1381.01  VARIANCE PROCEDURE.
   (a)   Any person who owns or is in control of any plant, building, structure, process or equipment may apply to the Appeals Board for a variance from provisions of this Code.  The Appeals Board may grant such variance upon satisfactory proof by the applicant if it finds that:
      (1)   The emissions occurring or proposed to occur do not endanger or will not threaten to endanger human health or safety.
      (2)   Compliance with the rules or regulations from which variance is sought would produce serious hardship without equal or greater benefits to the public.
   (b)   No variance shall be granted pursuant to this section except after public hearing on due notice and until the Appeals Board has considered the relative interests of the applicant and other owners of property likely to be affected by the discharges, and the general public.
   (c)   Any variance or renewal thereof shall be granted within the requirements of subsection (a) hereof and for time periods and under conditions consistent with the reasons thereof, and with the following limitations:
      (1)   If the variance is granted on the grounds that there is no practicable means known or available for the adequate prevention, abatement or control of the air pollution involved, it shall be only until the necessary means for prevention, abatement or control become known and available, and subject to the taking of any substitute or alternate measures that the Appeals Board may prescribe.
      (2)   If the variance is granted on the grounds that compliance with the particular requirement or requirements from which variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period, not to exceed such reasonable time as, in the view of the Appeals Board is requisite for the taking of the necessary measures.  A variance granted on the grounds specified herein shall contain a timetable for the taking of action in an expeditious manner and shall be conditioned on adherence to such timetable.
      (3)   If the variance is granted on the grounds that it is justified to relieve or prevent hardship of any kind other than provided for in terms of subsections (c)(1) and (c)(2) hereof, it shall be for not more than one year.
   (d)   Any variance granted pursuant to this section may be renewed on terms and conditions and for periods which would be appropriate on initial granting of a variance.  If complaint is made to the Air Pollution Control Officer or to the Commissioner on account of the variance, no renewal thereof shall be granted, unless, following public hearing on the complaint, the Appeals Board finds that renewal is justified.  No renewal shall be granted except on application therefor.  Any such application shall be made at least sixty days prior to the expiration of the variance.  Immediately upon receipt of an application for renewal, the Commissioner of Air Pollution Control shall give public notice of such application in accordance with rules and regulations of the Board.
   (e)   A variance or renewal shall not be a right of the applicant or holder thereof but shall be in the discretion of the Appeals Board.  However, any person adversely affected by a variance or renewal granted by the Appeals Board may obtain judicial review thereof by a proceeding in the Municipal Court.
   (f)   Nothing in this section and no variance or renewal granted pursuant hereto shall be construed to prevent or limit the application of the emergency provisions and procedures of this Code to any person or his property.
(Ord. 1970-69.  Passed 7-28-70.)
CODIFIED ORDINANCES OF PORTSMOUTH