7.1
Intent of
provisions:
A.
Within the
districts established by this ordinance or amendments thereto, there
exist lots, structures, uses of land and structures, and characteristics
of use which were lawful before this ordinance was enacted, amended
or otherwise made applicable to such lots, structures or uses, but
which do not now conform to the regulations of the district in which
they are located. It is the intent of this ordinance to permit such
nonconforming uses to continue, as long as the conditions within this
section and other applicable sections are met.
B.
It is further
the intent of this ordinance that nonconforming uses shall not be
enlarged upon, expanded or extended, and not be used as a basis for
adding other structures or uses prohibited elsewhere in the same district.
C.
Nonconforming
uses are hereby declared to be incompatible with the permitted uses
in the districts involved.
7.2
Nonconforming
status:
Any use, platted lot, or structure which does
not conform with the regulations of the zoning district in which it
is located shall be deemed a nonconforming use or structure when:
A.
Such use,
platted lot, or structure was in existence and lawfully operating
at the time of the passage of the previous ordinances passed December
3, 1970 (ordinance # 70-10) or February 10, 1977 (ordinance # 77-205)
and has since been in regular and continuous use; or
B.
Such use,
platted lot, or structure is a lawful use at the time of the adoption
of any amendment to this ordinance but by such amendment is placed
in a district wherein such use, platted lot, or structure is not otherwise
permitted and has since been in regular and continuous use; or
C.
Such use,
platted lot, or structure was in existence at the time of annexation
to the city and has since been in regular and continuous use.
7.3
Nonconforming
structures; continuance:
A.
The lawful
use of land or lawful existence of structures at the time of the passage
of this ordinance, although such do not conform to the provisions
hereof, may be continued; but if said nonconforming use or structure
is discontinued or abandoned, any future use of said premises shall
be in conformity with the provisions of this ordinance.
B.
Discontinuance
of a nonconforming use shall commence on the actual act or date of
discontinuance. Abandonment of a nonconforming structure shall commence
on the act or date of abandonment.
C.
When a nonconforming use or structure is discontinued or abandoned for a period of six months, such use shall not be resumed and proof of such event shall constitute prima facie evidence of an act of abandonment except as allowed in section 7.5. Any nonconforming use which does not involve a permanent type of structure or operation and which is moved from the premises shall be considered to have been abandoned.
D.
No nonconforming
use or structure may be expanded, reoccupied with another nonconforming
use, or increased in size as of the effective date of this ordinance
except as provided in [section] 7.5.
E.
Conforming
single-family residential uses on platted lots approved prior to this
ordinance, which may now be nonconforming due to stricter standards,
shall be deemed in conformance with this ordinance as long as the
use of the lot is allowed in the respective district. Only the dwelling
unit size, lot size, depth, setbacks and width shall be allowed to
be less than the regulations prescribed in the zoning district in
which it is located. All other regulations of this ordinance shall
be met or the lot use and area standards shall be considered nonconforming.
7.4
Changing
nonconforming uses:
A.
Any nonconforming
use may be changed to a conforming use, and once such change is made,
the use shall not be changed back to a nonconforming use.
B.
Where a conforming use is located in a nonconforming structure, the use may be changed to another conforming use by the process outlined in section 7.5 below.
C.
A nonconforming
use may not be changed to another nonconforming use.
7.5
Expansion
of nonconforming uses and buildings:
An expansion of
a nonconforming use or structure is allowed in accordance with the
following:
A.
A nonconforming
use located within a building may be extended throughout the existing
building, provided:
1.
No structural
alteration (except as provided in E. below) may be made on or in the
building except those required by law to preserve such building in
a structurally sound condition.
2.
The number
of dwelling units or rooms in a nonconforming residential use shall
not be increased so as to exceed the number of dwelling units or rooms
existing at the time said use became a nonconforming use.
B.
No nonconforming
use within a building may be extended to occupy any land outside the
building.
C.
No nonconforming
use of land or building shall be enlarged, increased, or extended
to occupy a greater area of land than was occupied at the time the
land became a nonconforming use, except to provide off-street loading
or off-street parking space.
D.
The minimum
residential lot areas for the various zoning districts shall be in
accordance with their respective districts except that a lot having
less area than herein required which was an official "lot of record"
prior to the adoption of this ordinance, may be used for a single-family
dwelling.
E.
If use is
conforming but the structure is not, the nonconforming structure can
be remodeled, maintained or improved as long as the size (square footage)
of the structure is not increased more than ten percent.
7.6
Restoration
of nonconforming structure:
A.
If a structure
occupied by a nonconforming use is destroyed by fire, the elements,
or other cause, it may not be rebuilt except to conform to the provisions
of this ordinance. In the case of partial destruction of a nonconforming
use structure not exceeding 60 percent of its total appraised value
as determined by the Denton County Central Appraisal District, reconstruction
will be permitted, but the existing square footage or function of
the nonconforming use cannot be expanded.
7.7
Completion
of structures:
Nothing herein contained shall require
any change in the plans, construction, or designated use of (1) a
building or structure for which a building permit has been issued
or a site plan approved prior to the effective date of these zoning
regulations, or (2) a building or structure for which a substantially
complete application for a building permit was accepted by the building
official on or before the effective date of these regulations, provided
however that such building permit shall comply with all applicable
ordinances of the City of Highland Village in effect on the date such
application was filed and the building permit is issued within 30
days of the effective date of these regulations.
(Ordinance 02-877, sec. 4E, adopted 3/22/02; Ordinance 2012-1118, sec. 1, adopted 2/14/12)
8.1
General.
The planning and zoning commission shall function in accordance with policies and procedures as outlined by the city council for boards and commissions. The powers and duties of the planning and zoning commission are further defined below and in section 10.
