There is hereby created a board of adjustment, hereafter referred to as the “board” for the purpose, in appropriate cases and subject to appropriate conditions and safeguards, to make special exceptions to, to grant variances from and to hear appeals regarding the terms of this chapter that are consistent with the general purpose and intent of this chapter. The board shall be composed of members who are resident citizens, taxpayers and qualified voters of the city.
(2006 Code, sec. 86-111; Ordinance 04-05-610, sec. 9.1, adopted 5/17/04)
(a) 
The board of adjustment shall consist of seven regular members, who shall be appointed by a simple majority vote of the full city council, and shall operate in accordance with V.T.C.A., Local Government Code secs. 211.008–211.011, as amended, and the home rule charter of the city.
(b) 
The city council shall provide for the appointment of up to four alternate members to serve in the absence of one or more of the regular board members on an alternating basis such that all alternate members have equal opportunities to serve on the board.
(c) 
Regular board members and alternate members shall serve for a term of two years, and expiration of terms shall be staggered so that an overlapping of terms occurs (for example, in any two-year period, the terms of two regular members and two alternate members shall expire during one year, and the terms of three regular members and two alternate members shall expire during the second year). No member shall serve on the board of adjustment for more than three completed consecutive terms, exclusive of any unexpired term to which the member may have been appointed to fill due to vacancy on the board.
(d) 
Any vacancy on the board of adjustment, both regular and alternate members, shall be filled for the unexpired term via appointment by a simple majority vote of the city council for the remainder of the term.
(e) 
Members of the board of adjustment may be removed from office for cause, and after a public hearing, by a simple majority vote of the full city council. Failure to attend three consecutive scheduled meetings shall be deemed as neglect and cause for removal from office, unless such absences were due to unusual circumstances beyond the member’s control such as sickness of the member or someone within the member’s immediate family.
(f) 
The members of the board of adjustment, and alternate members, as needed, shall regularly attend meetings and public hearings of the board, shall serve without compensation, and shall not hold any other office or position with the city while serving on the board.
(g) 
The board of adjustment 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 for any reason. The city manager’s designee shall serve as secretary to the board of adjustment, who shall keep minutes of all meetings held by the board. The secretary shall also set up and maintain a separate file for each application for hearing by the board of adjustment, and shall record therein the names and addresses of all persons/entities to whom notices are mailed, including the date of mailing and the person by whom such notices were delivered to the post office. All records and files herein provided for shall be permanent and official records of the city. The secretary shall also immediately notify in writing the city council, planning and zoning commission, and the city manager of each decision rendered by the board of adjustment in the conduct of its duties.
(h) 
The board of adjustment shall have the power to make the rules, regulations and bylaws for its own governance, which shall conform as nearly as possible to those rules, regulations and bylaws governing the city council, and the board’s rules, regulations and bylaws shall be subject to approval by the city council.
(2006 Code, sec. 86-112; Ordinance 04-05-610, sec. 9.2, adopted 5/17/04)
Meetings of the board of adjustment shall be held at the call of the chairperson and at such other times as the board may determine. All meetings of the board of adjustment shall be open to the public, and minutes shall be kept of all proceedings at board meetings. Six members of the board of adjustment shall constitute a quorum for the conduct of business. All cases to be heard by the board of adjustment shall always be heard by at least 75 percent of the members, which constitutes six members.
(2006 Code, sec. 86-113; Ordinance 04-05-610, sec. 9.3, adopted 5/17/04)
(a) 
The board of adjustment shall have the authority, subject to the standards established in V.T.C.A., Local Government Code secs. 211.008–211.011 and those established herein, to exercise powers and to perform duties including the following:
(1) 
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 chapter; and
(2) 
Authorize, in specific cases, a variance (see section 30.02.116) from the terms of this chapter if the variance is not contrary to the public interest and if, due to special conditions, a literal enforcement of the chapter would result in unnecessary hardship, and so that the spirit of this chapter is observed and substantial justice is done.
(b) 
In exercising its authority under subsection (a)(1) of this section, the board of adjustment 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.
(c) 
The concurring vote of at least 75 percent, or six members, of the full board of adjustment is necessary to:
(1) 
Reverse an order, requirement, decision or determination of an administrative official;
(2) 
Decide in favor of an applicant on a matter on which the board is required to review under this chapter;
(3) 
Authorize a variance from a provision of this chapter; or
(4) 
Hear and decide special exceptions to a provision of this chapter, as set forth in section 30.02.117.
(2006 Code, sec. 86-114; Ordinance 04-05-610, sec. 9.4, adopted 5/17/04)
(a) 
The board of adjustment 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 30.02.117.
(b) 
The board of adjustment shall have no power to grant or modify specific use permits authorized under article 30.05 of this chapter.
