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(a) General: Upon receiving an application for a floodplain use permit, the city engineer shall, within twenty (20) working days, review the application to ensure that the site is reasonably safe from flooding, declare the application complete, or:
(1) Require the applicant to submit, where applicable, plans in triplicate drawn to scale, showing the nature, location, dimensions and elevation of the lot, existing or proposed structures, fill, storage of materials, floodproofing measures (existing nonresidential structures only), and the relationship of the above to the location of any watercourse channel, floodway, regulatory floodplain, erosion hazard area boundaries, and the regulatory flood elevation of the structures. All elevations or vertical distances must be referenced to an established datum or base elevation.
(2) Require the applicant to furnish as much of the following additional information as the city engineer deems necessary for the evaluation of effects of the proposed development upon flood flows and erosion:
a. A typical valley cross section showing the channel of the stream, elevation of land areas adjoining each side of the channel, cross sectional areas to be occupied by the proposed development, and high water information.
b. Plan (surface view) showing elevations or contours of the ground; structure, fill or storage elevations; size, location and spatial arrangement of all proposed and existing structures on the site; location and elevations of streets, water supply lines, sanitary sewers and waste disposal facilities; photographs showing existing land uses and vegetation upstream and downstream; soil types; and other pertinent information.
c. Profile showing the slope of the bottom of the channel or flow line of the stream or watercourse.
d. Specifications for building construction and materials, filling, dredging, grading, channel improvement, storage of materials, water, and sewage facilities.
e. An engineering study prepared by a state-registered professional civil engineer outlining the effects the development will have on the flow of water through the area being developed and the surrounding areas. This study will be for the purpose of evaluating possible flood hazards and shall, where necessary, include consideration of the effects of the development on flood heights, water velocities, direction of flow, sedimentation and/or erosion, volume of flows, channel shape and size, type of channel banks and other items that may be pertinent, and the resultant effects or structures, land, banks, etc., for the adjacent regulatory floodplain and the surrounding area.
f. A soils investigation study prepared by a state-registered professional civil engineer, outlining the determination of the erosive properties of areas or lands to be graded or disturbed which may create sediment deposition or erosion in any watercourse or watershed regulated by this chapter.
(3) Require applicants to submit an additional copy of the development plan and/or subdivision plat, including the pertinent reports of the studies performed for forwarding to the county flood control district ("district"), if the proposed development in the floodplain is located within one (1) mile of the boundary between the city and the district's area of jurisdiction. The city shall also advise any city or town in writing and provide a copy of any development plan of any major development proposed within a regulatory floodplain, floodway or erosion hazard area which could affect regulatory floodplains, floodways, erosion hazard areas or watercourses within the district's area of jurisdiction. Written notice as required above and a copy of the plan of development shall be sent to any adjacent jurisdiction no later than three (3) working days after having been received by the city.
(4) Require the applicant to obtain all necessary permits from those governmental agencies from which approval is required by federal or state law, including section 404 of the Federal Water Pollution Control Act Amendment of 1972, 33 U.S.C. 1334.
(b) Conditions: Any floodplain use permit may be subject to conditions or restrictions designed to reduce or mitigate the potential damage or hazard to life or property resulting from development within the regulatory floodplain, floodway or erosion hazard areas.
Any grading or alteration (including excavation) of any watercourse regulated by this chapter shall be controlled to minimize the loss of soil through erosion from rainfall or stormwater flowage. Methods to control erosion and sedimentation must be demonstrated to the satisfaction of the city engineer prior to the granting of a floodplain use permit for any work in any floodplain. Both temporary and permanent measures for sediment and erosion control must be clearly delineated on plans or other written documents prior to receiving a floodplain use permit.
Examples of conditions that may be imposed include, but are not limited to, the following:
(1) Modification of sanitary sewer, waste disposal, and water supply facilities.
(2) Limitations on periods of use and hours of operation.
(3) Imposition of operational controls, sureties related to temporary uses, and deed restrictions.
(4) Requirements for construction of channel modifications, dikes, levees and other protective measures.
(5) All new construction and substantial improvements (including the placement of prefabricated buildings and manufactured homes) shall:
a. Be designed (or modified) and adequately anchored to prevent flotation, collapse or lateral movement of the structure;
b. Be constructed with materials and utility equipment resistant to flood and erosion damage; and
c. Be constructed by methods and practices that minimize flood and erosion damage.
(6) Indemnification agreements whereby the applicant agrees to hold the city and its officials, employees and agents, harmless and defend them from any and all claims for damages now and in the future relating to the use of the property sought to be developed by reason of flooding, flowage, erosion or damage caused by water, whether surface, flood or rainfall.
(7) Dry floodproofing measures for existing nonresidential structures, which shall be designed to be consistent with the regulatory flood elevation for the particular area, flood velocities, durations, rate of rise, hydrostatic and hydrodynamic forces, and other factors associated with the base flood. The city engineer may require that the applicant submit a plan or document certified by a state-registered professional civil engineer that the floodproofing measures are consistent with the regulatory flood elevation and associated flood factors for the particular area. Examples of floodproofing measures may be obtained from the city engineer approved drainage design standards. Floodproofing for nonresidential structure construction or new or substantial damage repairs or improvements shall either be elevated to conform to regulations, or together with attendant utility and sanitary facilities:
a. Be floodproofed so that the structure is watertight with walls substantially impermeable to the passage of water; and
b. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and
c. If structure is elevated, be certified by a registered professional surveyor as certified by an accepted dry floodproofing elevation certificate;
d. If structure is floodproofed by other means than elevating, be certified by a civil engineer.
(8) Wet floodproofing requires flood vent certification. All new construction and substantial damage repairs or improvements 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 automatic entry and exit of floodwater. Designs for meeting this requirement must meet or exceed the following criteria:
a. Have a minimum of two (2) openings, on different sides of each enclosed area, having a total net area of not less than one (1) square inch for every square foot of enclosed area subject to flooding. The bottom of all openings shall be no higher than one (1) 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; or
b. Alternatively, a registered civil engineer may design and wet-floodproof-certify the openings.
(c) Revocation of Permit: Any person who fails to comply with the terms of the floodplain use permit or has created situations that can be a danger to life and property as determined by the city engineer shall be subject to revocation of the floodplain use permit by the city engineer upon written notice by registered mail to the applicant citing the reasons for revocation. The person holding the floodplain use permit or any affected party may appeal the decision of the city engineer by requesting in writing a hearing before the floodplain board in accordance with section 26-12.
(d) Removal of violation: Upon written notice, the city engineer may cause any structure, encroachment or work constructed without a floodplain use permit, or which is in violation with the terms of a permit, to be removed immediately at the expense of the person who caused the structure, encroachment or work if the structure, encroachment or work will cause an immediate danger to life and property.
(e) Recovery of costs: The city shall be entitled to recover all costs, administrative, engineering and legal, as well as actual costs to remove or modify the structure, encroachment and/or any other work in violation of this chapter.
(f) Factors upon which a decision of the city engineer shall be based: In reviewing floodplain use permit applications, the city engineer shall consider, in addition to relevant factors specified in other sections of these regulations, any other provision of law relating to such development. In making such a determination, the city engineer may consider the following factors:
(1) The danger to life and property due to increased flood heights, velocities or altered direction of flow caused by the development.
(2) The danger that materials may be swept onto other lands or downstream to cause injury to others.
(3) The proposed water supply, sanitary sewer systems and waste disposal systems of any development and the ability of these systems to prevent disease, contamination and unsanitary conditions due to flooding and/or erosion.
(4) The susceptibility of the proposed development and/or its contents to flood and erosion damage and the effect of such damage on the individual owner.
(5) The availability of alternative locations for the proposed use on the same property which are not subject to flooding or erosion.
(6) The compatibility of the proposed use with existing regulatory floodplain uses and with floodplain management programs anticipated in the foreseeable future.
(7) The relationship of the proposed use to any comprehensive plan, basin management plan, neighborhood plan, and floodplain management program for the area.
(8) The safety of access to the property in times of flood for conventional and emergency vehicles.
(9) The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters expected at the site under both existing and proposed conditions.
(10) The enhancement and preservation of groundwater recharge and the potential pollution of the groundwater supply.
(11) Such other factors, including but not limited to cost to the city, which are relevant to the purposes of these regulations.
(12) Documentation that all necessary permits have been obtained from state and federal agencies.
(g) Decision: The city engineer shall, within twenty (20) working days of the application's being declared complete, render a decision on the floodplain use permit. A floodplain use permit shall be denied if the proposed development constitutes a danger or hazard to life and/or property.
(h) Certificate of flood elevation: Prior to the issuance of final occupancy permits for development undertaken pursuant to a floodplain permit, the applicant shall submit, on a form provided by the city, certification that the elevation (in relation to mean sea level) of the lowest floors (including basement) of all new or substantially improved, or substantially damage repaired, structures is at or above the regulatory flood elevation. The certificate shall also disclose the method used to determine the regulatory flood elevation and the required erosion hazard setback, if any. The certification shall be signed by a state-registered professional civil engineer or land surveyor. Following acceptance of a certificate by the city engineer, a copy shall also be maintained in the building safety division records of the development. For elevation certificate for projects in SFHA or other jurisdictional floodplains, use current FEMA form for both stages for Building Under Construction and for Finished Construction.
The city engineer shall maintain for public inspection and furnish upon request, for the determination of applicable flood insurance risk premium rates within all areas having special flood hazards identified on an FHM or FIRM, any certifications and information on the elevation (in relation to mean sea level) of the level of the lowest flood (including basement) of all new or substantially improved structures.
