Balcones Heights City Zoning Code
ARTICLE 2
ADMINISTRATION AND PROCEDURES
§ 153.2.1.1 CITY COUNCIL.
The City Council shall exercise all final legislative authority over zoning matters as authorized by Tex. Local Government Code Ch. 211.
(Ord. 2011-06, passed 4-11-11; Am. Ord. 2011-22, passed 11-14-11)
§ 153.2.1.2 PLANNING AND ZONING COMMISSION.
(1)
Purpose.
The Planning and Zoning Commission has been created in order to accomplish the following purposes:
(a)
To identify community needs and to advise the City Council of the short-range and long-range implications for the total development of the city;
(b)
To recommend achievable community goals as a basis for long-range planning and development programs:
(c)
To advise the City Council on implementation of the Comprehensive (Master) Plan:
(1)
To review and make recommendations on zoning amendments for compliance with the Comprehensive (Master) Plan;
(2)
Review and make recommendations on the platting or re-platting of property;
(3)
Review and approve site plans consistent with the standards in this appendix and the existing zoning for the property;
(4)
Propose zoning amendments to the City Council;
(5)
Advise the City Council on amendments and implementation of the Comprehensive (Master) Plan;
(d)
Undertake other duties as authorized by the City Council, the city code, and the laws of the State of Texas.
(2)
Membership and appointment.
The Planning and Zoning Commission shall be composed of five qualified electors of the city appointed by the City Council. Two alternate members may also be appointed by the City Council to serve when one or more regular members are absent. Alternate members will have all rights and privileges when serving in the place of a regular member who is absent. Alternate members may be qualified electors of the city, owners of property in the city, business owners or employed in the city. The City Council will consider for appointment to the Commission persons who have demonstrated their civic interest, general knowledge of the community, independent judgment, interest in planning and zoning, and availability to prepare for and attend meetings. It is the intent of the City Council that members shall, by reason of diversity of their individual occupations, constitute a commission which is broadly representative of the community.
(3)
Terms of office.
The members of the Planning and Zoning Commission shall be identified by place numbers one through five. The odd numbered places shall expire on June 30 in odd-numbered years; the even-numbered places shall expire on June 30 in the even-numbered years. Commission members may be appointed to succeed themselves. Vacancies shall be filled for unexpired terms, but no member shall be appointed for a term in excess of two years. Newly appointed members shall be installed at the first regular Commission meeting after their appointment.
(4)
Organization.
The Planning and Zoning Commission shall hold an organizational meeting in July of each year and shall:
(a)
Elect a Chairperson and Vice-Chairperson from among its members before proceeding to any other matters of business;
(b)
Elect a secretary and such other officers as it deems necessary, either from its membership or from city staff representatives assigned by the City Administrator to work with the Commission;
(c)
Meet regularly in accordance with the published schedule of meetings. All meetings shall comply with the requirements of the Texas Open Meetings Act;
(d)
Adopt its own rules of procedure and keep a record of its proceedings consistent with the provisions of this subchapter and the requirements of Texas Open Meetings Act; and
(e)
The City Administrator or designee shall provide administrative support to the Commission and have such other authority and duties as the Commission may establish.
(5)
Duties and powers.
The Planning and Zoning Commission is charged with the duty and invested with the authority to:
(a)
Formulate and recommend to the City Council for its adoption a comprehensive (master) plan for the orderly growth and development of the city and from time-to-time recommend such changes in the plan as it finds will facilitate the movement of people and goods, and the health, recreation, safety, and general welfare of the citizens of the city;
(b)
Formulate and recommend to the City Council a zoning ordinance and map as may be deemed best to carry out the goals of the comprehensive (master) plan; hold public hearings and make recommendations to the City Council relating to the creation, amendment and implementation of zoning regulations and districts, as provided in Tex. Local Government Code Ch. 211, as amended, authorizing cities to pass regulations; all powers granted under the act are specifically adopted and made a part hereof;
(c)
Review and make recommendations regarding site plans, when required, for consistency with the standards in this appendix and the existing zoning for the property;
(d)
Review and approve recommend building and site designs for consistency with the standards in this appendix;
(e)
Study and recommend on the location, extension and planning of public rights-of-way, parks or other public places, and on the vacating or closing of same;
(f)
Study and make recommendations concerning the capital improvements program, including the construction of public buildings, bridges, viaducts, street fixtures and other structures and appurtenances. Study and recommend on the design or alteration and on the location or relocation of works of art which are, or may become, the property of the city;
(g)
Initiate, in the name of the city, for consideration at public hearings all proposals for the opening, vacating or closing of public rights-of-way, parks or other public places; for the original zoning of annexed areas; and for the change of zoning district boundaries on an area-wide basis. No fee shall be required for the filing of any such proposal in the name of the city;
(h)
Formulate and recommend to the City Council for its adoption policies and regulations consistent with the adopted comprehensive plan governing the location and/or operation of utilities, public facilities and services owned or under the control of the city or serving the city;
(i)
Review and make recommendations concerning annexation or de-annexation of land into the city;
(j)
Keep informed with references to the progress of city planning in the United States and other countries and recommend improvements in the adopted plans of the city;
(k)
Submit each quarter a written progress report to the City Council summarizing its activities major accomplishments for the past year, and a proposed work program for the coming year. The report shall contain for the year the attendance record of all members and the identity of Commission officers; and
(l)
The City Planning and Zoning Commission shall exercise all the powers as a Commission as to approval or disapproval of plats and re-plats as set out in Tex. Local Government Code Ch. 211.
