INTENT OF PROVISIONS:

Within the districts established by this Ordinance there may exist lots, structures, uses of land and structures, and characteristics of use which were lawfully in existence and operating before this Ordinance was enacted, amended or otherwise made applicable to such lots, structures or uses, but which do not conform to the regulations of the district in which they are located. It is the intent of this Ordinance to permit such nonconforming uses to continue, as long as the conditions within this Ordinance are met.

It is further the intent of this Ordinance that nonconforming uses shall not be enlarged upon, expanded or extended, and shall not be used as a basis for adding other structures or uses unless provided for in this Ordinance.

NONCONFORMING STATUS:

Any use, platted lot, or structure which does not conform with the regulations of the zoning district in which it is located shall be deemed a nonconforming use, platted lot, or structure when:

Such use, platted lot, or structure was in existence and lawfully operating as of the effective date of this Ordinance, and has since been in regular and continuous use; or

Such use, platted lot, or structure was in existence and lawfully operating as of the effective date of any amendment to this Ordinance, but by such amendment is placed in a district wherein such use, platted lot, or structure is no longer permitted, and has since been in regular and continuous use; or

Such use, platted lot, or structure was in existence and lawfully operating at the time of annexation into the City and has since been in regular and continuous use.

7.3

CONTINUING LAWFUL USE OF PROPERTY AND EXISTENCE OF STRUCTURES:

The lawful use of land or lawful existence of structures as of the effective date of this Ordinance, although such do not conform to the provisions hereof, may be continued; but if said nonconforming use or structure is discontinued or abandoned, as these terms are defined in Subsection B below, any future use of said premises shall be in conformity with the provisions of this Ordinance.

“Discontinuance” of a nonconforming use shall be defined as the actual act or date that the use is discontinued (i.e., ceases to operate on the subject property). “Abandonment” of a nonconforming use or structure shall be defined as the actual act or date of abandonment as described in Subsection C.

When a nonconforming use or structure which does not meet the standards in this Ordinance ceases to be used in such manner as stated in Subsection B above for a time period of six (6) months or longer, such use shall not be resumed and proof of such event shall constitute prima facie evidence of an act of abandonment, except as allowed in Subsection 7.5(E). Any nonconforming use which does not involve a permanent type of structure or operation and which is moved from the premises shall be considered to have been abandoned.

No nonconforming use or structure may be expanded, re-occupied with another nonconforming use, or increased following the effective date of this Ordinance except as provided in Section 7.5.

Conforming single-family residential uses on platted lots which were approved prior to the effective date of this Ordinance, which may now be nonconforming due to stricter standards, shall be deemed in conformance with this Ordinance as long as the use of the lot is allowed in the respective district. Only the lot size, depth, setbacks and width shall be allowed to be less than the regulations prescribed in the zoning district in which it is located. All other regulations of this Ordinance shall be met or the lot shall be considered nonconforming.

Any existing vacant lot platted prior to the effective date of this Ordinance, which was legally conforming, shall be deemed a conforming lot.

7.4

CHANGING NONCONFORMING USES:

Any nonconforming use may be changed to a conforming use, and once such change is made, the use shall not be changed back to a nonconforming use.

Where a conforming use is located in a nonconforming structure, the use may be changed to another conforming use by the process outlined in Section 7.5 below.

A nonconforming use may not be changed to another nonconforming use.

7.5

EXPANSION OF NONCONFORMING USES AND BUILDINGS:

An expansion of a nonconforming use or structure is allowed in accordance with the following:

A nonconforming use located within a building may be extended throughout the existing building, provided that;

No structural alteration (except as provided in Subsection E below [sic]) may be made on or in the building except those required by law to preserve such building in a safe and structurally sound condition.

The number of dwelling units or rooms in a nonconforming residential use shall not be increased so as to exceed the number of dwelling units or rooms existing at the time said use became a nonconforming use.

No nonconforming use within a building may be extended to occupy any land outside the building.

No nonconforming use of land or building shall be enlarged, increased, or extended to occupy a greater area of land than was occupied at the time the land became a nonconforming use, except to provide off-street loading or off-street parking space.

The minimum residential lot areas for the various zoning districts shall be in accordance with their respective districts, except that a lot having less area than herein required which was an official “lot of record” prior to the effective date of this Ordinance, may be used for a single-family dwelling.

Buildings or structures which have been vacant or abandoned for more than six (6) months and do not meet the current area regulations or development standards shall be allowed to be re-occupied by a conforming use if Subsection E above [sic] is followed.

A nonconforming use may be required to provide screening such that its operations (or some portion of its operations/facility) are not visible from the street or surrounding property, may be required to eliminate any nuisance factor caused by the nonconforming use, or the nonconforming use may be eliminated itself if it is deemed detrimental or hazardous to the health, safety or welfare of nearby residents or other citizens. The Planning and Zoning Commission may, following notice and public hearing, review any of the above situations and may make an appropriate recommendation (i.e., to provide screening, to eliminate a nuisance factor, or to eliminate the nonconforming use itself) to City Council. The City Council may, after appropriate notice and public hearing, make a final ruling on any of the above situations. Any unfavorable recommendation by the Planning and Zoning Commission may be appealed to City Council, whereupon a three-quarters (3/4) vote of the Council will be required to reverse the Planning and Zoning Commission’s recommendation.

7.6

RESTORATION OF NONCONFORMING STRUCTURE:

If a structure occupied by a nonconforming use is destroyed by fire, the elements, or some other cause, it may not be rebuilt except to conform to the provisions of this Ordinance. In the case of partial destruction of a nonconforming structure which does not exceed fifty percent (50%) of its total appraised value as determined by the Gregg County Appraisal District, reconstruction will be permitted, but the previously existing square footage of the structure and/or the function of the nonconforming use cannot be expanded.

7.7

COMPLETION OF STRUCTURES:

Nothing herein contained shall require any change in the plans, construction or designated use of:

1.	A building or structure for which a building permit has been issued or a site plan approved, which has not expired prior to the effective date of this Ordinance;[.]

7.8

MINOR MODIFICATIONS:

The City Manager or his or her designee may approve encroachments of a principal building into any required setback up to a maximum of ten percent (10%) of the applicable required setback, provided that:

(A)

The request involves encroachment into two or fewer required setbacks per lot; and

(B)

The encroachment is a result of a construction error by the property owner or a person acting on his or her behalf whether discovered during the construction process or afterwards; or special circumstances or conditions exist (e.g., narrowness, exceptional topographic conditions, or the shape of the property) that are not common to other areas or buildings that are similarly situated and practical difficulty may result from strict compliance with this Ordinance’s standards, provided that the requested encroachment will not have the effect of nullifying or impairing the intent and purposes of either the specific standards, this Ordinance, or the Comprehensive Plan; and

(C)

The encroachment cannot be corrected without substantial hardship and expense to the property owner; and

(D)

The encroachment, if approved, will not substantially interfere with the convenient and enjoyable use of adjacent properties and will not pose any substantial danger to the public health and safety.

§ 8 PLANNING AND ZONING COMMISSION.

8.1

GENERAL:

The Planning and Zoning Commission (also referred to as the “Commission”) shall function according to the following criteria which establish membership, operating procedures, and the powers and duties of the Planning and Zoning Commission.

8.2

CREATED; MEMBERSHIP; OFFICERS; RULES & BYLAWS:

There is created, in accordance with Chapter 211 of the Texas Local Government Code, and established by Ordinance of the City of Clarksville City, the “Planning and Zoning Commission,” hereafter sometimes referred to as the “Commission,” which shall consist of the City Council of the City of Clarksville City plus the Mayor, who will be the presiding officer of the Commission.

8.3

PARLIAMENTARY PROCEDURE; QUORUM; VOTING:

The Commission will follow the parliamentary procedure adopted by City Council for all boards and commissions, and procedures shall not be in conflict with the laws applicable to the Commission on the following:

Quorum-

A quorum shall consist of a majority of the membership of the Commission (or three members) and any issue to be voted upon shall be resolved by a majority of those members present.

Voting-

All Commission members, including the presiding Chairperson, shall be entitled to one vote each upon any question, a quorum being present.

Conflict of Interest-

If any member has a conflict of interest regarding any item on the Commission’s agenda, he/she shall remove himself/herself from the room and shall refrain from voting only on the item for which a conflict exists. A member has a conflict of interest with regards to an item on the Commission’s agenda if the member has a substantial interest in a business entity or in real estate, as defined by Section 171.002 of the Local Government Code, which is involved as a participant in or subject of that agenda item.

8.4

MEETINGS; PUBLIC RECORD:

The Planning and Zoning Commission shall meet in the Council Chamber in City Hall or in some other specified location as may be designated by the presiding Chairperson, and at such intervals as may be necessary to orderly and properly transact the business of the Commission but not less than once each month.

Meetings shall be open to the public, and minutes shall be kept and shall be treated as public record.

