(a)

Intent of provisions.

(1)

Within the districts established by this chapter or amendments thereto, there may exist lots, structures, uses of land and structures, and characteristics of use which were lawfully in existence and operating before this chapter was enacted, amended or otherwise made applicable to such lots, structures or uses, but which do not now conform to the regulations of the district in which they are located. It is the intent of this chapter to permit such nonconforming uses to continue, as long as the conditions within this section and other applicable sections of the ordinance are met.

(2)

It is further the intent of this chapter that nonconforming uses shall not be enlarged upon, expanded or extended, and shall not be used as a basis for adding other structures or uses prohibited elsewhere in the same district.

(3)

Nonconforming uses are hereby declared to be incompatible with the permitted uses in the districts involved.

(b)

Nonconforming status. Any use, platted lot, or structure which does not conform with the regulations of the zoning district in which it is located shall be deemed a nonconforming use, platted lot, or structure when:

(1)

Such use, platted lot, or structure was in existence and lawfully operating as of the effective date of this chapter, and has since been in regular and continuous use; or

(2)

Such use, platted lot, or structure was in existence and lawfully operating as of the effective date of any amendment to this chapter, but by such amendment is placed in a district wherein such use, platted lot, or structure is no longer permitted, and has since been in regular and continuous use; or

(3)

Such use, platted lot, or structure was in existence and lawfully operating at the time of annexation into the city and has since been in regular and continuous use.

(c)

Continuing lawful use of property and existence of structures.

(1)

The lawful use of land or lawful existence of structures as of the effective date of this chapter, although such do not conform to the provisions hereof, may be continued; but if said nonconforming use or structure is discontinued or abandoned, as these terms are defined in subsection (2) below, any future use of said premises shall be in conformity with the provisions of this chapter.

(2)

"Discontinuance" of a nonconforming use shall be defined as the actual act or date that the use is discontinued (i.e., ceases to operate on the subject property). "Abandonment" of a nonconforming use or structure shall be defined as the actual act or date of abandonment as described in subsection (3).

(3)

When a nonconforming use or structure which does not meet the development standards in this chapter ceases to be used in such manner as stated in subsection (2) above for a time period of six (6) months or longer, such use shall not be resumed and proof of such event shall constitute prima facie evidence of an act of abandonment, except as allowed in subsection 22-7(e)(5). Any nonconforming use which does not involve a permanent type of structure or operation and which is moved from the premises shall be considered to have been abandoned.

(4)

No nonconforming use or structure may be expanded, re-occupied with another nonconforming use, or increased following the effective date of this chapter except as provided in section 22-7(e).

(5)

Conforming single-family residential uses on platted lots which were approved prior to the effective date of this chapter, which may now be nonconforming due to stricter standards, shall be deemed in conformance with this chapter as long as the use of the lot is allowed in the respective district. Only the lot size, depth, setbacks and width shall be allowed to be less than the regulations prescribed in the zoning district in which it is located. All other regulations of this chapter shall be met or the lot shall be considered nonconforming.

(6)

Any existing vacant lot platted prior to the effective date of this chapter, which was legally conforming, shall be deemed a conforming lot.

(d)

Changing nonconforming uses.

(1)

Any nonconforming use may be changed to a conforming use, and once such change is made, the use shall not be changed back to a nonconforming use.

(2)

Where a conforming use is located in a nonconforming structure, the use may be changed to another conforming use by the process outlined in section 22-7(e) below.

(3)

A nonconforming use may not be changed to another nonconforming use.

(e)

Expansion of nonconforming uses and buildings. An expansion of a nonconforming use or structure is allowed in accordance with the following:

(1)

A nonconforming use located within a building may be extended throughout the existing building, provided that:

a.

No structural alteration (except as provided in subsection (5) below) may be made on or in the building except those required by law to preserve such building in a safe and structurally sound condition.

b.

The number of dwelling units or rooms in a nonconforming residential use shall not be increased so as to exceed the number of dwelling units or rooms existing at the time said use became a nonconforming use.

(2)

No nonconforming use within a building may be extended to occupy any land outside the building.

(3)

No nonconforming use of land or building shall be enlarged, increased, or extended to occupy a greater area of land than was occupied at the time the land became a nonconforming use, except to provide off-street loading or off-street parking space.

(4)

The minimum residential lot areas for the various zoning districts shall be in accordance with their respective districts, except that a lot having less area than herein required which was an official "lot of record" prior to the effective date of this chapter, may be used for a single-family dwelling.

(5)

Buildings or structures which do not conform to the area regulations or development standards in this chapter, but where the uses are deemed conforming, shall not increase the gross floor area by more than ten (10) percent.

(6)

Buildings or structures which have been vacant or abandoned for more than six (6) months and do not meet the current area regulations or development standards shall be allowed to be re-occupied by a conforming use if subsection (5) above is followed.

(f)

Restoration of nonconforming structure.

(1)

If a structure occupied by a nonconforming use is destroyed by fire, the elements, or some other cause, it may not be rebuilt except to conform to the provisions of this chapter. In the case of partial destruction of a nonconforming structure which does not exceed fifty (50) percent of its total appraised value as determined by the Henderson County Central Appraisal District, reconstruction will be permitted, but the previously existing square footage of the structure and/or the function of the nonconforming use cannot be expanded.

(g)

Relocation of nonconforming structure.

(1)

A nonconforming structure can be relocated (i.e., moved) to another site on the same lot/tract upon which it was previously located, subject to submission of a structure relocation plan to the building official (or his/her designee) for review and approval, and subject to compliance with setback regulations for the zoning district in which the structure is located. If said setback regulations of the zoning district cannot be reasonably adhered to, then the building official (or his/her designee) may waive this requirement upon a finding that such waiver would be in the public interest and would not be detrimental or hazardous to the health, safety, welfare or convenience of nearby property owners or other citizens.

