Chapter 27E
FLOODPLAIN MANAGEMENT ORDINANCE

Sections:

ARTICLE I. STATUTORY AUTHORIZATION, FINDINGS OF FACT, PURPOSE AND METHODS

27E.1    Statutory authorization.

27E.2    Findings of fact.

27E.3    Statement of purpose.

27E.4    Methods of reducing flood losses.

ARTICLE II. DEFINITIONS

27E.5    Definitions.

ARTICLE III. GENERAL PROVISIONS

27E.6    Lands to which this chapter applies.

27E.7    Basis for establishing the areas of special flood hazard.

27E.8    Compliance.

27E.9    Abrogation and greater restrictions.

27E.10    Interpretation.

27E.11    Warning and disclaimer of liability.

27E.12    Severability.

ARTICLE IV. ADMINISTRATION

27E.13    Designation of the floodplain administrator.

27E.14    Duties and responsibilities of the floodplain administrator.

27E.15    Development permit.

27E.16    Appeals.

ARTICLE IV. PROVISIONS FOR FLOOD HAZARD REDUCTION

27E.17    Standards of construction.

27E.18    Standards for utilities.

27E.19    Standards for subdivisions and other proposed development.

27E.20    Standards for manufactured homes.

27E.21    Standards for recreational vehicles.

27E.22    Floodways.

27E.23    Engineered fill.

ARTICLE VI. VARIANCE PROCEDURE

27E.24    Nature of variances.

27E.25    Conditions for variances.

27E.26    Appeal board.

ARTICLE I. STATUTORY AUTHORIZATION, FINDINGS OF FACT, PURPOSE AND METHODS

27E.1 Statutory authorization.

The Legislature of the State of California has in Government Code sections 65302, 65560, and 65800 conferred upon local governments the authority to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry. Therefore, the city council of the City of Gilroy does hereby adopt the following floodplain management regulations. (Ord. No. 2017-01, § 2, 1-9-17)

27E.2 Findings of fact.

(a) The flood hazard areas of the City of Gilroy are subject to periodic inundation which results in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare.

(b) These flood losses are caused by uses that are inadequately elevated, floodproofed, or protected from flood damage. The cumulative effect of obstructions in areas of special flood hazards which increase flood heights and velocities also contributes to flood losses. (Ord. No. 2017-01, § 2, 1-9-17)

27E.3 Statement of purpose.

It is the purpose of this chapter to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood conditions in specific areas by legally enforceable regulations applied uniformly throughout the community to all publicly and privately owned land within flood prone, mudslide (i.e., mudflow) or flood related erosion areas. These regulations are designed to:

(a) Protect human life and health;

(b) Minimize expenditure of public money for costly flood control projects;

(c) Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;

(d) Minimize prolonged business interruptions;

(e) Minimize damage to public facilities and utilities such as water and gas mains; electric, telephone and sewer lines; and streets and bridges located in areas of special flood hazard;

(f) Help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future blighted areas caused by flood damage;

(g) Ensure that potential buyers are notified that property is in an area of special flood hazard; and

(h) Ensure that those who occupy the areas of special flood hazard assume responsibility for their actions. (Ord. No. 2017-01, § 2, 1-9-17)

27E.4 Methods of reducing flood losses.

In order to accomplish its purposes, this chapter includes regulations to:

(a) Restrict or prohibit uses which are dangerous to health, safety, and property due to water or erosion hazards, or which result in damaging increases in erosion or flood heights or velocities;

(b) Require that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction;

(c) Control the alteration of natural floodplains, stream channels, and natural protective barriers, which help accommodate or channel floodwaters;

(d) Control filling, grading, dredging, and other development which may increase flood damage; and

(e) Prevent or regulate the construction of flood barriers which will unnaturally divert floodwaters or which may increase flood hazards in other areas. (Ord. No. 2017-01, § 2, 1-9-17)

ARTICLE II. DEFINITIONS

27E.5 Definitions.

Unless specifically defined below, words or phrases used in this chapter shall be interpreted so as to give them the meaning they have in common usage and to give this chapter its most reasonable application.

A Zone. See “Special flood hazard area (SFHA).”

“Accessory structure” means a structure that is either:

(1) Solely for the parking of no more than two (2) cars; or

(2) A small, low-cost shed for limited storage, less than one hundred fifty (150) square feet and one thousand five hundred dollars ($1,500) in value.

“Accessory use” means a use which is incidental and subordinate to the principal use of the parcel of land on which it is located.

“Appeal” means a request for a review of the floodplain administrator’s interpretation of any provision of this chapter.

“Area of shallow flooding” means a designated AO or AH Zone on the Flood Insurance Rate Map (FIRM). The base flood depths range from one (1) to three (3) feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident. Such flooding is characterized by ponding or sheet flow.

Area of Special Flood Hazard. See “Special flood hazard area.”

“Base flood” means a flood which has a one percent (1%) chance of being equaled or exceeded in any given year (also called the “one hundred (100) year flood”). “Base flood” is the term used throughout this chapter.

“Base flood elevation (BFE)” means the elevation shown on the Flood Insurance Rate Map for Zones AE, AH, A1-30, VE and V1-V30 that indicates the water surface elevation resulting from a flood that has a one percent (1%) or greater chance of being equaled or exceeded in any given year.

