A. Variances. Variances to the provisions of this Ordinance may be granted subject to the process and standards that follow.
1. Process.
a. In order to be considered for a variance, a variance petition shall be submitted to the Enforcement Officer.
b. The Enforcement Officer shall submit a written recommendation to the oversight committee regarding each variance petition within 30 days after receipt of a complete variance petition. The oversight committee may also request an opinion from the McHenry County Stormwater Technical Advisory Committee.
c. The oversight committee shall have the authority to grant variances to the provisions of this Ordinance.
(1) A public hearing is required for a variance petition that affects adjoining properties or has the potential to affect adjoining properties, as determined by the Enforcement Officer.
i. When required, the petitioner shall schedule a public hearing before the oversight committee and shall be responsible for all fees associated with the hearing. Notice of the hearing shall be published once in a newspaper having a general circulation within the community. The publication shall not be less than 15 days, nor more than 30 days prior to the hearing. All owners of record of land within 250 feet of the contiguous property shall be served notice of the public hearing not less than 15 days, nor more than 30 days prior to the hearing. The notice shall be served by certified mail, return receipt requested. All notices shall include at least the following information:
(a) The street address of the development site, or if there is no street address, then the location of the development site with reference to well-known landmarks;
(b) A description of the regulated development;
(c) Identification of each Ordinance provision for which a variance is requested;
(d) A statement that any person may attend the hearing and submit verbal comments regarding the variance petition with the date, time, and location of the hearing;
(e) A statement that any person may submit written comments regarding the variance petition with the address to which written comments shall be mailed and the date by which written comments shall be received; and
(f) A statement that any and all documents that concern the variance petition which are subject to public disclosure, will be made available for inspection by the community with the location where the documents will be available for inspection.
(2) The oversight committee shall grant the variance, grant the variance with conditions, or deny the variance in writing within 45 days after receipt of the written recommendation from the Enforcement Officer.
(3) Written decisions shall be made public for all variance petitions and shall be on file with the community.
(4) The MCSC Chief Engineer shall be notified of every variance hearing in a Certified Community and of every variance granted by a Certified Community.
(5) Any person with an affected interest in the variance petition may appeal a variance decision according to the Appeals standards of this Ordinance.
2. Standards.
a. The oversight committee may grant variances to the provisions of this Ordinance if the petitioner provides evidence demonstrating that:
(1) Failure to grant the variance would result in an unreasonable hardship; and
(2) The variance is necessary due to unique and exceptional physical circumstances or a condition of a particular property; and
(3) The variance is the minimum necessary to afford relief; and
(4) The variance will not cause detriment to the public good, safety or welfare; and
(5) The variance will not cause an increase in the water surface profile within a floodway; and
(6) The variance will not cause an increase in the water surface profile upstream of the development site, unless:
i. The increase is contained within the banks of the water body; or
ii. The increase is contained within the development site, property in which the applicant has an ownership interest, or a deed or plat restriction; or
iii. The increase does not exceed 0.1 foot for the base flood event.
(7) The variance will not be contrary to the spirit, purpose and intent of this Ordinance; and
(8) The regulated development meets the minimum Federal, State, and other local regulations, including those of IDNR/OWR and FEMA for participation in the NFIP.
b. The Enforcement Officer shall notify a petitioner in writing that a variance from the requirements of the Building Protection Standards of this Ordinance, that lessens the degree of protection to a building may result in increased premium rates for flood insurance and may increase the risk of loss of life and property. The Enforcement Officer shall require the petitioner to acknowledge the assumption of the risks and liability in writing. If the variance is approved, the document shall be recorded against the property with the McHenry County Recorder of Deeds Office and the petitioner shall pay the fee for recording the exception.
3. Conditions.
a. In granting a variance, the oversight committee may impose specific conditions and limitations on the petitioner concerning any matter relating to the purposes of this Ordinance.
b. Whenever any variance is granted subject to any condition to be met by the petitioner, the petitioner shall submit evidence that the condition has been met.
4. A variance petition shall include:
a. A stormwater management permit application;
b. Payment of the initial application fee;
c. Payment of the variance fee;
d. A description and depiction of the regulated development;
e. Plans, reports, calculations and any other documentation listed in the Application Requirements of this Ordinance which the Enforcement Officer deems necessary in order to make a written recommendation to the oversight committee;
f. Identification of each Ordinance provision for which a variance is requested;
g. A written statement describing the effect on adjoining properties; and
h. A legal description or PIN for all parcels impacted by the regulated development.
B. Appeals.
1. Any person aggrieved by the following decisions of the Enforcement Officer shall have the right to appeal the decision to the oversight committee:
a. The denial of a stormwater management permit;
b. The conditions imposed on a stormwater management permit; and
c. The issuance of a stop work order.
2. Any person aggrieved by a ruling of the oversight committee, including rulings related to variance petitions, may appeal that ruling to the MCSC.
3. After exhausting the administrative reviews set forth in this Section, any aggrieved person contesting a ruling of the MCSC may appeal to the Illinois circuit courts under the Illinois Administrative Procedures Act (5 ILCS 100/1-1 et seq.).
4. All appeals to the oversight committee and the MCSC shall be made in writing, shall specify the reasons for the appeal, and shall include all information pertinent to the appeal. For appeals
regarding permit denials or permit conditions, the appeal must be submitted within 30 calendar days from the date of denial or conditional issuance of a stormwater management permit. An appeal of the issuance of a stop work order must be served within 14 calendar days from the date of posting the stop work order.
5. The oversight committee and the MCSC shall rule in favor of or against an appeal, in whole or in part, within 45 days after receipt of the appeal.
6. Any person who has been issued a stormwater management permit, and appeals a condition of the permit, may commence construction of the subject development prior to the resolution of the appeal; however, any commencement of construction must comply with all the terms and conditions of the stormwater management permit as issued.
7. Any person whose stormwater management permit was denied is prohibited from commencing construction of the subject development while the appeal is pending. Under no circumstances shall construction commence prior to the issuance of a stormwater management permit.
8. Any person who requests an appeal of the issuance of a stop work order must suspend construction of the subject development while the appeal is pending.
(Ord. O-2020-09-15, passed 9-19-2020)