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O 591ORDINANCE N0.591 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE TO APPROVE DEVELOPMENT CODE AMENDMENT 07-003 AMENDING PORTIONS OF ARROYO GRANDE MUNICIPAL CODE CHAPTERS 16.04 AND 16.44 OF TITLE 16 TO ESTABLISH CREEK SETBACK STANDARDS WHEREAS, the City Council adopted the updated General Plan which became effective November 10, 2001 and requires a comprehensive review and necessary revisions to the Arroyo Grande Municipal Code and Zoning Map for consistency, in accordance with Government Code Section 65860; and WHEREAS, the 2001 General Plan include a Agricultural, Conservation and Open Space Element which include the following principals: Resources that are irretrievable and/or irreplaceable need to be protected and preserved. Individuals and the community have a responsibility to future generations as well as to wildlife to preserve and protect finite natural resources. Resource lands contribute to overall public health, safety and welfare beyond provision of basic necessities such as food, fiber and livelihood. Land Use and urban development shall be managed and limited to that which can be sustained by the available resources and serviced by the circulation and other infrastructure systems; and WHEREAS, Conservation and Open Space objective "C/OS2" of the Agricultural, Conservation and Open Space Element in the 2001 General Plan, is to "Safeguard important environmental and sensitive biological resources contributing to healthy, functioning ecosystem"; and WHEREAS, on July 12, 2005 the City Council of Arroyo Grande, by consensus, directed staff to evaluate the City's regulations, practices and procedures related to creek setback requirements and the implementation of related 2001 General Plan policies in the Agriculture, Conservation and Open Space Element; and WHEREAS, on September 27, 2005 the City Council of Arroyo Grande, adopted Ordinance 572 entitled "An Interim Urgency Ordinance of the City Council of the City of Arroyo Grande Suspending Acceptance and Processing of Applications for Development of any Portion of Property Immediately Adjacent to Arroyo Grande Creek, Tally Ho Creek, Meadow Creek or Creek Tributaries within the City of Arroyo Grande" (hereinafter sometimes referred to as the "suspension of creek property development"), which Ordinance expired forty-five days from the date of its adoption pursuant to Government Code Section 65858(a); and WHEREAS, on November 8, 2005, the City Council of Arroyo Grande, adopted Ordinance 574 entitled "An Interim Urgency Ordinance of the City Council of Arroyo Grande to extend the suspension of acceptance and processing of New Applications for Development of any ORDINANCE NO. 591 PAGE 2 Portion of Property Immediately Adjacent to Arroyo Grande Creek, Tally Ho Creek, Meadow Creek or Creek Tributaries within the City of Arroyo Grande" which ordinance expired 10 months and 15 days from the date of its adoption pursuant to Government Code Section 65858(a); and WHEREAS, on August 22, 2006, the City Council held a duly noticed public hearing and adopted Ordinance No. 580 extending the suspension of creek property development for a period of one year, pursuant to Government Code Section 65858(a). WHEREAS, on May 25, 2007, the City released a draft Creek Resources Protection Study that includes research and recommendations concerning the necessity for creek buffers that contribute to streambank stabilization, allow for vegetative cover and reduction of water temperature, offer a setback distance for intensive uses, provide a source of food, nesting cover, and shelter for wildlife, intercept pollutants and manage other environmental concerns, and increase environmental sustainability; and WHEREAS, on June 5, 2007, the Planning Commission held a duly noticed public hearing and recommended that the City Council adopt a resolution for General Plan Amendment 07-001 that amends the Conservation Element of the General Plan for creek protection policies and an ordinance to amend the Municipal Code Chapters 16.04 and 16.44 to establish creek setback standards; and WHEREAS, on June 12, 2007, the City Council held a duly noticed public hearing to consider the proposed resolution for General Plan Amendment 07-001 that amends the Agriculture, Conservation and Open Space Element of the General Plan for creek protection policies and an ordinance to amend the Municipal Code Chapters 16.04 and 16.44 to establish creek setback standards; and WHEREAS, after consideration of all testimony and all relevant evidence, the City Council has determined that the following Development Code Amendment findings can be made in an affirmative manner: A. The proposed revision to the Municipal Code is consistent with the goals, objectives, policies and programs of the general plan land use and agriculture, conservation and open space elements, and is necessary and desirable to implement to provisions of the General Plan. B. The proposed revision to the Municipal Code will not adversely affect the public health, safety, and welfare or result in an illogical land use pattern since the proposed changes allows the city to provide safety from flooding and protect the city's creek resources. C. The proposed revision to the Municipal Code is consistent with the purpose and intent of the flood protection management overlay district. ORDINANCE NO. 591 PAGE 3 D. The City has conducted an environmental review and has found that it can be seen with certainty that there is no possibility that the proposed Ordinance will have an effect on the environment and therefore has prepared a Negative Declaration. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Arroyo Grande, as follows: SecTlonl ~ ~ The above recitals and findings are true and correct. SECTION 2~ Arroyo Grande Municipal Code Section 16.04.070.C is hereby amended in part and Section 16.44.050 is hereby amended in its entirety as shown in Exhibit "A" attached hereto and incorporated herein by this reference. c -Tpr' ionl 3~ If any section, subsection, subdivision, paragraph, sentence, or clause of this Ordinance or any part thereof is for any reason held to be unlawful, such decision shall not affect the validity of the remaining portion of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, or clause thereof, irrespective of the fact that any one or more section, subsection, subdivision, paragraph, sentence, or clause be declared unconstitutional. SECTION a Upon adoption of this Ordinance, the Director of Administrative Services shall file a Notice of Determination. SECTION 5: A summary of this Ordinance shall be published in a newspaper published and circulated in the City of Arroyo Grande at least five (5) days prior to the City Council meeting at which the proposed Ordinance is to be adopted. A certified copy of the full text of the proposed Ordinance shall be posted in the office of the Director of Administrative Services/City Clerk. Within fifteen (15) days after adoption of the Ordinance, the summary with the names of those City Council Members voting for and against the Ordinance shall be published again, and the Director of Administrative Services/City Clerk shall post a certified copy of the full text of such adopted Ordinance. SECTION a: This Ordinance shall take effect thirty (30) days after its adoption. On motion by Council Member Guthrie, seconded by Council Member Fellows, and by the following roll call vote, to wit: AYES: Council Members Guthrie, Fellows, and Mayor Ferrara NOES: None ABSENT: Council Members Costello and Arnold the foregoing Ordinance was adopted this 26"' day of June 2007. ORDINANCE NO. ~q ~ PAGE 4 TONY FERg/} MAYOR ATTEST: 1 n'/^, V ~K.K~ KELLY W MO ,CITY CLERK APPROVED AS TO CONTENT: c (% ST E DA ,CITY MANAGER APPROVED AS TO FORM: TIM THY J. EL, CITY ATTORNEY ORDINANCE NO. 591 PAGE 5 EXHIBIT "A" DEVELOPMENT CODE AMENDMENT 07-003 16.04.070.C (Note to codifies amend the definition for "Development' and add the definitions for "Riparian habitat" and "Top of bank"] "Development" means the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any structure; any use, change in use or extension of use of any buildings or land; any mining, excavation, landfill or land disturbance including any clearing or grading or other movement of land; and any use or extension of the use of land. For purposes of environmental and discretionary permit review, the term development shall include the division or an adjustment of parcels of land. "Riparian habitat" means vegetation growing close to a watercourse or spring that is generally critical for wildlife cover, fish food organisms, stream nutrients and large organic debris, and for streambank stability. "Top of bank" means the highest elevation of land which confines the flow of water to the channel. For areas where the top of bank is not distinguishable, the edge of floodway shall be used as the top of bank. 16.44.050 Floodplain management and Creek Protection (FMCP) District (unmapped) A. Statement of Purpose and Intent. It is the purpose of this section to promote the public health, safety, and general welfare, to safeguard important environmental and sensitive biological resources contributing to healthy, functioning ecosystem and to minimize public and private losses due to flood conditions in specific areas by provisions designed to: 1. Protect human life and health; 2. Minimize expenditure of public money for costly flood control projects; 3. Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public; 4. Minimize prolonged business interruptions; 5. Minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines; and streets and bridges located in areas of special flood hazard; 6. Help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future blighted areas caused by flood damages; 7. Ensure that potential buyers are notified that property is in an area of special flood hazard; 8. Ensure that those who occupy the areas of special flood hazard assume responsibility for their actions; 9. Implement general plan policies to enhance natural creek functions and values by providing erosion control, sedimentation prevention, enhancement of riparian habitat corridors, water quality protection and aesthetic and recreational opportunities. ORDINANCE NO. 591 PAGE 6 B. Methods of Reducing Flood Losses and providing creek protection. In order to accomplish its purposes, this section includes the following methods and provisions: 1. Restrict or prohibit uses which are dangerous to health, safety and property due to water or erosion hazards, or which result in damaging increases in erosion or flood heights or velocities; 2. Require that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction; 3. Control the alteration of natural flood plains, stream channels, riparian habitat, and natural protective barriers, which help accommodate or channel flood waters; 4. Control filling, grading, dredging, and other development which may increase flood damage or degrade riparian habitat; 5. Prevent or regulate the construction of flood barriers, or incremental floodplain constriction which will unnaturally divert flood waters or which may increase flood hazards in other areas. 6. Creeks shall remain in their natural state and shall not be altered unless approved by the City Council in conjunction with an application for a conditional use permit and permitted by other responsible agencies. C. General Provisions for Creek Protection. 1. Applicability. The section shall apply to all creeks and drainage ways, that are identified on the General Plan Conservation and Open Space Element Creek Map. a) Minimum Development Setbacks for Creek yards and Drainage Ways: Development, as defined in this Title, including fences and walls, shall be setback from the top of bank or edge of riparian habitat, whichever is farther from the creek flow line. i) Arroyo Grande Creek and Tally Ho Creek: a minimum setback of 35 feet. For Properties located within the Village Core Downtown (VCD) or Village Mixed Use (VMU) districts, through application of a conditional use permit and based upon consideration of recommendations from a Phase I Archeological Study; a biology report; and a hydrogeomorphology report, the setback may provide for an average of 35 feet within a proposed project area but under no circumstance shall any portion be less than 25 feet. ii) Meadow Creek and East Fork of Meadow Creek: a minimum setback of 50 feet. iii) All other Creeks and_ Drainage Ways: a minimum setback of 25 feet. 2. Fences and other structures such as culverts, walls and bridges which must be constructed within the floodway shall be designed in accordance with all applicable best management practices so as to prevent an obstruction or diversion of flood and drainage flow and to minimize adverse effects to natural riparian habitat. Fences may be permitted in the Development setback if designed to allow for wildlife passage and the unimpeded flow of water. 3. Clearing of significant vegetation canopy cover or herbaceous ground cover; removal of any native plant species within the riparian area is prohibited within the Setback area. A tree permit may be requested for trees potentially affecting public safety. 4. Existing agricultural operations are exempt from creek setback standards established herein. ORDINANCE NO. 591 PAGE 7 5. Exceptions to the requirements established in this section can be made only upon a finding that its application would violate federal and state law. D. General Provisions for Floodplain Management: 1. Land to which this section applies. This section shall apply to all areas of special flood hazards within the jurisdiction of the city. 2. Basis for Establishing the Areas of Special Flood Hazard. The areas of special flood hazard identified by the Federal Insurance Administration (FIA) of the Federal Emergency Management Agency (FEMA) in the Flood Insurance Study (FIS) dated March 19, 1984 and accompanying Flood Insurance Rate Maps (FIRMs) and Flood Boundary and Floodway Maps (FBFMs), dated September 19, 1984, and all subsequent amendments and/or revisions, are adopted by reference and declared to be a part of this section. These areas are the minimum area of applicability of this section and may be supplemented by studies for other areas which allow implementation of this section and which are recommended to the city by the floodplain administrator. The study, FIRMS and FBFMs are on file at the Department of Public Works, 214 East Branch Street, City of Arroyo Grande, California 93421. 3. Compliance. No structure or land shall hereafter be constructed, located, extended, converted or altered without full compliance with the term of this section and other applicable regulations. Violation of the requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor. Nothing herein shall prevent the city from taking such lawful action as is necessary to prevent or remedy any violation. 4. Abrogation and Greater Restrictions. This section is not intended to repeal, abrogate or impair any existing easements, covenants or deed restrictions. However, where this section and another ordinance, easement, covenant or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. 