Certain developments, activities, or associated uses not exempted from provisions of this title as described in section 13-3-9, may nevertheless be excepted from its provisions under specific conditions and circumstances identified in this section, provided they are consistent with the provisions of other applicable local, state, and federal laws and requirements. Exceptions may be granted on a case-by-case basis and depending on circumstances, by the Director of Community Development or by the Hearing Examiner:
A. Exceptions Considered by the Director. An Applicant shall submit a written request for exception that describes the proposed activity and identifies the exception that applies. The Director shall review the exception requested to verify that it complies with this title and shall approve or deny the exception in writing. Exceptions may be requested of the Director for the following:
1. Single family residential building permits for new structures. Construction of a new residential structure where construction and associated disturbance does not increase the footprint of any existing structure, and which is not located within a designated Wetlands, Fish and Wildlife Habitat Conservation, or Frequently Flooded critical area or its buffer.
2. Modification, expansion, or replacement of structures constructed after July 1, 1990. Structural modifications/expansion or replacement of an existing single-family residential structure where the footprint of the structure does not increase; the modification/expansion or the replacement structure is not located closer to the critical area than the existing structure; the existing impervious surface within the critical area or buffer is not expanded; and which is not located within a designated Wetlands, Fish and Wildlife Habitat Conservation, or Frequently Flooded critical area or its buffer.
3. Operation, maintenance or repair of dikes, levees, or drainage systems, including routine vegetation management activities when performed in accordance with approved best management practices, if the activity does not increase risk to life, property, or the environment as a result of the proposed operation, maintenance, or repair.
4. Activities within the improved right-of-way. Replacement, modification, installation or construction of utility facilities, lines, pipes, mains, and equipment or appurtenances - but not including substations - when such facilities are located within the improved portion of the public right-of-way or a city-approved private roadway, except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased stormwater, subject to the following:
a. The activity shall result in the least practicable impact and have no practical alternative with less impact on the critical area and/or its buffer;
b. An additional, contiguous and undisturbed critical area buffer shall be provided, equal in area to the disturbed critical area buffer; and
c. Retention and replanting of native vegetation shall occur wherever possible along the right-of-way improvement and resulting disturbance.
5. Minor utility projects. Utility projects that result in minor or short-term impacts (short-term meaning of less than 3 months’ duration) to critical areas, as determined by the Director in accordance with the criteria below, and that do not significantly impact the functions and values of a critical area(s), such as the placement of a utility pole, street sign, anchor, vault, or other small component of a utility facility; provided that such projects are constructed with best management practices and additional restoration measures are provided. Minor activities shall not result in the transport of sediment or increased stormwater runoff. Such exceptions shall meet the following criteria:
a. There is no practical alternative to the proposed activity with less adverse impacts to critical areas, and all feasible attempts have been made to first avoid impacts, minimize impacts, and lastly mitigate unavoidable impacts;
b. The activity will not change or diminish the overall critical area hydrology or flood storage capacity;
c. The project shall be designed and constructed to prevent spills and leaks into critical areas;
d. The activity will not reduce the existing functions and values of the affected critical areas;
e. To the maximum extent practicable, utility corridor access for maintenance is at limited access points into the critical area buffer rather than by a parallel access road; and
f. Unavoidable impacts will be mitigated pursuant to an approved mitigation plan.
6. Non-emergency hazardous tree removal, provided the hazard is documented by a certified arborist or professional forester.
7. Enhancement and restoration activities for the purpose of restoring functions and values of critical area(s) that do not require construction permits.
B. Exceptions Considered by the Hearing Examiner. An Applicant shall submit a written request for exception that describes the proposed activity and identifies the exception that applies. After holding a public hearing pursuant to Section 11-2C-11 of Title 11, Unified Development, Long Beach City Code Exceptions may be requested of the Hearing Examiner for the following:
1. Public Agency or Utility Exception. If the application of this title would prohibit a development proposal by a public agency or public utility that is essential to its ability to provide service, the agency or utility may apply for an exception pursuant to this section.
2. Reasonable Use. If the application of this chapter would deny all reasonable use of the property, the applicant may apply for an exception pursuant to this section. The Hearing Examiner may approve the exception after finding that:
a. This title would otherwise deny all reasonable use of the property;
b. There is no other reasonable use consistent with the underlying zoning of the property that has less adverse impact on the critical area and/or associated buffer;
c. The proposed development does not pose an unreasonable threat to the public health, safety or welfare on or off the property;
d. Any proposed alteration is the minimum necessary to allow for reasonable use of the property;
e. The inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant after the effective date of this chapter or its predecessor; and
f. The requested exception provides relief not otherwise available from a variance approval.
3. Variance. Where unavoidable adverse impacts to wetlands, streams, fish and wildlife habitat or critical aquifer recharge areas occur, a variance shall be obtained to permit the impact. Variances shall be considered as set forth in Section 11-2D-1 of Title 11, Unified Development, of the Long Beach City Code, except that required findings shall be as set forth in this section. Variances will be granted on the basis of a finding of consistency with all criteria listed below. The Hearing Examiner shall not consider the fact the property may be utilized more profitably.
a. The variance shall not constitute a grant of special privilege inconsistent with the limitation on use of other properties similarly affected by the code provision for which a variance is requested;
b. That such variance is necessary, because of special circumstances and/or conditions relating to the size, shape, topography, environmentally sensitive areas, location, or surroundings of the subject property, to provide it with those relative rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located. The phrase “relative rights and privileges” is to ensure that the property rights and privileges for the subject property are considered primarily in relation to current City land-use regulations;
c. That special conditions and/or circumstances identified in paragraph b. (immediately above) of this section giving rise to the variance application do not result from the actions of the applicant, property owner, or recent prior owner(s) of the subject property;
d. That granting of the variance will not be materially detrimental to the public welfare or injurious to the property, neighborhood, or improvements in the vicinity and zone in which subject property is situated;
e. That reasons set forth in the application and the official record justify the granting of the variance, and that the variance is the minimum variance necessary to grant relief to the applicant;
f. That alternative development concepts in compliance with applicable codes have been evaluated, and that undue hardship would result if strict adherence to the applicable codes is required; and
g. That granting of the variance will not adversely affect implementation of the comprehensive plan or policies adopted thereto and the general purpose and intent of the zoning title or other applicable regulations.
C. The Hearing Examiner may approve the exception if the hearing examiner finds that:
1. There is no other practical alternative to the proposed development with less impact on the critical area(s), based on the demonstration by the applicant of the following factors:
a. The applicant has considered all reasonably possible construction techniques based on available technology that are feasible for the proposed project and eliminated any that would result in unreasonable risk of impact to the critical area; and
b. The applicant has considered all available sites and alignments within the range of potential sites and alignments that meet the project purpose and for which operating rights are available.
2. The proposal minimizes and mitigates unavoidable impacts to critical areas and/or critical areas buffers.
D. Mitigation Required. Any authorized alteration to a wetland or stream or its associated buffer, or alteration to a fish and wildlife habitat conservation area, as allowed under an exception granted under this section, shall be subject to conditions established by the City and shall require mitigation under an approved mitigation plan pursuant to this Title. (Ord. 985, 10-5-2020)