10-1-10: VARIANCES:

   A.   Application For Variance: A variance from the terms of this chapter shall not be considered until a written application for a variance containing the data required by subsection 8-7-4-2B of this code and a narrative statement, demonstrating the requested variance has mitigated items contained in subsection B of this section, is filed with the zoning administrator for submission to the city planning and zoning commission and the city council.

   B.   Procedure For Approval Of Variance:

      1.   Upon receipt of a complete variance application from the zoning administrator, the city planning and zoning commission and the city council shall follow the notice and hearing procedures outlined in subsection 8-7-4-4A of this code and action requirements outlined in subsection 8-7-4-4B of this code.

      2.   The city planning and zoning commission may recommend to the city council that the city council approve, disapprove, or approve conditionally a requested variance. After receipt of the commission's recommendation and compliance with subsection 8-7-4-4A of this code, the city council may approve, disapprove or approve conditionally, by attaching such conditions to the granting of a variance as is deemed necessary to further the purposes of this chapter, a requested variance. In making a decision, the city planning and zoning commission and the city council shall consider all technical evaluations and all relevant factors and standards specified in other sections of this chapter and:

         a.   The danger that materials may be swept onto other land to the injury of others;

         b.   The danger to life and property due to flooding or erosion damage;

         c.   The susceptibility of the proposed facility and its content to flood damage and the effect of such damage on the individual owner;

         d.   The importance of the services provided by the proposed facility to the community;

         e.   The necessity to the facility of a waterfront location, where applicable;

         f.   The availability of alternative locations for the proposed uses which are not subject to flooding and erosion damage;

         g.   The compatibility of the proposed use with existing and anticipated development;

         h.   The relationship of the proposed use to the comprehensive plan and the floodplain management program for that area;

         i.   The safety of access to the property in times of flood for ordinary and emergency vehicles;

         j.   The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and

         k.   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 systems, and streets and bridges.

      3.   The applicant shall include a written report addressing each of the above factors in division B2a through B2k with their application for a variance.

      4.   Upon consideration of the factors listed above and the purposes of this chapter, the appeal board may attach such conditions to the granting of variances as it deems necessary to further the purposes and objectives of this chapter.

      5.   Any applicant to whom a variance is granted shall be given written notice specifying the difference between the base flood elevation (BFE) and the elevation to which the structure is to be built and that such construction below the BFE increases risks to life and property, and that the issuance of a variance to construct a structure below the BFE will result in increased premium rates for flood insurance up to twenty five dollars ($25.00) per one hundred dollars ($100.00) of insurance coverage. Such notification shall be maintained with a record of all variance actions, including justification for their issuance.

      6.   The floodplain administrator shall maintain the records of all appeal actions and report any variances to the federal emergency management agency and the state of Idaho upon request.

   C.   Standards And Conditions Of Variance:

      1.   Variances may be issued for:

         a.   The repair or rehabilitation of historic structures upon the determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure on the national register of historic places or the state inventory of historic places to preserve the character and design of the structure.

         b.   Variances may be issued by a community for new construction and substantial improvements to be erected on a lot of one half (1/2) acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, in conformance with the procedures of division B;

      2.   Variances shall not be issued within any designated floodway or flood fringe area if the variance would result in any increase in flood levels during the base flood discharge.

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

      4.   Variances shall only be issued upon:

         a.   A showing of good and sufficient cause;

         b.   A determination that failure to grant the variances would result in exceptional hardship; and

         c.   A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public as identified in items contained in section 10-1-7, of this chapter, or conflict with existing local laws or ordinances.

      5.   Variances as interpreted in the national flood insurance program are based on the general zoning law principle that they pertain to a physical piece of property; they are not personal in nature and do not pertain to the structure, its inhabitants, economic or financial circumstances. They primarily address small lots in densely populated residential neighborhoods. As such, variances from the flood elevations should be quite rare.

      6.   Variances may be issued for non-residential buildings in very limited circumstances to allow a lesser degree of floodproofing than watertight or dry floodproofing, where it can be determined that such action will have low damage potential, complies with all other variance criteria, and otherwise complies with the general standards.

      7.   Any applicant to whom a variance is granted shall be given written notice specifying the difference between the base flood elevation (BFE) and the elevation to which the structure is to be built and that such construction below the BFE increases risks to life and property, and that the issuance of a variance to construct a structure below the BFE will result in increased premium rates for flood insurance commensurate with the increased risk resulting from the reduced lowest floor elevation. Such notification shall be maintained with a record of all variance actions, including justification of the issuance.