8.5

ESTABLISHING EXTRATERRITORIAL JURISDICTION:

Statutes of the State of Texas authorizing and empowering cities to regulate the platting and recording of subdivisions or additions within the City’s corporate limits and establishing extraterritorial jurisdiction are hereby adopted, and the Commission, acting through its duly authorized officials, shall have all the rights, powers, privileges and authority authorized and granted by and through said statutes pertaining to regulation of subdivisions and extraterritorial powers.

8.6

POWERS AND DUTIES:

The Commission shall have all the rights, powers, privileges and authority authorized and granted by and through the Statutes of the State of Texas authorizing and granting cities the power of zoning as found in Chapter 211 of the Texas Local Government Code, as amended.

In general, the Planning and Zoning Commission shall be an advisory body and adjunct to the City Council, and shall make recommendations regarding amendments to the Comprehensive Plan, changes of zoning and zoning to be given to newly annexed areas, and shall make recommendations regarding the approval of plats of subdivisions as may be submitted to it for review and other planning-related matters. The Planning and Zoning Commission shall conduct an annual review of the City’s Comprehensive Plan and shall be prepared to make recommendations to the City Council as deemed necessary to keep the City’s Comprehensive Plan current with changing conditions and trends and with the planning needs of the City. The Planning and Zoning Commission shall also serve in an advisory capacity on any planning-related item(s) in the City.

8.7

PROCEDURE ON ZONING HEARINGS:

The procedure and process for zoning changes/amendments shall be in accordance with Section 9 of this Ordinance.

8.8

JOINT MEETINGS WITH CITY COUNCIL:

Whenever the City Council and the Planning and Zoning Commission are required by the laws of the State of Texas to conduct public hearings in matters pertaining to planning, zoning and/or subdividing property, and at other times when it is in the best interest of the City to do so, the City Council and the Planning and Zoning Commission are hereby authorized, after published notice as required by law, to hold joint meetings and to conduct joint public hearings, provided that the City Council shall not take action on any matter heard until it has received the recommendation of the Planning and Zoning Commission.

§ 9 CHANGES AND AMENDMENTS TO ZONING ORDINANCES AND DISTRICTS, AND ADMINISTRATIVE PROCEDURES.

9.1

DECLARATION OF POLICY AND REVIEW CRITERIA:

The City declares the enactment of these regulations governing the use and development of land, buildings, and structures as a measure necessary to the orderly development of the community. Therefore, no change shall be made in these regulations or in the boundaries of the zoning districts except:

To correct any error in the regulations or map;

To recognize changed or changing conditions or circumstances in a particular locality;

To recognize changes in technology, the style of living, or manner of conducting business; or

To change the property to uses in accordance with the approved Comprehensive Plan.

In making a determination regarding a requested zoning change, the Planning and Zoning Commission and City Council shall consider the following factors:

Whether the uses permitted by the proposed change will be appropriate in the immediate area concerned and their relationship to the general area and the City as a whole:

Whether the proposed change is in accord with any existing or proposed plans for providing public schools, streets, water supply, sanitary sewers, and other utilities to the area, and shall note the findings:

The amount of vacant land currently classified for similar development in the vicinity and elsewhere in the City, and any special circumstances which may make a substantial part of such vacant land unavailable for development;

The recent rate at which land is being developed in the same zoning classification as the request, particularly in the vicinity of the proposed change;

How other areas designated for similar development will be, or are unlikely to be, affected if the proposed amendment is approved; and

Any other factors which will substantially affect the public health, safety, morals, or general welfare.

9.2

AUTHORITY TO AMEND ORDINANCE:

The City Council may from time to time after receiving a final report thereon by the Planning and Zoning Commission and after public hearings required by law, amend, supplement, or change the regulations herein provided or the boundaries of the zoning districts specified on the Zoning District Map. Any Ordinance regulations or zoning district boundary amendment may be ordered for consideration by the City Council, be initiated by the Planning and Zoning Commission, or be requested by the owner of real property, or the authorized representative of an owner of real property.

Consideration for a change in any district boundary line or special zoning regulation may be initiated only by the property owner or his/her authorized agent (proof of such authorization must be submitted with the zoning application, per Section 9.3), or by the Planning and Zoning Commission or City Council on its own motion when it finds that public benefit will be derived from consideration of such matter. In the event the ownership stated on an application and that shown in City records are different, the applicant shall submit proof of ownership and/or verification that he/she is acting as an authorized agent for the property owner.

9.3

APPLICATION:

Each application for zoning or for an amendment or change to the existing provisions of this Zoning Ordinance shall be made in writing on an application form available at the City, filed with the City, and shall be accompanied by payment of the appropriate fee as established by the City of Clarksville City. The application shall also be accompanied by additional information/materials (i.e., plans, maps, exhibits, legal description of property, information about proposed uses, etc.) as deemed necessary by the City Manager, or his/her designee, in order to ensure that the request is understood.

9.4

PUBLIC HEARING AND NOTICE:

For zoning/rezoning requests involving real property, the Planning and Zoning Commission shall hold at least one public hearing on each zoning application, as per applicable State law (Texas Local Government Code Chapter 211, as may be amended). For proposed changes to zoning district boundaries (including rezoning requests), written notice of the public hearing to occur before the Planning and Zoning Commission shall be sent to each owner of property, as indicated by the most recently approved City tax roll, that is located within the area of application and within two hundred feet (200') of the property on which the change in classification is proposed and which is located within the City Limits. Said written notice shall be sent not less than ten (10) days before such hearing is held. Such notice may be served by using the last known address as listed on the most recently approved tax roll and depositing the notice, postage paid, in the United States mail.

For requests involving proposed changes to the text of the Zoning Ordinance, notice of the Planning and Zoning Commission hearing shall be accomplished by publishing the purpose, time and place of the public hearing in the official newspaper of the City before the fifteenth (15th) day prior to the date of the public hearing. Changes in the Ordinance text which do not change zoning district boundaries (i.e., which do not involve specific real property) do not require written notification to individual property owners.

The City may, at its option, establish additional rules and procedures for public notification of proposed zoning changes and/or development proposals (e.g., site plans, plats, etc.) which may include, but not be limited to, the posting of a sign(s) on any property that is proposed for a zoning change and/or development by the applicant or its agent(s). Adherence to such rules and procedures, if so established by the City, shall be the responsibility of the applicant and shall be required as part of a zoning change and/or development application.

9.5

FAILURE TO APPEAR:

Failure of the applicant or his/her representative to appear before the Planning and Zoning Commission or City Council for more than one hearing without an approved delay by the City Manager, or his/her designee, shall constitute sufficient grounds for the Planning and Zoning Commission or the City Council to table or deny the application unless the City is notified in writing by the applicant at least seventy-two (72) hours prior to the hearing.

9.6

PLANNING & ZONING COMMISSION CONSIDERATION AND RECOMMENDATION:

The Planning and Zoning Commission shall function in accordance with Section 9 of this Ordinance and with applicable provisions in the City’s Code of Ordinances.

The Commission shall hold a public hearing on a zoning/rezoning request (including a proposed text amendment to the Zoning Ordinance). After all public input has been received and the public hearing closed, the Commission shall make its recommendations on the proposed zoning request stating its findings, its overall evaluation of the request, and its assessment regarding how the request relates to the City’s Comprehensive Plan. The Planning and Zoning Commission may, on its own motion or at the applicant’s request, defer its decision/ recommendations (i.e., table the request) for not more than ninety (90) days from the time the public hearing was first opened, or until it has had an opportunity to consider other information or proposed modifications to the request which may have a direct bearing thereon. If the Commission elects to table the request, such tabling shall specifically state the time period of the tabling (i.e., cite the meeting date whereon the request will reappear on the Commission’s agenda).

When the Commission is ready to act upon the zoning request, it may recommend approval of the request as it was submitted by the applicant, approval of the request subject to certain conditions, or disapproval of the request. If the Commission’s recommendation is to approve the request (either as submitted or with additional conditions), then the request will be automatically forwarded to the City Council for a second public hearing thereon (see Section 9.7).

If the Planning and Zoning Commission recommends denial of the zoning change request, it shall provide reasons to the applicant for the denial, if requested by the applicant. The Planning and Zoning Chairperson shall inform the applicant of the right to receive reasons for the denial.

9.7

CITY COUNCIL CONSIDERATION:

Applications Forwarded from the Planning and Zoning Commission to City Council-

Every application or proposal which is heard by the Planning and Zoning Commission shall be automatically forwarded to the City Council for setting and holding of public hearing thereon. An application which is recommended by the Planning and Zoning Commission for approval shall be forwarded to City Council along with the Commission’s favorable recommendation. An application which is recommended by the Planning and Zoning Commission for denial shall be forwarded to City Council along with the Commission’s reasons for denial.

City Council Action on Zoning/Rezoning or Text Amendment Requests-

After a public hearing is held before City Council regarding the zoning application, the City Council may approve the request in whole or in part, deny the request in whole or in part, table the application to a future meeting, or it may refer the application back to the Planning and Zoning Commission for further study.

If the City Council approves the request, then Subsection 9.7.E would apply.

If the City Council denies the request, then no other zoning application may be filed for all or part of the subject tract of land (or for that portion of the Zoning Ordinance, in the case of a text amendment request submitted by a property owner or citizen) for a waiting period of one (1) year following the denial.

The City Council may, at its option, waive the one-year waiting period if, after due consideration of the matter at a scheduled and posted meeting, it is determined that denial of the request was based upon erroneous or omitted information, or if substantial new information pertaining to the request is submitted.

City Council Hearing and Notice for Zoning Changes-

Notice of the City Council public hearing for zoning/rezoning and for Zoning Ordinance text amendment requests shall be given by publishing the purpose, time and place of such hearing in the official newspaper of the City before the fifteenth (15th) day prior to the date of the public hearing.

Three-Fourths Vote-

A favorable vote of three fourths (3/4) of all members of the City Council shall be required to approve any change in zoning when written objections are received from twenty percent (20%) of the area of the adjacent landowners which comply with the provisions of Section 211.006(d) of the Texas Local Government Code (commonly referred to as the “twenty percent (20%) rule”). If a protest against such proposed amendment, supplement or change has been filed with the City Secretary duly signed and acknowledged by the owners of twenty percent (20%) or more, either of the area of the lots or land included in such a proposed change or those immediately adjacent to the area thereof extending two hundred feet (200') therefrom or of those directly opposite thereto extending two hundred feet (200') from the street frontage of such opposite lots, such amendments shall not become effective except by a three-fourths (3/4) vote of the City Council. All lots or land within the two hundred feet (200') area must be within the City Limits to be calculated as part of the 20% rule.

Final Approval and Ordinance Adoption-

Upon approval of the zoning request by the City Council, the applicant shall submit all related material with revisions, if necessary, to the City for the preparation of the amending ordinance. A metes and bounds description of all property, a survey (i.e., drawing) exhibit, and other appropriate exhibits that are determined necessary by the City Manager, or his/her designee, must be submitted with the zoning change request application. The zoning request shall be deemed approved at the time the City Council makes a decision to approve the request as submitted or with certain conditions. However, the amending ordinance will not be prepared or formally adopted (i.e., effective) until a correct description and all required exhibits have been submitted to the City Manager, or his/her designee.

§ 10 ZONING BOARD OF ADJUSTMENTS (ZBA).

10.1

CREATION:

There is hereby created a Zoning Board of Adjustments (Zoning Board of Adjustments), hereafter referred to as the “Board,” for the purpose, in appropriate cases and subject to appropriate conditions and safeguards, to make special exceptions to the terms of this Ordinance that are consistent with the general purpose and intent of this Ordinance. The Board shall be composed of members who are resident citizens, taxpayers and qualified voters of the City of Clarksville.

10.2

MEMBERS; TERMS OF OFFICE:

The Zoning Board of Adjustment shall consist of five (5) regular members, who shall be appointed by a simple majority vote of the City Council, in accordance with Sections 211.008 through 211.011 of the Texas Local Government Code, as amended.

Two (2) alternate members may be appointed by the City Council, and they shall act and serve as members of the Board when a regular member(s) is absent or is otherwise unable to serve. The alternate member who shall serve at a particular meeting of the Board shall be on an alternating basis such that both alternates have equal opportunities to serve. An alternate member shall serve as a regular member of the Board when requested by the City Manager his or her designee.

Regular Board members and alternate members shall serve for terms of two (2) years, and expiration of terms shall be staggered so that an overlapping of terms occurs (for example, in any two-year period, the terms of two regular members and one alternate member shall expire during one of those years, and the terms of three regular members and one alternate member shall expire during the second year).

Any vacancy(s) on the Board (both regular members and alternate members) shall be filled for the unexpired term(s) via appointment by a simple majority vote of the City Council for the remainder of the term(s).

Members of the Board may be removed from office for cause, and after a public hearing, by a simple majority vote of the full City Council. Failure to attend three (3) 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.

The members of the Board (and alternate members, as needed) shall regularly attend meetings and public hearings of the Board, shall serve without compensation, and shall not hold any other office or position with the City while serving on the Board.

The Board shall elect a Chairperson and a Vice-Chairperson from among its membership, and each officer shall hold office for one (1) year or until replaced by a simple majority vote of the full Board. The City Manager’s designee shall serve as Secretary to the Zoning Board of Adjustments, and shall keep minutes of all meetings held by the Board.

The Board shall have the power to make the rules, regulations and bylaws for its own government, which shall conform as nearly as possible with those governing the City Council, and the rules, regulations and bylaws shall be subject to approval by City Council.

10.3

MEETINGS:

Meetings of the Zoning Board of Adjustments 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. 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.

10.4

AUTHORITY OF BOARD:

The Board of Adjustment shall have the authority, subject to the standards established in Sections 211.008 through 211.011 of the Texas Local Government Code and those established herein, to exercise powers and to perform duties including the following:

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; and

Authorize, in specific cases, a variance (see Section 10.6) from the terms of this Ordinance if the variance is not contrary to the public interest and, 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.

In exercising its authority under Subsection A 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.

The concurring vote of at least seventy-five percent (75%), or four (4) members, of the full Board is necessary to:

Reverse an order, requirement, decision or determination of an administrative official;

Decide in favor of an applicant on a matter on which the Board is required to review under this Zoning Ordinance;

Authorize a variance from the terms of this Zoning Ordinance; or

Grant special exceptions, as permitted by Section 10.6.

10.5

LIMITATIONS ON AUTHORITY OF BOARD:

The Board 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 Section 10.7.

The Board shall have no power to grant, authorize or modify special uses (i.e., any use not permitted in a zoning district in Section 26 of these regulations).

The Board shall have no power to grant a zoning amendment. In the event that a request for a zoning amendment is pending before the Planning and Zoning Commission or the City Council, the Board shall neither hear nor grant any variances with respect to the subject property until final disposition of the zoning amendment.

The Board shall not grant a variance for any parcel of property or portion thereof upon which a site plan, preliminary plat or final plat, where required, is pending on the agenda of the Planning and Zoning Commission and, where applicable, by the City Council. All administrative remedies available to the applicant shall have been exhausted prior to hearing by the Zoning Board of Adjustments.

10.6

VARIANCES:

The Zoning Board of Adjustment may authorize 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 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.

Conditions Required for Variance-

No variance shall be granted without first having given public notice and having held a public hearing on the variance request in accordance with Section 10.8 of this Ordinance and unless the Zoning Board of Adjustments finds:

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; and

That the variance is necessary for the preservation and enjoyment of a substantial property right of the applicant; and

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

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 Ordinance.

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 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.

Findings of Undue Hardship-

In order to grant a variance, the Board must make written findings that an undue hardship exists, using the following criteria:

That literal enforcement of the controls will create an unnecessary hardship or practical difficulty in the development of the affected property; and

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

That the relief sought will not injure the permitted use of adjacent conforming property; and

That the granting of a variance will be in harmony with the spirit and purpose of these regulations.

A variance or special exception 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 in developing a parcel of land not permitted by this Ordinance to other parcels of land in the particular zoning district. No variance or special exception may be granted which results in undue hardship upon another parcel of land.

The applicant bears the burden of proof in establishing the facts that may justify a variance or special exception.

10.7

APPEALS TO THE ZONING BOARD OF ADJUSTMENTS:

Authority-

In addition to the authorization of variances from the terms of this Ordinance, the Zoning Board of Adjustments 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. The Zoning Board of Adjustments 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 Zoning Board of Adjustments has the same authority as the administrative official. The Zoning Board of Adjustments may also hear and decide other matters authorized by the Subdivision Ordinance and other ordinances regarding land use/development regulations.

Who May Appeal-

Any of the following persons may appeal to the Zoning Board of Adjustments a decision made by an administrative official:

A person directly aggrieved by the decision; or

Any officer, department, board or office of the municipality affected by the decision.

Procedure for Appeal-

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 forty-five (45) 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 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 Board shall decide the appeal within forty-five (45) calendar days after the written request (i.e., notice of appeal) was received, after which time the request shall be deemed automatically approved if no formal action is taken. 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.

10.8

PROCEDURES:

Application and Fee-

An application for a variance by the Zoning Board of Adjustments shall be made in writing using forms prescribed by the Board, and shall be accompanied by an application fee, a site plan and/or 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/or other similar documents.

Review and Report by the City-

The City Manager or his or her designee, or his/her designee [sic], shall visit the site where the proposed variance will apply and the surrounding area, and shall report his/her findings to the Zoning Board of Adjustments.

Notice and Public Hearing-

The Zoning Board of Adjustments shall hold a public hearing for consideration of the variance request no later than forty-five (45) days after the date the application for action, or an appeal, is filed. Public notice of all ZBA hearings shall be posted according to the Texas Open Meetings Act.

