§ 33.60  OPERATIONAL PROCEDURE.
   (A)   General.
      (1)   The Board of Adjustment (the Board) shall adopt rules to govern its proceedings, provided, however, that the rules are not inconsistent with this subchapter or state law. Meetings of the Board shall be held at the call of the Chairperson and at other times as the Board may determine. The Chairperson, or in his or her absence, the Acting Chairperson, may administer oath and compel the attendance of witnesses.
      (2)   All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep record of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record.
      (3)   Appeals to the Board may be made by any person aggrieved by any municipal officer, department or board affected by any decision of the Planning and Zoning Commission. The appeal shall be filed with the board by the City Secretary within 15 days after the original decision is rendered. The appeal shall be accompanied by all papers constituting the record pertaining to the appeal. Formal notice of the appeal shall be issued by the City Secretary, the notice to specify the grounds upon which the appeal is made. The Board shall set a reasonable time for the hearing of the appeal.
      (4)   An appeal shall stay all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certified to the Board after the notice of appeal shall have been filed with him or her, that by reason of facts stated in the certificate, a stay would, in his or her opinion, cause imminent peril to life or property. In such cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board or a court of record on application, on notice to the office from whom the appeal is taken and on due cause shown.
      (5)   Upon notice of appeal being given to the City Secretary, the applicant must file a fee with the notice of appeal to the Board. The Board of Adjustment, with the concurrence and approval of the City Council shall determine and set forth a fee schedule for the purpose of recovering the administrative cost of processing requests and appeals called for by this subchapter. The fee shall be paid by the applicant and shall not be designed for restricting an applicant’s ability to seek a hearing and/or to generate revenue for other than recovery of actual administrative cost incurred by the city. Immediately upon receipt of the application and fee, the City Secretary shall note thereon the date of filing, and make a permanent record thereof.
      (6)   No appeal to the Board for the same or related variance on the same piece of property shall be allowed prior to the expiration of six months from a previous ruling by the Board on any appeal to the body unless other property in the immediate vicinity has, within the six-month period, been changed or acted on by the Board or City Council so as to alter the facts and conditions on which the previous board action was based. The change of circumstances shall permit the rehearing of an appeal by the Board prior to the expiration of the six-month period, but the conditions shall in no way have any force in law to compel the Board, after a hearing, to grant a subsequent appeal. The subsequent appeal shall be considered entirely on its merits and the peculiar and specific conditions related to the property on which the appeal is brought.
      (7)   At a public hearing relative to any appeal, any interested party may appear in person or by agent or by attorney. The burden of proof shall be on the applicant to establish the necessary facts to warrant favorable action of the Board on any appeal. Any special exception or variance granted or authorized by the Board under the provisions of this subchapter shall authorize the issuance of a building permit or a certificate of occupancy, as the case may be, for a period of 90 days from the date of the favorable action of the Board, unless the Board shall have in its action approved a longer period of time and has so shown such specific longer period in the minutes of its action. If the building permit and/or certificate of occupancy, shall not have been applied for within the 90-day period or such extended period as the Board may have specifically granted, then the special exception or variance shall be deemed to have been waived and all rights thereunder terminated. The termination and waiver shall be without prejudice to a subsequent appeal and such subsequent appeal shall be subject to the same regulations and requirements for hearing as herein specified for the original appeal.
   (B)   Actions of the Board.
      (1)   In exercising its powers, the Board may, on conformity with the provisions of the statutes of the State of Texas as existing or hereafter amended, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and make the 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. The Board shall have the power to impose reasonable conditions to be complied with by the applicant.
      (2)   The concurring vote of four members of the Board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance or to effect any variance in the ordinance.
      (3)   Any person or persons, jointly or severally aggrieved by any decision of the Board, or any taxpayer of officer, department or Board of the municipality may present to a court of record (district court) a petition, duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of illegality. The petition shall be presented to the court within ten days after the filing of the decision in the office of the Board and not thereafter.
   (C)   Notice of hearing before the Board required.
      (1)   The Board shall hold a public hearing on all appeals made to it and written notice of the public hearing shall be sent to the applicant, all persons who are owners of real property lying within 200 feet of the property on which the appeal is made, and all other persons deemed by the Board to be affected thereby.
      (2)   The notice shall be given not less than ten days before the date set forth hearing to all the owners who have rendered their the property for city taxes as the ownership appears on the last city tax roll. The notice may be served by deposition of the same, properly addressed and postage paid, in the U.S. Post Office.
      (3)   Notice shall also be given by publishing the same in official publication of the city at least one time and at least 15 days prior to the date set for the hearing, which shall state the time and place of the hearing.
   (D)   Jurisdiction of the Board.
      (1)   Exceptions and variances distinguished.
         (a)   A special exception is a permission given by the Board properly authorized by this subchapter in specific cases for an applicant to use his or her property in a manner contrary to the provisions of this ordinance provided the use serves the general welfare and preserves the community interest
         (b)   A variance is an authorization by the Board granting relief and doing substantial justice in the use of the applicant’s property by a property owner where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship.
      (2)   Special exceptions.