   D.   Records And Reports:

      1.   The floodplain administrator shall maintain the records of all appeal actions and report any variances to FEMA and the state of Idaho upon request.

      2.   The floodplain administrator will notify the state NFIP coordinator of the Idaho department of water resources of its intention to grant a variance at least thirty (30) calendar days prior to granting a variance.

(Ord. 127, 1-12-1988; amd. Ord. 815, 7-23-2019)

10-1-11: SCHEDULE OF FEES, CHARGES AND EXPENSES:

The city council, by resolution, shall establish a schedule of fees, charges and expenses and a collection procedure for development permits, amendments, appeals, variances, plan approvals and other matters pertaining to the administration and enforcement of this chapter requiring investigation, inspection, legal advertising, postage and other expenses 1 . The schedule of fees shall be posted in the office of the zoning administrator and may be altered or amended only by the city council. Until all applicable fees, charges and expenses have been paid in full, no action shall be taken on any application or appeal.

(Ord. 82, 12-14-1982; amd. Ord. 815, 7-23-2019)

 

Notes

1	1. See subsection 1-7-4A of this code.

10-1-12: WARNING AND DISCLAIMER OF LIABILITY:

The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering consideration. Larger floods can and will occur. Flood heights may be increased by manmade or natural causes. This chapter does not imply that land outside the special flood hazard area 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, or any officer or employee thereof, for any flood damages that result from reliance on this chapter or any administrative decision lawfully made thereunder.

(Ord. 82, 12-14-1982; amd. Ord. 815, 7-23-2019)

10-1-13: CORRECTIVE PROCEDURES:

   A.   Violations To Be Corrected: When the floodplain administrator finds violations of applicable state and local laws, it shall be his or her duty to notify the owner or occupant of the building of the violation. The owner or occupant shall immediately remedy each of the violations of law cited in such notification.

   B.   Actions In Event Of Failure To Take Corrective Action: If the owner of a building or property shall fail to take prompt corrective action, the floodplain administrator shall give the owner written notice, by certified or registered mail to the owner's last known address or by personal service, stating:

      1.   That the building or property is in violation of the floodplain management regulations;

      2.   What is required to bring the building or property into conformnce with this chapter; and

      3.   If the owner fails to correct the violation the floodplain administrator may issue an order to alter, vacate, or demolish the building; or to remove fill as applicable.

   C.   Order To Take Corrective Action: If the owner fails to take action to bring the building or property into compliance the floodplain administrator shall find that the building or development is in violation of the flood control ordinance, he or she shall issue an order in writing to the owner, requiring the owner to remedy the violation within a specified time period, not less than sixty (60) calendar days, nor more than one hundred twenty (120) calendar days. Where the floodplain administrator finds that there is imminent danger to life or other property, he or she may order that corrective action be taken in such lesser period as may be feasible.

   D.   Appeal: Any owner who has received an order to take corrective action may appeal the order to the local elected governing body by giving notice of appeal in writing to the zoning administrator within twenty (20) days following issuance of the final order. In the absence of an appeal, the order of the floodplain administrator shall be final. The local governing body shall hear an appeal within a reasonable time and may affirm, modify and affirm, or revoke the order.

   E.   Failure To Comply With Order: If the owner of a building or property fails to comply with an order to take corrective action for which no appeal has been made or fails to comply with an order of the governing body following an appeal, the owner shall be subject to the provisions of section 10-1-14D.

(Ord. 815, 7-23-2019)

10-1-14: VIOLATIONS AND PENALTIES:

   A.   Failure To Obtain A Development Permit: Failure to obtain a development permit shall be a violation of this chapter.

   B.   Failure To Comply With Permit: Development permits issued on the basis of plans and applications approved by the zoning administrator authorize only the use and arrangement set forth in such approved plans and applications, or amendments thereto, and no other use, arrangement or construction. Use, arrangement or construction contrary to that authorized shall be deemed a violation of this chapter.

   C.   Complaints Regarding Violations: Whenever a violation of this chapter occurs, or is alleged to have occurred, any person may file a written complaint. Such complaint, stating fully the causes and basis thereof, shall be filed with the zoning administrator. The zoning administrator shall properly record such complaint, immediately investigate and take action thereon as provided by this chapter.

   D.   Penalties: No structure or land shall hereafter be located, extended, converted, or altered unless in full compliance with the terms of this chapter and other applicable regulations. The city attorney shall, in addition to taking whatever criminal action deemed necessary, take steps to civilly enjoin any violation of this title. Penalties for failure to comply with or violations of the provisions of this title shall be as follows:

   Violation of any of the provisions of this title or failure to comply with any of its requirements, including violation of conditions and safeguards established in connection with grants of variance or special exceptions, shall constitute a misdemeanor, and be punishable as provided in section 1-4-1 of this code. The landowner, tenant, subdivider, builder, public official or any other person who commits, participates in, assists in or maintains such violation may be found guilty of a separate offense. Nothing herein contained shall prevent the council or any other public official or private citizen from taking such lawful action as is necessary to restrain or prevent any violation of this title or of the Idaho Code.

