elevation; and

(c)

Shall include, in zones A, AE, and A1—30, flood openings 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 or exceed the following minimum design criteria:

(i)

A minimum of two flood openings on different sides of each enclosed area subject to flooding;

(ii)

The total net area of all flood openings must be at least one square inch for each square foot of enclosed area subject to flooding;

(iii)

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

(iv)

The bottom of all required flood openings shall be no higher than one foot above the adjacent grade;

(v)

Flood openings may be equipped with screens, louvers, or other coverings or devices, provided they permit the automatic flow of floodwaters in both directions; and

(vi)

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

(5)

Additions/improvements.

(a)

Additions and/or improvements to pre-FIRM structures when the addition and/or improvements in combination with any interior modifications to the existing structure are:

(i)

Not a substantial improvement, the addition and/or improvements must be designed to minimize flood damages and must not be any more nonconforming than the existing structure.

(ii)

A substantial improvement, both the existing structure and the addition and/or improvements must comply with the standards for new construction.

(b)

Additions to post-FIRM structures with no modifications to the existing structure other than a standard door in the common wall shall require only the addition to comply with the standards for new construction.

(c)

Additions and/or improvements to post-FIRM structures when the addition and/or improvements in combination with any interior modifications to the existing structure are:

(i)

Not a substantial improvement, the addition and/or improvements only must comply with the standards for new construction.

(ii)

A substantial improvement, both the existing structure and the addition and/or improvements must comply with the standards for new construction.

(6)

Recreational vehicles. Recreational vehicles shall either:

(a)

Be on site for fewer than 180 consecutive days and 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 has no permanently attached additions); or

(b)

Meet all the requirements for new construction.

(7)

Temporary non-residential structures. Prior to the issuance of a floodplain development permit for a temporary structure, the applicant must submit to the floodplain administrator a plan for the removal of such structure(s) in the event of a hurricane, flash flood or other type of flood warning notification. The following information shall be submitted in writing to the floodplain administrator for review and written approval:

(a)

A specified time period for which the temporary use will be permitted. Time specified may not exceed three months, renewable up to one year;

(b)

The name, address, and phone number of the individual responsible for the removal of the temporary structure;

(c)

The time frame prior to the event at which a structure will be removed (i.e., minimum of 72 hours before landfall of a hurricane or immediately upon flood warning notification);

(d)

A copy of the contract or other suitable instrument with the entity responsible for physical removal of the structure; and

(e)

Designation, accompanied by documentation, of a location outside the special flood hazard area, to which the temporary structure will be moved.

(8)

Accessory structures. When accessory structures (sheds, detached garages, etc.) are to be placed within a special flood hazard area, the following criteria shall be met:

(a)

Accessory structures shall not be used for human habitation (including working, sleeping, living, cooking or restroom areas);

(b)

Accessory structures shall not be temperature-controlled;

(c)

Accessory structures shall be designed to have low flood damage potential;

(d)

Accessory structures shall be constructed and placed on the building site so as to offer the minimum resistance to the flow of floodwaters;

(e)

Accessory structures shall be firmly anchored in accordance with the provisions of article 5, section A(1);

(f)

All service facilities such as electrical shall be installed in accordance with the provisions of article 5, section A(4); and

(g)

Flood openings to facilitate automatic equalization of hydrostatic flood forces shall be provided below regulatory flood protection elevation in conformance with the provisions of article 5, section B(4)(c).

An accessory structure with a footprint less than 150 square feet that satisfies the criteria outlined above does not require an elevation or floodproofing certificate. Elevation or floodproofing certifications are required for all other accessory structures in accordance with article 4, section B(3).

Within the special flood hazard areas designated as approximate zone A and established in article 3, section B, where no base flood elevation (BFE) data has been provided by FEMA, the following provisions, in addition to the provisions of article 5, section A, shall apply:

(1)

No encroachments, including fill, new construction, substantial improvements or new development shall be permitted within a distance of 20 feet each side from top of bank or five times the width of the stream, whichever is greater, unless certification with supporting technical data by a registered professional engineer is provided demonstrating that such encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.

