(a) Appeals. Any written decision of the city engineer made in the course of administering or interpreting this ordinance may, within thirty (30) days of the decision, be appealed to the floodplain board.
(b) Variances. The floodplain board shall hear and decide all requests for variances from the requirements of this ordinance. Stormwater technical advisory committee (STAC) or stormwater advisory committee (SAC), as designated at the time by the floodplain administrator, shall make recommendations to the director of the department of transportation and mobility to be forwarded to the mayor and council on technical issues raised by appeals and variance requests.
(1) A variance may be granted only if, based on technical evidence prepared by an Arizona registered professional engineer, the floodplain board finds all of the following:
a. A showing of good and sufficient cause.
b. That the variance is the minimum necessary, considering the flood hazard, to afford relief.
c. That failure to grant the variance would result in exceptional hardship to the applicant. An exceptional hardship is one that is exceptional, unusual and peculiar to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, personal preferences or the disapproval of one's neighbors likewise cannot, as a rule, qualify as an exceptional hardship. All of these problems can be resolved through other means without granting a variance, even if the alternative is more expensive, or requires the property owner to build elsewhere or put the parcel to a different use than originally intended.
d. That the granting of the variance will not create a danger or hazard to life or property in the area, or result in increased flood heights; additional threats to public safety; extraordinary public expense; the creation of a nuisance; the victimization of or fraud on the public; and that the variance is not in conflict with other city ordinances or regulations.
e. That special circumstances, such as size, shape, topography, location, or surroundings of the property would cause strict application of the regulations to deprive the property of privileges enjoyed by similar property in the floodplain or erosion hazard areas.
(2) A variance is subject to conditions to ensure that the variance does not constitute a grant of special privileges inconsistent with the limitation on similar property in the floodplain or erosion hazard areas.
(3) If the floodplain board grants a variance from the provisions of this division, the city engineer shall provide written notice to the grantees of the variance as required by A.R.S. section 48-3609(J) that the property may be ineligible for exchange of state land pursuant to the statutory flood relocation and land exchange program. The city clerk shall record a copy of the notice in the office of the county recorder so that the notice appears in the chain of title of the affected parcel of land.
(4) The issuance of a variance to construct a structure below the base flood level may result in increased premium rates for flood insurance up to amounts as high as twenty-five dollars ($25.00) for one hundred dollars ($100.00) of insurance coverage as determined by the insurance carrier.
(5) The floodplain administrator shall maintain a record of all variance actions, including justification for their issuance and report such variances issued in its biennial report submitted to FEMA.
(c) Application and hearing. The following application and hearing procedures apply to an appeal of a decision of the city engineer, or a variance request, or combination thereof:
(1) The application shall be in writing and filed with the city engineer. The application shall include technical evidence prepared by an Arizona registered professional engineer in support of the appeal or variance request.
a. An application for an appeal shall state why the decision of the city engineer is in error and shall contain a concise explanation of all matters in dispute and any pertinent maps, drawings, data or other information in support of the appeal.
b. An application for a variance shall state the code section from which the variance is sought and shall include any pertinent maps, drawings, data or other information why the variance should be granted.
(2) Incomplete applications shall not be accepted.
a. Within three (3) working days after the receipt of the application, or any additional materials or information as provided for below, the city engineer shall notify the applicant whether or not the application is deemed complete.
b. If the application is determined to be incomplete, the applicant shall submit additional materials and information as may be reasonably determined necessary by the city engineer.
(3) Within twenty (20) working days after accepting an appeal or variance request, the city engineer may submit a copy of the appeal or variance request, together with all available pertinent documents and information to SAC or STAC as designated at the time by the floodplain administrator. If SAC or STAC determines that the appeal or variance request raises technical questions or issues, SAC or STAC may review the request and provide written conclusions and recommendations to the floodplain board. The conclusions for a variance request must address the findings required in section 26-12(d) for the granting of a variance by the floodplain board.
a. Within twenty (20) working days after the receipt of the application, or any additional materials or information as provided for below, the city engineer shall notify the applicant whether or not the application is deemed complete.
(d) In considering such applications, the floodplain board shall consider all technical evaluations, all relevant factors, standards specified in other sections of this ordinance, 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 individual owner;
(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 expected at the site; and,
(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, water system and streets and bridges.
(e) A variance shall be granted only if, based on technical evidence prepared by an Arizona registered professional engineer, the floodplain board finds all of the following:
(1) A showing of good and sufficient cause.
(2) That the variance is the minimum necessary, considering the flood hazard, to afford relief.
(3) That failure to grant the variance would result in exceptional hardship to the applicant. An exceptional hardship is one that is exceptional, unusual and peculiar to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, personal preferences or the disapproval of one's neighbors likewise cannot, as a rule, qualify as an exceptional hardship. All of these problems can be resolved through other means without granting a variance, even if the alternative is more expensive, or requires the property owner to build elsewhere or put the parcel to a different use than originally intended.
(4) That the granting of the variance will not create a danger or hazard to life or property in the area, or result in increased flood heights; additional threats to public safety; extraordinary public expense; the creation of a nuisance; the victimization of or fraud on the public; and that the variance is not in conflict with other city ordinances or regulations.
(5) That special circumstances, such as size, shape, topography, location, or surroundings of the property would cause strict application of the regulations to deprive the property of privileges enjoyed by similar property in the floodplain or erosion hazard areas.
(6) That, for the repair, rehabilitation or restoration of structures listed in the National Register of Historic Places or the State Inventory of Historic Places, upon a determination that the proposed repair or rehabilitation will not preclude the structures' continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.
(7) Upon a showing that the use cannot perform its intended purpose unless it is located or carried out in close proximity to water. This includes only facilities defined as having “functionally dependent use”.
(8) That a reduction in erosion hazard set back is determined based on current flow rates, channel geometrics, bank soil conditions and follows the approaches recommended in relevant technical manuals.
(f) Variances shall not be issued within any floodway if any increase in flood levels during the base flood discharge would result.
(g) A variance is subject to conditions to ensure that the variance does not constitute a grant of special privileges inconsistent with the limitation on similar property in the floodplain or erosion hazard areas.
(h) If the floodplain board grants a variance from the provisions of this division, the city engineer shall provide written notice to the grantees of the variance that:
(1) The property may be ineligible for exchange of state land pursuant to the statutory flood relocation and land exchange program per A.R.S. 37-610. The city clerk shall record a copy of the notice in the office of the county recorder so that the notice appears in the chain of title of the affected parcel of land;
(2) Such construction for a structure to be constructed below RFE increases risks to life and property; and
(3) The issuance of a variance to construct a structure below the RFE will result in increased premium rates for flood insurance as determined by the insurance carrier and NFIP regulations.
(i) The floodplain board shall hold a public hearing to consider an appeal or variance request within sixty (60) days after the city engineer accepted the application. After the close of the public hearing the mayor and council may:
(1) Uphold, reverse or modify the decision of the city engineer on appeal.
(2) Grant or deny the variance, subject to the findings for a variance set forth in these regulations.
(j) Stormwater technical advisory committee (STAC). The STAC shall make recommendations to the director of the department of transportation and mobility to be forwarded to the mayor and council on technical issues raised by appeals and variance requests.
(1) Within three (3) days after accepting an appeal or variance request, the city engineer shall submit a copy of the appeal or variance request, together with all available pertinent documents and information to STAC. If STAC determines that the appeal or variance request raises technical questions or issues, STAC may review the request and provide written conclusions and recommendations to the floodplain board. The conclusions for a variance request must address the findings required in section 26-12(b)(1) for the granting of a variance by the floodplain board.
(2) Reserved.
(k) Stormwater advisory committee (SAC). The SAC shall review all proposed amendments to Chapter 26 of the Tucson Code and shall provide written conclusions and recommendations to the director of the department of transportation and mobility to be forwarded to the mayor and council and to the planning commission, as applicable, prior to a public hearing on the proposed amendments.
(Ord. No. 7407, § 5, 6-25-90; Ord. No. 8309, § 1, 9-26-94; Ord. No. 9582, §§ 4, 5, 8-6-01; Ord. No. 10311, § 1, 8-8-06; Ord. No. 11396, § 1, 8-9-16; Ord. No. 11801, § 1, 12-8-20)