(c) 
The board of adjustment 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 by the commission and the city council.
(d) 
The board of adjustment shall not grant a variance for any parcel of property or portion thereof upon which a site plan, construction 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 and procedural remedies available to the applicant shall have been exhausted prior to hearing by the board of adjustment.
(2006 Code, sec. 86-115; Ordinance 04-05-610, sec. 9.5, adopted 5/17/04)
(a) 
Generally.
The board of adjustment may authorize a variance from these regulations when, in its opinion, unnecessary hardship will result from requiring strict compliance with the terms of this chapter. For example, if the subject property substantially differs from other similarly zoned land parcels by being of such restricted area, shape or slope so that it cannot reasonably be developed in the same manner as other similarly zoned land parcels, then a variance of the building setback, lot/tract width or depth, or parking requirements may be granted. In granting a variance, the board of adjustment shall prescribe only conditions that it deems necessary for, or desirable to, the public interest. In making the findings hereinbelow required, the board of adjustment 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.
(b) 
Public notice and hearing required for variance.
No variance shall be granted without providing public notice and holding a public hearing on the variance request in accordance with section 30.02.118 [30.02.119] and the board of adjustment shall make findings:
(1) 
That there are special circumstances or conditions affecting the land involved such that the strict application of the provisions of this chapter would deprive the applicant of the reasonable use of his land;
(2) 
The circumstances or conditions are not economic hardships created by the property owner;
(3) 
That the variance is necessary for the preservation and enjoyment of a substantial property right of the applicant;
(4) 
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
(5) 
That the granting of the variance will not have an adverse effect on surrounding properties, preventing the use and enjoyment of other land within the area in accordance with the provisions of this chapter.
Such findings of the board of adjustment, together with the specific facts upon which such findings are based, shall be incorporated into the official minutes of the board meeting at which such variance is granted. Variances may be granted only when in harmony with the general purpose and intent of this chapter so that the public health, safety and welfare may be secured and that substantial justice may be done.
(c) 
Findings of unnecessary hardship.
In order to grant a variance, the board of adjustment must make written findings that an unnecessary 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 this chapter.
(d) 
When variance not granted.
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, nor shall it permit any person the privilege of developing a parcel of land not permitted by this chapter on other parcels of land in the particular zoning district. No variance may be granted which results in unnecessary hardship upon another parcel of land.
(e) 
Variance for structure.
The board of adjustments may consider the following as grounds to determine whether compliance with the ordinance as applied to a structure that is the subject of the appeal would result in unnecessary hardship:
(1) 
The financial cost of compliance is greater than 50 percent of the appraised value of the structure as shown on the most recent appraisal roll certified to the assessor for the city under section 26.01, Tax Code;
(2) 
Compliance would result in a loss to the lot on which the structure is located of at least 25 percent of the area on which development may physically occur;
(3) 
Compliance would result in the structure not being in compliance with a requirement of a municipal ordinance, building code, or other requirement;
(4) 
Compliance would result in the unreasonable encroachment on an adjacent property or easement; or
(5) 
The municipality considers the structure to be a nonconforming structure.
(2006 Code, sec. 86-116; Ordinance 04-05-610, sec. 9.6, adopted 5/17/04; Ordinance 22-02-1249 adopted 2/1/22)
Upon written request of the property owner, the board of adjustment may grant special exceptions to the provisions of division 2 of this article, limited to the following, and in accordance with the following standards:
(1) 
Expansion of the land area of a nonconforming use, up to a maximum of ten percent.
(2) 
Expansion of the gross floor area of a nonconforming structure, up to a maximum of ten percent, provided that such expansion does not decrease any existing setback and does not encroach onto adjacent property.
(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 a finding that the failure to grant the special exception deprives the property owner of substantially all use or economic value of the land.
(4) 
In granting special exceptions under this section 30.02.117, the board of adjustment 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 brought into conformance with the standards of this chapter.
(5) 
The board of adjustment may authorize a special exception for the enlargement, expansion or repair of a nonconforming structure if such enlargement, expansion or repair will improve the condition of the structure, if it will bring the structure closer into compliance with this chapter, or if it will otherwise improve or enhance public health, safety or welfare.
(2006 Code, sec. 86-117; Ordinance 04-05-610, sec. 9.7, adopted 5/17/04)
(a) 
Authority.
In addition to the authorization of variances and special exceptions from the terms of this chapter, the board of adjustment 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 chapter. The board of adjustment 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 board has the same authority as the administrative official.
(b) 
Who may appeal.
Any of the following persons may appeal to the board of adjustment a decision made by an administrative official:
(1) 
A person directly aggrieved by the decision; or
(2) 
Any officer, department, board or office of the city affected by the decision.
