§ 15.80

The Legislature of the State of California has in Governmental Code Sections 65302, 65560, and 65800 conferred upon local government the authority to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry. Therefore, the city council of the city of Morgan Hill adopts the following floodplain management regulations.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

A.

The flood hazard areas of the City of Morgan Hill are subject to periodic inundation which results in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare.

B.

When floodplains are developed without taking appropriate precautions, flood heights, frequencies, and velocities increase, causing a greater threat to humans, damage to property, destruction of natural floodplain functions and adverse impacts to water quality.

C.

These flood losses are caused by uses that are inadequately elevated, floodproofed, or protected from flood damage. The cumulative effect of obstructions in areas of special flood hazards which increase flood heights and velocities also contribute to the flood loss.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

15.80.030 - Statement of purpose.

It is the purpose of this chapter to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood conditions in specific areas by legally enforceable regulations applied uniformly throughout the City of Morgan Hill to all publicly and privately owned land within flood prone, mudslide, or flood-related erosion areas. These regulations are designed to:

A.

Protect human life 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 interruptions;

E.

Minimize damage to public facilities and utilities such as water and gas mains; electric, telephone and sewer lines; and streets and bridges located in areas of special flood hazard;

F.

Help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future blighted areas caused by flood damage;

G.

Ensure that potential buyers are notified that property is in an area of special flood hazard; and

H.

Ensure that those who occupy the areas of special flood hazard assume responsibility for their actions.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

In order to accomplish its purposes, this chapter includes methods and provisions to:

A.

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

B.

Require that uses vulnerable to floods, including facilities which 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 help accommodate or channel flood waters;

D.

Control filling, grading, dredging, and other development which may increase flood damage; and

E.

Prevent or regulate the construction of flood barriers which will unnaturally divert flood waters or which may increase flood hazards in other areas.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

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 its most reasonable application.

"Accessory structure" means a structure that is either:

1.

Solely for the parking of no more than two cars; or

2.

A small, low cost shed for limited storage, less than one hundred fifty square feet and one thousand five hundred dollars in value.

"Accessory use" means a use which is incidental and subordinate to the principal use of the parcel of land on which it is located.

"Adversely affects" means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will increase the water surface elevation of the base flood more than one foot at any point.

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

"Area of shallow flooding" means a designated AO or AH zone on the flood insurance rate map (FIRM). The base flood depths range from one to three feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident. Such flooding is characterized by ponding or sheet flow.

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

"Base flood" means a flood which has a one percent chance of being equaled or exceeded in any given year (also called the "one-hundred-year flood"). Base flood is the term used throughout this chapter.

"Base flood elevation (BFE)" means the elevation shown on the flood insurance rate map for zones AE, AH, A1-30, VE and V1-V30 that indicates the water surface elevation resulting from a flood that has a one percent or greater chance of being equaled or exceeded in any given year.

"Basement" means any area of the building having its lowest floor more than two feet subgrade, i.e., below ground level on all sides.

"Biennial report" means the report completed by communities participating in the National Flood Insurance Program that describes the community's progress in the previous two years in implementing floodplain management measures and on its needs for remapping and technical assistance. This report is submitted annually or biennially as determined by the administrator of the National Flood Insurance Program.

"Building": See "structure."

"Conditional letter of map revision (CLOMR)" means the comment from the Federal Emergency Management Agency (FEMA) on a proposed project that would, upon construction, affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective Base flood elevations (BFEs), or the special flood hazard area (SFHA). The letter does not revise an effective flood insurance rate map (FIRM), it indicates whether the project, if built as proposed, would be recognized by FEMA.

nstruction, affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective Base flood elevations (BFEs), or the special flood hazard area (SFHA). The letter does not revise an effective flood insurance rate map (FIRM), it indicates whether the project, if built as proposed, would be recognized by FEMA.

"Crawlspace" means the enclosed area contained inside the foundation walls and below the habitable floor of a structure. Crawlspaces having the lowest floor two feet or less below grade level on all sides shall not be considered a basement.

"Development" means 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.

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

"Existing manufactured home park or subdivision" means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before June 18, 1980.

"Expansion to an existing manufactured home park or subdivision" means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads).

"Flood, flooding, or flood water" means:

1.

A general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland or tidal waters; the unusual and rapid accumulation or runoff of surface waters from any source; and/or mudslides (i.e., mudflows); and

2.

The condition resulting from flood-related erosion.

"Flood boundary and floodway map (FBFM)" means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the floodway.

"Flood insurance rate map (FIRM)" means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community.

"Flood insurance study" means the official report provided by the Federal Insurance Administration that includes flood profiles, the flood insurance rate map, the flood boundary and floodway map, and the water surface elevation of the base flood.

"Floodplain or flood-prone area" means any land area susceptible to being inundated by water from any source. See "Flooding."

"Floodplain administrator" is the city official appointed by title to administer and enforce the floodplain management regulations.

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

"Floodplain management regulations" means this chapter and other zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as grading and erosion control) and other application of police power which control development in flood-prone areas. This term describes federal, state or local regulations in any combination thereof which provide standards for preventing and reducing flood loss and damage.

"Floodproofing" means any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures, and their contents. For guidelines on dry and wet floodproofing, see FEMA Technical Bulletin 1 (Openings in Foundation Walls and Walls of Enclosures, 2008), Technical Bulletin 3 (Non-Residential Floodproofing - Requirements and Certification, 1993), and Technical Bulletin 7 (Wet Floodproofing Requirements, 1993), and subsequent amendments and/or revisions thereto.

