San Leandro Municipal Code Art. 6 Variance Procedure

(Legislative History: Ordinance No. 88-015, 8/1/88; Ordinance No. 99-07, 4/9/99 (Sections 7-9-600 — 7-9-610))

(a) The variance criteria set forth in this section 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 characteristics must pertain to the land itself, not to the structure, its inhabitants or the property owners.

(b) It is the duty of the City of San Leandro 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 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.

(a) The City Council of the City of San Leandro shall hear and decide appeals and requests for variances from the requirements of this Chapter.

(b) The City Council 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 City Council shall consider all technical evaluations, all relevant factors, standards specified in other sections of this Chapter; and the following:

(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 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 floodwaters 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) Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing subsections (c)(1) through (c)(11) have been fully considered. As the lot size increases beyond 1/2 acre, the technical justification required for issuing the variance increases.

(e) Upon consideration of the factors of subsection (c) of this section and the purposes of this Chapter, the City Council may attach such conditions to the granting of variances as it deems necessary to further the purposes of this Chapter.

(f) Any applicant to whom a variance is granted shall be given written notice over the signature of a community official that 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 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 Alameda County Recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land.

(a) Generally, variances may be issued for new construction, substantial improvement, and other proposed new development to be erected on a lot of 1/2 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 4 and 5 of this Chapter have been fully considered. As the lot size increases beyond 1/2 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 2 of this Chapter) 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 Chapter. For example, in the case of variances to an elevation requirement, this means the City of San Leandro 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 of San Leandro believes will both provide relief and preserve the integrity of the local ordinance.

(e) Variances shall only be issued upon a showing of good and sufficient cause; determination that failure to grant the variance would result in "exceptional hardship" (as defined in Article 2 of this Chapter) to the applicant; and 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 Article 2 - see "Public safety and nuisance"), cause fraud or victimization (as defined in Article 2) 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 Sections 7-9-605(a) through 7-9-605(e) 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 7-9-605 and the purposes of this Chapter, the City of San Leandro may attach such conditions to the granting of variances as it deems necessary to further the purposes of this Chapter.