(6)
Quorum.
A quorum shall consist of three or more voting members of the Commission.
(7)
Rules of order.
(a)
A motion may be made by any member other than the presiding officer.
(b)
A motion to approve or deny any matter before the Commission or to recommend approval or disapproval of any request requiring City Council action shall require a favorable vote from a simple majority of the Commission members present at such meeting.
(c)
When more than three members are present at any meeting, all members may vote on any motion or action of the Commission.
(d)
The Commission shall conduct meetings in accordance with Robert’s Rules of Order.
(8)
Disqualification from voting.
A member shall disqualify himself or herself from voting whenever he or she finds that he or she has a substantial interest as defined in Tex. Local Government Code Ch. 171 in the property under consideration, or that he or she may be affected by the decision of the Commission.
(Ord. 2011-06, passed 4-11-11; Am. Ord. 2011-22, passed 11-14-11; Ord. 2017-05, passed 4-24-17)
§ 153.2.1.3 BOARD OF ADJUSTMENT.
(1)
Creation of Board of Adjustment.
(a)
There is hereby created a Board of Adjustment of five members who are appointed by the city council. The member of the Board may be a resident of the City, the Mayor-or any member of the City Council and shall serve during their term in office.
(b)
Each of the five members of the Board shall be entitled to one vote in all deliberations of the Board.
(c)
The City Council shall also appoint up to four alternate members to the Board of Adjustment, who shall serve in the absence of one of the regular members. The Mayor-or any member of the City Council may serve as an alternate during their term in office. Alternate members will have all rights and privileges when serving in the place of a regular member who is absent.
(d)
Both regular and alternate members may be removed as a member of the Board of Adjustment for cause by the City Council. Vacancies shall be filled for the unexpired term of any member or alternate member whose term becomes vacant.
(2)
Terms.
Each member of the Board shall serve a two-year term.
(3)
Organization.
(a)
The Board shall elect a Chairperson and Vice Chairperson from the Board’s membership. The Board Secretary shall be the City Secretary.
(b)
The chairperson shall serve a term of two years concurrent with the term as Mayor of the city.
(c)
Notice of each application considered by the Board shall be made by the applicant in the manner approved by the Board.
(4)
Meetings.
(a)
Meetings of the Board shall be held at the call of the chairperson and at such other times as the Board may determine.
(b)
All meetings of the Board shall be open to the public and shall be subject to the Texas Open Meeting Act. The Board shall conduct meetings in accordance with Robert’s Rules of Order.
(5)
Rules and regulations.
(a)
All orders and other enactments adopted by the Board shall be in accordance with this appendix and its rules and regulations.
(b)
The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, of if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions.
(c)
Each case shall be heard by at least four (4) Board members. The concurring vote of four members of the Board shall be necessary to: (1) reverse any order, requirement, decision or determination of an administrative official, or (2) to decide in favor of the applicant on any matter upon which the Board is authorized to act.
(d)
A motion may be made by any member other than the presiding officer.
(6)
Appeals to the Board of Adjustment.
(a)
The Board shall have the following duties:
(i)
Shall hear and decide appeals when error is alleged in any order, requirement, decision or determination made by an administrative official in enforcement of the act or zoning ordinance;
(ii)
Shall make special exceptions as allowed or required by the zoning ordinances, in appropriate cases and subject to appropriate conditions and safeguards, in harmony with the general purpose and intent, and in accordance with general or specific rules contained in the various city ordinances; and
(iii)
Shall authorize, on appeal, variances from the terms of the ordinances that will not be contrary to the public interest, when, because of special conditions a literal enforcement of the ordinance will result in unnecessary hardship, so the spirit of the ordinance will be observed and substantial justice done. Prior to granting a variance, the Board shall find that at least one of the following shall be found:
a.
There are extraordinary and exceptional conditions pertaining to the particular property in question because of its size, shape, or topography;
b.
The application of this appendix to the particular property would create an unnecessary hardship;
c.
Such conditions are peculiar to the particular piece of property involved;
d.
Relief, if granted, would not cause substantial detriment to the public good or impair the purpose and intent of this appendix; provided however, that no variance may be granted for a use of land or building or structure that is prohibited by this appendix;
e.
Uses not provided for in Article 3: Whenever, in any district established under this appendix, a use is neither specifically permitted nor denied, and an application is made by a property for such use, the application shall be referred to the Board of Adjustment, which shall have the authority to permit the use or deny the use. The use may be permitted if it is similar to and compatible with permitted uses in the district and in no way is in conflict with the general purpose and intent of this appendix;
(iv)
Before the tenth day before the hearing date, written notice of each public hearing before the Board of Adjustments on a request for variance shall be sent to each owner, as indicated by the most recently approved municipal tax roll, of real property within 200 feet of the property on which the request for variance is made. The notice may be served by its deposit in the municipality, properly addressed with postage paid, in the United States mail. Responses to such notices shall be duly noted and entered into the minutes of the Board of Adjustment hearing.
(7)
Conditions required for variance.
No variance application shall be granted unless the following conditions are fulfilled:
(a)
The applicant established by competent evidence that:
(8)
Procedure for appeals to the Board.
(a)
Appeal to Board.
