Article 5 — Variances and Appeals.

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 the ordinance codified in 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. The need for flood protection 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 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. 04-08 § 2 Exh. A (part))

The City Engineer may grant a variance from the requirements of this chapter for new construction, substantial improvements and for other development necessary for the conduct of a functionally dependent use in accordance with the following procedures. (Ord. 04-08 § 2 Exh. A (part))

Any person who is dissatisfied with the decision of the City Engineer on any application for a development permit or variance may, within fifteen (15) calendar days after the action is taken, file an appeal to the City Council. The appeal shall be filed with the Department of Planning and shall be accompanied by a nonrefundable filing fee in an amount prescribed by resolution of the City Council. The appeal shall be heard by the City Council within thirty (30) days after the filing of the appeal; provided that the Council may continue the hearing from time to time. The City Clerk shall set the time and place for the hearing and shall cause public notice of the hearing to be mailed to the owners of all property within three hundred (300) feet of the subject property and to the applicant for the permit and the appellant.

The City Engineer shall transmit to the City Council all maps, records, papers and files which constitute the record in the action from which the appeal was taken. The Council shall hear and decide the matter de novo. The decision of the City Council is final. (Ord. 04-08 § 2 Exh. A (part))

A variance from the requirements of this chapter may be granted if written findings are made to support each of the following standards: A. Exceptional Hardship. Failure to grant the flood hazard variance would result in exceptional hardship to the applicant. "Hardship" for this purpose means the exceptional hardship that would result from a failure to grant the requested variance. The City Council of the city of Orinda 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. B. No Increased Risk. Granting a flood hazard variance (with conditions if appropriate) will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create a nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances. C. Minimum Necessary. The flood hazard 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 the City Engineer 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 Engineer believes will both provide relief and preserve the integrity of the local ordinance. D. Other Factors. In making findings relating to the standards listed in this section, the City Engineer shall consider the following factors: 1. The danger that materials may be swept onto other lands to the injury of others; 2.

The danger to life and property due to flooding or erosion damage; 3. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; 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 times of flood for ordinary and emergency vehicles; 9. The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters, if applicable, 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; and The City Engineer may attach such conditions to the granting of flood hazard variances as are necessary to further the purposes of this chapter. (Ord. 04-08 § 2 Exh. A (part))

A. Floodway Prohibition. A flood hazard variance shall not be issued within any adopted regulatory floodway unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with

standard engineering practice that the proposed encroachment would not result in any increase in flood levels within the community during the occurrence of the base flood discharge. B. Exception for Certain Historic Structures. A variance from the requirements of this chapter may be issued for the reconstruction, rehabilitation or restoration of a historic 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 4. Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either by an approved state program as determined by the Secretary of the Interior or directly by the Secretary of the Interior in states without approved programs. C. Existing Construction. A flood hazard variance may be issued for new construction and substantial improvements 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 the standards of Section 18.05.280 of this chapter are met. As the lot size increases beyond the one-half acre, the technical justification required for issuing the flood hazard variance increases. (Ord. 04-08 § 2 Exh. A (part))

A. Notice. An applicant to whom a flood hazard variance is granted shall be given written notice 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. It is recommended that a copy of the notice shall be recorded by the City Engineer in the office of the Contra Costa County Recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land. B. Indemnification. As a condition of approval of a flood hazard variance, a property owner shall enter into and record against the property an agreement holding the city of Orinda harmless in the event of flood or erosion damage. The agreement shall run with the land, bind successors in interest and be in a form acceptable to the City Attorney. (Ord. 04-08 § 2 Exh. A (part))

The City Engineer 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 Insurance Administration, Federal Emergency Management Agency. (Ord. 04-08 § 2 Exh. A (part))

The City Engineer shall maintain the records of appeal actions and report any flood hazard variances to the Federal Insurance Administration upon request. (Ord. 04-08 § 2 Exh. A (part))

The standards of 44 CFR Ch. 1, Subpart A, Section 60.(3)(b) shall apply within all the following zones on the Orinda flood insurance rate map: A1-30, AE, A, AH and AO. (Ord. 04-08 § 2 Exh. A (part))