San Benito County Municipal Code Art. VI Variance Procedure

(A) The variance criteria set forth herein are based on the general principle of zoning law that variances pertain to a piece of property and are not personal in nature. Though these standards vary from jurisdiction to jurisdiction, in general, a properly issued variance is 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.

(B) It is the duty of the Board of Supervisors 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. 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.

(1966 Code, § 6E-22) (Ord. 598, § 6.1)

(A) The Planning Commission of the county shall hear and decide appeals and requests for variances from the requirements of this chapter.

(B) The Planning Commission 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 chapter.

(C) In passing upon such applications, the Planning Commission shall consider technical evaluations, all relevant factors, standards specified in other sections of this chapter:

(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 the damage on the existing individual owner and future owners of the property;

(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 time of flood for ordinary and emergency vehicles;

(10) The expected heights, velocity, duration, rate of rise and sediment transport of the flood waters 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) (1) Any applicant to whom a variance is granted shall be given written notice over the signature of a community official that:

(a) 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 $25 for $100 of insurance coverage; and

(b) The construction below the base flood level increases risks to life and property.

(2) A copy of the notice shall be recorded by the Floodplain Board in the office of the County Recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land.

(E) The Floodplain Administrator will maintain a record of all variance actions, including justification for their issuance, and report the variances issued in its biennial report submitted to the Federal Insurance Administration, Federal Emergency Management Agency.

(1966 Code, § 6E-23) (Ord. 598, § 6.2)

(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 Articles IV and V of this chapter 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 Article II of this chapter) upon a determination that the proposed repair or rehabilitation will not preclude the structure’s continued designation as a 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 designated floodway if any increase in flood levels than otherwise allowed in this chapter during the base flood discharge would result.

(D) Variances shall only be issued upon a determination that the variance is the “minimum necessary” (as defined in Article II of this chapter), considering the flood hazard, to afford relief.

(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 Article II of this chapter) 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 “nuisances” (as defined in Article II of this chapter), cause “fraud or victimization” (as defined in Article II of this chapter) 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 § 19.15.091(A) through (E) are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

(G) Upon consideration of the factors of § 19.15.091(C) and the purposes of this chapter, the Planning Commission may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter.

(1966 Code, § 6E-24) (Ord. 598, § 6.3)