Exhibit CC 10-18-2016 Item No. 15 Ordinance No. 16-2154 redline exhibit 1
ORDINANCE NO. 16‐
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO RESCINDING
AND REENACTING CUPERTINO MUNICIPAL CODE CHAPTER 16.52 REGARDING
PREVENTION OF FLOOD DAMAGE FOR PROPERTIES WITHIN THE CITY
WHEREAS, this Ordinance is determined to be not a project under the requirements of the
California Quality Act of 1970, together with related State CEQA Guidelines (collectively,
“CEQA”) in that proposed Ordinance is not a project within the meaning of section 15378 of the
California Environmental Quality Act (“CEQA”) Guidelines because it has no potential for
resulting in physical change in the environment, either directly or ultimately. In the event that
this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption
contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have
no possibility of a significant effect on the environment.
WHEREAS, the City Council is the decision‐making body for this Ordinance; and
WHEREAS, the City Council before taking action on this Ordinance has reviewed the not a
project determination and exemption, and using its independent judgment, determines the
Ordinance to be not a project or exempt from CEQA as stated above;
NOW, THEREFORE, THE CITY COUNCIL OF THE OF CITY OF CUPERTINO DOES
ORDAIN AS FOLLOWS:
SECTION 1: Chapter 16.52 of Title 16 of the Cupertino Municipal Code is hereby amended in
its entirety to be entitled and to read as follows:
CHAPTER 16.52
PREVENTION OF FLOOD DAMAGE
16.52.001 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 of Cupertino does hereby adopt the following floodplain management regulations.
16.52.010 Definitions
Unless specifically defined below, words or phrases used in this ordinance shall be
interpreted so as to give them the meaning they have in common usage and to give this
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ordinance its most reasonable application.
A. ʺA zoneʺ ‐ see ʺSpecial flood hazard areaʺ.
B. “Accessory structure” means a structure that is either:
1. Solely for the parking of no more than 2 cars; or
2. A small, low cost shed for limited storage, less than 150 square feet and $1,500 in value.
C. ʺAccessory useʺ means a use which is incidental and subordinate to the principal use of the
parcel of land on which it is located.
D. ʺAlluvial fanʺ means a geomorphologic feature characterized by a cone or fan‐shaped
deposit of boulders, gravel, and fine sediments that have been eroded from mountain slopes,
transported by flood flows, and then deposited on the valley floors, and which is subject to
flash flooding, high velocity flows, debris flows, erosion, sediment movement and deposition,
and channel migration.
E. ʺApexʺ means a point on an alluvial fan or similar landform below which the flow path of
the major stream that formed the fan becomes unpredictable and alluvial fan flooding can
occur.
F. ʺAppealʺ means a request for a review of the Floodplain Administratorʹs interpretation of
any provision of this ordinance.
G. ʺArea of shallow floodingʺ means a designated AO or AH Zone on the Flood Insurance
Rate Map (FIRM). The base flood depths range from one to three 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.
H. ʺArea of special flood hazardʺ ‐ See ʺSpecial flood hazard area.ʺ
I. ʺBase floodʺ means a flood which has a one percent chance of being equaled or exceeded in
any given year (also called the ʺ100‐year floodʺ). Base flood is the term used throughout this
ordinance.
J. “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 1‐percent or greater chance of being equaled or exceeded in any given
year.
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K. ʺBasementʺ means any area of the building having its floor subgrade ‐ i.e., below ground
level ‐ on all sides.
L. ʺBuildingʺ ‐ see ʺStructureʺ.
M. “City” shall refer to the City of Cupertino, a municipal corporation in the State of
California, County of Santa Clara.
N. ʺDevelopmentʺ means any man‐made 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.
O. ʺEncroachmentʺ 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.
P. ʺExisting manufactured home park or subdivisionʺ 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 May 1, 1980.
Q. ʺExpansion to an existing manufactured home park or subdivisionʺ 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).
