The Legislature of the State of North Carolina has in Part 6, Article 21 of Chapter 143; Article 6 of Chapter 153A; Article 8 of Chapter 160A; and Article 7, 9, and 11 of Chapter 160D of the North Carolina General Statutes, delegated to local governmental nnits the authority to adopt regulations designed to promote the public health, safety, and general welfare. Therefore, the City Council of the City of Marion, North Carolina, does ordain as follows.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   A.   The flood prone areas within the jurisdiction of the City of Marion 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.

   B.   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.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   A.   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;

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

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

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

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

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

The objectives of the administration and enforcement of the flood damage prevention regulations are to:

   A.   Protect human life, safety, and health;

   B.   Minimize expenditure of public money for costly flood control projects;

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

   D.   Minimize prolonged business losses and interruptions; 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 flood prone areas;

   E.   Help maintain a stable tax base by providing for the sound use and development of flood prone areas;

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

   G.   Minimize damage to private and public property due to flooding; and

   H.   Make flood insurance available to the community through the National Flood Insurance Program.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   This chapter in part comes forward by re-enactment of some of the provisions of the flood damage prevention ordinance enacted October 20, 1987 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 thereunder are reserved and may be enforced. The enactment of this chapter shall not affect any action, suit or proceeding instituted or pending. All provisions of the flood damage prevention ordinance of the City of Marion enacted on October 20, 1987, as amended, which are not reenacted herein are repealed. The date of the initial flood damage prevention ordinance for each municipal jurisdiction within McDowell County is May 2, 1988.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   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 chapter; provided, however, that when construction is not begun under such outstanding permit within a period of six (6) months subsequent to the date of issuance of the outstanding permit, construction or use shall be in conformity with the provisions of this chapter.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   The flood damage prevention regulations shall apply to all special flood hazard areas within the jurisdiction including extra-territorial jurisdictions (ETJs), as allowed by law, of the City of Marion and within the jurisdiction of any other community whose governing body agrees, by resolution, to such applicability.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   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). This is dated October 2, 2008 for McDowell County along with its accompanying flood insurance rate map (FIRM), and associated digital flood insurance rate map (DFIRM) panels. This includes any digital data developed as part of the FIS, which are adopted by reference and declared to be a part of this chapter, and all revisions thereafter.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   A floodplain development permit shall be required in conformance with the provisions of this chapter prior to the commencement of any development activities within special flood hazard areas determined in accordance with the provisions of Sec. 8-1.8 of this chapter.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

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

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

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

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   In the interpretation and application of this article, 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.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   The degree of flood protection required by this chapter 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 chapter 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 chapter shall not create liability on the part of the City of Marion or by any officer or employee thereof for any flood damages that result from reliance on this chapter or any administrative decision lawfully made hereunder.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   Violation of the provisions of this chapter or failure to comply with any of its requirements, including violation of conditions and safeguards established in connection with grants of variance or special use, shall constitute a Class 1 misdemeanor pursuant to G.S. 143-215.58. Any person who violates this article or fails to comply with any of its requirements shall, upon conviction thereof, be fined not more than fifty dollars ($50.00) or imprisoned for not more than thirty (30) days, or both. Each day such violation continues shall be considered a separate offense. Nothing herein contained shall prevent the City of Marion from taking such other lawful action as is necessary to prevent or remedy any violation.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   A.   Floodplain administration. The Planning Director, hereinafter referred to as the "Floodplain Administrator", is hereby appointed to administer and implement the provisions of this chapter. In instances where the Floodplain Administrator receives assistance from others to complete tasks to administer and implement this chapter, the Floodplain Administrator shall be responsible for the coordination and community's overall compliance with the National Flood Insurance Program and the provisions of this chapter.

   B.   Floodplain development permit.

      1.   A floodplain development permit must be obtained in accordance with the provisions of the UDO prior to the commencement of any development activities within special flood hazard areas.

      2.   Application requirements. 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 or future conditions flood hazard area as delineated on the FIRM or other flood map as determined in Section 8-1.8, 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 shown on the FIRM or other flood map as determined in Sec. 8-1.8; Sec. 8-1.5; or Sec. 8-1.19.C.

            iv.   The boundary of the floodway(s) or non-encroachment area(s) as determined in Section 8-1.8; the base flood elevation (BFE) where provided as set forth in Sec. 8-1.8;

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

            vi.   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 nonresidential structure in zone AE or A 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 086-0-34) 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 chapter 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 Section 8-1.19A.4 when solid foundation perimeter walls are used in Zones A or AE.

         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.   Copies of all other local, state and federal permits required prior to floodplain development permit issuance (wetlands, endangered species, erosion and sedimentation control, riparian buffers, mining, etc.).

         h.   Documentation for placement of recreational vehicles and/or temporary structures, when applicable, to ensure that the provisions of Sec. 8-1.19, subsections B.6 and B.7 of this chapter 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 showing the location of the proposed watercourse alteration or relocation.

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

      1.   A complete description of all the development to be permitted under the floodplain development permit (e.g. house, garage, pool, septic, bulkhead, cabana, pier, bridge, mining, dredging, filling, grading, paving, excavation, drilling operations, or storage of materials, etc.).

      2.   The special flood hazard area determination for the proposed development in accordance with available data specified in Sec. 8-1.8.

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

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

      5.   All certification submittal requirements with timelines.

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

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

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

      9.   A statement, that all materials below BFE must be flood resistant materials.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   A.   Elevation certificate.

      1.   An elevation certificate (FEMA Form 086-0-33) 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.

      2.   An elevation certificate (FEMA Form 086-0-33) is required after the reference level is established. Within seven (7) 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 (7)-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.

      3.   A final as-built elevation certificate (FEMA Form 086-0-33) 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 maybe 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.

      1.   If non-residential floodproofing is used to meet the regulatory flood protection elevation requirements, a floodproofing certificate (FEMA Form 086-0-34), 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.

      2.   A final finished construction floodproofing certificate (FEMA Form 086-0-34), with supporting data, an operational plan, and an inspection and maintenance plan are required prior to the issuance of a certificate of compliance/occupancy. 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 NAVD 1988. Floodproofing certificate 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 certificate of occupancy. 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 deny a certificate of compliance/occupancy.

      3.   Manufactured dwelling. If a manufactured home is placed within zone A, AE, or A1-30 and the elevation of the chassis is more than thirty-six (36) inches in height above-grade, an engineered foundation certification is required in accordance with the provisions of Sec.8-1.19.B.3.b.

      4.   Watercourse alteration. 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.

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

      1.   Recreational vehicles meeting requirements of Sec. 8-1.19.B.6.

      2.   Temporary structures meeting requirements Sec. 8-1.19.B.7; and

      3.   Accessory structures less than one hundred fifty (150) square feet meeting requirements of Sec. 8-1.19.B.8.

   D.   Determinations for existing buildings and structures. For applications for building permits to improve buildings and structures, including alterations, movement, enlargement, replacement, repair, change of occupancy, additions, rehabilitations, renovations, substantial improvements, repairs of substantial damage, and any other improvement of or work on such buildings and structures, the Floodplain Administrator, in coordination with the Building Official, shall:

      1.   Estimate the market value, or require the applicant to obtain an appraisal of the market value prepared by a qualified independent appraiser, of the building or structure before the start of construction of the proposed work; in the case of repair, the market value of the building or structure shall be the market value before the damage occurred and before any repairs are made;

      2.   Compare the cost to perform the improvement, the cost to repair a damaged building to its pre-damaged condition, or the combined costs of improvements and repairs, if applicable, to the market value of the building or structure;

      3.   Determine and document whether the proposed work constitutes substantial improvement or repair of substantial damage; and

      4.   Notify the applicant if it is determined that the work constitutes substantial improvement or repair of substantial damage and that compliance with the flood resistant construction requirements of the NC Building Code and this chapter is required.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   A.   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.

   B.   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:

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

      2.   That a hearing will be held before the Floodplain Administrator at a designated place and time, not later than ten (10) 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 Floodplain Administrator may issue an order to alter, vacate, or demolish the building; or to remove fill as applicable.

   C.   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 article, he or she shall issue an order in writing to the owner, requiring the owner to remedy the violation within a specified time period, not less than sixty (60) calendar days, nor more than one hundred eighty (180) calendar days. Where the Floodplain Administrator finds that there is imminent danger to life or other property, he or she may order that corrective action be taken in such lesser period as may be feasible.

   D.   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 (10) 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.

   E.   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 Class 1 misdemeanor pursuant to G.S. 143-215.58 and shall be punished at the discretion of the court.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   A.   The Board of Adjustment as established by the City of Marion, hereinafter referred to as the "Appeal Board", shall hear and decide requests for variances from the requirements of this chapter.

   B.   Any person aggrieved by the decision of the Appeal Board may appeal such decision to the court, as provided in Chapter 7A of the North Carolina General Statutes.

   C.   Variances may be issued for:

      1.   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;

      2.   Functionally dependent facilities if determined to meet the definition as stated in Sec. 8-1.20 of this chapter, provided provisions of Sec. 8-1.18.C.1, 2, 3, and 5 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

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

   D.   In passing upon variances, the appeal board shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this chapter, and:

      1.   The danger that materials may be swept onto other lands to the injury of others;

      2.   The danger to life and property due to flooding or erosion damage;

      3.   The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

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

      5.   The necessity to the facility of a waterfront location as defined under Sec. 8-20 of this chapter as a functionally dependent facility, where applicable;

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

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

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

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

      10.   The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and

      11.   The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges.

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

   F.   Upon consideration of the factors listed above and the purposes of this chapter, the Appeal Board may attach such conditions to the granting of variances as it deems necessary to further the purposes and objectives of this chapter.

   G.   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 BFE increases risks to life and property, and that the issuance of a variance to construct a structure below the BFE will result in increased premium rates for flood insurance up to twenty-five dollars ($25.00) per one hundred dollars ($100.00) of insurance coverage. Such notification shall be maintained with a record of all variance actions, including justification for their issuance.

   H.   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.

   I.   Conditions for variances.

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

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

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

      4.   Variances shall only be issued prior to development permit approval.

      5.   Variances shall only be issued upon:

         a.   A showing of good and sufficient cause;

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

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

   J.   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:

      1.   The use serves a critical need in the community.

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

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

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

      5.   The City of Marion has notified the Secretary of the North Carolina Department of Crime Control and Public Safety of its intention to grant a variance at least thirty (30) calendar days prior to granting the variance.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   A.   General standards. 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 in accordance with the FEMA Technical Bulletin 2, Flood Damage-Resistant Materials Requirements.