(2)

Should a nonconforming structure be relocated (i.e., moved) from its original site to a different lot/tract, it shall thereafter conform to the regulations (e.g., setbacks, height, square footage, construction materials, etc.) for the zoning district into which it is moved.

(h)

Completion of structures.

(1)

Nothing herein contained shall require any change in the plans, construction or designated use of the following:

a.

A building or structure for which a building permit has been issued or a site plan approved prior to the effective date of this chapter; or

b.

A building or structure for which a substantially complete application for a building permit was accepted by the building official (or his/her designee) on or before the effective date of this chapter provided, however, that such building permit shall comply with all applicable ordinances of the City of Athens in effect on the date such application was filed and the building permit is issued within thirty (30) days of the effective date of this chapter.

(a)

General. The planning and zoning commission (also referred to as the "commission") shall function according to the following criteria which establishes membership and operating procedures. The powers and duties of the planning and zoning commission are further defined in section 22-10 of this chapter and in the Code of Ordinances of the City of Athens.

(b)

Created; membership; officers; rules and bylaws.

(1)

There is created, in accordance with V.T.C.A., Local Government Code ch. 211, and established by Ordinance No. A-200 of the City of Athens, the "planning and zoning commission", hereafter sometimes referred to as the "commission", which shall consist of five (5) members who are resident citizens, taxpayers and qualified voters of the City of Athens.

(2)

Members shall be nominated for appointment by the mayor or by a member of the City Council of the City of Athens, and each person so nominated must be approved by a simple majority vote of the city council before becoming a member of the commission.

(3)

All appointments to the commission shall be for terms of two (2) years, and expiration of terms shall be staggered so that an overlapping of terms occurs (for example, within any two-year period, the terms of two (2) full members shall expire during one of those years, and the terms of three (3) full members shall expire during the second year). Terms of office of commission members shall expire on the first day of January of any given year. No member of the commission shall serve more than two (2) consecutive terms.

(4)

Any vacancy(s) on the commission shall be filled for the unexpired term(s) via appointment by a simple majority vote of the city council for the remainder of the term(s).

(5)

Members of the planning and zoning commission may be removed from office at any time by a simple majority vote of the full city council either upon its own motion or upon recommendation of the planning and zoning commission. Failure to attend three (3) consecutive scheduled meetings shall be deemed as neglect and cause for removal from office, unless such absences were due to unusual circumstances beyond the member's control such as sickness of the member or someone within the member's immediate family.

(6)

The members of the commission shall regularly attend meetings and public hearings of the commission, shall serve without compensation, and shall not hold any other office or position with the city while serving on the commission.

(7)

The commission shall elect a chairperson and a vice-chairperson from among its membership, and each officer shall hold office for one (1) year or until replaced by a simple majority vote of the full commission. The city manager's designee shall serve as secretary to the commission, and shall keep minutes of all meetings held by the planning and zoning commission as well as the full record of all recommendations made by the commission to the city council.

(8)

The commission may make rules, regulations and bylaws for its own government, which shall conform as nearly as possible with those governing the city council. The rules, regulations and bylaws of the commission shall be subject to approval by city council. Such rules and bylaws shall include, among other items, provisions for:

a.

Regular and special meetings, open to the public;

b.

A record of its proceedings, to be open for inspection by the public;

c.

Reporting to the governing body and the public, from time to time and annually; and

d.

The holding of public hearings on its recommendations.

(c)

Parliamentary procedure; quorum; voting.

(1)

The commission will follow the parliamentary procedure adopted by city council for all boards and commissions, and procedures shall not be in conflict with the laws applicable to the commission on the following:

a.

Quorum. A quorum shall consist of a majority of the membership of the commission (i.e., three (3) members), and any issue to be voted upon shall be resolved by a majority of those members present.

b.

Voting. All commission members, including the presiding chairperson, shall be entitled to one (1) vote each upon any question, a quorum being present.

c.

Conflict of interest. If any member has a conflict of interest regarding any item on the commission's agenda, he/she shall remove himself/herself from the room and shall refrain from voting only on the item for which a conflict exists.

(d)

Meetings; public record.

(1)

The planning and zoning commission shall meet in the council chamber in city hall or in some other specified location as may be designated by the presiding chairperson, and at such intervals as may be necessary to orderly and properly transact the business of the commission but not less than once each month.

(2)

Meetings shall be open to the public, and minutes shall be kept and shall be treated as public record.

(e)

Establishing extraterritorial jurisdiction.

(1)

Statutes of the State of Texas authorizing and empowering cities to regulate the platting and recording of subdivisions or additions within the city's corporate limits and establishing extraterritorial jurisdiction are hereby adopted, and the commission, acting through its duly authorized officials, shall have all the rights, powers, privileges and authority authorized and granted by and through said statutes pertaining to regulation of subdivisions and extraterritorial powers.

(f)

Powers and duties.

(1)

The commission shall have all the rights, powers, privileges and authority authorized and granted by and through the statutes of the State of Texas authorizing and granting cities the power of zoning as found in V.T.C.A., Local Government Code ch. 211, as amended.

(2)

In general, the planning and zoning commission shall be an advisory body and adjunct to the city council, and shall make recommendations regarding amendments to the comprehensive plan, changes of zoning and zoning to be given to newly annexed areas, and shall make recommendations regarding the approval of plats of subdivisions as may be submitted to it for review and other planning related matters. The planning and zoning commission shall conduct an annual review of the city's comprehensive plan and shall be prepared to make recommendations to the city council as deemed necessary to keep the city's comprehensive plan current with changing conditions and trends and with the planning needs of the city. The planning and zoning commission shall also serve in an advisory capacity on any planning related item(s) in the city.

(g)

Procedure on zoning hearings.

(1)

The procedure and process for zoning changes/amendments shall be in accordance with section 22-10 of this chapter.