(i)
The appellant must file with the City Secretary and the official from whom the appeal is taken a notice of appeal specifying the grounds for the appeal and pay a filing fee as may be prescribed by the City Council. An appeal by a person aggrieved by an action of an administrative or building official in the enforcement of this appendix shall be filed with the City Secretary within 30 days after the action complained of was committed. On receiving the notice, the City Secretary and administrative or building official shall transmit to the Board all the papers constituting the record of the action that is appealed.
(ii)
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 Board, 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 a court of record.
(iii)
The Board shall set a reasonable time for the appeal; hearing and shall give public notice of the hearing and due notice to the parties in interest. A party may appear at the appeal hearing in person or by agent or attorney. The Board shall decide the appeal within a 60-day period from the filing of the appeal.
(b)
The Board’s final decision shall be immediately filed with the City Secretary. The time and date that the Board’s final decision is filed with the Board’s office shall be stamped on the face of the decision.
(9)
Variance may lapse after one year.
Any rights authorized by a variance which are not exercised within one year from the date of granting such variance shall lapse and may be reestablished only after notice and a new hearing pursuant to this section. The Board may waive the requirement for the payment of fees for such variance renewal application if there has been no material change of conditions pertaining to the property since the granting of the first variance.
(10)
Limitations.
(a)
No appeal under this article may be filed by the same applicant within 365 days of the date upon which the Board denied such appeal, request or application, unless other property in the immediate vicinity has, within the 365-day period, been changed or acted on by the Board so as to alter the facts and conditions upon which the previous Board action was based. Such change of circumstances shall permit the rehearing of an appeal, request or application by the Board prior to the expiration of the 365-day period, but such conditions shall in no way have any force in law to compel the Board to reconsider the appeal, request or application. Such subsequent rehearing shall be considered entirely on its merits and the peculiar and specific conditions related to the property with reference to which such proceeding is brought.
(b)
Any appeal, request or application approved by the Board, either under the provision of this appendix or under the authority granted to the Board under the statutes of the State of Texas, shall authorize the issuance of a Building permit or a certificate of occupancy, as the case may be, for a period of ninety days from the date of the favorable action on the party of the Board unless the Board in its minutes shall, at the same time, approve a longer period. If an application for such building permit or certificate of occupancy is not filed within the 90-day period or such extended period as the Board may specifically approve, then the approval of the appeal or variance shall be deemed waived and all rights there under terminated. Such termination and waiver shall be without prejudice to a subsequent appeal, request or application to the Board in accordance with the rules and regulations herein contained.
(11)
Appeals from the Board of Adjustment.
Any person or persons, jointly or severally, aggrieved by any decision of the Board or any taxpayer, or any officer, department, or board of the city may present any such matter to a court of competent jurisdiction for review after the final action of the Board thereon and in the manner and upon the terms provided by the laws of the state.
(Ord. 2011-06, passed 4-11-11; Am. Ord. 2011-21, passed 10-10-11; Am. Ord. 2011-22, passed 11-14-11; Am. Ord. 2018-17, passed 10-22-18; Ord. 2024-10, passed 8-5-2024)
§ 153.2.1.4 CITY STAFF.
The City Administrator or designee shall direct planning and zoning activities as follows:
(1)
City Administrator.
The City Administrator or designee is authorized and empowered on behalf of the City Council to administer and enforce the provisions of this appendix including:
(a)
Receive applications for matters pertaining to this appendix;
(b)
Inspect premises, and issue certificates of zoning compliance, building permits and certificates of occupancy for uses and structures which are in conformance with the provisions of this appendix;
(c)
Interpret the meaning of the ordinance in the course of enforcement;
(d)
Propose zoning amendments as provided in this appendix;
(e)
Advise the Planning and Zoning Commission and City Council on implementation of the Comprehensive (Master) Plan and Zoning Ordinance.
(2)
Responsibilities.
The City Administrator or designee shall:
(Ord. 2011-06, passed 4-11-11; Am. Ord. 2011-22, passed 11-14-11)
§ 153.2.2.1 APPLICATIONS.
All applications submitted under this appendix shall be made on forms provided by the City. All applications shall be made according the published Planning and Zoning Commission schedule.
(1)
Summary of review procedures.
A summary of review processes and procedures is illustrated in Figure 2.1:
Figure 2.1 Review Procedures | ||||||||||
|---|---|---|---|---|---|---|---|---|---|---|
Application Type | ||||||||||
Review Body | Map Amendment | Zoning Text Amendment | Site Plan Approval | Special Use Permit | Special Exemption | Administrative Review | Variance | Building Permit | Tree Permit | CofO/ Zoning Compliance |
City Administrator/ Designee | A RR | A RR | A RR | A RR | A RR | A RR D | A RR | A RR D | A RR D | A RR D |
Planning/Zoning Commission | H RR | H RR | RR | H RR | H RR | |||||
City Council | H D | H D | D | H D | H D | |||||
Board of Adjustment | H D | H D | H D | |||||||
Key: |
|---|
A: Application submission received and determination of complete application |
RR: Review and/or recommendation |
H: Public Hearing subject to notice and procedure requirements of this appendix |
D: Final decision |
(2)
Zoning amendment applications.
(a)
Zoning text amendment.
An amendment to the text of the zoning ordinance shall only be initiated by the City Administrator or the City Council acting through official act to initiate such matter. Other individuals requesting an amendment to the text of the zoning ordinance must request one of these authorized parties to sponsor the proposed amendment.
(b)
Zoning map amendment.
