In order to hear and decide appeals of orders, decisions or
determinations made by the building official or fire marshal relative
to the application and interpretation of the technical construction
and fire prevention codes, and to hear and decide on matters related
to the permitting, licensing, or registration of individuals or entities
subject to said codes, and to determine suitability of alternate materials
and methods of construction, there shall be and is hereby created
a board of appeals. Except as specifically noted below, the board
of appeals shall consist of eleven (11) members who are qualified
by experience and training to pass upon matters pertaining to the
design, construction and use of buildings. Members of the board of
appeals shall be appointed by the city council and shall hold office
for a term of three (3) years and until their successors are qualified.
Consistent with the membership set forth below, the presently constituted
board members shall continue in their offices for their regular terms.
The membership of the board of appeals shall include representatives
from the following areas of expertise:
(1)
A
member of the West Texas Home Builders Association;
(2)
An
active architect;
(3)
An
active structural engineer;
(4)
An
active commercial contractor;
(5)
An
active realtor;
(6)
An
active plumber, licensed by the State of Texas;
(7)
An
active electrician, licensed by the State of Texas;
(8)
An
active mechanical contractor with a class A license;
(9)
Three
(3) Lubbock citizens at-large who are not associated with the construction
or real estate industry; and
(1983 Code, sec. 6-80V; Ordinance 2005-O0140, sec. 1, adopted 12/15/2005; Ordinance 2013-O0057, sec. 1,
adopted 6/13/2013; Ordinance
2019-O0035, sec. 10, adopted 3/26/2019; Ordinance 2021-O0084 adopted 7/27/2021)
Except as is otherwise inevitable due to the prescribed qualifications
of its members, no two regular members of the board shall represent
the same industry, company, or trade association. All members of the
board shall be subject to the city’s code of ethics, as set
forth in the city’s employee manual.
(Ordinance 2013-O0057, sec. 1, adopted 6/13/2013)
The building official shall be an ex-officio member and shall
act as secretary of the board.
(1983 Code, sec. 6-80W; Ordinance 2005-O0140, sec. 1, adopted 12/15/2005; Ordinance 2013-O0057, sec. 1,
adopted 6/13/2013)
The presence of 50% plus one of the members identified in section
2.03.491(1)–(9) of this division shall constitute a quorum.
Where a quorum of said members cannot be established or is otherwise
lost during the meeting, vacant seats shall be filled by alternate
members, until a quorum is again established. Upon the return of a
regular member to the dais, the chair shall decide whether to seat
the regular member or to retain the alternate for the remainder of
the meeting.
(Ordinance 2013-O0057, sec. 1, adopted 6/13/2013)
Though charged with the responsibility to consider the granting
of relief to individuals with regard to adopted codes and ordinances,
the board’s first duty is the protection of public health and
safety through the thoughtful, deliberative and equitable application
of their requirements.
(Ordinance 2013-O0057, sec. 1, adopted 6/13/2013)
The board is empowered with the authority to hear and decide
on:
(1)
Requests
for appeals regarding the revocation, suspension of permits, or the
refusal to issue same, that would otherwise authorize work governed
by the technical codes, operational or use permits, certificates of
occupancy, inspection approvals, or other approvals necessary in order
to proceed with the construction, occupancy or use of a building;
(2)
Requests
for appeals regarding the revocation, suspension, or refusal to issue
contractor licenses, registrations, or other approvals necessary in
order to obtain permits or proceed with contracting work governed
by the technical codes;
(3)
Requests
for variances from the technical requirements within the construction
and fire codes;
(4)
Requests
for special exceptions to allow the substitution of alternate materials
and methods of construction, or alternative building designs, than
would otherwise be permitted by the technical codes.
(1983 Code, sec. 6-80X; Ordinance 2005-O0140, sec. 1, adopted 12/15/2005; Ordinance 2013-O0057, sec. 1,
adopted 6/13/2013)
The board shall have no authority relative to interpretation
of the administrative provisions of this code, nor shall the board
have any administrative authority other than as expressly stated in
this division. The board shall have no authority to waive provisions
of the technical codes, except as expressly permitted herein. Because
each case brought before the board is heard on its merits and is therefore
unique, decisions of the board shall not be construed as setting any
precedent with regard to the future application of the technical codes
by administrative officials, and do not thereby legally obligate said
officials nor the board with regard to future cases, though they may
be similar.
