34.1
ADMINISTRATIVE
OFFICIAL.
An administrative official designated by the
City Council shall administer and enforce this ordinance. Said person
may be provided with the assistance of such other persons or consultants
as the City Council may direct.
34.2
ENFORCEMENT.
If the administrative official finds that any of the provisions
of this ordinance are being violated, he shall notify in writing the
person responsible for such violations, indicating the nature of the
violation and ordering the action necessary to correct it. He shall
order discontinuance of illegal use of land, buildings or structures;
removal of illegal buildings or structures or of illegal additions,
alterations, or structural changes; discontinuance of any illegal
work being done; or shall take any other action authorized by this
ordinance to ensure compliance with or to prevent violation of its
provisions.
(Ordinance 2010-01-149 adopted 1/19/10)
To avoid undue hardship, nothing in this ordinance shall be
deemed to require a change in the plans, construction or designated
use of any building on which actual construction was lawfully begun
prior to the effective date of adoption or amendment of this ordinance
and upon which actual building construction has been carried on diligently.
Actual construction is hereby defined to include the placing of construction
materials in permanent position and fastened in a permanent manner.
Where excavation or demolition or removal of an existing building
has been substantially begun preparatory to rebuilding, such excavation
or demolition or removal shall be deemed to be actual construction,
provided that work shall be carried on diligently.
(Ordinance 2010-01-149 adopted 1/19/10)
36.1
ESTABLISHMENT.
A.
A zoning
board of adjustment is hereby established, which shall consist of
five regular members and two alternate members, each to be appointed
for a term of two years by the City Council. Alternate members shall
serve in the absence of regular member(s) in keeping with rules and
procedures adopted by the zoning board of adjustment. Members of the
zoning board of adjustment may be removed from office by the City
Council for cause upon written charges and after public hearing. Vacancies
shall be filled by appointment of the City Council for the unexpired
term of the member affected. All cases to be heard by the Zoning Board
of Adjustment must be heard by a minimum number of four members.
B.
If it
is deemed necessary by the City Council, the City Council may serve
as the Zoning Board of Adjustment, according to Section 211.008(9)
of the Local Government Code.
36.2
TERMS
OF OFFICE.
The terms of three of the members shall expire
on the first Monday in June of each odd-numbered year, and the terms
of two of the members shall expire on the first Monday in June of
each even-numbered year. The members of the board shall be identified
by place numbers one through five. The odd-numbered places shall expire
in the odd-numbered years; the even-numbered places shall expire in
the even-numbered years.
36.3
PROCEDURE.
The Zoning Board of Adjustment members shall select a chairman
and vice-chairman from among its members.
A.
The board
shall hold an organizational meeting on the first Monday in July of
each year and shall elect a vice-chair from among its members before
proceeding to any other matters of business.
B.
Officers
will serve for a term of one year.
C.
Meetings
shall be held at the call of the chairman and at such other times
as the board may determine.
D.
All meetings
shall be open to the public.
E.
The Zoning
Board of Adjustment shall keep minutes of its proceedings, showing
the vote of each member upon each question, or if absent or failing
to vote, indicating such fact, and shall keep records of its examinations
and other official actions, all of which shall be public record and
be immediately filed in the office of the board.
F.
The zoning
board of adjustment shall adopt rules necessary to the conduct of
its affairs and in keeping with the provisions of this ordinance and
state statutes.
G.
A quorum
for the conduct of business shall consist of four members of the commission.
H.
The members
of the commission shall regularly attend meetings and public hearings
of the commission and shall serve without compensation. Three consecutive
unexcused absences shall constitute grounds for dismissal.
I.
Duties
of the officers shall be as follows:
a.
Chairman.
The chairman shall preside at all meetings and may administer
oaths and compel the attendance of witnesses, and shall have the same
subpoena powers as the municipal court.
b.
Vice-chairman.
The vice-chairman shall assist the chairman in directing the
affairs of the Board and act in the absence of the chairman.
36.4
POWERS
OF THE BOARD.
