Modesto Municipal Code Art. 6 Variance Procedure

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 article 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.

(Ord. 3430-C.S., § 1, effective 1-4-07)

(a) A complete application for a variance shall at a minimum contain:

(1) An application form as prescribed by the Floodplain Administrator;

(2) A development or site plan and any elevations, perspectives or floor plans necessary for evaluation of the variance application as determined by the Floodplain Administrator;

(3) A complete statement of the grounds on which the application for a variance is based, including a showing that the application complies with all of the conditions set forth in Section 9-4.603, and applicant's basis for asserting that each of the findings set forth in Section 9-4.604 may be made;

(4) Other information that the Council or the Floodplain Administrator may deem necessary to evaluate the proposed application for variance;

(5) A filing fee as established by resolution of the City Council.

(b) All plans, elevations, perspectives or floor plans shall conform to plot plan standards as published by the Chief Building Official.

(c) The application for a variance shall be heard by the City Council at a public hearing duly noticed in accordance with California Government Code Section 65091. The notice of hearing shall also be distributed as follows:

(1) Mailing of a notice to the owner or authorized agent of the property owner and the project applicant. Mailing of a notice to every property owner as shown on the updated equalized assessment roll of the County of Stanislaus, who owns property, any part of which is within three hundred (300) feet of the property involved. The notice shall be deposited in the United States mail not less than ten (10) days prior to the hearing.

(2) Additional means of distribution may be used at the discretion of the Secretary or City Clerk. Additional means of distribution may include mailing of notices not otherwise required or posting notices in the immediate area of the property.

(d) The applicant for a variance shall have the burden of proof of showing that the application complies with all of the conditions set forth in Section 9-4.603, that all of the findings set forth in Section 9-4.604 can be made and that the variance is consistent with the purpose and intent of this chapter.

(e) After consideration of the factors set forth in subsection (a) of this section and the purposes of this chapter, and upon the making of all findings as set forth in Section 9-4.603, the City Council may grant a variance and attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter, and to protect the public health, safety and welfare. A copy of the resolution shall be mailed to the applicant. The action of the City Council shall be final.

(f) If an application for a variance is denied an application for the same variance cannot be filed until one (1) year after date of denial. The Council or Board may waive the one (1) year wait if they feel circumstances have changed substantially and the interest of the general public will not be adversely affected.

(g) The permanent file of a variance application shall at a minimum contain the application, minutes of all public meetings or hearings, copies of all resolutions, and copies of all public notices and affidavits of their mailing, posting, or publishing. The permanent file of a variance application shall be maintained by the Floodplain Administrator.

(Ord. 3430-C.S., § 1, effective 1-4-07)

(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 (½) acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, provided that the procedures of Articles 4 and 5 have been fully considered. As the lot size increases beyondone-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 2 upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.

(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, 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 shall be given written notice by the Floodplain Administrator 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 ($25.00) for one hundred dollars ($100.00) 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 Stanislaus County Recorder so that it appears in the chain of title of the affected parcel of land.

(f) The Floodplain Administrator will maintain a record of all variance actions, including justification for their issuance, and report such variances issued to the Federal Emergency Management Agency.

(Ord. 3430-C.S., § 1, effective 1-4-07)

(Ord. No. 3730-C.S., § 2, effective 8-12-21)

(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 floodwaters 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" 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 "public safety and nuisance," cause "fraud and victimization" of the public, or conflict with existing local laws or ordinances.

(c) 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 Sections 9-4.603(a) through 9-4.603(d) are satisfied and that the structure or other development will be protected by methods that minimize flood damages during the base flood, the granting of the variance will not result in additional threats to public safety, or create a public nuisance.

(Ord. 3430-C.S., § 1, effective 1-4-07)

(a) After a public hearing held in accordance with Section 9-4.602(c), the Council may modify or revoke any variance on one (1) or more of the following grounds:

(1) The approval was obtained by fraud or intentional misrepresentation;

(2) The use for which approval was granted is not being exercised or has ceased to exist;

(3) The variance is being exercised contrary to or without compliance with the conditions of approval or in violation of other applicable laws or regulations; or

(4) The use for which approval was granted is being exercised so as to be detrimental to the public health, safety or welfare, or so as to constitute a nuisance.

(b) The resolution of the City Council modifying or revoking a variance shall be final. A copy of the resolution shall be mailed to the applicant and shall be part of the permanent file of the variance application and shall be maintained as provided in Section 9-4.602(f).

(Ord. 3430-C.S., § 1, effective 1-4-07)