R. ʺFlood, flooding, or flood waterʺ 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.
S. ʺFlood Boundary and Floodway Map (FBFM)ʺ means the official map on which the
Federal Emergency Management Agency or Federal Insurance Administration has delineated
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both the areas of special flood hazards and the floodway.
T. ʺFlood Insurance Rate Map (FIRM)ʺ 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.
U. ʺFlood Insurance Studyʺ means the official report provided by the Federal Emergency
Management 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.
V. ʺFloodplain or flood‐prone areaʺ means any land area susceptible to being inundated by
water from any source ‐ see ʺFlooding.ʺ
W. ʺFloodplain Administratorʺ is the City Engineer, or other community official designated
by title to administer and enforce the floodplain management regulations.
X. ʺFloodplain managementʺ 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 applicable
general master plans.
Y. ʺFloodplain management regulationsʺ means this ordinance 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.
Z. ʺFloodproofingʺ 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.
AA. ʺFloodwayʺ 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 foot. Also referred to as ʺRegulatory
Floodway.ʺ
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BB. ʺFloodway fringeʺ is that area of the floodplain on either side of the ʺRegulatory
Floodwayʺ where encroachment may be permitted.
CC. ʺGoverning bodyʺ is the Planning Commission, which is empowered to adopt and
implement regulations to provide for the public health, safety and general welfare of its
citizenry. In the event that the Planning Commission defers a decision to the City Council, or a
Planning Commission decision is appealed, the Governing Body will be the City Council.
DD. ʺHardshipʺ as related to Sections 16.52.060 through 16.52.062 of this ordinance means
the exceptional hardship that would result from a failure to grant the requested variance. The
City of Cupertino 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 oneʹs 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.
EE. ʺHighest adjacent gradeʺ means the highest natural elevation of the ground surface prior
to construction next to the proposed walls of a structure.
FF. ʺHistoric structureʺ means any structure that is:
1. Listed individually in the National Register of Historic Places (a listing maintained by
the Department of 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 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.
5. Individually listed on a local inventory of historic places in the approved General Plan,
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publicly adopted by the City Council.
GG. ʺLeveeʺ means a man‐made 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.
HH. ʺLevee systemʺ 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.
II. ʺLowest floorʺ 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 non‐
elevation design requirements, including, but not limited to:
a. The flood openings standard in Section 16.52.043.C;
b. The anchoring standards in Section 16.52.041;
c. The construction materials and methods standards in Section 16.52.042; and
d. The standards for utilities in Section 16.52.044.
2. For residential structures, all subgrade enclosed areas are prohibited as they are
considered to be basements (see “Basement” definition). This prohibition includes
below‐grade garages and storage areas.
JJ. ʺManufactured homeʺ means a structure, transportable in one 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 ʺmanufactured homeʺ does not include a
ʺrecreational vehicleʺ.
KK. ʺManufactured home park or subdivisionʺ means a parcel (or contiguous parcels) of
land divided into two or more manufactured home lots for rent or sale.
LL. “Market value” is defined in the City of Cupertino substantial damage/improvement
procedures. See Section 16.52.021.B.
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MM. ʺMean sea levelʺ 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 communityʹs Flood
Insurance Rate Map are referenced.
NN. ʺNew constructionʺ, for floodplain management purposes, means structures for which
the ʺstart of constructionʺ commenced on or after May 1, 1980, and includes any subsequent
improvements to such structures.
OO. ʺNew manufactured home park or subdivisionʺ 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 May 1, 1980.
PP. ʺObstructionʺ 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.
QQ. ʺOne‐hundred‐year floodʺ or ʺ100‐year floodʺ ‐ see ʺBase flood.ʺ
RR. “Program deficiency” means a defect in a community’s floodplain management
regulations or administrative procedures that impairs effective implementation of those
floodplain management regulations.
SS. ʺPublic safety and nuisanceʺ as related to Section 16.52.060 through 16.52.062 of this
ordinance, 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.
TT. ʺRecreational vehicleʺ means a vehicle which is:
1. Built on a single chassis;
2. 400 square feet or less when measured at the largest horizontal projection;
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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.
Recreational Vehicles shall not be on any site for more than 180 consecutive days
UU. ʺRegulatory floodwayʺ 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 foot.
VV. “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 the ordinance or otherwise deterring future similar violations, or
reducing State or Federal financial exposure with regard to the structure or other
development.
WW. ʺRiverineʺ means relating to, formed by, or resembling a river (including tributaries),
stream, brook, etc.
XX. ʺSheet flow areaʺ ‐ see ʺArea of shallow flooding.ʺ
YY. ʺSpecial flood hazard area (SFHA)ʺ means an area in the floodplain subject to a 1
percent 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.
ZZ. ʺStart of constructionʺ 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 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 manufacture 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,
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whether or not that alteration affects the external dimensions of the building.
AAA. ʺStructureʺ means a walled and roofed building that is principally above ground; this
includes a gas or liquid storage tank or a manufactured home.
BBB. “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 50 percent of the
market value of the structure before the damage occurred; or
2. Flood‐related damages sustained by a structure on two separate occasions during a
10‐year period for which the cost of repairs at the time of each such event, on the
average, equals or exceeds 25 percent of the market value of the structure before the
damage occurred. This is also known as “repetitive loss.”
CCC. ʺSubstantial improvementʺ means any reconstruction, rehabilitation, addition, or other
improvement of a structure, the cost of which equals or exceeds 50 percent of the market value
of the structure before the ʺstart of constructionʺ of the improvement. This term includes
structures which have incurred ʺsubstantial damageʺ, 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 ʺhistoric structure,ʺ provided that the alteration will not preclude the
structureʹs continued designation as a ʺhistoric structure.ʺ
DDD. ʺVarianceʺ means a grant of relief from the requirements of this ordinance which
permits construction in a manner that would otherwise be prohibited by this ordinance.
EEE. “Violation” means the failure of a structure or other development to be fully compliant
with this ordinance. A structure or other development without the elevation certificate, other
certifications, or other evidence of compliance required in this ordinance is presumed to be in
violation until such time as that documentation is provided.
FFF. ʺWatercourseʺ means a lake, river, creek, stream, wash, arroyo, channel or other
topographic feature on or over which waters flow at least periodically. Watercourse includes
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specifically designated areas in which substantial flood damage may occur.
16.52.011 Lands to Which this Ordinance Applies.
This ordinance shall apply to all areas of special flood hazards within the jurisdiction of the
City of Cupertino.
The Special Flood Hazard Area identified by the Federal Insurance Administration in a
scientific and engineering report entitled “The Flood Insurance Study for the City of
Cupertino,” dated November, 1979, and as amended from time to time, with
accompanying Flood Insurance Rate Maps as amended from time to time, is adopted by
reference and declared to be a part of this chapter. The Flood Insurance Study is on file in
the Department of Public Works.
16.52.012 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 the City of Cupertino” dated
November, 1979, with accompanying Flood Insurance Rate Maps (FIRM’s) and Flood
Boundary and Floodway Maps (FBFM’s), dated May 1, 1980, and all subsequent
amendments and/or revisions, are hereby adopted by reference and declared to be a part of
this ordinance. This FIS and attendant mapping is the minimum area of applicability of
this ordinance and may be supplemented by studies for other areas which allow
implementation of this ordinance and which are recommended to the City Council by the
Floodplain Administrator. The study, FIRM’s and FBFM’s are on file at the Department of
Public Works.
16.52.013 Compliance.
No structure or land shall hereafter be constructed, located, extended, converted, or altered
without full compliance with the terms of this ordinance and other applicable regulations.
Violation of the requirements (including violations of conditions and safeguards) shall
constitute a misdemeanor. Nothing herein shall prevent the City of Cupertino from taking
such lawful action as is necessary to prevent or remedy any violation.
16.52.014 Abrogation and Greater Restrictions.
This ordinance is not intended to repeal, abrogate, or impair any existing easements,
covenants, or deed restrictions. However, where this ordinance and another ordinance,
easement, covenant, or deed restriction conflict or overlap, whichever imposes the more
stringent restrictions shall prevail.