The Board of Adjustment shall have the
powers and exercise the duties of a Board of Adjustment in accordance
with Section 211.008 of the Texas Local Government Code. The Board's
jurisdiction shall extend to and include the hearing and deciding
of the following types of appeals and applications, and to that end
shall have the necessary authority to ensure continuing compliance
with its decision. The zoning board of adjustment shall have the following
powers and duties:
A.
Interpretation.
To render an interpretation of the zoning regulations or the
manner of their application where it is alleged there is error in
any order, requirement, decision, or determination made by the administrative
official in the administration of this ordinance. In reaching its
decisions the Board shall establish firm guidelines for future administrative
action on like matters.
B.
Special
exceptions.
To hear and decide upon those applications
for special exceptions when the same is authorized under this ordinance
subject to Board approval. A special exception shall not be granted
by the board of adjustment unless it finds:
a.
That
the use is specifically permitted under the ordinance; and
b.
That
the locations of proposed activities and improvements are clearly
defined on the site plan filed by the applicant; and
c.
That
the exception will be wholly compatible with the use and permitted
development of adjacent properties.
C.
Variances.
To authorize upon appeal in specific cases such variance from
the height, yard area, coverage, and parking regulations set forth
in this ordinance as may be necessary to secure appropriate development
of a parcel of land which differs from other parcels in the district
by being of such restricted area, shape, or slope that it cannot be
appropriately developed without such modification. A variance from
the terms of this ordinance shall not be granted by the zoning board
of adjustment unless and until it finds that:
a.
Special
conditions and circumstances exist which are peculiar to the land,
structure, or building involved and which are not applicable to other
lands, structures, or buildings in the same district; and
b.
That
literal interpretation of the provisions of this ordinance would deprive
the applicant of rights commonly enjoyed by other properties in the
same district under the terms of this ordinance;
c.
That
the special conditions and circumstances do not result from the actions
of the applicant;
d.
That
granting the variance requested will not confer on the applicant any
special privilege that is denied by this ordinance to other lands,
structures or buildings in the same district.
e.
The
board shall further make a finding that the reasons set forth in the
application justify the granting of the variance, and that the variance
is the minimum variance that will make possible the reasonable use
of the land, building or structure.
f.
The
zoning board of adjustment shall further make a finding that the granting
of the variance will be in harmony with the general purpose and intent
of this ordinance, and will not be injurious to the neighborhood,
or otherwise detrimental to the public welfare.
g.
Under
no circumstances shall the board grant a variance to allow a use not
permissible under the terms of this ordinance in the district involved,
or any use expressly or by implication prohibited by the terms of
this ordinance in said district.
D.
Nonconforming
Uses.
a.
The
Board may permit the reconstruction, extension, or enlargement of
a building occupied by a nonconforming use on the lot or tract occupied
by the building, and the addition of off-street parking or off-street
loading to a nonconforming use.
b.
The
Board may require the discontinuance of nonconforming uses of land
or buildings under any plan whereby the full value of the buildings
and facilities can be amortized within a definite period of time,
taking into consideration the general character of the neighborhood
and the necessity of all property to conform to the regulations of
this ordinance. All actions to discontinue a nonconforming use of
land or structure shall be taken with due regard to the property rights
of the persons affected, when considered in light of the public welfare
and the character of the area surrounding the designated nonconforming
use and the conservation and preservation of the property.
c.
The
Board shall, from time to time, on its own motion or upon cause presented
by interested property owners, inquire into the existence, continuation,
or maintenance of any nonconforming use within the City.
36.5
APPEALS
TO THE BOARD OF ADJUSTMENT.
A.
Interpretation.
Appeals to the zoning board of adjustment concerning interpretation
or administration of this ordinance may be taken by any person aggrieved
or by any officer, agency, department or commission of the City affected
by any decision of the administrative official. Such appeals shall
be taken within 10 business days or such lesser period as may be provided
by the rules of the board, by filing with the administrative official
from whom the appeal is taken, and with the zoning board of adjustment
a notice of appeal specifying the grounds for appeal. The administrative
official shall forthwith transmit to the board all papers constituting
the record upon which the action appealed from was taken.
B.
Stay
of proceedings.