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

      4.   All new electrical, heating, ventilation, air-conditioning, plumbing, duct systems, and other building utility systems, equipment, and service facilities must be located at or above the regulatory flood protection elevation (RFPE) and/or specially designed to prevent water from entering or accumulating within the components and installed to resist hydrostatic and hydrodynamic loads and stresses, including the effects of buoyancy, during the occurrence of flooding to the design flood elevation. Utility systems, equipment, and service facilities include, but are not limited to, HVAC equipment, water softener units, bath/kitchen plumbing fixtures, ductwork, electric/gas meter panels/boxes, utility/cable boxes, water heaters, fuel tanks, and electric outlets/switches.

         a.   Replacement part of a substantial improvement must also meet the above provisions.

         b.   Replacements that are for maintenance and not part of a substantial improvement, may be installed at the original location, provided the addition and/or improvements comply with the standards for new construction consistent with the code and requirements for the original structure.

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

      9.   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 this section. 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 Sec. 8-1.16.

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

      11.   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.

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

      13.   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.

      14.   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.

      15.   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 (BFE) shall apply.

      16.   Buildings and structures that are located in more than one flood hazard area shall comply with the provisions associated with the most restrictive flood hazard area.

   B.   Specific standards. In all special flood hazard areas where base flood elevation (BFE) data has been provided, as set forth in Sec. 8-1.8, or Sec. 8-1.19.C, the following provisions, in addition to the provisions of Sec. 8-1.19.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 Sec. 8-1.20 of this chapter.

      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 Sec. 8-1.20 of this chapter. Structures located in A, AE, 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 Sec. 8-1.16, along with the operational plan and the 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 Sec. 8-1.20 of this article.

         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 thirty-six (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 thirty-six (36) inches in height, an engineering certification is required.

         c.   All enclosures or skirting below the lowest floor shall meet the requirements of Sec. 8-1.19.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 flood prone 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 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 (2) 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 (1) square inch for each square foot of enclosed area subject to flooding;

            iii.   If a building has more than one (1) 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 (1) 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.

         d.   Any combination of repair, reconstruction, rehabilitation, addition or improvement of a building or structure taking place during a one (1) year period, the cumulative cost of which equals or exceeds fifty (50) percent of the market value of the structure before the improvement or repair is started, must comply with the standards for new construction. For each building or structure, the one (1) year period begins on the date of the first improvement or repair of that building or structure subsequent to the effective date of this chapter. Substantial damage also means flood-related damage sustained by a structure on two (2) separate occasions during a ten (10)-year period, for which the cost of repairs at the time of each such flood event, on the average, equals or exceeds twenty-five (25) percent of the market value of the structure before the damage occurred. If the structure has sustained substantial damage, any repairs are considered substantial improvement regardless of the actual repair work performed. The requirement does not, however, include either:

            i.   Any project for improvement of a building required to correct existing health, sanitary, or safety code violations identified by the Building Official and that are the minimum necessary to assume safe living conditions.

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

      6.   Recreational vehicles.

         a.   Temporary placement.

            i.   Be on site for fewer than one hundred eighty (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

            ii.   Meet all the requirements for new construction.

         b.   No more than two (2) forty (40)-pound LP tanks shall be permitted per recreational vehicle located within a SHFA designated as "floodway"; campgrounds and other approved sites that provide fuel service to recreational vehicles shall properly install and anchor all LP tanks in accordance with Sec. 8-1.19.B.9 Tanks, and with the National Fire Protection Association Chapter 58 (NFPA 58) Liquefied Petroleum Gas Code, Ed. 2011 as may be amended.

      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 (3) months, renewable up to one (1) 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 seventy-two (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 Sec. 8-1.19.A.1;

         f.   All service facilities such as electrical shall be installed in accordance with the provisions of Sec. 8-1.19.A.4;

         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 subsection 8-1.19.B.4. c; and

         h.   An accessory structure with a footprint less than one hundred fifty (150) square feet that satisfies the criteria outlined above does not require an elevation or floodproofing certificate. Elevation or flood-proofing certifications are required for all other accessory structures in accordance with subsection 8-1.19.B.4.

      9.   Tanks. When gas and liquid storage tanks are to be placed within a special flood hazard area, the following criteria shall be met:

         a.   Underground tanks. Underground tanks in flood hazard areas shall be anchored to prevent flotation, collapse or lateral movement resulting from hydrodynamic and hydrostatic loads during conditions of the design flood, including the effects of buoyancy, assuming the tank is empty;

         b.   Above-ground tanks, elevated. Above-ground tanks in flood hazard areas shall be elevated to or above the regulatory flood protection elevation on a supporting structure that is designed to prevent flotation, collapse or lateral movement during conditions of the design flood. Tank-supporting structures shall meet the foundation requirements of the applicable flood hazard area;

         c.   Above-ground tanks, not elevated. Above-ground tanks that do not meet the elevation requirements of Section 8-1.19.B.2 of this chapter shall be permitted in flood hazard areas provided the tanks are designed, constructed, installed, and anchored to resist all flood-related and other loads, including the effects of buoyancy, during conditions of the design flood and without release of contents in the floodwaters or infiltration by floodwaters into the tanks. Tanks shall be designed, constructed, installed, and anchored to resist the potential buoyant and other flood forces acting on an empty tank during design flood conditions.

         d.   Tank inlets and vents. Tank inlets, fill openings, outlets, and vents shall be:

            i.   At or above the regulatory flood protection elevation or fitted with covers designed to prevent the inflow of floodwater or outflow of the contents of the tanks during conditions of the design flood; and

            ii.   Anchored to prevent lateral movement resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy, during conditions of the design flood.

      10.   Other development.

         a.   Fences in regulated floodways and NEAs that have the potential to block the passage of floodwaters, such as stockade fences and wire mesh fences, shall meet the limitations of this chapter.

         b.   Retaining walls, sidewalks and driveways in regulated floodways and NEAs. Retaining walls, sidewalks, and driveways that involve the placement of fill in regulated floodways shall meet the limitations of this chapter.

         c.   Roads and watercourse crossings in regulated floodways and NEAs. Roads and watercourse crossings, including roads, bridges, culverts, low-water crossings and similar means for vehicles or pedestrians to travel from one (1) side of a watercourse to the other side, that encroach into regulated floodways shall meet the limitations of this chapter.

         d.   Commercial storage facilities are not considered "limited storage" as noted in this chapter, and shall be protected to the regulatory flood protection elevation as required for commercial structures.

   C.   Standards for floodplains without established base flood elevations.

      1.   Within the special flood hazard areas designated as approximate zone A and established in Sec. 8-1.7, where no base flood elevation (BFE) data have been provided by FEMA, the following provisions, in addition to the provisions of Sec. 8-1.19.A shall apply:

      2.   No encroachments, including fill, new construction, substantial improvements or new development shall be permitted within a distance of twenty (20) feet each side from the top of the bank or five (5) 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.

      3.   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 are available from other sources, all new construction and substantial improvements within such areas shall also comply with all applicable provisions of this chapter and shall be elevated or floodproofed in accordance with the general and specific standards in Sec. 8-1.19.

         b.   When floodway or non-encroachment data are 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 Sec. 8-1.19.B and E.

         c.   All subdivision, manufactured home park and other development proposals shall provide base flood elevation (BFE) data if development is greater than five (5) acres or has more than fifty (50) lots/manufactured home sites. Such BFE data shall be adopted by reference in accordance with the provisions of this article and utilized in implementing this chapter.

         d.   When base flood elevation (BFE) data are 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 Sec. 8-1.20. All other applicable provisions of Sec. 8-1.19.B. shall also apply.

   D.   Standards for riverine floodplains with BFE but without established floodways or non-encroachment areas. 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 Sec. 8-1.19 subsections B and C; 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 (1) foot at any point within the community.

   E.   Standards floodways and non-encroachment areas. Areas designated as floodways or non-encroachment areas are located within the special flood hazard areas established in Sec. 8-1.8. 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 the standards outlined in Sec. 8-1.19 subsections B and C, 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 subsection E.1 is satisfied, all development shall comply with all applicable flood hazard reduction provisions of this chapter.

      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:

         i.   The anchoring and the elevation standards of subsection 8-1.19.E.3; and

         ii.   The no encroachment standard of subsection 8-1.19.E.1.

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

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

   Accessory structure or appurtenant structure. A structure located on the same parcel of property as the principal structure and the use of which is incidental to the use of the principal structure. 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. An extension or increase in the floor area or height of an existing building or structure.

   Alteration of a watercourse. A dam, impoundment, channel relocation, change in channel alignment, channelization, or change in cross-sectional area of the channel or the channel capacity, or any other form of modification which may alter, impede, retard or change the direction and/or velocity of the riverine flow of water during conditions of the base flood.

   Appeal. A request for a review of the Floodplain Administrator's interpretation of any provision of this chapter.

   Area of future-conditions flood hazard. The land area that would be inundated by the one (1) percent-annual-chance (one hundred (100)-year) flood based on future-conditions hydrology.

   Area of shallow flooding. A designated zone AO or AH on a community's flood insurance rate map (FIRM) with base flood depths determined to be from one (1) to three (3) feet. These areas are located where a clearly defined channel does not exist, where the path of flooding is unpredictable and indeterminate, and where velocity flow may be evident.

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

   Base flood. The flood having a one (1) percent chance of being equaled or exceeded in any given year.

   Base flood elevation (BFE). 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. Any area of the building having its floor sub grade (below ground level) on all sides.

   Building. See "structure."

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

   Design flood. See "regulatory flood protection evaluation."

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

   Development activity. Any activity defined as development which will necessitate a floodplain development permit. This includes buildings, structures, and non-structural items, including (but not limited to) fill, bulkheads, piers, pools, docks, landings, ramps, and erosion control/stabilization measures.

   Digital flood insurance rate map (DFIRM). The digital official map of a community, issued by the Federal Emergency Management Agency (FEMA), on which both the special flood hazard areas and the risk premium zones applicable to the community are delineated.

   Disposal. 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, as defined in G.S. 130A-290(a)(6).

   Elevated building. 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. 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 building or existing structure. Any building and/or structure for which the "start of construction" commenced before the effective date of the floodplain management regulations adopted by the City of Marion, dated October 20, 1987.

   Existing manufactured home park or manufactured home subdivision. 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 City of Marion, dated October 20, 1987.

   Flood or flooding. 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 or runoff of surface waters from any source.

   Flood boundary and floodway map (FBFM). An official map of a community, issued by the Federal Emergency Management Agency, on which the special flood hazard areas and the floodways are delineated. This official map is a supplement to and shall be used in conjunction with the flood insurance rate map (FIRM).

   Flood hazard boundary map (FHBM). An official map of a community, issued by the Federal Emergency Management Agency, where the boundaries of the special flood hazard areas have been defined as zone A.

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

   Flood insurance rate map (FIRM). 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. (see also DFIRM)

   Flood insurance study (FIS). 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.

   Flood prone area. "See "floodplain."

   Flood zone. 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. Any land area susceptible to being inundated by water from any source.

