The applicant submitted a revised application and site plan on August 8, 2000 in response to the comments provided by staff regarding the initial variance request. The amount of intrusion into the River Resource Yard was reduced by 50% in the revised site plan. In addition, the amount of fill placed on the site was reduced significantly. The floor elevation of the proposed structures has been reduced approximately eight (8) feet on the revised site plan. The fill and intrusion into the River Resource Yard have been reduced to the minimum required for the construction of the two (2) proposed bridges and access roads. Planning and Development staff contacted the Asheville Fire Department regarding the fire code requirements for access to the site. The Acting Fire Chief responded that the National Fire Prevention Code mandates two (2) points of access for the proposed development and for other potential development of the site. Based upon the information provided by the Asheville Fire Department regarding access to the site, the two (2) bridges and access roads proposed for the development are the minimum required for development of the site. Based upon information provided by the applicant and research conducted by staff, there are no other points of access to the site that would not require the construction of a bridge.

The practical difficulties associated with this site that preclude carrying out the strict letter of the law are related to the location of the Swannanoa River between the frontage road and the site. In order to provide reasonable access to the site for any development, construction of bridges and access roads is required. The Asheville Fire Department has mandated that two (2) bridges be constructed to provide safe access for development of the site. Construction of the bridges will require intrusion into the River Resource Yard. The bridges must be constructed so that they do not increase the base flood elevation of the Swannanoa River. In order to meet this requirement, placement of fill within the designated floodway is necessary. To mitigate the impact of placing the fill necessary for the bridge in the floodway, a flood water detention area must be provided to prevent flooding of adjacent properties. Construction of this detention area will require grading within the River Resource Yard.

The need to provide safe and adequate access to the property, as mandated by the National Fire Prevention Code, requires the construction of the bridges and the subsequent intrusion into the River Resource Yard. Without proper access, no development or redevelopment can occur on the site. The improved access provided by the construction of the bridges is necessary for the applicant to make a reasonable use of the property. No other points of access are available to the property; the only access requires crossing the Swannanoa River and the resulting intrusion into the River Resource Yard. In order for the property owner to make a reasonable return from or make reasonable use of his property, intrusion into the River Resource Yard is necessary.

While many properties in the River District are subject to the development restrictions imposed by flood area designation and the requirement that the River Resource Yard be maintained, this is the only property that staff is aware of to which access can be attained only by crossing the river. The need to cross the Swannanoa River in order to access this property creates unique circumstances for this property. Further complicating this circumstance is the Fire Code access requirement that states that two (2) access points to the development are necessary. In order to meet this requirement, two (2) bridges meeting current access standards must be constructed. In addition, the construction of the bridges cannot create a flooding hazard for adjacent properties. The fill placed into the floodway to accommodate the bridge construction must be mitigated through floodway revisions elsewhere on the site. The construction of the required bridges and the necessary floodway revisions will result in an unavoidable intrusion into the River Resource Yard.

The access limitations of this site resulting from the need to cross the Swannanoa River in order to gain access are not the result of any action of the applicant. In addition, the requirement that two (2) points of access be provided for any development of the site is mandated by the Fire Prevention Code. These conditions, which do not result from any action of the applicant, result in the need to intrude into the River Resource Yard. The intrusion is necessary to construct the bridges and to provide an area for the detention of floodwaters. Construction of the two (2) bridges will require the placement of fill in the designated floodway, necessitating the revision of the flood maps and construction of a floodwater detention area. Both the bridge construction and the floodwater detention area construction are required to comply with the mandates of regulatory agencies.

The applicant has taken steps to meet the intent of the ordinance and preserve its spirit. The purpose of the River Resource Yard is "to provide for bank stabilization, erosion control, and improved water quality." To ensure that these goals are met, the applicant is proposing to quickly revegetate disturbed areas to control erosion. Following the construction of the floodwater detention area, all disturbed areas will be revegetated with grasses, trees, and shrubs. This area is also proposed to serve as a stormwater management area that will control the quantity of stormwater runoff, limiting it to the predevelopment rate. With these actions, the variance requested by the applicant will be in harmony with the general purpose and intent of the ordinance and will preserve its spirit.

The applicant has revised the plans for the proposed development to reduce the intrusion into the River Resource yard to the minimum required to construct the two (2) required access bridges. The alteration of the floodway proposed in the revised plan is the minimum required to compensate for the hydraulic constraints caused by the bridges. Approximately 1,200 lineal feet of River Resource Yard will be maintained in its natural state with the revised plan. The revised plan addresses the concerns identified by staff in the review of the initial variance request submitted by the applicant. Information provided by the Asheville Fire Department confirms that two (2) points of access will be required for development of the site.

The steps proposed by the applicant to address erosion control and stormwater management both during and following construction will assure the public safety and welfare. In addition, the floodwater detention area will be re-vegetated and maintained as an undisturbed River Resource Yard. This detention area will also serve to manage stormwater runoff from the site. Through these actions, the applicant will assure that substantial justice has been done.

STAFF RECOMMENDATION: Staff recommends that the variance be granted with the following conditions: