There is hereby created a board of adjustment (BA), also referred
to as the “board,” for the purpose, in appropriate cases
and subject to appropriate conditions and safeguards, to grant variances
from certain specific and literal terms of this ordinance that are
consistent with the general purpose and intent of this ordinance.
The board shall be composed of members who are resident citizens and
qualified voters of the city. As a Type A general-law municipality,
the City Council is granted authority to act as the board of adjustment
(BA).
(Ordinance 99-0928-A adopted 10/12/21)
(a)
The
board of adjustment shall consist of the city council or seven (7)
appointed members, five (5) regular and two (2) alternates, who are
resident citizens and qualified voters of the city. When appointed,
one (1) alternate member shall be nominated by the city council as
a group and one (1) alternate member shall be nominated for appointment
by the mayor. Board members shall be appointed by a simple majority
vote of the city council, in accordance with Texas Local Gov’t
Code, sections 211.008–211.011, as amended.
(b)
Regular
board members and alternate members shall serve for a term of 2 years,
and expiration of terms shall be staggered so that an overlapping
of terms occurs, such as in any 2-year period, the terms of 3 members
shall expire during one of those years, and the terms of 4 members
shall expire during the second year. Terms of office shall expire
on the first day of November of any given year.
(c)
If a
vacancy occurs on the commission, the city council or mayor who originally
appointed that member or his or her successor shall appoint a person,
with approval of the city council, to fill the unexpired term at the
first regular meeting of the city council following notification of
the vacancy.
(d)
Removal
of board members.
The city council may by majority vote
remove a board member for lack of confidence, incompetence, corruption,
misconduct, or malfeasance. In addition, upon recommendation of the
board of adjustment, the city council by super-majority vote may remove
any board member who misses three (3) consecutive meetings within
a twelve (12) month period of time or four (4) meetings within a twelve
(12) month time period. For the purpose of this meeting attendance
requirement, it shall be considered a missed meeting for any board
member who leaves a meeting prior to the completion of all action
items on the posted agenda for a meeting, for any other reason than
to avoid a potential conflict of interest. Any board member who is
removed shall not be considered for appointment to a board by the
city council for a period of six (6) months from the date of their
removal.
(e)
The
members of the board shall serve without compensation.
(f)
The
board shall elect a chairperson and a vice-chairperson from among
its membership, and each officer shall hold office for one year or
until replaced by a simple majority vote of the full board. The director
or his or her designee shall keep minutes of all meetings held by
the board.
(Ordinance 99-0928-A adopted 10/12/21)
Meetings of the board of adjustment shall be held at the call
of the chairperson and at other times as the board may determine.
All meetings of the board shall be open to the public. Closed meetings
(such as executive session) shall be permitted as authorized by law.
Four members of the board shall constitute a quorum for the conduct
of business. All cases to be heard by the board will always be heard
by at least 75% of the members, which constitutes 4 members.
(Ordinance 99-0928-A adopted 10/12/21)
The board of adjustment shall have the authority, subject to
the standards established in Texas Local Gov’t Code, sections
211.008–211.011, and those established herein, to exercise powers
and to perform duties including the following:
(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, another zoning ordinance, the subdivision
ordinance, and other city ordinances granting appellate jurisdiction
to the board;
(b)
Authorize in specific cases a variance (see subsection (f) below [section 21.06]) 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 this ordinance would result in unnecessary hardship, and so that the spirit of this article [this ordinance] is observed and substantial justice is done;
(c)
In exercising its authority under subsection (d)(1) above [subsection (a) of this section], the board 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 board has the same authority as the administrative official; and
(d)
The
concurring vote of 75 percent of the members of the board is necessary
to:
(Ordinance 99-0928-A adopted 10/12/21)
(a)
The board 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 subsection (f) below [section 21.06]. Generally, the board is not authorized to grant use variances.
(b)
The
board shall have no power to grant or modify conditional use permits
authorized under these regulations.
(c)
The
board shall have no power to grant a zoning amendment. In the event
that a request for a zoning amendment is pending before the planning
and zoning commission or the city council, the board shall neither
hear nor grant any variances with respect to the subject property
until final disposition of the zoning amendment.
(d)
The
board 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, is pending on the agenda of the planning and zoning commission
and, where applicable, by the city council. All administrative remedies
available to the applicant shall have been exhausted prior to hearing
by the board of adjustment.
(Ordinance 99-0928-A adopted 10/12/21)
(a)
A variance
is the relief from strict application of any term or provision of
this article [this ordinance] when such strict application would cause
an undue hardship. The hardship must be due to the nature of the land
or tract of land, and cannot be solely economic in nature. Under no
circumstances can a variance be issued to allow any use other than
those set forth in the zoning district in question.