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16.52.015 Interpretation.
In the interpretation and application of this ordinance, all provisions shall be:
A. Considered as minimum requirements;
B. Strictly construed in favor of the governing body; and
C. Deemed neither to limit nor repeal any other powers granted under state statutes.
16.52.016 Warning and Disclaimer Of Liability.
The degree of flood protection required by this ordinance 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 man‐made or natural
causes. This ordinance 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 ordinance
shall not create liability on the part of the City, any officer or employee thereof, the State of
California, or the Federal Emergency Management Agency, for any flood damages that may
result from reliance on this ordinance or any administrative decision lawfully made hereunder.
16.52.017 Severability.
This ordinance and the various parts thereof are hereby declared to be severable. Should any
section of this ordinance be declared by the courts to be unconstitutional or invalid, such
decision shall not affect the validity of the ordinance as a whole, or any portion thereof other
than the section so declared to be unconstitutional or invalid.
16.52.020 Designation of the Floodplain Administrator.
The City Engineer is hereby designate the Floodplain Administrator for the City, and is
appointed to administer and implement this ordinance by granting or denying
development permits in accord with its provisions.
16.52.021 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:
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1. Permit requirements of this ordinance have been satisfied, including ensuring
that the Building Official has made a 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 1 foot at any point within the County; and
5. All Letters of Map Revision (LOMR’s) 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 (CLOMR’s). Approved CLOMR’s
allow construction of the proposed flood control project and land preparation as
specified in the “start of construction” definition.
B. Substantial Improvement and Substantial Damage Procedures.
Determination of Substantial Improvements and Substantial Damages shall follow
the City’s policy titled “Alterations and Additions Located in Special Flood Hazard
Areas”, dated June 1, 2016, and any subsequent revisions approved and
implemented by the Building Official.
C. Review, Use and Development of Other Base Flood Data.
When base flood elevation data has not been provided in accordance with Section
16.52.012 (Basis for Establishing the Areas of Special Flood Hazard), 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 Sections 16.52.040 through 16.52.055.
NOTE: A base flood elevation shall be obtained using one of two 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.
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D. Notification of Other Agencies.
1. Alteration or relocation of a watercourse. The Floodplain Administrator shall:
a. Notify adjacent communities, Santa Clara Valley Water District, 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 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 LOMR’s 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 (CLOMR’s). Approved CLOMR’s 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.
The Floodplain Administrator shall obtain and maintain for public inspection and
make available as needed the following:
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1. Certification required by Section 16.52.043.A and Section 16.52.53 (lowest floor
elevations);
2. Certification required by Section 16.52.043.B (elevation or floodproofing of
nonresidential structures);
3. Certification required by Section 16.52.043.C(flood openings);
4. Certification of elevation required by Section 16.52.045.A.3 (subdivisions and
other proposed development standards);
5. Certification required by Section 16.52.055.B (floodway encroachments); and
6. Maintain a record of all variance actions, including justification for their
issuance.
F. Map Determination.
The Floodplain Administrator shall 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 16.52.030, 16.52.060
through 16.52.062.
G. Remedial Action.
The Floodplain Administrator shall take action to remedy violations of this
ordinance as specified in 16.52.013.
H. Planning.
The Floodplain Administrator shall assure the community’s General Plan is
consistent with floodplain management objectives herein.
I. Non‐conversion of Enclosed Areas Below the Lowest Floor.
To ensure that the areas below the BFE shall be used solely for parking vehicles,
limited storage, or access to the building and not be finished for use as habitable
space without first becoming fully compliant with the floodplain management
ordinance in effect at the time of conversion, the Floodplain Administrator shall:
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1. Ensure the Building Official has determined which applicants for new
construction and/or substantial improvements have fully enclosed areas below
the lowest floor that are 5 feet or higher;
2. Ensure the applicant enters into a “NON‐CONVERSION AGREEMENT FOR
CONSTRUCTION WITHIN FLOOD HAZARD AREAS” or equivalent with the
City of Cupertino. The agreement shall be recorded with the Office of the
Recorder at the County of Santa Clara as a deed restriction. The non‐conversion
agreement shall be in a form acceptable to the Floodplain Administrator and City
Attorney; and
3. Verify that the “NON‐CONVERSON AGREEMENT” provides the authority to
inspect any area of a structure below the base flood elevation to ensure
compliance upon prior notice of at least 72 hours.
