§ 38-165. Variances.

(a)

Administrative variances:

(1)

The community development director may grant a variance from section 38-155 or 38-156.

(2)

Any person seeking a variance shall submit an application to the community development director for the city containing information which demonstrates that bringing the sound for which the variance is sought into compliance with this article would constitute an unreasonable hardship on the applicant, the community, or on other persons. At a minimum, the applicant shall provide the following information:

a.

Identification of the applicant;

b.

The applicant's mailing address;

c.

A legal description of the property from which the sound will emanate;

d.

A description of the source of the sound;

e.

A description of the sound;

f.

The names and addresses of all property owners within 300 feet of the property for which the variance is requested;

g.

The facts and reasons justifying a variance; and

h.

Any other relevant information necessary to make a determination.

(3)

The applicant for a variance shall pay an application fee of $75.00.

(4)

The community development director for the city shall schedule a public hearing on the variance application in accordance with the procedures set forth in section 118-133.

(5)

At the hearing, the applicant for a variance, any department of the city and persons objecting to the variance application may submit any relevant evidence or testimony. In deciding whether to grant, grant with conditions, or deny the application, the community development director shall balance the hardship which will result to the applicant, the community, and other persons if the variance is not granted. If the community development director determines that the granting of the variance, with or without conditions, will be in harmony with the general intent, purposes and goals of chapter 118 and that the variance will not be unduly injurious to the area involved or otherwise unduly detrimental to the public, the variance shall be granted. Additionally, if the reasonable use of property is not feasible without the granting of a variance, the minimum variance to make the property reasonably useable shall be granted. The community development director shall grant, deny or grant with conditions the variance application no later than ten days after the date of the hearing. In granting, granting with conditions or denying a variance application, the community development director shall state in writing the reasons for the decision. If the decision is to grant or grant with conditions the application, the community development director shall set forth in writing the terms and conditions of the variance, including the effective date of the variance, the period of the variance, the time of day the variance may be used, the location where the sound may be created or caused, and the sound level limits. The reasons for a denial shall be set forth in writing.

(6)

If the community development director grants the variance application, a written variance shall be issued to the applicant and a copy of the variance shall be provided to those persons and entities requiring a copy. However, the variance shall not be issued until the time for filing a notice of appeal pursuant to subsection (a)(9) of this section has expired. If a notice of appeal is filed, the variance shall not be issued unless the city commission approves a variance.

(7)

The variance shall contain all the terms and conditions of the variance. A copy of the variance shall be retained by the community development director. This copy shall be available for inspection upon request by the general public.

(8)

The failure to comply with any term or condition of the variance constitutes a violation of this article and is punishable in the manner provided in sections 38-161 and 38-162 of this article.

(9)

Any variance applicant, abutting property owner, or adversely affected property owner or occupant may appeal a decision of the community development director in the manner proscribed in section 98-31. The city commission shall conduct a de novo review in deciding whether to approve or disapprove the community development director's decision and in granting, denying or granting with conditions a variance.

(b)

Administrative variances for construction activity:

(1)

Notwithstanding the provisions set forth in section 38-155(b)(2) above, any person may apply to the city on form(s) approved by the city to allow for construction activities to occur outside of the days and times referenced in section 38-155(b)(2) above provided that each of the following conditions have been met:

a.

Applicant provides city with 72-hour written notice prior to commencement of construction activity;

b.

City staff is available to inspect and review construction activity on the days and at the times requested for construction; and

c.

Applicant pays all fees, costs and expenses incurred or to be incurred by city as well as any overtime incurred by city staff for such inspections and review of construction activity.

(2)

If the conditions enumerated under section 38-165(b)(1) have been met, the city may permit the applicant to perform the following construction activities on the specified days and at the specified times:

a.

Horizontal construction may be permitted to occur no later than 9:00 p.m. horizontal construction includes site work such as clearing, grading, paving, drainage, utilities, sidewalks, curbs, gutters, base work, street lighting, electrical, landscaping and other subdivision and nonresidential site improvements or work.

b.

Vertical construction may be permitted to occur 24 hours a day any day of the week subject to prohibition by the city, in the city's sole discretion, if any part of the vertical construction causes, or is likely to cause noise. Vertical construction includes footings, forms, steel, electrical, plumbing, roofing, HVAC, concrete, painting, sheetrock, and other activities that are not horizontal construction.

(c)

Exemptions for pre-approved city events or activities:

(1)

It shall not be a violation of section 38-155(a) or section 38-155(b) if the noise at issue relates to or is produced as a result of pre-approved city events or activities. Such exemptions include, but are not limited to, activities and events sponsored by, conducted by, or permitted by the city.

(Code 1988, § 11-61; Ord. No. 05-36, § 12, 7-14-05; Ord. No. 12-33, § VI, 6-28-12)