For the purpose of this subchapter, the following definition
shall apply unless the context clearly indicates or requires a different
meaning.
The Zoning Board of Adjustments.
(Ordinance 2011-27(f) adopted 11/12/15)
There is hereby created a Zoning Board of Adjustments, hereafter
referred to as the ZBA, for the purpose, in appropriate cases and
subject to appropriate conditions and safeguards, to make special
exceptions to the terms of this chapter that are consistent with the
general purpose and intent of this chapter. The ZBA may be composed
of the members of the City Council as authorized by the Tex. Local
Government Code, Ch. 211.008(g).
(Ordinance 2011-27(f) adopted 11/12/15)
(A)
The
Zoning Board of Adjustments may consist of members of the City Council
and shall operate in accordance with the Tex. Local Government Code,
secs. 211.008 through 211.011, as amended. The City Council may also
choose by a simple majority vote to appoint Zoning Board of Adjustments
members.
(B)
Each
person nominated by the City Council to be a ZBA member must be approved
by a simple majority vote of the City Council before being appointed
as a member of the Board.
(Ordinance 2011-27(f) adopted 11/12/15)
If appointed, the ZBA shall consist of five people as well as
two alternates residing within the city. The city shall also appoint
one member of City Council to act as liaison. All members shall, within
90 days after being appointed, complete the open meetings training
and provide a copy of the certificate of completion to the City Secretary.
(Ordinance 2011-27(f) adopted 11/12/15)
All appointments to the ZBA shall serve as a member for a term
of office of two years. Members may be reappointed with no limitation
on the number of terms one member may serve.
(Ordinance 2011-27(f) adopted 11/12/15)
The Zoning Board of Adjustments shall elect a Chairperson, Vice-Chairperson,
and Secretary from among its membership, and each officer shall hold
office until replaced by a simple majority vote of the City Council.
The Secretary of the Zoning Board of Adjustments shall keep minutes
of all meetings held by the Board.
(Ordinance 2011-27(f) adopted 11/12/15)
Any vacancy on the Board shall be filled via appointment by
a simple majority vote of the City Council.
(Ordinance 2011-27(f) adopted 11/12/15)
Members of the Zoning Board of Adjustments may be removed from
office at any time by a simple majority vote of the City Council,
either upon its own motion or upon recommendation of the Zoning Board
of Adjustment. A letter of reprimand shall be issued to the member
after he or she has missed two consecutive meetings stating that missing
one more will be grounds for dismissal. 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. A vote to remove
a ZBA member shall be placed on the appropriate City Council agenda
as a regular item and shall be voted upon accordingly.
(Ordinance 2011-27(f) adopted 11/12/15)
The members of the Board shall regularly attend meetings and
public hearings of the Board, and shall be compensated at a rate set
by City Council. Members shall not serve as an employee of the city
while serving on the Board.
(Ordinance 2011-27(f) adopted 11/12/15)
(A)
Meetings
of the Zoning Board of Adjustments shall be held at the call of the
Chairperson or Secretary and at such other times as the ZBA may determine.
All meetings of the ZBA shall be open to the public.
(B)
When
meeting as the Zoning Board of Adjustments, the ZBA cannot function
as the City Council. Zoning Board of Adjustments hearings must be
separate from City Council hearings.
(Ordinance 2011-27(f) adopted 11/12/15)
(A)
The
Zoning Board of Adjustments shall have the power to make rules, regulations,
and bylaws for its own governance, which shall conform with those
set forth by the City Council, and such rules, regulations, and bylaws
shall be subject to approval by the City Council. Such rules and bylaws
shall include, among other items, provisions for the following:
(B)
The
Board will follow Robert’s Rules of Order, and procedures shall
not be in conflict with the laws applicable to the Board on the following.
(1)
Quorum.
A quorum shall consist of a 75% (four out of
five members) of the membership of the Board, and any issue to be
voted upon shall be resolved by a majority of those members present.
(2)
Voting.
A concurring vote of 75% (four out of five members)
of the members of the ZBA is necessary to decide in favor of the applicant
on a special exception or other matter provided in a zoning ordinance,
grant a variance, or reverse an interpretation or other action by
the administrative official.
