Part 6 — VARIANCES

Pursuant to and in accordance with the provisions of this part, the floodplain administrator may, but shall not under any circumstances be required to, grant a variance from the regulations and provisions of this chapter.

(Ord. 28512.)

administrator may accept for filing.

Petitions for variances shall be filed in writing with the floodplain administrator on a form furnished by the floodplain administrator. The form of the petition and the information and data required to be set forth therein shall be as prescribed by the floodplain administrator. The floodplain administrator shall not accept any such petition for filing unless:

A.

All information and data are set forth and shown as required by the form, to include elevation certification on N.G.V.D. datum;

B.

The petition is verified;

C.

The petition shall be signed by all of the owners (or the agents of the owners) of the parcel or site; and

D.

The filing fee required by Section 17.08.790 has been paid;

E.

Applicant shall supply all documents and data necessary, including but not limited to any applicable subdivision or development application and supporting documents, for floodplain administrator to evaluate variance application at no cost to city.

(Ord. 28512.)

The floodplain administrator shall conduct an investigation on each petition accepted for filing. Each such investigation shall include an opportunity for the petitioner to appear before and be heard by the floodplain administrator. The floodplain administrator shall not act on any petition unless the floodplain administrator has given the petitioner an opportunity to be heard thereon. Notice of the time and place at which the petitioner may appear before the floodplain administrator and be heard shall be given by mailing to him, postage prepaid, at the address shown on his petition, at least seven days before the date on which he will be heard. The form of such notice shall be as prescribed by the floodplain administrator.

(Ord. 28512.)

Pursuant to and in accordance with the provisions of this part, the floodplain administrator may issue variance permits. Under no circumstances shall any petitioner have the right to have a variance permit issued for the parcel or site included in the petition; and nothing contained in this part shall, in any event or under any circumstances, be deemed or construed to confer on any petitioner the right to have a variance permit issued for such parcel or site.

(Ord. 28512.)

In taking action, the floodplain administrator may deny the petition or issue a variance permit for the parcel or site covered by the petition. The floodplain administrator may make any variance permit which the floodplain administrator may issue subject to such terms, provisions and conditions as the floodplain administrator may deem reasonably necessary to secure the general purposes of this chapter.

(Ord. 28512.)

A.

The floodplain administrator shall not issue a variance permit for such parcel or site unless the floodplain administrator makes all of the following findings upon the issuance of the variance permit including all conditions thereto:

Will not result in any increase in flood levels during the base flood discharge within any designated regulatory floodway;

That the failure to grant the variance will result in exceptional hardship to the petitioner. "Exceptional hardship" includes those matters that are exceptional, unusual or peculiar to the site or parcel that is the subject of the application for variance to the extent that the site or parcel cannot be developed for any viable use without a variance. "Exceptional hardship" does not include any of the following:

a.

Economic or financial hardship to the applicant in complying with the regulations and provisions of this chapter;

b.

Requiring the property owner to build elsewhere;

c.

Requiring a different use of the parcel than intended in the application by the property owner;

d.

Inconvenience to the property owner;

e.

Aesthetic considerations;

f.

Personal preferences or disapproval of the property owner or neighboring property owners.

Will not result in increased flood heights, additional threats to public health or safety, damage to the property of another, additional public expense; create a nuisance; cause fraud on or victimization of the public; or conflict with existing city ordinances; and

Is the minimum variance from the regulations and provision of this chapter necessary to afford relief.

B.

Under no circumstances shall any petitioner have the right to have a variance permit issued for any such parcel or site, and nothing contained in the preceding paragraph of this section shall in any event or under any circumstances be deemed or construed to confer upon any petitioner the right to have a variance permit issued for such parcel or site.

(Ord. 28512.)

Unless the petitioner agrees to an extension of time, the floodplain administrator shall act on his petition within forty days after the petition was filed. Before the floodplain administrator may take action on the petition, the floodplain administrator must conduct at least one hearing on the matter. The floodplain administrator may, before taking action, conduct more than one hearing. Any action taken by the floodplain administrator shall be in writing and shall be filed in the floodplain administrator's office. At the time the floodplain administrator files the same, the floodplain administrator shall mail notice thereof to the petitioner, and to all other persons who have requested in writing such notice. A separate written request for notice must be filed for each proceeding. Once the floodplain administrator has taken action, the floodplain administrator shall not (in the same proceeding) reconsider his or her action.

If the floodplain administrator fails to take action within the forty period above provided, or within such extension of time as may have been agreed to by the petitioner, the floodplain administrator shall not thereafter take action, and the petition shall be deemed denied.

(Ord. 28512.)

The floodplain administrator shall set the date for all hearings conducted under this part.

(Ord. 28512.)

Any variance permit issued pursuant to the provisions of this part, which authorizes the construction of a structure below the base flood level, shall notify the permittee of the following:

A.

The issuance of the variance permit to construct a structure below the base flood level will likely result in increased premium rates for flood insurance; and

B.

Such construction below the base flood level increases health and safety risks to life and property upon the parcel or site that is the subject of the variance.

(Ord. 28512.)

The floodplain administrator shall forward a copy of each variance permit issued, pursuant to the provisions of this part, to the city clerk and shall cause a certified copy of such permit to be recorded in the office of the county recorder of the county of Santa Clara. Each such variance permit shall be reported to the federal insurance administrator by the floodplain administrator as a part of the annual report submitted to such administrator by the city.

(Ord. 28512.)

The petition for a variance permit shall be as set forth in the schedule of fees established by resolution of council. Said fees are required to defray city's cost and expense in conducting the proceedings following such filing.

(Ord. 28512.)

No variance permit shall become effective unless and until the permittee, in writing, on a form which shall have been provided by the city and which shall have been signed and acknowledged by such permittee:

A.

Has accepted the variance permit with required notarized signatures from all property owners or their legal representatives; and

B.

Has agreed to be bound, and to do all the things required of him or her, as required by the terms, provisions and conditions of such permit, and the provisions of this chapter applicable to such permit.

C.

Has paid in advance the city's recordation costs that are in addition to the filing fees required in this Section 17.08.790.

D.

Shall defend, indemnify, and hold harmless the city and its agents, officers, and employees from any claim, action, or proceeding against the city or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the city, advisory agency, appeal board, or legislative body concerning the variance. The city shall promptly notify the permittee of any claim, action, or proceeding and cooperate fully in the defense of any such claim, action, or proceeding. In the event the city fails to promptly notify the permittee of any claim, action, or proceeding, or if the city fails to cooperate in the defense, the permittee shall not thereafter be responsible to defend, indemnify, or hold harmless the city. Nothing in this section prohibits the city from participating in the defense of any claim, action, or proceeding if city bears its own attorney's fees and costs and defends the action in good faith. Permittee shall not be required to pay or perform any settlement unless the settlement is approved by the permittee.

(Ord. 28512.)

The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by man-made or natural causes. This chapter does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from

flooding or flood damages. This chapter shall not create liability on the part of the city of San José, any officer or employee thereof, or the federal insurance administration, for any flood damages that result from reliance on this chapter or any administrative decision lawfully made hereunder.

(Ord. 28512.)