1.

"Dry floodproofing" means floodproofing measures that are designed to prevent floodwaters from entering a structure. Dry floodproofing techniques may include, but are not limited to, installation of closure and sealants, watertight walls, small floodwalls or levees, flood shields, and watertight doors.

2.

"Wet floodproofing" means floodproofing measures that minimize damage to a structure and its contents from floodwater that is allowed into the structure.

"Flood-related erosion" means the collapse or subsidence of land along the shore of a lake or other body of water as a result of undermining caused by waves or currents of water exceeding anticipated cyclical level or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as a flash flood or an abnormal tidal surge, or by some similarly unusually and unforeseeable event which results in flooding.

"Flood-related erosion area" or "flood-related erosion prone area" means a land area adjoining the shore of a lake or other body of water, which due to the composition of the shoreline or bank and high water levels or wind-driven currents, is likely to suffer flood-related erosion damage.

"Flood-related erosion area management" means the operation of an overall program of corrective and preventive measures for reducing flood-related erosion damage, including but not limited to emergency preparedness plans, flood-related erosion control works, and floodplain management regulations.

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

"Floodway encroachment lines" means the lines marking the limits of floodways on federal, state and local floodplain maps.

"Floodway fringe" is that area of the floodplain on either side of the "regulatory floodway" where encroachment may be permitted.

"Fraud and victimization" as related to Sections 15.80.240, 15.80.245, and 15.80.250, Variances, of this chapter, means that the variance granted must not cause fraud on or victimization of the public. In examining this requirement, the city council will consider the fact that every newly constructed building adds to government responsibilities and remains a part of the community for fifty to one hundred years. Buildings that are permitted to be constructed below the base flood elevation are subject during all those years to increased risk of damage from floods, while future owners of the property and the community as a whole are subject to all the costs, inconvenience, danger, and suffering that those increased flood damages bring. In addition, future owners may purchase the property, unaware that it is subject to potential flood damage, and can be insured only at very high flood insurance rates.

"Functionally dependent use" means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, and does not include long-term storage or related manufacturing facilities.

"Governing body" is the local governing unit, i.e., city council that is empowered to adopt and implement regulations to provide for the public health, safety and general welfare of its citizenry.

"Hardship" as related to Sections 15.80.240, 15.80.245, and 15.80.250, Variances, of this chapter means the exceptional hardship that would result from a failure to grant the requested variance. The city council requires that the variance be exceptional, unusual, and peculiar to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or the disapproval of one's neighbors likewise cannot, as a rule, qualify as an exceptional hardship. All of these problems can be resolved through other means without granting a variance, even if the alternative is more expensive, or requires the property owner to build elsewhere or put the parcel to a different use than originally intended.

"Highest adjacent grade" means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

"Historic structure," for floodplain management purposes, means any structure that is:

1.

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

2.

Certified or preliminarily determined by the Secretary of the 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 state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of Interior; or

Individually listed on the city's master list of historic structures, provided this local inventory is consistent with state-approved or certified historic preservation programs as determined by the Secretary of the Interior or directly by the Secretary of the Interior in states without approved programs.

"Letter of map revision (LOMR)" means FEMA's modification to an effective Flood Insurance Rate Map (FIRM), or Flood Boundary and Floodway Map (FBFM), or both. LOMRs are generally based on the implementation of physical measures that affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective base flood elevations (BFEs), or the special flood hazard area (SFHA). The LOMR officially revises the FIRM or FBFM, and sometimes the Flood Insurance Study (FIS) report, and when appropriate, includes a description of the modifications. The LOMR is generally accompanied by an annotated copy of the affected portions of the FIRM, FBFM, or FIS report.

"Letter of map revision based on fill (LOMR-F)" means FEMA's modification of the special flood hazard area (SFHA) shown on the FIRM based on the placement of fill outside the existing regulatory floodway.

"Levee" means a man-made structure, usually an earthen embankment, designed and constructed in accordance with sound engineering practices to contain, control or divert the flow of water so as to provide protection from temporary flooding.

"Levee system" means a flood protection system which consists of a levee, or levees, and associated structures, such as closure and drainage devices, which are constructed and operated in accord with sound engineering practices.

"Lowest floor" means the lowest floor of the lowest enclosed area, including basement. See "basement" definition. An unfinished or flood resistant enclosure below the lowest floor that is usable solely for parking of vehicles, building access or storage in an area other than a basement area, is not considered a building's lowest floor provided it conforms to the applicable non-elevation design requirements, including, but not limited to:

1.

The flood openings standard in Section 15.80.160.C.3;

2.

The anchoring standards in Section 15.80.160.A;

3.

The construction materials and methods standards in Section 15.80.160.B; and

4.

The standards for utilities in Section 15.80.170.

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

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

"Market value" means the current estimated fair market value of a structure, excluding the current estimated fair market value of the land on which the structure is located and the current estimated fair market value of any landscaping, and any detached accessory structures on such land. The current tax assessed value of the structure as provided by the county tax assessor's office shall be used as the market value of the structure where the cost of the proposed improvement to the structure does not exceed fortyfive percent. In the event the cost of the improvement to the structure exceeds forty-five percent of the current tax assessed value of the structure, the market value shall be determined from an independent appraisal prepared by a qualified professional appraiser using a building cost estimating method recognized by the building construction industry, which shall be reviewed and accepted by the floodplain administrator.