(3)
Conflict of interest.
If any member has a conflict of
interest regarding any item on the Board’s agenda, that member
shall remove himself or herself from the room and shall refrain from
voting only on the item for which a conflict exists. Refer to Tex.
Local Government Code, Ch. 171 and any applicable city ethics policies
or regulations.
(Ordinance 2011-27(f) adopted 11/12/15)
(A)
(1)
The Board of Adjustments shall have the authority granted in the
Tex. Local Government Code, secs. 211.008 through 211.011, and those
established herein, to exercise powers and to perform duties including
the following.
(a)
Hear and decide an appeal that alleges error in an order, requirement,
decision, or determination made by a Code Enforcement Official or
designee in the enforcement of this code.
(b)
Authorize, in specific cases, a variance from the terms of this code
if the variance is not contrary to the public interest and, due to
special conditions, a literal enforcement of the code would result
in unnecessary hardship, and so that the spirit of this code is observed
and substantial justice is done.
(c)
In exercising its authority under division (A) above, the Zoning
Board of Adjustments may reverse or affirm, in whole or in part, or
modify the Code Enforcement Official or designee 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 Code Enforcement
Official or designee.
(2)
The concurring vote of at least 75% of the full Zoning Board of Adjustments
is necessary to:
(a)
Reverse an order, requirement, decision, or determination of a Code
Enforcement Official or designee;
(b)
Decide in favor of an applicant on a matter on which the Board is
required to review under this chapter;
(c)
Authorize a variance from the terms of this code; or
(d)
Hear and decide special exceptions to this code.
(B)
The
Zoning Board of Adjustments 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 sec. 154.067.
(C)
The
Zoning Board of Adjustments shall have no power to grant or modify
conditional use permits authorized under sec. 154.040.
(D)
The
Zoning Board of Adjustments shall have no power to grant a zoning
amendment. In the event that a written request for a zoning amendment
is pending before the Planning and Zoning Commission or the City Council,
the Zoning Board of Adjustments shall neither hear nor grant any variances
with respect to the subject property until final disposition of the
zoning amendment. (See Op. Tex. Att’y Gen. No. JM-493 1986.)
(E)
The
Zoning Board of Adjustments 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
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 Zoning Board of Adjustments.
(Ordinance 2011-27(f) adopted 11/12/15)
(A)
Authority.
The Zoning Board of Adjustments may authorize to the owner of
record a variance from these regulations when, in its opinion, undue
hardship will result from requiring strict compliance. 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 herein below 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.
(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 chapter and unless the Zoning Board of Adjustments
finds:
(a)
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 the land;
(b)
The variance is necessary for the preservation and enjoyment of a
substantial property right of the applicant;
(c)
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
(d)
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 chapter.
(2)
Such findings of the Zoning Board of Adjustments, together with the
specific facts upon which such findings are based, shall be incorporated
into the official minutes of the Zoning Board of Adjustments 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 undue hardship.
(1)
In order to grant a variance, the Zoning Board of Adjustments must
make written findings that an undue hardship exists using the following
criteria.
(a)
Literal enforcement of the controls will create an unnecessary hardship
or practical difficulty in the development of the affected property.
(b)
The situation causing the hardship or difficulty is neither self-imposed
nor generally affecting all or most properties in the same zoning
district.
(c)
The relief sought will not injure the permitted use of adjacent conforming
property.
(d)
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 by this chapter 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)
The applicant bears the burden of proof in establishing the facts
that may justify a variance.
(D)
Special
exceptions for nonconforming uses and structures.
Upon
written request of the property owner, the Zoning Board of Adjustments
may grant special exceptions to the provisions of division (B)(1)(c)
above, limited to the following and in accordance with the following
standards:
(1)
Expansion of a nonconforming use within an existing structure, provided
that, in the case of a nonconforming residential use, such expansion
does not increase the number of dwelling units to more than the number
existing when the use first became nonconforming;
(2)
Expansion of the gross floor area of a nonconforming structure, provided
that such expansion does not decrease any existing setback;
(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 finding that
the failure to grant the special exception deprives the property owner
of substantially all use or economic value of the land; and
(4)
In granting special exceptions under division (B)(1)(c) above, the
ZBA 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 conformed to the standards of this chapter.
