§ 10.16.05. Miscellaneous provisions.

A.

Variances from requirements.

1.

The administrative authority may grant on a case-by-case basis a variance from the requirements of this chapter if there are exceptional circumstances applicable to the site such that strict adherence to the provisions of this chapter will result in unnecessary hardship and not fulfill the intent of this chapter.

2.

An applicant may include in the application a request for a variance. No variance shall be granted unless applicant demonstrates and the administrative authority finds that all of the following conditions are present:

a.

Enforcement of the standards set forth in this chapter will result in unnecessary hardship to the landowner.

b.

The hardship is due to exceptional physical conditions unique to the property.

c.

Granting the variance will not adversely affect the public health, safety or welfare, nor be contrary to the spirit, purpose and intent of this chapter.

d.

The project will have no adverse impact upon any of the stated purposes of this chapter.

e.

The applicant has proposed an alternative to the requirement from which the variance is sought that will provide equivalent protection of the public health, safety and welfare, the environment and public and private property.

f.

The net cumulative effect of the variance will not impact downstream conditions.

g.

Existing regional facilities are shown to meet the performance standards of this chapter.

3.

If all of the conditions of subsection A.2. are met, a variance may only be granted to the minimum extent necessary to afford relief from the unnecessary hardship, in determining whether a variance will be granted, primary consideration given to water quality.

4.

The content of a variance shall be specific and shall not affect other approved provisions of a SWPPP.

5.

Economic hardship is not sufficient reason for granting a variance.

6.

A written request for a variance shall be required and shall state the specific variance sought and the reasons, with supporting data, for the granting. The request shall include descriptions, drawings, calculations and any other information that is necessary to evaluate the proposed variance.

7.

Any substantial variance from the stormwater management plan shall be referred to all agencies which reviewed the original plan.

B.

Appeals.

1.

Any person aggrieved by a decision of the administrative authority (including any decision with reference to the granting or denial of a variance from the terms of this chapter) may appeal same by filing a written notice of appeal with the administrative authority within thirty (30) calendar days of the issuance of said decision by the administrative authority. The administrative authority can then reverse his/her decision or send this notice to the city council with comments. A notice of appeal shall state the specific reasons why the decision of the administrative authority should be reconsidered and the administrative authority shall prepare and send to the city council, with fifteen (15) days of receipt of the notice of appeal, a written response to said notice of appeal.

2.

All such appeals shall be heard by the city council which is hereby granted specific authority to hear and determine such appeals in a quasi-judicial capacity. Said appeal shall be heard by the city council at its next regularly scheduled meeting date, not to exceed thirty (30) days after receipt of the notice of appeal, or at such other time as may be mutually agreed upon in writing by the mayor. The city council will then render a decision within fifteen (15) days after the appeal has been heard.

3.

The city council may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and shall have all the powers of the officer from whom the appeal is taken.

4.

The concurring vote of a majority of the city council shall be necessary to reverse the decision of the administrative authority.

5.

Each party to the appeal shall be entitled to a hearing before the city council.

6.

Should either party be dissatisfied with the decision of the city council, any appeal of said decision may be appealed to a court of competent jurisdiction in accordance with the laws of the county and the state.

C.

Alternative methods.

1.

Where on-site detention is deemed inappropriate due to local topographical or other physical conditions, alternate methods for accommodating increases in stormwater runoff may at the administrative authority's discretion be considered. The methods may include:

a.

Off-site detention or comparable drainage improvements.

b.

In-lieu monetary contributions to be specifically used for channel or drainage system improvements, or off-site detention improvements by the city within the same watershed. Channel improvements shall only be used if they are an integral part of a detailed watershed study.

2.

An owner or developer may contribute to the construction of a regional or sub-regional detention site constructed or to be constructed in lieu of constructing on-site detention. However, no in-lieu contributions are allowed when existing flooding occurs downstream from the development, or if the development will cause downstream flooding.

3.

In-lieu fees. The in-lieu fee contribution shall be based upon an amount of ten thousand dollars ($10,000.00) per acre foot of stormwater storage or a minimum of five hundred dollars ($500.00).

4.

Watershed facility improvement funds. In-lieu contributions paid to the city shall be budgeted by contributing to a "watershed facility improvement fund." Said funds shall be appropriated only for planning, design and construction for correction of existent drainage problems within the watershed from which the contribution is generated.

5.

Regional or sub-regional detention sites. The acquisition of regional or sub-regional detention sites and construction of facilities thereon will be financed by the city. Monies contributed by the owners as above provided shall be used for regional and sub-regional detention site studies, land acquisition and facility construction thereof in the watershed in which the development is located.

6.

Watershed boundaries. The boundaries of watersheds and priority in construction of detention facilities and drainage improvement construction shall be as established by the administrative authority and approved by the board of directors.

D.

Violations.

1.

A site grading permit may be suspended or revoked by the administrative authority if one or more of the following violations have been committed:

a.

Violation(s) of the conditions of the stormwater management plan approval.

b.

Construction not in accordance with the intent of the approved plans.

c.

Non-compliance with correction notice(s) or stop work order(s).

d.

The existence of an immediate danger in a downstream area in the judgment of the administrative authority.

2.

If one or more of these conditions is found, a written notice of violation(s) shall be served upon the owner or authorized representative and an immediate stop-work order may be issued. The notice shall set forth the measures necessary to achieve compliance with the plan. Correction of these violations must be started immediately and completed within seven working days of original notification or the owner shall be deemed in violation of this chapter.

3.

