§ 27-25. Board of adjustment.
(a)
Creation. There is hereby created a board of adjustment to be composed of five (5) regular members of two (2) alternate members who shall be qualified electors of the city. It is the declared policy of the city council that it will consider and appoint only those persons who have demonstrated their civic interest, general knowledge of the community, independent judgment and availability to prepare for and attend meetings.
(b)
Terms of office. The members shall serve for a period of two (2) years and until their successors are duly appointed and qualified. Three (3) regular and one (1) of the alternate members shall be appointed to serve until the last day of May of the next odd-numbered year. The regular members of the board shall be identified by place numbers one (1) through five (5), and all members shall be appointed by the city council. Board members may be appointed to succeed themselves.
(c)
Vacancies. Vacancies shall be filled for unexpired terms; no member shall be appointed for a term in excess of two (2) years. A vacancy in a term of office shall occur whenever the council finds that a member has resigned or has not maintained the qualifications required for appointment.
(d)
Organization. The board shall elect a chairman from among its members to preside at meetings. Such chairman, or in his absence an acting chairman elected from among the members, may administer oaths and compel the attendance of witnesses. The board shall designate the time and place of its meetings. The board shall adopt its own rules of procedure and keep a record of its proceedings in accordance with state law and these regulations. Newly appointed members shall be installed at the first regular meeting after their appointment.
(e)
Meetings and quorum. Four (4) members of the board shall constitute a quorum for the conduct of business. The members of the board shall regularly attend meetings and public hearings of the board and shall serve without compensation, except for reimbursement for authorized expenses attendant to the performance of their duties. All meetings shall be open to the public. Minutes shall be kept showing the vote of each member on each question or the absence or failure of each member to vote. Such minutes shall be a public record and shall be retained for at least five (5) years.
(f)
Duties and powers. The board of adjustment shall have the powers and exercise the duties of a board in accordance with Article 1011g, Revised Civil Statutes of Texas. Board members are representatives of the city and shall have the right to inspect premises where required in the discharge of their responsibilities under the laws of the state and the ordinances of this city. The board's jurisdiction shall extend to and include the hearing and deciding of the following types of appeals and applications and to that end shall have the necessary authority to ensure continuing compliance with its decision:
(1)
Interpretation: To render an interpretation of the zoning regulations or the manner of their application where it is alleged that there is error in any order, requirement or determination made by the enforcing officer in the administration of such provisions. In reaching its decision, the board shall establish firm guidelines for future administrative actions on like manners;
(2)
Special exception: To decide upon those applications for a special exception to use or develop property when the same is authorized under these regulations subject to board approval;
(3)
Variance: To authorize upon appeal in specific cases such variance from the terms of this chapter as will not be contrary to the public interest. Such variances shall not be authorized unless the board makes an affirmative finding to all the following requirements:
a.
That literal enforcement of the controls will create an unnecessary hardship or practical difficulty in the development of the affected property;
b.
That the situation causing the hardship or difficulty is neither self-imposed nor generally affecting all or most properties in the same zoning district;
c.
That the relief sought will not injure the permitted use of adjacent conforming property;
d.
That the granting of the variance will be in harmony with the spirit and purposes of these regulations.
(g)
Interpretation request; variance appeal. A request for interpretation of regulations or an appeal for variance from development controls may be taken by any person aggrieved or by any officer, department, board or bureau of the city affected by a decision of the enforcing officer. Such appeal shall be taken within fifteen (15) days after the decision has been rendered by filing with the enforcing officer a notice of appeal specifying the grounds thereof. The enforcing officer shall forthwith transmit to the board all papers constituting the record upon which the action appealed from was taken.
(h)
Stay of proceedings. An appeal shall stay all proceedings of the action appealed from, unless the enforcing officer, after the notice of appeal has been filed with him, certifies to the board that by reason of facts stated in his certificate a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed except by a restraining order which may be granted by the board or by a court of record on application on notice to the enforcing officer and on due cause shown.
(i)
Special exception application. An application for a special exception to use or develop property as specifically authorized in district use regulations or in this section may be filed by any person owning the affected property, or by any tenant upon written authorization of the owner. Such application shall be filed with the enforcing officer.
