Under conditions of practical difficulty and extraordinary hardships, it may be difficult to strictly comply with the requirements of this Ordinance. The purpose of a variation is to provide relief from strict compliance with the regulations and requirements of this Ordinance so long as the objectives of this Ordinance are not compromised. It is the applicant’s responsibility to clearly prove that a variation will not be contrary to the public interest and that a practical difficulty or extraordinary hardship will result if a variance is not granted.
A. Variance Procedures. If the County has denied a permit request or assigned conditions to the permit that the applicant disagrees with, the applicant can then make a written appeal request to the County Engineer, if the wireless telecommunication facility is being located in the County Highway rights-of-ways, or to the for a variance. The County Engineer shall review and may approve variations to the requirements of this Ordinance so that substantial justice may be done and the public interest served thereby, provided that such variations shall not have the effect of nullifying the intent and purpose of this Ordinance. The applicant must clearly prove that the variation will not be contrary to the public interest and other objectives of this Ordinance and shall prove that a practical difficulty or extraordinary hardship will result if the variance is not granted. In particular, the applicant shall establish and substantiate that the variation conforms to the requirements and standards as set forth in § 10.16.040A.3. of this Ordinance.
1. Variation Request Format. A petition for any variation from the requirements of this Ordinance shall be made in writing to the County Engineer and the fees for processing of the variance as set forth in Appendix A to this Ordinance shall be paid for in advance. The request shall identify the specific requirement of the Ordinance that the applicant is requesting a variance from along with all supporting documentation.
2. Supporting Documentation and Studies. The County Engineer may require that additional documentation, data, engineering studies, or other information be submitted in order to provide for a complete and thorough review of a variance request. It is the applicantfs responsibility to develop and provide said additional documentation. The cost of said documentation, data, and studies shall be the sole responsibility of the applicant and no reimbursement of said costs will be made if the applicant’s variance request is approved or denied.
3. Standards for Variation. A variation, in the strict application of the provisions of this Ordinance, shall not be granted unless it is found that all of the following relevant requirements and conditions are satisfied. The County Engineer may grant variations whenever it is determined that all of the following have been met:
a. The granting of a variation shall be in harmony with the general purpose and intent of the regulations imposed by this Ordinance and shall not result in undue delay or congestion, shall not be detrimental to the safety of the public, including the motoring public using the County Highway, and shall not limit the ability of the County to maintain or otherwise improve County-owned infrastructure or a County Highway.
b. There must be proof of unique or existing special circumstances or conditions where the strict application of the provisions of this Ordinance would deprive the applicant of placement of a wireless telecommunication facility.
c. There must be proof of practical difficulty or unnecessary hardship. It is not sufficient to show that greater profit or economic gain would result if the variation would be granted. Furthermore, the hardship or difficulty cannot be self-created or self-imposed; nor can it be established on this basis by the applicant who enters into an agreement with or without knowledge of the provisions of this Ordinance. The difficulty or hardship must result from the strict application of this Ordinance, and it must be suffered directly and solely by the applicant.
d. The variation is the least deviation from the requirements of this Ordinance that will mitigate the hardship or practical difficulty.
4. Action by the County Engineer. Upon receipt of the required variance application forms, supporting documentation, data, studies, and other requested information, and upon payment of all related variance fees, the County Engineer shall review the variance request and render a decision in writing to the developer by certified mail within thirty (30) calendar days. The County Engineer may stipulate conditions or impose requirements as a condition of granting a variance from the provisions of this Ordinance.
B. Appeals Procedure. Objections to any formal action or decision made by the County Engineer concerning issuance of a permit or variance under this Ordinance can be appealed by the applicant to the Transportation Committee of the McHenry County Board and adjudicated through an Appeal Hearing.
1. Appeal Hearing Request Requirements. Requests from the applicant for an Appeal Hearing by the Transportation Committee shall be made in writing to the County Engineer within thirty (30) calendar days of receipt of the County Engineer’s written variance decision. If the written request is not received within thirty (30) days, the applicant forfeits the right to an Appeal Hearing before the Transportation Committee.
2. Appeal Hearing Date and Notice. The Appeal Hearing shall be conducted at a regularly scheduled Transportation Committee meeting with the Appeal Hearing date set by the Chairman of the Transportation Committee upon notification by the County Engineer. The date of the Appeal Hearing shall provide for sufficient notice and review time. The applicant will be notified, in writing, of the date and time of the hearing no less than fifteen (15) days prior to the hearing. The hearing shall take place no later than sixty (60) days from receipt of the written request for an Appeal Hearing unless an alternate date is agreed to by the County and the applicant.
3. Appeal Hearing Proceedings. The Appeal Hearing is formal, but strict rules of evidence will not be followed. The Chairman of the Transportation Committee shall preside over and conduct the Appeal Hearing. All testimony provided during the Appeal Hearing shall be sworn and any documents, exhibits, etc. utilized in the Appeal Hearing shall be admitted into evidence and kept by the Committee. The meeting shall be open to the public pursuant to the requirements of the Open Meetings Act. The hearing format shall generally consist of:
• Identification of applicant, his representatives, owner, and witnesses providing testimony and staff, staff representatives, and staff witnesses providing testimony.
• Comments by the public.
• Applicant’s evidence and witness testimony followed by cross examination by the Committee and staff.
• Staff evidence and witness testimony followed by cross examination by the Committee and the applicant.
• Applicant’s rebuttal of evidence presented by staff.
• Closing statements by the applicant and staff.
• Closing of Appeal Hearing
• Deliberation and decision by Transportation Committee
4. Decision by Transportation Committee. The decision of the Transportation Committee shall be made in accordance with the testimony and evidence presented at the Appeal Hearing and shall take into account the standards of § 10.16.040A.3. of this Ordinance in their decision. The Transportation Committee decision shall be considered final under this Ordinance and shall be communicated in writing to the applicant within thirty (30) calendar days. Minutes of the hearing and subsequent deliberations shall be provided to the applicant and made available for public review in accordance with the Open Meetings Act.
(Ord. 6744, passed 5-15-2018)