“Basement” means any area of the building having its lowest floor more than two (2) feet subgrade—i.e., below ground level—on all sides.

“Biennial report” means the report completed by communities participating in the National Flood Insurance Program that describes the community’s progress in the previous two (2) years in implementing floodplain management measures and on its needs for remapping and technical assistance. This report is submitted annually or biennially as determined by the administrator of the National Flood Insurance Program.

Building. See “Structure.”

“Conditional letter of map revision (CLOMR)” means FEMA’s comment on a proposed project that would, upon construction, affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective base flood elevations (BFEs), or the special flood hazard area (SFHA). The CLOMR does not revise an effective NFIP map. The CLOMR indicates whether the project, if built as proposed, would be recognized by FEMA.

“Crawlspace” means the enclosed area contained inside the foundation walls and below the habitable floor of a structure. Crawlspaces having the lowest floor two (2) feet or less below grade level on all sides shall not be considered a basement.

“Development” means any manmade change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.

“Encroachment” means the advance or infringement of uses, plant growth, fill, excavation, buildings, permanent structures or development into a floodplain which may impede or alter the flow capacity of a floodplain.

“Existing manufactured home park or subdivision” means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before July 21, 1980.

“Expansion to an existing manufactured home park or subdivision” means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads).

“Flood,” “flooding,” or “floodwater” means:

(1) A general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland or tidal waters; the unusual and rapid accumulation or runoff of surface waters from any source; and/or mudslides (i.e., mudflows); and

(2) The condition resulting from flood related erosion.

“Flood Boundary and Floodway Map (FBFM)” means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the floodway.

“Flood Insurance Rate Map (FIRM)” means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community.

“Flood Insurance Study” means the official report provided by the Federal Insurance Administration that includes flood profiles, the Flood Insurance Rate Map, the Flood Boundary and Floodway Map, and the water surface elevation of the base flood.

“Floodplain or flood prone area” means any land area susceptible to being inundated by water from any source—see “Flood,” “flooding,” or “floodwater.”

“Floodplain administrator” is the community official designated by title to administer and enforce the floodplain management regulations.

“Floodplain management” means the operation of an overall program of corrective and preventive measures for reducing flood damage and preserving and enhancing, where possible, natural resources in the floodplain, including but not limited to emergency preparedness plans, flood control works, floodplain management regulations, and open space plans.

“Floodplain management regulations” means this chapter and other zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as grading and erosion control) and other application of police power which control development in flood prone areas. This term describes federal, state or local regulations in any combination thereof which provide standards for preventing and reducing flood loss and damage.

“Floodproofing” means any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures, and their contents. For guidelines on dry and wet floodproofing, see FEMA Technical Bulletins TB 1-93, TB 3-93, and TB 7-93, and subsequent amendments and/or revisions thereto.

(1) “Dry floodproofing” means floodproofing measures that are designed to prevent floodwaters from entering a structure. Dry floodproofing techniques may include, but are not limited to, installation of closure and sealants, watertight walls, small floodwalls or levees, flood shields, and watertight doors.

(2) “Wet floodproofing” means floodproofing measures that minimize damage to a structure and its contents from floodwater that is allowed into the structure.

“Floodway” means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one (1) foot. Also referred to as “regulatory floodway.”

“Floodway fringe” is that area of the floodplain on either side of the “regulatory floodway” where encroachment may be permitted.

“Fraud and victimization” as related to Article VI of this chapter means that the variance granted must not cause fraud on or victimization of the public. In examining this requirement, the city council of the City of Gilroy will consider the fact that every newly constructed building adds to government responsibilities and remains a part of the community for fifty (50) to one hundred (100) years. Buildings that are permitted to be constructed below the base flood elevation are subject during all those years to increased risk of damage from floods, while future owners of the property and the community as a whole are subject to all the costs, inconvenience, danger, and suffering that those increased flood damages bring. In addition, future owners may purchase the property, unaware that it is subject to potential flood damage, and can be insured only at very high flood insurance rates.

“Functionally dependent use” means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, and does not include long term storage or related manufacturing facilities.

“Governing body” is the local governing unit, i.e., county or municipality, that is empowered to adopt and implement regulations to provide for the public health, safety and general welfare of its citizenry.

“Hardship” as related to Article VI of this chapter means the exceptional hardship that would result from a failure to grant the requested variance. The city council of the City of Gilroy requires that the variance 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 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.

“Highest adjacent grade” means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

“Historic structure” means any structure that is:

(1) Listed individually in the National Register of Historic Places (a listing maintained by the Department of the Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;

(2) Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district;

(3) Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior; or

(4) Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either by an approved state program as determined by the Secretary of the Interior or directly by the Secretary of the Interior in states without approved programs.

“Letter of map revision (LOMR)” means FEMA’s modification to an effective Flood Insurance Rate Map (FIRM), or Flood Boundary and Floodway Map (FBFM), or both. LOMRs are generally based on the implementation of physical measures that affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective base flood elevations (BFEs), or the special flood hazard area (SFHA). The LOMR officially revises the FIRM or FBFM, and sometimes the Flood Insurance Study (FIS) report, and when appropriate, includes a description of the modifications. The LOMR is generally accompanied by an annotated copy of the affected portions of the FIRM, FBFM, or FIS report.