(i) Floodplain administrator is responsible for record keeping and shall obtain and maintain for public inspection and make available as needed:
(3) Certification required by section 26-11.2(b)(8) (flood vents);
(5) Certification required by section 26-5.1(5) (floodway encroachments);
(6) Records of all variance actions, including justification for their issuance;
(7) Obtain and maintain improvement and damage calculations required in section 26-4.1(2);
(j) Fees: The following fees are imposed on applications for floodplain use permits:
Flood status requests . . . . . $ 15.00
Floodplain use permit . . . . . 50.00
Review of engineering studies, including review of first resubmittal . . . . . 150.00
Review of subsequent resubmittals . . . . . 300.00
(Ord. No. 7407, § 5, 6-25-90; Ord. No. 11396, § 1, 8-9-16)
(a) Civil infraction: Except as provided in subsection (b) below, it is unlawful and is hereby declared a civil infraction for any person to:
(1) Fail to obtain any floodplain use permit; or
(2) Fail to comply with the terms and conditions of any permit required by this chapter; or
(3) Violate any of the provisions of this chapter.
All violations under this section shall be heard under the procedures set forth in chapter 8 of this Code. Additionally, any person found responsible under this section shall be punished by a fine of not less than fifty dollars ($50.00) and not more than twenty-five hundred dollars ($2,500.00). The administrative hearing officer may also order abatement of the violation. Furthermore, where the provisions of chapter 8 conflict with the provisions of this section, this section shall govern.
(b) Class 2 Misdemeanor: Pursuant to A.R.S. section 48-3615, it is unlawful and is hereby declared a class 2 misdemeanor for any person to engage in any development or by any acts to cause a diversion, retardation or obstruction to the flow of waters in a watercourse whenever it creates a hazard to life or property and without securing the permit required by any provision of this chapter. Any person found guilty of violating this section shall be punished by a fine not to exceed more than seven hundred fifty dollars ($750.00) or four (4) months' imprisonment, or both. In addition, a person convicted of a class 2 misdemeanor may be placed on probation for a period not to exceed twenty-four (24) months.
(Ord. No. 7407, § 5, 6-25-90; Ord. No. 10311, § 1, 8-8-06; Ord. No. 11396, § 1, 8-9-16)
All development located or maintained in a floodplain since August 8, 1973, in violation of Title 48, Chapter 21, Article 1 of the Arizona Revised Statutes or of floodplain regulations established by this chapter and without written authorization from the floodplain board is a public nuisance per se and may be abated, prevented or restrained by action of the City of Tucson. To abate violations, the city may:
(a) Take any necessary action to effect the abatement of such violation; or
(b) Issue a variance to this ordinance in accordance with the provisions of section 26-12 herein; or
(c) Order the owner of the property upon which the violation exists to provide whatever additional information may be required for their determination; or
(d) Submit to the Federal Emergency Management Agency a declaration for denial of insurance, stating that the property is in violation of a cited state or local law, regulation or ordinance, pursuant to Section 1316 of the National Flood Insurance Act of 1968 as amended.
(Ord. No. 10311, § 1, 8-8-06; Ord. No. 11396, § 1, 8-9-16)
(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)
(a) SAC or STAC, as determined at the time by the floodplain administrator, 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 prior to a public hearing on the proposed amendments. Floodplain administrator shall request the directors of the planning and development services department and department of transportation and mobility to reconstitute or convene as necessary the SAC or STAC.
(b) Pursuant to A.R.S. Sec. 48-3609.02, prior to the adoption, amendment or repeal of any provision of this chapter the following shall occur:
(1) City department through the floodplain administrator shall provide at least two weeks' notice of a meeting at which the public may provide comments on draft language of any proposed rule. Notice shall include the entire text of the draft proposed rule and it shall be made available to the public. Written and verbal comments on the draft language shall be accepted by floodplain administrator.
(2) City department through the floodplain administrator shall provide at least two weeks' notice of a meeting at which the final text of the proposed rule is considered by the mayor and council. Notice shall include the entire text of the final version of the proposed rule and it shall be made available to the public. At least one week before this meeting, floodplain administrator shall provide the public with the department's written responses to the written public responses generated as a result of the meeting required under subsection (1) above, and may provide written responses to the verbal public comments generated as a result of the meeting required under subsection (1) above.
(3) City department through the floodplain administrator shall provide mayor and council with copies of the public comments and the department's written responses to those public comments. If as a result of public comments or internal review, mayor and council determines that the text of a proposed rule requires substantial change, mayor and council shall issue a supplemental notice containing the changes to the proposed rule and shall provide for additional public comment before adoption.
(4) City department through the floodplain administrator may provide the notices required by this section on the department/city's website.
(Ord. No. 11396, § 1, 8-9-16; Ord. No. 11801, § 1, 12-8-20)
The degree of flood and erosion protection required by these regulations is considered reasonable for regulatory purposes and is based on engineering and scientific methods of study. Larger floods may occur on rare occasions or the flood height may be increased by manmade or natural causes, such as bridge openings restricted by debris. These regulations do not imply that areas outside the floodplain or erosion hazard area boundaries or land uses permitted within such area will be free from flooding or flood and erosion damages. These regulations shall not create liability on the part of the city or any officer or employee thereof for any flood or erosion damages that may result from reliance on any administrative decision lawfully made thereunder.
(Ord. No. 7407, § 5, 6-25-90; Ord. No. 11396, § 1, 8-9-16)
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