(j)
Form of appeal or application. The appeal or application shall be in such form and shall contain such information as the board may require under its rules of procedure. It shall be accompanied by the required fee. An incomplete appeal or application shall be deemed only to give notice of intent to appeal or apply to the board and shall not be reviewed or scheduled for hearings until brought to completion.
(k)
Notice of hearing. Official written notice of public hearing on every application for a variance or special exception or for an interpretation of regulations applying solely to an individual property shall be sent to all owners of property, or the person rendering the same for taxes, affected by such application, located within two hundred (200) feet of any property affected thereby, excluding any intervening public street, at least ten (10) days before such hearing is held. Such notice shall be served by using the last known address as listed on the city tax roll and depositing the notice, postage paid, in the United States mail. Notice of hearings shall also be given by causing publication of the time and place of such hearing in the official newspaper at least ten (10) days prior thereto, together with a brief description of the subject matter of the hearing.
(l)
Posting. The city manager or his designee shall erect at least one (1) sign upon the property on which an application for action by the zoning board of adjustment is pending, which sign shall have a total area of at least four (4) square feet. Such sign or signs shall, if possible, be located adjacent to streets. Such sign shall be erected on or before the date of mailing of notice to property owners and shall be removed immediately after final action by the zoning board of adjustment or upon withdrawal of the request by the applicant, whichever comes first. The sign shall state that the property posted is under consideration by the city for a zoning request and shall contain the telephone number and office to contact in city hall for specific information about the scheduled hearing date and the requested zoning action. The erection or continued maintenance of the sign shall not be deemed a condition precedent to the holding of any public hearing or of the action by the zoning board of adjustment.
(m)
Hearing:
(1)
Upon the hearing, any party may appear in person or by attorney or agent. Evidence supporting the grant or denial of an appeal shall be submitted only through the enforcing officer or to the board in public meeting.
(2)
Any appeal or application may be withdrawn upon written notice to the enforcing officer, but no appeal shall be withdrawn after posting of hearing notice and prior to board action thereon without formal consent of the board.
(3)
The board shall make its decision on any application within forty-five (45) days from the time the initial hearing is held or the application will be deemed to have been denied.
(n)
Decision and voting:
(1)
Every decision of the board shall be based upon findings of fact and every finding of fact shall be supported in the record of proceedings. The enumerated conditions required to exist on any matter upon which the board is authorized to pass under these regulations shall be construed as limitations, on the power of the board to act.
(2)
Nothing contained in this section shall be construed to empower the board to change the terms of these regulations, or to effect changes in the zoning districts. The powers of the board shall be so applied that the terms of these regulations will be strictly enforced.
(3)
In exercising its powers, the board of adjustment, in conformity with the provisions of Articles 1011a through 1011j of the Revised Civil Statutes of Texas, may modify in whole or in part any order, requirement, decision or determination as ought to be made and shall have all the powers of the officer from whom the appeal is taken.
(4)
The concurring vote of four (4) members of the board shall be necessary to reverse, on appeal, any order, requirement, decision or determination of the enforcing officer, or to approve any application upon which it is required to pass under these regulations or to effect any variance in such regulations.
a.
A member shall disqualify himself from voting whenever he has a personal or monetary interest in the property under appeal, or will be directly affected by the decision of the board.
b.
A member may disqualify himself from voting whenever any applicant, or his agent, has sought to influence the member's vote on the appeal, other than in the public hearing.
(o)
Approval of request:
(1)
In approving any request, the board may designate such conditions including time limits, if appropriate, in connection therewith in order to secure substantially the objectives of the regulation or provision to which variance is granted and provide adequately for the maintenance of the integrity and character of the zone in which such permit is granted.
(2)
When necessary, the board may require guarantees, in such form as it deems proper, to insure that conditions designated in connection therewith are being or will be complied with.
(3)
Upon approval of an application for special exception or of a variance appeal, the applicant shall apply for occupancy or construction permits within sixty (60) days after the board's decision, unless a greater time is requested in the application and is authorized by the board. Any approval may be granted one (1) emergency extension of sixty (60) days on written request filed with the board before expiration of the original approval. Failure of the applicant to apply for occupancy of construction permits within the authorized time period shall void the right to secure such permits except upon the filing of a new application or appeal.
