(a) Presumption.
There shall be a presumption against variances.
(b) The BOA may authorize a variance from these regulations when, in
its opinion, undue hardship will result from requiring strict compliance.
In granting a variance, the BOA shall prescribe only conditions that
it deems necessary for, or desirable to, the public interest. In making
the findings hereinbelow required, the BOA shall take into account
the nature of the proposed use of the land involved, existing uses
of land in the vicinity, the number of persons who will reside or
work within the proposed use, and the probable effect such variance
will have upon traffic conditions and upon the public health, safety,
convenience and welfare of the community.
(Ordinance 07-09-18E, sec. 2.20,
adopted 9/18/07)
(a) No variance shall be granted without first having given public notice as required by section
14.02.225(c) of this article, and having held a public hearing on the written variance request in accordance with this article and unless the BOA makes written findings:
(1) That there are special circumstances or conditions affecting the
land involved such that the strict application of the provisions of
this article would deprive the applicant of the reasonable use of
the land; and
(2) That the variance is necessary for the preservation and enjoyment
of a substantial property right of the applicant; and
(3) That the granting of the variance will not be detrimental to the
public health, safety or welfare, or injurious to other property within
the area; and
(4) That the granting of the variance will not have the effect of preventing
the orderly use of other land within the area in accordance with the
provisions of this article; and
(5) That the granting of the variance constitutes a minimal departure
from this article; and
(6) That the subject circumstances or conditions are not self-imposed,
are not based solely on economic gain or loss, and do not generally
affect most properties in the vicinity of the property.
(b) Such findings of the BOA, together with the specific facts upon which
such findings are based, shall be incorporated into the official minutes
of the BOA meeting at which such variance is granted. Variances may
be granted only when in harmony with the general purpose and intent
of this article so that the public health, safety and welfare may
be secured and that substantial justice may be done.
(Ordinance 07-09-18E, sec. 2.21,
adopted 9/18/07)
(a) In order to grant a variance, the board of adjustment 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; and
(2) That the situation causing the hardship or difficulty is neither
self-imposed nor generally affecting all or most properties in the
same zone; and
(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 upon economic gain or loss.
(c) No variance may be granted which results in undue hardship upon another
parcel of land.
(d) The applicant bears the burden of proof in establishing the facts
that may justify a variance.
(Ordinance 07-09-18E, sec. 2.22,
adopted 9/18/07; Ordinance
2021-36, sec. V, adopted 9/21/21)
(a) Upon written request of the property owner, the BOA may grant special
exceptions for nonconforming uses in accordance with the following
standards:
(1) Expansion of a nonconforming use within an existing structure provided
that, in the case of a nonconforming residential use, such expansion
does not increase the number of dwelling units to more than the number
existing when the use first became nonconforming; or
(2) Expansion of the gross floor area of a nonconforming structure provided
that such expansion does not decrease any existing setback; or
(3) Change from one nonconforming use to another, reconstruction of a
nonconforming structure that has been totally destroyed, or resumption
of a nonconforming use previously abandoned, only upon finding that
the failure to grant the special exception deprives the property owner
of substantially all use or economic value of the land.
(b) In granting special exceptions under this section, the BOA may impose
such conditions as are necessary to protect adjacent property owners
and to ensure the public health, safety and general welfare, including
but not limited to conditions specifying the period during which the
nonconforming use may continue to operate or exist before being conformed
to the standards of the zoning ordinance.
(Ordinance 07-09-18E, sec. 2.23,
adopted 9/18/07)
(a) Application and fee.
An application for a variance or
special exception under this division shall be made in writing using
forms prescribed by the city, and shall be accompanied by an application
fee, a site plan and such additional information as may be requested
in writing in order to properly review the application. Such information
may include, but is not limited to, plat plans, site building plans,
photographs, topographic contour maps, and other similar documents.
All drawings must be to scale.
(b) Review and report by the city.
The development services
staff shall visit the site where the proposed variance or special
exception will apply and the surrounding area, and shall report his
or her findings to the BOA.
(c) Notice and public hearings.
The BOA shall hold a public
hearing for consideration of the written variance request. One notice
of a variance public hearing shall be published by the applicant in
the official newspaper of the city and in such other publication as
the city council may require. The notice of the public hearing shall
include the purpose of the variance request with sufficient information
to identify the street address, the size of the property and the details
of the proposed development, and the time and the place of the public
hearing. The applicant shall provide a copy of the public notice prior
to publication and mailing for review by the development services
director to determine that sufficient information is provided. The
public notice must be approved by the development services director
prior to publication in the official newspaper of the city and in
such other publication as the city council may require and mailing.
Notices that are not approved by the development services director
for publication and mailing will not be considered as valid legal
notices for this section. The public notice shall be published before
fifteen (15) days of the date set for the hearing. In addition, written
notice meeting the time requirement above shall be mailed by the applicant
by first class mail to the owners of property within two hundred feet
(200') of the lot boundary as indicated by the county appraisal district
that the property is located. The development services department
will post public hearing notice sign(s) as required on the affected
property.
(d) Special conditions.
The BOA may impose such conditions,
limitations and safeguards as it deems appropriate upon the granting
of any variance or special exception. Violation of any such condition,
limitation or safeguard shall constitute a violation of this article.
(Ordinance 07-09-18E, sec. 2.24,
adopted 9/18/07; Ordinance
2021-36, sec. VI, adopted 9/21/21; Ordinance 2024-07 adopted 1/16/2024)
All decisions of the BOA are final and binding. However, any
person aggrieved by a decision of the BOA may present a verified petition
which states that the decision of the BOA is illegal, in whole or
in part, and specifying the grounds of the illegality to a court of
competent jurisdiction. Such petition must be presented within ten
(10) days after the date the decision is filed in the city secretary’s
office. Subject to the provisions of chapter 211.011 of the Texas
Local Government Code, only a court of record may reverse, affirm
or modify a decision of the BOA.
(Ordinance 07-09-18E, sec. 2.25,
adopted 9/18/07)