§ 34-276. Variances.

The authority to grant a variance and an appeal from such variance to the provisions of this division, is hereby delegated to the San Antonio Water System in the manner described herein. A determination by the San Antonio Water System pursuant to this section shall be deemed final for purposes of appeal. Appeal procedures are detailed below.

(1)

Variance. A person who is affected by these provisions may seek a variance in the manner set out herein. A person shall request a variance within thirty (30) days of the date a provision becomes apparently applicable to that person's activities and/or properties. For example, a person will have standing to seek a variance within thirty (30) days following receipt of a formal (citation) or informal notice of violation; prior to a notice of violation; or at the discretion of the variance administrator when, in the administrator's judgment, to deny standing to pursue a variance would clearly deny the applicant an opportunity to have justice and equity done for the applicant's case. In the latter situation, for purposes of justice and equity, the standard for allowing a variance application to be heard or considered are the common notions of rightness and fair play.

(2)

Time, date, place. A person seeking a variance under these provisions shall make such request in writing to the conservation department. Such request shall be reviewed by the variance administrator. If the application, on its face, warrants a variance, the administrator may grant the request without hearing. Otherwise, the administrator shall review such request within thirty (30) days of receipt and shall inform the requestor in writing of the time, date and place for variance hearing, if necessary.

(3)

Representation and notice of SAWS' response, first hearing. The requestor may be represented by a duly authorized representative and may introduce such evidence as the requestor believes to be relevant. The administrator and appropriate conservation department personnel shall hear the request. The requestor shall receive written notification by the administrator within thirty (30) days of the date of the hearing whether such variance is granted or denied.

(4)

Appeal. In the event the variance is granted, the decision of the administrator shall be final. Should the variance be denied, however, the requestor shall have ten (10) days from receipt of the denial of the variance to seek an appeal in writing. Within thirty (30) days of the written request for an appeal from the denial of a variance, the director shall hear the appeal. The requestor shall be informed in writing of the time, date and place where such appeal shall be heard. The requestor and/or his authorized representatives may present evidence to the director why such appeal should be granted. The director shall inform the requestor within thirty (30) days of the date of the hearing of the appeal whether the appeal has been granted or denied. The determination of the director shall be final and shall be in writing. If a judicial appeal is pursued, applicant must take such appeal to district court or other court of competent jurisdiction within thirty (30) days of the director's final determination, which further appeal shall be pursued under appropriate standards of the substantial evidence rule.

(5)

Variance qualifications. Variances to the regulated activities in this division 1 may be issued through the department of conservation's variance administrator provided that the general intent of this division has been met, and compliance with article IV, division 1, is proven to be impracticable to accomplish and to cause unnecessary hardship. The criteria to determine hardship shall include, but not be limited to, a showing of level of capital outlay and technical complexity in relation to conservation benefit to be derived, and time and effort required to accomplish compliance with this division.

(6)

Specific criteria to be used for the granting of variances. The SAWS director of conservation shall also develop specific criteria to be used for the granting of variances from the provisions of this division, which are appropriate to the provision for which a variance is being sought. Such criteria shall be applied equally to each request for variance under a particular provision. A requestor shall be furnished with the criteria to be utilized by the administrator and/or director prior to his/her variance application and/or appeal being heard.

(Ord. No. 2014-05-29-0376, § 3(Exh. B), 5-29-14)