8.2
Establishment;
membership, officers:
There is hereby created in accordance
with V.T.C.A., Local Government Code § 211.007, a city planning
and zoning commission which shall consist of five members, each of
whom shall be a resident of the city. A member of the planning and
zoning commission ceasing to reside in the city during his term of
office shall immediately forfeit his office. Members shall be appointed
or reappointed by the city council. Each member of the planning and
zoning commission shall be appointed for and serve for a term of two
years. Upon the expiration of the terms of office as herein provided,
each member of the planning and zoning commission shall serve until
their successors are appointed and qualified. Vacancies shall be filled
by appointments for unexpired terms. The city council may appoint
two alternates which will serve if any of the five members of the
commission is unable to serve. Alternates shall not be appointed to
the commission until the member they are to replace resigns or is
removed from the commission by the city council.
Members may be removed from office at any time by a majority
vote of the city council for any reason. All members shall serve without
pay. The secretary shall keep minutes of all meetings held by the
planning commission and full record of all recommendations to be made
by the planning and zoning commission to the city council. A chairman
and vice-chairman shall be elected by the planning and zoning commission
from its membership at its first meeting after new members have been
appointed or as soon thereafter as possible.
8.3
Quorum;
voting:
Three members of the planning and zoning commission
consisting of the chairman or vice-chairman and two other members
shall constitute a quorum for the transaction of business, and all
members, including the presiding chairman, shall have the right of
one vote each when a quorum is present. All actions by the planning
and zoning commission shall be by a majority vote. A majority for
purposes of this section shall mean a majority of the entire membership
of the planning and zoning commission, and not a majority of those
present and voting. If any member has a conflict of interest in review
of any item on the commission's agenda, he or she shall remove themselves
from the room and refrain from voting only on the item for which a
conflict exists.
8.4
Meetings:
The Planning and Zoning Commission shall meet at such times
in the City Hall or other specified locations as may be designated
by the Chairman or Vice-Chairman, in the absence of the Chairman and
at such intervals as may be necessary to orderly and proper transaction
of the business of the Commission.
8.5
Powers and
duties:
The planning and zoning commission shall be an advisory body
to the city council and shall make recommendations regarding amendments
to the comprehensive plan, changes of zoning and permanent zoning
to be given to newly annexed areas, and shall make recommendations
regarding the approval of the plats of subdivisions as may be submitted
to it by the city council. It is recommended that the planning and
zoning commission make no less than an annual study of the city's
comprehensive plan and be prepared to make such recommendations to
the city council as deemed necessary to keep the city's comprehensive
plan with the needs and uses of the city. The planning and zoning
commission shall serve in an advisory capacity on any planning-related
item(s) in the city.
(Ordinance 02-877, sec. 4E, adopted 3/22/02; Ordinance 2012-1118, sec. 1, adopted 2/14/12)
9.1
Creation:
There is hereby created a zoning board of adjustment (also termed
ZBA) to be composed of five members and three alternate members who
shall be residents and qualified voters of the City of Highland Village
and shall serve without compensation.
9.2
Members
and terms of office:
The zoning board of adjustment shall
consist of five regular members and three alternate members who shall
be appointed by the city council in accordance with V.T.C.A., Local
Government Code §§ 211.008– 211.011, as amended. The
members shall serve for a period of two years and until their successors
are duly appointed and qualified. The regular members of the board
shall be identified by place numbers 1 through 5. Places 1, 3 and
5 and the first alternate member shall be appointed to serve for two-year
terms with terms beginning on November 1 of odd-numbered years. Places
2, 4 and the second alternate member shall be appointed to serve for
two-year terms beginning on November 1 of even-numbered years. All
members will be appointed by a majority vote of the city council.
Members may be removed by a majority vote of the members of the city
council, for cause on a written charge after a public hearing.
ZBA members may be appointed to succeed themselves. Vacancies
shall be filled by an alternate member for the unexpired term of a
member whose term becomes vacant. Any member absent for two regular
consecutive meetings shall be deemed to have vacated such office unless
such absences were due to sickness of the member or the member's family
with leave being first obtained from the chairman. An alternate shall
not be appointed to the ZBA until the member they are replacing has
resigned, misses two consecutive meetings, or removed from the ZBA
by the city council. Vacancies of an alternate member shall be filled
by appointment of the city council by majority vote.
Meetings of the ZBA shall be held at the call of the chairman
or as requested by the city manager or designated official, and at
such other times as the ZBA may determine. All meetings of the ZBA
shall be open to the public. Four members of the ZBA shall constitute
a quorum for the conduct of business. All cases to be heard by the
zoning board of adjustment will always be heard by a minimum number
of four members. The members of the ZBA shall regularly attend meetings
and public hearings of the ZBA.
9.3
Authority
of zoning board of adjustment:
The zoning board of adjustment
shall have the authority, subject to the standards established in
V.T.C.A., Local Government Code §§ 211.008–211.011
and those established herein, to exercise the following powers and
perform the following duties:
A.
Hear and decide
an appeal that alleges error in an order, requirement, decision, or
determination made by an administrative official in the enforcement
of this ordinance.
B.
Authorize
the expansion or continuation of a nonconforming use or structure.
C.
Authorize in specific cases a variance (see section 9.5) from the terms of this ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of this ordinance is observed and substantial justice is done.
D.
In exercising
its authority under A. above, the ZBA may reverse or affirm, in whole
or in part, or modify the administrative official's order, requirement,
decision, or determination from which an appeal is taken and make
the correct order, requirement, decision, or determination, and for
that purpose the ZBA has the same authority as the administrative
official.
E.
The concurring
vote of four members of the ZBA is necessary to:
9.4
Limitations
on authority of zoning board of adjustment:
A.
The ZBA may
not grant a variance authorizing a use other than those permitted
in the district for which the variance is sought except as provided
in [section] 9.6.