(h)

Joint meetings with city council. Whenever the city council and the planning and zoning commission are required by the laws of the State of Texas to conduct public hearings in matters pertaining to planning, zoning and/or subdividing property, and at other times when it is in the best interest of the city to do so, the city council and the planning and zoning commission are hereby authorized, after published notice as required by law, to hold joint meetings and to conduct joint public hearings, provided that the city council shall not take action on any matter heard until it has received the recommendation of the planning and zoning commission.

(Ord. No. O-30-11, 10-10-2011)

(a)

Creation.

(1)

There is hereby created a zoning board of adjustments (zoning board of adjustments), hereafter referred to as the "board", for the purpose, in appropriate cases and subject to appropriate conditions and safeguards, to make special exceptions to the terms of this chapter that are consistent with the general purpose and intent of this chapter. The board shall be composed of members who are resident citizens, taxpayers and qualified voters of the City of Athens.

(b)

Members; terms of office.

(1)

The zoning board of adjustment shall consist of five (5) regular members, who shall be appointed by a simple majority vote of the city council, in accordance with V.T.C.A., Local Government Code §§ 211.008 through 211.011, as amended.

(2)

The city council may provide for the appointment of alternate members to serve in the absence of regular board members, as requested by the city manager.

(3)

Regular board members shall serve for terms of two (2) years, and expiration of terms shall be staggered so that an overlapping of terms occurs (for example, in any two-year period, the terms of two (2) regular members shall expire during one of those years, and the terms of three (3) regular members shall expire during the second year).

(4)

Any vacancy(s) on the board shall be filled for the unexpired term(s) via appointment by a simple majority vote of the city council for the remainder of the term(s).

(5)

Members of the board may be removed from office for cause, and after a public hearing, by a simple majority vote of the full city council. Failure to attend three (3) consecutive scheduled meetings shall be deemed as neglect and cause for removal from office, unless such absences were due to unusual circumstances beyond the member's control such as sickness of the member or someone within the member's immediate family.

(6)

The members of the board (and alternate members, as needed) shall regularly attend meetings and public hearings of the board, shall serve without compensation, and shall not hold any other office or position with the city while serving on the board.

(7)

The board shall elect a chairperson and a vice-chairperson from among its membership, and each officer shall hold office for one (1) year or until replaced by a simple majority vote of the full board. The city manager's designee shall serve as secretary to the zoning board of adjustments, and shall keep minutes of all meetings held by the board.

(8)

The board may establish rules, regulations and bylaws for its own government, which shall conform as nearly as possible with those governing the city council. The rules, regulations and bylaws of the zoning board of adjustments shall be subject to approval by city council.

(c)

Meetings.

(1)

Meetings of the zoning board of adjustments shall be held at the call of the chairperson and at such other times as the board may determine. All meetings of the board shall be open to the public. Four (4) members of the board shall constitute a quorum for the conduct of business. All cases to be heard by the board shall always be heard by at least seventy-five (75) percent of the members, which constitutes four (4) members.

(d)

Authority of board. The zoning board of adjustments shall have the authority, subject to the standards established in V.T.C.A., Local Government Code §§ 211.008 through 211.011 and those established herein, to exercise powers and to perform duties including the following:

(1)

Hear and decide an appeal that alleges error in an order, requirement, decision or determination made by an administrative official in the enforcement of this chapter; and

(2)

Authorize, in specific cases, a variance (see section 22-9(f)) from the terms of this chapter if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of this chapter is observed and substantial justice is done.

(3)

In exercising its authority under subsection (a) above, the board may reverse or affirm, in whole or in part, or modify the 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 administrative official.

(4)

The concurring vote of at least seventy-five (75) percent, or four (4) members, of the full board is necessary to:

a.

Reverse an order, requirement, decision or determination of an administrative official;

b.

Decide in favor of an applicant on a matter on which the board is required to review under this zoning ordinance;

c.

Authorize a variance from the terms of this zoning ordinance; or

d.

Authorize special exceptions to this zoning ordinance.

(e)

Limitations on authority of board.

(1)

The board may not grant a variance authorizing a use other than those permitted in the district for which the variance is sought, except as provided in section 22-9(g).

(2)

The board shall have no power to grant or modify specific use provisions authorized under sections 22-31 and 22-32 of these regulations.

(3)

The board shall have no power to grant a zoning amendment. In the event that a request for a zoning amendment is pending before the planning and zoning commission or the city council, the board shall neither hear nor grant any variances with respect to the subject property until final disposition of the zoning amendment.

(4)

The board shall not grant a variance for any parcel of property or portion thereof upon which a site plan, preliminary plat or final plat, where required, is pending on the agenda of the planning and zoning commission and, where applicable, by the city council. All administrative remedies available to the applicant shall have been exhausted prior to hearing by the zoning board of adjustments.

(f)

Variances.

(1)

The zoning board of adjustments may authorize a variance from these regulations when, in its opinion, undue hardship will result from requiring strict compliance. In granting a variance, the board shall prescribe only conditions that it deems necessary for, or desirable to, the public interest. In making the findings herein below required, the board shall take into account the nature of the proposed use of the land involved, existing uses of land in the vicinity, the number of persons who will reside or work within the proposed use, and the probable effect such variance will have upon traffic conditions and upon the public health, safety, convenience and welfare of the community.

(2)

Conditions required for variance. No variance shall be granted without first having given public notice and having held a public hearing on the variance request in accordance with section 22-9(i) of this chapter and unless the zoning board of adjustments finds:

a.

That there are special circumstances or conditions affecting the land involved such that the strict application of the provisions of this chapter would deprive the applicant of the reasonable use of his/her land; and

b.

That the variance is necessary for the preservation and enjoyment of a substantial property right of the applicant; and

c.

That the granting of the variance will not be detrimental to the public health, safety or welfare, or injurious to other property within the area; and

d.

That the granting of the variance will not have the effect of preventing the orderly use of other land within the area in accordance with the provisions of this chapter.