   Floodplain Administrator. The individual appointed to administer and enforce the floodplain management regulations.

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

   Floodplain management. 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. This chapter and other zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances, 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. 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.

   Flood-resistant material. Any building product, material, component, or system capable of withstanding direct and prolonged contact of a minimum of seventy-two (72) hours with floodwaters without sustaining damage that requires more than low-cost cosmetic repair. Any material that is water-soluble or is not resistant to alkali or acid in water, including normal adhesives for above-grade use, is not flood-resistant. Pressure-treated lumber or naturally decay-resistant lumbers are acceptable flooring materials. Sheet-type flooring coverings that restrict evaporation from below and materials that are impervious, but dimensionally unstable are not acceptable. Materials that absorb or retain water excessively after submergence are not flood-resistant. Reference FEMA Technical Bulletin 2, Flood Damage-Resistant Materials Requirements. Class 4 and 5 materials, referenced therein, are acceptable flood-resistant materials.

   Floodway. 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 (1) foot.

   Floodway encroachment analysis. An engineering analysis of the impact that a proposed encroachment into a floodway or non-encroachment area is expected to have on the floodway boundaries and flood levels during the occurrence of the base flood discharge. The evaluation shall be prepared by a qualified North Carolina licensed engineer using standard engineering methods and hydraulic models meeting the minimum requirements of the National Flood Insurance Program.

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

   Functionally dependent facility. 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. As defined in G.S. Ch. 130A, Article 9, a facility for the collection, storage, processing, treatment, recycling, recovery, or disposal of hazardous waste.

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

   Historic structure. Any structure that is:

      1.   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;

      2.   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;

      3.   Individually listed on a local inventory of historic landmarks in communities with a "certified local government (CLO) program"; or

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

   Letter of map change (LOMC). An official determination issued by FEMA that amends or revises an effective flood insurance rate map or flood insurance study. Letters of map change include:

      1.   Letter of map amendment (LOMA). An official amendment, by letter, to an effective National Flood Insurance Program map. A LOMA is based on technical data showing that a property had been inadvertently mapped as being in the floodplain, but is actually on natural high ground above the base flood elevation. A LOMA amends the current effective flood insurance rate map and establishes that a specific property, portion of a property, or structure is not located in a special flood hazard area.

      2.   Letter of map revision (LOMR). A revision based on technical data that may show changes to flood zones, flood elevations, special flood hazard area boundaries and floodway delineations, and other planimetric features.

      3.   Letter of map revision based on fill (LOMR-F). A determination that a structure or parcel of land has been elevated by fill above the BFE and is, therefore, no longer located within the special flood hazard area. In order to qualify for this determination, the fill must have been permitted and placed in accordance with the community's floodplain management regulations.

      4.   Conditional letter of map revision (CLOMR). A formal review and comment as to whether a proposed project complies with the minimum NFIP requirements for such projects with respect to delineation of special flood hazard areas. A CLOMR does not revise the effective flood insurance rate map or flood insurance study; upon submission and approval of certified as-built documentation, a letter of map revision may be issued by FEMA to revise the effective FIRM.

   Light duty truck. Any motor vehicle rated at eight thousand five hundred (8,500) pounds gross vehicular weight rating or less which has a vehicular curb weight of six thousand (6,000) pounds or less, which has a basic vehicle frontal area of 45 square feet or less as defined in 40 CFR 86.082-2, and is:

      1.   Designed primarily for purposes of transportation of property or is a derivation of such a vehicle; or

      2.   Designed primarily for transportation of persons and has a capacity of more than twelve (12) persons; or

      3.   Available with special features enabling off-street or off-highway operation and use.

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

   Lowest floor. The lowest floor of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access, or 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 chapter.

   Manufactured home. A structure, transportable in one (1) 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. A parcel (or contiguous parcels) of land divided into two (2) or more manufactured home lots for rent or sale.

   Map repository. The location of the official flood hazard data to be applied for floodplain management. It is a central location in which flood data is stored and managed; in North Carolina, FEMA has recognized that the application of digital flood hazard data products have the same authority as hard copy products. For effective flood hazard data, the NC FRIS website is the map repository, and for historical flood hazard data FloodNC is the map repository.

   Market value. 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.

   New construction. Structure 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-conversion agreement. A document stating that the owner will not convert or alter what has been constructed and approved. Violation of the agreement is considered a violation of this chapter and, therefore, subject to the same enforcement procedures and penalties. The agreement must be filed with the recorded deed for the property. The agreement must show the Clerk's or Recorder's stamps and/or notations that the filing has been completed.

   Non-encroachment area (NEA). 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 (1) foot as designated in the flood insurance study report.

   Post-FIRM. 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. 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. Minimum of fifty-one (51) percent of the actual cash value of the structure is above ground.

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

   Recreational vehicle (RV). A vehicle, which is:

      1.   Built on a single chassis;

      2.   Four hundred (400) square feet or less when measured at the largest horizontal projection; Designed to be self-propelled or permanently towable by a light-duty truck;

      3.   Designed primarily not for use as a permanent dwelling, but as temporary living quarters for recreational, camping, travel, or seasonal use; and

      4.   Is fully licensed and ready for highway use.

      5.   For the purpose of this chapter, "tiny homes/houses" and "park models" that do not meet the items listed above are not considered recreational vehicles and shall meet the standards of and be permitted as residential structures.

   Reference level. The bottom of the lowest horizontal structural member of the lowest floor for structures within all special flood hazard areas.

   Regulatory flood protection elevation. 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 (2) feet of freeboard. In special flood hazard areas where no BFE has been established, this elevation shall be at least two (2) 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 impact may be reduced include protecting the structure or other affected development from flood damages, implementing the enforcement provisions of this chapter or otherwise deterring future similar violations, or reducing federal financial exposure with regard to the structure or other development.

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

   Salvage Yard. Any nonresidential 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. Any facility involved in the disposal of solid waste, as defined in G.S. 130A-290(a)(35).

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

   Special flood hazard area (SFHA). The land in the floodplain subject to a one (1) percent or greater chance of being flooded in any given year, as determined in Sec. 8-1.8 of this article.

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

   Structure. A walled and roofed building, a manufactured home, or a gas, liquid, or liquefied gas storage tank that is principally above ground.

   Substantial damage. Damage of any origin sustained by a structure during any one (1)-year period whereby the cost of restoring the structure to it's before damaged condition would equal or exceed fifty (50) percent of the market value of the structure before the damage occurred. See definition of "substantial improvement". Substantial damage also means flood-related damage sustained by a structure on two (2) separate occasions during a ten (10)-year period, for which the cost of repairs at the time of each such flood event, on the average, equals or exceeds twenty-five (25) percent of the market value of the structure before the damage occurred.

   Substantial improvement. Any combination of repairs, reconstruction, rehabilitation, addition, or other improvement of a structure, taking place during any one (1)-year period, for which the cost equals or exceeds fifty (50) percent of the market value of the structure before the "start of construction" of the improvement. This term includes structures which have incurred substantial damage, regardless of the actual repair work performed. The term does not, however, include either:

      1.   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

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

   Technical bulletin and technical fact sheet. A FEMA publication that provides guidance concerning the building performance standards of the NFIP, which are contained in Title 44 of the U.S. Code of Federal Regulations at Section 60.3. Technical bulletins and technical fact sheets are intended for use primarily by state and local officials responsible for interpreting and enforcing NFIP regulations and by members of the development community, such as design professionals and builders. Technical bulletins and technical fact sheets do not create regulations. They provide specific guidance for complying with minimum requirements of existing regulations. Local and state regulations that exceed NFIP take precedence. All applicable standards of the state or local building code must also be met for any building in a flood hazard area.

   Temperature controlled. The act of having the temperature regulated by a heating and/or cooling system, built-in or appliance.

   Variance. A grant of relief from the requirements of this chapter. See Sec. 3-7.4 flood damage prevention variance.

   Violation. The failure of a structure or other development to be fully compliant with the community's floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in this chapter is presumed to be in violation until such time as that documentation is provided.

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

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

(Ord. No. O-23-04-18-3, § 1, 4-18-23)

   A.   Authority. The Legislature of the State of North Carolina has, in Chapter 160A, Article 8, Section 174, General Ordinance Authority; and in Chapter 143, Article 21, Watershed Protection Rules, delegated the responsibility or directed local governmental units to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry.

   B.   Jurisdiction. The provisions of this chapter shall apply within the areas designated as a Public Water Supply Watershed by the N.C. Environmental Management Commission and shall be defined and established on the map entitled, "Lake James Watershed Protection Overlay Map of the City of Marion, North Carolina". The Map and all explanatory matter contained thereon accompanies and is hereby made a part of this chapter. This ordinance shall be permanently kept on file in the office of the city clerk.

   C.   Establishment of Lake James Watershed Area. The Lake James Watershed is divided into the following areas, as appropriate:

      1.   WS-IV-CA (Critical Area)

      2.   WS-IV-PA (Protected Area)

   D.   Applicability.

      1.   No building or land shall hereafter be used and no development shall take place except in conformity with the regulations herein specified for the watershed area in which it is located.

      2.   No area required for the purpose of complying with the provisions of the UDO shall be included in the area required for another building.

      3.   If a use or class of use is not specifically indicated as being allowed in a watershed area, such use or class of use is prohibited.

   E.   Exceptions to applicability.

      1.   Nothing contained herein shall repeal, modify, or amend any Federal or State law or regulation, or any ordinance or regulation pertaining thereto except any ordinance which these regulations specifically replace; nor shall any provision of this Ordinance amend, modify, or restrict any provisions of the Marion Code of Ordinances; however, the adoption of this Ordinance shall and does amend any and all ordinances, resolutions, and regulations in effect in the City of Marion at the time of the adoption of this Ordinance that may be construed to impair or reduce the effectiveness of this Ordinance or to conflict with any of its provisions.

      2.   It is not intended that these regulations interfere with any easement, covenants or other agreements between parties. However, if the provisions of these regulations impose greater restrictions or higher standards for the use of a building or land, then the provisions of these regulations shall control.

      3.   Existing development, as defined in this chapter, is not subject to the requirements of this chapter. Expansions to structures classified as existing development must meet the requirements of this chapter, however, the built-upon area of the existing development is not required to be included in the density calculations.

      4.   If a nonconforming lot of record is not contiguous to any other lot owned by the same party, then that lot of record shall not be subject to the development restrictions of this chapter if it is developed for single-family residential purposes. Any lot or parcel created as part of a family subdivision after the effective date of these rules shall be exempt from these rules if it is developed for one single-family detached residence and if it is exempt from local subdivision regulation. Any lot or parcel created as part of any other type of subdivision that is exempt from a local subdivision chapter shall be subject to the land use requirements (including impervious surface requirements) of these rules, except that such a lot or parcel must meet the minimum buffer requirements to the maximum extent practicable.