(1983 Code, sec. 6-80Z; Ordinance 2005-O0140, sec. 1, adopted 12/15/2005; Ordinance 2013-O0057, sec. 1,
adopted 6/13/2013)
(b)
In
all types of cases, the burden of proof shall be on the applicant
to establish the facts necessary that the board must find before granting
any appeal, variance, or special exception as herein contained. A
concurring vote of three-fourths (3/4) of the quorum shall be necessary
to reverse any order, requirement, decision or determination of any
administrative official, or to decide in favor of the applicant on
any matter upon which the board is required to act under this division,
or to approve any variance.
(c)
Any
person or persons jointly or severally aggrieved by any decision of
the board, or any taxpayer or any officer, department or board of
the municipality may present to a court of record a petition, duly
verified, setting forth that such decision is illegal, in whole or
in part, specifying the grounds of the illegality. Such petition shall
be presented to the court within ten (10) days after the decision
of the board and not thereafter.
(Ordinance 2013-O0057, sec. 1, adopted 6/13/2013)
In exercising its authority to hear and decide on appeals under section 2.03.496(1) or (2), the board shall proceed as follows:
(1)
In
exercising its powers, the board may, in conformity with the provisions
of the state statutes as existing or hereafter amended, reverse or
affirm, wholly or partly, or may modify the order, requirements, decision,
or determination appealed from and make order, requirement, decision
or determination, in the board’s opinion as ought to be made,
and in that respect shall have all the powers of the official making
the original determination from whom the appeal is sought. The board
shall have the power, and is hereby charged with the responsibility
to impose reasonable conditions to ensure appropriate levels of compliance
in order to protect lives and property.
(A)
General appeals.
Any request for appeal from an administrative
decision hereunder shall be based on a claim that the true intent
of the subject code or rules legally enforced thereunder have been
incorrectly interpreted, or that the provisions of the subject code
do not apply or fully apply. The board shall hear testimony from the
applicant and the official from whom the appeal is sought, and may
hear testimony from witnesses and may examine evidence in support
of either position.
(B)
Appeals involving permits or licenses.
A request for
appeal from an administrative decision involving the suspension or
revocation of a permit, license, registration, or other approval necessary
in order to continue operations or conduct business shall be based
on a claim of hardship as well as one or more of the following:
(i)
That the situations or conditions giving rise to the original suspension
or revocation action were misinterpreted by the official;
(ii)
That the situations or conditions giving rise to the original
suspension or revocation action have been cured and resolved;
(iii)
That the applicant did not have the opportunity to appear in
a hearing before the administrative official to show cause why their
license or registration should not be suspended or revoked, or that
the hearing before said administrative official was not fairly conducted.
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The board shall hear testimony from the applicant and the official
from whom the appeal is sought, and may hear testimony from witnesses
and may examine evidence in support of either position.
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(C)
Permit and license actions not subject to appeal.
A
suspension or revocation of a permit, license, registration, or other
approval necessary in order to conduct business is not subject to
appeal where such action was taken as a result of one or more of the
following:
(i)
Non-payment of required fees associated with the issuance or maintenance
of any permit, license, [or] registration;
(ii)
Failure to obtain or maintain bonds and/or insurance coverage
required as a condition for obtaining any permit, license or registration;
(iii)
Failure to obtain or maintain any license, permit or other statutory
approval necessary as a pre-requisite for obtaining any city permit,
license or registration.
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The board may, after public notice and hearing in which the
testimony of applicable city officials as well as the appellant shall
be heard, and subject to the conditions and safeguards herein contained,
vary or adapt the strict application of any of the terms of the original
suspension or revocation action under the power and authority herein
granted. In so doing, the board may designate such conditions in connection
therewith which will, in its opinion, secure substantially the purpose
and intent of this code.
