9656.9. - Variance procedure.

The owner or operator of a noise source which violates any of the provisions of these sections may file an application with the health officer for a variance from the provisions thereof wherein said owner or operator shall set forth all actions taken to comply with said provisions, the reasons why immediate compliance cannot be achieved, a proposed method of achieving compliance, and a proposed time schedule for its accomplishment. Said application shall be accompanied by a fee in the amount of specified by city council resolution. A separate application shall be filed for each noise source; provided, however, that several mobile sources under common ownership, or several fixed sources on a single property may be combined into one (1) application. Upon receipt of said application and fee, the health officer shall refer it with his recommendation thereon within thirty (30) days to the director for action thereon in accordance with the provisions of these sections.

An applicant for a variance shall remain subject to prosecution under the terms of this section until a variance is granted and shall refrain from exceeding the noise level permitted during such proceedings.

A.

Zoning administrator. The director shall evaluate all applications for variances from the requirements of these sections and may grant said variances with respect to time for compliance, subject to such terms, conditions and requirements as it may deem reasonable to achieve maximum compliance with the provisions of these sections. Said terms, conditions and requirements may include, but shall not be limited to limitation on noise levels and operating hours. Each such variance shall set forth in detail the approved method of achieving maximum compliance and a time schedule for its accomplishment. In its determinations, the director shall consider the magnitude of the nuisance caused by the offensive noise; the uses of property within the areas of impingement by the noise; the time factors related to the study, design, financing and construction of remedial work; the economic factors related to the age and useful life of equipment; and the general public interest and welfare. Any variance granted by said administrator shall be in writing and shall be transmitted to the health officer for enforcement. Any violation of the terms of variance shall be unlawful.

B.

Appeals. Within fifteen (15) days following the decision of the director on an application, the applicant, the health officer, or any member of the city council, may appeal the decision to the city council by filing a

notice of appeal with the director of community development. In the case of an appeal by the applicant for a variance, the notice of appeal shall be accompanied by a fee to be computed by the director on the basis of the estimated cost of preparing the materials referred to be forwarded to the city council as discussed hereafter, and shall be mailed to all property owners within five hundred (500) feet. If the actual cost of such preparation differs from the estimated cost, appropriate payments shall be made to the city.

ce of appeal shall be accompanied by a fee to be computed by the director on the basis of the estimated cost of preparing the materials referred to be forwarded to the city council as discussed hereafter, and shall be mailed to all property owners within five hundred (500) feet. If the actual cost of such preparation differs from the estimated cost, appropriate payments shall be made to the city.

Within fifteen (15) days following receipt of a notice of appeal and the appeal fee, the director shall forward to the city council copies of the variance application; the recommendation of the health officer; the notice of appeal; all evidence concerning said application received by the director and its decision thereon. The city clerk shall mail to the applicant a notice of the date set for hearing of the appeal. The notice shall be mailed at least ten (10) days prior to the hearing date.

Within sixty (60) days following its receipt of the notice of the appeal, the city council shall either affirm, modify or reverse the decision of the director. As part of its decision, the city council may direct the director to conduct further proceedings on said application. Failure of the city council to affirm, modify or reverse the decision of the director within said sixty (60) day period shall constitute an affirmance of the decision.