(Ord. 82, 12-14-1982; amd. Ord. 697, 5-14-2013; Ord. 815, 7-23-2019)

10-1-15: AMENDMENTS:

   A.   Authority: Whenever the public necessity, convenience, or general welfare require, the city council may, by ordinance after receipt of recommendation thereon from the planning and zoning commission and subject to procedures provided by law, amend, supplement, change or repeal the regulations of this title.

   B.   Initiation Of Amendment: Amendments to this title may be initiated in one of the following ways:

      1.   On application by a citizen of the city;

      2.   On recommendation by the floodplain administrator;

      3.   On recommendation of the commission; or

      4.   Required by the council.

   C.   Application For Amendment: Applications for amendments to this title shall contain the following information:

      1.   Name, address, and phone number of applicant;

      2.   Proposed amending ordinance, approved as to form by the council;

      3.   A fee as established by resolution of the council; and

      4.   Additional information as may be required by the administrator to aid in review of the amendment.

   D.   General Procedure For Amendments:

      1.   Request for an amendment to this title shall be submitted to the commission which shall review and evaluate the request to determine the extent and nature of the amendment requested.

      2.   The commission may recommend approval and the council may adopt or reject the amendment under the notice and hearing procedures as herein provided.

   E.   Public Hearing Notice: The commission shall hold a public hearing and make recommendations on the proposed amendment.

      1.   The commission, prior to recommending an amendment to the council, shall conduct at least one (1) public hearing in which interested persons shall have an opportunity to be heard. The commission shall follow the following notice requirements:

         a.   Published Notice: At least fifteen (15) days prior to each hearing, notice of the time and place of the hearing and a summary of the proposed amendment shall be published in the official newspaper or paper of general circulation within the city. Notice shall also be made available to other papers, radio, and television stations serving the city for use as a public service announcement.

   F.   Action By The Commission:

      1.   Recommendation By The Commission: Within forty five (45) days from the receipt of the proposed amendment, the commission shall transmit its recommendation to the council. The commission may recommend that the amendment be granted as requested, or it may recommend a modification of the amendment requested, or it may recommend that the amendment be denied.

   G.   Action By The Council:

      1.   The council, prior to adopting, revising or rejecting the amendment to this title as recommended by the commission, shall conduct at least one (1) public hearing using the same notice and hearing procedures as the commission. Following the council hearing, if the council makes a material change from what was presented at the public hearing, further notice and hearing shall be provided before the council adopts the amendment.

   H.   Effect Of Amendment Approved: In the event the council shall approve an amendment, such amendment shall thereafter be made part of this title upon the preparation and passage of an ordinance. (Ord. 815, 7-23-2019)

10-1-16: LEGAL STATUS PROVISIONS:

   A.   Effect On Rights And Liabilities Under The Existing Flood Damage Prevention Ordinance: This chapter, in part, comes forward by re-enactment of some of the provisions of the flood control ordinance enacted July 18, 1974, as amended, and it is not the intention to repeal but rather to re-enact and continue to enforce without interruption of such existing provisions, so that all rights and liabilities that have accrued thereunder are reserved and may be enforced. The enactment of this chapter shall not affect any action, suit, or proceeding instituted or pending. All provisions of the flood control ordinance enacted on July 18, 1974, as amended, which are not re-enacted herein are repealed.

   B.   Effect Upon Outstanding Floodplain Development Permits: Nothing herein contained shall require any change in the plans, construction, size, or designated use of any development or any part thereof for which a floodplain development permit has been granted by the floodplain administrator or his or her authorized agents before the time of passage of this chapter. Provided, however, that when construction is not begun under such outstanding permit within a period of one hundred eighty (180) days subsequent to the date of issuance of the outstanding permit, construction or use shall be in conformity with the provisions of this chapter.

   C.   Severability: This chapter is hereby declared to be severable. Should any portion of this chapter be declared invalid by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect and shall be read to carry out the purpose(s) of the chapter before the declaration of partial invalidity.

   D.   This chapter, or a summary thereof in compliance with section 50-901A, Idaho Code, shall be published once in the official newspaper of the city, and shall take effect immediately upon its passage, approval, and publication.

(Ord. 815, 7-23-2019)