§ 11-84. Waivers.

(a)

Waivers to the application of this article for a specific continuing activity, such as, but not limited to, a construction project or the use of construction equipment, may be obtained pursuant to the requirements of this section.

(b)

Applications for a waiver from the restrictions of this article shall be made in writing to the POD. The application shall contain information which demonstrates that bringing the source of sound or activity for which the waiver is sought into compliance with this article would constitute an unreasonable hardship on the applicant, on the community, or on other persons.

(c)

The applicant, at its own expense, shall notify all occupants of property that would be directly affected by the issuance of a waiver by mail or hand delivery. The applicant shall submit a copy of the notice to the POD prior to delivery. For the purposes of this section property directly affected by the issuance of a waiver shall mean:

(1)

In the case of a nonresidential zoning district all property located within 500 feet from the property boundary of the property from which the noise will emanate.

(2)

In the case of a residential zoning district all property within 1,000 feet of the property boundary of the property from which the noise will emanate.

(3)

Where a waiver is sought for noise emanating from a nonresidential zoning district and a residential zoning district lies within 1,000 feet of any property boundary of the property from which the noise will emanate, all residences within the residential zoning district which are within 1,000 feet shall be notified.

(4)

Where a waiver is sought for noise emanating from a residential zoning district and a nonresidential zoning district is within 1,000 feet of any property boundary of the property from which the noise will emanate, then notice shall only be required to the border of the residential zoning district or 500 feet whichever is greater.

(d)

The notices required in this section shall include the following information:

(1)

The name of the applicant.

(2)

The local address and telephone number of the applicant or the applicant's representative.

(3)

The activity planned for which the waiver is sought.

(4)

The duration of time for which the waiver is sought.

(5)

The types of noise expected to be generated.

(6)

A date, which shall be no sooner than seven days from date of delivery of the notice, which is the deadline for affected citizens to file written objections to the application with the POD along with the address to which written objections may be mailed or delivered.

(7)

The date on which the POD will make a decision on the application.

(8)

A statement informing the recipient that affected persons may appeal the decision by requesting a public hearing in writing within seven days of the rendition of the decision.

(e)

If an emergency exists or imminent need is shown, the POD may determine that it is in the best public interest to grant a temporary waiver until such time as the procedures set forth herein may be accomplished.

(f)

In making a decision on an application for waiver or request for temporary waiver, the POD shall balance the interests of the directly affected properties and the person requesting the waiver and the interests of the City as a whole. The POD may prescribe any reasonable conditions or requirements deemed necessary to minimize adverse effects upon the directly affected properties, including but not limited to the use of mufflers, screens or other sound attenuating devices.

(1)

Standards for issuance of a waiver shall include the following findings:

a.

A benefit will accrue to the City.

b.

The benefit to the City and its residents outweighs the temporary hardship, if any, to occupants of property that would be directly affected.

c.

A waiver would advance an established policy of the City.

d.

The proposed noise violations will not be unreasonable under the circumstances and restrictions of the waiver.

e.

The proposed noise violations will not unreasonably interfere with or detract from the promotion of public health, welfare and safety.

f.

The proposed activity will not entail extraordinary or burdensome expenses or police operations by the City.

g.

The applicant has all necessary federal, State, and local permits to engage in the activity.

(2)

Conditions and requirements along with the expected mitigating results of the conditions and requirements shall be listed.

(g)

Any occupant of a directly affected property or the applicant may appeal the decision of the POD on an application for waiver by filing a written request with the City Clerk, within seven days of the decision, setting forth the reason for the appeal. The appeal will be scheduled to be heard at a regular meeting of the City Council within 30 days of the appeal.

(1)

If the person appealing is not the applicant, then that person and the applicant or a representative of the applicant and City staff will be the only persons heard.

(2)

If the person appealing is the applicant then the applicant or a representative of the applicant, those persons who filed written objections to the application, and City staff will be the only persons heard.

(3)

The City Council may vary this procedure pursuant to its existing procedure for waiving other rules of procedure.

(h)

At the public hearing, the City Council shall balance the interests of the directly affected properties and the applicant and the interests of the City as a whole.

(1)

If the City Council upholds the granting of a waiver it may delete or modify any of the conditions of the waiver or add such other conditions deemed necessary to minimize adverse effects upon the directly affected properties.

(2)

If the City Council reverses a denial of an application for a waiver it may prescribe any reasonable conditions deemed necessary to minimize adverse effects upon the directly affected properties.

(i)

Waivers may be issued for no longer than 180 days. Any request for extension of this time limit or for modification of other substantial conditions in the waiver shall be processed in the same manner as an application for a waiver as set out in this section.

(Code 1992, § 11-76; Ord. No. 2002-F, § 1(14-36), 9-27-1990; Ord. No. 455-G, § 1, 12-21-2000; Ord. No. 880-G, § 1, 6-19-2008)