B.
The ZBA shall have no power to grant or modify conditional use permits authorized under section 12 of these regulations.
C.
The ZBA shall
have no power to grant a zoning ordinance amendment. In the event
that a request for a zoning amendment is pending before the planning
and zoning commission or the city council, the ZBA shall neither hear
nor grant any variances with respect to the subject property until
final disposition of the zoning amendment.
D.
The ZBA shall
not grant a variance for any parcel of property or portion thereof
upon which a site plan, preliminary plat, or final plat, where required,
has not been finally acted upon by both the planning and zoning commission
and, where required, by the city council. All administrative remedies
available to the applicant shall have been exhausted prior to hearing
by the ZBA.
9.5
Variances:
A.
In order to
grant a variance from these zoning regulations, the ZBA must make
written findings that an undue hardship exists, using the following
criteria:
1.
That literal
enforcement of the controls will create an unnecessary hardship or
practical difficulty in the development of the affected property;
2.
That the
situation causing the hardship or difficulty is neither self-imposed
nor generally affecting all or most properties in the same zoning
district;
3.
That the
relief sought will not injure the permitted use of adjacent conforming
property; and
4.
That the
granting of a variance will be in harmony with the spirit and purpose
of these regulations.
B.
A variance
shall not be granted to relieve a self-created or personal hardship,
nor shall it be based solely on economic gain or loss, nor shall it
permit any person a privilege in developing a parcel of land not permitted
by this ordinance to other parcels of land in the particular zoning
district. No variance may be granted which results in undue hardship
on another parcel of land.
C.
The applicant
bears the burden of proof in establishing the facts justifying a variance.
9.6
Nonconforming
uses and structure:
A.
The ZBA shall
have the authority to authorize the expansion or enlargement of a
nonconforming use, or the expansion, enlargement or structural alteration
to a structure containing a nonconforming use, when such an expansion,
enlargement or alteration would not tend to prolong the life of the
nonconforming use. Upon review of the facts, the ZBA may establish
a specific period of time for the occupancy to revert to a conforming
use; and
B.
To authorize
the reconstruction and occupancy of a nonconforming structure, or
a structure containing a nonconforming use, where such structure has
been damaged by fire or other causes to the extent of more than 60
percent, but less than the total, of the replacement cost of the structure
on the date of the damage. Such action by the zoning board of adjustment
shall have due regard for the property rights of the person or persons
affected, and shall be considered in regard to the public welfare,
character of the area surrounding such structure, and the conservation,
preservation and protection of property; and
C.
To authorize
the enlargement, expansion or repair of a nonconforming structure
in excess of 60 percent of its current value. In such instance, current
value shall be established at the time of application for a hearing
before the ZBA.
If such expansion or enlargement is approved by the ZBA, all
provisions of the district in which such structure is located shall
apply to the new construction on the lot or parcel.
D.
To authorize a change of use from one nonconforming use to another nonconforming use, provided that such change is to a use of a more restrictive classification, the building or structure containing such nonconforming use shall not revert to the former lower or less restricted classification. The ZBA may establish a specific period of time for the conversion of the occupancy to a conforming use. Any change of a nonconforming use consistent with this section shall be in accordance with the provisions of section 7 of this ordinance.
E.
To authorize
the occupancy of an abandoned nonconforming structure. Such action
by the ZBA shall have due regard for the property rights of the person
or persons affected, and shall be considered in regard to the public
welfare and safety, character of the area surrounding such structure,
and the conservation, preservation and protection of property.
9.7
Procedures:
A.
Application
and fee.
An application for granting a variance or special
exception by the zoning board of adjustment, other than an appeal,
shall be in writing using forms provided by the city and shall be
accompanied by a fee. The application for a special exception shall
be the same as for a zoning variance.
B.
Notice and
hearing.
The zoning board of adjustment shall hold a
public hearing no later than 45 days after the date the application
for action or an appeal is filed on each such application or appeal.
Notice of a public hearing shall be provided to all property owners
within 200 feet of the affected property ten days prior to the public
hearing and also shall be published in the official city newspaper.
C.
Appeals.
1.
An appeal
may be taken from the decision of an administrative official by an
applicant for the permit on which the decision is rendered, by any
person or persons directly aggrieved by the decision or by any officer,
department, board or bureau of the municipality affected by the decision.
2.
The appellant
must file with the ZBA and the official against whom the appeal is
taken a written notice of appeal specifying the grounds for the appeal
within a reasonable time as determined by the rules of the ZBA. The
officer to whom the appeal is made shall forthwith transmit to the
ZBA all papers constituting the record of the action that is appealed.
3.
An appeal
stays all proceedings in furtherance of the action that is appealed
unless the official from whom the appeal is taken certifies in writing
to the ZBA facts supporting the official's opinion that a stay would
cause imminent peril to life or property. In that case, the proceedings
may be stayed only by a restraining order granted by the ZBA or a
court of record on application, after notice to the official, if due
cause is shown.
4.
The appellant
party may appear at the appeal hearing in person or by agent or attorney.
5.
The ZBA
shall decide the appeal within three weeks after placement on its
agenda after which time the request shall be deemed automatically
approved. The ZBA may reverse or affirm, in whole or in part, or modify
the city manager's or designated administrative official's order,
requirement, decision or determination from which an appeal is taken,
and make the correct order, requirement, decision, or determination.
D.
Judicial
review.
Any person or persons, jointly or severally,
aggrieved by a decision of the zoning board of adjustment, or any
taxpayer, or any officer, department, board or bureau of the city
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 must be presented within
ten days after the date the decision is filed in the ZBA's office.
(Ordinance 08-1063, sec. 2, adopted 11/25/08)
10.1
Declaration
of policy:
The city council declares the enactment of
these regulations governing the use and development of land, buildings,
and structures as a measure necessary to the orderly development of
the community. Changes made in these regulations or in the boundaries
of the zoning districts should generally be made:
A.
To correct
any error in the regulations or map.
B.
To recognize
changed or changing conditions or circumstances in a particular locality.
C.
To recognize
changes in technology, the style of living, or manner of conducting
business.
D.
To change
the property to uses in accordance with the approved comprehensive
plan.
10.2
Review
criteria:
In making a determination regarding a requested
zoning change, the planning and zoning commission and city council
shall consider the following factors:
A.
Whether the
use is in accordance with the comprehensive plan and the purposes
stated in each zoning district.
B.
Whether the
uses permitted by the proposed change will be appropriate in the immediate
area concerned and their relationship to the general area and the
city as a whole.
C.
Whether the
proposed change is in accord with any existing or proposed plans for
providing public schools, streets, water supply, sanitary sewers,
and other utilities to the area.
D.
The amount
of vacant land currently classified for similar development in the
vicinity and elsewhere in the city, and any special circumstances
which may make a substantial part of such vacant land unavailable
for development.
E.
The recent
rate at which land is being developed in the same zoning classification
as the request, particularly in the vicinity of the proposed change.
F.
How other
areas designated for similar development will be, or are unlikely
to be, affected if the proposed amendment is approved.
|
The City Council and Commission may consider any other factors
which will substantially affect the public health, safety, morals,
or general welfare.
|
10.3
Authority
to amend ordinance:
After receiving a final report containing
a recommendation by the planning and zoning commission and after holding
the public hearings required by law, the city council may amend, supplement,
or change the regulations herein set forth or the boundaries of the
zoning districts specified on the zoning district map.
10.4
Initiation
of amendment process:
Any amendment to the zoning regulations
or zoning district boundaries may be ordered for consideration by
the city council, be initiated by the planning and zoning commission
or the city manager, or be requested by the owner of real property,
or the authorized representative of an owner of real property. Consideration
for a change in any district boundary line or zoning regulation may
be initiated only with written consent of the property owner, or by
the planning and zoning commission or city council on its own motion
when it finds that public benefit will be derived from consideration
of such matter. In the event the ownership stated on an application
and that shown on the city records are different, the applicant shall
submit proof of ownership or authority to represent the owner of the
property that is the subject of the application or otherwise has the
consent of the owner to make the application.
10.5
Application:
Each application for an amendment or change to the use and/or
development regulations set forth in the Comprehensive Zoning Ordinance
with respect to specific property shall be made in writing on an application
form available from the city, filed with the city and shall be accompanied
by payment of the appropriate fee as established by the city. If applicable,
a metes and bounds description of the boundary of the property that
is the subject of the application and appropriate exhibits the applicant
requests, or that the Comprehensive Zoning Ordinance or other applicable
ordinances require, become part of the development regulations affecting
the property that is the subject of the application, which may include,
but not be limited to, land use and/or site plan, building elevations,
landscape plans, and sign plans must be submitted with the application.
No application shall be required for amendments that are initiated
by the city manager, the planning and zoning commission, or the city
council.
10.6
Public
hearing and notice:
Prior to making its report to the
city council, the planning and zoning commission shall hold at least
one public hearing on each proposed amendment to the comprehensive
zoning ordinance text or zoning district map. Notice of the date,
time and place of the public hearing shall be published in the official
newspaper of the city before the 15th day before the date of the hearing.
Written notice of the public hearing also shall be sent to each owner,
as indicated by the most recently approved municipal tax roll, of
real property within 200 feet of the property on which a zoning map
amendment is proposed before the tenth day before the hearing date.
The notice may be served by its deposit in the municipality, properly
addressed with postage paid, in the United States mail. Written notification
to individual property owners is not required for an amendment to
the text of the zoning ordinance which does not change zoning district
boundaries.
10.7
Failure
to appear:
Failure of the applicant or the applicant's
representative to appear before the planning and zoning commission
or city council for more than one hearing without an approved delay
by the city manager or designated administrative official shall constitute
sufficient grounds for the planning and zoning commission to table
or recommend denial of the application or for the city council to
table or deny the application with or without prejudice.
10.8
Planning
and zoning commission consideration and report:
The planning
and zoning commission, after the public hearing is closed, shall forward
to the city council its recommendation on the requested amendment
to the text of the comprehensive zoning ordinance and/or the zoning
district map, which recommendation shall be to approve the amendment
as requested, to approve the requested amendment with modifications
recommended by the planning and zoning commission, or to deny the
requested amendment.
10.9
City council
consideration:
A.
Applications
recommended for approval by the planning and zoning commission:
Every application for an amendment to the comprehensive zoning
ordinance and/or or zoning district map which is recommended for either
approval or approval with modifications by the planning and zoning
commission shall be automatically forwarded to the city council for
setting of a public hearing thereon. No change, however, shall become
effective until after the adoption of an ordinance for same and its
publication as required by law.
B.
Applications
recommended for denial by the planning and zoning commission:
When the planning and zoning commission makes a recommendation
that an application for an amendment to the comprehensive zoning ordinance
and/or or zoning district map should be denied, the request, in its
original form, will (i) be considered withdrawn, (ii) treated as a
denial without prejudice by the city council, and (iii) not be placed
on the city council agenda unless requested by the applicant in writing
delivered to the Community Development Coordinator not later than
the tenth (10th) day after the meeting at which the commission voted
to recommend denial of the application.
C.
Resubmission
of applications:
A request for an amendment which has
been denied by the city council without prejudice may be resubmitted
at any time for reconsideration by the city with payment of a new
filing fee. If a request for an amendment has been denied by the city
council with prejudice, the same or similar request may not be resubmitted
to the city for six months from the date of the vote by the city council
to deny the original application.
D.
City council
hearing and notice for zoning changes:
Published notice and written notification to individual property owners, of the city council public hearing, shall be as provided in section 10.6.
E.
Three-fourths
vote:
A favorable vote of three-fourths of all of the
members of the entire city council shall be required to approve any
change in zoning when:
1.
Written
protests are received and filed with the city secretary in accordance
with V.T.C.A., Local Government Code Section 211.006, which protest
must be written and signed in compliance with the requirements of
Section 10.10 by the owners of at least 20 percent of either:
(a)
the
area of the lots or land covered by the proposed change; or
(b)
the
area of the lots or land immediately adjoining the area covered by
the proposed change and extending 200 feet from that area. In computing
the percentage of land area, the area of streets and alleys shall
be included in the computation; or
2.
The planning
and zoning commission recommends denial of the requested change.
10.10
Written
protest procedures.
A.
Purpose.
(1)
State
law expressly enables the governing body of a municipality to establish
procedures for adopting and enforcing zoning regulations and district
boundaries. Pursuant to that authority, the city council enacts this
Section 10.10 governing the receipt of written protests submitted
for the purpose of requiring the favorable vote of three-fourths of
all members of the city council to effect a change in a zoning district
classification or boundary.
(2)
This
Section 10.10 is not intended to conflict with the state law; it is
being enacted at a time when the state law does not explicitly provide
how, when, or where a written protest must be filed. The city council
expressly recognizes that this Section 10.10 may be partially or completely
preempted at any such time that the state law is amended to explicitly
provide how, when, or where a written protest must be filed.
(3)
This
Section 10.10 is intended to accomplish the following listed objectives
which, in the opinion of the city council, are fully in keeping with
the purposes, spirit, and intent of the state law:
(a)
To allow city staff sufficient time to accurately calculate the land
area percentages that determines the voting requirement;
(b)
To protect the rights of all parties by establishing minimum criteria
to assure the reliability of written protests received;
(c)
To protect the rights of those protesting by establishing procedures
and deadlines which are not unduly burdensome or restrictive; and
(d)
To promote order and maintain the integrity of the zoning process.
B.
Form of
protest.
(1)
A protest
must be in writing submitted on a form prepared by the city secretary
and, at a minimum, contain the following information:
(a)
A description of the zoning case at issue;
(b)
The printed or typewritten names of all persons signing the protest
of the proposed change in zoning district classification or boundary;
(c)
A description of the area of lots or land owned by the protesting
parties that is either covered by the proposed change or located within
200 feet of the area covered by the proposed change;
(d)
The mailing addresses of all persons signing the protest;
(e)
The date and time the protest is signed; and
(f)
If signing the protest on behalf of the owner of property pursuant
to a power of attorney, so indicate on the protest and submit a copy
of the power of attorney with the protest.
(2)
The
protest must bear the original signatures of all persons required
to sign under paragraph C., below.
C.
Who must
sign.
(1)
A protest
must be signed by the owner of the property in question, or by a person
authorized by power of attorney to sign the protest on behalf of the
owner. If the property is owned by two or more people, the protest
must be signed by a majority of the owners, or by a person authorized
by power of attorney to sign the protest on behalf of a majority of
the owners, except that in the case of community property, the city
shall presume the written protest of one spouse to be the protest
of both.
(2)
In
the case of property owned by a corporation, the protest must be signed
by the president, a vice-president, or by an attorney in fact authorized
to sign the protest on behalf of the corporation. In the case of property
owned by a general or limited partnership, the protest must be signed
by a general partner or by an attorney in fact authorized to sign
the protest on behalf of the partnership. In the case of property
owned by a trust, the protest must be signed by the trustee(s) authorized
under the trust agreement to perform actions with respect to the property.
(3)
Lots
or land subject to a condominium regime are presumed to be commonly
owned in undivided interests by the owners of all condominium units
and under the control of the governing body of the condominium. For
such lots or land to be included in calculating the lots or land area
protesting a proposed rezoning, the written protest must state that
the governing body of the condominium has authorized a protest in
accordance with procedures required by its bylaws, and that the person
signing the protest is authorized to act on behalf of the governing
body of the condominium. A written protest signed by the owner of
an individual condominium unit shall not be accepted unless the filing
party produces legal documents governing the condominium which clearly
establish the right of an individual owner to act with respect to
his or her respective undivided interest in the common elements of
the condominium.
(4)
For
purposes of this subsection, the "owner" of the property for which
a protest is being submitted shall be determined to be the owner of
the property shown in the records of the Denton County Appraisal District
as of the date of delivery of the protest to the city secretary. A
person with only a leasehold or easement interest in property is not
an "owner" for purposes of filing a protest pursuant to this subsection.
(5)
A person
who is not named on the records of the Denton County Appraisal District
as the owner of the property may submit additional information to
the city attorney indicating that the person is the current record
owner of the property identified in the protest. The determination
of the city attorney as to the sufficiency of such information and
whether or not the person should be considered the record owner of
the property for purpose of filing the protest is final. Any additional
information submitted pursuant to this paragraph (5) must be submitted
by the deadline required for submission of the protest.
D.
Filing
deadline.
(1)
A written
protest must be filed with the city secretary before noon of the business
day immediately preceding the date advertised for the city council
public hearing in the statutory notice published in the official newspaper
of the city. A protest sent through the mail must be received by the
city secretary before the deadline.
(2)
Before
the public hearing on the case, the filing deadline is automatically
extended whenever the public hearing is re-advertised in the official
newspaper of the city pursuant to statutory notice requirements.
