Regulatory Reference. The development-related variances referred to in this portion of the GDC are limited to design variation and relief sought from requirements in Chapter 3, and from certain specific requirements cited in Chapter 2 and Chapter 4, of this GDC and which are reflected in Table 5-1, and as may be authorized by Chapter 212 of the Texas Local Government Code, as amended. Special exceptions and zoning variances within the jurisdiction of the Board of Adjustment are governed by the provisions of Chapter 2 of this GDC.
(Ordinance 6773 adopted 5/19/15)
(A)
Purpose.
The purpose of a request for a development variance under this portion of the GDC is to determine whether one or more standards of Chapter 3, and certain specific requirements cited in Chapter 2 and Chapter 4, of this GDC, and which are reflected in Table 5-1, that are applicable to a particular plat or development application should be varied or should not be applied due to a site-related limitation or an operation of State law.
(B)
Applicability.
(Ordinance 6773 adopted 5/19/15)
Action on Related Applications. The development
variance petition shall be decided by the Plan Commission at the same
time as the Plan Commission considers the approval of the associated
plat application. A plat or development application that is presented
for administrative approval must not seek approval of a development
variance, as any such variance request must be resolved prior to administrative
consideration and approval.
(Ordinance 6773 adopted 5/19/15)
(A)
Criteria.
The following considerations shall be made when reviewing a
requested development variance:
(1)
The existence of special circumstances or conditions arising from the physical surroundings, shape, topography, or other features affecting the land, which are intrinsic to the land parcel itself and which are not self-imposed by the applicant, owner or user of the subject land parcel, such that the strict application of the requirements of Chapter 3, or the certain specific requirements cited in Chapter 2 and Chapter 4, of this GDC and reflected in Table 5-1, that may be varied under this Division 4, to the proposed use would create an unnecessary hardship or inequity upon or for the applicant, or would deprive the applicant of the reasonable and beneficial use of the land. Any unnecessary hardship or inequity must be distinguishable from a mere inconvenience or a mere financial burden in developing the land, and does not include a legitimate cost-benefit proportionality inequity which shall be submitted, processed and considered in accordance with Article 1, Division 2 of this Chapter 5;
(2)
The circumstances causing the special conditions described in Section 5.12(A)(1) above do not similarly affect all or most similarly situated properties in the vicinity of the applicant’s/petitioner’s land;
(3)
The
development variance is necessary for the preservation and enjoyment
of a substantial property right of the applicant/petitioner;
(4)
Granting
the development variance will not be detrimental to the public health,
safety, or welfare, and will not be injurious to other property within
the area;
(5)
Granting
the development variance will not have the effect of preventing the
orderly use and enjoyment of other land within the area in accordance
with the provisions of this GDC, and will not be adversely affect
the rights of owners or residents of surrounding property;
(6)
The special circumstances intrinsic to the subject land parcel and the resultant inequity thereof as described in Section 5.12(A)(1) above, is not caused wholly or in substantial part by the applicant/petitioner;
(7)
The
request for a development variance is not based exclusively on the
applicant’s/petitioner’s desire for increased financial
gain from the property, or to reduce an existing financial hardship;
and
(8)
The
degree of variation requested by the development variance is the minimum
amount and extent necessary to satisfactorily meet the needs of the
applicant/petitioner, and to also satisfy the general spirit and intent
of the minimum development standards in this GDC.
(B)
Burden
of Proof.
The applicant/petitioner bears the burden of
proof to demonstrate that the application of a requirement that may
be varied under this Division 4 and that is normally uniformly applied
imposes a disproportionate burden on the applicant/petitioner.
(C)
Decision.
The Plan Commission shall consider the development variance petition contemporaneously with its consideration of the applicable application and, based upon the criteria set forth in Subsection (A) above, shall take one of the following actions:
(D)
Notification
of Decision on Petition.
The applicant/petitioner shall
be notified of the decision on the development variance petition by
adoption of the official minutes of said action by the Plan Commission.
(Ordinance 6773 adopted 5/19/15)
Effect. Following the granting of a development
variance from a requirement(s) in this GDC, the applicant may submit
or continue the processing of a development application in accordance
with the terms or conditions of the development variance which was
granted. The development variance granted shall remain in effect for
the same period that the related application is in effect, and shall
expire upon expiration of the application. Any extension of the related
application shall also result in the extension of the relief granted
on the development variance petition.
(Ordinance 6773 adopted 5/19/15)
