6.01. Zoning Regulation Appeal.
A. Types of appeals. Table 23: Review Bodies and the Associated Public Hearings per Zoning Application Type summarizes the types of appeals contained within this Zoning Ordinance.
Table 23: Review Bodies and the Associated Public Hearings per Zoning Application Type
Application Type | City Council | Board of Adjustment | District Court or County Court |
Appeal of administrative decision related to building permit, site plan, certificate of occupancy, or nonconforming use | Appeal | ||
Appeal of administrative decision related to alternative compliance | Appeal | ||
Appeal of Board of Adjustment decision | Appeal | ||
Appeal of vested rights determination by Zoning Administrator | Appeal |
B. Appeal of a city administrative or interpretative decision.
1. Any person, department, board, or bureau of the city affected by any administrative officer acting pursuant to the Zoning Ordinance regulations must submit written appeal to the Board of Adjustment within 20 calendar days of the decision, unless specified elsewhere in this Zoning Ordinance or by state law.
2. In exercising its authority herein, the Board of Adjustment may reverse or affirm, in whole or in part, or modify the city 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 city's administrative official.
3. Public hearings shall be held in accordance with subsection 5.04 above.
C. Appeals procedure to the City Council or Board of Adjustment.
1. Timing and fee. Appeal to the City Council or Board of Adjustment shall be made consistent with the time and manner specified in this Zoning Ordinance and with state law by filing with the City Secretary a notice of appeal specifying the grounds thereof.
2. Appeal stays proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Administrator or Building Official certifies in writing that a stay would cause imminent peril to life or property.
D. Appeals procedure to district court.
1. Any person or persons, jointly or severally, aggrieved by any decision of the Board of Adjustment may present to a court of record, a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of illegality. Such petitions shall be presented to the court within ten calendar days after the filing of the decision in the office of the Board of Adjustment.
2. The appeal must be in writing and specify the decision of the Board of Adjustment and grounds of such appeal.
3. Costs shall not be allowed against the Board unless it shall appear to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.
6.02. Zoning Variance.
A. Purpose.
1. The Board of Adjustment is authorized in specific cases to grant a variance from this Zoning Ordinance.
2. A variance is authorized by this Zoning Ordinance when such cases are shown not to be contrary to the public interest if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in an undue hardship and so that the spirit of the ordinance shall be observed and substantial justice done.
3. The Board of Adjustment is not authorized to grant a variance that will allow a use not authorized in the Use Chart or modify the standards or conditions of a PD zoning district or SUP.
B. Zoning variance applicability. The Board of Adjustment is authorized to grant a variance from the following regulations consistent with this subsection 6.02:
1. Open space (yard) dimensions;
2. Lot dimensions;
3. Floor area;
4. Structure height;
5. Lot coverage.
C. Criteria for approval. The Board of Adjustment may not grant a variance without first having given public notice and having held a public hearing on the variance request in accordance with subsection 5.04 above and this subsection 6.02.C.
1. Findings of fact. The Board of Adjustment may grant a variance if the Board finds affirmatively that the following are true:
a. Due to special conditions that affect the subject property, an unnecessary hardship will result from a literal interpretation of the regulation that is the subject of the variance request;
b. The hardship is unique to the subject property in that it is not commonly found on similar properties in the immediate vicinity;
c. The hardship is inherent to the property and is not self-created;
d. The variance is not contrary to the public interest;
e. The variance is necessary for the preservation and enjoyment of a substantial property right of the applicant;
f. The variance is in harmony with the general purpose and intent of this Zoning Ordinance;
g. Public health, safety, and welfare will be secured; and
h. Substantial justice will be done.