“Letter of map revision based on fill (LOMR-F)” means FEMA’s modification of the SFHA shown on the FIRM based on the placement of fill outside the existing regulatory floodway.

“Levee” means a manmade structure, usually an earthen embankment, designed and constructed in accordance with sound engineering practices to contain, control or divert the flow of water so as to provide protection from temporary flooding.

“Levee system” means a flood protection system which consists of a levee, or levees, and associated structures, such as closure and drainage devices, which are constructed and operated in accord with sound engineering practices.

“Lowest floor” means the lowest floor of the lowest enclosed area, including basement (see “Basement” definition).

(1) An unfinished or flood resistant enclosure below the lowest floor that is usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building’s lowest floor provided it conforms to applicable nonelevation design requirements, including, but not limited to:

a. The flood openings standard in section 27E.17(c)(3);

b. The anchoring standards in section 27E.17(a);

c. The construction materials and methods standards in section 27E.17(b); and

d. The standards for utilities in section 27E.18.

“Manufactured home” means a structure, transportable in one (1) or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when attached to the required utilities. The term “manufactured home” does not include a “recreational vehicle.”

“Manufactured home park or subdivision” means a parcel (or contiguous parcels) of land divided into two (2) or more manufactured home lots for rent or sale.

“Market value” means the current estimated fair market value of a structure, excluding the current estimated fair market value of the land on which the structure is located and the current estimated fair market value of any landscaping, and any detached accessory structures on such land. Market value shall be determined by using one (1) of the following methods:

(1) Using the current tax assessed value of the structure (for preliminary estimating) as provided by the Santa Clara County tax assessor’s office where the cost of the proposed improvement to the structure does not exceed forty percent (40%). In the event the cost of the improvement to the structure exceeds forty percent (40%) of the current tax assessed value of the structure, the market value shall be estimated using any of the methods below.

(2) Estimating the cost to replace the structure in new condition and adjusting that cost figure by the amount of depreciation which has accrued since the structure was constructed.

(3) Using an independent appraisal prepared by a qualified professional appraiser that is based on a building cost estimating method recognized by the building construction industry. The appraisal shall be reviewed and accepted by the floodplain administrator.

The cost of replacement of the structure shall be based on a square-foot cost factor determined by reference to a building cost estimating guide recognized by the building construction industry. The amount of depreciation shall be determined by taking into account the age and physical deterioration of the structure and functional obsolescence as approved by the floodplain administrator, but shall not include economic or other forms of external obsolescence.

Use of replacement costs or accrued depreciation factors different from those contained in recognized building cost estimating guides may be considered only if such factors are included in a report prepared by an independent professional appraiser and supported by a written explanation of the differences.

“Mean sea level” means, for purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929, North American Vertical Datum (NAVD) of 1988, or other datum, to which base flood elevations shown on a community’s Flood Insurance Rate Map are referenced.

“Mixed-use structure” means any structure that has only nonresidential uses in areas of the structure at or below the base flood elevation, but has residential uses in areas of the structure above the base flood elevation with access to residential uses dry floodproofed.

“New construction,” for floodplain management purposes, means structures for which the “start of construction” commenced on or after July 21, 1980, and includes any subsequent improvements to such structures.

“New manufactured home park or subdivision” means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after July 21, 1980.

“Obstruction” includes, but is not limited to, any dam, wall, wharf, embankment, levee, dike, pile, abutment, protection, excavation, channelization, bridge, conduit, culvert, building, wire, fence, rock, gravel, refuse, fill, structure, vegetation or other material in, along, across or projecting into any watercourse which may alter, impede, retard or change the direction and/or velocity of the flow of water, or due to its location, its propensity to snare or collect debris carried by the flow of water, or its likelihood of being carried downstream.

One Hundred (100) Year Flood. See “Base flood.”

“Program deficiency” means a defect in a community’s floodplain management regulations or administrative procedures that impairs effective implementation of those floodplain management regulations.

“Public safety and nuisance” as related to Article VI of this chapter means that the granting of a variance must not result in anything which is injurious to safety or health of an entire community or neighborhood, or any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin.

“Recreational vehicle” means a vehicle which is:

(1) Built on a single chassis;

(2) Four hundred (400) square feet or less when measured at the largest horizontal projection;

(3) Designed to be self-propelled or permanently towable by a light duty truck; and

(4) Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.

“Regulatory floodway” means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one (1) foot.

“Remedy a violation” means to bring the structure or other development into compliance with state or local floodplain management regulations, or if this is not possible, to reduce the impacts of its noncompliance. Ways that impacts may be reduced include protecting the structure or other affected development from flood damages, implementing the enforcement provisions of this chapter or otherwise deterring future similar violations, or reducing state or federal financial exposure with regard to the structure or other development.

“Repetitive loss” means flood-related damages sustained by a structure on two (2) separate occasions during a ten (10) year period for which the cost of repairs at the time of each such event, on the average, equals or exceeds twenty-five percent (25%) of the market value of the structure before the damage occurred.

“Riverine” means relating to, formed by, or resembling a river (including tributaries), stream, brook, etc.

Sheet Flow Area. See “Area of shallow flooding.”