Such findings of the zoning board of adjustments, together with the specific facts upon which such findings are based, shall be incorporated into the official minutes of the board meeting at which such variance is granted. Variances may be granted only when in harmony with the general purpose and intent of this chapter so that the public health, safety and welfare may be secured and that substantial justice may be done.

(3)

Findings of undue hardship. In order to grant a variance, the board must make written findings that an undue hardship exists, using the following criteria:

a.

The cost of compliance with the zoning ordinance is greater than fifty (50) percent of the appraised value of the structure as shown on the most recent certified appraisal roll; or

b.

Compliance would result in a loss to the lot on which the structure is located of at least twenty-five (25) percent of the area on which development may physically occur; or

c.

Compliance would result in the structure not being in compliance with a requirement of a municipal ordinance, building code, or other requirement; or

d.

Compliance would result in the unreasonable encroachment on an adjacent property or easement; or

e.

The municipality considers the structure to be a nonconforming structure.

(4)

A variance or special exception shall not be granted to relieve a self-created or personal hardship, nor shall it permit any person the privilege in developing a parcel of land not permitted by this chapter to other parcels of land in the particular zoning district. No variance or special exception may be granted which results in undue hardship upon another parcel of land.

(5)

The applicant bears the burden of proof in establishing the facts that may justify a variance or a special exception.

(6)

Special exceptions for nonconforming uses and structures. Upon written request of the property owner, the zoning board of adjustments may grant special exceptions to the provisions of this chapter, limited to the following, and in accordance with the following standards:

a.

Expansion of a nonconforming use within an existing structure a maximum of ten (10) percent provided that, in the case of a nonconforming residential use, such expansion does not increase the number of dwelling units to more than the number that was existing when the use first became nonconforming; or

b.

Expansion of the gross floor area of a nonconforming structure a maximum of ten (10) percent.

c.

Change from one (1) nonconforming use to another, re-construction of a nonconforming structure that has been totally destroyed, or resumption of a nonconforming use previously abandoned, only upon a finding that the failure to grant the special exception deprives the property owner of substantially all use or economic value of the land.

d.

In granting special exceptions under this section, the zoning board of adjustments 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 the nonconforming use may continue to operate or exist before being conformed to the standards of the zoning ordinance.

e.

For existing single-family and duplex structures that were constructed prior to the effective date of this chapter, the zoning board of adjustments may authorize a special exception for any structure that was constructed over a setback line established by this chapter.

(1)

The zoning board of adjustments may authorize the reconstruction and occupancy of a nonconforming structure, or a structure containing a nonconforming use, where such structure has been damaged by fire or other causes to the extent of more than sixty (60) percent, but less than the total, of the replacement cost of the structure as of the date of the damage. Such action by the zoning board of adjustments shall have due regard for the property rights of the person or persons affected, and shall be considered in regard to the public welfare, character of the area surrounding such structure, and the conservation, preservation and protection of property.

(2)

The zoning board of adjustments may authorize the enlargement, expansion or repair of a nonconforming structure if such enlargement, expansion or repair will improve the condition of the structure, if it will bring the structure closer into compliance with this chapter, or if it will otherwise improve or enhance public health, safety or welfare.

(g)

Appeals to the zoning board of adjustments.

(1)

Authority. In addition to the authorization of variances from the terms of this chapter, the zoning board of adjustments shall have the authority to hear and decide an appeal that alleges error in an order, requirement, decision or determination made by an administrative official in the enforcement of this chapter. The zoning board of adjustments may reverse or affirm, in whole or in part, or may modify the 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 zoning board of adjustments has the same authority as the administrative official. The zoning board of adjustments may also hear and decide other matters authorized by the Subdivision Ordinance and other ordinances regarding land use/development regulations.

(2)

Who may appeal. Any of the following persons may appeal to the zoning board of adjustments a decision made by an administrative official:

a.

A person directly aggrieved by the decision; or

b.

Any officer, department, board or office of the municipality affected by the decision.

(3)

Procedure for appeal. The appellant must file with the zoning board of adjustments and the official from whom the appeal is taken a written notice of appeal specifying the grounds for the appeal. The appeal must be filed within sixty (60) days after the decision has been rendered. Upon receiving the notice, the official from whom the appeal is taken shall immediately transmit to the zoning board of adjustments all papers constituting the record of action that is appealed. An appeal stays all proceedings in furtherance of the action that is appealed unless the official from whom the appeal is taken certifies in writing to the zoning board of adjustments facts supporting the official's opinion that a stay would cause imminent peril to life or property. In that case, the proceedings may be stayed only by a restraining order granted by the zoning board of adjustments or a court of record on application, after notice to the official, if due cause is shown. The appellant party may appear at the appeal hearing in person or by agent or attorney. The board shall decide the appeal within four (4) weeks after the written request (i.e., notice of appeal) was received, after which time the request shall be deemed automatically approved if no formal action is taken. The board may reverse or affirm, in whole or in part, or modify the administrative official's order, requirement, decision or determination from which an appeal is taken, and may make the correct order, requirement, decision or determination.

(h)

Procedures.

(1)

Application and fee. An application for a variance by the zoning board of adjustments shall be made in writing using forms prescribed by the board, and shall be accompanied by an application fee (as set forth in appendix A-6), a site plan and/or additional information as may be requested in order to properly review the application. Such information may include, but is not limited to, plat plans, site building plans, photographs, topographic contour maps, and/or other similar documents.

(2)

Review and report by the city. The city manager, or his/her designee, shall visit the site where the proposed variance will apply and the surrounding area, and shall report his/her findings to the zoning board of adjustments.

(3)

Notice and public hearing. The zoning board of adjustments shall hold a public hearing for consideration of the variance request no later than forty-five (45) days after the date the application for action, or an appeal, is filed. Notice of the public hearing shall be provided to all property owners within two hundred (200) feet of the affected property at least ten (10) days prior to the public hearing, and also published in the official local newspaper at least ten (10) days prior to the public hearing.