All petitions, applications, recommendations or proposals for changes in the zoning district of property (referred to as a “rezoning”) or for changes in the textual provisions of this chapter shall be filed with the City Administrator or designee, and a pre-application conference is required for all applications prior to submittal of the applications. This conference must take place between the applicant and the City Administrator or designee. A proposed rezoning may be initiated by:
(i)
An official act of City Council;
(ii)
An application properly signed and filed by the owner or, with the owner’s specific written consent, a contract purchaser or owner’s agent of a property included within the boundaries of a proposed rezoning, unless otherwise provided for by this chapter. When an amendment is initiated, an application for such amendment shall be submitted to the City Administrator or designee; or
(iii)
The City Administrator pursuant to an annexation service plan or to correct an administrative error in the rezoning of a tract of land pursuant to this chapter.
(c)
Application.
An application for a zoning map amendment shall be submitted in person by the property owner, an agent of the property owner, or authorized individual acting on behalf of the affected property owner on the application form provided by the City Administrator. The application shall include all information requested on the application form. The City Administrator shall determine if the application is complete within five business days following submission thereof. If the application is not complete, the City Administrator shall notify the applicant in writing indicating necessary steps to cure the incomplete application.
(d)
Fees to accompany application.
When an application is filed for change of zoning district boundaries or for any change of this chapter or classification, such application shall be accompanied by a fee in the amount stipulated by the City Council. The fee shall be paid (in cash, certified check, or cashier’s check) to the city immediately upon filing such application. No notice of any such application shall issue and no hearing shall be had before either the Planning and Zoning Commission or the City Council until such prescribed fees are paid. The City Administrator or designee shall keep and preserve an itemized record of all fees received and disposition thereof.
(e)
Published notice and hearings.
Hearings required. No zoning map or text amendment shall become effective until after public hearing(s) are held in accordance with state law, at which times parties in interest and citizens shall have an opportunity to be heard.
(i)
Planning and Zoning Commission.
The Planning and Zoning Commission, after written public notice in accordance with Tex. Local Government Code §211.007(c), shall hold at least one public hearing on such application and as a result thereof shall transmit its final report to the City Council. All applications for a change in zoning which have been considered by the Planning and Zoning Commission shall be presented by the applicant to the City Council within six months from the date of the Commission’s final consideration. In the event the applicant fails to present the application for rezoning to the City Council within the prescribed period, a new original application and fees shall be required. A new application shall not be submitted to the Planning and Zoning Commission for consideration prior to the expiration of the six-month time period specified in subsection (h), below.
(ii)
City Council.
After the final written report of the Planning and Zoning Commission is submitted to the City Council as provided in subsection (i) above the City Council shall consider a zoning change after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. Before the fifteenth day prior to the date of the hearing, notice of the time and place of the hearing shall be published in an official newspaper or a newspaper of general circulation in the city. After the receipt of the final report of the Planning and Zoning Commission, the City Council shall approve or deny the rezoning or text amendment in accordance with Tex. Local Government Code §211.007.
a.
Notice.
Notice of the time and place of such hearings shall be published in accordance with state law.
b.
Review.
A copy of the proposed amendment or completed application shall be made available by the City Administrator for public review upon request.
c.
In the case of a zoning map amendment, a legal description or metes and bounds description of the subject property, as well as a general description of any property shall be provided, including any common name by which the property is known.
d.
Posted notice.
The applicant shall post on any specific property, which is the subject of the application, on a sign facing each adjacent public street. The sign shall be furnished to the applicant by the City Administrator at the time of application giving notice of the hearing. The sign shall be posted no later than ten days prior to the hearing before the Planning Commission, and shall remain posted until final action of the City Council. It is the sole responsibility of the applicant to post and maintain the sign in accordance with these regulations. Failure to post this sign may result in postponement or withdrawal of the zoning change application.
e.
Mailed notice.
Before the tenth day before the hearing date, written notice of each public hearing before the Planning and Zoning Commission on an application for zoning amendment shall be sent to each owner, as indicated by the most recently approved municipal tax roll, of real property within 200 feet of the property on which the request for zoning amendment is made. The notice may be served by its deposit in the municipality by the applicant, properly addressed with postage paid, in the United States mail.
f.
Compliance with law.
The foregoing requirements are intended to comply with applicable laws relating to notice. To the extent that such requirements do not so comply with applicable law or in the event any applicable law is hereafter altered, amended or otherwise modified, this section shall be construed so as to comply with such altered, amended or modified law.
(f)
Review process.
The proposed zoning amendment shall be reviewed according to the following:
(i)
A complete application shall be reviewed by the City Administrator or designee.
(ii)
The completed application shall be submitted to the Planning and Zoning Commission. The Commission shall consider the application and take one of the following actions:
a.
Recommend approval of the application to the City Council;
b.
Recommend approval of the application to the City Council, conditioned on specific provisions as permitted with the applicant’s consent;
c.
Recommend denial of the application to the City Council; or
d.
Continue discussion of the application for further study. An application shall only be continued one time without the applicant’s consent before the Commission shall pass it to the City Council for action. Any continuance shall be for a time reasonably necessary to completely and adequately address the issue of further study. An applicant may agree to more continuances.
(iii)
The application shall be submitted to the City Council, with the recommendation of the Commission, unless the Commission has failed to act. The City Council shall consider the application at a public hearing and take one of the following actions:
a.
Approve the application;
b.
Approve the application, conditioned on specific provisions;
c.
Deny the application;
d.