   F.   Existing development. Existing development, as defined in the UDO, may be continued and maintained subject to the provisions provided herein. Expansions to structures classified as existing development must meet the requirements of the UDO, however, the built-upon area of the existing development is not required to be included in the built-upon area calculations.

      1.   Uses of land. This category consists of uses existing at the time of adoption of the UDO where such use of the land is not permitted to be established hereafter in the watershed area in which it is located. Such uses may be continued except as follows:

         a.   When such use of land has been changed to an allowed use, it shall not thereafter revert to any prohibited use.

         b.   Such use of land shall be changed only to an allowed use.

         c.   When such use ceases for a period of at least one year, it shall not be reestablished.

      2.   Reconstruction of buildings or built-upon areas. Any existing building or built-upon area not in conformance with the restrictions of the UDO that has been damaged or removed may be repaired and/or reconstructed, except that there are no restrictions on single family residential development, provided:

         a.   Repair or reconstruction is initiated within twelve (12) months and completed within two (2) years of such damage.

         b.   The total amount of space devoted to built-upon area may not be increased unless stormwater control that equals or exceeds the previous development is provided.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Watershed protection permit.

      1.   Except where a single family residence is constructed on a lot deeded prior to the effective date of the UDO, no building or built-upon area shall be erected, moved, enlarged or structurally altered, nor shall any building permit be issued nor shall any change in the use of any building or land be made until a Watershed Protection Permit has been issued by the Watershed Administrator. No Watershed Protection Permit shall be issued except in conformity with the provisions of the UDO.

      2.   Watershed Protection Permit applications shall be filed with the Watershed Administrator. The application shall include a completed application form and supporting documentation deemed necessary by the Watershed Administrator.

      3.   Prior to issuance of a Watershed Protection Permit, the Watershed Administrator may consult with qualified personnel for assistance to determine if the application meets the requirements of the UDO.

      4.   A Watershed Protection Permit shall expire if a Building Permit or Watershed Occupancy Permit for such use is not obtained by the applicant within twelve (12) months from the date of issuance.

   B.   Building permit required. No permit required under the North Carolina State Building Code shall be issued for any activity for which a Watershed Protection Permit is required until that permit has been issued.

   C.   Watershed protection occupancy permit.

      1.   The Watershed Administrator shall issue a Watershed Protection Occupancy Permit certifying that all requirements of the UDO have been met prior to the occupancy or use of a building hereafter erected, altered or moved and/or prior to the change of use of any building or land.

      2.   A Watershed Protection Occupancy Permit, either for the whole or part of a building, shall be applied for coincident with the application for a Watershed Protection Permit and shall be issued or denied within ten days after the erection or structural alterations of the building.

      3.   When only a change in use of land or existing building occurs, the Watershed Administrator shall issue a Watershed Protection Occupancy Permit certifying that all requirements of the UDO have been met coincident with the Watershed Protection Permit.

      4.   If the Watershed Protection Occupancy Permit is denied, the Watershed Administrator shall notify the applicant in writing stating the reasons for denial.

      5.   No building or structure which has been erected, moved, or structurally altered may be occupied until the Watershed Administrator has approved and issued a Watershed Protection Occupancy Permit.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Development standards within designated watershed protection areas.

   A.   WS-IV Watershed Areas - Protected Area (WS-IV-PA). Only new development activities that require an erosion/sedimentation control plan under State law or approved local government program are required to meet the provisions of the UDO when located in a WS-IV watershed. In order to accommodate moderate to high land use intensity, single family residential uses shall develop at a maximum of two (2) dwelling units per acre (2 du/ac). All other residential and non-residential development shall be allowed at a maximum of twenty-four percent (24%) built-upon area. A maximum of three (3) dwelling units per acre (3 du/ac) or thirty-six (36%) percent built-upon area is allowed for projects without a curb and gutter street system.

      1.   Uses allowed:

         a.   Agriculture, subject to the provisions of the Food Security Act of 1985 and the Food, Agricultural, Conservation and Trade Act of 1990.

         b.   Silviculture, subject to the provisions of the Forest Practices Guidelines Related to Water Quality (15 NCAC 11.0101-.0209).

         c.   Residential development.

         d.   Non-residential development.

      2.   Density and built-upon limits:

         a.   Single Family Residential-development shall not exceed two (2) dwelling units per acre, as defined on a project by project basis. No residential lot shall be less than one-half (½) acre (or 20,000 square feet excluding roadway right-of-way), or one third (1/3) acre for projects without a curb and gutter street system, except within an approved cluster development.

         b.   All Other Residential and Non-Residential--development shall not exceed twenty-four percent (24%) built-upon area on a project by project basis. For projects without a curb and gutter street system, development shall not exceed thirty-six percent (36%) built-upon area on a project by project basis. For the purpose of calculating built-upon area, total project area shall include acreage in the tract on which the project is to be developed.

         c.   In addition to the development allowed under paragraphs (a) and (b) above, new development and expansions to existing development may occupy up to ten percent (10%) of the protected area with up to seventy percent (70%) built-upon area on a project by project basis, when approved as a special intensity allocation (SIA). The Watershed Administrator is authorized to approve SIAs consistent with the provisions of the UDO. Projects must, to the maximum extent practicable, minimize built-upon surface area, direct stormwater away from surface waters and incorporate Best Management Practices to minimize water quality impacts. For the purpose of calculating built-upon area, total project area shall include total acreage in the tract on which the project is to be developed.

         d.   The project shall not exceed that allowed for the critical area, balance of watershed or protected area, whichever applies.

   B.   All built-upon area shall be designed and located to minimize stormwater runoff impact to the receiving waters and minimize concentrated stormwater flow, maximize the use of sheet flow through vegetated areas, and maximize the flow length through vegetated areas.

   C.   Areas of concentrated density development shall be located in upland area and away, to the maximum extent practicable, from surface waters and drainageways.

   D.   The remainder of the tract shall remain in a vegetated or natural state. The title to the open space area shall be conveyed to an incorporated homeowners association for management; to a local government for preservation as a park or open space; or to a conservation organization for preservation in a permanent easement. Where a property association is not incorporated, a maintenance agreement shall be filed with the property deeds.

   E.   Cluster developments that meet the applicable low-density requirements shall transport stormwater runoff by vegetated conveyances to the maximum extent practicable.

   F.   Buffer areas required.

      1.   A minimum one hundred (100) foot vegetative buffer is required for all new development activities that exceed the low-density option; otherwise, a minimum thirty (30) foot vegetative buffer for development activities is required along all perennial waters indicated on the most recent versions of U.S.G.S. 1:24,000 (7.5 minute) scale topographic maps or as determined by local government studies. Desirable artificial streambank or shoreline stabilization is permitted.

      2.   No new development is allowed in the buffer except for water dependent structures, other structures such as flag poles, signs and security lights which result in only diminutive increases in impervious area and public projects such as road crossings and greenways where no practical alternative exists. These activities should minimize built-upon surface area, direct runoff away from the surface waters and maximize the utilization of stormwater Best Management Practices.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   There shall be and hereby is created the Watershed Review Board consisting of five (5) members appointed by the city council. Three (3) residents of the city shall be appointed for three year terms. Two (2) residents of the city shall be appointed for two (2) year terms. Thereafter, all new terms shall be for three (3) years, and members may be reappointed.

   B.   Two (2) alternate members shall be appointed to serve on the Watershed Review Board in the absence of any regular member and shall be appointed for three (3) year terms. While attending in the capacity of a regular member, the alternate shall have and exercise all the powers and duties of the absent regular member.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Members of the Board may be removed by the city council for cause, including violation of the rules stated below:

   A.   Faithful attendance at meetings of the Board and conscientious performance of the duties required of members of the Board shall be considered a prerequisite to continuing membership on the Board.

   B.   No Board member shall take part in the hearing, consideration, or determination of any case in which he is personally or financially interested. A Board member shall have a "financial interest" in a case when a decision in the case will: 1) cause him or his spouse to experience a direct financial benefit or loss, or 2) will cause a business in which he or his spouse owns a 10 percent or greater interest, or is involved in a decision-making role, to experience a direct financial benefit or loss. A Board member shall have a "personal interest" in a case when it involves a member of his immediate family (i.e., parent, spouse, or child).

   C.   No Board member shall discuss any case with any parties thereto prior to the public hearing on that case; provided, however, that members may receive and/or seek information pertaining to the case from the Watershed Administrator or any other member of the Board, its secretary or clerk prior to the hearing.

   D.   Members of the Board shall not express individual opinions on the proper judgement of any case prior to its determination on that case.

   E.   Members of the Board shall give notice to the chairman at least forty-eight (48) hours prior to the hearing of any potential conflict of interest which he has in a particular case before the Board.

   F.   No Board member shall vote on any matter that decides an application or appeal unless he had attended the public hearing on that application or appeal.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Administrative review. The Watershed Review Board shall hear and decide appeals from any decision or determination made by the Watershed Administrator in the enforcement of the UDO.

   B.   Variances. The Watershed Review Board shall have the power to authorize, in specific cases, minor variances from the terms of this Ordinance as will not be contrary to the public interests where, owing to special conditions, a literal enforcement of this Ordinance will result in practical difficulties or unnecessary hardship, so that the spirit of this Ordinance shall be observed, public safety and welfare secured, and substantial justice done. In addition, the city shall notify and allow a reasonable comment period for all other local governments having jurisdiction in the designated watershed where the variance is being considered.

      1.   Applications for a variance shall be made on the proper form obtainable from the Watershed Administrator and shall include the following information:

         a.   A site plan, drawn to a scale of at least one (1) inch to forty (40) feet, indicating the property lines of the parcel upon which the use is proposed; any existing or proposed structures; parking areas and other built-upon areas; surface water drainage. The site plan shall be neatly drawn and indicate north point, name and address of person who prepared the plan, date of the original drawing, and an accurate record of any later revisions.

         b.   A complete and detailed description of the proposed variance, together with any other pertinent information which the applicant feels would be helpful to the Watershed Review Board in considering the application.

         c.   The Watershed Administrator shall notify in writing each local government having jurisdiction in the watershed and the entity using the water supply for consumption. Such notice shall include a description of the variance being requested. Local governments receiving notice of the variance request may submit comments to the Watershed Administrator prior to a decision by the Watershed Review Board. Such comments shall become a part of the record of proceedings of the Watershed Review Board.