         (a)   A special exception may be granted an applicant when the Board finds:
            1.   That the granting of the exception will not be injurious or otherwise detrimental or injurious to the public health, safety, morals and general welfare of the general public;
            2.   That the granting of the exception will not be detrimental or injurious to the property or improvements in the zone or neighborhood in which the property is located; and
            3.   That the granting of the exception will be in harmony with the general purpose and intent of this subchapter.
         (b)   In determining its finding, the Board shall take into account the character and use of adjoining buildings and those in the vicinity, the number of persons residing or working in the building or upon the land, traffic conditions in the vicinity, and the conformance of the area to the zoning map and general plan.
         (c)   The Board may, after public hearing and subject to the conditions and safeguards herein contained, authorize special exceptions to this subchapter as follows:
            1.   Permit the modification of a yard, lot area or lot width regulation requirements as may be necessary to secure appropriate improvement of a parcel of land where the parcel was separately owned on the effective date of this subchapter, and is not adjacent to another parcel of the same ownership and where the parcel is of such size that it cannot be improved without such modification or of the restricted area that it cannot be appropriately improved without the modification; and
            2.   May grant a permit for the extension of a use, height or area regulation into an adjoining district for a distance of not more than 25 feet, where the boundary line of the district divides a lot in single ownership as of the effective date of this subchapter.
         (d)   In granting any special exception under the provisions of this ordinance, the Board may designate the conditions in connection therewith which, in its opinion, will secure substantially the purpose and intent of this subchapter.
      (4)   Variances.
         (a)   A variance may be granted to an applicant when the Board finds:
            1.   That there are special circumstances or conditions applying to the land or building for which the variance is sought, which circumstances or conditions are peculiar to the land or building and do not apply generally to lands or buildings in the same zone or neighborhood, and that the circumstances or conditions are such that the strict application of the provisions of this subchapter would deprive the applicant of the reasonable use of the land or building;
            2.   That the granting of the variance will not be detrimental to the public welfare or injurious to the property or improvements in the zone or neighborhood in which the property is located;
            3.   That the granting of the variance is necessary for the reasonable use of the land or building and that the variance as granted by the Board is the minimum variance that will accomplish this purpose;
            4.   That the literal enforcement and strict application of the provisions of this subchapter will result in an unnecessary hardship inconsistent with the general provisions and intent of this subchapter and that in granting the variance the spirit of the subchapter will be preserved and substantial justice done; and
            5.   In addition to considering the character and use of adjoining buildings and those in the vicinity, the Board, in determining its findings, shall take into account the number of persons residing or working in the buildings or upon the land and traffic conditions in the vicinity.
         (b)   The Board may, after public notice and hearing and subject to the conditions and safeguards herein contained, vary or adapt the strict application of any of the terms of this subchapter under the power and authority herein granted and consistent with state law.
         (c)   In granting any variance under the provision of this subchapter, the Board may designate such conditions in connection therewith which, in its opinion, will secure substantially the purpose and intent of this subchapter.
         (d)   The Board may permit the change of occupancy from one nonconforming use to another nonconforming use when the extent of the second nonconforming use is found to be less detrimental to the environment than the first.
         (e)   The Board may permit the remodeling or enlargement of a nonconforming use only when the remodeling or enlargement will not prolong the life of the nonconforming use. A specific period of time for the return to conformity can be required.
         (f)   The Board may permit the reconstruction of a nonconforming structure or building on the lot or tract occupied by the building, provided the reconstruction does not, in the judgment of the Board, prevent the return of the property to a conforming use or increase the nonconformity of a nonconforming structure.
         (g)   The Board may permit such variance of the front yard, side yard, rear yard, lot width, lot depth, coverage, minimum setback standards, off-street parking or off-street loading regulations where the literal enforcement of the provisions of this subchapter would result in an unnecessary hardship, and where the variance is necessary to permit a specific parcel of land which differs from other parcels of land in the same district by being of the restricted area, shape or slope that it cannot be developed in a manner commensurate with the development permitted upon other parcels of land in the same district. A variation from the standard established by this subchapter shall not be granted to relieve a self-created or personal hardship, nor for financial reason only, nor shall the modification be granted to permit any person a privilege in developing a parcel of land not permitted by this ordinance to other parcels of land in the district.
      (5)   The Board shall hear and decide appeals where it is alleged that there is error on any order, requirement, decision or determination may by the Planning and Zoning Commission/Building Inspector in the enforcement of this subchapter.
      (6)   The Board shall interpret the intent of the zoning district map where uncertainty exists because the physical features on the ground vary from those on the zoning districts map and none of the rules of this subchapter set forth in § 159.81 apply.
   (E)   Appeals from the Board of Adjustment.
      (1)   Any person or persons, or any board, taxpayer, department, board or bureau of the city aggrieved by any decision of the Board may seek review by a court of record of the decision, in the manner provided by the laws of this state.
      (2)   Upon presentation of the petition in accordance with state law, the court of record may allow a writ of convenience directed to the Board to review the decision of the Board and shall prescribe therein the time within which a return thereto must be made and served upon a realtor’s attorney, which shall not be less than ten days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decisions appealed from, but the court may, on application, on notice to the Board and on due cause shown, grant a restraining order.
      (3)   The Board shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.
      (4)   If, upon hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a reference to take the evidence as it may direct and report the same to the court with his or her findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm wholly or party, or may modify the decision brought up for review.
      (5)   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)   All issues in any proceedings under this section shall have preference over all other civil actions and proceedings.
(2005 Code, § 2-1-2)