(3)
After
the public hearing has begun, and
(a)
the public hearing is concluded with no action being taken on the
zoning amendment at the same meeting and a subsequent public hearing
and advertising that public hearing in the official newspaper of the
city pursuant to statutory notice requirements; or
(b)
the public hearing is continued to a date certain as otherwise allowed
under the Texas Open Meetings Act;
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the filing deadline may be extended to noon of the working day
immediately preceding the newly advertised public hearing date or
the date to which the public hearing is continued, as the case may
be.
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(4)
Written
protests may be filed electronically be emailing the written protest
as an attachment in .pdf format to the city secretary or by sending
via facsimile transmission to the published facsimile telephone number
for the office of the city secretary.
(5)
For
purposes of determining compliance with the filing deadline, the date
and time the city secretary's office actually receives the written
protest is solely determinative.
E.
Withdrawals
of protests filed.
Withdrawals of protests filed must
be in writing and filed with the city secretary before the filing
deadline for protests. The provisions of this subsection governing
the form and filing of protests apply equally to withdrawals.
F.
Presumptions
of validity.
(1)
In
all cases where a protest has been properly signed pursuant to this
subsection, the city shall presume that the signatures appearing on
the protest are authentic and that the persons or officers whose signatures
appear on the protest are either owners of the property or authorized
to sign on behalf of one or more owners as represented.
(2)
In
cases of multiple ownership, the city shall presume that a properly
signed protest which on its face purports to represent a majority
of the property owners does in fact represent a majority of the property
owners.
(3)
The
presumptions in subparagraphs (1) and (2) above are rebuttable, and
the city attorney may advise the city council that a presumption should
not be followed in a specific case based on extrinsic evidence presented.
G.
Conflicting
instruments.
In the event that multiple protests and
withdrawals are filed on behalf of the same owner, the instrument
with the latest date and time of execution controls.
10.11
Joint
public hearings:
As authorized in V.T.C.A., Local Government Code Section 211.007, the city council may, by a two-thirds vote, prescribe the type of notice to be given of the time and place of a public hearing held jointly by the city council and planning and zoning commission. If the notice provisions are different than section 10.6 above, then the provisions of section 10.6 do not apply.
10.12
Procedure
for newly annexed land:
As soon as reasonable after an
annexation ordinance is approved by the city council, the city manager
or designated city official shall prepare an application for zoning
the newly annexed property to SF-40 unless the property owner, city
council or planning and zoning commission determines another zoning
district is more appropriate. The application shall be placed on the
planning and zoning commission's agenda. All procedures as set forth
in this section shall apply.
(Ordinance 2012-1118, sec. 2, adopted 2/14/12)
11.1
Site plan
review:
A.
Purpose.
This section establishes a site plan review process for proposed
developments. The purpose of the review is to ensure efficient and
safe land development, harmonious use of land, compliance with appropriate
design standards, safe and efficient vehicular and pedestrian circulation,
parking and loading, and adequate water supply, drainage and stormwater
management, sanitary facilities, and other utilities and services.
B.
Applicability.
Site plan review and approval shall be required for the following:
1.
Any nonresidential
development.
2.
Any multifamily
development.
3.
Any development
with two or more buildings per platted lot.
4.
Any conditional use permit (public hearings may also be required, see section 12).
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No building permit shall be issued for any of the above developments
unless a site plan is first submitted to and reviewed by the city
staff and planning and zoning commission and approved by the city
council. No certificate of occupancy shall be issued unless all construction
and development conform to the site plan as approved by the city.
A public hearing on a site plan is not required unless a site plan
is prepared in conjunction with a conditional use permit.
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C.
Exemptions
and exceptions.
Site plan approval shall not be required
for any detached one or two dwelling unit buildings or any accessory
uses incidental thereto, except as provided in B(4) above.
D.
Site plan
details.
The site plan shall contain sufficient information
relative to site design considerations, including but not limited
to the following:
1.
Location
of proposed building(s) and structures and sizes.
2.
On- and
off-site circulation (including truck loading and pickup areas) and
fire lanes.
3.
Parking.
4.
Grading.
5.
Conceptual
landscaping design.
6.
Placement
of utilities.
7.
Screening.
8.
Engineering
for streets and utilities.
9.
Drainage.
10.
Signage.
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Provision of the above items shall conform to the principles
and standards of this ordinance. To ensure the submission of adequate
site plan information, the city is hereby empowered to maintain and
distribute a list of specific requirements for site plan review applications.
Upon periodic review, the city manager or designated administrative
official shall have the authority to update such requirements for
site plan details.
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E.
Supplemental
requirements.
The city staff may require other information
and data for specific site plans if it is relevant to the proposed
use of the property. This data may include but is not limited to geologic
information, water yields, flood data, environmental information,
traffic analysis, road capacities, market information, economic data
for the proposed development, hours of operation, elevations and perspective
drawings, lighting, and similar information.
F.
Standards
for site plan review.
Based upon its review, the city
may approve, conditionally approve, request modifications, or deny
the site plan based on evaluation of the site plan details with respect
to:
1.
The site
plan's compliance with all provisions of the zoning ordinance and
other ordinances of the City of Highland Village including but not
limited to off-street parking and loading, lighting, open space, and
the generation of objectionable smoke, fumes, noise, odors, dust,
glare, vibration, or heat.
2.
The impact
of the development relating to the preservation of existing natural
resources on the site and the impact on the natural resources of the
surrounding properties and neighborhood.
3.
The relationship
of the development to adjacent uses in terms of harmonious design,
setbacks, maintenance of property values, and negative impacts.
4.
The provision
of a safe and efficient vehicular and pedestrian circulation system.
5.
The design
and location of off-street parking and loading facilities to ensure
that all such spaces are usable and are safely and conveniently arranged.
6.
The sufficient
width and suitable grade and location of streets designed to accommodate
prospective traffic and to provide access for firefighting and emergency
equipment to buildings.
7.
The coordination
of streets so as to arrange a convenient system consistent with the
thoroughfare plan of the City of Highland Village.
