N.Y.C. Admin. Code § BC G105: Section BC G105: Variances

G105.1 General.

The Board of Standards and Appeals shall hear and decide requests for variances from the requirements of this appendix. The Board of Standards and Appeals shall base its determination on technical justifications, and has the right to attach such conditions to variances as it deems necessary to further the purposes and objectives of this appendix.

Exception: In specific cases, provided that noncompliance with the requirements of the 44 CFR section 60.3 is not created, the commissioner shall be authorized to vary the standards prescribed in this appendix under and pursuant to the provisions of Section 28-103.3 of the Administrative Code and Section 645(b)(2) of the New York City Charter, including but not limited to:

1. Increases to the number of plumbing fixtures on an existing non-dry floodproofed story located below DFE including to accommodate compliance with the New York City Plumbing Code or Chapter 11 of this code for accessibility for persons with disabilities, or both; and

2. Modifications to the egress provisions of ASCE 24, Section 6.2.2.

G105.2 Records.

The Board of Standards and Appeals shall:

1. Maintain a record of all variance actions, including justification for their issuance; and

2. Report such variances issued in its biennial report submitted to the Federal Emergency Management Agency (FEMA).

G105.3 Historic structures.

A variance is authorized to be issued by the Board of Standards and Appeals for the repair or rehabilitation of a historic structure upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure, and the variance is the minimum necessary to preserve the historic character and design of the structure.

G105.4 Functionally dependent facilities.

The Board of Standards and Appeals is authorized to issue a variance for the construction or substantial improvement of a functionally dependent facility provided the criteria in Sections G105.3, G105.5 and G105.7 are met and the variance is the minimum necessary to allow the construction or substantial improvement, and that all due consideration has been given to methods and materials that minimize flood damages during the base flood and create no additional threats to public safety.

G105.5 Floodway restrictions.

The Board of Standards and Appeals shall not issue a variance for any proposed development in a floodway if any increase in flood levels would result during the base flood discharge.

G105.6 Conditions.

In reviewing applications for variances, the Board of Standards and Appeals shall consider all technical evaluations, all relevant factors, all other portions of this appendix and the following:

1. The danger that materials and debris may be swept onto other lands resulting in further injury or damage.

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

3. The susceptibility of the proposed development, including contents, to flood damage and the effect of such damage on current and future owners.

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

5. The availability of alternate locations for the proposed development that are not subject to flooding or erosion.

6. The compatibility of the proposed development with existing and anticipated development.

7. The relationship of the proposed development to the comprehensive plan and floodplain management program for that area.

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

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

10. 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, streets and bridges.

G105.7 Conditions for issuance.

Except for historic structures as provided for in Section G105.3, the Board of Standards and Appeals is authorized to issue a variance where all of the following criteria are met:

1. A technical showing of good and sufficient cause that the characteristics of the size, configuration or topography of the site renders the standards inappropriate;

2. A determination that failure to grant the variance would result in exceptional hardship to the applicant for the variance;

3. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, nor create nuisances, cause fraud on or victimization of the public or conflict with existing local laws or ordinances;

4. A determination that the variance is the minimum necessary, considering the flood hazard, to afford relief;

5. Notification to the applicant in writing over the signature of the Executive Director of the Board of Standards and Appeals that the issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage, and that such construction below the base flood level increases risks to life and property; and

6. A determination that the new construction, substantial improvement, or other proposed development is located on a tax lot that, on November 16, 1983, was no more than 1/2 acre (0.2 hectare) in size. However, where the tax lot has been determined to be larger than 1/2 acre (0.2 hectare), the technical justification required for issuing the variance increases with the lot size.