There shall be a Board of Adjustment established and governed
by Chapter 211 Texas Statutes Local Government Code, and consisting
of five members appointed by the Council, each to be appointed for
a term of two years, removable for cause by the appointing authority
upon written charges and after a public hearing. Vacancies shall be
filled for the unexpired term of any member whose term becomes vacant.
The City Council may appoint up to four alternate members to the board
who shall serve in the absence of one or more regular members when
requested to do so by the Mayor. The alternate members shall serve
for the same period as the regular members, and any vacancies shall
be filled in the same manner and shall be subject to removal as the
regular members.
(Ordinance 081115-02 adopted 8/11/15)
11-2.01 Errors.
The board shall have the power to hear and decide
appeals where it is alleged there is an error in any order, requirement,
decision or determination made by a City Official in the enforcement
of this Ordinance.
11-2.02 Special exceptions.
In order to provide for adjustment
in the relative locations of uses and buildings of the same or different
classifications, to promote the usefulness of this Ordinance as an
instrument for the fact finding, interpretation, application and adjustment,
and to supply the necessary elasticity to its efficient operation,
special exceptions are permitted to the terms of this Ordinance. The
following buildings and uses are permitted as special exceptions if
the Board finds that, in its opinion as a matter of fact, such exceptions
will not substantially and/or adversely affect the uses of adjacent
and neighboring property permitted by this Ordinance:
A. A nonconforming
commercial use to extend to the entire lot or a larger portion of
the lot where there is now a commercial use on a portion of the lot.
B. To
waive or reduce the parking requirements in any district whenever
the character or use of the building is such as to make unnecessary
the full provision of parking, or where such regulations would impose
an unreasonable hardship upon the use of the lot.
C. To grant an extension of time for removal of a nonconforming use under Article
7, Nonconforming Uses, Structures, and Parcels; provided such extension will not be adverse to the general welfare.
11-2.03 Variances.
The Board of Adjustment shall have jurisdiction
to hear requests for a variance from the terms of this Ordinance.
The Board of Adjustment shall be authorized to grant a variance from
the terms hereof if, and only if, they find that the strict enforcement
of this Ordinance would create a substantial hardship to the applicant,
by virtue of unique special conditions not generally found within
the City, and that the granting of the Variance would preserve the
spirit and intent of the Ordinance, and would serve the general interests
of the public and the applicant. Variances may be granted only when
in harmony with the general purpose and intent of this Ordinance so
that public health, safety, and welfare may be secured and substantial
justice done. The City shall publish and mail public notice in accordance
with Texas Local Government Code Chapter 211 and hold a public hearing
before the Board of Adjustment rendering a decision on a variance.
A. Standards
for Variance.
Board of Adjustment may grant a variance
when it has been determined:
1. Extraordinary Conditions.
That there are extraordinary
or special conditions affecting the land involved such that strict
application of the provisions of this Ordinance will deprive the applicant
of the reasonable use of their land. For example, a variance might
be justified because of topographic, or other special conditions unique
to the property and development involved, while it would not be justified
due to inconvenience or financial disadvantage.
2. Substantial Detriment.
That the granting of the variance
will not be detrimental to the public health, safety, or welfare,
or injurious to other property in the area, or to the City in administering
this Ordinance.
3. Other Property.
That these conditions do not generally
apply to other property in the vicinity.
4. Applicant's Actions.
That the conditions are not the
result of the applicant's own actions.
5. General Plan.
That the granting of the variance would
not substantially conflict with the Comprehensive Plan and the purposes
of this Ordinance,
6. Utilization.
That because of these conditions, the application
of this Ordinance to the particular piece of property would effectively
prohibit or unreasonably restrict the utilization of the property.
B. Insufficient
Findings.
The following types of possible findings do
not constitute sufficient grounds for granting a variance:
1. That
the property cannot be used for its highest and best use.
2. That
there is a financial or economic hardship.
3. That
there is a self-created hardship by the property owner or his or her
agent.
4. That
the development objectives of the property owner are or shall be frustrated.
C. Attendance
at City Council Meeting.
The Applicant, the Applicant's
Attorney, Engineer or Architect or a duly authorized person must attend
the public hearing.
D. Limitations.
The Board of Adjustment may not grant a variance when the effect
of which would be any of the following:
1. To
allow the establishment of a use not otherwise permitted in the applicable
zoning district.
2. To
increase the density of a use above that permitted by the applicable
district.
3. To
expand a nonconforming residential land use.
4. To
change the zoning district boundaries shown on the Official Zoning
Map.
5. Profitability
Not to Be Considered. The fact that property may be utilized more
profitably should a variance be granted may not be considered grounds
for a variance.
(Ordinance 081115-02 adopted 8/11/15)
11-3.01 Except as provided by Subsection (C), any of the following persons
may appeal to the board of adjustment a decision made by an administrative
official:
A. A person
aggrieved by the decision; or
B. Any
officer, department, board, or bureau of the municipality affected
by the decision.
C. A member
of the governing body of the municipality who serves on the board
of adjustment may not bring an appeal under this section.
11-3.02 Board Action.
In exercising the above powers, the Board
may reverse or affirm wholly or partially, or may modify the order,
requirement, decision or determination appealed from and may make
such order, requirement, decision or determination as ought to be
made, in the interest of the public and the individual affected, and
to that end shall have the powers of the Zoning Administrator or Building
Inspector from whom the appeal is taken. A written finding of facts,
based on testimony and specifying the reason for granting or denying
the variation shall accompany every variation granted or denied by
the Board. The concurring vote of 75 percent of the members of the
Board shall be necessary to reverse any order, requirement, decision
or determination of the Zoning Administrator or Building Inspector,
or to decide in favor of the applicant upon any matter which it is
required to pass under this Ordinance, or to affect any variation
of this Ordinance.
11-3.03 Judicial Review of Board Decision.
Appeals of the Board
of Adjustment's decision must be made within ten (10) days to the
District Court, County Court, or County Court at law and in accordance
with the Texas Local Government Code.
(Ordinance 081115-02 adopted 8/11/15)
After the board has approved a special exception or granted
a variance, the special exception or variance so approved or granted
shall lapse after expiration of one year if no substantial construction
or change of use has taken place in accordance with the plans for
which such special exception or variance was granted, and the provisions
of this Ordinance shall thereafter govern. If an action on the application
is made by the Board of Adjustment or City Council, no further applications
for rezoning on all or part of the subject property may be considered
for a period of twelve (12) months unless a waiver is granted by the
City Council.
(Ordinance 081115-02 adopted 8/11/15)
Before any action shall be taken on any appeal to the Board
necessitating the publication of notices or sending of notices, the
appellant shall deposit with the City Secretary a fee set by the City
Council to cover the cost and expense relative thereto. Fee may be
adjusted annually.
(Ordinance 081115-02 adopted 8/11/15)