The city, by and through its legal representative, may institute injunctive, mandamus, or other action or proceedings at law or equity for the enforcement of this chapter or to correct violations of this chapter, and any court of competent jurisdiction shall have the right to issue restraining orders, temporary or permanent injunctions, mandamus or other appropriate forms of remedy or relief.

4.

Enforcement/stop-work order. Whenever the administrative authority finds any non-compliance with the provisions of this chapter, the administrative authority shall attempt to communicate with the owner or person performing the work to obtain immediate and voluntary compliance if such person is readily available. If the owner or person performing the work is not readily available or if that person refuses to voluntarily comply immediately or the non-compliance presents an imminent danger or will cause or threatens to cause bodily injury or damage to off-site property including, but not limited to, off-site runoff, the administrative authority shall post in a conspicuous place on the premises, a stop-work order which shall cause all activity not necessary to correct the non-compliance to cease until non-compliance is corrected.

5.

The stop-work order shall provide the following information: date of issuance, project name and permit number and reason for issuance and the signature of the inspector that issues the order.

6.

It shall be a violation of the ordinance from which this section is derived for the unauthorized removal of the stop-work order from the premises when posted on the project site.

7.

In addition to posting a stop-work order, the local approval authority shall provide notification to the owner or contractor by personal service, written notice by certified mail, or facsimile transmission. The permittee, landowner and contractor shall have seventy-two (72) hours from the time and date of notification by the administrative authority to correct any non-compliance with the plan.

8.

It shall be a violation of this chapter for any owner, operator or contractor to commence any soil disturbance activity that requires permit coverage without prior approval from the administrative authority. Failure to obtain approval may result in enforcement fees, citations, court cost and/or fines.

9.

Inspection. The administrative authority shall be responsible for determining whether the stormwater management plan is in conformance with the requirements specified by the city's stormwater management manual. Also, the administrative authority shall be responsible for determining whether the development site is proceeding in accordance with the approved drainage plan. Periodic inspection of the development site shall be made the administrative authority. Through such periodic inspections, the administrative authority shall ensure that the stormwater management plan is properly implemented and that the improvements are maintained.

10.

Remedial work. If it is determined through inspection that the development is not proceeding in accordance with the approved stormwater management plan and drainage and/or building permit, the administrative authority shall immediately issue written notice to the permittee concerning the alleged non-compliance, accompanied by documentary evidence demonstrating non-compliance and specifying what remedial work is necessary to bring the project into compliance. The permittee, upon notification, shall immediately, unless weather conditions or other factors beyond the control of the permittee prevent immediate remedial action, commence the recommended remedial action and shall complete the remedial work within seventy-two (72) hours or within a reasonable time as determined in advance by the administrative authority. Upon satisfactory completion of remedial work, the administrative authority shall issue a notice of compliance and the development may proceed.

11.

Enforcement fee. Where code enforcement action is needed to bring a site into compliance with the Clean Water Act, fees will be charged to the permit holder and/or the property owner. The enforcement fee shall be established by resolution of the city council.

12.

Authorization. The city employee identified as the stormwater manager is hereby authorized and charged with the power and authority to issue citations for violations of the city stormwater management ordinance and regulations, as may be amended from time to time, under A.C.A. § 12-9-103(b)(3).

This authorization does not pertain to enforcement of the criminal statutes of the state, enforcement of which are vested in certified law enforcement officers. Further, the authority to issue citations in this ordinance does not include arrest or apprehension authority.

E.

Penalty. The penalty for violation of this chapter shall, upon conviction in the city district court, or any other court of competent jurisdiction, be such fines and penalties as established by this chapter.

F.

Conflict resolution and interpretation.

1.

Interpretation. In their interpretation and application, the provisions of these regulations shall be held to be the minimum requirements for the promotion of the public health, safety and general welfare.

2.

Conflict with other laws. Whenever the provision of this chapter impose more restrictive standards than are required in or under any other ordinance, the regulations herein contained shall prevail. Whenever the provisions of any other ordinance require more restrictive standards that are required herein, the requirements of such shall prevail.

G.

Disclaimer of liability.

1.

The performance standards and design criteria set forth herein and in the stormwater management manual establish minimum requirements which must be implemented with good engineering practice and workmanship.

Use of the requirements contained herein shall not constitute a representation, guarantee or warranty of any kind by the city or its officers and employees of the adequacy or safety of any stormwater management structure or use of the land. Nor shall the approval of the stormwater management plan imply that the land uses that are permitted will be free from damages caused by stormwater runoff. The degree of protection required by these regulations is considered reasonable for regulatory purposes and is based on historical records, engineering and scientific methods of study. Larger storms may occur or stormwater runoff heights may be increased by man-made or natural causes. These regulations, therefore, shall not create liability on the part of the city or any officer or employee with respect to any legislative or administrative decision lawfully made hereunder.

2.

Neither approval of a plan under the provisions of this chapter nor the compliance with the provisions of this chapter shall relieve any person from the responsibility for damage to any person or property otherwise imposed by law.

H.

Amendments. For the purpose of providing for the public health, safety and general welfare, the city council may from time to time, amend the provisions of these regulations. This ordinance from which this chapter is derived may be amended in the manner as prescribed by law for its original adoption. Before the city council considers an amendment to this chapter, it must seek the advice of the administrative authority who will make a recommendation for each amendment within thirty (30) days of this request.

I.

Pre-existing projects. Any applicant or owner of a parcel of land within the jurisdiction of the city who has constructed a required stormwater management facility or who is in the application process shall be held to the requirements in effect at the time the permit was approved.

( Ord. No. 2011-28, § 4 ; Ord. No. 2015-12 , § 1, 3-31-2015; Ord. No. 2017-16 , § 1, 6-27-2017)