(Ordinance 2011-27(f) adopted 11/12/15)
(A)
Application
and fee.
An application for a variance by the Zoning
Board of Adjustments shall be made in writing by the owner of record
of said property using forms prescribed by the city and shall be accompanied
by an application fee, a site plan, and such additional information
as may be requested in writing 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 Mayor/City Secretary, Code
Enforcement Official, or his or her designee shall visit the site
where the proposed variance will apply and the surrounding area, and
shall provide a written report of his or her findings to the Zoning
Board of Adjustments. Prior to voting on a variance or other authorized
land use matter, members of the ZBA should not confer with interested
parties or meet with neighborhood opposition members and evaluate
the situation outside the public hearing process. In the state the
law is clear that members of a ZBA act in a quasi-judicial capacity.
Consequently, the ex parte receipt of information or opinions is unfair
and may deprive an applicant of due process.
(C)
Notice
and public hearings.
The Zoning Board of Adjustments
shall hold a public hearing for consideration of the written variance
request no later than 45 days after the date the application for action
or an appeal is filed. Notice of the public hearing shall be provided
to all property owners within 200 feet of the affected property at
least ten days prior to the public hearing and also published in the
official local newspaper at least ten days prior to the public hearing.
Said written notice shall be sent using the last known address as
listed on the most recently approved tax roll and depositing the notice,
with first-class postage paid, in the U.S. mail.
(D)
Action
by the Zoning Board of Adjustments.
The Zoning Board of Adjustments shall not grant a variance unless it finds, based upon evidence, that each of the conditions in sec. 154.067 has been established. The Zoning Board of Adjustments 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 this section.
(E)
Finality
of decisions; judicial review.
All decisions of the Zoning
Board of Adjustments are final and binding. However, any person aggrieved
by a decision of the Zoning Board of Adjustments may present a verified
petition to a court of record which states that the decision of the
Zoning Board of Adjustments is illegal, in whole or in part, and specifying
the grounds of the illegality. Such petition must be presented within
ten days after the date the decision is filed in the City Secretary’s
office. Subject to the provisions of the Tex. Local Government Code,
sec. 211.01, only a court of record may reverse, affirm, or modify
a decision of the Zoning Board of Adjustments.
(Ordinance 2011-27(f) adopted 11/12/15)
Public hearing shall follow the Texas Open Meetings Act (TOMA), Tex. Government Code, Ch. 511 and procedures set forth in sec. 154.085.
(Ordinance 2011-27(f) adopted 11/12/15)
Failure of the applicant or representative to appear before
the ZBA for more than one hearing without an approved delay by the
Mayor/City Secretary or his or her designee shall constitute sufficient
grounds for the ZBA to table or deny the application, unless the city
is notified in writing by the applicant at least 72 hours prior to
the hearing.
(Ordinance 2011-27(f) adopted 11/12/15)
(A)
The
appellant must file with the Zoning Board of Adjustments, 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
60 days after the decision has been rendered. Upon receiving the notice,
the official from whom the appeal is taken shall immediately transmit
to the Zoning Board of Adjustments 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 to the Zoning Board of Adjustments
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 Zoning Board
of Adjustments or a court of record on application, after notice to
the official, if due cause is shown. The appellant party may appear
at the appeal hearing in person or by agent or attorney. The Zoning
Board of Adjustments shall decide the appeal within four weeks after
the written request (notice of appeal) was received, after which time
the written request shall be deemed automatically approved if no formal
action is taken. The Zoning Board of Adjustments 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.
(B)
A
member or members of the Zoning Board of Adjustments may not bring
an appeal on behalf of a property owner other than himself or herself
to the Zoning Board of Adjustments. An appeal must be requested by
the owner of the property being considered.
(Ordinance 2011-27(f) adopted 11/12/15)