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(D)
Appeals involving third-parties.
Any person, including a member of the board, aggrieved by a decision of the building official or fire marshal as to an administrative decision regarding the suspension, revocation, or refusal to issue a permit, license, registration, or other approval necessary in order to continue operations or conduct business of another person or entity, may seek relief from said decision through the appeal process in the same manner as a person or entity directly affected by the decision in accordance with subsection (B) herein. Where a board member is the appellant, the member shall file an affidavit of conflict of interest, shall not sit for the hearing nor discuss the case as a member, and shall abstain from voting on the item.
(Ordinance 2013-O0057, sec. 1, adopted 6/13/2013)
In exercising its authority to hear and decide on variances under section 2.03.496(3), the board shall proceed as follows:
(1)
For
purposes of this division, a variance is an authorization by the board
granting relief and doing substantial justice where, owing to special
and unique conditions, a literal enforcement of the provisions of
the technical codes are improper and will result in unnecessary hardship.
Special and unique conditions, as contemplated herein, do not include
self-created conditions. Hardships do not include those that are purely
personal or of a financial nature, and a variance shall not be considered
on the basis of such, nor shall any variance be granted to permit
any person a privilege not available to others.
(2)
Any request for a variance from an administrative decision hereunder shall be based on a claim that the true intent of the subject code or the rules legally enforced thereunder have been incorrectly interpreted, that the provisions of the subject code do not apply or fully apply, or that an equally good or better form of construction is proposed, and that the request cannot qualify for a special exception under section 2.03.501 of this division.
(3)
A
variance may be granted to an applicant when the board finds:
(A)
That there are special circumstances and unique conditions applying
to the situation for which the variance is sought, which circumstances
or conditions are peculiar to the situation under consideration and
do not generally apply;
(B)
That said circumstances or conditions are such that the strict application
of the provisions of the technical codes would deprive the applicant
of the ability to construct, improve and/or use the subject building
or premises;
(C)
That the granting of such variance will not violate any statute or
administrative rule otherwise applicable, and will not be detrimental
to the public health, safety or welfare or injurious to the subject
building and surrounding properties;
(D)
That the granting of the variance is necessary for the reasonable
design, construction or use of the building and is the minimum that
will accomplish the intended purpose; and
(E)
That the literal enforcement and strict application of the applicable
code provisions will result in an unnecessary hardship inconsistent
with the general spirit and intent of same and that, in granting such
variance, the spirit of said code provisions will be preserved and
substantial justice done.
(4)
The
board may, after public notice and hearing in which the testimony
of applicable city officials as well as the applicant shall be heard,
and subject to the conditions and safeguards herein contained, vary
or adapt the strict application of any of the terms of this division
under the power and authority herein granted.
(5)
In
granting any variance under the provisions of this division, the board
may designate such conditions in connection therewith which will,
in its opinion, secure substantially the purpose and intent of this
division.
(Ordinance 2013-O0057, sec. 1, adopted 6/13/2013)
In exercising its authority to hear and decide on special exceptions under section 2.03.496(4), the board shall proceed as follows:
(1)
The
owner of a building seeking relief from the board in cases where strict
compliance with the technical codes presents a practical difficulty
or unnecessary hardship without corresponding public benefit, may
make written application to the board requesting a special exception
to allow substitution of alternate materials and methods of construction
or alternative building designs to that required by the pertinent
technical codes and ordinances.
(2)
Each
applicant shall, upon making such application, submit to the board
sufficient technical data to demonstrate that the proposed substitute
is equivalent in quality, strength, fire resistance, effectiveness
and safety to that prescribed by the applicable technical codes and
ordinances. The application shall be made through the building official
or fire marshal, as applicable, on forms provided by him, and the
request placed on the next available board agenda for discussion and
consideration.
(1983 Code, sec. 6-80Y; Ordinance 2005-O0140, sec. 1, adopted 12/15/2005; Ordinance 2013-O0057, sec. 1,
adopted 6/13/2013)