“Special flood hazard area (SFHA)” means an area in the floodplain subject to a one percent (1%) or greater chance of flooding in any given year. It is shown on an FHBM or FIRM as Zone A, AO, A1-A30, AE, A99, or AH.

“Start of construction” includes substantial improvement and other proposed new development and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within one hundred eighty (180) days from the date of the permit. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading, and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.

“Structure” means a walled and roofed building that is principally above ground; this includes a gas or liquid storage tank or a manufactured home.

“Substantial damage” means:

(1) Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed fifty percent (50%) of the market value of the structure before the damage occurred; or

(2) Flood-related damages sustained by a structure on two (2) separate occasions during a ten (10) year period for which the cost of repairs at the time of each such event, on the average, equals or exceeds twenty-five percent (25%) of the market value of the structure before the damage occurred. This is also known as “repetitive loss.”

“Substantial improvement” means any combination of repairs, reconstruction, rehabilitation, addition, or other improvement of a structure taking place during a five (5) year period, the cumulative cost of which equals or exceeds fifty percent (50%) of the market value of the structure before the “start of construction” of the improvement. For each structure, the five (5) year period begins on the date of the first improvement or repair of that structure subsequent to the effective date of the ordinance codified in this chapter. This term includes structures which have incurred “substantial damage,” regardless of the actual repair work performed. The term does not, however, include either:

(1) Any project for improvement of a structure to correct existing violations or 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; or

(2) Any alteration of a “historic structure”; provided, that the alteration will not preclude the structure’s continued designation as a “historic structure.”

“Variance” means a grant of relief from the requirements of this chapter which permits construction in a manner that would otherwise be prohibited by this chapter.

“Violation” means the failure of a structure or other development to be fully compliant with this chapter. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in this chapter is presumed to be in violation until such time as that documentation is provided.

“Water surface elevation” means the height, in relation to the National Geodetic Vertical Datum (NGVD) of 1929, North American Vertical Datum (NAVD) of 1988, or other datum, of floods of various magnitudes and frequencies in the floodplains of coastal or riverine areas.

“Watercourse” means a lake, river, creek, stream, wash, arroyo, channel or other topographic feature on or over which waters flow at least periodically. Watercourse includes specifically designated areas in which substantial flood damage may occur. (Ord. No. 2017-01, § 2, 1-9-17)

ARTICLE III. GENERAL PROVISIONS

27E.6 Lands to which this chapter applies.

This chapter shall apply to all areas of special flood hazards within the jurisdiction of the City of Gilroy. (Ord. No. 2017-01, § 2, 1-9-17)

27E.7 Basis for establishing the areas of special flood hazard.

The areas of special flood hazard identified by the Federal Emergency Management Agency (FEMA) in the “Flood Insurance Study (FIS) for Santa Clara County, California and Incorporated Areas” dated May 18, 2009, with accompanying Flood Insurance Rate Maps (FIRMs) and Flood Boundary and Floodway Maps (FBFMs), dated May 18, 2009, and all subsequent amendments and/or revisions, are hereby adopted by reference and declared to be a part of this chapter. This FIS and attendant mapping is the minimum area of applicability of this chapter and may be supplemented by studies for other areas which allow implementation of this chapter and which are recommended to the city council of the City of Gilroy by the floodplain administrator. The studies include the Uvas Creek Overflows Floodplain Management Study dated November 13, 1995, and subsequent amendments and/or revisions thereto. The studies, FIRMs and FBFMs are on file at the department of public works. (Ord. No. 2017-01, § 2, 1-9-17)

27E.8 Compliance.

No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this chapter and other applicable regulations. Violation of the requirements (including violations of conditions and safeguards) shall constitute a misdemeanor. Nothing herein shall prevent the city council of the City of Gilroy from taking such lawful action as is necessary to prevent or remedy any violation. (Ord. No. 2017-01, § 2, 1-9-17)

27E.9 Abrogation and greater restrictions.

This chapter is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this chapter and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. (Ord. No. 2017-01, § 2, 1-9-17)

27E.10 Interpretation.

In the interpretation and application of this chapter, all provisions shall be:

(a) Considered as minimum requirements;

(b) Liberally construed in favor of the governing body; and

(c) Deemed neither to limit nor repeal any other powers granted under state statutes. (Ord. No. 2017-01, § 2, 1-9-17)

27E.11 Warning and disclaimer of liability.

The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This chapter does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This chapter shall not create liability on the part of the city council of the City of Gilroy, any officer or employee thereof, the State of California, or the Federal Emergency Management Agency for any flood damages that result from reliance on this chapter or any administrative decision lawfully made hereunder. (Ord. No. 2017-01, § 2, 1-9-17)

27E.12 Severability.

This chapter and the various parts thereof are hereby declared to be severable. Should any section of this chapter be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of this chapter as a whole, or any portion thereof other than the section so declared to be unconstitutional or invalid. (Ord. No. 2017-01, § 2, 1-9-17)

ARTICLE IV. ADMINISTRATION

27E.13 Designation of the floodplain administrator.

The director of public works or his or her designee is hereby appointed to administer, implement, and enforce this chapter by granting or denying development permits in accord with its provisions. (Ord. No. 2017-01, § 2, 1-9-17)

27E.14 Duties and responsibilities of the floodplain administrator.