(4)

Action by the zoning board of adjustments. The zoning board of adjustments shall not grant a variance unless it finds, based upon compelling evidence, that each of the conditions in section 22-9(f) has been established. The zoning board of adjustments may impose such conditions, limitations and safeguards as it deems appropriate upon the granting of any variance. Violation of any such condition, limitation or safeguard shall constitute a violation of this chapter.

(i)

Judicial review.

(1)

All decisions of the zoning board of adjustments are final and binding. However, any person aggrieved by a decision of the zoning board of adjustments may present a verified petition to a court of record which states that the decision of the board is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition must be presented within ten (10) days after the date the decision is filed in the city secretary's office. Subject to the provisions of V.T.C.A., Local Government Code § 211.011, only a court of record may reverse, affirm or modify a decision of the zoning board of adjustments.

(Ord. No. 2021-O-150, § 1, 11-29-21)

(a)

Declaration of policy and review criteria. The city declares the enactment of these regulations governing the use and development of land, buildings, and structures as a measure necessary to the orderly development of the community. Therefore, no change shall be made in these regulations or in the boundaries of the zoning districts except:

(1)

To correct any error in the regulations or map;

(2)

To recognize changed or changing conditions or circumstances in a particular locality;

(3)

To recognize changes in technology, the style of living, or manner of conducting business;

(4)

To change the property to uses in accordance with the approved comprehensive plan; or

(5)

To implement policies within the comprehensive plan.

In making a determination regarding a requested zoning change, the planning and zoning commission and city council shall consider the following factors:

(1)

Whether the uses permitted by the proposed change will be appropriate in the immediate area concerned and their relationship to the general area and the city as a whole;

(2)

Whether the proposed change is in accord with any existing or proposed plans for providing public schools, streets, water supply, sanitary sewers, and other utilities to the area, and shall note the findings;

(3)

The amount of vacant land currently classified for similar development in the vicinity and elsewhere in the city, and any special circumstances which may make a substantial part of such vacant land unavailable for development;

(4)

The recent rate at which land is being developed in the same zoning classification as the request, particularly in the vicinity of the proposed change;

(5)

How other areas designated for similar development will be, or are unlikely to be, affected if the proposed amendment is approved; and

(6)

Any other factors which will substantially affect the public health, safety, morals, or general welfare.

(b)

Authority to amend ordinance. The city council may from time to time, after receiving a final report thereon by the planning and zoning commission and after public hearings required by law, amend, supplement, or change the regulations herein provided or the boundaries of the zoning districts specified on the zoning district map. Any ordinance regulations or zoning district boundary amendment may be ordered for consideration by the city council, be initiated by the planning and zoning commission, or be requested by the owner of real property, or the authorized representative of an owner of real property.

Consideration for a change in any district boundary line or special zoning regulation may be initiated only by the property owner or his/her authorized agent (proof of such authorization must be submitted with the zoning application, per section 22-10(c)), or by the planning and zoning commission or city council on its own motion when it finds that public benefit will be derived from consideration of such matter. In the event the ownership stated on an application and that shown in city records are different, the applicant shall submit proof of ownership and/or verification that he/she is acting as an authorized agent for the property owner.

No person who owes delinquent taxes, delinquent paving assessments, impact fees, or any other delinquent debts or obligations to the City of Athens, and which are directly attributable to a piece of property requested for zoning shall be allowed to submit a zoning request until the taxes, assessments, debts, or obligations directly attributable to said property and owed by the owner or previous owner thereof shall have been first fully discharged by payment, or until an arrangement satisfactory to the city has been made for the payment of such debts or obligations. It shall be the applicant's responsibility to provide evidence/proof that the taxes have been paid.

(c)

Application. Each application for zoning or for an amendment or change to the existing provisions of this zoning ordinance shall be made in writing on an application form available at the city, filed with the city, and shall be accompanied by payment of the appropriate fee as established within appendix A-6 of this chapter. The application shall also be accompanied by additional information/materials (i.e., plans, maps, exhibits, legal description of property, information about proposed uses, etc.) as deemed necessary by the city manager, or his/her designee, in order to ensure that the request is understood.

(d)

Public hearing and notice.

(1)

For zoning/rezoning requests involving real property, the planning and zoning commission shall hold at least one (1) public hearing on each zoning application, as per applicable state law (V.T.C.A., Local Government Code ch. 211, as may be amended). For proposed changes to zoning district boundaries (including rezoning requests), written notice of the public hearing to occur before the planning and zoning commission shall be sent to all owners of property, as indicated by the most recently approved city tax roll, that is located within the area of application and within two hundred (200) feet of any property affected thereby, said written notice to be sent (i.e., postmarked) not less than ten (10) days before such hearing is held. Such notice may be served by using the last known address as listed on the most recently approved tax roll and depositing the notice, first-class postage paid, in the United States mail.

(2)

For requests involving proposed changes to the text of the zoning ordinance, notice of the planning and zoning commission hearing shall be accomplished by publishing the purpose, time and place of the public hearing in the official newspaper of the city not less than fifteen (15) days prior to the date of the public hearing. Changes in the ordinance text which do not change zoning district boundaries (i.e., which do not involve specific real property) do not require written notification to individual property owners.

(3)

The city may, at its option, establish additional rules and procedures for public notification of proposed zoning changes and/or development proposals (e.g., site plans, plats, etc.) which may include, but not be limited to, the posting of a sign(s) on any property that is proposed for a zoning change and/or development by the applicant or its agent(s). Knowledge of and adherence to such rules and procedures, if so established by the city, shall be the responsibility of the applicant and shall be required as part of a zoning change and/or development application.

(e)

Failure to appear. Failure of the applicant or his/her representative to appear before the planning and zoning commission or city council for more than one (1) hearing without an approved delay by the city manager, or his/her designee, shall constitute sufficient grounds for the planning and zoning commission or the city council to table or deny the application unless the city is notified in writing by the applicant at least seventy-two (72) hours prior to the hearing.

(f)

Planning and zoning commission consideration and recommendation.