Continue discussion of the application for further study. An application shall only be continued one time without the applicant’s consent before the City Council shall take one of the above actions. Any continuance shall be for a specified time reasonably necessary to completely and adequately address the issue of further study. An applicant may agree to more continuances; or
e.
Refer the proposed amendment to the City Administrator or to the Planning and Zoning Commission for further study and discussion. An application may be referred only once without the applicant’s consent before the City Council shall take one of the above actions. An applicant may agree to more such referrals.
(iv)
Passage when protested.
If a proposed change to a zoning regulation or zoning district boundary is protested in writing and signed by the owners of at least 20 percent of either: (1) the area of the lots or land covered by the proposed change; or (2) the area of the lots or land immediately adjoining the area covered by the proposed change and extending 200 feet from that area, then in accordance with state law, the proposed change must receive the affirmative vote of at least three-fourths of all members of the City Council in order to take effect. In computing the percentage of land area under protest, the area of streets and alleys shall be included.
(g)
Review criteria.
The zoning amendment application shall be reviewed based on the following criteria:
(i)
Compliance with the Comprehensive (Master) Plan;
(ii)
Compliance with the standards, goals, and intent of this appendix;
(iii)
The character of the surrounding property, including any pending development activity;
(iv)
Adequacy of public infrastructure to support the proposed development;
(v)
Impacts on natural resources, including existing conditions and ongoing post-development conditions;
(vi)
Compliance with other laws and regulations of the city;
(vii)
Compliance with other applicable laws and regulations of other jurisdictions;
(viii)
Impacts on adjacent property and surrounding neighbors including noise, traffic, visible intrusions, and potential physical impacts.
(h)
Postponement of a case by applicant.
(i)
Prior to the city publishing the zoning case in the newspaper, an applicant may request in writing that the case not be scheduled for a public hearing date. In such cases, the applicant shall have six months from the date of the written request to schedule the case. After expiration of the six-month period, the applicant will have to submit a new application with new fees for further consideration of a zoning change on the subject property.
(ii)
If a written request for postponement is submitted by the applicant after the city has published the case in the newspaper, the fees paid shall be non-refundable and the case will not be rescheduled for a public hearing date until the new fee has been paid by the applicant. In such cases, the applicant shall have six months from the date of the written request for postponement to reactivate the case. After expiration of the six-month period, the applicant will have to submit a new application with new fees for further consideration of a zoning change on the subject property.
(iii)
If a request for postponement is not received by 4:30 p.m. on the seventh day prior to the public hearing date, the case shall remain on the public hearing agenda and will require the applicant to personally request such a postponement in front of the Planning and Zoning commission or City Council.
(i)
Withdrawal of application.
(i)
Applicability.
The provisions of this subsection shall not apply to any application for a rezoning which is initiated by the City Council.
(ii)
Withdrawal without time penalty.
An applicant may withdraw a zoning application up to the time that it is called forward and the city staff begins presentation of the application during a duly advertised public meeting without a time penalty on resubmission of another rezoning application for the property whether by the original applicant or a new applicant.
(iii)
Withdrawal with time penalty.
An applicant may withdraw a zoning application after it has been called forward for discussion and staff has begun presentation however such withdrawal shall be penalized by imposing an automatic six-month time period following the date of withdrawal before the same or another application for the same property can be submitted for processing.
(iv)
Waiver of time penalty in subsection 3.
above for resubmission. At the time of withdrawal of an application for rezoning the Planning and Zoning commission may consider a request by the applicant to bring the application or a modification of the application back prior to the expiration of six months subject to all notifications and postings of the case being observed. If the Planning and Zoning Commission fails to approve such resubmission prior to continuing with the next agenda item the six-month submission limitation shall stand.
(v)
Request of relief of time penalty.
If new relevant and substantial evidence which could not have been secured at the time set for the original hearing shall be produced by applicant, under a sworn affidavit to that effect, then in that event, the Planning and Zoning commission may elect to hear and consider such application prior to the expiration of the time penalty.
(j)
Denial of rezoning.
No application for the rezoning of any lot, lots or block of land situated in the city shall be received or filed with the zoning commission of the city and no hearing had thereon, if within one year prior thereto the City Council, after consideration and hearing, has denied an application for rezoning of the same property.
(3)
Site plan review applications.
(a)
Initiation.
Preliminary site plans accompanying a zoning map amendment shall be reviewed according to the zoning amendment procedures. Final site plans shall be submitted only after a zoning map amendment has been approved. This submission does not require a public hearing or public notification. The final site plan approval shall occur in accordance with this section. Site plan approval is required when any commercial or industrial building(s) is (are) located in a commercial (C zone), industrial (M zone), O-2 zone, or MXD zone, and:
(b)
Application.
An application for site plan review shall be submitted on the application form provided by the City Administrator or designee. The application shall include all information requested on the application form. Preliminary review with the City Administrator or designee, prior to a formal application is encouraged. If the application is not complete, the City Administrator shall notify the applicant in writing indicating necessary steps to cure the incomplete application. The application shall be submitted with drawings showing the location of the site and all existing and proposed buildings with sufficient information to evaluate impacts on adjacent properties. Sheet size shall be large enough to document all physical features and shall be suitable for public record.
(c)
Review.
Site plan review shall occur according to the following:
(i)
A complete application shall be reviewed by the City Administrator or designee;
(ii)
Applications, when complete, shall be submitted to the Planning and Zoning Commission at the next scheduled meeting. The Commission shall consider the application and take one of the following actions;
a.
