(a) Scope. An applicant or licensee may request the to grant a variance from the following requirements: vehicle spacing; water supply minimums, location and design requirements; toilet, bathing and laundry facility requirements; barbecue pit, fireplace and stove requirements; the handling and disposal of garbage and refuse requirements; the insect and rodent harborage and infestation control requirements; the night lighting requirements; the community kitchen and dining room requirements; the bottled gas requirements; the fuel oil supply system requirements; and the fire protection requirements.
(b) Procedure. Only the party to whom the rule specified in subsection (a) above applies can apply for a variance. The variance applicant must submit the variance request in writing to the , along with a fee of $600. The request must contain:
(1) The specific language in the rule or rules from with the variance is requested;
(2) The reasons why the rule cannot be met;
(3) The alternative measures that will be taken to assure a comparable degree of protection to health or environment if a variance is granted;
(4) The length of time for which the variance is requested;
(5) A statement that the variance applicant will comply with the terms and conditions established for the variance, if granted; and
(6) Other relevant information the determines necessary to properly evaluate the request for the variance.
(c) Hearing. The City Hearing Examiner appointed pursuant to § 2.09 of this city code shall conduct a hearing on the request in accordance with the rules established pursuant to § 2.12(a) of this city code for the purpose of making a written recommendation to the City Council. The hearing examiner shall be responsible for keeping a taped transcript of each proceeding and shall provide to the City Council:
(1) Copies of all exhibits, memoranda and materials submitted to the hearing examiner;
(2) Minutes of the hearing; and
(3) A copy of the hearing examiner’s recommendation, the required findings and reasons for the recommendation.
(d) Report of . The shall make a report of recommendation on each requested variance addressing each of the criteria for granting a variance set forth in subsection (g) below and enumerating the various reasons for a recommendation to either approve or deny the request. This report shall be filed with the hearing examiner at least 48 hours before the hearing. A copy of the report shall be immediately made available to the applicant and all others entitled to receive notice of the hearing.
(e) Conduct of the hearing. The parties of record shall be limited to the variance applicant and the , although adjacent property owners and residents may file written submissions with the hearing examiner at least 48 hours before the hearing with copies thereof being immediately available to the variance applicant and the . The hearing examiner is hereby authorized to administer oaths, subpoena witnesses and relevant papers, call witnesses and accept evidence. Parties of record shall be allowed to cross-examine witnesses and to present evidence and argument to the hearing examiner. The hearing examiner is authorized to impose limitations on the number of witnesses heard and on the nature and length of testimony. The hearing examiner shall, upon the request of a party of record, subpoena witnesses as requested by that party. The taped transcript of the hearing need not be transcribed except on request of the City Council in aid of its review of the record. Any other party wanting the tape transcribed shall pay all costs for such transcription.
(f) Recommendation of the hearing examiner. The hearing examiner shall make a recommendation supported by reasons specifically related to the applicable findings and requirements of the city code, including the criteria for granting a variance set forth in subsection (g) below. The recommendation, along with a record of the proceedings, shall be forwarded for City Council action at its next regular meeting.
(g) Criteria for granting a variance. The City Council may grant a variance based upon the following affirmative findings:
(1) The variance was requested in the manner prescribed herein;
(2) The variance will have no potential adverse effect on public health, safety, welfare or that of the neighborhood;
(3) The variance will have no potential adverse effect on the environment;
(4) The alternative measures to be taken, if any, are equivalent to or superior to those prescribed in the rule;
(5) Strict compliance with the rule will impose an undue burden on the applicant; and
(6) The variance does not vary a statutory standard.
(h) Conditions for variance. In granting a variance, the City Council may impose any conditions that it deems to be necessary or desirable to protect public health, safety, welfare, that of the neighborhood or the environment. If the variance is granted for a limited period of time, that period shall be specified in the variance conditions.
(i) Future effect. A variance shall only have future effect.
(j) Decision of City Council. The decision of the City Council is final without any further right of administrative appeal.
(k) Notification of decision. The shall notify the applicant in writing of the decision to grant or deny the variance. If a variance is granted, the notification must specify the period of time for which the variance will be effective and the alternative measures or conditions, if any, the applicant must meet. If a variance is denied, the shall specify the reasons for the denial.
(l) Effect of alternative measures or conditions. Alternative measures or conditions attached by the City Council to a variance are binding and enforceable at law. If the party violates the alternative measures or conditions attached to the variance, the party is subject to the enforcement actions and penalties provided in the applicable city code sections, state law or rule and the violation may invalidate the variance. The party to whom a variance has been issued must notify the in writing within 30 days of any material change in the conditions upon which the variance was granted.
(m) Renewal of variance. A request for the renewal of a variance must be submitted to the in writing 30 days before its expiration date. Renewal requests must contain the information specified for the initial request. The shall renew a variance if the party continues to satisfy the criteria contained in this Division E of the code and demonstrates compliance with the alternative measures and conditions imposed at the time the original variance was approved. This provision does not apply if there has been any material change in the conditions upon which the variance was granted.
(n) Refusal to renew - appeals. The shall refuse to renew a variance if it determines that the criteria contained in this section of the code are not met. The must notify the applicant in writing of the determination and the reasons therefor. The applicant may appeal that refusal to renew in writing within ten days of receipt of the notice of decision to the City Council.
(Ord. 2010-13, passed 5-17-2010)