A.
This Section 3.6 is established for the purpose of providing relief from regulations under this Article 3 as authorized in TLGC Section 211.008 where the Zoning Board of Adjustment issues written findings that relief sought meets the criteria specified in this Section 3.6.
B.
The Board of Adjustment (the "Board") is given the power under this
Section 3.6 to hear and decide the following:
2.
Appeal of an administrative decision in which the Responsible
Official is given decision-making authority over a zoning-related
matter;
3.
Special exceptions from one or more requirements of Section
3.6.3, Special Exceptions for Nonconforming Uses and Structures;
4.
Amortization of any use made non-conforming by this UDC.
(Ordinance 475 adopted 6/28/22)
A.
Conditions required for variance.
1.
No variance shall be granted without first having given public
notice and having held a public hearing on the written variance request
in accordance with this section, Section 1.2.4, Section 1.2.5 and
TLGC Section 211.008 and unless the Board finds:
(i)
That there are special circumstances or conditions affecting the land involved such that the strict application of the provisions of this Article 3 would deprive the applicant of the reasonable use of the land; and
(ii)
That the variance is necessary for the preservation
and enjoyment of a substantial property right of the applicant; and
(iii)
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
(iv)
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 Section 3.6.
(v)
Such findings of the Board, together with the specific facts
upon which such findings are based, shall be incorporated into the
official minutes of the meeting at which such variance is granted.
Variances may be granted only when in harmony with the general purpose
and intent of this Section 3.6 so that the public health, safety and
welfare may be secured and that substantial justice may be done.
B.
Findings of undue hardship.
1.
In order to grant a variance, the Board must make written findings
that an undue hardship exists, using the following criteria:
(i)
That literal enforcement of the controls will create an unnecessary
hardship or practical difficulty in the development of the affected
property; and
(ii)
That the situation causing the hardship or difficulty
is neither self-imposed nor generally affecting all or most properties
in the same zoning district; and
(iii)
That the relief sought will not injure the permitted
use of adjacent conforming property; and
(iv)
That the granting of a variance will be in harmony
with the spirit and purpose of these regulations.
2.
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 to other parcels of land in the particular
zoning district. No variance may be granted which results in undue
hardship upon another parcel of land.
3.
In exercising its authority, the Board may consider the following
as grounds to determine whether compliance with the regulation as
applied to a structure that is subject of the request would result
in unnecessary hardship:
(i)
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 Texas
Tax Code section 26.01, as amended;
(ii)
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;
(iii)
Compliance would result in the structure not
being in compliance with a requirement of another municipal ordinance,
building code or other requirement;
(iv)
Compliance would result in the unreasonable encroachment
on an adjacent property or easement; or
(v)
The municipality considers the structure to be a nonconforming
structure.
4.
The applicant bears the burden of proof in establishing the
facts that may justify a variance.
5.
The Board shall not grant a variance unless it finds, based
upon evidence, that each of the conditions listed in subsection 3.6.2
and the findings listed in this subsection B. have been met.
6.
The Board may impose such 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 the UDC.
C.
Finality of decision; judicial review.
1.
The decision of the Board shall be final. However, any of the
following persons may present to a district court, county court, or
county court at law a verified petition stating that the decision
of the Board is illegal in whole or in part and specifying the grounds
of the illegality:
2.
The petition must be presented within ten (10) days after the
date the decision is filed in the Board's office. Subject to the provisions
of TLGC Section 211.011, only a court of record may reverse, affirm,
or modify a decision of the Zoning Board of Adjustment.
(Ordinance 475 adopted 6/28/22)
See subsection 3.4.11.E.2.
(Ordinance 475 adopted 6/28/22)
A.
The appellant must file with the Board and the official from whom
the appeal is taken a written notice of appeal specifying the grounds
for the appeal. The appeal must be filed within twenty (20) calendar
days after the decision has been rendered.
B.
Upon receiving the notice, the official from whom the appeal is taken
shall transmit to the Board 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 that the 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 Board or a court of record on application, after
notice to the official, if due cause is shown.
C.
The Board shall set a reasonable time for the appeal hearing and
shall give public notice of the hearing and due notice to the parties
in interest. A party may appear at the appeal hearing in person or
by agent or attorney.
D.
The Board shall decide the appeal at the next meeting for which notice
can be provided following the hearing and not later than the sixtieth
(60th) calendar day after the date the appeal is filed.
E.
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 may make the correct order, requirement,
decision or determination.
F.
A member of the City Council may not bring an appeal under this section.
A person aggrieved by a decision made by an administrative official,
or any officer, department, board, or bureau of the municipality affected
by the decision may appeal.
G.
Finality of decision; judicial review.
1.
The decision of the Board shall be final. However, any of the
following persons may present to a district court, county court, or
county court at law a verified petition stating that the decision
of the Board is illegal in whole or in part and specifying the grounds
of the illegality:
2.
The petition must be presented within ten (10) days after the
date the decision is filed in the Board's office. Subject to the provisions
of TLGC Section 211.011, only a court of record may reverse, affirm,
or modify a decision of the Zoning Board of Adjustment.
(Ordinance 475 adopted 6/28/22)
A.
The Board may not grant a variance authorizing a use other than those
uses permitted in the same district (see Section 3.3.5, Use Chart).
B.
The Board may not grant or modify any Specific Use Permit.
C.
The Board may not grant a zoning amendment to any property or grant
a variance to a property subject to a zoning amendment until the City
Council approves the zoning amendment (see Section 3.1.8, Amendment
to Zoning Map or Text).
D.
The Board must consider and decide upon any request related to property
that is subject to review of a plat or Subdivision Construction Plan
(see Section 2.3, Platting Requirements and Section 2.4.1, Subdivision
Construction Plans) prior to approval of the plat or construction
plan.
(Ordinance 475 adopted 6/28/22)
