Santa Clara County Municipal Code Art. 6 Variance Procedure

The issuance of a variance is for floodplain management purposes only. Insurance premium rates are determined by statute according to actuarial risk and will not be modified by the granting of a variance.

The variance criteria set forth in this section are based on the general principle 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. 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 County 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 this chapter 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.

(Ord. No. NS-1100.106, § 1, 4-21-09)

(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 that is contiguous to and surrounded by lots with existing structures constructed below the base flood level, provided that the procedures of Section C12-812 through Section C12-822 of this chapter have been fully considered. As the lot size increases beyond one-half acre, the technical justification for issuing the variance increases.

(b) Variances may be issued for the repair or rehabilitation of "historic structures" (as defined in Section C12-804 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, the Floodplain Administrator 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 Floodplain Administrator believes will both provide relief and preserve the integrity of the local ordinance.

(e) Any applicant to whom a variance is granted shall be given written notice from the Floodplain Administrator 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; 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 with the County Clerk-Recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land.

(f) 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 Emergency Management Agency.

(Ord. No. NS-1100.106, § 1, 4-21-09)

(a) In passing upon requests for variances, the Floodplain Administrator shall consider all technical evaluations, all relevant factors, and standards specified in other sections of this chapter, and all of the following:

(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 County;

(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, and water system, and streets and bridges.

(b) 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" to the applicant; and

(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 public nuisance, cause fraud and victimization of the public, or conflict with any existing local laws or ordinances.

(c) 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 Section C12-825(a)—(d) 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.

(d) Upon consideration of the factors of Section C12-824(a) and the purposes of this ordinance, the Floodplain Administrator may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter.

(Ord. No. NS-1100.106, § 1, 4-21-09)

Variance appeals shall follow the procedures contained within Section C12-815 of this chapter.

(Ord. No. NS-1100.106, § 1, 4-21-09)