The duties and responsibilities of the floodplain administrator shall include, but not be limited to, the following:

(a) Permit Review. Review all development permits to determine:

(1) Permit requirements of this chapter have been satisfied, including determination of substantial improvement and substantial damage of existing structures;

(2) All other required state and federal permits have been obtained;

(3) The site is reasonably safe from flooding;

(4) The proposed development does not adversely affect the carrying capacity of areas where base flood elevations have been determined but a floodway has not been designated. This means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will not increase the water surface elevation of the base flood more than one (1) foot at any point within the City of Gilroy; and

(5) All letters of map revision (LOMRs) for flood control projects are approved prior to the issuance of building permits. Building permits must not be issued based on conditional letters of map revision (CLOMRs). Approved CLOMRs allow construction of the proposed flood control project and land preparation as specified in the “start of construction” definition.

(b) Development of Substantial Improvement and Substantial Damage Procedures.

(1) Using FEMA publication FEMA 213, “Answers to Questions About Substantially Damaged Buildings,” develop detailed procedures for identifying and administering requirements for substantial improvement and substantial damage, to include defining “market value.”

(2) Assure procedures are coordinated with other departments/divisions and implemented by community staff.

(c) Review, Use and Development of Other Base Flood Data. When base flood elevation data has not been provided in accordance with section 27E.7, the floodplain administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal or state agency, or other source, in order to administer Article V of this chapter.

All new developments located in an area without a base flood elevation specified on the FIRM shall provide the floodplain administrator with a proposed base flood elevation from an acceptable source. At the discretion of the floodplain administrator, the applicant may be required to provide a hydrologic and hydraulic engineering analysis that generates base flood elevations and floodway boundaries for the development proposal. The applicant shall be responsible for the peer review costs associated with the floodplain administrator’s review of the flood analysis.

Note: A base flood elevation may be obtained using one (1) of two (2) methods from the FEMA publication FEMA 265, “Managing Floodplain Development in Approximate Zone A Areas—A Guide for Obtaining and Developing Base (100-Year) Flood Elevations” dated July 1995, and subsequent amendments and/or revisions thereto.

(d) Notification of Other Agencies.

(1) Alteration or Relocation of a Watercourse.

a. Notify adjacent communities and the California Department of Water Resources prior to alteration or relocation;

b. Submit evidence of such notification to the Federal Emergency Management Agency; and

c. Assure that the flood carrying capacity within the altered or relocated portion of said watercourse is maintained.

(2) Base Flood Elevation Changes Due to Physical Alterations.

a. Within six (6) months of information becoming available or project completion, whichever comes first, the floodplain administrator shall submit or assure that the permit applicant submits technical or scientific data to FEMA for a letter of map revision (LOMR).

b. All LOMRs for flood control projects are approved prior to the issuance of building permits. Building permits must not be issued based on conditional letters of map revision (CLOMRs). Approved CLOMRs allow construction of the proposed flood control project and land preparation as specified in the “start of construction” definition.

Such submissions are necessary so that upon confirmation of those physical changes affecting flooding conditions, risk premium rates and floodplain management requirements are based on current data.

(3) Changes in Corporate Boundaries. Notify FEMA in writing whenever the corporate boundaries have been modified by annexation or other means and include a copy of a map of the community clearly delineating the new corporate limits.

(e) Documentation of Floodplain Development. Obtain and maintain for public inspection and make available as needed the following:

(1) Certification required by sections 27E.17(c)(1) and 27E.20 (lowest floor elevations);

(2) Certification required by section 27E.17(c)(2) (elevation or floodproofing of nonresidential and mixed-use structures);

(3) Certification required by section 27E.17(c)(3) (wet floodproofing standard);

(4) Certification of elevation required by section 27E.19(a)(3) (subdivisions and other proposed development standards);

(5) Certification required by section 27E.22(b) (floodway encroachments); and

(6) Maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its biennial report submitted to the Federal Emergency Management Agency.

(f) Map Determination. Make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazard, where there appears to be a conflict between a mapped boundary and actual field conditions. The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in section 27E.16.

(g) Remedial Action. Take action to remedy violations of this chapter as specified in section 27E.8.

(h) Biennial Report. Complete and submit biennial report to FEMA.

(i) Planning. Assure community’s general plan is consistent with floodplain management objectives herein. (Ord. No. 2017-01, § 2, 1-9-17)

27E.15 Development permit.

A development permit shall be obtained before any construction or other development, including manufactured homes, within any area of special flood hazard established in section 27E.7. Application for a development permit shall be made on forms furnished by the City of Gilroy. The applicant shall provide the following minimum information:

(a) Plans drawn to scale, showing:

(1) Location, dimensions, and elevation of the area in question, existing or proposed structures, storage of materials and equipment and their location;

(2) Proposed locations of water supply, sanitary sewer, and other utilities;

(3) Grading information showing existing and proposed contours, any proposed fill, and drainage facilities;

(4) Location of the regulatory floodway when applicable;

(5) Base flood elevation information as specified in section 27E.7 or 27E.14(c);

(6) Proposed elevation in relation to mean sea level, of the lowest floor (including basement) of all structures; and

(7) Proposed elevation in relation to mean sea level to which any nonresidential or mixed-use structure will be floodproofed, as required in section 27E.17(c)(2) and detailed in FEMA Technical Bulletin TB 3-93 and subsequent amendments and/or revisions thereto.