"Mean sea level" means, for purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929, North American Vertical Datum (NAVD) of 1988, or other datum, to which base flood elevations shown on a community's Flood Insurance Rate Map are referenced.

"Mixed-use structure" means any structure that has only nonresidential uses in areas of the structure at or below the base flood elevation, but has residential uses in areas of the structure above the base flood elevation with access to residential uses dry floodproofed.

"Mudslide" means a condition where there is a river, flow or inundation of liquid mud down a hillside, usually as a result of a dual condition of loss of brush cover and the subsequent accumulation of water on the ground, preceded by a period of unusually heavy or sustained rain.

"Mudslide (i.e., mudflow) prone area" means an area with land surfaces and slopes of unconsolidated material where the history, geology, and climate indicate a potential for mudflow.

"New construction," for floodplain management purposes, means structures for which the "start of construction" commenced on or after June 18, 1980, and includes any subsequent improvements to such structures.

"New manufactured home park or subdivision" means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after June 18, 1980; also see "existing manufactured home park or subdivision."

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) is completed on or after June 18, 1980; also see "existing manufactured home park or subdivision."

"Obstruction" includes, but is not limited to, any dam, wall, wharf, embankment, levee, dike, pile, abutment, protection, excavation, channelization, bridge, conduit, culvert, building, wire, fence, rock, gravel, refuse, fill, structure, vegetation or other material in, along, across or projecting into any watercourse which may

alter, impede, retard or change the direction and/or velocity of the flow of water, or due to its location, its propensity to snare or collect debris carried by the flow of water, or its likelihood of being carried downstream.

"One-hundred-year flood, or "100-year Flood": See "base flood."

"Principal structure" means a structure used for the principal use of the property as distinguished from an accessory use.

"Public safety and nuisance" as related to Sections 15.80.240, 15.80.245, 15.80.250, Variances, of this chapter means that the granting of a variance must not result in anything which is injurious to 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" means a vehicle which is:

1.

Built on a single chassis;

Four hundred square feet or less when measured at the largest horizontal projection;

Designed to be self-propelled or permanently towable by a light-duty truck; and

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

"Regulatory floodway": See "floodway."

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

"Repetitive loss" means flood-related damages sustained by a structure on two separate occasions during a ten-year period for which the cost of repairs at the time of each such event, on the average, equals or exceeds twenty-five percent of the market value of the structure before the damage occurred.

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

"Sheet flow area": See "area of shallow flooding."

"Special flood hazard area (SFHA)" means an area in the floodplain subject to a one percent or greater chance of flooding in any given year. It is shown on an FHBM or FIRM as zone A, AO, A1-A30, AE, A99, or AH.

"Start of construction" includes substantial improvement and other proposed new development and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within one hundred eighty days from the date of the permit. 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 a building, whether or not that alteration affects the external dimensions of the building.

"Structure" means a walled and roofed building that is principally above ground; this includes a gas or liquid storage tank or a manufactured home.

"Substantial damage" means:

1.

Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed fifty percent of the market value of the structure before the damage occurred; or

2.

Flood-related damages sustained by a structure on two separate occasions during a ten-year period for which the cost of repairs at the time of each such event, on the average, equals or exceeds twenty-five percent of the market value of the structure before the damage occurred. This is also known as "repetitive loss."

"Substantial improvement or substantially improved" means any combination of repairs, reconstruction, rehabilitation, addition, or other proposed new development of a structure taking place during a five-year period, the cumulative cost of which equals or exceeds fifty percent of the market value of the structure before the "start of construction" of the improvement. For each structure, the five-year period begins on the date of the first improvement or repair of that structure subsequent to the effective date of the ordinance codified in this chapter. 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 project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local 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."

"Variance" means a grant of relief from the requirements of this chapter which permits construction in a manner that would otherwise be prohibited by this chapter.

"Violation" means the failure of any 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" means the height, in relation to the National Geodetic Vertical Datum (NGVD) of 1929, North American Vertical Datum (NAVD) of 1988, or other datum, of floods of various magnitudes and frequencies in the floodplains of coastal or riverine areas.

"Watercourse" means a lake, river, creek, stream, wash, arroyo, 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. 2261 N.S., § 2, 9-27-2017)

15.80.060 - Applicability.

This chapter shall apply to all areas of special flood hazards within the jurisdiction of the city of Morgan Hill.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

15.80.070 - Basis for establishing the areas of special flood hazard.