5. Interpretation. In the interpretation and application of this section, all provisions shall be: a) Considered as minimum requirements; b) Liberally construed in favor of the governing body; and c) Deemed neither to limit nor repeal any other powers granted under state statutes. 6. Warning and Disclaimer of Liability. The degree of flood protection required by this section 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 section 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 section shall not create liability on the part of city, any officer or employee thereof, the state of California, or the Federal Insurance Administration, Federal Emergency Management Agency, for any flood damages that result from reliance on this section or any administrative decision lawfully made hereunder. E. Administration. 1. Establishment of Development Permit. A development permit shall be obtained before any construction or other development begins within any area of special flood hazard established in subsection C of this section. Application for a development ORDINANCE NO. 591 PAGE 8 within an area of special hazard shall be made on forms furnished by the floodplain administrator and may include, but not be limited to: plans in duplicate drawn to scale showing the nature, location, dimensions and elevation of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities; and the location of the foregoing. Specifically, the following information is required: a) Proposed elevation in relation to mean sea level, of the lowest floor (including basement) of all structures in Zone AO, elevation of highest adjacent grade and proposed elevation of lowest floor of all structures; or proposed elevation in relation to mean sea level to which any nonresidential structure will be floodproofed, if required in subsection (E)(1)(c)(iii) of this section. b) All appropriate certifications listed in subsection (D)(3)(d) of this section; c) Description of the extent to which any watercourse will be altered or relocated as a result of proposed development. 2. Designation of the Floodplain Administrator. The director of public works appointed to administer, implement and enforce this section. 3. Duties and Responsibilities of the Floodplain Administrator. The duties and responsibilities of the floodplain administrator shall include, but not be limited to the following: a) Permit Review. Review all development permits within the special hazard areas to determine that: i) Permit requirements of this section have been satisfied, ii) The site is reasonably safe from flooding, and iii) The proposed development does not adversely affect the carrying capacity of areas where base flood elevations have been determined but a floodway has not been designated. For purposes of this section, "adversely affects" means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will increase the water surface elevation of the base flood more than one foot at any point. iv. All other required State and Federal permits have been obtained. b) Review and Use of Any Other Base Flood Data. When base flood elevation data has not been provided in accordance with subsection (C)(2) of this section, the floodplain administrator shall obtain, review and reasonably utilize any base flood elevation and floodway data available from a federal or state agency, or other source, in order to administer subsection E of this section. c) Notification of Other Agencies. Whenever there is an alteration or relocation of a watercourse: i) Notify adjacent communities and the California Department of Water Resources prior to alteration or relocation; ii) Submit evidence of such notification to the Federal Insurance Administration, Federal Emergency Management Agency; iii) Assure that the flood carrying capacity within the altered or relocated portion the watercourse is maintained... d) Documentation of Floodplain Development. Obtain and maintain for public inspection and make available as needed the following: i) Certification required by subsection (E)(1)(c)(i) of this section (lowest floor elevations); ORDINANCE NO. 591 PAGE 9 ii) Certification required by subsection (E)(1)(c)(ii) of this section (elevation or floodproofing of nonresidential structures); iii) Certification required by subsection (E)(1)(c)(iii) of this section (wet floodproofing standard); iv) Certification of elevation required by subsection (E)(3)(b) of this section (subdivision standards); v) Certification required by subsection (E)(6)(a) of this section (floodway encroachments). e) Map Determinations. Make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazard, for example, where there appears to be a conflict between a mapped boundary and actual field conditions. The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in subsection F of this section. f) Take action to remedy violations of this section as specified in subsection (C)(3) of this section. g) Base Flood Elevation Changes due to physical alterations: Such submissions are necessary so that upon confirmation of these physical changes affecting flooding conditions, risk premium rates and floodplain management requirements are based on current data. i) Within 6 months of