When the county can grant a flood rule exception

Standards. A variance from this Article may be issued by the County Engineer only upon an application meeting the following standards:There is a good and sufficient cause for requesting a variance;The applicant will suffer exceptional hardship should the variance be denied;A variance is the minimum necessary, considering the flood hazard, to afford relief; andA variance will not increase base flood heights, create additional threats to public safety, create extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.Considerations Applicable to Standards. The Federal Emergency Agency (FEMA) has developed principles and guidelines for the approval of any variance, and the intent of such is incorporated herein.These indicate that variances should be rarely granted, and compliance to flood requirements is a necessity.An explanation of the standards are as follows:Good and Sufficient Cause for Variance. Under this criteria, 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 land owners. The unique characteristics must pertain to the land itself and not the structure, its inhabitants or the property owner.Under this criteria, 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.Exceptional Hardships. Under this criteria, the hardship that would result from failure to grant a requested variance must be exceptional, unusual, and peculiar to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or the disapproval of one's neighbors cannot, as a rule, qualify as exceptional hardship.As an example, a member of a household is physically handicapped 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 handicapped person 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 or she can survive the flood by simply remaining in the home safely above the levels of floodwaters.Increased Flood Heights. Under this criteria, an applicant must demonstrate that flood levels will not be raised above the base flood elevations.Minimum to Afford Relief. Under this criteria, 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 County Engineer determines will both provide relief and preserve the integrity of the flood ordinance.Conditions for Variance. Such conditions may include:Modification of the construction or substantial improvement including the sewer and water supply facilities.Limitations on periods of use and operation.Imposition of operational controls, sureties and deed restrictions.Requirements for construction of channels, dikes, levees and other flood-protective measures.Floodproofing measures designed consistent with the regulatory flood elevation, flood velocities, hydrostatic and hydrodynamic forces and other factors associated with the base flood.Other conditions as may be required by the County Engineer.Functionally dependent uses. A variance is authorized to be issued for the construction or substantial improvement necessary for the conduct of a functionally dependent use, as defined in this ordinance, provided the variance meets the requirements of the Section, is the minimum necessary considering the flood hazard, and all due consideration has been given to use of methods and materials that minimize flood damage during occurrence of the base flood.Application for Variance. An application for a variance shall be submitted to the County Engineer signed and stamped by a registered professional engineer or architect, and shall include three (3) sets of documents with the following information as may be applicable.Plans and specifications showing the site and location; dimensions of all property lines and topographic elevation of the lot; existing and proposed structures and improvements, fill, storage area; location and elevations of existing and proposed streets and utilities; floodproofing measures; relationship of the site to the location of the flood boundary; floodway; and the existing and proposed flood control measures and improvements.Cross-sections and profile of the area and the regulatory flood elevations and profile based on elevation reference marks on flood maps.Flood study and drainage report in areas where study and report have not been reviewed and accepted by the County.Description of surrounding properties and existing structures and uses and the effect of the regulatory flood on them caused by the variance.Evaluation and supporting information for the variance with respect to each of the four (4) factors to be considered by the County Engineer as listed in Subsection (b) of this Section.An agreement, executed by the property owner, that a covenant will be inserted in the deed and other conveyance documents of the property and filed with the Bureau of Conveyances of the State of Hawai'i stating that the property is located in a flood hazard area subject to flooding and flood damage; that a flood hazard variance to construct a structure below the base flood elevation will result in increased flood insurance premium rates and increased flood risks to life and property; that the property owners will not file any lawsuit or action against the County for costs or damages or any claim; that the property owners will indemnify and hold harmless the County from liability when such loss, damage, injury, or death results due to flood hazard variance and flooding of the property; and that upon approval of the variance, the covenants shall be fully executed and proof of filing with the Bureau of Conveyances shall be submitted to the County Engineer prior to the issuance of a building permit.Such other information as may be relevant and requested by the County Engineer.Notification and Record Keeping. The County Engineer shall notify the applicant in writing over the signature of a County official that (i) the issuance of a variance to construct a structure below the base flood elevation will result in increased premium rates for flood insurance up to as high as twenty-five dollars ($25.00) for one hundred dollars ($100.00) of insurance coverage, and (ii) such construction below the base flood level increases risk to life and property. Such notification shall be maintained with a record of all variance actions. The County shall (i) maintain a record of all variance actions, including justification for their issuance, and (ii) report such variances issued in its annual or biennial report submitted to the Federal Emergency Management Agency.