Tehama County Municipal Code Art. V Variance and Appeal Procedure

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 characteristic must pertain to the land itself, not to the structure, its inhabitants, or the property owners.

The granting of a variance shall not cause fraud on or victimization of the public. In examining this requirement, the board of supervisors 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 elevation are subject 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, and can be insured only at very high flood insurance rates.

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. 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. 1708 § 2(part), 1999)

A. Variances may be issued for the repair, rehabilitation or restoration of "historic structures" (as defined in Section 15.52.210 of this chapter) upon a determination that the proposed repair, rehabilitation or restoration 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.

B. Variances shall not be issued within any mapped regulatory floodway if any increase in flood levels during the base flood discharge would result.

C. Variances shall only be issued upon a determination that the variance is the "minimum necessary" considering the flood hazard, to afford relief.

D. 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 15.52.210 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, or extraordinary public expense, create a nuisance (as defined in Section 15.52.210, see "Public Safety and Nuisance"), cause fraud or victimization of the public, or conflict with the existing local laws or ordinances.

E. 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 subsections A through F of Section 15.52.530 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.

F. 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, providing items 1 through 11 of subsection C of Section 15.52.530 have been fully considered. As the lot size increases beyond the one-half acre, the technical justification required for issuing the variance increases.

(Ord. 1708 § 2(part), 1999)

A. The board of supervisors of the county shall hear and decide appeals and requests for variances from the requirements of this chapter.

B. The board of supervisors of the county 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 appeals and variances, the board of supervisors shall consider all technical evaluations, all relevant factors, standards specified in other sections of this chapter, 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 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, and allowance for debris, if applicable, expected at the site;

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. Upon consideration of the factors of Section 15.52.530(c) and the purposes of this chapter, the board of supervisors may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter.

E. The floodplain administrator shall maintain the records of all appeal actions and report any variance to the Federal Insurance Administration upon request.

F. 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; and

3. Insurance premium rates are determined by statute according to actuarial risk and will not be modified by the granting of a variance.

A copy of the notice shall be recorded by the floodplain administrator in the office of the Tehama County recorder and shall be recorded in a manner so that is appears in the chain of title of the affected parcel of land.

(Ord. 1792 § 6, 2003)

A. Those aggrieved by a decision of any county department pursuant to this chapter may appeal such decision upon payment of a fee of one hundred dollars to the board of supervisors of the county.

B. In passing upon such appeal, the board of supervisors shall consider all items delineated in Sections 15.52.520 and 15.52.530 of this chapter.

(Ord. 1708 § 2(part), 1999)

A structure or the use of a structure or premises which was lawful before the passage or amendment of Chapter 15.52 of the Tehama County code and/or these rules but which is not in conformity with their provisions, may be continued as a nonconforming use subject to the following conditions:

A. No such use shall be expanded, changed, enlarged or altered in any way.

B. Any substantial improvement of a nonconforming structure shall be made in compliance with the provisions of this chapter.

C. If any nonconforming use or structure is destroyed by any means, including flood, to the extent of fifty percent or more of its market value immediately prior to the destruction, it shall not be reconstructed except in conformity with the provisions of this chapter.

(Ord. 1708 § 2(part), 1999)

The board of supervisors finds and declares that this chapter is not intended, and shall not be construed, as authorizing the county to exercise its power to adopt, amend or repeal this chapter or implement administrative regulations in a manner which will take or damage private property for public use without the payment of just compensation therefor. This section is not intended to increase or decrease the rights of any owner of property under the Constitution of the state of California or of the United States.

(Ord. 1708 § 2(part), 1999)