A.

Types of Appeals

The following are the types of Zoning Regulation Appeals contained within this Zoning Ordinance:

1.

Appeal of a City Administrative or Interpretative Decision

a.

Any person, department, board, or bureau of the City affected by any administrative officer acting pursuant to the Zoning Ordinance regulations shall appeal to the Board of Adjustment.

b.

In exercising the Board's authority herein, the Board may reverse or affirm, in whole or in part, or modify the City administrative official's order, requirement, decision, or determination from which an appeal is taken and make the correct order, requirement, decision, or determination, and for that purpose the Board has the same authority as the City's administrative official.

c.

Public hearings shall be held in accordance with 90-7.02.E.3.a.

2.

Appeal to the City Council of a Vested Rights Determination Decision

See 90-8.04.E., Vested Rights Appeal to the City Council for details.

3.

Appeal to District Court of a decision of the City Council or Board of Adjustment

Any person, department, board, or bureau of the City affected by a decision of the City Council or Board of Adjustment may appeal to District Court.

B.

Appeals Procedure to the City Council or Board of Adjustment

1.

Timing and Fee

Appeal to the City Council or Board of Adjustment shall be taken within 30 calendar days from the date of the decision by filing with the City Secretary a notice of appeal specifying the grounds thereof, and by paying a filing fee at the office of the City Secretary at the time the notice is filed.

2.

Transmission of Record

The City Secretary shall transmit to the Board of Adjustment all the papers constituting the record upon which the action appealed from was taken.

3.

Stays of Proceedings

An appeal stays all proceedings in furtherance of the action appealed from, unless the Planning Director certifies to the City Council or Board of Adjustment, that by reason of facts stated in the certificate a stay would, in the Planning Director's opinion, cause imminent peril to life or property.

C.

Appeals Procedure to District Court

1.

Timing

An appeal from any action, decision, ruling, judgment, or order of the City Council or Board of Adjustment may be taken by any person or persons, jointly or severally, or any taxpayer; or any officer, department, board, or bureau of the City to the district or county court by filing notice of appeal with the City Secretary and with the Board of Adjustment within ten calendar days from the filing of the decision of the board, which notice shall specify the grounds of such appeal.

2.

Transmission of Record

Upon filing of the notice of appeal as herein provided, the court may grant a writ of certiorari directed to the board in this event, the City Council or Board of Adjustment shall transmit to the court clerk and the petitioner the original or certified copy of the papers constituting the record in the case, together with the order, decision, or ruling.

3.

Stays of Proceedings

An appeal to the district court from the City Council or Board of Adjustment stays all proceedings in furtherance of the action appealed from, unless the Mayor or chairperson of the Board of Adjustment, from which the appeal is taken certifies to the court clerk, after the notice of appeal shall have been filed, that by reasons of fact stated in the certificate, a stay would, in her or his opinion, cause imminent peril to life or property.

D.

Fees

All fees for all types of Applications, forms, plans, notifications, appeals, and petitions required under this Zoning Ordinance shall be established by the City Council within the Fee Schedule.

(Ord. No. 3154-17, § 1, 4-10-2017)

A.

Purpose

1.

The Board of Adjustment is authorized in specific cases to grant a Zoning Variance from the Zoning Regulation terms, standards, and criteria that pertains to an allowed use within a zoning district.

2.

A Zoning Variance is authorized by this Zoning Ordinance when such cases are shown not to be contrary to the public interest if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in an undue hardship and so that the spirit of the ordinance shall be observed and substantial justice done; provided, however, the Board of Adjustment shall have no power to authorize a Zoning Variance provided in Subsection 90-8.02.D.8, Limitations on the Authority of Board of Adjustment to Grant Zoning Variances.

B.

Zoning Variance Applicability

The Board of Adjustment is authorized in specific cases to grant a Zoning Variance from the following regulations to prevent undue hardships:

1.

Open Space (Yard) Dimensions;

2.

Lot Dimensions;

3.

Floor Area;

4.

Structure Height;

5.

Building Coverage;

6.

Reconstruction of a Nonconforming Structure per Subsection 90-3.06.G., Restoration of Nonconforming Structures;

7.

Tree Preservation and Mitigation per Subsection 90-4.01.C., Tree Preservation and Mitigation Requirements.

C.

Granting Authority

1.

Undue Hardship Shall Exist

The Board of Adjustment may authorize a Zoning Variance from these Zoning Regulations when, due to special conditions, an undue hardship will result from requiring compliance.

2.

Harmony with the Zoning Purpose and Intent Shall Exist

A Zoning Variance may be granted only when the Zoning Variance is not contrary to the public interest and is in harmony with the general purpose and intent of this Zoning Ordinance so that the public health, safety, and welfare may be secured and that substantial justice may be done.

3.

Zoning Variance Processing and Review

The Planning Director shall process and review a Zoning Variance.

4.

Board Conditions of Approval

In granting a Zoning Variance, the Board shall prescribe only conditions that it deems necessary for, or desirable to, the public interest.

5.

Board Considerations

In making the findings within 90-8.02.D., Criteria for Zoning Variance Approval, the Board shall take into account:

a.

The nature of the proposed use of the land involved,

b.

Existing uses of land in the vicinity,

c.

The number of persons who will reside or work within the proposed use, and

d.

The probable effect such Zoning Variance will have upon traffic conditions and upon the public health, safety, convenience and welfare of the community.

Such findings of the Board of Adjustment, together with the specific facts upon which such findings are based, shall be incorporated into the official minutes of the Board of Adjustment meeting at which such Zoning Variance is granted.

D.

Criteria for Zoning Variance Approval

No Zoning Variance shall be granted without first having given public notice and having held a public hearing on the Zoning Variance request in accordance with 90-7.02 Public Hearings and Notification Requirements for Zoning Related Applications and unless the Board of Adjustment finds all the following criteria are met:

1.

Unique Circumstances

That there are special circumstances or conditions affecting the land involved such that the application of the Zoning Ordinance's provisions would deprive the Applicant of the reasonable use of his/her land.

2.

Minimum Necessary Relief Required to Alleviate the Undue Hardship

The Zoning Variance, if granted, would be the minimum necessary relief required to alleviate the undue hardship.

3.

Preservation of Property Rights

That the Zoning Variance is necessary for the preservation and enjoyment of a substantial property right of the Applicant.

4.

No Substantial Detriment to the Public Good

That the granting of the Zoning Variance will not be detrimental to the public health, safety or welfare, impair the purposes and intent of this Zoning Ordinance and the Comprehensive Plan or be injurious to other property within the area.

5.

Orderly Use of Land

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

6.

Precedent

The granting of an individual Zoning Variance will not set a precedent.

7.

Finding of Undue Hardship

In order to grant a Zoning Variance, the Board of Adjustment must make findings that an undue hardship exists, using the following criteria:

a.

That literal enforcement of the controls will create an undue hardship or practical difficulty in the development of the affected property; and

b.

That the situation causing the hardship or difficulty is neither self-imposed nor generally affecting all or most properties in the same zoning district; and

c.

That the relief sought will not injure the permitted use of adjacent conforming property; and

d.

That the granting of a Zoning Variance will be in harmony with the spirit and purpose of these regulations; and

e.

Financial hardship alone is not an "undue hardship" if the property can be used, meeting the requirements of the zoning district in which the property is located.

8.

Limitations on the Authority of Board of Adjustment to Grant Zoning Variances

a.

Use Zoning Variance

The Board of Adjustment may not grant a Zoning Variance authorizing a use other than those permitted in the district for which the Zoning Variance is sought, except as specifically provided for in this Zoning Ordinance.

b.

Specific Use Permit Provision

The Board of Adjustment shall have no power to grant or modify provisions of a SUP authorized under 90-7.10 Specific Use Permit (SUP).

c.

Zoning Amendments

i.

The Board of Adjustment shall have no power to grant Zoning Text and Map Amendments.

ii.

In the event that a request for a Zoning Text Amendment or Zoning Map Amendment (Rezoning) is pending before the Planning and Zoning Commission or the City Council, the Board of Adjustment shall neither hear nor grant any Zoning Variance with respect to the subject property until final disposition of the Zoning Text Amendment or Zoning Map Amendment (Rezoning) by the Commission and the City Council.

iii.

Pending Action.

iv.

The Board of Adjustment shall not grant a Zoning Variance for any parcel of property or portion thereof upon which a required Site Plan or any Plat is pending on the agenda of the Planning and Zoning Commission and/or the City Council.

v.

All administrative and procedural remedies available to the Applicant shall have been exhausted prior to hearing by the Board of Adjustment.

E.

Concurring Vote of 75 Percent Required

Pursuant to V.T.C.A., Local Government Code § 211.009(c), the concurring vote of 75 percent of the members of the Board of Adjustment is necessary to grant a Zoning Variance.

(Ord. No. 3154-17, § 1, 4-10-2017)

A.

Purpose

The Board of Adjustment is authorized to hear and decide a Zoning Special Exception that if controlled in the particular instance as to its relationship to the neighborhood and to the general welfare may be permitted by the Board of Adjustment, where specifically authorized by 90-8.03.D., Zoning Special Exception Authorized, and in accordance with the substantive and procedural standards of the Zoning Ordinance.

B.

Zoning Special Exception Defined

A Zoning Special Exception is an allowed variation from the Zoning Regulations, but is differentiated from a Zoning Variance as the term is used in this Zoning Ordinance by the following:

1.

No Hardship Required

A Zoning Special Exception does not require a finding of an undue hardship.

2.

Specifically Allowed and Pre-Determined by the Zoning Ordinance

Approval of a Zoning Special Exception by the Board of Adjustment is specifically provided for and defined in this Zoning Ordinance.

C.

Requests for a Zoning Special Exception

1.

The Board of Adjustment may grant a Zoning Special Exception in accordance to the provisions of Subsection 90-8.03.D., Zoning Special Exception Authorized upon written request of the property owner.

2.

The Planning Director shall process and review a Zoning Special Exception.

D.

Zoning Special Exception Authorized

When in the Board of Adjustment's judgment, the public convenience and welfare will be substantially served and the appropriate use of the neighboring property will not be substantially injured, the Board of Adjustment may, in specific cases, after public notice and public hearing (see Section 90-7.02 Public Hearings and Notification Requirements for Zoning Related Applications) and subject to appropriate conditions and safeguards, authorize the following Zoning Special Exceptions to the regulations herein established:

1.

Nonconforming Uses or Structures

a.

Permit the reconstruction, extension or enlargement of a building occupied by a nonconforming use on the lot or tract occupied by such building provided such reconstruction does not prevent the return of such property to a conforming use and permit the expansion of off-street parking or off-street loading for a nonconforming use.

b.

Permit such modification of the height, yard, area, coverage and parking regulations as may be necessary to secure appropriate development of a parcel of land that differs from other parcels in the district by being of such restricted area, shape, or slope that it cannot be appropriately developed without such modification.

2.

Residential Setbacks

For existing single-family residential and duplex (two-family) structures that were legally constructed prior to the effective date of this Zoning Ordinance, the Board of Adjustment may authorize a Zoning Special Exception for any structure that was constructed over a setback line established by this Zoning Ordinance.

3.

Grant Exceptions to the Off-Street Parking Requirements

To grant Zoning Special Exceptions to the off-street parking requirements set forth in 90-4.03, Parking Standards when it is determined:

a.

That the size and shape of the lot to be built on is such that off-street parking provisions could not be complied with, and the proposed use will not create undue traffic congestion in the adjacent streets, or

b.

That the use can share parking with other adjacent uses upon provision of a shared parking study, or

c.

That a use needs additional parking spaces above the maximum standard to accommodate anticipated parking needs.

E.

The Board may Impose Conditions

In granting Zoning Special Exceptions under this Section 90-8.03, the Board 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 brought into conformance with the provisions of this Zoning Ordinance.