8.
The use
of landscaping and screening (1) to provide adequate buffers to shield
lights, noise, movement, or activities from adjacent properties when
necessary, and (2) to complement the design and location of buildings
and be integrated into the overall site design.
9.
Exterior
lighting to ensure safe movement and for security purposes, which
shall be arranged so as to minimize glare and reflection on adjacent
properties.
10.
The location,
size, and configuration of open space areas to ensure that such areas
are suitable for intended recreation and conservation uses.
11.
Protection
and conservation of soils from erosion by wind or water or from excavation
or grading.
12.
Protection
and conservation of watercourses and areas subject to flooding.
13.
The adequacy
of water, drainage, sewerage facilities, garbage disposal, and other
utilities necessary for essential services to residents and occupants.
11.2
Approval
process:
A.
[Review
of plan; comments.]
The city manager or designated administrative
official shall review the site plan and prepare technical comments
to be submitted with the site plan to the planning and zoning commission
and city council.
B.
[Disposition.]
The city staff shall place the site plan on the regular agenda
of the planning and zoning commission within 30 days after a complete
application has been submitted to the city. If recommended for approval
by the planning and zoning commission, the site plan shall automatically
be placed on the city council agenda. If the site plan is recommended
for denial by the planning and zoning commission, the applicant must
request the site plan be placed on the city council's agenda. The
city council shall have final approval or disapproval on all site
plans.
C.
Lapse of
site plan approval.
If development of a lot with an approved
site plan has not commenced within one year of the date of final approval
of the site plan, the site plan shall be deemed to have expired. The
property owner, however, may submit a request for extension of the
site plan at least 60 days prior to expiration of the such plan, setting
forth the reasons why an extension should be granted. The planning
and zoning commission thereafter shall consider such request and shall
determine whether to extend the site plan, subject to approval of
the city council. In no case shall the site plan be extended for a
period in excess of two years.
D.
Amendment
of site plans.
The property owner may propose amendment
of an approved site plan. The application for amendment of the site
plan shall be filed with the planning and zoning commission and shall
be processed in accordance with the standards and procedures for approval
of a site plan.
It is recognized that final architectural and engineering design
may necessitate minor changes in the approved site plan. In such cases,
the city manager or designated administrative official shall have
the authority to approve minor modifications of an approved site plan,
provided that such modifications do not materially change the circulation
and building location on the site, or any conditions specifically
attached as part of a city council approval. Minor modifications mean
changes of not more than 15 percent as long as said changes do not
violate other provisions of this ordinance.
(Ordinance 2018-1254 adopted 11/13/18)
12.1
General
description:
A conditional use is a land use which because
of its nature is compatible with the permitted land uses in a given
zoning district, only upon a determination that the external effects
of the use in relation to the existing and planned uses of adjoining
property and the neighborhood can be mitigated through imposition
of standards and conditions. This section sets forth the standards
used to evaluate proposed conditional uses and the procedures for
approving conditional use permit applications.
12.2
Applicability:
A.
Permit required.
No building permit shall be issued for any use designated as
a conditional use within a zoning district unless a conditional use
permit has first been approved in accordance with the standards and
procedures of this section.
B.
Site plan
required.
An application for a conditional use permit shall be accompanied by a site plan prepared in the manner described in section 11 of these zoning regulation[s] illustrating the proposed use to be established, its relationship to adjoining properties and how it meets the approval standards set forth in section 12.3.
12.3
Approval
standards:
A.
Standards.
The planning and zoning commission
in making its recommendation and the city council in rendering its
decision on an application for a conditional use permit shall, on
the basis of the site plan and other information submitted, evaluate
the impact of the proposed use on and the compatibility of the use
with surrounding properties and neighborhoods to ensure the appropriateness
of the use at the proposed location. The planning and zoning commission
and the city council shall specifically consider the extent to which:
1.
The proposed
use at the specified location is consistent with the future land use
policies and map in the city's adopted comprehensive plan;
2.
The proposed
use is consistent with the general purpose and intent of the applicable
zoning district regulations;
3.
The proposed
use is not materially detrimental to the public health, safety, convenience
and welfare, or results in material damage or prejudice to other property
in the vicinity; and
4.
The proposed
use is compatible with and preserves the character and integrity of
adjacent properties and neighborhoods and includes improvements or
modifications that mitigate development-related adverse impacts, including
but not limited to:
(1)
Adequate
ingress and egress to property and proposed structures thereon with
particular reference to vehicular and pedestrian safety and convenience,
and access in case of fire;
(2)
Off-street
parking and loading areas where required;
(3)
Paving
of streets, alleys and sidewalks;
(4)
Provisions
for drainage;
(5)
Utilities
with reference to location, availability, and compatibility;
(6)
Screening
and buffering, features to minimize visual impacts, and/or setbacks
from adjacent uses;
(7)
Control
of signs, if any, and proposed exterior lighting with reference to
glare, traffic safety, economic effect, and compatibility and harmony
with properties in the district;
(8)
Required
yards and open space;
(9)
Height
and bulk of structures;
(10)
Hours of operation; and
(11)
Roadway adjustments, traffic-control devices or mechanisms, and access
restrictions to control traffic flow or divert traffic as may be needed
to reduce or eliminate development generated traffic on neighborhood
streets.
B.
Condition.
In approving a conditional use permit, the planning and zoning
commission may recommend and the city council shall impose such conditions
as are reasonably necessary to assure compliance with these standards
and the purpose and intent of this section. Any conditions imposed
shall be set forth in writing by the city council and attached to
the site plan drawing(s). The city shall maintain a record of such
approved conditional uses and the site plans and conditions attached
thereto.
12.4
Approval
procedures:
A.
Planning
and zoning commission recommendation.