information becoming available or project completion, whichever comes first, the floodplain administrator shall submit or assure that the permit applicant submits technical or scientific data to FEMA for a Letter of Map Revision (LOMR). ii) All LOMR's for flood control projects are approved prior to issuance of building permits. Building permits must not be issued based on Conditional Letters of Map Revision (CLOMR's). Approved CLOMR's allow construction of the proposed flood control project and land preparation as specified in the "start of construction" definition. F. Provisions for Flood Hazard Reduction. In addition to the development standards of the district with which the FHCP district has been combined and the standards contained in Chapters 16.48 and 16.52, the standards contained in this section shall apply. In the event of a conflict in the applicable regulations, the provisions of this section shall govern. 1. No fill shall be permitted within the 100-year floodplain of Creeks or Drainage ways unless appropriate mitigation measures are implemented in accordance with the California Environmental Quality Act (CEQA) and the City's CEQA Guidelines and the following standards: a) The fill is for the minimum area to accommodate a structure and allow for a five (5) foot border area which shall have a side slope of 4:1 or flatter when no native riparian landscaping or erosion control can be provided; b) All trees shall be protected or mitigated; c) The fill will not encroach within the development setback area of a creek; d) The fill will not result in adverse environmental impacts on the creek. 2. Standards of Construction. In all areas of special flood hazards the following standards are required: a) Anchoring. i) All new construction and substantial improvements within special flood ORDINANCE NO. 591 PAGE 10 hazard areas shall be adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. ii) All manufactured homes shall meet the anchoring standards of subsection (E)(4) of this section. b) Construction Materials and Methods. All new construction and substantial improvement with special flood hazard areas shall be constructed; i) With materials and utility equipment resistant to flood damage; ii) Using methods and practices that minimize flood damage; iii) With electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding; and if iv) Within Zones AH or AO, so that there are adequate drainage paths around structures on slopes to guide flood waters around and away from proposed structures. c) Elevation and Floodproofing. See Section 16.04.070 for definitions for "basement," "new construction," "substantial damage" and "substantial improvement." i) Residential construction, new or substantial improvement, shall have the lowest floor, including basement: (A)In an AO zone, elevated above the highest adjacent grade to a height exceeding the depth number specified in feet on the FIRM by at least one foot, or elevated at least three feet above the highest adjacent grade if no depth number is specified; (B)In an A zone, elevated at least one foot above the base flood elevation, as determined by the community; (C)In all other zones, elevated at least one foot above the base flood elevation. Upon the completion of the structure, the elevation of the lowest floor including basement shall be certified by a registered professional engineer or surveyor, and verified by the building inspector to be properly elevated. Such certification or verification shall be provided to the floodplain administrator. (D)For floodplain management purposes the term "lowest floor" means the lowest floor of the lowest enclosed area, including basement definition. An unfinished or flood resistant enclosure below the lowest floor that is usable solely for parking of vehicles, building access or storage in an area other than a basement area, is not considered a building's lowest floor provided it conforms to applicable non-elevation design requirements, including, but not limited to: (1) The floodproofing standard, in subsection (E)(1)(c)(iii) of this section; (2) The anchoring standards in subsection (E)(1) of this section; (3) The construction materials and methods standards in subsection (E)(1)(b) of this section; (4) The standards for utilities in subsection (E)(2) of this section. ii) Nonresidential construction, new or substantial improvement, shall either be elevated to conform with subsection (E)(1)(c) of this section or together with ORDINANCE NO. 591 PAGE 11 attendant utility and sanitary facilities; (A) Be floodproofed, below the elevation recommended under subsection (E)(1)(C)(i) of this section so that the structure is watertight with walls substantially impermeable to the passage of water; (B) Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and (C) Be certified by a registered professional engineer or architect that the standards of this subsection are satisfied. Such certification shall be provided to the floodplain administrator. iii) All new construction and substantial improvement with fully enclosed areas below the lowest floor (excluding basements) that are usable solely for parking of vehicles, building access or storage, and which are subject to flooding, shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwater. Designs for meeting this requirement must exceed the following minimum criteria: (A) Be certified by a registered professional engineer or architect; or (B) Have a minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding. The bottom of all openings shall be no higher than one foot above grade. Openings may be equipped with screens, louvers, valves or other coverings or devices provided that they permit the automatic entry and exit of floodwater. iv) Manufactured homes shall also meet the standards in subsection (E)(4) of this section. 3. Standards for Utilities. a) All new and replacement water supply and sanitary sewage systems shall be designed to minimize or eliminate: i) Infiltration of flood waters into the systems; and ii) Discharge from the systems into flood waters. b) On-site waste disposal systems shall be located to avoid impairment to them, or contamination from them during flooding. 4. Standards for Subdivisions. a) All preliminary subdivision proposals shall identify the flood hazard area and the elevation of the base flood. b) All subdivision plans within special flood hazard areas will provide the elevation of proposed structure(s) and pad(s). If the site is filled above the base flood elevation, the lowest first floor and pad elevations shall be certified by a registered professional engineer or surveyor and provided to the floodplain administrator. c) All subdivision proposals shall be consistent with the need to minimize flood damage. d) All subdivision proposals shall have public utilities and facilities such as sewer,. gas, electrical and water systems located and constructed to minimize flood damage. e) All subdivisions shall provide adequate drainage to reduce exposure to flood hazards. 5. Standards for Manufactured Homes. a) All manufactured homes that are placed or substantially improved within Zones ORDINANCE NO. 591 PAGE 12 Al-30, AH, AE, and AR on the community's Flood Insurance Rate Map, on sites located: i) Outside of a manufactured home park or subdivisions; ii) In a new manufactured home park or subdivision; iii) In an expansion to an existing manufactured home park or subdivision; or iv) In an existing manufactured home park or subdivision on a site upon which a manufactured home has incurred substantial damage as the result of a flood, shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated at least one foot above the base flood elevation, and shall be securely fastened to an adequately anchored foundation system to resist flotation collapse and lateral movement. b) All manufactured homes to be placed or substantially improved on sites in an existing manufactured home park or subdivision within Zones Al-30, AH, AE, AR on the community's Flood Insurance Rate Map that are not subject to the provisions of subsection (E)(4)(a) of this section will be securely fastened to an adequately anchored foundation system to resist foundation collapse and lateral movement, and will be elevated so that either the: i) Lowest floor of the manufactured home is at least one foot above the base flood elevation; or ii) Manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than thirty- six (36) inches in height above grade. 6. Standards For Recreational Vehicles. a) All recreational vehicles placed on sites within Zones Al-30, AH, AE, and AR on the community's Flood Insurance Rate Map will either: i) Be on the site for fewer than one hundred eighty (180) consecutive days, and be fully licensed and ready for highway use. A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions; or ii) Meet the permit requirements of subsection D of this section and the elevation and anchoring requirements for manufactured homes in subsection (E)(4)(a) of this section. 7. Floodways. Located within areas of special flood hazard established in subsection (C)(2) of this section are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of flood waters which carry debris, potential projectiles, and erosion potential, the following provisions apply: a) Prohibit encroachments, including fill, new construction, substantial improvement, and other new development unless certification by a registered professional engineer or architect is provided demonstrating that encroachments shall not result in any increase in the base flood elevation during the occurrence of the base flood discharge. b) If subsection (E)(6)(a) of this section is satisfied, all new construction, substantial improvement, and other proposed new development shall comply with all other applicable flood hazard reduction provisions of subsection E of this section. G. Variances and Appeals. 1. The planning commission of the city shall hear and decide appeals and requests for ORDINANCE NO. 591 PAGE 13 variances from the requirements of this section. 2. The planning commission shall hear and decide appeals regarding any decision or determination made by the floodplain administrator in the enforcement or administration of this section may be appealed to the city council. 