Approve the final site plan;
b.
Approve the final site plan, conditioned on specific revisions;
c.
Deny the final site plan; or
d.
Continue discussion of the application for further study. An application shall only be continued one time without the applicant’s consent before the Commission shall take one of the above actions. An applicant may agree to more continuances;
(iii)
The City Council shall consider the site plan only after review and recommendation from the Commission. The City Council shall have the final authority on site plan approval.
(d)
Effect and limitation on approval.
Site plan approval stands for 365 days from the approval date. If a building permit has not been issued within this period of time, the site plan approval shall be null and void. The Council may consider a request for extension of this time up to 180 additional days for good cause. The site plan may be amended, but amendments shall be subject to the same procedures as a new site plan approval.
(e)
Modifications in substantial conformance with an approved site plan may be approved by the City Administrator or designee provided that the plan meets the following conditions:
(i)
The modification addresses actual site conditions that were not anticipated in the reviewed site plan;
(ii)
The modification meets the intent of the site plan standards in an equivalent or improved manner than the original site plan; and
(iii)
The modification results in no greater impact on adjacent property than the approved site plan.
(f)
Nullification for misrepresentation.
Any site plan decision that is based in any part on testimony, plans, studies or other support that is later found to have been a material misrepresentation may be summarily nullified by subsequent City Council action, pursuant to state law. Summary nullification shall require evidence of the misrepresentation at a formal Council meeting and the concurring vote of a majority of members of the City Council. Such review shall not require a formal site plan review process because the initial Council action will be determined null and void due to the material misrepresentation.
(4)
Applications to the Board of Adjustment.
(a)
Initiation.
Following the official denial of plans by the city, applications to the Board of Adjustment may be made by:
(b)
Application.
An application for a Board of Adjustment review may be submitted on the application form provided by the city following the official denial of the plans by the city. The application shall include all information requested on the application form, including grounds for the request for relief. Applications shall be made according to the Board of Adjustment schedule. If the application is not complete, the City Administrator shall notify the applicant in writing indicating necessary steps to cure the incomplete application.
(c)
Notice.
(i)
Hearings required.
No variance, exception or decision shall become effective until after a public hearing is held in accordance with state law, at which times parties in interest and citizens shall have an opportunity to be heard.
(ii)
Notice.
Notice of the time and place of such hearings shall be published in a newspaper of general circulation in accordance with state law.
(iii)
Review.
A copy of the completed application shall be made available by the City Administrator for public review upon request.
(iv)
Posted notice.
The applicant shall post on any specific property, which is the subject of the application, on a sign facing each adjacent public street. The sign shall be furnished to the applicant by the City Administrator at the time of application giving notice of the hearing. The sign shall be posted no later than ten days prior to the hearing before Board of Adjustment. It is the sole responsibility of the applicant to post and maintain the sign in accordance with these regulations. Failure to post this sign may result in postponement or withdrawal of the application.
(v)
Mailed notice.
Before the tenth day before the hearing date, written notice of each public hearing before the Board of Adjustments on a request for variance shall be sent to each owner, as indicated by the most recently approved municipal tax roll, of real property within 200 feet of the property on which the request for variance is made. The notice may be served by its deposit in the municipality by the applicant, properly addressed with postage paid, in the United States mail.
(vi)
Compliance with law.
The foregoing requirements are intended to comply with applicable laws relating to notice. To the extent that such requirements do not so comply with applicable law or in the event any applicable law is hereafter altered, amended or otherwise modified, this section shall be construed so as to comply with such altered, amended or modified law.
(d)
Review.
Application review shall occur according to the following:
(i)
A complete application shall be reviewed by the City Administrator or designee. The City Administrator or designee shall offer a written report on the merits of the application to the Board of Adjustment.
(ii)
The completed application shall be referred to the Board at the scheduled public hearing, with the City Administrator’s or designee’s report. The Board shall consider the application and take one of the following actions:
a.
Approval;
b.
Approval with specific conditions;
c.
Denial; or
d.
Continue discussion of the application for further study. An application shall only be continued one time without the applicant’s consent before the Board of Adjustment shall take one of the above actions. An applicant may agree to more continuances.
e.
Criteria.
An application for a variance shall be granted only on the concurring vote of four Board members finding that:
(iii)
There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape, or topography;
(iv)
The application of the ordinance to this particular property would create an unnecessary hardship. Personal financial hardship is not a justification for a variance;
(v)
Such conditions are peculiar to the property involved;
(vi)
Relief, if granted, would not cause substantial detriment to the public good and impair the purpose and intent of this appendix; provided however, that no variance may be granted for a use of land or building or structure that is prohibited by this appendix.
(vii)
Effect of variance.
Any variance granted according to this section and which is not challenged on appeal shall run with the land.
(viii)
Appeal.
Any party aggrieved by any final judgment or decision of the Board may appeal to the district court, county court, or county court at law in accordance with Tex. Local Government Code Ch. 211.
(5)
Permit and certificate applications.
Permits and certificates shall be issued in accordance with the following provisions:
(a)
Commencement of construction.
It shall be unlawful to commence the construction of any building or other structure, including accessory structures, or to store building materials or erect temporary field offices, or to commence the moving, alterations, or repair of any structure, including accessory structures, parking lot, flagpole, fence, monument, cell tower, mail boxes in the right-of-way and any other erection or construction requirement permit until the city has issued for such work a building permit including a statement that the plans, specifications and intended use of such structure in all respects conforms with the provisions of city ordinances. Application for the building permit shall be made to the City Administrator or designee on forms provided for that purpose and shall be accompanied by payment of the required fee.