(b) Certification from a registered civil engineer or architect that the nonresidential or mixed-use, floodproofed building meets the floodproofing criteria in section 27E.17(c)(2).

(c) For a crawlspace foundation, location and total net area of foundation openings (if applicable) as required in section 27E.17(c)(3) and detailed in FEMA Technical Bulletins 1-93 and 7-93, and subsequent amendments and/or revisions thereto. Refer to section 27E.17(c)(6) for additional requirements for crawlspaces.

(d) Description of the extent to which any watercourse will be altered or relocated as a result of proposed development.

(e) All appropriate certifications listed in section 27E.14(e).

(f) Additional, special flood studies as required by the floodplain administrator. (Ord. No. 2017-01, § 2, 1-9-17)

27E.16 Appeals.

The city council of the City of Gilroy shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the floodplain administrator in the enforcement or administration of this chapter. (Ord. No. 2017-01, § 2, 1-9-17)

ARTICLE V. PROVISIONS FOR FLOOD HAZARD REDUCTION

27E.17 Standards of construction.

In all areas of special flood hazards the following standards are required:

(a) Anchoring. All new construction and substantial improvements of structures, including manufactured homes, shall be adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy.

(b) Construction Materials and Methods. All new construction and substantial improvements of structures, including manufactured homes, shall be constructed:

(1) With flood resistant materials, and utility equipment resistant to flood damage for areas below the base flood elevation;

(2) Using methods and practices that minimize flood damage;

(3) With electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding; and

(4) Within Zones AH or AO, so that there are adequate drainage paths around structures on slopes to guide floodwaters around and away from proposed structures.

(c) Elevation and Floodproofing.

(1) Residential Construction. All new construction or substantial improvements of residential structures shall have the lowest floor, including basement:

a. In AE, AH, A1-30 Zones, elevated at least one (1) foot above the base flood elevation.

b. In an AO Zone, elevated above the highest adjacent grade to a height of at least one (1) foot above the depth number specified in feet on the FIRM, or elevated at least three (3) feet above the highest adjacent grade if no depth number is specified.

c. In an A Zone, without BFEs specified on the FIRM (unnumbered A Zone), elevated at least one (1) foot above the base flood elevation determined under section 27E.14(c).

Upon the completion of the structure, the elevation of the lowest floor, including basement, shall be certified by a registered civil engineer or licensed land surveyor, and verified by the floodplain administrator to be properly elevated. Such certification and verification shall be provided to the floodplain administrator.

(2) Nonresidential and Mixed-Use Construction. All new construction or substantial improvements of nonresidential or mixed-use structures shall either be elevated to conform with subsection (c)(1) of this section or:

a. Be dry floodproofed, together with attendant utility and sanitary facilities, below the elevation recommended under subsection (c)(1) of this section, so that the structure is watertight with walls substantially impermeable to the passage of water;

b. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and

c. Be certified by a registered civil engineer or architect that the standards of subsections (c)(2)(a) and (b) of this section are satisfied. Such certification shall be provided to the floodplain administrator.

(3) Flood Openings. All new construction and substantial improvements of structures 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 provide wet floodproofing and shall automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwater. Designs for meeting this requirement must meet the following minimum criteria:

a. For nonengineered openings:

1. Have a minimum of two (2) openings on different sides having a total net area of not less than one (1) square inch for every square foot of enclosed area subject to flooding;

2. The bottom of all openings shall be no higher than one (1) foot above grade;

3. Openings may be equipped with screens, louvers, valves or other coverings or devices; provided, that they permit the automatic entry and exit of floodwater; and

4. Buildings with more than one (1) enclosed area must have openings on exterior walls for each area to allow floodwater to directly enter; or

b. Be certified by a registered civil engineer or architect.

(4) Manufactured Homes. See section 27E.20.

(5) Garages and Low-Cost Accessory Structures.

a. Attached Garages.

1. A garage attached to a residential structure, constructed with the garage floor slab below the base flood elevation, must be designed to allow for the automatic entry of floodwaters. See subsection (c)(3) of this section. Areas of the garage below the base flood elevation must be constructed with flood resistant materials. See subsection (b) of this section.

2. A garage attached to a nonresidential structure must meet the above requirements or be dry floodproofed. For guidance on below grade parking areas, see FEMA Technical Bulletin TB-6, and subsequent amendments and/or revisions thereto.

b. Detached Garages and Accessory Structures.

1. “Accessory structures” used solely for parking (two (2) car detached garages or smaller) or limited storage (small, low-cost sheds), as defined in Article II of this chapter, may be constructed such that its floor is below the base flood elevation, provided the structure is designed and constructed in accordance with the following requirements:

(A) Use of the accessory structure must be limited to parking or limited storage;

(B) The portions of the accessory structure located below the base flood elevation must be built using flood-resistant materials;

(C) The accessory structure must be adequately anchored to prevent flotation, collapse and lateral movement;

(D) Any mechanical and utility equipment in the accessory structure must be elevated or floodproofed to or above the base flood elevation;

(E) The accessory structure must comply with floodplain encroachment provisions in section 27E.22; and

(F) The accessory structure must be designed to allow for the automatic entry of floodwaters in accordance with subsection (c)(3) of this section.

