Chapter 28.12 — VARIANCE PROCEDURE

The variance criteria set forth in this section of the ordinance 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 ordinance 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 ordinance 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. 985 § 1, 2001)

• 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 title, 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,

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City of Palm Desert, CA § 28.12.020

PALM DESERT CODE

§ 28.12.030

and water system, and streets and bridges.

• B. Any applicant to whom a variance is granted shall be given written notice over the signature of a community 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 twentyfive dollars for one hundred dollars 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 floodplain administrator in the office of the Riverside County recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land.

• C. 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 Insurance Administration, Federal Emergency Management Agency.

• (Ord. 985 § 1, 2001)

• 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 Chapters 28.08 and 28.10 of this title have been fully considered. As the lot size increases beyond one-half 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 Chapter 28.04 of this title) 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 title. For example, in the case of variances to an elevation requirement, this means the governing body 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. 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 Chapter 28.04 of this title) to the applicant; and

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City of Palm Desert, CA

FLOOD DAMAGE PREVENTION

§ 28.12.030

§ 28.12.030

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 Chapter 28.04 — see "public safety or nuisance"), cause fraud or victimization, (as defined in Chapter 28.04), of the public, or conflict with existing local laws or ordinances.

• F. 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 A through E 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.

• G. Upon consideration of the factors of Section 28.12.020A and the purposes of this title, the city council may attach such conditions to the granting of variances as it deems necessary to further the purposes of this title.

• (Ord. 985 § 1, 2001)

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City of Palm Desert, CA