Salinas Municipal Code Div. IV Appeal—Variance Procedure

(a) "Fraud and victimization" means that the variance granted must not cause fraud on or victimization of the public. In examining this requirement, the city will consider the fact that every newly constructed building adds to government responsibilities and remains a part of the community for fifty to one hundred years. Buildings that are permitted to be constructed below the base flood elevations are subjected 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 that can be insured only at very high flood insurance rates.

(b) "Hardship" means the exceptional hardship that would result from a failure to grant the requested variance. The city 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 disapproval of one's neighbors likewise does not 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 difference use than originally intended.

(c) "Public safety and nuisance" means that the granting of a variance must not result in anything which is injurious to safety or health of the surrounding community or neighborhood, or any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin.

(Ord. No. 2671(NCS), § 2, 9-12-2023)

The variance criteria set forth in this section of 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 article 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 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 will be quite rare. Therefore, the variance guidelines provided in this article are more detailed and contain multiple provisions that must be met before a variance can be properly considered or granted. The criteria are designed to screen out those situations in which alternatives other than a variance are more appropriate.

(Ord. No. 2671(NCS), § 2, 9-12-2023)

The City Council shall base its determination on technical justifications submitted by applicants, the considerations and conditions set forth in this article, the comments and recommendations of the Floodplain Administrator and Building Official, as applicable, and has the right to attach such conditions to variances as it deems necessary to further the purposes and objectives of these regulations and the building code.

(Ord. No. 2671(NCS), § 2, 9-12-2023)

(a) The appeals board shall hear and decide appeals and requests for variances from the requirements of this article.

(b) The board of appeals shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the floodplain administrator in the enforcement or administration of this article.

(c) In passing upon such applications, the board of appeals shall consider all technical evaluations, all relevant factors, standards specified in other sections of this article, 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 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 necessity to the facility of a waterfront location, where applicable;

(6) The availability of alternative locations, for the proposed use which are not subject to flooding or erosion damage;

(7) The compatibility of the proposed use with existing and anticipated development;

(8) The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

(9) The safety of access to the property in times of flood for ordinary and emergency vehicles;

(10) The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; and

(11) 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.

(d) 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 twenty-five dollars for one hundred dollars 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 county of Monterey recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land.

(e) Generally, variances 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, provided [subsections] (1) through (11) in subsection (c) of this section have been fully considered. As the lot size increases beyond the one-half acre, the technical justification required for issuing the variance increases.

(f) Upon consideration of the factors of subsection (c) of this section and the purposes of this article, the board of appeals may attach such conditions to the granting of variances as it deems necessary to further the purposes of this article.

(g) The floodplain administrator shall maintain a record of all appeal actions, 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. No. 2671(NCS), § 2, 9-12-2023)

(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 Sections 9-06.16 and 9-06.54 of this article 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 Section 9-06.06(qq) 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. When the proposed work precludes the structure's continued designation as a historic building, a variance shall not be granted and the structure and any repair, improvement, and rehabilitation shall be subject to the requirements of the building code.

(c) Variances shall not be issued within any mapped regulatory floodway if any significant 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 article. For example, in the case of variances to an elevation requirement, this means the city 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 believes will both provide relief and preserve the integrity of the local ordinance.

(e) Variances shall only be issued upon:

(1) A showing of good and sufficient cause;

(2) A determination that failure to grant the variance would result in exceptional "hardship" (as defined in Section 9-06.55(b)) to the applicant; and

(3) A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create a nuisance (as defined in Section 9-06.55(c), cause fraud or victimization of the public (as defined in Section 9-06.55(a)), or conflict with existing local laws or ordinances.

(4) A determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

(f) Variances may be issued for new construction, substantial improvements, 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, that the structure or other development is protected by methods that minimize flood damage during the base flood and provided the variance does not create a public nuisance or any additional threats to public safety.

(g) Upon consideration of the factors of Section 9-06.59(e) and the purposes of this article, the city may attach such conditions to the granting of variances as it deems necessary to further the purposes of this article.

(h) Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.

(i) A variance is to 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 effect of flooding on manure storage, livestock confinement operations, liquified natural gas terminals, and production and storage of high volatile, toxic, or water-reactive materials.

(D) Complies with the wet floodproofing construction requirements of Section 9-06.59(i)(2), below.

(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 ASCE 24, Chapter 2.

(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.

(Ord. No. 2671(NCS), § 2, 9-12-2023)