2. Detached garages and accessory structures not meeting the above standards must be constructed in accordance with all applicable standards in this section.

(6) Crawlspace Construction. This subsection applies to buildings with crawlspaces up to two (2) feet below grade. Below grade crawlspace construction in accordance with the requirements listed below will not be considered basements.

a. The building must be designed and adequately anchored to resist flotation, collapse, and lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. Crawlspace construction is not allowed in areas with flood velocities greater than five (5) feet per second unless the design is reviewed by a qualified design professional, such as a registered architect or professional engineer;

b. The crawlspace is an enclosed area below the BFE and, as such, must have openings that equalize hydrostatic pressures by allowing for the automatic entry and exit of floodwaters. For guidance on flood openings, see FEMA Technical Bulletin 1-93 and subsequent amendments and/or revisions thereto;

c. Crawlspace construction is not permitted in V Zones. Open pile or column foundations that withstand storm surge and wave forces are required in V Zones;

d. Portions of the building below the BFE must be constructed with materials resistant to flood damage. This includes not only the foundation walls of the crawlspace used to elevate the building, but also any joists, insulation, or other materials that extend below the BFE; and

e. Any building utility systems within the crawlspace must be elevated above BFE or designed so that floodwaters cannot enter or accumulate within the system components during flood conditions.

f. Requirements for all below grade crawlspace construction, in addition to the above requirements, to include the following:

1. The interior grade of a crawlspace below the BFE must not be more than two (2) feet below the lowest adjacent exterior grade (LAG), shown as D in Figure 3 of Technical Bulletin 11-01 and subsequent amendments and/or revisions thereto;

2. The height of the below grade crawlspace, measured from the interior grade of the crawlspace to the top of the crawlspace foundation wall must not exceed four (4) feet (shown as L in Figure 3 of Technical Bulletin 11-01) at any point;

3. There must be an adequate drainage system that removes floodwaters from the interior area of the crawlspace within a reasonable period of time after a flood event, not to exceed seventy-two (72) hours; and

4. The velocity of floodwaters at the site should not exceed five (5) feet per second for any crawlspace. For velocities in excess of five (5) feet per second, other foundation types should be used. (Ord. No. 2017-01, § 2, 1-9-17)

27E.18 Standards for utilities.

(a) All new and replacement water supply and sanitary sewage systems shall be designed to minimize or eliminate:

(1) Infiltration of floodwaters into the systems; and

(2) Discharge from the systems into floodwaters.

(b) On-site waste disposal systems shall be located to avoid impairment to them, or contamination from them during flooding. (Ord. No. 2017-01, § 2, 1-9-17)

27E.19 Standards for subdivisions and other proposed development.

(a) All new subdivisions proposals and other proposed development, including proposals for manufactured home parks and subdivisions, shall:

(1) Identify the special flood hazard areas (SFHA) and base flood elevations (BFE) as specified in section 27E.7 or 27E.14(c).

(2) Identify the elevations of lowest floors of all proposed structures and pads on the final plans.

(3) If the site is filled above the base flood elevation, the following as-built information for each structure shall be certified by a registered civil engineer or licensed land surveyor and provided as part of an application for a letter of map revision based on fill (LOMR-F) to the floodplain administrator:

a. Lowest floor elevation.

b. Pad elevation.

c. Lowest adjacent grade.

(b) All subdivision proposals and other proposed development shall be consistent with the need to minimize flood damage.

(c) All subdivision proposals and other proposed development shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage.

(d) All subdivisions and other proposed development shall provide adequate drainage to reduce exposure to flood hazards. (Ord. No. 2017-01, § 2, 1-9-17)

27E.20 Standards for manufactured homes.

(a) All manufactured homes that are placed or substantially improved, on sites located: (1) outside of a manufactured home park or subdivision; (2) in a new manufactured home park or subdivision; (3) in an expansion to an existing manufactured home park or subdivision; or (4) in an existing manufactured home park or subdivision upon which a manufactured home has incurred “substantial damage” as the result of a flood, shall:

(1) Within Zones A1-30, AH, and AE on the community’s Flood Insurance Rate Map, be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated at least one (1) foot above the base flood elevation and be securely fastened to an adequately anchored foundation system to resist flotation, collapse, and lateral movement.

(b) All manufactured homes to be placed or substantially improved on sites in an existing manufactured home park or subdivision within Zones A1-30, AH, and AE on the community’s Flood Insurance Rate Map that are not subject to the provisions of subsection (a) of this section will be securely fastened to an adequately anchored foundation system to resist flotation, collapse, and lateral movement, and be elevated so that either the:

(1) Lowest floor of the manufactured home is at least one (1) foot above the base flood elevation; or

(2) Manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than thirty-six (36) inches in height above grade.

Upon the completion of the structure, the elevation of the lowest floor including basement shall be certified by a registered civil engineer or licensed land surveyor, and verified by the community building inspector to be properly elevated. Such certification and verification shall be provided to the floodplain administrator. (Ord. No. 2017-01, § 2, 1-9-17)

27E.21 Standards for recreational vehicles.

(a) All recreational vehicles placed in Zones A1-30, AH, and AE will either:

(1) Be on the site for fewer than one hundred eighty (180) consecutive days; or

(2) Be fully licensed and ready for highway use. A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions; or

(3) Meet the permit requirements of section 27E.15 and the elevation and anchoring requirements for manufactured homes in section 27E.20. (Ord. No. 2017-01, § 2, 1-9-17)

27E.22 Floodways.

