Kern County Municipal Code Art. IV Variance Procedure

The variance criteria set forth in this article are based on the general principle of zoning law that variances pertain to a piece of property and are not personal in nature. In general, a properly issued variance is 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 Board of Supervisors of Kern County and the floodplain administrator 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 other requirements in this chapter are quite rare. 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.

(Ord. No. G-9359, § 17, 11-4-25)

The floodplain administrator is empowered to grant variances from the terms of one (1) or more regulations in this chapter in the following cases:

A. Variances may be issued for new construction, substantial improvements and other proposed new development to be erected on a lot of one-half (½) acre or less in size which is contiguous to and surrounded by lots with existing structures constructed below the regulatory flood elevation, providing that the procedures of Articles II and III of this chapter have been fully considered. As lot size increases beyond one-half (½) acre, the technical justification required for issuing the variance increases.

B. Variances may be issued for the repair or rehabilitation of historic structures (as defined in Article I of this chapter) upon 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 of the structure.

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

D. Variances may be issued for new construction, substantial improvement and other proposed new development necessary for the conduct of a functionally dependent use provided that the provisions of Subsections 17.48.370(A) through (C) and Subsection 17.48.390(B) are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

E. Variances may be issued for the construction or substantial improvement of agricultural structures that are not elevated or dry floodproofed, provided the requirements of this section are satisfied and:

1. A determination has been made that the proposed agricultural structure:

a. Is used exclusively in connection with the production, harvesting, storage, raising, or drying of agricultural commodities and livestock, or storage of tools or equipment used in connection with these purposes or uses, and will be restricted to such exclusive uses.

b. Has low damage potential.

c. Does not increase risks and pose a danger to public health, safety, and welfare if flooded and contents are released, including but not limited to the effects of flooding on manure storage, livestock confinement operations, liquefied natural gas terminals, and production and storage of highly volatile, toxic, or water-reactive materials.

d. Complies with the wet floodproofing construction requirements of Section 17.48.370(E)(2).

2. Wet floodproofing construction requirements.

a. Anchored to resist flotation, collapse, and lateral movement.

b. When enclosed by walls, walls have flood openings that comply with the flood opening requirements of Section 17.48.270(D).

c. Flood damage-resistant materials are used below the base flood elevation.

d. Mechanical, electrical, and utility equipment are elevated above the base flood elevation.

Upon consideration of the factors of Subsection 17.48.390(A) and the purposes of this chapter the floodplain administrator may impose other reasonable conditions on any variance mentioned in this section as deemed necessary to further the purposes of this chapter.

(Ord. No. G-9359, § 17, 11-4-25)

For the purpose of this article, certain terms and words are defined as provided in this section:

A. "Applicant" means a person who has applied for a development permit or for approval of a subdivision map, parcel map, or variance.

B. "Application" means an application for a variance under this section.

C. "Board" means the Board of Supervisors of Kern County.

D. "Clerk" means the clerk of the Board.

E. "Fraud and victimization" means that the variance granted must not cause fraud on or victimization of the public. In examining this requirement, the floodplain administrator will consider the fact that every newly constructed building adds to government responsibilities and remains a part of the community for fifty (50) to one hundred (100) years. Buildings that are permitted to be constructed below the elevation requirements of Section 17.48.260 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.

F. "Hardship" means the hardship that would result from a failure to grant the requested variance. The floodplain administrator 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 exceptional hardships. All of these problems can be resolved through other means, without granting a variance. This is so even if the alternative means are more expensive or complicated than building with a variance, or if they require the property owner to put the parcel to a different use than originally intended, or to build elsewhere.

G. "Minimum necessary" means the minimum necessary to afford relief to the applicant of a variance with a minimum deviation from the requirements of this chapter. In the case of variances to an elevation requirement, this means the floodplain administrator need not grant permission for the applicant to build at grade, for example, or even to whatever elevation the applicant proposes, but only to that level that the floodplain administrator believes will both provide relief and preserve the integrity of this chapter.

H. "Public safety" and "nuisances" means the granting of a variance must not result in additional threats to public safety or create nuisances. This ordinance is intended to help protect the health, safety, well-being, and property of local citizens. This is a long range community effort made up of a combination of approaches such as adequate drainage systems, warning and evacuation plans, and keeping new property above the flood levels. These long-term goals can only be met if exceptions to the requirements of this chapter are kept to a bare minimum.

I. "Responsible authority" means the officer or body with the duty of issuing any permit or rendering any approval required under this chapter which is subject to the regulations as to which a variance is sought.

(Ord. No. G-9359, § 17, 11-4-25)

A. In passing upon an application for a variance, the floodplain administrator shall consider all technical evaluations, all relevant factors, 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 of life and property due to flooding or erosion danger;

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

5. The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

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

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

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

9. The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters 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 system, and streets and bridges.

B. The applicant for a variance shall show at the hearing thereon and before granting a variance, the floodplain administrator shall find:

1. That there is a good and sufficient cause for variance.

2. That failure to grant the variance would result in exceptional hardship to the applicant.

3. That the granting of such variance and any construction, improvement, development, or other action which may be undertaken under it will not:

a. Result in any increased flood heights, additional threats to the public safety, or extraordinary public expense;

b. Create any nuisance;

c. Cause fraud on or victimization of the public; or

d. Conflict with any other ordinance or regulation of the county of Kern.

4. That the extent of the variance is the minimum necessary to afford relief, considering the flood hazard.

C. It is recognized that, under Section 60.6(a)(6) of the National Flood Insurance Program Regulations, the county is required to make a biennial report, or as requested by the Federal Insurance Administrator, and report therein any variances which have been granted, and that said Administrator is empowered to review the findings justifying the granting of variances, and that if said administrator determines that such variances show a pattern inconsistent with the objectives of sound floodplain management, said administrator may take action under Section 59.24(b) of said Regulations to suspend eligibility of this county from the National Flood Insurance Program.