(1)

The planning and zoning commission shall function in accordance with section 22-8 of this chapter and with applicable provisions in the city's Code of Ordinances.

(2)

The commission shall hold a public hearing on a zoning/rezoning request (including a proposed text amendment to the zoning ordinance). After all public input has been received and the public hearing closed, the commission shall make its recommendations on the proposed zoning request stating its findings, its overall evaluation of the request, and its assessment regarding how the request relates to the city's comprehensive plan. The planning and zoning commission may, on its own motion or at the applicant's request, defer its decision/recommendations (i.e., table the request) for not more than ninety (90) days from the time the public hearing was first opened, or until it has had an opportunity to consider other information or proposed modifications to the request which may have a direct bearing thereon. If the commission elects to table the request, such tabling shall specifically state the time period of the tabling (i.e., cite the meeting date whereon the request will reappear on the commission's agenda).

(3)

When the commission is ready to act upon the zoning request, it may recommend approval of the request as it was submitted by the applicant, approval of the request subject to certain conditions (i.e., as in the case of a planned development district or a specific use provision), or disapproval of the request. If the commission's recommendation is to approve the request (either as submitted or with additional conditions), then the request will be automatically forwarded to the city council for a second public hearing thereon (see section 22-10(g)).

(4)

If the planning and zoning commission recommends denial of the zoning change request, it shall provide reasons to the applicant for the denial, if requested by the applicant. The planning and zoning chairperson shall inform the applicant of the right to receive reasons for the denial.

(g)

City council consideration.

(1)

Applications forwarded from the planning and zoning commission to city council. Every application or proposal which is recommended for approval (or approval with conditions) by the planning and zoning commission shall be automatically forwarded (along with the commission's favorable recommendation) to the city council for setting and holding of public hearing thereon. The city council may then approve the request, approve it with conditions, or disapprove it (i.e., against the commission's recommendation) by a single majority vote of the council members present and voting.

An application which is recommended by the planning and zoning commission for denial shall not be forwarded to city council unless the applicant files a written appeal with the city secretary within ten (10) days after the commission's decision. Said appeal will, in that instance, be forwarded to city council along with the commission's reasons for denial of the request. The appeal shall be scheduled for the next possible city council agenda, following appropriate public notification as prescribed in section 22-10 (i.e., publication in newspaper, notices sent to property owners within two hundred (200) feet, etc.). Ultimate approval of the request by city council will require a three-fourths majority vote from the council. No zoning change, however, shall become effective until after the adoption of an ordinance for same and its publication as required by law.

(2)

City council action on zoning/rezoning or text amendment requests. After a public hearing is held before city council regarding the zoning application, the city council may approve the request in whole or in part, deny the request in whole or in part, table the application to a future meeting, or it may refer the application back to the planning and zoning commission for further study.

a.

If the city council approves the request, then subsection 22-10(g)(5) would apply.

b.

If the city council denies the request, then no other zoning application may be filed for the same or a similar request for any part of the subject tract of land (or for that portion of the zoning ordinance, in the case of a text amendment request submitted by a property owner or citizen) for a waiting period of ninety (90) days following the denial. In the instance that the request was initiated by the city and involved a proposed amendment to the text of the zoning ordinance, then there is no waiting period before the request can be reconsidered.

1.

The city council may, at its option, waive the 90-day waiting period if, after due consideration of the matter at a scheduled and posted meeting, it is determined that denial of the request was based upon erroneous or omitted information, or if substantial new information pertaining to the request is discovered.

(3)

City council hearing and notice for zoning changes. Notice of the city council public hearing for zoning/rezoning and for zoning ordinance text amendment requests shall be given by publishing the purpose, time and place of such hearing in the official newspaper of the city not less than fifteen (15) days prior to the date of the public hearing.

(4)

Three-fourths vote. A favorable vote of three-fourths of all members of the city council shall be required to approve any change in zoning when written objections are received from twenty (20) percent of the area of the adjacent landowners which comply with the provisions of V.T.C.A., Local Government Code § 211.006 (commonly referred to as the "twenty percent [20%] rule"). If a protest against such proposed amendment, supplement or change has been filed with the city secretary, duly signed and acknowledged by the owners of twenty (20) percent or more, either of the area of the lots included in such a proposed change or those immediately adjacent to the area thereof extending two hundred (200) feet therefrom or of those directly opposite thereto extending two hundred (200) feet from the street frontage of such opposite lots, such amendments shall not become effective except by a three-fourths vote of the city council.

(5)

Final approval and ordinance adoption. Upon approval of the zoning request by the city council, the applicant shall submit all related material with revisions, if necessary, to the city for the preparation of the amending ordinance. A metes and bounds description of all property, a survey (i.e., drawing) exhibit, and other appropriate exhibits that are determined necessary by the city manager, or his/her designee, must be submitted with the zoning change request application. The zoning request shall be deemed approved at the time the city council makes a decision to approve the request as submitted or with certain conditions. However, the amending ordinance will not be prepared or formally adopted (i.e., effective) until a correct description and all required exhibits have been submitted to the city manager, or his/her designee.

(a)

Certificates of occupancy shall be required for any of the following.

(1)

Occupancy and use of any nonresidential or multi-family building hereafter erected or structurally altered;

(2)

Change in use of an existing building to a use of a different classification; and

(3)

Change in the use of land to a use of a different classification.

No such use, or change of use, shall take place until a certificate of occupancy therefore shall have been issued by the building official, or his/her designee.

(b)

Procedure for new or altered buildings (i.e., any instance where a building permit is required). Written application for a certificate of occupancy for a new building or for an existing building which is to be altered shall be made at the same time as the application for the building permit for such building. Said certificate shall be issued after the building official, or his/her designee, orders the building or structure inspected and finds no violations of the provisions of this chapter or other regulations which are enforced by the building official, or his/her designee. Said certificate shall be issued by the building official, or his/her designee, after the erection or alteration of such building or part thereof has been completed in conformity with the provisions of this chapter.