16.52.022 Development Permit.
A development permit shall be obtained before any construction or other development,
including placement of prefabricated buildings and manufactured homes, within any area
of special flood hazard established in 16.52.012. Application for a development permit
shall be made on forms furnished by the City of Cupertino. The applicant shall provide the
following minimum information:
A. Plans, drawn to scale, showing:
A. Location, dimensions, and elevation of the area in question, existing or proposed
structures, storage of materials and equipment and their location;
B. Proposed locations of water supply, sanitary sewer, storm drainage and other
utilities;
C. Grading information showing existing and proposed contours, any proposed fill,
and drainage facilities;
D. Location of the regulatory floodway when applicable;
E. Base flood elevation information as specified in Section 16.52.012;
F. Proposed elevation in relation to mean sea level, of the lowest floor (including
basement) of all structures; and
G. Proposed elevation in relation to mean sea level to which any nonresidential
structure will be floodproofed, as required in Section 16.52.043.B of this
ordinance and detailed in FEMA Technical Bulletin TB 3‐93.
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A. Certification from a registered civil engineer or architect that any nonresidential
floodproofed buildings meet the floodproofing criteria in Section 16.52.043.B.
B. For a crawl‐space foundation, the location and total net area of foundation openings
as required in Section 16.52.043.C of this ordinance and detailed in FEMA Technical
Bulletins 1‐93 and 7‐93.
C. Description of the extent to which any watercourse will be altered or relocated as a
result of proposed development.
D. All appropriate certifications listed in Section 16.52.021.E of this ordinance.
16.52.030 Appeals.
The Planning Commission of The City of Cupertino 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 ordinance.
A. Any person aggrieved by the decision of the Planning Commission may appeal such
decision to the City Council, in accordance with Section 8 of Procedural Ordinance
No. 652.
16.52.040 Standards of Construction.
All Special Flood Hazard Areas are governed by the general standards set forth in
Sections 16.52.040 through 16.52.044.
16.52.041 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.
16.52.042 Construction Materials and Methods.
All new construction and substantial improvements of structures, including
manufactured homes, shall be constructed:
A. With flood resistant materials, and utility equipment resistant to flood damage for
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areas below the base flood elevation;
B. Using methods and practices that minimize flood damage;
C. 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
D. Within Zones AH or AO, so that there are adequate drainage paths around
structures on slopes to guide flood waters around and away from proposed
structures.
16.52.043 Elevation and Floodproofing.
A. Residential construction.
All new construction or substantial improvements of residential structures shall
have the lowest floor, including basement:
1. In AE, AH, A1‐30 Zones, elevated to one foot or more above the base flood
elevation.
2. In an AO zone, elevated above the highest adjacent grade to a height one foot or
more above the depth number specified in feet on the FIRM, or elevated at least 3
feet above the highest adjacent grade if no depth number is specified.
3. In an A zone, without BFE’s specified on the FIRM [unnumbered A zone],
elevated to one foot or more above the base flood elevation; as determined under
Section 16.5.021.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 community building inspector to be properly
elevated. Such certification and verification shall be provided to the Floodplain
Administrator.
B. Nonresidential construction.
All new construction or substantial improvements of nonresidential structures shall
either be elevated to conform with Section 16.52.043.A or:
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1. Be floodproofed, together with attendant utility and sanitary facilities, below the
elevation recommended under Section 16.52.043.A, so that the structure is
watertight with walls substantially impermeable to the passage of water;
2. Have structural components capable of resisting hydrostatic and hydrodynamic
loads and effects of buoyancy; and
3. Be certified by a registered civil engineer or architect that the standards of
Section 16.52.043.B.1 & 2 are satisfied. Such certification shall be provided to the
Floodplain Administrator.