An appeal stays all proceedings in furtherance
of the action appealed from, unless the administrative official from
whom the appeal is taken certifies to the zoning board of adjustment
after the notice of appeal is filed with him that, by reason of facts
stated in the certificate, a stay would, in his opinion, cause imminent
peril to life and property. In such case, proceedings shall not be
stayed other than by a restraining order which may be granted by the
zoning board of adjustment or by a court of record on application,
and on due cause shown.
C.
Special
Exception Application.
An application for a special exception
to use or develop property as specifically authorized in district
use regulations or in this section may be filed by any person owning
the affected property or by any tenant upon written authorization
of the owner. Such application shall be filed with the Board, and
a copy thereof with the administrative official.
D.
Form
of Appeal or Application.
The appeal or application shall
be in such form and contain such information as the Board may require
under its rules of procedure. An incomplete appeal or application
shall be deemed only to give notice of intent to appeal or apply to
the Board, and shall not be reviewed or scheduled for hearing until
brought to completion.
E.
Notice
of Hearing.
Official written notice of public hearing
on every application for a variance or special exception or for an
interpretation of regulations applying solely to an individual property
shall be sent to all owners of property, or to the person rendering
the same for City taxes, affected by such application, located within
200 feet of any property affected thereby, within not less than 10
days before such hearing is held. Such notice shall be served by using
the last known address as listed on the City tax roll and depositing
the notice, postage paid, in the United States mail. Notice of hearings
on requests for interpretation of regulations applying to more than
one property and ownership shall be given by means of a general notice
as provided below. In addition, a list of items on the agenda to be
heard by the Board shall be posted at a public place in City Hall
at least 72 hours before the hearing on said items, and a list of
agenda items shall be published in a newspaper of general circulation
in the City of New Fairview at least twenty-four (24) hours before
the hearing at which action will be considered.
36.6
HEARING
AND DECISION.
A.
Generally.
The board shall fix a reasonable time for the hearing of appeal,
give public notice thereof as well as due notice to the parties in
interest, and decide the same within a reasonable time. At the hearing,
any party may appear in person or by agent or attorney. Evidence supporting
the grant or denial of an appeal shall be submitted only through the
administrative official or to the Board in public meeting. An appeal
or application may be withdrawn upon written notice of the administrative
official, but no appeal shall be withdrawn after posting of hearing
notice and prior to board action thereon without formal consent of
the Board.
B.
Decision
and Voting.
a.
Every
decision of the Board shall be based upon findings of fact and every
finding of fact shall be supported in the record of proceedings. The
enumerated conditions required to exist on any matter upon which the
Board is authorized to pass under this ordinance shall be construed
as limitations on the power of the Board to act.
b.
Nothing
herein contained shall be construed to empower the Board to change
the terms of this ordinance, or to effect changes in the zoning districts.
The powers of the Board shall be so applied that the terms of this
ordinance will be strictly enforced.
c.
In exercising
the above-mentioned powers, the zoning board of adjustment may, so
long as such action is in conformity with the provisions of Section
211.008, Board of Adjustment through Section 211.013, Conflict with
Other Laws, Exceptions, of the Texas Local Government Code, may modify
in whole or in part any order, requirement, decision or determination
appealed from and may make such order, requirements, decision or determination
as ought to be made, and to that end shall have the powers of the
administrative official from whom the appeal is taken.
d.
The
concurring vote of four members of the board shall be necessary to
reverse any order, requirement, decision or determination of the administrative
official, or to decide in favor of the applicant on any matter upon
which it is required to pass under this ordinance, or to effect any
variation in the application of this ordinance.
C.
Disqualification
from voting.
a.
A member
shall disqualify himself from voting whenever he finds that he has
a personal or monetary interest in the property under appeal, or that
he will be directly affected by the decision of the Board.
b.
A member
may disqualify himself from voting whenever any applicant, or his
agent, has sought to influence the vote of the member on the appeal,
other than in the public hearing.
D.
Approval
of Request.
a.