2. Contextual factors in making determination. In making the findings listed in subsection 6.02.C.1, the Board of Adjustment may consider the following grounds to determine whether compliance with this Zoning Ordinance would result in unnecessary hardship:
a. The nature of the proposed use of the land involved;
b. The existing uses of land in the vicinity;
c. Whether the financial cost of compliance with the regulation as written is greater than 50% of the appraised value of the structure as shown on the most recent appraisal roll certified to the assessor for the city under Tex. Tax Code § 26.01;
d. Whether compliance with the regulation as written would result in a loss to the lot on which the structure is located of at least 25% of the area on which development may physically occur;
e. Whether compliance with the regulation as written would result in the structure violating a different requirement of a city ordinance, building code, or other requirement;
f. Whether compliance with the regulation as written would result in the unreasonable encroachment on an adjacent property or easement;
g. Whether the structure is a nonconforming structure under subsection 3.07;
h. The probable effect the variance will have upon conditions of public health, safety, convenience, and welfare; or
i. Whether the granting of the variance will adversely affect the ability of adjacent property to develop or will prevent the orderly use of adjacent property.
3. Record of findings. Such findings of the Board of Adjustment, together with the specific facts upon which such findings are based, shall be incorporated into the official minutes of Board of Adjustment meeting at which the variance is considered.
4. Conditions of approval. In granting a variance, the Board of Adjustment may prescribe conditions that it deems necessary to preserve the public interest.
D. Concurring vote of 75% required. Pursuant to Tex. Local Gov’t Code § 211.009(c), the concurring vote of 75% of the members of the Board of Adjustment is necessary for the Board to grant a variance.
E. Zoning variance denial. No request for a variance that has been denied shall be further considered by the board under a subsequent request unless:
1. Six months have elapsed from the date of denial; or
2. Conditions relative to other property in the immediate vicinity, within the said six months period, have been changed or acted on by the board or council so as to alter the facts and conditions on which the previous board action was based.
6.03. Zoning Special Exception.
A. Purpose. The Board of Adjustment is authorized to hear and decide a special exception in accordance with this subsection 6.03.
B. Zoning special exception defined. A special exception is an allowed variation from the regulations of this Zoning Ordinance, but is differentiated from a variance by the following:
1. No hardship required. A special exception does not require a finding of an unnecessary hardship.
2. Specifically allowed and pre-determined by the Zoning Ordinance. Approval of a special exception by the Board of Adjustment is specifically provided for and defined in this Zoning Ordinance.
C. Requests for a zoning special exception. The Board of Adjustment may grant a special exception upon receiving a written request from the property owner or authorized agent.
D. Zoning special exception authorized. If the Board of Adjustment finds that the public convenience and welfare will be substantially served and the appropriate use of the neighboring property will not be substantially injured, the Board of Adjustment may authorize the following special exceptions to the regulations herein established:
1. Nonconforming uses. Permit the reconstruction, extension, or enlargement of a building occupied by a nonconforming use on the lot or tract occupied by such building provided such reconstruction does not prevent the return of such property to a conforming use and permit the expansion of off-street parking or off-street loading for a nonconforming use.
2. Building setbacks. For existing buildings that were legally constructed prior to the effective date of this Zoning Ordinance, the Board of Adjustment may authorize a special exception to allow reconstruction of a building over a setback line or allow a building to be set back further than a build-to line established by this Zoning Ordinance.
3. Cell tower height.
a. The Board of Adjustment may approve a special exception for an antenna support structure that exceeds 35 feet in height if the structure is set back an additional foot from the minimum required setback for each foot in height above 35 feet to a maximum height of 65 feet.
b. Only one antenna facility exceeding 35 feet in height is permitted on each lot.
4. Landscaping. The Board of Adjustment may permit landscaping that varies by more than 10% from the requirements of subsection 4.01.
E. Approval conditions. In granting a special exception, the Board of Adjustment 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 a nonconforming use may continue to operate or exist before being brought into conformance with the provisions of this Zoning Ordinance.
F. Concurring vote of 75% required. Pursuant to Tex. Local Gov’t Code § 211.009(c), the concurring vote of 75% of the members of the Board of Adjustment is necessary to grant a special exception.
G. Zoning special exception denial. No request for a zoning special exception that has been denied shall be further considered by the board under a subsequent request unless:
1. Six months have elapsed from the date of denial; or
2. Conditions relative to other property in the immediate vicinity, within the said six month period, have been changed or acted on by the board or council so as to alter the facts and conditions on which the previous board action was based.
(Ord. 04-2022-34, passed 4-12-22)