Action by the Zoning Board of Adjustments-

The Zoning Board of Adjustments shall not grant a variance unless it finds, based upon compelling evidence, that each of the conditions in Section 9.6 [Section 10.6] 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 Ordinance.

10.9

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 Board is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition must be presented within ten (10) days after the date the decision is filed in the City Secretary’s office. Subject to the provisions of Chapter 211.011 of the Texas Local Government Code, only a court of record may reverse, affirm or modify a decision of the Zoning Board of Adjustments.

§ 11 CERTIFICATES OF OCCUPANCY AND COMPLIANCE.

11.1

Certificates of Occupancy shall be required for any of the following and are also subject to Section 14-198 [sic] of the City of Clarksville City Code of Ordinances:

Occupancy and use of a building hereafter erected or structurally altered (including minor renovation/rehabilitation of residential structures, as described in Subsection 11.4 below [sic]);

Change in use of an existing building to a use of a different classification;

Change in the use of land to a use of a different classification; and/or

Change in occupancy of any building or structure.

No such use, or change of use, shall take place until a Certificate of Occupancy therefor shall have been issued by the Building Inspector or his/her designee.

§ 12 SITE PLAN APPROVAL PROCESS.

12.1

PURPOSE:

The purpose of these provisions is to promote harmonious functional relationships among the various elements within any development such as the location of activities, vehicular and pedestrian circulation systems, and visual form; to ensure physical, social and economic compatibility with neighboring developments and conditions, as well as with the community at large; and to prevent detrimental impact to the natural environment on- and off-site by providing for review and evaluation by the Planning and Zoning Commission of site plans for all developments of the types listed below. Although certain minimum standards are set forth in this Ordinance, such review will permit maximum flexibility in evaluating each plan on its own merits, and will encourage variety and innovation while also ensuring privacy and safety on all levels.

12.2

SITE PLAN REVIEW REQUIRED:

All development projects described in Subsection 12.3 below which involve any new development or construction shall be required to have site plan approval from the Planning and Zoning Commission. Final Planning and Zoning Commission approval of site plans must be achieved prior to issuance of any building or construction permit.

12.3

USES REQUIRING SITE PLAN REVIEW AND APPROVAL:

The site plan approval provisions contained herein shall apply to the following zoning districts and uses:

All multi-family residential districts and uses with proposed developments of two (2) or more dwelling units;

All manufactured home districts and mobile home parks; and

All nonresidential districts and uses having one (1) or more acre of land area, and/or twenty thousand (20,000) square feet of building (i.e., floor) area.

12.4

CONSIDERATIONS OF PLANNING AND ZONING COMMISSION IN SITE PLAN REVIEW:

The Planning and Zoning Commission shall consider the following when reviewing site plans:

General character and compatibility - That is, the Planning and Zoning Commission shall determine that the proposed development is compatible or in agreement (internally or with surrounding areas) in terms of housing types, yard depths, ground coverage, tree cover, surface drainage and density (in residential developments), and will result in the least possible detrimental impact to the site and surrounding areas and will be designed so as not to cause substantial depreciation of property values, or reduce the safety, light or general convenience of neighboring developments.

Ingress to and egress from the property and internal circulation, including access of service and emergency vehicles and design of off-street parking and loading areas.

The location and arrangement of all buildings and structures with regard to setback requirements and special consideration given to aspects such as visual form, sociability, and personal safety with regard to police and fire protection.

Environmental aspects with regard to sedimentation, drainage and flood control and preservation of natural greenery on the site.

Utilities, with regard to availability and suitability for the use intended, and consideration of hook-in(s) and service location(s), including fire hydrants.

Screening, buffering and landscaping with regard to the type and dimensions; to preserve the character of surrounding areas; and to provide privacy for the subject site.

Recreation and open space, with attention to the location, size and development of the areas with regard to their usability, adequacy and their relationship to community-wide open spaces and recreation facilities (for residential developments).

12.5

SITE PLAN REVIEW PROCEDURES:

The following process shall be utilized to obtain approval for site plans:

Pre-Site Plan Review Conference-

The applicant for site plan review shall meet with the Building Inspector to discuss basic site plan procedures and requirements to consider the elements of the site in question, and to proposed development of the site.

Administrative Processing:

Building Inspector Review-

Following the pre-site plan review conference, a site plan may be submitted to the Building Inspector. The applicant shall submit five (5) copies of the materials as indicated in Subsection 12.6.