(c)

Contents. Every certificate of occupancy shall contain the following: 1) building permit number; 2) the address of the building; 3) the name and address of the owner; 4) a description of that portion of the building for which the certificate is issued; 5) a statement that the described portion of the building has been inspected for compliance with the requirements of the city's building codes for the particular group and division of occupancy; 6) the name of the building official (or his/her designee); 7) use(s) allowed; 8) maximum number of persons/occupants; and 9) issue date of certificate of occupancy.

(d)

Posting. The certificate of occupancy shall be posted in a conspicuous place on the premises and shall not be removed except by the building official, or his/her designee.

(e)

Revocation. The building official (or his/her designee) may, in writing, suspend or revoke a certificate of occupancy issued under the provisions of this chapter whenever the certificate is issued in error, or on the basis of incorrect information supplied, or when it is determined that the building or structure or portion thereof is in violation of any ordinance or regulation or any of the provision of this chapter or the building code and other codes adopted by the city, and any amendments thereto.

(f)

Re-occupancy. Uses which re-occupy an existing space or building (i.e., no structural modifications) shall comply with the zoning requirements of this chapter and with other applicable codes.

(a)

Site plan review.

(1)

Purpose. This section establishes a site plan review process for proposed nonresidential and multi-family residential developments. The purpose of the review is to ensure efficient and safe land development, harmonious use of land, compliance with appropriate design standards, safe and efficient vehicular and pedestrian circulation, parking and loading, and adequate water supply, drainage and storm water management, sanitary facilities, and other utilities and services.

(2)

Applicability. Site plan review and approval shall be required for the following:

a.

Any nonresidential development, including, but not limited to, a school, church, child care center, private recreation facility, etc., within a residential zoning district;

b.

Any multi-family development or manufactured/mobile home park;

c.

Any development with two (2) or more buildings per platted lot;

d.

Any planned development district or specific use provision (public hearings may also be required, see sections 22-30 and 22-31).

No building permit shall be issued for any of the above developments until a site plan and all other required engineering/construction plans are first approved by the city. No certificate of occupancy shall be issued until all construction and development conforms to the site plan and engineering/construction plans, as approved by the city. A public hearing on a site plan is not required unless a site plan is prepared in conjunction with a zoning request for a planned development or an SUP.

(3)

Exemptions and exceptions. Site plan review shall not be required for single-family (attached or detached) or two-family (MF-2) residential developments, except as provided in subsection (2)d. above, unless the proposed subdivision will include a private amenity/facility comprised of one or more buildings (e.g., a private recreation/swimming facility, clubhouse, etc.) or a golf course, or unless the proposed subdivision will have private (i.e., not public) streets. In these instances, site plan submission and approval (in accordance with this section) will be required for the private amenity/facility, the golf course clubhouse/hospitality area, and the gated (i.e., restricted access) entrances.

a.

In the PD-2 Agriculture Zoning District—See section 22-30(d)(2)b. (Planned Developments).

(4)

Site plan submission requirements. The site plan submission shall be comprised of the following (all required items/information must be received by the city manager, or his/her designee, in order for a site plan/development review submission to be considered complete—incomplete submissions will not be reviewed until all deficient items/information have been received):

a.

Verification that all taxes and assessments on the subject property have been paid (see subsection (4) below).

b.

Copies of the site plan (on twenty-four (24) inches × thirty-six (36) inches sheet, and drawn to a known engineering scale that is large enough to be clearly legible), the quantity of which shall be determined by the city manager (or his/her designee) and (if applicable) an application form and filing fee.

c.

If required, complete sets of engineering/construction plans (including the site plan and plat) for all site work and for all required public improvements (e.g., water, wastewater, grading/storm drainage, streets, alleys, fire lanes and hydrants, etc.), the quantity of which shall be determined by the city manager, or his/her designee.

d.

Preliminary plat/final plat submission (as per the subdivision ordinance), if the property has not yet been platted, or a replat submission if additional easements or rights-of-way will need to be established for the proposed development.

e.

Landscaping plans, the quantity of which shall be determined by the city manager, or his/her designee.

f.

Building facade (i.e., elevation) plans, the quantity of which shall be determined by the city manager, or his/her designee (applicable in the PD and CBD districts only).

g.

Application and administrative fee for a tree removal permit (if applicable for removal of existing trees—see section 22-34(g)(2)).

h.

Any additional information/materials (i.e., plans, maps, exhibits, legal description of property, information about proposed uses, etc.) as deemed necessary by the city manager, or his/her designee, in order to ensure that the request is understood.

(5)

No person who owes delinquent taxes, delinquent paving assessments, impact fees, or any other delinquent debts or obligations to the City of Athens, and which are directly attributable to a piece of property shall be allowed to submit an application for site plan/development review until the taxes, assessments, debts, or obligations directly attributable to said property and owed by the owner or previous owner thereof shall have been first fully paid, or until an arrangement satisfactory to the city has been made for the payment of such debts or obligations. It shall be the applicant's responsibility to provide evidence or proof that the taxes have been paid.

(6)

Site plan details. The site plan and accompanying engineering/construction plans (if required) shall contain sufficient information relative to site design and construction to clearly show the extent of the proposed development/construction, and shall include but not be limited to the following:

a.

A site inventory analysis including major existing vegetation, natural water courses, creeks or bodies of water, and an analysis of planned changes in such natural features as a result of the development. This shall include a delineation of any flood prone areas.

b.

Any existing and proposed public/private streets and alleys; building sites or lots; any areas reserved as parks, parkways, playgrounds, utility easements or school sites; any proposed street widening and street changes (i.e., median cuts and turn lanes); the points of ingress and egress from existing/proposed streets; location and description of existing and proposed utility services, including size of water and sewer mains and laterals, and storm drainage structures (including grading); the location and width for all driveway openings; topography at no more than two-foot contours; and existing development on all abutting sites and the zoning classification thereof.

c.