      2.   Before the Watershed Review Board may grant a variance, it shall make the following three findings, which shall be recorded in the permanent record of the case, and shall include the factual reasons on which they are based:

         a.   There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the Ordinance. In order to determine that there are practical difficulties or unnecessary hardships, the Board must find that the five following conditions exist:

            i.   If he complies with the provisions of the Ordinance, the applicant can secure no reasonable return from, nor make reasonable use of, his property. Merely proving that the variance would permit a greater profit to be made from the property will not be considered adequate to justify the Board in granting a variance. Moreover, the Board shall consider whether the variance is the minimum possible deviation from the terms of the Ordinance that will make possible the reasonable use of his property.

            ii.   The hardship results from the application of the Ordinance to the property rather than from other factors such as deed restrictions or other hardship.

            iii.   The hardship is due to the physical nature of the applicant's property, such as its size, shape, or topography, which is different from that of neighboring property.

            iv.   The hardship is not the result of the actions of an applicant who knowingly or unknowingly violates the Ordinance, or who purchases the property after the effective date of the Ordinance, and then comes to the Board for relief.

            v.   The hardship is peculiar to the applicant's property, rather than the result of conditions that are widespread. If other properties are equally subject to the hardship created in the restriction, then granting a variance would be a special privilege denied to others, and would not promote equal justice.

         b.   The variance is in harmony with the general purpose and intent of the Ordinance and preserves its spirit.

         c.   In the granting of the variance, the public safety and welfare have been assured and substantial justice has been done. The Board shall not grant a variance if it finds that doing so would in any respect impair the public health, safety, or general welfare.

      3.   In granting the variance, the Board may attach thereto such conditions regarding the location, character, and other features of the proposed building, structure, or use as it may deem advisable in furtherance of the purpose of the UDO. If a variance for the construction, alteration or use of property is granted, such construction, alteration or use shall be in accordance with the approved site plan.

      4.   The Watershed Review Board shall refuse to hear an appeal or an application for a variance previously denied if it finds that there have been no substantial changes in conditions or circumstances bearing on the appeal or application.

      5.   A variance issued in accordance with this section shall be considered a Watershed Protection Permit and shall expire if a Building Permit or Watershed Occupancy Permit for such use is not obtained by the applicant within six (6) months from the date of the decision.

      6.   If the application calls for the granting of a major variance, and if the Watershed Review Board decides in favor of granting the variance, the Board shall prepare a preliminary record of the hearing with all deliberate speed. The preliminary record of the hearing shall include:

         a.   The variance application;

         b.   The hearing notices;

         c.   The evidence presented;

         d.   Motions, offers of proof, objections to evidence, and rulings on them;

         e.   Proposed findings and exceptions;

         f.   The proposed decision, including all conditions proposed to be added to the permit.

      7.   The preliminary record shall be sent to the Environmental Management Commission for its review as follows:

         a.   If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that (1) the property owner can secure no reasonable return from, nor make any practical use of the property unless the proposed variance is granted, and (2) the variance, if granted, will not result in a serious threat to the water supply, then the Commission shall approve the variance as proposed or approve the proposed variance with conditions and stipulations. The Commission shall prepare a Commission decision and send it to the Watershed Review Board. If the Commission approves the variance as proposed, the Board shall prepare a final decision granting the proposed variance. If the Commission approves the variance with conditions and stipulations, the Board shall prepare a final decision, including such conditions and stipulations, granting the proposed variance.

         b.   If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that (1) the property owner can secure a reasonable return from or make a practical use of the property without the variance or (2) the variance, if granted, will result in a serious threat to the water supply, then the Commission shall deny approval of the variance as proposed. The Commission shall prepare a Commission decision and send it to the Watershed Review Board. The Board shall prepare a final decision denying the variance as proposed.

   C.   Subdivision approval pursuant to Chapter 3 of the UDO.

   D.   Public Health pursuant to Sec. 8-2.9 below.

   E.   Approval of all development greater than the low-density option.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Any order, requirement, decision or determination made by the Watershed Administrator may be appealed to and decided by the Watershed Review Board.

   B.   An appeal from a decision of the Watershed Administrator must be submitted to the Watershed Review Board within thirty (30) days from the date the order, interpretation, decision or determination is made. All appeals must be made in writing stating the reasons for appeal. Following submission of an appeal, the Watershed Administrator shall transmit to the Board all papers constituting the record upon which the action appealed from was taken.

   C.   An appeal stays all proceedings in furtherance of the action appealed, unless the officer from whom the appeal is taken certifies to the Board after the notice of appeal has been filed with him, that by reason of facts stated in the certificate, a stay would in his opinion cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board or by a court of record on application of notice of the officer from whom the appeal is taken and upon due cause shown.

   D.   The Board shall fix a reasonable time for hearing the appeal and give notice thereof to the parties and shall decide the same within a reasonable time. At the hearing, any party may appear in person, by agent or by attorney.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Appeals from the Watershed Review Board must be filed with the Superior Court within 30 days from the date of the decision. Decisions by the Superior Court will be in the manner of certiorari.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   No activity, situation, structure or land use shall be allowed within the watershed which poses a threat to water quality and the public health, safety and welfare. Such conditions may arise from inadequate on-site sewage systems which utilize ground absorption; inadequate sedimentation and erosion control measures; the improper storage or disposal of junk, trash or other refuse within a buffer area; the improper management of stormwater runoff; or any other situation found to pose a threat to water quality.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   The Watershed Administrator shall monitor land use activities within the watershed areas to identify situations that may pose a threat to water quality.

   B.   The Watershed Administrator shall report all findings to the Watershed Review Board. The Watershed Administrator may consult with any public agency or official and request recommendations.

   C.   Where the Watershed Review Board finds a threat to water quality and the public health, safety and welfare, the Board shall institute any appropriate action or proceeding to restrain, correct or abate the condition and/or violation.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   The Marion City Council may, on its own motion or on petition, after public notice and hearing, amend, supplement, change or modify the watershed regulations and restrictions as described herein.

   B.   No action shall be taken until the proposal has been submitted to the Watershed Review Board for review and recommendations. If no recommendation has been received from the Watershed Review Board within forty-five (45) days after submission of the proposal to the Chairman of the Watershed Review Board, the city council may proceed as though a favorable report had been received.

   C.   Under no circumstances shall the City adopt such amendments, supplements or changes that would cause the UDO to violate the watershed protection rules as adopted by the N.C. Environmental Management Commission. All amendments must be filed with the N.C. Division of Water Quality, N.C. Division of Environmental Health, and the N.C. Division of Community Assistance.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Any person violating any provisions of this Chapter shall be guilty of a misdemeanor and, upon conviction, shall be punished in accordance with G.S. § 14-4. The maximum fine for each offense shall not exceed $500.00. Each day that the violation continues shall constitute a separate offense.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   If any subdivision, development and/or land use is found to be in violation of this Chapter, the city council may, in addition to all other remedies available either in law or in equity, institute a civil penalty pursuant to Sec. 1-10.9 of the Marion Code of Ordinances, action or proceedings to restrain, correct, or abate the violation; to prevent occupancy of the building, structure, or land; or to prevent any illegal act, conduct, business, or use in or about the premises. In addition, the N.C. Environmental Management Commission may assess civil penalties in accordance with G.S. § 143-215.6(a). Each day that the violation continues shall constitute a separate offense.

   B.   If the Watershed Administrator finds that any of the provisions of this chapter are being violated, he shall notify in writing the person responsible for such violation, indicating the nature of the violation, and ordering the action necessary to correct it. He shall order discontinuance of the illegal use of land, buildings or structures; removal of illegal buildings or structures, or of additions, alterations or structural changes thereto; discontinuance of any illegal work being done; or shall take any action authorized by this chapter to ensure compliance with or to prevent violation of its provisions. If a ruling of the Watershed Administrator is questioned, the aggrieved party or parties may appeal such ruling to the Watershed Review Board.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Where uncertainty exists as to the boundaries of the watershed areas, as shown on the Watershed Map, the following rules shall apply:

   A.   Where area boundaries are indicated as approximately following either street, alley, railroad or highway lines or centerlines thereof, such lines shall be construed to be said boundaries.

   B.   Where area boundaries are indicated as approximately following lot lines, such lot lines shall be construed to be said boundaries. However, a surveyed plat prepared by a registered land surveyor may be submitted to the city as evidence that one or more properties along these boundaries do not lie within the watershed area.

   C.   Where the watershed area boundaries lie at a scaled distance more than twenty-five (25) feet from any parallel lot line, the location of watershed area boundaries shall be determined by use of the scale appearing on the watershed map.

   D.   Where the watershed area boundaries lie at a scaled distance of twenty-five (25) feet or less from any parallel lot line, the location of watershed area boundaries shall be construed to be the lot line.

   E.   Where other uncertainty exists, the Watershed Administrator shall interpret the Watershed Map as to location of such boundaries. This decision may be appealed to the Watershed Review Board.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   For the purpose of this Article, certain words shall be interpreted as follows:

   A.   Words in the present tense include the future tense.

   B.   Words used in the singular number include the plural, and words used in the plural number include the singular, unless the natural construction of the wording indicates otherwise.

   C.   The word "person" includes a firm, association, corporation, trust, and company as well as an individual.

   D.   The word "structure" shall include the word "building."

   E.   The word "lot" shall include the words, "plot," "parcel," or "tract." The word "shall" is always mandatory and not merely directory.

   F.   The word "will" is always mandatory and not merely directory.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   For the purposes of this article, the following terms shall have the meanings ascribed to them unless the context clearly indicates otherwise:

   Agricultural use. The use of waters for stock watering, irrigation, and other farm purposes.

   Best management practices (BMP). A structural or nonstructural management-based practice used singularly or in combination to reduce nonpoint source inputs to receiving waters in order to achieve water quality protection goals.

   Buffer. An area of natural or planted vegetation through which stormwater runoff flows in a diffuse manner so that the runoff does not become channelized and which provides for infiltration of the runoff and filtering of pollutants. The buffer is measured landward from the normal pool elevation of impounded structures and from the bank of each side of streams or rivers.

   Building. Any structure having a roof supported by columns or by walls, and intended for shelter, housing or enclosure of persons, animals or property. The connection of two buildings by means of an open porch, breezeway, passageway, carport or other such open structure, with or without a roof, shall not be deemed to make them one building.

   Built-upon area. Built-upon areas shall include that portion of a development project that is covered by impervious or partially impervious cover including buildings, pavement, gravel areas (e.g. roads, parking lots, paths), recreation facilities (e.g. tennis courts), etc. (Note: Wooden slatted decks and the water area of a swimming pool are considered pervious.)

   Cluster development. Cluster development means the grouping of buildings in order to conserve land resources and provide for innovation in the design of the project including minimizing stormwater runoff impacts. This term includes nonresidential development as well as single family residential and multi-family developments. For the purpose of the UDO, planned unit developments and mixed-use development are considered as cluster development.

   Critical area. The area adjacent to a water supply intake or reservoir where risk associated with pollution is greater than from the remaining portions of the watershed. The critical area is defined as extending either one-half mile from the normal pool elevation of the reservoir in which the intake is located or to the ridge line of the watershed (whichever comes first); or one-half mile upstream from the intake located directly in the stream or river (run-of-the- river), or the ridge line of the watershed (whichever comes first). Local governments may extend the critical area as needed. Major landmarks such as highways or property lines may be used to delineate the outer boundary of the critical area if these landmarks are immediately adjacent to the appropriate outer boundary of one-half mile.