The areas of special flood hazard identified by the Federal Emergency Management Agency (FEMA) in the flood insurance study (FIS) for the city of Morgan Hill dated December 1979 and accompanying flood insurance rate maps (FIRMs) and flood boundary and floodway maps (FBFMs) dated June 18, 1980, and all subsequent amendments and/or revisions, are hereby adopted by reference and declared to be a part of this chapter. This FIS and attendant mapping is the minimum area of applicability of this chapter and may be supplemented by studies for other areas which allow implementation of this chapter and which are recommended to the city council by the floodplain administrator. The study, FIRMs, and FBFMs are on file at the city of Morgan Hill's Development Services Center located at 17575 Peak Avenue, Morgan Hill, CA 95037.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the term of this chapter and other applicable regulations. Violation of the requirements

(including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor. Nothing herein shall prevent the city council from taking such lawful action as is necessary to prevent or remedy any violation.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

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

(Ord. No. 2261 N.S., § 2, 9-27-2017)

In the interpretation and application of this chapter, 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. 2261 N.S., § 2, 9-27-2017)

The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by man-made or natural causes. This chapter does not imply that land outside the areas of special flood hazards 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 Morgan Hill, the city council, any officer or employee thereof, the state of California, or the Federal Emergency Management Agency, for any flood damages that result from reliance on this chapter or any administrative decision lawfully made hereunder.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

This chapter and the various parts thereof are hereby declared to be severable. Should any section of this chapter be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity

of the chapter as a whole, or any portion thereof other than the section so declared to be unconstitutional or invalid.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

A development permit shall be obtained before any construction or other development, including manufactured homes, begins within any area of special flood hazard established in Section 15.80.070. Application for a development permit shall be made on forms furnished by the floodplain administrator. The applicant shall provide the following minimum information:

A.

Plans in duplicate, drawn to scale, as required showing:

1.

Location, dimensions, and elevation of the area in question, existing or proposed structures, storage of materials and equipment and their location;

2.

Proposed locations of water supply, sanitary sewer, and other utilities;

3.

Grading information showing existing and proposed contours, any proposed fill, and drainage facilities;

4.

Location of the regulatory floodway when applicable;

5.

Base flood elevation information as specified in Section 15.80.070 or Section 15.80.140.C;

6.

Proposed elevation in relation to mean sea level, of the lowest floor (including basement) of all structures - in zone AO, elevation of highest adjacent grade and proposed elevation of lowest floor of all structures; and

7.

Proposed elevation in relation to mean sea level to which any nonresidential or mixed-use structure will be floodproofed, as required in Section 15.80.160.C.2 and detailed in FEMA Technical Bulletin 3 (NonResidential Floodproofing - Requirements and Certification, 1993) and subsequent amendments and/or revisions thereto.

B.

Certification from a registered civil engineer or architect that the nonresidential or mixed-use, floodproofed building meets the floodproofing criteria in Section 15.80.160.C.2.

C.

For a crawlspace foundation, location and total net area of foundation openings as required in Section 15.80.160.C.3 and detailed in FEMA Technical Bulletin 1 (Openings in Foundation Walls and Walls of Enclosures, 2008) and Technical Bulletin 7 (Wet Floodproofing Requirements, 1993) and subsequent amendments and/or revisions thereto.

D.

Description of the extent to which any watercourse will be altered or relocated as a result of proposed development.

E.

All appropriate certifications listed in Section 15.80.140.E.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

15.80.130 - Designation of the floodplain administrator.

The city engineer or his or her designee is appointed to administer, implement, and enforce this chapter by granting or denying development permits in accord with its provisions.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

15.80.140 - Duties and responsibilities of the floodplain administrator.

The duties and responsibilities of the floodplain administrator shall include, but not be limited to the following:

A.

Permit Review. Review all development permit applications to determine whether:

1.

Permit requirements of this chapter have been satisfied, including determination of substantial improvement and substantial damage of existing structures;

2.

All other required state and federal permits have been obtained;

3.

The site is reasonably safe from flooding;

The proposed development does not adversely affect the carrying capacity of areas where base flood elevations have been determined but a floodway has not been designated. For purposes of this chapter, "adversely affects" means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will increase the water surface elevation of the base flood more than one foot at any point within the city of Morgan Hill; and

5.

All letters of map revision (LOMRs) for flood control projects are approved prior to the issuance of building permits.

B.

Development of Substantial Improvement and Substantial Damage Procedures.

1.

Using FEMA publication FEMA 213, "Answers to Questions About Substantially Damaged Buildings," develop detailed procedures for identifying and administering requirements for substantial improvement and substantial damage, to include defining "Market Value."

2.

Assure procedures are coordinated with other departments/divisions and implemented by city staff.

C.

Review, Use and Development of Other Base Flood Data. When base flood elevation data has not been provided in accordance with Section 15.80.070, the floodplain administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal or state agency, or other source, in order to administer any section in this chapter. Any such information shall be submitted to the city council for adoption.

All new developments located in an area without a base flood elevation specified on the FIRM shall provide the floodplain administrator with a proposed base flood elevation. A base flood elevation shall be obtained using one of two methods from the FEMA publication, FEMA 265, "Managing Floodplain Development in Approximate Zone A Areas - A Guide for Obtaining and Developing Base (100-year) Flood Elevations" dated July 1995, and subsequent amendments and/or revisions thereto.

At the discretion of the floodplain administrator, the applicant may be required to provide a hydrologic and hydraulic engineering analysis that generates base flood elevations and floodway boundaries for the development proposal. The applicant shall be responsible for the peer review costs associated with the floodplain administrator's review of the flood analysis.

D.

Notification of Other Agencies.

In alteration or relocation of a watercourse within the city of Morgan Hill:

a.

Notify adjacent communities and the California Department of Water Resources prior to alteration or relocation;

b.

Submit evidence of such notification to the Federal Emergency Management Agency (FEMA); and

c.

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

2.

Base flood elevation changes due to physical alterations:

a.