3. 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 section 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. 4. Review of Variance Requests. In passing upon requests for creek setback. or flood management- related variances, the planning commission shall consider all technical evaluations, all relevant factors, standards specified in other subsections of this section, and: a) Potential impacts to cultural, biological, and hydrological resources have been adequately mitigated based on consideration of a phase I archeological study, a biology report and a hydrogeomorphologist report. b) Danger that materials may be swept onto other lands to the injury of others; c) Danger of life and property due to flooding or erosion damage; d) 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; e) Importance of the services provided by the proposed facility to the community; f) Necessity to the facility of a waterfront location, where applicable; g) Availability of alternative locations for the proposed use which are not subject to flooding or erosion damage; h) Compatibility of the proposed use with existing and anticipated development; i) Relationship of the proposed use to the comprehensive plan and floodplain management program for that area; j) Safety of access to the property in time of flood for ordinary and emergency vehicles; k) Expected heights, velocity, duration, rate of rise, and sediment transport of the, flood waters expected at the site; and I) 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. 5. Conditions for Variances. 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 subsection D and E of this section 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 ORDINANCE NO. 591 PAGE 14 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 presence 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 section. For example, in the case of variances to elevation requirement, this means the city 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 believes will both provide relief and preserve the integrity of the local ordinance. e) Variances shall only be issued upon a: i) Showing of good and sufficient cause; ii) Determination that failure to grant the variance would result in exceptional hardship to the applicant; and iii) 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 cause fraud or victimization of the public, or conflict with existing local laws or ordinances. "Hardship," as used in this subsection, means the exceptional hardship that would result from a failure to grant the requested variance. The hardship must be exceptional, unusual, and peculiar to the property involved. Economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or the disapproval of one's neighbors likewise cannot, as a rule, qualify as an exceptional hardship. "Public safety and nuisance," as used in this subsection, means that the granting of a variance must not result in anything which is injurious to safety or health of an entire community or neighborhood, or any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal or basin. "Fraud and victimization," as used in this subsection, means that the variance granted must not cause fraud on or victimization of the public. In examining this requirement, the city will consider the fact that every newly constructed building adds to government responsibilities and remains a part of the community for fifty (50) to one hundred (100) 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. ORDINANCE NO. 591 PAGE 15 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 subsection (F)(5)(a) through (e) of this section 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 subsection (F)(4) of this section and the purposes of this section, the planning commission may attach such conditions to the granting of variances as it deems necessary to further the purposes of this section. 6. Any applicant to whom a variance is granted shall be given written notice that: a) The issuance of a variance to construct a structure below the base flood level can result in substantially increased premium rates for flood insurance, as determined by their insurance carrier, b) Such construction below the base flood level increases risks to life and property. 7. 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 Insurance Administration, Federal Emergency Management Agency. OFFICIAL CERTIFICATION I, KELLY WETMORE, City Clerk of the City of Arroyo Grande, County of San Luis Obispo, State of California, do hereby certify under penalty of perjury, that the attached is a true, full, and correct copy of Ordinance No. 591 which was' introduced at a regular meeting of the City Council/Redevelopment Agency on June 12, 2007, 2007; was passed and adopted at a regular meeting of the City Council/Redevelopment Agency of the City of Arroyo Grande on the 26`h day of June 2007; and was duly published in accordance with State law (G.C. 40806). WITNESS my hand and the Seal of the City of Arroyo Grande affixed this 27~' day of June 2007. Gt?)¢-~! KELLY W T RE, CITY CLERK