(p)
Denial of request. No application for variance or special exception shall be considered within six (6) months of denial of a request for a variance or special exception on the same property.
(q)
Appeal of board action. Any person or persons, jointly or separately, or any taxpayer, or any officer, department, board or bureau of the city aggrieved by any decision of the zoning board of adjustment may present to the appropriate court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of such illegality. Such petition shall be presented to the court within ten (10) days after the filing of the decision complained of in the offices of the board and not thereafter.
(r)
Authorized special exceptions. Unless specifically permitted as a named use or as a categorized use in zoning district, the following special exceptions may be permitted in any district except where otherwise limited in this chapter, subject to full and complete compliance with any and all conditions enumerated together with such other conditions as the board may impose:
(1)
Aviation field, airport or aircraft landing area;
(2)
Quarry, mine, sand and gravel pit or excavation for the purpose of removing screening, crushing, washing or storage of ore, clay, stone, gravel or similar materials:
Conditions: No permit shall be issued unless the site, location and plan of operation and restoration, including necessary structures, has been submitted to and approved in writing by the board, which approval shall be for a limited time designated by the board.
(3)
Cemetery, mausoleum or crematory for the disposal of the human dead or of domestic pets;
(4)
Split-zoned lots, extension of use:
Conditions: Extension of a use to the lot line or for a distance of not more than one hundred (100) feet where the boundary line of a district divides a lot held in single ownership on the effective date of this chapter, or divides a lot held in single ownership as of the date of subsequent annexation of such lot.
(5)
Sanitary landfill;
(6)
Shooting range: Small bore rifle, pistol, trap and skeet:
Conditions: The entire range shall be posted and fenced securely to prevent the accidental entry of persons or chattel onto the premises.
(7)
Radio, television, microwave broadcast, relay, receiving towers and transmission and retransmission facilities;
(8)
Boarding of horses:
Conditions: Barns and animal enclosures shall be set back to comply with applicable state and local laws and provisions shall have been made for an operating and maintenance program to minimize the adverse effects on adjacent properties caused by odors and the breeding of flies.
(9)
Tennis courts, swimming pools operated commercially or as a club, or as a jointly owned project by more than two (2) families in any residential district. Such facilities shall be screened from adjacent residences and lights shall not cause glare to adjacent residences.
(10)
Mobile home:
Conditions: A mobile home shall not be allowed on a site of less than three (3) acres and shall not be allowed within two hundred (200) feet of any property line. Exceptions for location of a mobile home shall be no more than three (3) years and shall be renewable at the discretion of the board.
(11)
Reserved.
(12)
Erecting or changing certain roof top signs:
Conditions: Erection or change of signs which would be nonconforming only because located on top of a building, existing at the time of passage of this chapter, or attached to a building existing at the time of passage of this chapter and extending up to eight (8) feet above such building. In determining whether this exception shall be granted, the board shall hear evidence on whether signing on the face of the building or above a canopy would be practicable, and on what other signs are in the area. This exception shall not be granted if effective signing is otherwise possible. No consideration shall be given to the value of signs in determining whether this exception shall be granted.
(13)
Handicapped occupations:
Conditions: Persons who are blind, deaf or without the use of one (1) or more arms or legs may be granted an exception to conduct any nonretail sales business within their homes upon the same conditions as a customary home occupation would be allowed. Other conditions may be added. Such exception shall not be granted if the occupation would involve any outside storage of vehicles or equipment or any outside activities.
(14)
Pool hall:
Conditions: Allowed in GB districts at such locations where there will be no adverse effect such as noise, traffic, late hours or glare on commercial or residential property. No pool hall shall be permitted within three hundred (300) feet of any residential zone.
(15)
Day care center:
Conditions: Allowed in all except R1, R1A, R2, and RPS zoning districts so long as such use will not unduly interfere with adjacent established uses, including uses in adjacent zoning districts.
(16)
Covered drives beyond the front building line in single-family residential districts:
Conditions: Persons who are paraplegic or quadraplegic may be granted an exception to construct covered walkways and driveways beyond the front building lines subject to such conditions as the board may impose.
(Code 1965, Ch. 27, §§ 23.1—23.18; Ord. No. 1495, § 1, 7-11-95)