The city planning and zoning commission shall schedule a public hearing in order to formulate its recommendations to the city council on the conditional use permit application. Notice and public hearing shall be pursuant to section 10.5 of these zoning regulations. Following the public hearing, the commission shall recommend approval, modification or denial of the proposal to the city council. If the appropriateness of the use cannot be assured at the location, the commission shall recommend denial of the application as being incompatible with existing uses or uses permitted by right in the district.
B.
City council
action.
The city council shall be the final decision-maker on applications for conditional use permits. Following notice and a public hearing in accordance with section 10.8 of these zoning regulations, and in consideration of the planning and zoning commission's recommendations, the city council shall approve, modify or deny the proposal for a conditional use permit. If the appropriateness of the use cannot be assured at the location, the application for conditional use permit shall be denied as being incompatible with existing uses or uses permitted by right in the district.
12.5
Amendment
of conditional use permit:
A.
Modification.
No proposed or existing building, premises, or land use authorized
as a conditional use may be established, enlarged, modified, structurally
altered, or otherwise changed from that approved in the conditional
use permit, unless such amendment is authorized in accordance with
the standards and procedures set forth in this section, and the conditional
use permit and approved site plan are amended accordingly.
B.
Limitation
on board of adjustment.
The board of zoning adjustment
shall have no jurisdiction to hear, review, reverse, or modify any
decision, determination, or ruling with respect to an application
for a conditional use permit.
12.6
Lapse
and extension:
A.
Lapse of
permit.
If no building permit has been issued within
one year of date of approval of the conditional use permit, such permit
shall lapse and no construction shall be permitted nor use be established
until a new application for conditional use permit is submitted and
approved for the intended use.
B.
Extension.
If the applicant requests an extension of the conditional use
permit in writing at least 60 days prior to the date of lapse to the
city council, the council shall consider such extension request, prior
to the expiration date. For good cause shown, the permit may be extended
for a period not to exceed one year.
12.7
Continuation
of prior uses as conditional uses:
The city council may continue in effect certain existing uses
that otherwise would be nonconforming uses within particular zoning
districts following the effective date of these amended zoning regulations,
or uses formerly authorized under a S-P-1 site plan classification
under prior zoning regulations, by converting such existing or authorized
uses to conditional uses; provided that any such use be authorized
as a conditional use in the zoning district into which it is classified
under these zoning regulations; and further provided that such use
shall be governed by such standards and conditions as are under the
zoning regulations in effect immediately prior hereto. In converting
such existing or authorized use to a conditional use, the city council,
upon recommendation of the planning and zoning commission, shall issue
a conditional use permit, and, in the case of undeveloped uses authorized
under S-P-1 district regulations, may attach such conditions as are
necessary to ensure that the purpose and effect of this section is
implemented.
(Ordinance 2018-1254 adopted 11/13/18)
13.1
[Certificates
of occupancy requirement:]
Certificates of occupancy
shall be required for any of the following:
A.
Occupancy
and use of a building hereafter erected or structurally altered (passage
of a final building inspection of a residential structure shall qualify
as a certificate of occupancy).
B.
Change in
use of an existing building to a use of a different classification.
C.
Change in
the use of land to a use of a different classification.
D.
Change in
occupancy or business ownership within a building.
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No such use, or change of use, shall take place until a certificate
of occupancy therefor shall have been issued by the building official.
A fee shall be established by separate ordinance.
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13.2
Procedure
for new or altered buildings:
Written application for
a certificate of occupancy for a new building or for an existing building
which is to be altered shall be made at the same time as the application
for the building permit for such building. Said certificate shall
be issued after the building official orders the building or structure
inspected and finds no violations of the provisions of this ordinance
or other regulations which are enforced by the building official.
Said certificate shall be issued by the building official or his agent
after the erection or alteration of such building or part thereof
has been completed in conformity with the provisions of this ordinance.
13.3
Procedure
for vacant land or a change in building use:
Written
application for a certificate of occupancy for the use of vacant land,
a change in the use of land or a change in the use of a building,
or for a change from a nonconforming use to a conforming use, shall
be made to said building official or his agent. If the proposed use
is a conforming use, as herein provided, written application shall
be made to said building official. If the proposed use is found to
be in conformity with the provisions of this ordinance, the certificate
of occupancy shall be issued after the application for same has been
made and all required inspections are completed and approved by the
building official.
13.4
Contents:
Every certificate of occupancy shall contain the following:
1) building permit number, 2) the address of the building, 3) the
name and address of the owner, 4) a description of that portion of
the building for which the certificate is issued, 5) a statement that
the described portion of the building has been inspected for compliance
with the requirements of the Uniform Building Code, group and division
of occupancy, and 6) the name of the building official.
13.5
Temporary
certificate:
If the building official or his agents find
that no substantial hazard will result from occupancy of any building
or portion thereof before the same is completed, a temporary certificate
of occupancy may be issued for a period not to exceed six months,
for the use of a portion or portions of a building or structure prior
to the completion of the entire building or structure. Such temporary
certificate shall not be construed as in any way altering the respective
rights, duties, or other obligations of the owners/tenants relating
to the use or occupancy of the premises or any other provision of
this ordinance.
13.6
Posting:
The certificate of occupancy shall be posted in a conspicuous
place on the premises and shall not be removed except by the building
official or his authorized agent.
13.7
Revocation:
The building official may, in writing, suspend or revoke a certificate
of occupancy issued under the provisions of this ordinance whenever
the certificate is issued in error, or on the basis of incorrect information
supplied, or when it is determined that the building or structure
or portion thereof is in violation of any ordinance or regulation
or any of the provisions of this ordinance or the most current Uniform
Building, National Electrical, Uniform Mechanical, Uniform Fire and
Uniform Plumbing Codes.
(Ordinance 2018-1254 adopted 11/13/18)