In approving
any request, the Board of Adjustment may designate such conditions
in connection therewith in order to secure substantially the objectives
of the regulations or provisions to which such variance is granted
and to provide adequately for the maintenance of the integrity and
character of the zone in which such permit is granted.
b.
When
necessary, the Board of Adjustment may require guarantees, in such
form as it deems proper, to insure that conditions designated in connection
therewith are being or will be complied with.
c.
Unless
a building permit or certificate of occupancy is obtained, appeal
shall expire 60 days after the Board's decision unless a greater time
is requested in the application and is authorized by the Board. Any
approval may be granted one emergency extension of 60 days on written
request filed with the Board before expiration of the original approval.
E.
Denial
of Request.
No appeal or application that has been denied
shall be further considered by the Board under a subsequent request
obtained by filing new plans and obtaining of a new decision from
the administrative official unless:
F.
Appeals
of Zoning Board of Adjustment Action.
Any person or persons,
or any board, taxpayer, department, commission or agency of the City
aggrieved by any decision of the zoning board of adjustment may seek
review by a court of record a petition duly certified, setting forth
that such decision is illegal in whole or in part, specifying the
grounds of such illegality. Shall petition shall be presented to the
court within ten days after the filing of the decision complained
of in the office of the Board of Adjustment, and not thereafter.
36.7
AUTHORIZED
SPECIAL EXCEPTIONS.
The following privately owned or
privately operated uses may be permitted as special exceptions by
the Board of Adjustment in the districts indicated below, subject
to full and complete compliance with any and all conditions listed,
together with such other conditions as the Board may impose for protection
of the public health or safety. In addition, provisions for special
exceptions listed within the text of this document but not contained
in the table herein shall be authorized and enforced with the same
authority as those events and listings contained herein.
|
Special Exception
|
District Where Permitted
|
|---|---|
|
Shared [parking] of the same off-street parking areas by two
or more uses as follows:
a. When two or more uses, according to such approved
plan, share the same off-street parking area, each may be considered
as having provided such shared space individually.
b. The land uses and common parking facility must
be located in close proximity to one another.
c. The land uses must be located not farther from
the shared parking than a distance of 300 feet, measured by a straight
line from the nearest point of the land on which the use is served
is located to the nearest point of the separated off-street parking
space.
|
C and M
|
|
Off-site parking when the following applies:
a. Must be located not farther from the use served
than a distance of 300 feet, measured by a straight line from the
nearest point of the land on which the use is served is located to
the nearest point of the separated off-street parking space.
b. A written agreement shall be drawn to the satisfaction
of the City attorney and executed by all parties concerned assuring
the continued availability of the off-site parking facilities for
the use they are intended to service.
|
C and M
|
|
Additional Height for Parking Lot Light Poles
|
All Districts
|
|
Exceed Illumination of 20 footcandles for Public and Semi-Public
Facilities
|
All Districts
|
|
Permit Laser Source Lights, Searchlights, [sic]
|
All Districts
|
|
Reduction of required parking between 11% and 50%
|
C and M
|
|
Antenna facilities which do not meet the requirements of Section
30, Wireless Communication Facilities
|
See Section 30
|
|
Additional height over 60 feet
|
C and M
|
|
Percentage of Masonry Exterior Requirement may be established
according to merit
|
All Districts
|
36.8
FEES.
There shall be a fee assessed for each request for a variance
to this ordinance, in accordance with the City of New Fairview fee
schedule. Costs shall not be allowed against the Board unless it shall
appear to the court that the Board acted with gross negligence or
in bad faith, or with malice in making the decision appealed.
(Ordinance 2010-01-149 adopted 1/19/10)
The duties of the City Council in connection with this ordinance
shall not include hearing and deciding questions of interpretation
and enforcement that may arise. Under this ordinance the City Council
shall have only the duties of considering and adopting or rejecting
proposed amendments or the repeal of this ordinance, as provided by
law, and, of establishing a schedule of fees and charges as stated
in Section 38, Fee Schedule.