Since floodways are an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles, and erosion potential, the following provisions apply:

(a) Until a regulatory floodway is adopted, no new construction, substantial development, or other development (including fill) shall be permitted within Zones A1-30 and AE, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other development, will not increase the water surface elevation of the base flood more than one (1) foot at any point within the City of Gilroy.

(b) Within an adopted regulatory floodway, the City of Gilroy shall prohibit encroachments, including fill, new construction, substantial improvements, and other development, unless certification by a registered civil engineer is provided demonstrating that the proposed encroachment shall not result in any increase in flood levels during the occurrence of the base flood discharge.

(c) If subsections (a) and (b) of this section are satisfied, all new construction, substantial improvement, and other proposed new development shall comply with all other applicable flood hazard reduction provisions of this article. (Ord. No. 2017-01, § 2, 1-9-17)

27E.23 Engineered fill.

All proposed developments with engineered fill within a special flood hazard area shall follow the guidelines for ensuring that structures built on fill are reasonably safe from flooding; see FEMA Technical Bulletin TB 10-01, and subsequent amendments and/or revisions thereto. (Ord. No. 2017-01, § 2, 1-9-17)

ARTICLE VI. VARIANCE PROCEDURE

27E.24 Nature of variances.

The issuance of a variance is for floodplain management purposes only. Insurance premium rates are determined by statute according to actuarial risk and will not be modified by the granting of a variance.

The variance criteria set forth in this article are based on the general principle of zoning law that variances pertain to a piece of property and are not personal in nature. A variance may be 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 city council of the City of Gilroy 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 in the flood ordinance are quite rare. The long-term goal of preventing and reducing flood loss and damage can only be met if variances are strictly limited. Therefore, the variance guidelines provided in this chapter are more detailed and contain multiple provisions that must be met before a variance can be properly granted. The criteria are designed to screen out those situations in which alternatives other than a variance are more appropriate. (Ord. No. 2017-01, § 2, 1-9-17)

27E.25 Conditions for variances.

(a) Generally, variances may be issued for new construction, substantial improvement, and other proposed new development to be erected on a lot of one-half (1/2) 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 IV and V of this chapter have been fully considered. As the lot size increases beyond one-half (1/2) acre, the technical justification required for issuing the variance increases.

(b) Variances may be issued for the repair or rehabilitation of “historic structures” (as defined in Article II of this chapter) upon a determination that the proposed repair or rehabilitation will not preclude the structure’s continued designation as an historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.

(c) Variances shall not be issued within any mapped regulatory floodway if any increase in flood levels during the base flood discharge would result.

(d) Variances shall only be issued upon a determination that the variance is the “minimum necessary,” considering the flood hazard, to afford relief. “Minimum necessary” means to afford relief with a minimum of deviation from the requirements of this chapter. For example, in the case of variances to an elevation requirement, this means the city council of the City of Gilroy need not grant permission for the applicant to build at grade, or even to whatever elevation the applicant proposes, but only to that elevation which the city council believes will both provide relief and preserve the integrity of the local ordinance.

(e) Any applicant to whom a variance is granted shall be given written notice over the signature of a community official that:

(1) The issuance of a variance to construct a structure below the base flood level will 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, and

(2) Such construction below the base flood level increases risks to life and property. It is recommended that a copy of the notice shall be recorded by the floodplain administrator in the office of the Santa Clara County recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land.

(f) The floodplain administrator will maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its biennial report submitted to the Federal Emergency Management Agency. (Ord. No. 2017-01, § 2, 1-9-17)

27E.26 Appeal board.

(a) In passing upon requests for variances, the city’s designated appeal board shall follow the administrative process for appeals and shall consider all technical evaluations, all relevant factors, standards specified in other sections of this chapter, and the:

(1) Danger that materials may be swept onto other lands to the injury of others;

(2) Danger of life and property due to flooding or erosion damage;

(3) Susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the existing individual owner and future owners of the property;

(4) Importance of the services provided by the proposed facility to the community;

(5) Necessity to the facility of a waterfront location, where applicable;

(6) Availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

(7) Compatibility of the proposed use with existing and anticipated development;

(8) Relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

(9) Safety of access to the property in time of flood for ordinary and emergency vehicles;

(10) Expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters expected at the site; and

(11) Costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water system, and streets and bridges.

(b) Variances shall only be issued upon a:

(1) Showing of good and sufficient cause;

(2) Determination that failure to grant the variance would result in exceptional “hardship” to the applicant; and

(3) Determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create a nuisance (see section 27E.5, “Public safety and nuisance”), cause “fraud and victimization” of the public, or conflict with existing local laws or ordinances.

(c) Variances may be issued for new construction, substantial improvement, and other proposed new development necessary for the conduct of a functionally dependent use; provided, that the provisions of subsections (a) and (b) of this section are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and does not result in additional threats to public safety and does not create a public nuisance.

Upon consideration of the factors of subsection (a) of this section and the purposes of this chapter, the city’s designated appeal board may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter. (Ord. No. 2017-01, § 2, 1-9-17)