Within six months of information becoming available or project completion, whichever comes first, the floodplain administrator shall submit or assure that the permit applicant submits technical or scientific data to FEMA for a letter of map revision (LOMR).

b.

All LOMRs for flood control projects are approved prior to the issuance of building permits. Building permits must not be issued based on conditional letters of map revision (CLOMRs). Approved CLOMRs allow construction of the proposed flood control project and land preparation as specified in the "start of construction" definition.

Such submissions are necessary so that upon confirmation of those physical changes affecting flooding conditions, risk premium rates and floodplain management requirements are based on current data.

3.

Changes in corporate boundaries:

Notify FEMA in writing whenever the corporate boundaries have been modified by annexation or other means and include a copy of a map of the community clearly delineating the new corporate limits.

E.

Documentation of Floodplain Development. Obtain and maintain for public inspection and make available as needed the following:

1.

Certification required by Section 15.80.160.C.1 and Section 15.80.190 (lowest floor elevations);

2.

Certification required by Section 15.80.160.C.2 (elevation or floodproofing of nonresidential and mixed-use structures);

3.

Certification required by Sections 15.80.160.C.3 (wet floodproofing standard);

4.

Certification of elevation required by Section 15.80.180.A (subdivisions and other proposed development standards);

5.

Certification required by Section 15.80.200.B (floodway encroachments);

6.

Reports required by Section 15.80.210 (mudflow standards);

7.

Maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its biennial report submitted to FEMA.

F.

Map Determinations. Make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazard, where there appears to be a conflict between a mapped boundary and actual field conditions. The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in Section 15.80.150.

G.

Remedial Action. Take action to remedy violations of this chapter as specified in Section 15.80.080.

H.

Biennial Report. Complete and submit biennial report to FEMA.

I.

Planning. Assure city's general plan is consistent with floodplain management objectives herein.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

The city council shall hear and decide appeals pursuant to Section 15.80.250 when it is alleged there is an error in any requirement, decision, or determination made by the floodplain administrator in the enforcement or administration of this chapter.

Appeals shall be submitted in writing to the floodplain administrator by an applicant on an official city application form accompanied by a fee, as established by resolution of the city council, within ten calendar days of the determination which is the cause for the appeal. The appeal application shall contain all grounds for the appeal and shall include a statement of the specific facts and all documentation regarding the appeal.

When an appeal has been filed, the floodplain administrator shall prepare a report on the matter, including all of the application materials submitted, and schedule the matter for city council hearing within 90 days of receiving the appeal.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

In all areas of special flood hazards, city permits will not be issued unless plans comply with the following standards:

A.

Anchoring.

1.

All new construction and substantial improvements shall be adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy.

2.

All manufactured homes shall meet the anchoring standards of Section 15.80.190.

B.

Construction Materials and Methods. All new construction and substantial improvement of structures, including manufactured homes, shall be constructed:

1.

With flood resistant materials, and utility equipment resistant to flood damage for areas below the base flood elevation;

2.

Using methods and practices that minimize flood damage;

With electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding; and

4.

If the new construction or substantial improvement is located within zones AH or AO, it shall be constructed so that there are adequate drainage paths around structures on slopes to guide flood waters around and away from proposed structures.

C.

Elevation and Floodproofing. (See Section 15.80.050, Definitions, for "new construction," "substantial damage" and "substantial improvement.")

1.

Residential construction. All new construction or substantial improvements of residential structures shall have the lowest floor, including basement as follows:

a.

In an AO zone, elevated above the highest adjacent grade to a height at least one foot above the depth number specified in feet on the FIRM, or elevated at least three feet above the highest adjacent grade if no depth number is specified.

b.

In an A zone, without base flood elevations specified on the FIRM (unnumbered A zone), elevated at least one foot above the base flood elevation, as determined under Section 15.80.140.C.

c.

In AE, AH and A1-30 zones, elevated at least one foot above the base flood elevation.

Upon the completion of the structure, the elevation of the lowest floor, including basement, shall be certified by a registered civil engineer or licensed surveyor, and verified by the floodplain administrator or city building inspector to be properly elevated. Such certification or verification shall be provided to the floodplain administrator.

2.

Nonresidential and Mixed-use construction. All new construction or substantial improvements of nonresidential or mixed-use structures shall either be elevated to conform with Section 15.80.160.C.1 or together with attendant utility and sanitary facilities:

a.

Be floodproofed below the elevation recommended under Section 15.80.160.C.1 so that the structure is watertight with walls substantially impermeable to the passage of water;

b.

Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and

c.

Be certified by a registered civil engineer or architect that the standards of Section 15.80.160.C.2.a and b are satisfied. Such certification shall be provided to the floodplain administrator.

3.

Flood openings. All new construction and substantial improvements of structures with fully enclosed areas below the lowest floor (excluding basements) that are usable solely for parking of vehicles, building access or storage, and which are subject to flooding, shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwater. Designs for meeting this requirement must meet or exceed the following minimum criteria:

a.

Be certified by a registered civil engineer or architect; or

b.

For non-engineered openings:

1)

Have a minimum of two openings on different sides having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding;

2)

The bottom of all openings shall be no higher than one foot above grade;

3)

Openings may be equipped with screens, louvers, valves or other coverings or devices provided that they permit the automatic entry and exit of floodwater; and

4)

Buildings with more than one enclosed area must have openings on exterior walls for each area to allow floodwater to directly enter.

4.