   Customary home occupations. Any use conducted entirely within a dwelling and carried on by the occupants thereof, which use is clearly incidental and secondary to the use of the dwelling for residential purposes and does not change the character thereof. Provided further that no mechanical equipment is installed or used except as is normally used for domestic or professional purposes, and that not over twenty-five percent (25%) of the total floor space of any structure is used for the occupation. No home occupation shall be conducted in any accessory building except for the storage and service of a vehicle that is driven off site, such as a service repair truck, delivery truck, etc.

   Development. Any land disturbing activity which adds to or changes the amount of impervious or partially impervious cover on a land area or which otherwise decreases the infiltration of precipitation into the soil.

   Dwelling unit. A building, or portion thereof, providing complete and permanent living facilities for one family.

   Existing development. Those projects that are built or those projects that at a minimum have established a vested right under North Carolina zoning law as of the effective date of the UDO based on at least one of the following criteria:

      1.   Substantial expenditures of resources (time, labor, money) based on a good faith reliance upon having received a valid local government approval to proceed with the project, or

      2.   Having an outstanding valid building permit as authorized by G.S. § 160D-108, or

      3.   Having an approved site specific or phased development plan as authorized by G.S. § 160D-108.

   Existing lot (lot of record). A lot which is part of a subdivision, a plat of which has been recorded in the Office of the Register of Deeds prior to the adoption of the UDO, or a lot described by metes and bounds, the description of which has been so recorded prior to the adoption of the UDO.

   Family. One or more persons occupying a single dwelling unit, provided that unless all members are related by blood or marriage or adoption, no such family shall contain over five persons, but further provided that domestic servants employed or living on the premises may be housed on the premises without being counted as a family or families.

   Family subdivision. Family subdivision means a division of a tract of land: (a) to convey the resulting parcels, with the exception of parcels retained by the grantor, to a relative or relatives as a gift or for nominal consideration, but only if no more than one parcel is conveyed by the grantor from the tract to any one relative; or (b) to divide land from a common ancestor among tenants in common, all of whom inherited by intestacy or by will.

   Industrial development. Any non-residential development that requires an NPDES permit for an industrial discharge and/or requires the use or storage of any hazardous material for the purpose of manufacturing, assembling, finishing, cleaning or developing any product or commodity.

   Landfill. A facility for the disposal of solid waste on land in a sanitary manner in accordance with Chapter 130A Article 9 of the N.C. General Statutes. For the purpose of the UDO this term does not include composting facilities.

   Lot. A parcel of land occupied or capable of being occupied by a building or group of buildings devoted to a common use, together with the customary accessories and open spaces belonging to the same.

   Major variance. A variance from the minimum statewide watershed protection rules that results in any one or more of the following:

      1.   The relaxation. by a factor greater than ten (10) percent, of any management requirement under the low density option;

      2.   The relaxation, by a factor greater than five (5) percent, of any buffer, density or built-upon area requirement under the high density option;

      3.   Any variation in the design, maintenance or operation requirements of a wet detention pond or other approved stormwater management system.

   Minor variance. A variance from the minimum statewide watershed protection rules that results in a relaxation, by a factor of up to five (5) percent of any buffer, density or built-upon area requirement under the high density option; or that results in a relaxation, by a factor of up to ten (10) percent, of any management requirement under the low density option.

   Nonconforming lot of record. A lot described by a plat or a deed that was recorded prior to the effective date of local watershed protection regulations (or their amendments) that does not meet the minimum lot size or other development requirements of the statewide watershed protection rules.

   Non-residential development. All development other than residential development, agriculture and silviculture.

   Plat. A map or plan of a parcel of land which is to be, or has been subdivided.

   Protected area. The area adjoining and upstream of the critical area of WS-IV watersheds. The boundaries of the protected area are defined as within five miles of and draining to the normal pool elevation of the reservoir or to the ridgeline of the watershed; or within 10 miles upstream and draining to the intake located directly in the stream or river or to the ridgeline of the watershed.

   Residential development. Buildings for residence such as attached and detached single-family dwellings, apartment complexes, condominiums, townhouses, cottages, etc. and their associated outbuildings such as garages, storage buildings, gazebos, etc. and customary home occupations.

   Residuals. Any solid or semi-solid waste generated from a wastewater treatment plant, water treatment plant or air pollution control facility permitted under the authority of the Environmental Management Commission.

   Single family residential. Any development where: 1) no building contains more than one dwelling unit, 2) every dwelling unit is on a separate lot, and 3) where no lot contains more than one dwelling unit.

   Street (road). A right-of-way for vehicular traffic which affords the principal means of access to abutting properties.

   Structure. Anything constructed or erected, including but not limited to buildings, which requires location on the land or attachment to something having permanent location on the land.

   Subdivider. Any person, firm or corporation who subdivides or develops any land deemed to be a subdivision as herein defined.

   Subdivision. All divisions of a tract or parcel of land into two or more lots, building sites, or other divisions for the purpose of sale or building development (whether immediate or future) and shall include all division of land involving the dedication of a new street or a change in existing streets; but the following shall not be included within this definition nor be subject to the regulations authorized by the UDO:

      1.   The combination or recombination of portions of previously subdivided and recorded lots where the total number of lots is not increased and the resultant lots are equal to or exceed the standards of the UDO;

      2.   The division of land into parcels greater than 10 acres where no street right-of-way dedication is involved;

      3.   The public acquisition by purchase of strips of land for the widening or opening of streets;

      4.   The division of a tract in single ownership whose entire area is no greater than two acres into not more than three lots, where no street right-of-way dedication is involved and where the resultant lots are equal to or exceed the standards of the UDO;

      5.   The division of a tract into plots or lots used as a cemetery.

   Toxic substance. Any substance or combination of substances (including disease causing agents), which alter discharge and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, has the potential to cause death, disease, behavioral abnormalities; cancer, genetic mutations, physiological malfunctions (including malfunctions or suppression in reproduction or growth) or physical deformities in such organisms or their offspring or other adverse health effects.

   Variance. A permission to develop or use property granted by the Watershed Review Board relaxing or waiving a water supply watershed management requirement adopted by the Environmental Management Commission that is incorporated into the UDO.

   Water dependent structure. Any structure for which the use requires access to or proximity to or citing within surface waters to fulfill its basic purpose, such as boat ramps, boat houses, docks and bulkheads. Ancillary facilities such as restaurants, outlets for boat supplies, parking lots and commercial boat storage areas are not water dependent structures.

   Watershed. The entire land area contributing surface drainage to a specific point (e.g. the water supply intake.)

   Watershed Administrator. An official or designated person of the city responsible for administration and enforcement of the UDO.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   The historical heritage of Marion is one of the city's most valued and important assets. The conservation of and preservation of historic districts and landmarks stabilize and increase property values in their areas and strengthen the overall economy of the city. The purpose of establishing local historic districts and landmarks is to encourage the restoration, preservation, rehabilitation and conservation of historically, architecturally, and archaeologically significant areas, structures, buildings, sites, objects and their surroundings, and to review new construction design to ensure compatibility with the character of the district and to safeguard against any potentially adverse influences which may cause the decline, decay, or total destruction of these important assets. In addition, the preservation of historic districts and landmarks provides for the education, pleasure and enrichment of the residents of Marion and the state as a whole.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   There is hereby established a commission which shall be known as the Marion Historic Preservation Commission. Its jurisdiction shall include the City of Marion as shown on the official zoning map of the city.

   B.   Number of members, method of appointment, composition of commission, criteria for appointment, term of office, reimbursement.

   C.   The commission shall be a five-member commission appointed by the city council. A majority of the members of the commission shall have demonstrated special interest, experience or education in history, architecture, archaeology or related fields; and all the members shall reside within the territorial jurisdiction of the City of Marion, the limits of which are shown on the official zoning map of the City of Marion, North Carolina.

   D.   Members shall be appointed for four-year staggered terms. In the case of a vacancy occurring during a term, such vacancy shall be filled for the unexpired portion of such term.

   E.   The commission shall serve without compensation except that they shall be reimbursed for actual expenses incident to the performance of their duties within the limits of any funds available to the commission.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   The historic preservation commission shall develop and adopt rules of procedure that govern the conduct of its business in accordance with the provisions of the UDO. Such rules of procedure shall also include as an appendix "The Secretary of the Interior's Standards for Rehabilitation and Illustrated Guidelines for Rehabilitating Historic Buildings" and the "McDowell County Design Guidelines" including photographs, illustrations, descriptions and other similar material interpreting the criteria for determining appropriateness. The design guidelines shall be placed on file in the City of Marion Planning and Development office and made available to the general public during the regular city office business hours.

   Specific provisions shall be made in the commission's rules of procedure for commission meetings following the filing of a proposal on which the commission is required to pass. Such specific provisions shall be made in order that a proposal be brought before the commission:

   A.    Within a reasonable time;

   B.   In a manner which is conducive to commission consideration; and

   C.   In a manner which will facilitate commission action.

   The commission shall meet at regularly scheduled times and at such other times as the commission may determine or at the call of its chairman as provided for in its rules of procedure.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   The powers and duties of the historic preservation commission shall be to:

   A.    Undertake an inventory of properties of historical, prehistorical, architectural, and/or cultural significance;

   B.   Recommend to the city council areas to be designated by ordinance as "historic districts"; and individual structures, buildings, sites, areas, or objects to be designated by ordinance as "landmarks";

   C.   Recommend to the governing board that designation of any area as a historic district or part thereof, or designation of any building, structure, site, area, or object as a landmark, be revoked or removed for cause;

   D.   Prepare and recommend the official adoption of a preservation element as part of the municipality's comprehensive plan; and

   E.   Review and act upon proposals for alterations, demolitions, or new construction within historic districts, or for the alteration or demolition of designated landmarks; and

   F.   Exercise such other powers and perform such other duties or activities as are required elsewhere by the Marion Zoning Ordinance or the General Statutes of North Carolina or as assigned by the Marion City Council.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Properties previously designated by county. Properties listed on the National Register of Historic Places as a landmark or as a historic district as of the date of the UDO are hereby designated historic properties under this article.

   B.   Initiation of historic designation process. The designation process under this article shall be initiated by the submission of an application requesting historic designation to the department of planning and development services, on a form prescribed by the director, by either the owner of the proposed historic property, his authorized agent, Marion City Council, or the historic preservation commission. The applicant shall provide information, which illustrates that the property meets the criteria for listing as set forth in this article. The information submitted must include sufficient preliminary information to enable staff’s review for an initial determination that the property meets the minimum eligibility criteria. The proposal shall include a legal description of the property, a statement explaining the historic, architectural, archaeological, or cultural significance, photographs of the property, and any other materials or documents that may be used in evaluation of the subject site.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Historic districts and landmarks are established through the application of an overlay district which are zoning districts that are applied only in conjunction with other zoning districts, and may grant additional use or development requirements upon the underlying zoning controlling the use and development of a lot to ensure the compatibility and appropriateness of exterior design within the historic district or for the landmark.

   Overlay districts can be applied to any zoning districts and the boundaries of such overlay shall be shown on the official zoning map of the City of Marion as an "HD historic district". An overlay district can be initiated as an amendment by city council, planning board, historic preservation commission, a property owner, or their agent.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   The city council may adopt, amend, reject, or repeal ordinances designating historic districts when adoption or amendment is pursuant to the following procedure:

   A.   An investigation and report describing the historical, architectural, or archaeological significance of the buildings, structures, features, sites or surroundings included in any such proposed district, and the description of the boundaries of such district has been prepared.

   B.   The North Carolina Department of Cultural Resources, acting through the state historic preservation officer or his or her designee, shall make an analysis of and recommendations concerning such report and description of proposed boundaries. Failure of the department to submit its written analysis and recommendations to the city council within thirty (30) calendar days after a written request for such analysis has been received by the North Carolina Department of Cultural Resources shall relieve the city of any responsibility for awaiting such analysis, and the city council may at any time thereafter take any necessary action to adopt or amend its zoning ordinance.

   C.   Historic districts shall consist of areas which are deemed to be of special significance in terms of their history, prehistory, architecture and/or culture, and to possess integrity of design, setting, materials, feeling, and association. The area, buildings, structures, sites, or objects shall be significant elements of cultural, social, economic, political, or architectural history of the city or of the archaeological history or prehistory of the city. The conservation of such a district will provide for the education, pleasure and enhancement of the quality of life of all residents of the city.

   D.   The historic preservation commission, planning board, and city council shall each hold a public hearing on the proposed ordinance to designate the boundaries of a historic district in accordance with the procedures set forth in Sec. 3-6.2

   E.   Following the city council designation and approval of a historic district, the area so designated shall be labeled "HD" on the official zoning map.

   F.   With respect to any changes in the boundaries of such district subsequent to its initial establishment or the creation of additional districts within the city, the investigative studies and reports shall be prepared by the historic preservation commission and shall be referred to the city council for its review and comment. Changes in the boundaries of an initial district or proposals for additional districts shall also be submitted to the North Carolina Department of Cultural Resources in accordance with the provisions as stated in subsection (B) above.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   The city council may adopt, amend, reject, or repeal ordinances designating historic landmarks that meet the following criteria, when those ordinances contain the following elements and when adoption or amendment is pursuant to the following procedure:

   A.   Criteria for designation: No building, structure, site, area, or object shall be recommended for designation as a historic landmark unless it is deemed and found by the historic preservation commission to be of special significance in terms of its historical, prehistorical, architectural, archaeological, and for cultural importance, and to possess integrity of design, setting, workmanship, materials, feeling and/or association.

   B.   Elements of ordinances designating historic landmarks: Ordinances designating historic landmarks shall contain the following elements:

      1.   Describe each property designated in the ordinance, including the approximate area of the property so designated.

      2.   List the name or names of the owner or owners of the property.

      3.   Describe those elements of the property that are integral to its historical, prehistorical, architectural, archaeological and/or cultural significance.

      4.   Describe the nature of the commission's jurisdiction over the interior, if any, and those interior features of the property to be reviewed for certificates of appropriateness if they are to be changed.

      5.   Require, for each building, structure, site, area, or object designated as an historic landmark that the waiting period set forth in the general statutes be observed prior to its demolition.

      6.   Provide any other information the city council deems necessary within the authority conferred by the general statutes.

   C.   Procedure for adopting or amending historic landmark ordinances: Ordinances designating historic landmarks shall be adopted and amended according to the following procedure:

      1.   The historic preservation commission shall make, or cause to be made, an investigation and report on the historical, prehistorical, architectural, archaeological and/or cultural significance of each building, structure, site, area, or object proposed for designation. Applications prepared by owners will be judged by the same criteria as those prepared by the commission. Such reports shall contain the following information:

         a.   The name of the property to be considered for designation, both common and historic names, if they can be determined.

         b.   The name and address of the current property owner.

         c.   The location of the property proposed to be designated historic, including the street address and tax map and parcel numbers.

         d.   The date of construction and of any later alterations, if any.

         e.   An assessment of the significance of the site or structure pursuant to subsection (a), criteria for designation.

         f.   An architectural or archaeological description of the area of the site or structure proposed to be designated. If outbuildings or other appurtenant features are proposed to be designated, the report shall contain a description of those features.

         g.   A historical discussion of the site or structure within its type, period, and locality.

         h.   Color photographs consistent with the U.S. Department of Interior's format guidelines that clearly document the appearance, condition, and elements of the building, structure, or object proposed to be designated, including views of all facades, pertinent details and surrounding environment.

         i.   A map showing the location of the property, including any outbuildings and appurtenant features.

         j.   A clear description of the boundaries.

      2.   The commission shall forward its recommendation to the city council. The commission shall refer the report to the North Carolina Department of Cultural Resources.

      3.   The North Carolina Department of Cultural Resources, acting through the state historic preservation officer or his or her designee, may make an analysis of and recommendations concerning the report. If the department does not submit its written comments or recommendations in connection with any proposed designation within thirty (30) calendar days after a written request for such analysis has been received by the department, the commission and the city council shall be relieved of any responsibility to consider such comments.

      4.   The historic preservation commission and the city council shall each hold a public hearing on the proposed ordinance in accordance with the procedures set forth in chapter three, review procedures, of the UDO.

      5.   Following the public hearings, the city council may adopt the ordinance as proposed, adopt the ordinance with any amendments it deems necessary, or reject the proposed ordinance.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   No exterior portion of any building or other structure (including masonry, walls, fences, light fixtures, steps and pavement, or other appurtenant features) nor above-ground utility structure nor any type of outdoor advertising sign shall be erected, altered, restored, moved or demolished on a landmark, or within a historic district, until after an application for a certificate of appropriateness as to exterior features has been submitted to and approved by the historic preservation commission.

   Exterior features shall include the architectural style, general design and general arrangement of the exterior of a building or other structure, including the color, the kind and texture of the building material, the size and scale of the building and the type and style of all windows, doors, light fixtures, signs and other appurtenant fixtures. In the case of outdoor advertising signs, exterior features shall be construed to mean the style, material, size and location of all such signs.

   B.   Such a certificate shall be issued by the commission prior to the issuance of a zoning permit or other permit granted for purposes of constructing, altering, moving or demolishing structures. A certificate of appropriateness shall be required whether or not a zoning permit is required. Therefore, a certificate of appropriateness is a prerequisite to the issuance of such a zoning permit or such other permits. Any such zoning permits or such other permits not issued in conformity with this section shall be invalid.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   The following review criteria, along with companion design guidelines and the guidelines of the Secretary of the Interior, shall be considered, where relevant, to make findings of fact indicating the extent to which the application for a certificate of appropriateness is or is not congruous with the historic aspects of the designated landmark or district:

   A.   Building height.

   B.   Walls.

   C.   Proportion of width to height of the total building facade.

   D.   Proportion, shape, positioning, location, pattern and sizes of any elements of fenestration.

   E.   Spacing of buildings, defined as the distance between adjacent buildings.

   F.   Building materials.

   G.   Surface textures.

   H.   Color.

   I.   Expression of architectural detailing.

   J.   Roof shapes.

   K.   Scale.

   L.   Orientation of the building to the street.

   M.   Ground cover or paving.

   N.   Signs.

   O.   Exterior lighting and appurtenant features.

   The commission shall adopt principles and guidelines interpreting these criteria for new construction, alterations, additions, moving and demolition of landmarks or properties in a historic district.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Reconstruction of substantially damaged historic sites. When a designated historic building, structure, object, or site has been substantially damaged, the historic preservation commission shall determine through an evaluation of architectural integrity, whether the building, structure, object, or site can be reconstructed using the following criteria:

      1.   Whether there is sufficient evidence such as photo-documentation, scaled drawings, or other physical evidence to accurately depict the form and detail of the original resource.

      2.   Whether the original construction materials, or substitute materials that are sufficiently similar so as to convey the original qualities of construction, are readily available.

      3.   Whether the interior spaces are especially significant to the form and function of the building. If so, the historic preservation commission shall define the parameters necessary to adequately convey those interior spatial characteristics as requirements in the reconstruction effort.

      4.   Whether the applicant has demonstrated a commitment to the reconstruction effort by making every reasonable effort to preserve or salvage the remaining significant features of the property.

      5.   Whether there are other unique factors or circumstances that would make reconstruction desirable.

   If the historic preservation commission determines that a historic designated structure within a historic district or landmark may be reconstructed, the property owner may submit a reconstruction plan for consideration based on the criteria enumerated in this article. If the property owner chooses not to reconstruct, the historic preservation commission may recommend repeal of the historic designation using the procedure established in this article.

   B.   Reconstruction criteria. Reconstruction of a designated historic structure within a historic district or landmark shall be carried out in accordance with the following criteria:

      1.   Reconstruction shall be used to depict nonsurviving portions of a structure when such reconstruction is essential to the public understanding of the landmark or historic district, and documentary and physical evidence is available to permit accurate reconstruction.

      2.   Reconstruction of a historic contributing structure within a historic district or landmark in its historic location shall be preceded by a thorough archaeological investigation identifying and evaluating those features and artifacts, which are essential to an accurate reconstruction. If such resources must be disturbed, mitigation measures shall be undertaken.

      3.   Reconstruction shall include measures preserving any remaining historic materials, features, and spatial relationships.

      4.   Reconstruction shall be based on the accurate duplication of historic features and elements substantiated by documentary or physical evidence rather than on conjectural designs or the availability of different features from other historic landmarks or contributing structures within a historic district. A reconstructed contributing structure within a historic district or landmark shall re-create the appearance of the non-surviving historic site in materials, design, colors, and texture.

      5.   All "reconstructions" shall be clearly documented as being contemporary re-creations.

   C.   Amendment or repeal of designation. A historic designation pursuant to this article may only be amended or rescinded by complying with the same procedures as the original approval. However, the director of planning and development service's report need only contain a recommendation to grant or deny the repeal or amendment, and the reasons therefor.

      1.   The historic preservation commission recommending repeal of the designation shall be based on competent and substantial evidence supporting the repeal.

      2.   Final approval of repeal shall come from the city council.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   An application for a certificate of appropriateness authorizing the relocation, demolition, or destruction of a designated landmark or a building, structure or site within a historic district may not be denied except as provided in paragraph (B) below. However, the effective date of such a certificate may be delayed for a period of up to three hundred sixty-five (365) days from the date of approval. The maximum period of delay authorized by this section shall be reduced by the commission where it finds that the owner would suffer extreme hardship or be permanently deprived of all beneficial use of or return from such property by virtue of the delay. During such period the commission shall negotiate with the owner and with any other parties in an effort to find a means of preserving the building or site.

