§ 50-107. Variance and appeal procedures.

The county manager shall sit in a quasijudicial capacity to hear and decide all appeals and requests for variance from the requirements of this article upon written application filed with the county water system manager and with the county manager. The following procedures shall apply to all applications:

(1)

Appeals.

a.

Any person aggrieved by a decision of the manager in the interpretation and administration of this article may appeal by filing a written application of appeal with the manager and county manager within ten days of the issuance of such decision by the manager.

b.

The county manager shall hear and decide appeals only when it is alleged there is an error in any requirement, decision or determination made by the manager in the enforcement or administration of this article.

c.

The application for appeal shall state the specific reasons why the decision of the manager is alleged to be in error.

d.

Within ten days of receipt of the application of appeal, the manager shall prepare and serve upon the appellant a response to the application for appeal.

(2)

Request for variance. All requests for variance shall be in the form of a written application and shall state the specific variance sought and jurisdiction thereof. Such request shall include descriptions, drawings, calculations and any other information necessary in the opinion of the county manager to evaluate the proposed variance. The county manager may demand any and all information necessary for proper consideration of the application and the county manager may deny the application when such information is not produced in a timely fashion.

(3)

Hearings. The county manager shall hear any application filed pursuant to this section within 45 days from the date the written application is received by the manager, or at such other time as may be mutually agreed upon in writing by the appellant, manager and concurrence of the county manager. Each party to the action, attorney or representative shall be entitled to participate in the hearing before the county manager as informally as compatible with justice.

(4)

Variance considerations. In reviewing applications for variances, the county manager shall consider, including but not limited to, all technical evaluations, all relevant factors, all standards specified in other sections of this article, and:

a.

The danger to life and property due to flooding or erosion damage.

b.

The importance of the services provided by the proposed facility to the community.

c.

The necessity of the facility to a waterfront location, in the case of a functionally dependent facility.

d.

The availability of alternative locations for the proposed use.

e.

The compatibility of the proposed use with existing and anticipated development.

f.

The relationship of the proposed use to the comprehensive plan and floodplain management and stormwater management programs for that area.

g.

The safety of access to the property in times of flood for ordinary and emergency vehicles.

h.

The cost of providing governmental services during and after emergency conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges.

(5)

Granting variances.

a.

The county manager, in specific cases, shall be authorized to grant a variance from the terms of this article as will not be contrary to public interest where, owing to special conditions, a literal enforcement of the provisions of this article will in an individual case result in unnecessary hardship, so that the spirit of this article shall be observed, public safety and welfare secured, and substantial justice done. Such variance may be granted in such individual case of unnecessary hardship upon a finding by the county manager that:

1.

The variance is the minimum necessary, considering the impact on upstream and downstream properties.

2.

A finding by the county manager of the following:

i.

A show of good and sufficient cause.

ii.

A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense; create a nuisance; cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.

b.

Variances from the requirements of this article which are so great that they constitute a waiver of the stormwater management requirements for an individual development may be granted only if the applicant can conclusively demonstrate that:

1.

The proposed development will not generate more than a ten percent increase in the predevelopment peak discharge rate of any storm with a statistical occurrence equal to or greater than one percent in any given year and will not cause an adverse impact on the receiving wetland, watercourse, downstream property or water body; or

2.

A site is completely surrounded by existing developed areas which are served by an existing network of public storm drainage systems of adequate capacity to accommodate the runoff from the additional development.

(6)

County manager findings. Within 45 days after hearing the appeal, the county manager shall give written notice to the applicant specifying the findings thereof and any stipulations attached thereto.

(7)

Maintenance of records. The manager or his designee shall maintain the records of all appeal and variance actions.

(8)

Appeals to superior court. Any persons severally or jointly aggrieved by any decision of the county manager may take an appeal to superior court. Such appeal to the superior court shall be the same as an appeal to the superior court from any decision made by the magistrate court, except, however, that such appeal shall be filed 30 days from the date of the decision of the county manager, and upon failure to file such appeal within 30 days, the decision of the county manager shall be final; provided, however, that, on appeal, such case shall be heard by the judge of superior court without a jury, unless one of the parties files a written demand for a jury trial within 30 days from the filing of the appeal.

(Ord. of 9-28-93; Code 1977, § 3-22.5A-42; Ord. of 4-13-04)