Manufactured homes.

a.

See Section 15.80.190.

5.

Garages and low-cost accessory structures.

a.

Attached garages.

1)

A garage attached to a residential structure, constructed with the garage floor slab below the base flood elevation, must be designed to allow for the automatic entry of floodwaters. See Section 15.80.160.C.3. Areas of the garage below the base flood elevation must be constructed with flood resistant materials. See Section 15.80.160.B.

2)

A garage attached to a nonresidential structure must meet the above requirements or be dry floodproofed. For guidance on below-grade parking areas, see FEMA Technical Bulletin 6 (Below-Grade Parking Requirements, 1993), and subsequent amendments and/or revisions thereto.

b.

Detached garages and accessory structures.

1)

"Accessory structures" used solely for parking (two-car detached garages or smaller) or limited storage (small, low-cost sheds), as defined in Section 15.80.050, may be constructed such that its floor is below the base flood elevation, provided the structure is designed and constructed in accordance with the following requirements:

i.

Use of the accessory structure must be limited to parking or limited storage;

ii.

The portions of the accessory structure located below the base flood elevation must be built using floodresistant materials;

iii.

The accessory structure must be adequately anchored to prevent flotation, collapse and lateral movement;

iv.

Any mechanical and utility equipment in the accessory structure must be elevated or floodproofed a minimum of one foot above the base flood elevation;

v.

The accessory structure must comply with the floodway encroachment provisions in Section15.80.200; and

vi.

The accessory structure must be designed to allow for the automatic entry of floodwaters in accordance with Section15.80.160.C.3.

2)

Detached garages and accessory structures not meeting the above standards must be constructed in accordance with all applicable standards in Section 15.80.160.

6.

Crawlspace construction. This sub-section applies to buildings with crawlspaces up to two feet below grade. Below-grade crawlspace construction in accordance with the requirements listed below will not be considered basements.

a.

The building must be designed and adequately anchored to resist flotation, collapse, and lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. Crawlspace construction is not allowed in areas with flood velocities greater than five feet per second unless the design is reviewed by a qualified design professional, such as a registered engineer;

b.

The crawlspace is an enclosed area below the base flood elevation and, as such, must have openings that equalize hydrostatic pressures by allowing for the automatic entry and exit of floodwaters. For guidance on flood openings, see FEMA Technical Bulletin 1 (Openings in Foundation Walls and Walls of Enclosures, 2008) and subsequent amendments and/or revisions thereto;

c.

Crawlspace construction is not permitted in V zones. Open pile or column foundations that withstand storm surge and wave forces are required in V zones;

d.

Portions of the building below the base flood elevation must be constructed with materials resistant to flood damage. This includes not only the foundation walls of the crawlspace used to elevate the building, but also any joists, insulation, or other materials that extend below the base flood elevation; and

e.

Any building utility systems within the crawlspace must be elevated a minimum of one foot above base flood elevation or designed so that floodwaters cannot enter or accumulate within the system components during flood conditions.

f.

Requirements for all below-grade crawlspace construction, in addition to the above requirements, to include the following:

1)

The interior grade of a crawlspace below the base flood elevation must not be more than two feet below the lowest adjacent exterior grade (LAG), shown as D in figure 3 of FEMA Technical Bulletin 11 (Crawlspace Construction for Buildings Located in Special Flood Hazard Areas, 2001);

2)

The height of the below-grade crawlspace, measured from the interior grade of the crawlspace to the top of the crawlspace foundation wall, must not exceed four feet at any point, shown as L in figure 3 of FEMA Technical Bulletin 11 (Crawlspace Construction for Buildings Located in Special Flood Hazard Areas, 2001);

3)

There must be an adequate drainage system that removes floodwaters from the interior area of the crawlspace within a reasonable period of time after a flood event, not to exceed seventy-two hours; and

4)

The velocity of floodwaters at the site should not exceed five feet per second for any crawlspace. For velocities in excess of five feet per second, other foundation types should be used.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

A.

All new and replacement water supply and sanitary sewage systems shall be designed to minimize or eliminate:

1.

Infiltration of floodwaters into the systems; and

2.

Discharge from the systems into floodwaters.

B.

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

(Ord. No. 2261 N.S., § 2, 9-27-2017)

15.80.180 - Standards for subdivisions and other proposed development.

A.

All new subdivision proposals and other proposed development, including proposals for manufactured home parks and subdivisions, greater than fifty lots or five acres, whichever is the lesser, shall:

1.

Identify the special flood hazard areas (SFHA) and base flood elevations (BFEs).

2.

Identify the elevations of lowest floors of all proposed structures and pads on the final plans.

3.

If the site is filled above the base flood elevation, the following as-built information for each structure shall be certified by a registered civil engineer or licensed land surveyor and provided as part of an application for a letter of map revision based on fill (LOMR-F) to the floodplain administrator:

a.

Lowest floor elevation.

b.

Pad elevation.

c.

Lowest adjacent grade.

B.

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

C.

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

D.

All subdivisions and other proposed development shall provide adequate drainage to reduce exposure to flood hazards.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

A.

All manufactured homes that are placed or substantially improved, on sites located: (1) Outside of a manufactured home park or subdivision; (2) in a new manufactured home park or subdivision; (3) in an expansion to an existing manufactured home park or subdivision; or (4) in an existing manufactured home park or subdivision upon which a manufactured home has incurred "substantial damage" as the result of a flood, shall:

1.