F.

Concurring Vote of 75 Percent Required

Pursuant to V.T.C.A., Local Government Code § 211.009(c), the concurring vote of 75 percent of the members of the Board of Adjustment is necessary to grant a Zoning Special Exception.

(Ord. No. 3154-17, § 1, 4-10-2017)

A.

Purpose

The purpose of a vested rights petition is to determine whether one or more standards of this Zoning Ordinance should not be applied to a plan or application, or whether certain permits are subject to expiration.

B.

Applicability

A vested rights petition may be filed for an application, permit, or plan required under this Zoning Ordinance. Any property owner who believes that she or he has obtained a vested right shall submit to the Planning Director a petition letter explaining the factual and legal bases upon which the property owner relies in her or his contention that she or he has a particular vested right and, consequently, is exempt or not subject to a particular City order, standard, regulation, ordinance, rule, expiration date, or other properly adopted requirement (hereinafter referred to collectively as "regulations").

C.

Petition Requirements

The vested rights petition shall allege that the petitioner has a vested right that requires the City to review and decide the application under standards in effect prior to the effective date of the currently applicable standards. The petition shall include the following information and documents:

1.

Narrative Description for Purpose of Petition

A narrative description of the grounds for the petition, including a statement as to whether the petition asserts a vested right related to a specific regulation or to an entire project.

2.

Copies of Applications

A copy of each approved or pending application which is the basis for the contention that the City may not apply current standards to the application which is the subject of the petition.

3.

Submittal Date of First Application

The submittal date of the first application that began the vesting process.

4.

Submittal Date of Subsequent Applications

If applicable, the submittal dates of subsequent applications for the permits for the project.

5.

Identification of Vested Regulations

Identification of all regulations otherwise applicable to the application from which relief is sought.

a.

If a property owner contends that certain City regulations do not apply to a project, the property owner is expected to identify, with particularity, all requirements that the property owner contends do not apply.

b.

Global references to a particular ordinance, or set of criteria, may be deemed insufficient and the City may consider the request for a vested rights determination to be incomplete and, hence, not subject to a staff determination at that time.

6.

Identification of non-vested regulations

Identification of any current regulations which petitioner agrees can be applied to the application at issue.

7.

Narrative description of how current regulations affect proposed use

A narrative description of how the application of current regulations affect proposed use of the land, landscaping or tree preservation, open space, or park dedication, lot size, lot dimensions, coverage or building size shown on the application for which the petition is filed.

8.

Copies of prior vested rights determinations

A copy of any prior vested rights determination involving the same land.

9.

Benchmarking project progress for expiring permits or applications

Whenever the petitioner alleges that a permit or application subject to expiration should not be terminated, a description of the events constituting progress toward completion of the project for which the permit subject to expiration was approved.

D.

Vested Rights Determination

1.

Vested Rights Petition Processing

The Planning Director shall promptly forward the owner's vested rights request, along with any supporting information or documentation provided along with the request, to the City Attorney for her or his review.

2.

Determination by the Planning Director

a.

The Planning Director, after consultation with the City Attorney, shall issue a final administrative determination of whether a vested right exists in relation to the project, and shall identify, with particularity, all claims for vested rights exists in relation to the project, and shall identify, with particularity, all claims for vested rights that have been granted and all claims for vested rights that have been denied.

b.

The Planning Director shall issue a final administrative determination within 30 business days from the receipt of the petition.

3.

Vesting Pre-determination Conference

Prior to rendering his final determination, the Planning Director may request a pre-determination conference with the owner to discuss the owner's vested rights claim and to ensure that the nature of the claim is fully and completely understood by the Planning Director prior to a final determination being rendered.

E.

Vested Rights Appeal to the City Council

1.

If the property owner believes that the Planning Director's vested rights determination is in error, the property owner shall have the right to appeal such determination to the City Council, which shall have jurisdiction to hear and decide the appeal.

2.

Any vested right petition shall be approved or denied in their entirety and shall not be modified.

(Ord. No. 3154-17, § 1, 4-10-2017)