§ 4-42. Administratively granted waivers.

A.

Waivers from LDC regulations. Waivers of ten (10) percent or less to adopted LDC regulations, or to any degree of technical code requirements related to engineering materials, may be granted administratively by the administrator or by the city engineer with concurrence from the administrator, subject to procedures set forth herein. Waivers cannot be given administratively to height and density restrictions established by referendum, and they do not require notice.

Waiver: A grant of permission that authorizes an applicant to deviate from specific standards or provisions of these regulations. A waiver may be granted by the administrator, city manager, planning board, board of adjustment or the city commission, where and as specifically permitted throughout these LDC regulations. Any waiver will not be contrary to the public health, safety or welfare, and may only be granted where a literal enforcement of these regulations would result in an undue hardship, due to conditions peculiar to the property and not the result of actions of the applicant. Waivers may not be requested or authorized for expansion of a nonconforming structure or use, or where otherwise prohibited

B.

Purpose and scope. Administrative waivers of ten (10) percent or less may be granted when such waiver will not create a life-safety issue, be contrary to the public interest, and where, owing to special conditions, a literal application and/or enforcement of the LDC regulations or technical code requirements would result in an undue hardship upon the property owner. Administrative waivers shall not be granted if it has the effect of nullifying the intent and purpose of these regulations, or the technical codes, and in no case shall a waiver be granted to permit the construction of structures, a part of any structure, or an attachment to any structure at a height greater than forty-five (45) feet above crown of the abutting road. Further, in no case shall a waiver be granted to permit the construction of dwelling units greater than ten (10) dwelling units per acre for permanent occupancy dwellings or twenty-eight (28) units per acre for transient lodging establishments.

C.

Timeliness of filing; jurisdiction. An administrative decision regarding the waiver request must be completed within five (5) working days following the applicant's request.

1.

Staff must make written response to the applicant on whether the request was approved, approved with conditions, or denied and provide notice of appeal and further administrative process as set forth below; or,

2.

Inform applicant that a planning board or board of adjustment review and approval is required, depending upon the size and type of request submitted, since the request exceeds the ten (10) percent threshold.

D.

Application and findings of fact. Administrative waivers must not be granted unless and until a sufficient application is submitted, and staff can find that the criteria below have been met for the requested waiver, which demonstrates:

1.

That because of exceptional or extraordinary conditions or circumstances which exist, the strict application of these LDC regulations or technical code requirements would result in a peculiar, exceptional or undue hardship, as opposed to a mere inconvenience upon the property owner, an administrative waiver may be authorized, if it can be granted without destroying the intent of these LDC regulations or the technical codes in question.

2.

That the special conditions and circumstances do not result from the actions of the applicant.

3.

That the waiver would be the minimum waiver required in order to make possible the reasonable use of the land, buildings, and other improvements.

4.

That granting the waiver would be consistent with the Comprehensive Plan and in harmony with the general purpose and intent of these regulations, will not create a life-safety issue, be injurious to the surrounding neighborhood, or otherwise be detrimental to the public welfare.

E.

Conditions. Staff may prescribe appropriate conditions and safeguards to ensure that the purposes of the appropriate codes and regulations are adhered to, and the waiver is the minimum necessary to allow reasonable use of the land and improvements.

F.

Approval/denial. If the administrative waiver is denied, the decision is considered a denial without prejudice. With any approval, the applicant shall start and diligently pursue to completion the work required for the waiver within one (1) year of approval.

G.

Appeals. Applicants may choose to take a denied request for an administrative waiver to the board of adjustment to be heard as a regular variance, or they may make an appeal as provided for in chapter I, article VIII and article IX, as appropriate.