§ 155.113  BOARD OF ADJUSTMENTS.
   (A)   Membership, appointment and term of office. There shall be a Board of Adjustments composed of five regular members and up to three alternate members who serve in the absence of one or more regular members. The members of the Board shall be residents and real property taxpayers in the city, appointed by the City Council for a term of two years or until their successors are appointed. Four  members of the Board shall be so appointed each odd-numbered year and four members shall be appointed each even-numbered year. The City Council may remove a Board member for cause, as found by the City Council, on a written charge after a public hearing. Vacancies shall be filled for the unexpired term of any member whose position becomes vacant for any cause in the same manner as the original appointment was made. Members of the Board shall serve without compensation.
   (B)   Proceedings. The Board of Adjustments shall adopt rules to govern its proceedings provided, however, that such rules are not inconsistent with this chapter or statutes of the State of Texas. Meetings of the Board shall be held at the call of the Chairman or at such other times as the Board may determine. The Chairman, or in his absence, the Acting Chairman, may administer oaths and compel the attendance of witnesses. 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, indicate such fact, and shall keep records 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.
   (C)   Appeal process.
      (1)   Appeals to the Board can be taken by any person aggrieved by an officer, department, or board or bureau of the municipality affected by any decision of the administrative officer. Such appeal shall be taken within 15 days after the decision has been rendered by the administrative officer, by filing with the Officer from whom the appeal is taken and with the Board, a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed was taken.
      (2)   At a public hearing relative to any appeal or variance, any interested party may appear in person or by agent of attorney. The burden of proof shall be on the applicant to establish the necessary facts to warrant favorable action of the Board of Adjustments on any appeal.
   (D)   Stay of proceeding. An appeal shall stay all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certifies to the Board of Adjustments, after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed, otherwise, than by a restraining order which may be granted by the Board or by a court of record on application or notice to the officer from whom the appeal is taken and on due cause shown.
   (E)   General powers. The Board shall have the following powers.
      (1)   To hear and decide appeals when it is alleged there is an error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this chapter. The Board must find the following in order to grant an appeal:
         (a)   That there is a reasonable difference of interpretation as to the specific intent of the zoning regulations or zoning map.
         (b)   That the resulting interpretation will not grant a special privilege to one property inconsistent with other properties or uses similarly situated.
         (c)   The decision of the Board must be such as will be in the best interest of the community and consistent with the spirit and interest of this chapter.
      (2)   To initiate, on its motion or otherwise, action to bring about the vacation and demolition of a nonconforming structure which is deemed to be obsolete, dilapidated or substandard or the discontinuance of a non-conforming use under any plan whereby full value of the structure or use can be amortized within a definite period of time, taking into consideration the general character of the neighborhood and the necessity for all property to conform to the regulations of this chapter.
      (3)   To authorize upon appeal in specific cases such variance from the terms of this chapter as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of said law will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done. The term "variance" shall mean a deviation from the literal provisions of the zoning ordinance which is granted by the Board when strict conformity to the zoning ordinance would cause an unnecessary hardship because of circumstances unique to the property on which the variance is granted. Except as otherwise prohibited under division (F) hereto, the Board is empowered to authorize a variance from a requirement of the zoning ordinance when the Board finds that all of the following conditions have been met:
         (a)   That the granting of the variance will not be contrary to the public interest; and
         (b)   That literal enforcement of the ordinance will result in unnecessary hardship because of exceptional narrowness, shallowness, shape, topography or other extraordinary or exceptional physical situation or physical condition unique to the specific piece of property in question. "Unnecessary hardship" shall mean physical hardship relating to the property itself as distinguished from a hardship relating to convenience, financial considerations or caprice, and the hardship must not result from the applicant or property owner's own actions; and
         (c)   That by granting the variance, the spirit of the ordinance will be observed and substantial justice will be done. The applicant shall have the burden of proving to the Board that the foregoing conditions have been met.
      (4)   To authorize special exceptions as specified in § 155.082.
   (F)   Use variance prohibited. No variance shall be granted to permit a use in a zoning district in which that use is prohibited, or a use which is explicitly prohibited by this chapter.
   (G)   Additional conditions. The Board is empowered to impose upon any variance any condition reasonably necessary to protect the public interest and community welfare.
   (H)   Revocation or modification. A variance or special exception may be revoked or modified for any of the following reasons:
      (1)   That the variance or special exception was obtained or extended by fraud or deception.
      (2)   That one or more of the conditions imposed by the Board in granting such variance or special exception has not been complied with or has been violated.
      (3)   That the variance or special exception although granted in accordance with all requirements hereof, has caused a nuisance or is otherwise detrimental to public health, safety and welfare.
      (4)   An action to revoke or modify a previously granted variance or special exception may be initiated by order of the Board, or the person who obtained the variance or special exception.
      (5)   The Board of Adjustments shall hear a request for the revocation or modification of a variance or special exception in accordance with the same notification and hearing procedures established for the original variances or special exception.
   (I)   Notification and public hearing process. Any request for an appeal, variance or special exception shall require a public hearing before the Board. Notice of said public hearing shall be published at least one time in a newspaper of the City of Mansfield, at least ten days prior to the date of the hearing. A written notice of the hearing shall be sent to owners of property situated within 200 feet of the exterior boundary of the property with respect to which such appeal or variance is requested at least ten (10) days prior to the date of the hearing. It shall be sufficient that such written notice is addressed to the owner appearing on the last approved tax roll of the city and addressed to such owner at the address stated on said roll. If no owner is stated on the tax roll or no address appears thereon, the written notice to such property owner shall not be required. An application fee as set forth in the fee schedule ordinance shall be paid to the city in advance of the hearing except as indicated in § 155.082. No refund shall be made under any circumstances except in the event the application is withdrawn prior to the mailing of the required written notification or publication in the official newspaper, the fee shall be refunded.
   (J)   Action of the Board. 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 any such ordinance, or to effect any variation in such ordinance.
   (K)   Appeal from decision of Board. Any person aggrieved by any decision of the Board of Adjustment, or any officer, department or other board or commission of the city or of the City Council, may appeal the decision or action of the Board of Adjustments by filing a petition for same in a court of competent jurisdiction, setting forth that such decision is illegal in whole or in part, and specifying the grounds for the alleged illegality. Such petition shall be filed with the court within ten days from the day the Board renders its decisions, and not thereafter. The time period set forth herein shall be deemed jurisdictional.
   (L)   Reapplication. No application for a variance or appeal which has been denied shall be again filed earlier than one year from the date of original denial unless other property in the immediate vicinity has, within the said one year period, been changed or acted on by the Board of Adjustments or City Council as to alter the facts and conditions on which the previous Board action was based. Such change of circumstances shall permit the rehearing of an appeal by the Board of Adjustments prior to the expiration of the one year period, but such conditions shall in no wise have any force in law to compel the Board of Adjustments, after a hearing, to grant a subsequent appeal. Such 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.
(Ord. 671, passed 4-15-86)