(A) Creation and organization of Board of Adjustment.
(1) A Board of Adjustment is hereby established in accordance with the provisions of the state law regarding the zoning of cities. The word “Board”, when used in this chapter, shall be construed to mean the Board of Adjustment.
(2) The Board of Adjustment shall consist of five members, each to be appointed by the City Commission for a term of two years. Board members may be removed for cause by the City Commission upon written charges and after public hearing. One member may be a member of the City Planning Board or Zoning Commission; provided that, the appointment of any member of the City Planning Board or Zoning Commission shall be for his or her term of office as such only.
(3) Vacancies shall be filled for the unexpired term of any member whose position becomes vacant. The Board shall elect its own Chairperson who shall serve for a period of one year or until his or her successor is elected.
(4) The City Commission shall appoint four alternate members of the Board of Adjustment who shall serve in the absence of one or more regular members when requested to do so by the Chairperson of the Board of Adjustment. All cases to be heard by the Board of Adjustment will always be heard by a minimum of four members. Alternate members shall serve for the same period as the regular members and any vacancies shall be filled in the same manner and may be subject to removal as the regular members.
(B) Procedures.
(1) The Board of Adjustment may adopt rules to govern its proceedings provided that such rules are consistent with this chapter or state law. Meetings of the Board may be held at the call of the Chairperson or at such other times as the Board may determine and will be held in accordance with the open meeting law. The Chairperson, or in his or her absence, the acting Chairperson may administer oaths and/or compel public attendance.
(2) The Board of Adjustment 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 a record of its examination and other official actions, all of which shall be immediately filed in the office of the Board of Adjustment and shall be a public record.
(3) Appeals to the Board of Adjustment can be taken by any person aggrieved, or by an officer, department, or board of the municipality affected by any decision of the Building Official relative to the enforcement of this chapter. Such appeal must be filed within 15 days after the decision has been rendered by the Building Official, by filing with the Building Official and with the Board of Adjustment a notice of appeal specifying the grounds thereof, upon payment of a fee in an amount determined by the City Commission. The Building Official shall forthwith transmit to the Board of Adjustment all the papers constituting the records upon which the action appealed from was taken.
(4) An appeal shall stay all proceedings of the action being appealed from unless the officer from whom the appeal is taken certifies the Board of Adjustment, 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 case, proceedings shall not be stayed, otherwise than by a restraining order which may be granted by the Board of Adjustment or by a court of record on application, upon notice to officer from whom the appeal is taken, and on due cause shown.
(5) The Board of Adjustment shall fix a specific time for the hearing of an appeal, give the public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time.
(6) At a public hearing relative to an appeal, any interested party may appear before the Board in person, 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 a matter. Any action granting a variance authorizing the issuance of a building permit or certificate of occupancy shall be valid only for a period of 90 days from such action, unless said building permit or certificate of occupancy is secured in the 90-day period, in which event the action shall be permanent. The Board shall have the authority to grant a longer period. If said building permit or certificate of occupancy is not secured within the 90-day period, or within any extended period granted by the Board, the action of the Board shall become void without prejudice to a subsequent appeal and such appeal shall be subject to the same regulations and requirements for hearing as herein specified for the original appeal.
(7) An appeal to the Board of Adjustment for the same or a related action on the same piece of property shall not be allowed prior to the expiration of one year from a previous ruling by the Board on any appeal to such body unless other property in the immediate vicinity has, within the said one-year period, been changed or acted on by the Board or City Commission so as to alter the facts and conditions upon which the previous Board action was based, as determined by the Board. Such change of circumstances shall permit the rehearing of an appeal by the Board prior to the expiration of a one-year period, but such conditions shall not have any force in law to compel the Board, 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.
(8) No final action shall be taken by the Board of Adjustment on an appeal on the absence of a written recommendation from a person designated by the city.
(C) Jurisdiction of the Board of Adjustment. When in its judgment, the public convenience and welfare will be substantially served and the appropriate use of the neighboring property will not be substantially or permanently injured, the Board of Adjustment may, in specific cases, after written notice and public hearings, and subject to appropriate conditions and safeguards, authorize or order the following:
(1) Hear and decide appeals where it is alleged there is error on any order, requirement, decision or determination made by the Building Official in the enforcement of this chapter;
(2) To hear and decide special exception to the terms of this chapter upon which such Board is required to pass under this chapter. The Board will set appropriate terms for exceptions when necessary;
(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 this chapter will result in unnecessary hardship, and so that the spirit of this chapter shall be observed and substantial justice done;
(4) Permit the reconstruction, extension or enlargement of a building occupied by non-conforming uses, on the lot or tract occupied by such building; provided, such reconstruction does not prevent the return of such property to a conforming use;
(5) Permit such variances of height, yard, area, lot coverage, off-street parking and loading regulations that will not be contrary to the public interest and where, because of special conditions, the enforcement of this chapter or its amendments would result in an unnecessary hardship. A variance shall not be granted to relieve a self-created or personal hardship, nor shall it be based solely on economic gain or loss, nor shall it permit any person a privilege in developing a parcel of land not permitted by this chapter to other parcels of land in the district. No variance may be granted if it results in an unnecessary hardship, as herein defined on another parcel of land;
(6) In order to make a finding of hardship and grant a variance, the Board of Adjustment must determine that:
(a) The requested variance does not violate the intent of the chapter or its amendments;
(b) Special conditions of restricted area, shape, topography or physical features exist that are peculiar to subject parcel of land and are not applicable to other parcels of land in the same zoning district;
(c) The hardship is in no way the result of the applicant’s own actions; and
(d) The interpretation of the provisions in this chapter or its amendments would deprive the applicant of rights commonly enjoyed by other properties, in the same zoning district, that comply with the same provisions.
(7) No variance may authorize a use other than those permitted in the district, for which the variance is sought.
(D) Action of the Board.
(1) In exercising its powers, the Board may, in conformity with the provisions of Tex. Rev. Civ. Stat. Art. 1011-a through 1011-j, as amended, (Tex. Local Gov’t Code §§ 211.001 through 211.013) reverse or affirm, wholly or partly, or may modify the order, requirement, decisions or determination appealed from and make such order, requirement, decisions or determination as ought to be made and shall have all the powers of the officer from whom the appeal is taken, including 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 revise 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 chapter or to approve any variance in said ordinance.
(3) Any person or persons, jointly or severally, aggrieved by any officer, department or board of the municipality, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or part, specifying the grounds of the illegality. Such 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. The date of filing of the decision in the office of the Board shall be the date the Board announces its decision either orally or in writing to the applicant.
(E) Filing fee. A filing fee of $100 to help pay a part of the cost of legal publications, accumulating data and other administrative costs shall accompany each notice or appeal filed with the Board of Adjustments.
(1998 Code, App. A, § 40-81) (Ord. 01-64, passed 1-16-2002)