(b)
Approval of plans and issuance of building permit.
Prior to the city issuing a building permit or approving any plans for excavation or construction, the City Administrator or designee shall inspect such plans in detail and find them in conformity with city ordinances. If the proposed excavation, construction, moving, or alteration, as set forth in the application, is in conformity with the provisions of this appendix or other city ordinances, the city shall issue a building permit accordingly. If an application for a building permit is not approved, the city shall state in writing on the application the cause for such disapproval. Issuance of a building permit shall, in no case, be construed as waiving any provision of this appendix. The city shall require that every application for a building permit for excavation, construction, use of land, moving or alteration be accompanied by a dimensioned plan in duplicate showing sufficient detail to enable the City Administrator or designee to ascertain whether the proposed excavation, construction, use of land, moving or alteration is in conformance with this appendix. A record of such applications and plans shall be kept by the city. At a minimum the plan shall show:
(i)
The actual shape, proportion and dimensions of the property to be built upon;
(ii)
The shape, size and location of all buildings or other structures to be erected, altered or moved and any building or other structures already located on the property;
(iii)
The existing and intended use of all such buildings or other structures;
(iv)
Information regarding compliance with the building and site design criteria contained in this appendix; and
(v)
The adequacy of provisions for control of surface drainage.
(c)
Permits requiring City Council review.
Any applicant for a building permit requiring site plan approval in accordance with this article shall secure such approval prior to issuance of the permit.
(d)
Expiration of building permit.
(i)
A building permit shall not be transferable and shall be issued only to the applicant. It shall expire if work is not begun within 180 days from the date of issuance and the work for the entire project has not been completed within 365 days after issuance of the building permit.
(ii)
For projects requiring an extended expiration period, due to size or complexity of the project, the City Administrator or designee may grant an extended expiration date when the permit is issued.
(iii)
Request for a 90-day extension may be considered upon the applicant’s request made prior to the permit expiration.
(e)
Modification.
It shall be unlawful for the owner, after he/she has obtained approval of design plans, to change or substantially modify plans, either during construction or after completion without specific written approval of the city.
(f)
Certificate of zoning compliance and occupancy.
(i)
No building hereafter erected or structurally altered shall be used, occupied or changed in use until a certificate of occupancy and zoning compliance shall have been issued by the City Administrator and inspections, stating that the building or proposed use of a building or premises complies with the building laws and the provisions of this zoning code.
(ii)
The City Administrator or designee shall perform the final inspection within reasonable time after receiving a request, and issue either a certificate of zoning compliance or a denial in writing. A denial shall state the reasons for denial. Any person or firm who occupies or causes to be occupied any premises without a certificate of occupancy and/or a certificate of zoning compliance shall be subject to citation for violation of this appendix and shall be subject to the all remedies and penalties hereof.
(Ord. 2011-06, passed 4-11-11; Am. Ord. 2011-22, passed 11-14-11; Am. Ord. 2019-03, sec. 1M, passed 4-29-19)
§ 153.2.2.2 SPECIAL USE PERMITS.
(1)
Purpose and use.
The special use permit (SUP) is required to be used when a special use identified in the use matrix (Table 3.5.-1) listed under the zoning district is desired for development and a more intensive zoning district which contains that use as a use by right would not be appropriate for the property.
(2)
Applicable zoning districts.
The City Council may authorize the issuance of an SUP only for those uses that are enumerated as special uses in a zoning district, as set forth in the use matrix (Table 3.5.-1). An SUP is an amendment to the zoning map that authorizes the establishment of one or specified uses of particular property without changing the zoning and permitted uses of the property. An SUP may be issued when the City Council determines that the SUP:
(a)
Shall not adversely affect the character of the area or neighborhood in which it is located.
(b)
Shall not substantially reduce the value of the adjacent and nearby property.
(c)
Shall be in keeping with the spirit and intent of the zoning code
(d)
Shall not adversely affect traffic, public health, public utilities, public safety or the general welfare of the city.
(3)
SUP application.
SUP application shall be submitted to the city with the proposed site plan and the same fees required for zoning changes.
(a)
Format.
A site plan, with detail as required in subsection (b) below, must be submitted upon application for a rezoning for an SUP. The site plan shall be prepared to scale. The site plan scale must be drawn numerically and a graphic scale must be provided. The scale must be sufficient to illustrate all required detail and labels in a legible fashion. The applicant shall provide a site plan in the following formats:
(b)
Contents.
The following minimum information shall be shown on the site plan:
(i)
Tabulation of the number of acres in the proposed development, showing the total number of lots, and area of open space for the site.
(ii)
Dimensions and square footage of all buildings and structures.
(iii)
All setbacks as required by the proposed and surrounding zoning districts/uses.
(iv)
All off-street parking and loading areas/structures, including the number of spaces, dimensions of spaces and aisles, ADA required spaces and loading areas, and landscaping for parking areas.
(v)
The location, dimensions and type of all existing and proposed walls, fences (other than fences on private residential lots) and landscaping.
(vi)
All existing and proposed driveways, sidewalks, showing the existing and proposed physical layout, dimensions, and other relevant characteristics of the subject property.
(vii)
The intended use of the property to which the current and proposed improvements relate.
