SECTION 3.1.1
FUNCTION
The City
Council shall be designated as the body responsible for the duties
of the City Council. In this role the City Council shall have such
powers and authority as granted by State law, the Code of Ordinances,
and this Zoning Ordinance to initiate, undertake, and decide any matters
pertaining to the regulation of the use and development of land as
identified in this Zoning Ordinance.
(Ordinance 480-14 adopted 11/20/14)
SECTION 3.2.1
CREATED
A.
Authority Granted.
In accordance with LGC section
221.008(g) [211.008(g)] the City Council is authorized to serve as
the Board of Adjustment (BOA). The Board of Adjustment (BOA) shall
have such powers and authority as granted by State law, the Code of
Ordinances, and this Zoning Ordinance to initiate, undertake, and
decide any matters pertaining to the regulation of the use and development
of land as identified in this Zoning Ordinance.
B.
Procedure.
The Mayor shall serve as Chairman of
the BOA and shall preside at all meetings, and may administer oaths
and compel the attendance of witnesses, and shall have the same subpoena
powers as the municipal court. The Mayor Pro-Tem shall assist the
Mayor/Chairman in directing the affairs of the BOA and act in the
absence of the Chairman. The City Secretary shall keep minutes of
the BOA’s proceedings, showing the vote, abstention, or absence
of each member upon each question, and shall keep records of its examinations
and other official actions, all of which shall be maintained in the
office of the City Secretary and which shall be public record.
SECTION 3.2.2
MEETINGS
Meetings
of the Board shall be held at the call of the Chairperson and at such
other times as the Board may determine. All meetings of the Board
shall be open to the public, and minutes shall be kept of all proceedings
at Board meetings. Four (4) members of the Board shall constitute
a quorum for the conduct of business. All cases to be heard by the
Board shall always be heard by at least seventy-five percent (75%)
of the members, which constitutes four (4) members.
SECTION 3.2.3
AUTHORITY OF BOARD OF ADJUSTMENT
A.
The Board shall have the authority, subject to the standards
established in Sections 211.008 through 211.011 of the Texas Local
Government Code, as amended, 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 Ordinance;
2.
Hear and decide special exceptions to the terms of this Ordinance
when the Ordinance requires the Board to do so;
3.
Authorize, in specific cases, a variance from the terms of this
Ordinance if the variance is not contrary to the public interest and
if, due to special conditions, a literal enforcement of the Ordinance
would result in unnecessary hardship, and so that the spirit of this
Ordinance is observed and substantial justice is done; and
4.
Hear and decide other matters authorized by ordinance.
B.
In exercising its authority under Section 3.2.4(A)(1) [3.2.3(A)(1)]
above, 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.
C.
The concurring vote of at least seventy-five percent (75%),
or four (4) members, of the full Board is necessary to:
SECTION 3.2.4
LIMITATIONS ON AUTHORITY
A.
The Board may not grant a variance authorizing a use other than
those permitted in the district for which the variance is sought.
B.
The Board shall have no power to grant or modify Special Exceptions
authorized under this Ordinance, unless provisions for Special Exceptions
have been adopted herein, identifying specific criteria for the Special
Exception.
SECTION 3.2.5
VARIANCES
A.
The Board may authorize a variance from these regulations when,
in its opinion, undue hardship will result from requiring strict compliance
with the terms of this Ordinance. 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 width or depth, or parking
requirements may be granted. 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 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.
Conditions 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 3.2.8 [3.2.7]
of this Ordinance and the Board 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 Ordinance would deprive the applicant of the reasonable use
of his/her 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 Ordinance.
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 Board meeting at which such variance is granted. Variances
may be granted only when in harmony with the general purpose and intent
of this Ordinance so that the public health, safety and welfare may
be secured and that substantial justice may be done.
C.
Findings of Undue Hardship.
In order to grant
a variance, the Board must make findings that an undue 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 the Ordinance.
D.
A variance shall not be granted to relieve a self-created or
[sic] 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 Ordinance on other parcels of
land in the particular zoning district. No variance may be granted
which results in undue hardship upon another parcel of land.
E.
The Board shall have no authority to change any provisions of
this Ordinance and its jurisdiction is limited to hardship and borderline
cases which may arise from time to time. The Board may not change
the district designation of any land either to a more restrictive
or less restrictive zone.
SECTION 3.2.6
APPEALS TO THE BOARD OF ADJUSTMENT
A.
Authority.
In addition to the authorization of
variances from the terms of this Ordinance, the Board 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 Ordinance, or other provision of the Code
of Ordinance where authorized. The Board 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.
C.
Procedure for Appeal.
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 Notice
of Appeal shall be filed within fifteen (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
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 may hold an expedited hearing in the event the
official, from whom the appeal is taken, certifies in writing to the
Board 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 shall decide the appeal within thirty (30) calendar days
after the written appeal request was received. 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.
SECTION 3.2.7
PROCEDURES
A.
Application and Fee.
An application for a variance,
special exception or appeal by the Board 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,
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/her 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/her findings to the Board.
C.
Notice and Public Hearing.
The Board shall hold
a public hearing for consideration of the variance within a reasonable
time after the date the application for action, or an appeal, is filed.
Written notice of the public hearing for a variance shall be provided
to all property owners, via U.S. mail, within two hundred feet (200')
of the affected property at least ten (10) calendar days prior to
the public hearing. Notice shall also be published in the official
local newspaper before the fifteenth (15th) calendar day prior to
the public hearing.
D.
Action by the Board of Adjustment.
The Board shall
not grant a variance unless it finds, based upon compelling evidence
provided by the applicant, that each of the conditions in Section
3.2.6 [3.2.5] has been satisfied. The Board 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 Ordinance.
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/her favor
by the Board.
F.
Waiting Period.
No appeal to the Board for the
same or a related variance or special exception on the same piece
of property shall be allowed for a period of six (6) 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, 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.
SECTION 3.2.8
FINALITY OF DECISIONS; JUDICIAL
REVIEW
All decisions of the Board are final and binding.
However, any person aggrieved by a decision of the Board 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 (10)
calendar days after the date the Board’s decision is filed in
the City Secretary’s office. The Board’s decision shall
be deemed filed in the office of the Board on the first (1st) business
day following the date on which action was taken by the Board.
(Ordinance 480-14 adopted 11/20/14)