C. 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 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:
1. For non‐engineered openings:
a. Have a minimum of two openings on different sides having a total net area of
not less than one square inch for every square foot of enclosed area subject to
flooding;
b. The bottom of all openings shall be no higher than one foot above grade;
c. 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
d. Buildings with more than one enclosed area must have openings on exterior
walls for each area to allow flood water to directly enter; or
2. Be certified by a registered civil engineer or architect.
D. Manufactured homes.
a. See Section 16.52.053.
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E. Garages and low cost accessory structures.
1. Attached garages.
a. A garage attached to a residential structure, constructed with the garage floor
slab below the BFE, must be designed to allow for the automatic entry of flood
waters. See Section 16.52.043.C. Areas of the garage below the BFE must be
constructed with flood resistant materials. See Section 16.52.042.
b. 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.
2. Detached garages and accessory structures.
a. “Accessory structures” used solely for parking (2 car detached garages or
smaller) or limited storage (small, low‐cost sheds), as defined in Section
16.52.010, may be constructed such that its floor is below the base flood
elevation (BFE), provided the structure is designed and constructed in
accordance with the following requirements:
1) Use of the accessory structure must be limited to parking or limited
storage;
2) The portions of the accessory structure located below the BFE must be
built using flood‐resistant materials;
3) The accessory structure must be adequately anchored to prevent
flotation, collapse and lateral movement;
4) Any mechanical and utility equipment in the accessory structure must
be elevated or floodproofed to one foot or more above the BFE;
5) The accessory structure must comply with floodplain encroachment
provisions in Section 16.52.055; and
6) The accessory structure must be designed to allow for the automatic
entry of flood waters in accordance with Section 16.52.043.C.
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2. Detached garages and accessory structures not meeting the above
standards must be constructed in accordance with all applicable standards
in Sections 16.52.040 through 16.52.043.
16.52.044 Standards for Utilities.
A. All new and replacement water supply and sanitary sewage systems shall be
designed to minimize or eliminate:
1. Infiltration of flood waters into the systems; and
2. Discharge from the systems into flood waters.
B. On‐site waste disposal systems shall be located to avoid impairment to them, or
contamination from them during flooding.
C. Crawlspace Construction.
This sub‐section applies to buildings with crawl spaces up to 2 feet below grade.
Below‐grade crawl space construction in accordance with the requirements listed
below will not be considered basements.
1. 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. Crawl space
construction is not allowed in areas with flood velocities greater than 5 feet
per second unless the design is reviewed by a qualified design professional,
such as a registered architect or professional engineer;
2. The crawl space 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;
3. 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
crawl space used to elevate the building, but also any joists, insulation, or
other materials that extend below the BFE; and
4. Any building utility systems within the crawl space must be elevated to one
foot or more above BFE or designed so that floodwaters cannot enter or
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accumulate within the system components during flood conditions.
5. Requirements for all below‐grade crawl space construction, in addition to the
above requirements, shall include the following:
a. The interior grade of a crawl space below the BFE must not be more than 2
feet below the lowest adjacent exterior grade (LAG), shown as D in figure
3 of FEMA Technical Bulletin 11‐01;
b. The height of the below‐grade crawl space, measured from the interior
grade of the crawl space to the top of the crawl space foundation wall
must not exceed 4 feet (shown as L in figure 3 of FEMA Technical Bulletin
11‐01) at any point;
c. There must be an adequate drainage system that removes floodwaters
from the interior area of the crawl space within a reasonable period of
time after a flood event, not to exceed 72 hours; and
d. The velocity of floodwaters at the site should not exceed 5 feet per second
for any crawl space. For velocities in excess of 5 feet per second, other
foundation types should be used, or the foundation must be designed and
reviewed by a qualified design professional.