Within a special flood hazard area (SFHA) on the city's flood insurance rate map, be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated at least one foot above the base flood elevation and be securely fastened to an adequately anchored foundation system to resist flotation, collapse and lateral movement.

B.

All manufactured homes to be placed or substantially improved on sites in an existing manufactured home park or subdivision within a special flood hazard area (SFHA) on the city's flood insurance rate map that are not subject to the provisions of Section 15.80.190.A will be securely fastened to an adequately anchored foundation system to resist flotation, collapse, and lateral movement, and be elevated so that either the:

1.

Lowest floor of the manufactured home is at least one foot above the base flood elevation; or

2.

Manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than thirty-six inches in height above grade.

Upon the completion of the structure, the elevation of the lowest floor including basement shall be certified by a registered civil engineer or licensed land surveyor, and verified by the city building inspector and/or the floodplain administrator to be properly elevated. Such certification and verification shall be provided to the floodplain administrator.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

A.

All recreational vehicles placed on sites within zones AE, AH and A1-30 on the city's flood insurance rate map will either:

1.

Be on the site for fewer than one hundred eighty consecutive days; or

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 security devices, and has no permanently attached additions; or

3.

Meet the permit requirements of Section 15.80.120 of this chapter and the elevation and anchoring requirements for manufactured homes in Section 15.80.190.A.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

Since floodways are an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles, and erosion potential, the following provisions apply:

A.

Until a regulatory floodway is adopted, no new construction, substantial development, or other development (including fill) shall be permitted within zones AE and A1-30, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other development, will not increase the water surface elevation of the base flood more than one foot at any point within the city of Morgan Hill.

B.

Within an adopted regulatory floodway, prohibit encroachments, including fill, new construction, substantial improvement, and other development unless certification by a registered civil engineer is provided demonstrating that the proposed encroachment shall not result in any increase in the base flood levels during the occurrence of the base flood discharge.

C.

If subsections A and B of this section are satisfied, all new construction, substantial improvement, and other proposed new development shall comply with all other applicable flood hazard reduction provisions of Sections 15.80.160, 15.80.170, 15.80.180, 15.80.190, 15.80.195, 15.80.200, 15.80.210, and 15.80.220.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

All proposed developments with engineered fill within a special flood hazard area (SFHA) shall follow the guidelines for ensuring that structures built on fill are reasonably safe from flooding. See FEMA Technical Bulletin 10 (Ensuring that Structures Built on Fill In or Near Special Flood Hazard Areas are Reasonably Safe From Flooding, 2001), and subsequent amendments and/or revisions thereto.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

15.80.210 - Mudslide (i.e., mudflow) prone areas.

A.

The floodplain administrator shall review permits for proposed construction of other development to determine if it is proposed within a mudslide area.

B.

Permits shall be reviewed to determine that the proposed site and improvement will be reasonably safe from mudslide hazards. Factors to be considered in making this determination include but are not limited to the:

1.

Type and quality of soils;

2.

Evidence of groundwater or surface water problems;

3.

Depth and quality of any fill;

4.

Overall slope of the site; and

5.

Weight that any proposed development will impose on the slope.

C.

Within areas which may have mudslide hazards, the floodplain administrator shall require that:

1.

A site investigation and further review be made by persons qualified in geology and soils engineering;

2.

The proposed grading, excavations, new construction, and substantial improvement be adequately designed and protected against mudslide damages;

3.

The proposed grading, excavations, new construction, and substantial improvement not aggravate the existing hazard by creating either on-site or off-site disturbances; and

4.

Drainage, planting, watering, and maintenance not endanger slope stability.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

A.

The floodplain administrator shall require permits for proposed construction and other development within all flood-related erosion-prone areas as known to the community.

B.

Permit applications shall be reviewed to determine whether the proposed site alterations and improvements will be reasonably safe from flood-related erosion and will not cause flood-related erosion hazards or otherwise aggravate the existing hazard.

C.

If a proposed improvement is found to be in the path of flood-related erosion or would increase the erosion hazard, such improvement shall be relocated or adequate protective measures shall be taken to avoid aggravating the existing erosion hazard.

D.

Within flood-related erosion-prone areas, a setback is required for all new development from the ocean, lake, bay, riverfront, or other body of water to create a safety buffer consisting of a natural vegetative or contour strip. This buffer shall be designed according to the flood-related erosion hazard and erosion rate, in relation to the anticipated "useful life" of structures, and depending upon the geologic, hydrologic, topographic, and climatic characteristics of the land. The buffer may be used for suitable open space purposes, such as for agricultural, forestry, outdoor recreation and wildlife habitat areas, and for other activities using temporary and portable structures only.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

The issuance of a variance is for floodplain management purposes only. Insurance premium rates are determined by statute according to actuarial risk and will not be modified by the granting of a variance.

The variance criteria set forth in this section of this chapter are based on the general principle of zoning law that variances pertain to a piece of property and are not personal in nature. A variance may be granted for a parcel of property with physical characteristics so unusual that complying with the requirements of this chapter would create an exceptional hardship to the applicant or the surrounding property owners. The characteristics must be unique to the property and not be shared by adjacent parcels. The unique characteristic must pertain to the land itself, not to the structure, its inhabitants, or the property owners.

