When the county can grant a flood zone variance

A variance from this chapter may be issued by the director of public works only upon the applicant meeting the variance criteria of this section. The variance criterion set forth in this section are based on the general principle of zoning law that variances pertain to a piece of property and are not personal in nature. A properly issued variance is granted for a parcel of property with physical characteristics so unusual that complying with the requirements of this chapter 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. It is the duty of the County of Hawai‘i to help protect its citizens from flooding. This need is so compelling and the implications of the cost of insuring a structure built below flood level are so serious that variances from the flood elevation or from other requirements of this chapter are quite rare. The variance guidelines are detailed and contain multiple provisions that must be met before a variance can be properly granted. The following criterion are designed to screen out those situations in which alternatives other than a variance are more appropriate: (a) Generally, variances may be issued for new construction, improvements to repetitive loss structures, 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 articles 3 and 4 of this chapter have been fully considered. As the lot size increases beyond one-half acre, the technical justification required for issuing the variance increases. (b) Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result. FLOODPLAIN MANAGEMENT § 27-27 (c) Variances shall only be issued upon: (1) A showing of good and sufficient cause. Under this criterion, the applicant must demonstrate that the variance request is for land which has physical characteristics so unusual that complying to flood requirements will create exceptional hardship to the applicant or surrounding landowners. The unique characteristic must pertain to the land itself and not the structure, its inhabitants, or the property owner. Under this criterion, only exceptional instances should arise where the physical characteristics of properties create a hardship sufficient to justify granting a variance. Even in a fairly common situation where an undeveloped lot is surrounded by properties with structures built at grade and/or below flood levels, a variance cannot be justified since an applicant can erect the concerned structure on pilings, etc.; (2) A determination that failure to grant the variance would result in exceptional “hardship” (as defined in section 27-12) to the applicant. Under this criterion, the hardship that would result from failure to grant a requested variance must be exceptional, unusual, and peculiar to the property involved. Economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical disabilities, personal preferences, or the disapproval of one’s neighbors cannot, generally, qualify as exceptional hardship. Under this criterion, for example, a member of a household has a physical disability and wants a variance to build the dwelling at grade or at a lower level for access purposes. A variance should not be issued because the owner can construct a ramp or elevator to meet flood requirements. Elevation will allow the infirm or persons with disabilities to be evacuated in the early stage of flooding, and, if there is insufficient warning or help in evacuating that person, then, in all likelihood, he can survive the flood by simply remaining in the home safely above the levels of floodwaters; (3) A determination that the variance is the “minimum necessary” (as defined in section 27-12), considering the flood hazard, to afford relief. Under this criterion, the variance that is granted should be for the minimum deviation from the flood requirements that will still alleviate the hardship. In the case of variance to an elevation requirement, this does not mean approval to build at grade level or to whatever elevation an applicant proposes, but rather to a level that the director of public works determines will provide relief and preserve the integrity of the flood ordinance; and (4) 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 or victimization” (as defined in section 27-12) of the public, or conflict with existing local laws or ordinances. Under this criterion, an applicant must demonstrate that flood levels will not be raised above the base flood elevations. (d) Variances may be issued for new construction, improvements to repetitive loss structures, substantial improvement, and other proposed new development necessary for the conduct of a “functionally dependent use” (as defined in section 27-12) provided that the provisions of paragraphs 27-27(a) through 27-27(c) are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety. (e) Variances may be issued for the repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure’s continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure. (f) Variances may be issued for improvement of a structure to correct existing violations of State or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions. (g) Variances may be approved with conditions. Such conditions may include: (1) Modification of the construction or substantial improvement, including the sewer and water facilities. (2) Limitations on periods of use and operation. (3) Imposition of operational controls, sureties, and deed restrictions. (4) Requirements for construction of channels, dikes, ditches, swales, levees, and other flood-protective measures. (5) Floodproofing measures designed consistent with the regulatory flood elevation, flood velocities, hydrostatic and hydrodynamic forces, and other factors associated with the base flood. (6) Other conditions as may be required by the director of public works to promote public welfare and safety. (1993, ord 93-78, sec 3; am 2001, ord 01-108, sec 1; am 2007, ord 07-169, sec 18.)27-27