Placement of all buildings on the site, showing the building footprints and setback lines, and all property lines, street curb lines, alley lines, easements, screening walls, signage, any service/delivery areas for trucks, fire lanes, and parking areas (including parking space counts and a schedule of parking ratios used for the various proposed uses).

d.

A landscape plan showing turf areas, screening walls, ornamental plantings, any existing trees that will be preserved (and techniques to be used to ensure preservation) or removed (tree removal permit required—see section 22-34(g)(2)), all new trees to be planted, and irrigation plans (if required).

e.

Building facade (i.e., elevation) plans showing elevations with any attached (i.e., wall-mounted) signage to be used, as determined appropriate by the city manager, or his/her designee (applicable in the PD and CBD districts only).

Provision of the above items shall conform to the principles and standards of this chapter. To ensure the submission of adequate information, the city is hereby empowered to maintain and distribute a separate list of specific requirements for site plan review applications. Upon periodic review, the city manager (or his/her designee) shall have the authority to update such requirements for site plan/development review applications. It is the applicant's responsibility to be familiar with, and to comply with, all city requirements and procedures for site plan review/approval.

(7)

Supplemental requirements. The city's staff may require other information and data for specific site plans. This data may include but is not limited to geologic information, water yields, flood data and/or hydrological studies, environmental information, traffic impact analysis, road capacities, market information, economic data for the proposed development, hours of operation, elevations and perspective drawings, lighting, and similar information. Approval of a site plan may establish conditions for construction based upon such information.

(8)

Principles and standards for site plan review and evaluation. The following criteria have been set forth as a guide for evaluating the adequacy of proposed development within the City of Athens, and to ensure that all developments are, to the best extent possible, constructed according to the city's codes and ordinances.

The city manager, or his/her designee, shall review the site plan for compliance with all applicable city ordinances and with the comprehensive plan; for harmony with surrounding uses and with long-range plans for the future development of Athens; for the promotion of the health, safety, order, efficiency, and economy of the city; and for the maintenance of property values and the general welfare.

Site plan review and evaluation by the city manager, or his/her designee, shall be performed with respect to the following:

a.

The site plan's compliance with all provisions of the zoning ordinance and other ordinances of the City of Athens including, but not limited to, off-street parking and loading, lighting, open space, landscaping, existing tree preservation/removal, and the generation of objectionable smoke, fumes, noise, odors, dust, glare, vibration, or heat.

b.

The impact of the development relating to the preservation of existing natural resources on the site and the impact on the natural resources of the surrounding properties and neighborhood.

c.

The relationship of the development to adjacent uses in terms of harmonious design, setbacks, maintenance of property values, and any possible negative impacts.

d.

The provision of a safe and efficient vehicular and pedestrian circulation system.

e.

The design and location of off-street parking and loading facilities to ensure that all such spaces are usable and are safely and conveniently arranged.

f.

The sufficient width and suitable grade and location of streets designed to accommodate prospective traffic and to provide access for fire fighting and emergency equipment to buildings.

g.

The coordination of streets so as to arrange a convenient system consistent with the Future Thoroughfare Plan of the City of Athens, as amended.

h.

The use of landscaping and screening to provide adequate buffers to shield lights, noise, movement, or activities from adjacent properties when necessary, and to complement and integrate the design and location of buildings into the overall site design.

i.

Exterior lighting to ensure safe movement and for security purposes, which shall be arranged so as to minimize glare and reflection upon adjacent properties.

j.

The location, size, and configuration of open space areas to ensure that such areas are suitable for intended recreation and conservation uses.

k.

Protection and conservation of soils from erosion by wind or water or from excavation or grading.

l.

Protection and conservation of water courses and areas subject to flooding.

m.

The adequacy of water, drainage, sewerage facilities, solid waste disposal, and other utilities necessary for essential services to residents and occupants.

(b)

Approval process.

(1)

The city manager (or his/her designee) shall review and evaluate all site plan submissions, and shall have the authority to approve the site plan (except for site plans required by a planned development or an SUP), to approve the site plan with conditions or stipulations, or to deny the site plan for specific reasons.

(2)

If the site plan is denied by the city manager, or his/her designee, then the applicant may appeal (in writing) this decision to the city council. The city manager, or his/her designee, shall schedule consideration of the site plan on the regular agenda of the city council within thirty (30) days after receipt of the written appeal. The city council shall review the site plan and shall have final authority to approve the site plan, approve the site plan with conditions or stipulations, or deny the site plan.

(3)

Effect of site plan approval. If development of a lot with an approved site plan has not commenced (i.e., a building permit has not been applied for or issued) within one (1) year of the date of final approval of the site plan, then the site plan shall be deemed to have expired. Re-submission of the site plan (i.e., following expiration as described herein) shall be in accordance with site plan submission and review procedures then in effect and shall be accompanied by all required items/information (including payment of filing fees), and reconsideration of the site plan shall take into account all changes to applicable ordinances which may have occurred since prior approval of the site plan.

(c)

Revisions to the approved site plan.

(1)

Minor revisions/amendment. It is recognized that final architectural and engineering design may necessitate minor changes in the approved site plan. In such cases, the city manager, or his/her designee, shall have the authority to approve minor modifications to an approved site plan (which shall be submitted as an "amended site plan" which substantially conforms to the previously approved site plan), provided that such modifications do not materially change traffic circulation, building location(s) on the site, proximity of building(s) to nearby residential areas, the size or height (i.e., enlarge) of building(s), or any other conditions specifically attached as part of city council's approval of the site plan. Submission materials and requirements for approval of an amended site plan shall be as determined by the city manager, or his/her designee.

(2)

Major revisions. In the event of revisions that are more extensive in nature (i.e., do not conform to the description for minor amendments above), a "revised site plan" must be resubmitted and shall be reviewed by the city manager (or his/her designee) in accordance with the procedures set forth in this section.