16.52.045 Standards for Subdivisions and other Proposed Development.
A. All new subdivisions proposals and other proposed development, including
proposals for manufactured home parks and subdivisions, greater than 50 lots or 5
acres, whichever is the lesser, shall:
1. Identify the Special Flood Hazard Areas (SFHA) and Base Flood Elevations
(BFE).
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:
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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.
16.52.053 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 ʺsubstantial damageʺ as the result of
a flood, shall:
1. Within Zones A1‐30, AH, and AE on the communityʹs Flood Insurance Rate Map,
be elevated on a permanent foundation such that the lowest floor of the
manufactured home is elevated to one foot or more 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 communityʹs Flood Insurance Rate Map that are not subject to the provisions
of Section 16.52.053.A 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 one foot or more above the base
flood elevation; or
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2. Manufactured home chassis is supported by reinforced piers or other foundation
elements of at least equivalent strength that are no less than 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.
16.52.054 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 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 16.52.022 of this ordinance and the
elevation and anchoring requirements for manufactured homes in Section
16.52.053.A.
16.52.055 Floodways.
Since floodways are an extremely hazardous area due to the velocity of flood waters 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 1 foot at any point within the
County of Santa Clara.
B. Within an adopted regulatory floodway, the City 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.
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C. If Sections 16.52.055.A & B are satisfied, all new construction, substantial
improvement, and other proposed new development shall comply with all other
applicable flood hazard reduction provisions of Sections 16.52.040 through 16.52.055.
16.52.061 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 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 Sections 16.52.020
through 16.52.055of this ordinance have been fully considered. As the lot size
increases beyond one‐half acre, the technical justification required for issuing the
variance increases.
B. Variances may be issued for the repair or rehabilitation of ʺhistoric structuresʺ (as
defined in Section 16.52.010 of this ordinance) upon a determination that the
proposed repair or rehabilitation will not preclude the structureʹs 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
ʺminimum necessaryʺ considering the flood hazard, to afford relief. ʺMinimum
necessaryʺ means to afford relief with a minimum of deviation from the
requirements of this ordinance. For example, in the case of variances to an elevation
requirement, this means the Planning Commission or City Council 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 Planning Commission or
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
$25 for $100 of insurance coverage, and
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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 Recorder of the County of Santa Clara, 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 provide information on such variances
issued to the Federal Emergency Management Agency.
16.52.062 Appeal Board.
A. In passing upon requests for variances, the Floodplain Administrator shall consider
all technical evaluations, all relevant factors, standards specified in other sections of
this ordinance, 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
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flood waters 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
ʺhardshipʺ 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 ʺPublic safety and nuisanceʺ), 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 Sections 16.52.062.A through 16.52.062.D 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.
D. Upon consideration of the factors of Section 16.52.061.A and the purposes of this
ordinance, the Planning Commission or City Council may attach such conditions to
the granting of variances as it deems necessary to further the purposes of this
ordinance.
SECTION 2: Severability.
Should any provision of this Ordinance, or its application to any person or
circumstance, be determined by a court of competent jurisdiction to be unlawful,
unenforceable or otherwise void, that determination shall have no effect on any other
provision of this Ordinance or the application of this Ordinance to any other person or
circumstance and, to that end, the provisions hereof are severable.
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SECTION 3: Effective Date.
This Ordinance shall take effect thirty days after adoption as provided by Government
Code Section 36937.
SECTION 4: Certification.
The City Clerk shall certify to the passage and adoption of this Ordinance and shall give
notice of its adoption as required by law. Pursuant to Government Code Section 36933, a
summary of this Ordinance may be published and posted in lieu of publication and posting of
the entire text.
SECTION 5: Continuity.
To the extent the provisions of this Ordinance are substantially the same as previous
provisions of the Cupertino Municipal Code, these provisions shall be construed as
continuations of those provisions and not as amendments of the earlier provisions.
INTRODUCED at a regular meeting of the Cupertino City Council the 18th day of October,
2016 and ENACTED at a regular meeting of the Cupertino City Council on this _____of
_______________ 2016 by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ___________________________________
Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino