Chapter 9.98 — CSS HABITAT LOSS PERMITS

Sec. 9.98.100. - Appeals to planning commission.

Any interested party excepting to the denial, conditional approval or unconditional approval of a CSS habitat loss permit by the director of community development may appeal in writing to the planning commission by filing with the city clerk a written notice of such appeal.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.98.110. - Notice of appeal; time limit; contents.

(a)

No notice of appeal shall be acted upon unless filed within ten days after mailing or posting of notice of the determination of the director of community development approving or denying, in whole or in part, a CSS habitat loss permit. For the permit applicant, notice shall be mailed, by registered, certified or first-class mail, and shall be deemed complete at the time of such mailing. For all persons other than the permit applicant, notice shall be posted at City Hall and shall be deemed complete at the time of such posting.

(b)

The notice of appeal shall set forth:

(1)

The specific action appealed from;

(2)

The specific grounds of the appeal; and

(3)

The relief or action sought from the planning commission.

If any notice of appeal fails to set forth any information required by this section, the city clerk shall return the same to the appellant with a statement of the respects in which it is deficient, and the appellant shall

thereafter be allowed five days in which to perfect and refile the notice of appeal.

(c)

The written notice of appeal from the determination of the director of community development approving or denying, in whole or in part, a CSS habitat loss permit shall be accompanied by such fee as may have been established by resolution of the city council.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.98.120. - Appeals; hearings; notices.

Upon the timely filing of a notice of appeal in proper form, the director of community development shall schedule the matter promptly upon the planning commission agenda at a subsequent regular meeting and shall cause notice thereof to be given to the appellant not less than five days prior to such hearing, unless such notice is waived in writing by the appellant. The director of community development shall also cause a copy of the notice of appeal to be transmitted to the planning commission.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.98.130. - Conduct of hearings.

At the time of consideration of the appeal by the planning commission the appellant shall be limited to a presentation on the specific grounds of appeal and matters set forth in his notice of appeal and shall have the burden of establishing cause why the decision appealed from should be altered, reversed or modified. The planning commission may continue the matter from time to time, and at the conclusion of its consideration may affirm, reverse or modify the decision appealed from and may take any action which might have been legally taken in the first instance by the official or body from whose action the appeal has been taken.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

The appellant or the director of community development may appeal the decision of the planning commission regarding a CSS habitat loss permit to the city council by filing with the city clerk a written notice of such appeal.

(b)

The requirements for notice, time limits and content of appeal shall be the same as those set forth in section 9.98.110, except that any reference to "planning commission" shall be deemed a reference to "city council" and any reference to "director of community development" shall be deemed a reference to "planning commission."

(c)

Upon the timely filing of a notice of appeal in proper form, the city clerk shall schedule the matter promptly upon the city council agenda at a subsequent regular meeting and shall cause notice thereof to be given to the appellant not less than five days prior to such hearing, unless such notice is waived in writing by the appellant. The city clerk shall also cause a copy of the notice of appeal to be transmitted to the planning commission and to the director of community development.

(d)

The hearing on the appeal shall be conducted as set forth in section 9.98.130, except that any reference to "planning commission" shall be deemed a reference to "city council." In ruling on the appeal, the finding and action of the city council shall be final and conclusive in the matter.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

CHAPTER 9.100. - FLOODPLAIN MANAGEMENT

DIVISION 1. - STATUTORY AUTHORIZATION, FINDINGS OF FACT, PURPOSE AND METHODS

Sec. 9.100.002. - Statutory authorization.

This chapter is authorized by virtue of Government Code §§ 65302, 65560 and 65800, which confer upon local governments the authority to adopt regulations designed to promote the public health, safety, and general welfare.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.100.004. - Findings of fact.

(A)

The flood hazard areas of the City of Mission Viejo 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)

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

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.100.006. - Statement of purpose.

The purpose of this article is to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood conditions in specific areas, by provisions designed to:

(1)

Protect human life and health;

(2)

Minimize expenditure of public money for costly flood control projects;

(3)

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

(4)

Minimize prolonged business interruptions;

(5)

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

(6)

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

(7)

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

(8)

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

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.100.008. - Methods of reducing flood losses.