(c) 
Procedure for appeal.
The appellant must file with the board of adjustment and the official from whom the appeal is taken a written notice of appeal specifying the grounds for the appeal. The notice of appeal shall be filed within 15 calendar days after the decision has been rendered. Upon receiving the notice, the official from whom the appeal is taken shall immediately transmit to the board of adjustment all papers constituting the record of action that is appealed. An appeal stays all proceedings in furtherance of the action that is appealed. The board of adjustment may hold an expedited hearing in the event the official, from whom the appeal is taken, certifies in writing to the board of adjustment facts supporting the official’s opinion that a stay would cause imminent peril to life or property. The appellant party may appear at the appeal hearing in person, by agent or through an attorney. The board of adjustment shall decide the appeal within 30 calendar days after the written appeal request was received. The board of adjustment 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 may make the correct order, requirement, decision or determination.
(d) 
City council member not to bring appeal.
A member of the city council may not bring an appeal to the board of adjustment.
(2006 Code, sec. 86-118; Ordinance 04-05-610, sec. 9.8, adopted 5/17/04)
(a) 
Application and fee.
An application for a variance, special exception or appeal by the board of adjustment shall be made in writing using forms prescribed by the city, and shall be accompanied by an application fee, as set forth in the currently adopted city fee schedule as printed in appendix A to this code, a site plan, and any other additional information as may be requested 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 city manager, or his designee, shall visit the site where the application for the proposed variance or special exception would apply and the surrounding area, and shall report his findings to the board of adjustment.
(c) 
Notice and public hearing.
The board of adjustment shall hold a public hearing for consideration of the variance or special exception request no later than 45 calendar days after the date the application for action, or an appeal, is filed. Written notice of the public hearing for a variance or special exception shall be provided to all property owners, via U.S. mail, within 200 feet of the affected property at least ten calendar days prior to the public hearing. A courtesy notice shall also be sent to properties located outside the 200 feet but within 500 feet of the property for which the variance is sought. Failure on the part of property owners to receive a notice, whose property is located in excess of 200 feet of the property being the subject of such hearing, shall not invalidate the scheduled public hearing process. Notice shall also be published in the official local newspaper before the 15th calendar day prior to the public hearing.
(d) 
Action by the board of adjustment.
The board of adjustment shall not grant a variance unless it finds, based upon compelling evidence provided by the applicant, that each of the conditions in section 30.02.116 has been satisfied. The board of adjustment may impose such conditions, limitations and safeguards as it deems appropriate upon the granting of any variance or special exception as are necessary to protect the public health, safety, convenience and welfare. Violation of any such condition, limitation or safeguard shall constitute a violation of this chapter.
(e) 
Burden of proof.
The applicant bears the burden of proof in establishing the facts that may justify a variance, a special exception, an appeal, or any other action in his favor by the board of adjustment.
(f) 
Waiting period.
No appeal to the board of adjustment for the same or a related variance or special exception on the same piece of property shall be allowed for a period of six months following an unfavorable ruling by the board unless other property in the immediate vicinity has, within the six-month waiting period, been changed or acted upon by the board or the city council so as to alter the facts and conditions upon which the previous unfavorable board action was based. Such changes of circumstances shall permit the rehearing of a variance or special exception request by the board of adjustment, but such circumstances shall in no way have any force in law to compel the board, after a hearing on the matter, to grant a subsequent variance or special exception request. Any subsequent variance or special exception request shall be considered entirely on its own merits and on the specific circumstances related to the subject property.
(g) 
Timeliness of application for building permit or certificate of occupancy.
Upon a favorable board of adjustment action on a variance or special exception request, the applicant shall apply for a building permit or a certificate of occupancy, as applicable to his particular situation, within three months following the date of board action, unless the board specifies a longer time period in the minutes of its action. If the applicant fails to apply for a building permit or certificate of occupancy, as applicable, within the three-month time frame, then the special exception shall be deemed to have been waived, and all rights thereunder shall be terminated. Such termination and waiver shall be without prejudice to a subsequent appeal, and such subsequent appeal shall be subject to the same regulations and requirements for hearing as herein specified for the original variance or special exception request.
(2006 Code, sec. 86-119; Ordinance 04-05-610, sec. 9.9, adopted 5/17/04; Ordinance 18-01-1075 adopted 1/16/18)
All decisions of the board of adjustment are final and binding. However, any person aggrieved by a decision of the board of adjustment may present a verified petition to a court of record which states that the decision of the board is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition must be presented within ten calendar days after the date the board of adjustment’s decision is filed in the city secretary’s office.
(2006 Code, sec. 86-120; Ordinance 04-05-610, sec. 9.10, adopted 5/17/04)