It is the duty of the city council to help protect its citizens from flooding. This need is so compelling and the implications of the cost of insuring a structure built below flood level are so serious that variances from the flood elevation or from other requirements in the flood ordinance are quite rare. The long-term goal of preventing and reducing flood loss and damage can only be met if variances are strictly limited. Therefore,

the variance guidelines provided in this chapter are more detailed and contain multiple provisions that must be met before a variance can be properly granted. The criteria are designed to screen out those situations in which alternatives other than a variance are more appropriate.

A.

Variances Requiring City Council Approval. Requests for a variance shall be submitted in writing to the floodplain administrator by an applicant on an official city application form accompanied by all required documentation and a fee, as established by resolution of the city council.

When a variance request has been filed, the floodplain administrator shall prepare a report on the matter, including all of the application materials submitted, and schedule the matter for city council hearing within 90 days of receiving the variance request.

B.

Administrative Variances. The floodplain administrator shall approve or deny an application requesting an administrative variance after receipt of a complete application. Administrative variances may only be granted to existing structures with substantial improvements to allow the structure to deviate from certain higher standards in this chapter that exceed the minimum National Flood Insurance Program standards. Requests for an administrative variance must demonstrate that complying to the higher standards will pose a financial burden and/or will conflict with the city's architectural or aesthetic requirements.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

15.80.245 - Conditions for variances.

A.

Generally, variances may be issued for new construction, substantial improvement, and other proposed new development to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing that the procedures of Sections 15.80.120, 15.80.140, 15.80.160, 15.80.170, 15.80.180, 15.80.190, 15.80.195, 15.80.200, 15.80.205, 15.80.210, and 15.80.220 of this chapter have been fully considered. As the lot size increases beyond one-half acre, the technical justification required for issuing the variance increases.

B.

Variances do not need to be issued for any "accessory structures" (as defined in Section 15.80.050) within a special flood hazard area. All accessory structures shall meet the standards in Section 15.80.160.C.5.

C.

Variances shall not be issued within any mapped regulatory floodway if any increase in flood levels during the base flood discharge would result.

D.

Variances shall only be issued upon a determination that the variance is the "minimum necessary" considering the flood hazard, to afford relief. "Minimum necessary" means to afford relief with a minimum of deviation from the requirements of this chapter. For example, in the case of variances to an elevation requirement, this means that the city council need not grant permission for the applicant to build at grade, or even to whatever elevation the applicant proposes, but only to that elevation which the city council believes will both provide relief and preserve the integrity of the local ordinance.

E.

Any applicant to whom a variance is granted by the city council shall be given written notice over the signature of a city official that:

1.

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 twenty-five dollars for one hundred dollars of insurance coverage; and

2.

Such construction below the base flood level increases risks to life and property. A copy of the notice shall be recorded by the floodplain administrator in the Office of the Santa Clara County Recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land.

The applicant will be required to indemnify and hold harmless the city for any incident which may result from the issuance of the variance.

F.

The floodplain administrator will maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its biennial report submitted to the Federal Emergency Management Agency.

(Ord. No. 2261 N.S., § 2, 9-27-2017)

The city council shall act as the appeal board and shall hear and decide the appeals and non-administrative requests for variances from the requirements in this chapter. The appeal or non-administrative variance request shall be considered by the city council at a public hearing to be held, noticed and conducted in accordance with the provisions in California Government Code Sections 65905(b), and 65091.

Consideration shall be limited to the evidence and matters presented in the first instance to the floodplain administrator and to the specific grounds of the appeal or variance; provided, however, that the city council may, by motion duly passed, elect in its discretion to grant a hearing de novo. The applicant shall have the burden of establishing cause why the action appealed from should be altered, reversed or modified, or why the variance should be granted. The decision of the city council on the appeal or variance request shall be final and shall be effective on the date the decision is rendered.

A.

In passing upon requests for variances, the city council shall consider all technical evaluations, all relevant factors, standards specified in other sections of this chapter, and the:

1.

Danger that materials may be swept onto other lands to the injury of others;

2.

Danger of life and property due to flooding or erosion damage;

3.

Susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the existing individual owner and future owners of the property;

4.

Importance of the services provided by the proposed facility to the community;

5.

Necessity to the facility of a waterfront location, where applicable;

6.

Availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

7.

Compatibility of the proposed use with existing and anticipated development;

8.

Relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

9.

Safety of access to the property in time of flood for ordinary and emergency vehicles;

10.

Expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site; and

11.

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 system, and streets and

bridges.

B.

Variances shall only be issued upon a:

1.

Showing of good and sufficient cause;

2.

Determination that failure to grant the variance would result in exceptional "hardship" (as defined in Section 15.80.050 of this chapter) to the applicant; and

3.

Determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create a nuisance (as defined in Section 15.80.050 - see "Public safety and nuisance"), cause fraud or victimization (as defined in Section 15.80.050) of the public, or conflict with existing local laws or ordinances.

C.

Variances may be issued for new construction, substantial improvements, and other proposed new

development necessary for the conduct of a functionally dependent use provided that the provisions of subsections A through D of this section are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and does not result in additional threats to public safety and does not create a public nuisance.

D.

Upon consideration of the factors of Section 15.80.245.A and the purposes of this chapter, the city council may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter, and as permitted by California Government Code Section 65909.

(Ord. No. 2261 N.S., § 2, 9-27-2017)