The materials shall be distributed to various departments or offices for review and comment relative to each department’s of [or] office’s area of specialty or concern. The comments and recommendations from each department or office will be collected and compiled by the Building Inspector, and the site plan with all City comments and recommendations will be presented to the Planning and Zoning Commission for their consideration.

Planning and Zoning Commission Review and Consideration-

The Planning and Zoning Commission shall consider the site plan and shall determine whether it meets the intent of this Ordinance. The Planning and Zoning Commission shall have forty-five (45) days after receiving the site plan in which to review and to take action upon the site plan. If, at the end of the forty-five (45) day review period, the Planning and Zoning Commission shall be unable to give approval to the site plan, then the applicant may request (in writing, in the form of an appeal) that the City Council review the site plan for which approval has not been granted by the Planning and Zoning Commission.

Said written request shall also contain the Planning and Zoning Commission’s reasons for not granting approval. The City Council shall then review the decision (or lack of approval) of the Planning and Zoning Commission, and shall take action on the request by approving the site plan, by approving the site plan with conditions, or by disapproving the site plan.

Building Permit Procedures-

Site plan approval, as granted by the Planning and Zoning Commission (or the City Council upon appeal), shall be effective for a period of one (1) year unless otherwise specified at the time of approval. A building permit must be applied for within this period or the approved site plan shall be deemed null and void. At the end of the six-month effective period, a maximum six-month time extension may be granted by the Planning and Zoning Commission (at their sole discretion) upon written request of the applicant. A building permit may be issued for construction of the development as shown on the final approved site plan. No changes, alterations or modifications to the approved site plan shall occur unless an amended site plan is submitted to the City, reviewed, and approved in the same fashion as for the initial site plan and in accordance with this Section.

12.6

SITE PLAN REQUIREMENTS:

The applicant shall submit five (5) copies of the following required materials and information for site plan review:

A legal description (either by metes and bounds, or by platted subdivision name) of the property under review for site plan approval;

Site conditions information, including:

A topographic map of the site at a scale not smaller than 1" = 100', showing five [foot] (5') contours;

A site conditions map at a scale not smaller than 1" = 100' showing:

A location map showing the relationship of the site to such external facilities as streets, residential areas, commercial facilities, and recreation/open space areas;

The exact location of all existing public streets, rights-of-way, easements, and other reservations of the land in the vicinity of the subject property, of adjacent properties, and of adjacent properties on the other side(s) of roadways, indicating the locations of buildings and structures on such adjacent properties, means of ingress and egress to such properties, off-street parking, loading and service areas (if any) for or on such properties, and any screening or buffering on such properties and the nature and type thereof;

The general location, size and capacity of all existing utilities, including existing fire hydrant locations; and

The general location of all existing water holding or carrying facilities, natural or man-made, including creeks, ponds, sinkholes, ditches, culverts, swales and storm sewers;

A site development plan at a scale not smaller than 1" = 60', showing:

The name of the planner, architect, engineer or designer who prepared the plans; the name of the developer, whether it be an individual, group or corporation; the name of the proposed project or development; a north arrow; and the date of preparation of the plans (with any subsequent revision dates noted);

The general location of all proposed streets, driveways and other facilities designed to accommodate vehicular movement within and adjacent to the development; points of ingress and egress; parking areas, including the exact number of parking spaces; loading and service areas (including the locations of dumpsters); and trip generation for the development as it relates to the existing roadway system and to other existing and/or planned developments in the vicinity;

The exact locations of all proposed buildings and structures to be included in the development:

For retail, commercial, office and industrial developments: an indication of gross floor area per building and the total gross floor area for all buildings combined; or

For residential developments: an indication of the exact number of dwelling units broken down into sizes by bedrooms (e.g., number of one-bedroom units, number of two-bedroom units, etc.); and

The percentage of the site that will be covered by buildings and structures (i.e., lot coverage), and the percentage of the site that will be covered by other impervious surfaces (such as streets, driveways, parking areas, sidewalks and loading/service areas) and by pervious surfaces (such as landscaped areas, turf areas, etc.).

A development timetable if the project is to be constructed in phases.

The City Manager or his/her designee shall have the authority to waive any requirements of Section 12.6.

12.7

AMENDMENTS TO THE APPROVED FINAL SITE PLAN:

Changes, alterations or modifications to any final approved site plan that involves construction, removal or relocation of a building or structure; re-design or modification of the vehicular or pedestrian circulation system (including all points of access, drives, parking areas and walkways); modifications to any of the storm drainage system, or relocation of any landscaped area shall require re-approval of the site plan by the Planning and Zoning Commission, in accordance with the procedures described within this Section.