(b)
The
board of adjustment may authorize a variance from these regulations
when, in its opinion, undue hardship will result from requiring strict
compliance. In granting a variance, the board shall prescribe only
conditions that it deems necessary for or desirable to the public
interest. In making the findings hereinbelow required, the board shall
take into account the following:
(c)
No variance
shall be granted without first having given public notice and having
held a public hearing on the variance request in accordance herewith
and unless the board of adjustment makes specific findings as follows:
(1)
That
there are special circumstances or conditions affecting the property
involved such that the strict application of the provisions of this
article [this ordinance] would (i) deprive the applicant of the reasonable
use of the property; and (ii) create an unnecessary hardship in the
development of the property;
(2)
That
such circumstances or conditions are (i) not self-imposed; (ii) not
based solely on economic gain or loss; and (iii) do not generally
affect most properties in the vicinity of the property;
(3)
The
variance is necessary for the preservation and enjoyment of a substantial
property right of the applicant;
(5)
The
property involved is otherwise in compliance with all other applicable
city ordinances, rules, and regulations; and
(6)
The
granting of the variance will be in harmony with the spirit and purpose
of this article [this ordinance].
(d)
In making the finding required in subsection (3)(E) above [subsection (c)(5)], the board may rely solely on a representation by the city administrator. If the city administrator’s representation is that the property is not in compliance with any city ordinance, it shall specify such noncompliance (the “noncompliance”). In the event that the board can make the findings required to grant a variance but for the noncompliance, it may grant a variance to the applicant conditioned upon the property coming into compliance within 90 days of such conditional grant, or within such longer period as may be specified by the board of adjustment. The applicant shall take no action based upon such variance until the expiration of such period. If the city administrator does not determine that the noncompliance has been cured within such period the variance shall expire automatically.
(e)
The
applicant bears the burden of proof in establishing the facts justifying
a variance.
(f)
A building
permit shall be applied for (if required) and construction initiated
within one year of the issuance of a variance. If this condition is
not met, the variance shall expire automatically unless extended by
the BA. No development right (if any) shall vest in an expired variance.
(Ordinance 99-0928-A adopted 10/12/21)
(a)
Authority.
In addition to the authorization of variances from the terms
of this article [this ordinance], the BA shall have the authority
to 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 article [this ordinance]. The BA may reverse or
affirm, in whole or in part, or may 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 BA has the same authority as the administrative
official. The BA may also hear and decide other matters authorized
by this code and other ordinances regarding land use regulations.
(c)
Procedure
for Appeal.
The appellant must file with the BA and the
administrative official from whom the appeal is taken a written notice
of appeal specifying the grounds for the appeal. The appeal must be
filed within 60 days after the decision has been rendered. Upon receiving
the notice, the official from whom the appeal is taken shall immediately
transmit to the BA all papers constituting the record of action that
is appealed. 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 BA 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 BA or a court of record on application, after
notice to the official, if due cause is shown. The appealing party
may appear at the appeal hearing in person or by agent or attorney.
The board shall decide the appeal within 4 weeks after a public hearing
is concluded, after which time the request shall be deemed automatically
approved if no formal action is taken. The board 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.
(Ordinance 99-0928-A adopted 10/12/21)
(a)
Application
and Fee.
An application for a variance by the board of
adjustment shall be made in writing using forms prescribed by the
BA, and shall be accompanied by an application fee (as adopted by
the city from time to time and maintained on file), a site plan, and
additional information as may be requested in order to properly review
the application. This information may include, but is not limited
to, plat plans, site building plans, photographs, topographic contour
maps, and other similar documents.
(b)
Review
and Report by the City.
The mayor or the mayor’s
designee shall visit the site where the proposed variance will apply
and the surrounding area, and shall report his or her findings to
the BA.
(c)
Notice
and Public Hearing.
The board of adjustment shall hold
a public hearing for consideration of the variance request no later
than 45 days after the date the application for action, or an appeal,
is filed. Notice of the public hearing shall be provided to all property
owners within 200 feet of the affected property at least 10 days prior
to the public hearing, and also published in the official local newspaper
at least 10 days prior to the public hearing.
(d)
Action
by the BA.
The BA shall not grant a variance unless it finds, based upon compelling evidence, that each of the conditions in subsection (f) above [section 21.06] has been established. The BA may impose conditions, limitations, and safeguards as it deems appropriate upon the granting of any variance. Violation of any such condition, limitation, or safeguard shall constitute a violation of this article [this ordinance].
(Ordinance 99-0928-A adopted 10/12/21)
All decisions of the BA are final and binding. However, any
person aggrieved by a decision of the BA may present a verified petition
to a court of record which states that the decision of the BA is illegal,
in whole or in part, and specifying the grounds of the illegality.
This petition must be presented within 10 days after the date the
decision is filed in the BA’s office. Subject to the provisions
of Texas Local Gov’t Code, section 211.011, only a court of
record may reverse, affirm, or modify a decision of the BA.
(Ordinance 99-0928-A adopted 10/12/21)