(Ordinance 2010-01-149 adopted 1/19/10)
The City Council shall establish a schedule of fees, charges
and expenses and a collection procedure for the administration, review
and processing of applications regarding the issuance of building
permits, certificates of occupancy, zoning change requests, plats,
zoning board of adjustment appeals and other matters pertaining to
this ordinance. The schedule of fees shall be posted in the office
of the zoning administrative official, and may be altered or amended
only by action of the City Council. Until all applicable fees, charges
and expenses have been paid in full, no action shall be taken on any
application or appeal.
(Ordinance 2010-01-149 adopted 1/19/10)
39.1
GENERALLY.
The regulations, restrictions, and district boundaries created
by this ordinance may be amended from time to time by the City Council.
39.2
AMENDMENT
INITIATION.
An amendment to this ordinance may be initiated
by the City Council on its own motion or an owner or agent having
proprietary interest in any property.
39.3
PROCEDURE.
Any amendment to this ordinance shall require public hearings
to be held before the City Council.
39.4
NOTICE.
When any amendment relates to a change in classification or
boundary of a zoning district, written notice of all public hearings
before the City Council on proposed changes and classifications shall
be sent to owners of real property lying within 200 feet of the property
on which the change in classification is proposed. Such notice will
be given not less than ten days before the date set for hearing, to
all owners as the ownership appears on the last approved City tax
roll. Such notice may be served by depositing the same, properly addressed,
postage paid, in the City post office. Notice shall also be posted
along with the agenda for all hearings and related meetings in accordance
with the applicable laws of the State of Texas.
When an amendment relates to a change of zoning classification
or to the text of this ordinance not affecting specific property,
notice of the public hearings before the City Council shall be given
by publication in a newspaper of general circulation in the City without
necessity of notifying property owners by mail. The notice shall state
the time and place of the hearing and the nature of the subject to
be considered, which time shall not be earlier than 15 days from the
date of publication.
39.5
PROTEST.
In case the City Council does not approve the change, or in
case of a written protest against such change, filed with the City
secretary and signed by the owners of 20 percent or more, either of
the area of the lots included in such proposed change, or of those
lying within 200 feet of the property on which the change is requested,
the amendment shall not be approved except by the favorable vote of
three-fourths of all members of the City Council.
39.6
FREQUENCY
OF PETITION.
A property owner, lessee, developer or option
holder may petition the City Council for an amendment to the text
or district map of this ordinance, provided that before any action
shall be taken as provided in the section, the party or parties petitioning
for amendment shall deposit with the City secretary the fee amount
stipulated by resolution of the City Council to cover the approximate
cost of this procedure, and under no condition shall said sum or any
part thereof be refunded for failure of such proposed amendment to
be enacted into law. A party shall not initiate the same action for
a zoning amendment or specific use permit affecting the same land
more often than once every 12 months.
(Ordinance 2010-01-149 adopted 1/19/10)
40.1
COMPLAINTS
REGARDING VIOLATIONS.
Whenever a violation of this ordinance
occurs, or is alleged to have occurred, any person may file a written
complaint. Such complaint stating fully the causes and basis thereof
shall be filed with the administrative official. He shall record properly
such complaint, immediately investigate, and take action thereon as
provided by this ordinance.
40.2
PENALTIES
FOR VIOLATION.
Any person, firm, association of persons,
corporation, or other organization who shall violate any provision
of this ordinance shall be guilty of a misdemeanor and, upon conviction,
shall be fined an amount not to exceed $2,000.00. Each day a violation
of this ordinance shall continue shall constitute a separate offense.
Nothing herein contained shall prevent the City from taking such other
lawful action as is necessary to prevent or remedy any violation.
(Ordinance 2010-01-149 adopted 1/19/10)
The sections, paragraphs, sentences, clauses, and phrases of
this ordinance are severable, and if any phrase, clause, sentence,
paragraph, or section of this ordinance shall be declared by the courts
to be unconstitutional or invalid, such decision shall not affect
the validity of the remaining phrases, clauses, sentences, paragraphs,
or sections of this ordinance, since the same would have been enacted
by the City Council without the incorporation in this ordinance of
any such unconstitutional or invalid phrase, clause, sentence, paragraph,
or section.
(Ordinance 2010-01-149 adopted 1/19/10)