In order to accomplish its purposes, this article includes methods and provision for:

(1)

Restricting or prohibiting 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;

(2)

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

(3)

Controlling the alteration of natural floodplains, stream channels, and natural protective barriers, which help accommodate or channel flood waters;

(4)

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

(5)

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

(Ord. No. 98-193, §§ 1—4, 10-19-98)

DIVISION 2. - DEFINITIONS

Sec. 9.100.200. - Definitions.

The purpose of this division is to provide clear and easily understood definitions for the terms used in this chapter. Unless otherwise clearly indicated from their context, the terms defined in this chapter shall be defined as follows:

Appeal. A request for a review of the floodplain administrator's interpretation of any provision of this ordinance.

Area of special flood hazard. See "Special Flood Hazard Area."

Base flood. The flood having a one percent chance of being equalled or exceeded in any given year (also called the "100-year flood").

Basement. Any area of the building having its floor subgrade (below ground level) on all sides.

Development. Any manmade 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.

Flood or flooding. A general and temporary condition of partial or complete inundation of normally dry land areas from (1) the overflow of flood waters, (2) the unusual and rapid accumulation or runoff of surface waters from any source, and/or (3) the collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels 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 flash flood or an abnormal tidal surge, or by some similarly unusual and unforeseeable event which results in flooding as defined in this definition.

Flood boundary and floodway map. 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. The official report provided by the Federal Insurance Administration that includes flood profiles, the FIRM, the flood boundary and floodway map, and the water surface elevation of the base flood.

Floodplain or flood-prone area. Any land area susceptible to being inundated by water from any source (see definition of "Flooding").

Floodplain administrator. The director of public works.

Floodplain management. The operation of an overall program of corrective and preventive measures for reducing flood damage, including but not limited to emergency preparedness plans, flood control works and floodplain management regulations.

Floodplain management regulations. Zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as floodplain ordinance, grading ordinance and erosion control ordinance) and other applications of police power, including state or local regulations, which provide standards for the purpose of flood damage prevention and reduction.

Floodproofing. Any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents.

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

Functionally dependent use. 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 shop building and ship repair facilities, but does not include long-term storage or related manufacturing facilities.

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

Lowest floor. The lowest floor of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor; provided that such enclosure is not built so as to render the structure in violation of the applicable nonelevation design requirements of this ordinance.

Manufactured home. 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 connected to the required utilities. For floodplain management purposes the term "manufactured home" also includes park trailers, travel trailers and other similar vehicles placed on a site for greater than 180 consecutive days.

Manufactured home park or subdivision. A parcel (or contiguous parcels) of land divided into two or more manufactured home lots for sale or rent.

Mean sea level. For purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929 or other datum, to which base flood elevations shown on a community's flood insurance rate map are referenced.

New construction. For floodplain management purposes, structures for which the "start of construction" commenced on or after the effective date of a floodplain management regulation adopted by this community.

One-hundred-year flood or 100-year flood. A flood which has a one percent annual probability of being equalled or exceeded. It is identical to the "base flood," which will be the term used throughout this ordinance.

Person. An individual or his agent, firm, partnership, association or corporation, or agent of the aforementioned groups, or this state or its agencies or political subdivisions.

Remedy a violation. 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 the ordinance or otherwise deterring future similar violations, or reducing federal financial exposure with regard to the structure or other development.

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

Special flood hazard area (SFHA). An area having special flood or flood-related erosion hazards, and shown on an FHBM or FIRM as Zone A, A1-30, AE, or A99. Start of construction. The date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement, or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filing; 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.

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

Substantial improvement. Any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either:

(1)

Before the improvement or repair is started; or

(2)

If the structure has been damaged and is being restored, before the damage occurred.

For the purposes of this definition, "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not, however, include either:

(1)

Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions; or

(2)

Any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places.

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

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

(Ord. No. 98-193, §§ 1—4, 10-19-98)

DIVISION 3. - GENERAL PROVISIONS

Sec. 9.100.310. - Application of this chapter to particular areas within the city.

This chapter shall apply to all areas of special flood hazards within the jurisdiction of the City of Mission Viejo.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.100.320. - Basis for establishing the areas of special flood hazard.

The areas of special flood hazard identified by the Federal Emergency Management Agency or the Federal Insurance Administration in the latest effective Flood Insurance Rate Map dated February 5, 1992, and all subsequent revisions is hereby adopted by reference and declared to be a part of this chapter. This flood insurance study is on file at City Hall, City of Mission Viejo, Mission Viejo, California. This flood insurance study 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.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

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

this chapter by failure to comply with any of its 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. 98-193, §§ 1—4, 10-19-98)

Sec. 9.100.340. - Abrogation and greater restrictions.

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. 98-193, §§ 1—4, 10-19-98)

Sec. 9.100.350. - Interpretation.

In the interpretation and application of this chapter, all provisions shall be:

(1)

Considered as minimum requirements;

(2)

Liberally construed in favor of the governing body; and

(3)

Deemed neither to limit nor repeal any other powers granted under state statutes.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.100.360. - Warning and disclaimer of liability.

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 manmade 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 article shall not create liability on the part of the City of Mission Viejo, any officer or employee thereof, or the Federal Insurance Administration, for any flood damages that result from reliance on this chapter or any administrative decision lawfully made hereunder.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

DIVISION 4. - ADMINISTRATION

Sec. 9.100.410. - Establishment of development permit.

A development permit shall be obtained before construction or development begins within any area of special flood hazards established in section 9.100.320. Application for a development permit shall be made

on forms furnished by the floodplain administrator and may include, but not be limited to: plans in duplicate drawn to scale showing the nature, location, dimensions, and elevation of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities; and the location of the foregoing. Specifically, the following information is required:

(1)

Proposed elevation in relation to mean sea level of the lowest floor (including basement);

(2)

Proposed elevation in relation to mean sea level to which any structure will be floodproofed;

(3)

All appropriate certifications listed in section 9.100.430 subsection (4); and

(4)

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

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.100.420. - Designation of the floodplain administrator.

The director of public works is hereby appointed to administer and implement this ordinance by granting or denying development permits in accordance with its provisions.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.100.430. - Duties and responsibilities of the floodplain administrator.

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

(1)

Permit review.

a.

Review all development permits to determine that the permit requirements of this ordinance have been satisfied;

b.

All other required state and federal permits have been obtained;

c.

The site is reasonably safe from flooding.

d.

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 ordinance, "adversely affects" means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will not increase the water surface elevation of the base flood more than one foot at any point.

(2)

Use of other base flood data. When base flood elevation data has not been provided in accordance with section 9.100.320, the floodplain administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal, state or other source, in order to administer Division 5 of this chapter. Any such information shall be submitted to the city council for adoption.

(3)

[Alteration or relocation.] Whenever a watercourse is to be altered or relocated:

a.

Notify adjacent communities and the California Department of Water Resources prior to such alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Insurance Administration;

b.

Require that the flood carrying capacity of the altered or relocated portion of said watercourse is maintained.

(4)

Obtain and maintain for public inspection and make available as needed:

a.

The certification required in section 9.100.510, subsection (3)a. (flood elevations);

b.

The certification required in section 9.100.510, subsection (3)b.(3) (elevation or floodproofing of nonresidential structures);

c.

The certification required in section 9.100.510, subsection (3)c.(1) or 9.100.510, subsection (3)c.(2) (wet floodproofing standard);

d.

The certified elevation required in section 9.100.530, subsection (b) (subdivision standards);

e.

The certification required in section 9.100.550, subsection (1) (floodway encroachments).

(5)

Make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazards (for example, 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 Division 6 of this chapter.

(6)

Take action to remedy violations of this chapter as specified in section 9.100.330 herein.

(Ord. No. 98-193, §§ 1—4, 10-19-98)