(2)

The BFE used in determining the regulatory flood protection elevation shall be determined based on the following criteria:

(a)

When base flood elevation (BFE) data is available from other sources, all new construction and substantial improvements within such areas shall also comply with all applicable provisions of this ordinance and shall be elevated or floodproofed in accordance with standards in article 5, sections A and B.

(b)

When floodway or non-encroachment area data is available from a federal, state, or other source, all new construction and substantial improvements within floodway and non-encroachment areas shall also comply with the requirements of article 5, sections B and F.

(c)

All subdivision, manufactured home park and other development proposals shall provide base flood elevation (BFE) data if development is greater than five acres or has more than 50 lots/manufactured home sites. Such base flood elevation (BFE) data shall be adopted by reference in accordance with article 3, section B and utilized in implementing this ordinance.

(d)

When base flood elevation (BFE) data is not available from a federal, state, or other source as outlined above, the reference level shall be elevated or floodproofed (nonresidential) to or above the regulatory flood protection elevation, as defined in article 2. All other applicable provisions of article 5, section B shall also apply.

Along rivers and streams where base flood elevation (BFE) data is provided by FEMA or is available from another source but neither floodway nor non-encroachment areas are identified for a special flood hazard area on the FIRM or in the FIS report, the following requirements shall apply to all development within such areas:

(1)

Standards of article 5, sections A and B; and

(2)

Until a regulatory floodway or non-encroachment area is designated, no encroachments, including fill, new construction, substantial improvements, or other development, shall be permitted unless certification with supporting technical data by a registered professional engineer is provided demonstrating 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 the community.

Areas designated as floodways or non-encroachment areas are located within the special flood hazard areas established in article 3, section B. The floodways and non-encroachment areas are extremely hazardous areas due to the velocity of floodwaters that have erosion potential and carry debris and potential projectiles. The following provisions, in addition to standards outlined in article 5, sections A and B, shall apply to all development within such areas:

(1)

No encroachments, including fill, new construction, substantial improvements and other developments shall be permitted unless:

(a)

It is demonstrated that the proposed encroachment would not result in any increase in the flood levels during the occurrence of the base flood, based on hydrologic and hydraulic analyses performed in accordance with standard engineering practice and presented to the floodplain administrator prior to issuance of floodplain development permit; or

(b)

A conditional letter of map revision (CLOMR) has been approved by FEMA. A letter of map revision (LOMR) must also be obtained upon completion of the proposed encroachment.

(2)

If article 5, section F(1) is satisfied, all development shall comply with all applicable flood hazard reduction provisions of this ordinance.

(3)

No manufactured homes shall be permitted, except replacement manufactured homes in an existing manufactured home park or subdivision, provided the following provisions are met:

(a)

The anchoring and the elevation standards of article 5, section B(3); and such engineering to be certified.

(b)

The no encroachment standard of article 5, section F(1).

(4)

No vegetative debris such as wood piles, downed trees or branches which could cause blockage of culverts or bridges or which could otherwise create a hazard during a flood event shall be permitted to accumulate within the floodway areas.

(5)

No discarded or store items such as abandoned vehicles, white goods, tires, or miscellaneous debris shall be allowed to accumulate within the floodway areas.

This ordinance in part comes forward by re-enactment of some of the provisions of the flood damage prevention ordinance enacted April 15, 1980 as amended, and it is not the intention to repeal but rather to re-enact and continue to enforce without interruption of such existing provisions, so that all rights and liabilities that have accrued there under are reserved and may be enforced. The enactment of this ordinance shall not affect any action, suit or proceeding instituted or pending. All provisions of the flood damage prevention ordinance of the Town of Black Mountain enacted on April 15, 1980 as amended, which are not reenacted herein are repealed.

The date of the initial flood damage prevention ordinance for Buncombe County is August 1, 1980.

Nothing herein contained shall require any change in the plans, construction, size, or designated use of any development or any part thereof for which a floodplain development permit has been granted by the floodplain administrator or his or her authorized agents before the time of passage of this ordinance; provided, however, that when construction is not begun under such outstanding permit within a period of six months subsequent to the date of issuance of the outstanding permit, construction or use shall be in conformity with the provisions of this ordinance.

If any section, clause, sentence, or phrase of the ordinance is held to be invalid of unconstitutional by any court or competent jurisdiction, then said holding shall in no way effect the validity of the remaining portions of this ordinance.