(viii)
The following statement: “I, __________, the property owner, acknowledge that this site plan submitted for the purpose of rezoning this property is in accordance with all applicable provisions of the Balcones Heights Zoning Ordinance. Additionally, I understand that City Council approval of a site plan in conjunction with a rezoning case does not relieve me from adherence to any/all city-adopted codes at the time of plan submittal for building permits.
(4)
Procedures.
Granting of an SUP is considered zoning and as such, all the procedures for changing a zoning district apply to an application for an SUP and shall be processed in the same manner.
(a)
In addition to the zoning amendment review criteria, the city staff, Planning and Zoning Commission and the City Council shall consider, among other matters, the following:
(i)
Consistency with the goals, policies, objectives, specific elements and future land use map of the Balcones Heights Master Plan, and any adopted specific plan applicable to the site where the proposed special use is located;
(ii)
The proposed use is in compliance with all applicable city codes, standards and guidelines governing such use;
(iii)
The proposed special use is adequately served by essential public services, such as street, drainage facilities, fire protection, police protection and public water and sewer;
(iv)
The proposed special use is designed and landscaped to preserve the character of the neighborhood and that it will not discourage appropriate development or use of surrounding properties;
(v)
The proposed special use will not generate adverse impacts on adjoining properties and land uses;
(vi)
The proposed special use will not be injurious to the public health, safety and welfare of the community;
(vii)
Approval of an SUP by the City Council shall be evidenced by an ordinance which shall include all special requirements to be included in the SUP, and all agreements or other documents between the city and the applicant shall be incorporated in the ordinance by reference;
(viii)
If an application is approved and an SUP is granted, all conditions which may have been attached to the approval are binding on the property and shall be complied with before a certificate of occupancy may be issued. All subsequent development and use, as shown and described in the approved SUP, of the property, shall be in accordance with the approved plan and conditions. These conditions shall apply to the use identified in the SUP, and are not applicable on uses permitted by right in accordance with the underlying zoning district. These may include, but are not limited to the following:
a.
Site coverage, structure height and setback requirement;
b.
Screening;
c.
On-site and off-site street and drainage improvements;
d.
Traffic circulation to include point of vehicular ingress and egress;
e.
Landscaping buffers;
f.
Control of noise, vibration, odor, emissions, hazardous materials and other potential dangerous or objectionable elements;
g.
Storm runoffs and water conservation measures;
h.
Hazardous materials handling.
(5)
Amendment of permit.
An amendment is a request for any enlargement, expansion, increase in intensity, relocation, or modification of any condition of a previously approved and currently valid SUP. Amendments shall be processed as follows:
(a)
Non-material and insignificant (minor) amendments.
Shifts in on-site location and changes in size, shape, intensity, or configuration of less than 5%, or a 5% or less increase in either impervious surface or floor area over what was originally approved, may be authorized by the City Administrator or designee, provided that such minor changes comply with the following criteria:
(i)
No previous minor modification has been granted pursuant to this subsection;
(ii)
There will be no detrimental impact on any adjacent property caused by significant change in the appearance or the use of the property or any other contributing factor;
(iii)
Nothing in the currently valid SUP precludes or otherwise limits such expansion or enlargement;
(iv)
The proposal conforms to the provisions of this chapter and is in keeping with the spirit and intent of any adopted Master plan.
(b)
Major amendments.
Any proposed amendment other than those provided for in subsection (a) above shall be considered a major amendment of a previously approved and currently valid SUP. Authorization shall be approved in the same manner and under the same procedures as are applicable to the issuance of the original permit.
(6)
Revocation of permit.
(a)
The SUP may be considered for revocation for, but not limited to, the following reasons:
(i)
A use other than the use approved in the SUP or in the underlying zoning district is developed.
(ii)
Construction is not begun within two years of the date of approval of the permit.
(iii)
Failure to satisfy the conditions of the SUP or follow the site plan made part of the SUP. The City Administrator or designee shall have the right to periodically examine the operation of the special use to determine compliance with the requirements and any conditions. If the City Administrator or designee determines that the requirements have not been met, or the conditions are being violated, a written notice shall be issued to the owner of the property outlining the nature of the violation and giving the owner of the property a maximum of 30 days to come into compliance. If after 30 days the violations continue to exist, then the City Administrator or designee shall forward a report to the City Council through the Planning and Zoning Commission which may recommend that action be taken to revoke the SUP.
(b)
The revocation process shall be the same as for a zoning district change, with notice to property owners within 200 feet, public hearing and recommendation by the Planning and Zoning Commission, and public hearing and ordinance consideration by the City Council.
(c)
The City Council may deny the SUP revocation, approve the revocation, deny the revocation and add additional restrictions to the SUP, suspend the SUP for a period the council determines, or amend the SUP with probationary requirements and terms the Council determines.
(d)
Upon revocation of an SUP the property subject to the SUP may be used for any permitted use within the applicable base zoning district.
(7)
Subsequent applications.
(a)
An application for an SUP may be withdrawn at any time, but if the application has been advertised in compliance with state law, an application requesting substantially the same use on all or part of the same described land shall not be reconsidered within one year of withdrawal.
(b)
No application for an SUP pertaining to any lot, parcel or portion thereof which requests the same use and same conditions shall be considered within one year of a final decision denying the application.
(Ord. 2011-06, passed 4-11-11; Am. Ord. 2011-22, passed 11-14-11; Am. Ord. 2019-03, sec. 1M, passed 4-29-19)