D. It is also recognized that, under Section 60.6(a) of said Regulations, the issuance of a variance is only for the purposes of application of the floodplain management regulations in this chapter, and that flood insurance rates are determined by statute according to actuarial risk and will not be modified by the granting of a variance, and that construction of a structure below the regulatory flood elevation, or otherwise inconsistently with the objectives of sound floodplain management, may result in flood insurance premium rates on such structure beyond the means of its owner, which are not modified by the granting of a variance.

E. For the reasons mentioned in subsections (C) and (D) above, it shall be the policy of Kern County to give the provisions of this chapter a conservative construction and application, with the objective of avoiding, wherever feasible, the granting of any variance which would be inconsistent with the objectives of sound floodplain management or which may result in rendering residents of Kern County ineligible for flood insurance or which might place flood insurance beyond the means of the owner of a structure constructed under such variance.

(Ord. No. G-9359, § 17, 11-4-25)

A. If an application for a variance is filed before the responsible authority has acted on a related application for development permit, subdivision map, or parcel map, it shall not make a decision thereon nor issue such permit or approve such map until the floodplain administrator has made his determination with respect to the variance. By filing such application for variance, the applicant shall be deemed to have consented to extension of the time within which action is required to be taken on such application for permit or map for a period of at least thirty (30) days from and after the date of the floodplain administrator's determination with respect to the variance.

B. An application for a variance may be filed prior to the filing of an application for a development permit or submission of proposed subdivision map or parcel map, but in such case, the applicant for the variance shall furnish with the application for variance such information as the floodplain administrator may deem sufficient, in his reasonable discretion, to permit him to fully understand the application for variance and its effect in the context of the proposed development or subdivision, including, but not confined to, environmental information.

C. If the floodplain administrator determines that insufficient information has been provided to comply with any rules adopted pursuant to subsection (D) below or to permit him to fully understand the application for variance and its effect in the context of the proposed development or subdivision (including, but not confined to, its environmental effect), he is empowered to make an order requiring the applicant to furnish such information and to delay or continue the hearing until a reasonable time after such information has been furnished.

D. The floodplain administrator may, from time to time, adopt reasonable rules relating to the information to be furnished by the applicant for a variance.

(Ord. No. G-9359, § 17, 11-4-25)

An application shall be filed and processed in the following manner:

A. An application for a variance shall be filed with the floodplain administrator and shall be in writing on such form as the floodplain administrator may, from time to time, approve.

B. An application shall be signed by the applicant or his authorized agent.

C. The application shall identify the regulation or regulations as to which the variance is applicable and shall briefly state the facts which give rise to a good and sufficient cause for the variance. The application shall set forth the address for purposes of giving notice and the telephone number of the applicant or his authorized agent.

(Ord. No. G-9359, § 17, 11-4-25)

A. The floodplain administrator shall fix a date and time for hearing on such variance which shall be within fifteen (15) days after the filing of such application unless the applicant consents to a delay or continuance.

B. The floodplain administrator shall cause notice to be given of the date, time, and place of the hearing on such application for variance at least one (1) week prior thereto as follows:

1. By mailing a copy of such notice by ordinary U.S. mail to the address set forth in the application;

2. By mailing a copy of such notice to any person who has requested it and who has furnished the floodplain administrator with a stamped, pre-addressed envelope for such purpose;

3. By sending a copy of such notice to any other responsible authority; and

4. By posting a copy of such notice on the bulletin board adjacent to the Chambers of the Board.

C. As an alternative to the notice required by subparagraphs (1), (2), or (3) of this section, the floodplain administrator may give such notice by causing personal delivery of a copy to the person entitled thereto not less than seventy-two (72) hours before the time fixed for hearing.

(Ord. No. G-9359, § 17, 11-4-25)

A. The floodplain administrator shall hear the application for variance and consider evidence presented by the applicant, the responsible authority, and any interested person at the time and place fixed in the notice for hearing.

B. With consent of the applicant, the floodplain administrator may continue the hearing from time to time.

C. Within fifteen (15) days after conclusion of the hearing, the floodplain administrator shall declare his findings and decision and shall promptly transmit and post copies of same in the manner provided for notices in Subsection 17.48.420(B) above.

D. If the variance is granted, the floodplain administrator shall also send to the applicant, in the manner mentioned in Section 17.48.420(C) above, a notice over the signature of the floodplain administrator that:

1. The issuance of a variance to construct a structure below the regulatory flood elevation will result in increased premium rates for flood insurance up to amounts as high as twenty-five dollars ($25.00) for one hundred dollars ($100.00) of insurance coverage;

2. Such construction below the regulatory flood elevation increases risk to life and property; and

3. Any other relevant information prescribed by the floodplain administrator; and

4. A copy of such notice shall be maintained with the record of the variance action mentioned in paragraph (E) following.

5. A copy of such notice shall be recorded by the floodplain administrator in the office of the Kern County Recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land.

E. The floodplain administrator shall maintain a record of all variance actions by the floodplain administrator or by the Board of Supervisors in connection with any appeal to it relating to a variance. Such record shall include the findings or other justifications for issuance of each variance. The floodplain administrator shall also report each variance issued in the annual report submitted to the Federal Insurance Administration, Federal Emergency Management Agency.

F. Action or non-action of the floodplain administrator on an application for variance shall be subject to appeal under Article V.

(Ord. No. G-9359, § 17, 11-4-25)