   B.   An application for a certificate of appropriateness authorizing the demolition or destruction of a building, site or structure determined by the state historic preservation officer as having statewide significance as defined in the criteria of the National Register of Historic Places may be denied except where:

      1.   The commission finds that the owner would suffer extreme hardship or be permanently deprived of all beneficial use or return by virtue of the denial; or

      2.   The city has adopted a demolition ordinance under article three, dwellings unfit for human habitation and abandoned structures, chapter 7, building regulations.

   C.   If the commission has voted to recommend designation of a property as a landmark or designation of an area as a district, and final designation has not been made by the city council, the demolition or destruction of any building, site or structure located on the property of the proposed landmark or in the proposed district may be delayed by the commission for a period of up to one hundred eighty (180) days or until the city council takes final action on the designation, whichever comes first.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Nothing herein shall be construed to prevent a property owner from making any use of his or her property not prohibited by other statutes, ordinances or regulations.

   B.   The commission may enter, solely in performance of its official duties and only at reasonable times, upon private lands for examination or survey thereof. However, no member, employee, or agent of the commission may enter any private building or structure without express consent of the owner or occupant thereof.

   C.   Except as provided in paragraph (D) below, the commission shall have no jurisdiction over interior arrangement and shall take no action except to prevent the construction, reconstruction, alteration, restoration, moving or demolition of buildings, structures, appurtenant features, outdoor advertising signs, or other significant features which would be incongruous with the special character of a landmark or of the district.

   D.   Notwithstanding paragraph (C) above, the jurisdiction of the commission over interior spaces shall be limited to specific interior features of architectural, artistic or historical significance in publicly owned designated landmarks; and of privately owned historic landmarks for which consent for interior review has been given by the owner. Said consent of any owner for interior review shall bind future owners and/or successors in title, provided such consent has been filed in the office of the register of deeds and indexed accordingly to the name of the owner of the property in the grantee and grantor indexes. The landmark designation shall specify the interior features to be reviewed and the specific nature of the commission's jurisdiction over the interior.

   E.   The ordinary maintenance or repair of any exterior architectural feature of a landmark, or in a historic district which does not involve a change in design, material, color or outer appearance thereof, shall not be prevented by the requirements pertaining to the designated landmark or historic district.

   F.   Nothing in this article shall be construed to prevent the maintenance or, in the event of an emergency, the immediate restoration of any existing above-ground utility structure without approval by the commission.

   G.   The construction, reconstruction, alteration, restoration, moving or demolition of any exterior architectural features, which the city public officer or similar official shall certify is required for public safety because of an unsafe or dangerous condition, shall not be prevented by the requirements pertaining to the landmark, or the historic district.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   The historic preservation commission shall receive applications for certificates of appropriateness as required under this section. The commission shall review such application according to the review criteria, the design guidelines and the Secretary of the Interior's Standards for Rehabilitation and Illustrated Guidelines for Rehabilitating Historic Buildings and shall approve or disapprove such application as provided in paragraph (d) of this subsection.

   B.   Prior to issuance or denial of a certificate of appropriateness, the Commission shall take such action as may reasonably be required to inform the owners of any property likely to be materially affected by the application and shall give the applicant and such owners an opportunity to be heard. A written notice of the proposal shall be sent to the applicant and to owners of property (i.e., lots, parcels or tracts of land) within one hundred (100) feet of the subject property or properties.

   C.   In cases where the commission deems it necessary, it may hold a public hearing concerning an application for a certificate of appropriateness.

   D.   The historic preservation commission's final action on an application for a certificate of appropriateness shall be by the passage of a motion to take one (1) of the following actions:

      1.   Approve the application for a certificate of appropriateness as proposed;

      2.   Approve the application for a certificate of appropriateness subject to specific conditions and/or modifications of the proposal presented in the application for a certificate of appropriateness;

      3.   Disapprove the application for a certificate of appropriateness as proposed or modified.

   E.   Any aggrieved party may appeal the historic preservation commission's action in granting or denying a certificate, which shall be submitted in writing to the city council within thirty (30) days of the commission's final action.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A certificate of appropriateness application, when determined to involve a minor work, may be reviewed and approved, by the planning and development director or his or her designee.

   "Minor works" are defined as those exterior changes that do not involve substantial alterations, additions or removals that could impair the integrity of the landmark or property within a historic district.

   An application may receive a certificate of appropriateness from the planning and development director or his or her designee if it falls under the list of minor works provided in the historic preservation commission rules of procedure. If the planning and development director or his or her designee does not issue a certificate of appropriateness, the applicant will be advised to make a formal application to the historic preservation commission. No application may be denied without formal action by the historic preservation commission.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Passage of a motion to approve, with or without modification, an application shall constitute the issuance of a certificate of appropriateness by the historic preservation commission. The application and the duly approved minutes of the commission shall constitute the written documentation of such issuances. Following the meeting a certificate shall be mailed to the property for which a certificate has been issued. The certificate shall be posted on the premises, in a location visible from the street, while the work is in progress. Minutes of a historic preservation commission meeting shall be approved before the end of the next meeting.

   B.   A certificate of appropriateness shall be valid for a period of six (6) months from the date of issuance for the purpose of obtaining a zoning permit or other permit for constructing or altering structures. A certificate of appropriateness shall expire six (6) months after the date of issuance if the work authorized by the certificate has not been commenced. If after commencement the work is discontinued for a period of six (6) months, the permit therefor shall immediately expire.

   C.   Compliance with certificates of appropriateness shall be enforced by the planning and development director or his or her designee. Failure to comply with a certificate of appropriateness shall be a violation of the zoning ordinance. The enforcement of any remedy provided herein shall not prevent the enforcement of any other remedy or remedies provided herein or in other ordinances or laws.

   D.   In case any building, structure, site, area or object designated as a landmark or located within a historic district is about to be demolished whether as a result of deliberate neglect or otherwise, materially altered, remodeled, removed or destroyed, except in compliance with the ordinance, the commission or other party aggrieved by such action may institute any appropriate action or proceeding to prevent such unlawful action.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   In the event that the commission, in considering an application for a certificate of appropriateness, finds that a building or structure for which a zoning permit is requested is to be an authentic restoration or reconstruction which existed at the same location but does not meet zoning requirements, said building or structure may be authorized to be restored or reconstructed at the same location provided the following:

      1.   The zoning board of adjustment authorizes a variance to the location and placement of the building or structure and no use other than that permitted in the district in which the property is located is permitted.

      2.   Conditions and approvals set by the board of adjustment are attached to the historic preservation commission's approval and included in any certificate of appropriateness related thereto.

   B.   If the commission finds that an application for a certificate of appropriateness includes any porches, steps, fences, walls or other items extending over, on or within public rights-of-way is necessary for the authentic restoration, reconstruction or maintenance of a historic landmark, and will not impede or block pedestrian traffic or constitute a hazard to public safety, such findings shall be transmitted to the city council for its consideration in authorizing or denying such encroachments into such rights-of-way.

   C.   If the city council authorizes an encroachment, any items restored, reconstructed or maintained on, over or within a public right-of-way shall be the responsibility of the owner, and the owner shall agree to protect and hold the City of Marion harmless against any and all liability, cost damage or expense suffered as a result of the restoration, reconstruction or maintenance thereof.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Authority to continue nonconforming structures. Nonconforming structures that are federally or state designated as historic shall be permitted to continue in accordance with Article One, flood damage prevention of the UDO.

   B.   Exemption from flood elevation requirements. Structures that are federally or state designated as historic shall be exempt from the Federal Emergency Management Agency (FEMA) flood elevation requirements in accordance with Article One, flood damage prevention of the UDO.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   If any building, structure, site, area or object designated a historic landmark is about to be demolished, whether as the result of deliberate neglect or otherwise, materially altered, remodeled or removed, except in compliance with the ordinance enacted under authority of this chapter, the city or the commission may institute any appropriate action or proceedings to prevent such unlawful demolition, material alteration, remodeling or removal, to restrain, correct or abate such violation or to prevent any legal act or conduct with respect to such historic landmark.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Unless otherwise provided in the Code of Ordinances of the City of Marion or in state law, persons violating the provisions of this article shall be assessed a civil penalty as provided in chapter 1 of the Marion City Code of Ordinances.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   For the purposes of this article, the following terms shall have the meanings ascribed to them unless the context clearly indicates otherwise:

   Alteration. Any change because of construction, repair, maintenance or otherwise to buildings located within a historic district or to buildings designated as a historic landmark.

   Archeological resource. Material evidence of past human activity which is found below the surface of the ground or water, portions of which may be visible above the surface.

   Building. Any structure, place or any other construction built for the shelter or enclosure of persons, animals or chattels or any part of such structure when subdivided by division walls or party walls extending to or above the roof and without openings in such separate walls.

   Certificate of appropriateness. A document evidencing approval by the historic preservation commission for work proposed in a historic district or to or on a historic landmark.

   Commission. The historic preservation commission of the City of Marion, as established in this chapter 21 of the Code of Ordinances of the City of Marion.

   Construction. The erection of any onsite improvements on any parcel of ground located within a historic district or on or to a historic landmark, whether the site is presently improved, unimproved or becomes unimproved by demolition, destruction of the improvements located thereon by fire, windstorm or other casualty after the adoption of the ordinance from which this article derives.

   Demolition. The complete or constructive removal by an applicant of a building on any historic landmark or in any historic district.

   Designation. The creation of a historic district or a historic landmark through the passage of an ordinance by the appropriate governing body.

   Exterior architectural features. The architectural style, general design and general arrangement of the exterior of a building or other structure, including the color, the kind and texture of the building material and the type and style of all windows, doors, light fixtures, signs and other appurtenant fixtures. In the case of outdoor advertising signs, exterior architectural features shall be construed to mean the style, material, size and location of all such signs.

   Historic district. An overlay district established by the Marion City Council for an area deemed to be of special significance in terms of its history, prehistory, architecture, and/or culture, and to possess integrity of design, setting, materials, feeling and/or association.

   Historic landmark. Any building, structure, site, artifact above or below ground, area or object which is designated as a historic landmark by ordinance of the city council due to its special significance in terms of its historical, pre-historical, architectural or cultural importance and its possession of integrity of design, setting, workmanship, materials, feeling and/or association.

   Ordinary repairs and maintenance. Work done on a building to prevent it from deterioration or to replace any part thereof in order to correct any deterioration, decay or damage to a building or any part thereof in order to restore such building as nearly as practical to its condition prior to such deterioration, decay or damage.

(Ord. No. O-21-06-15-5, §1, 6-15-21)