The board of adjustment shall consist of the city council or seven (7) appointed members, five (5) regular and two (2) alternates, who are resident citizens and qualified voters of the city. When appointed, one (1) alternate member shall be nominated by the city council as a group and one (1) alternate member shall be nominated for appointment by the mayor. Board members shall be appointed by a simple majority vote of the city council, in accordance with Texas Local Gov’t Code, sections 211.008–211.011, as amended.

Regular board members and alternate members shall serve for a term of 2 years, and expiration of terms shall be staggered so that an overlapping of terms occurs, such as in any 2-year period, the terms of 3 members shall expire during one of those years, and the terms of 4 members shall expire during the second year. Terms of office shall expire on the first day of November of any given year.

If a vacancy occurs on the commission, the city council or mayor who originally appointed that member or his or her successor shall appoint a person, with approval of the city council, to fill the unexpired term at the first regular meeting of the city council following notification of the vacancy.

The city council may by majority vote remove a board member for lack of confidence, incompetence, corruption, misconduct, or malfeasance. In addition, upon recommendation of the board of adjustment, the city council by super-majority vote may remove any board member who misses three (3) consecutive meetings within a twelve (12) month period of time or four (4) meetings within a twelve (12) month time period. For the purpose of this meeting attendance requirement, it shall be considered a missed meeting for any board member who leaves a meeting prior to the completion of all action items on the posted agenda for a meeting, for any other reason than to avoid a potential conflict of interest. Any board member who is removed shall not be considered for appointment to a board by the city council for a period of six (6) months from the date of their removal.

The members of the board shall serve without compensation.

The board shall elect a chairperson and a vice-chairperson from among its membership, and each officer shall hold office for one year or until replaced by a simple majority vote of the full board. The director or his or her designee shall keep minutes of all meetings held by the board.

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 ordinance, another zoning ordinance, the subdivision ordinance, and other city ordinances granting appellate jurisdiction to the board;

Authorize in specific cases a variance (see subsection (f) below [section 21.06]) from the terms of this ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of this ordinance would result in unnecessary hardship, and so that the spirit of this article [this ordinance] is observed and substantial justice is done;

In exercising its authority under subsection (d)(1) above [subsection (a) of this section], 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; and

The concurring vote of 75 percent of the members of the board is necessary to:

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 subsection (f) below [section 21.06]. Generally, the board is not authorized to grant use variances.

The board shall have no power to grant or modify conditional use permits authorized under these regulations.

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.

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 board of adjustment.

A variance is the relief from strict application of any term or provision of this article [this ordinance] when such strict application would cause an undue hardship. The hardship must be due to the nature of the land or tract of land, and cannot be solely economic in nature. Under no circumstances can a variance be issued to allow any use other than those set forth in the zoning district in question.

The board of adjustment 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 hereinbelow required, the board shall take into account the following:

No variance shall be granted without first having given public notice and having held a public hearing on the variance request in accordance herewith and unless the board of adjustment makes specific findings as follows:

In making the finding required in subsection (3)(E) above [subsection (c)(5)], the board may rely solely on a representation by the city administrator. If the city administrator’s representation is that the property is not in compliance with any city ordinance, it shall specify such noncompliance (the “noncompliance”). In the event that the board can make the findings required to grant a variance but for the noncompliance, it may grant a variance to the applicant conditioned upon the property coming into compliance within 90 days of such conditional grant, or within such longer period as may be specified by the board of adjustment. The applicant shall take no action based upon such variance until the expiration of such period. If the city administrator does not determine that the noncompliance has been cured within such period the variance shall expire automatically.

The applicant bears the burden of proof in establishing the facts justifying a variance.

A building permit shall be applied for (if required) and construction initiated within one year of the issuance of a variance. If this condition is not met, the variance shall expire automatically unless extended by the BA. No development right (if any) shall vest in an expired variance.

In addition to the authorization of variances from the terms of this article [this ordinance], the BA 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 article [this ordinance]. The BA 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 BA has the same authority as the administrative official. The BA may also hear and decide other matters authorized by this code and other ordinances regarding land use regulations.

Any of the following persons may appeal to the BA a decision made by an administrative official:

The appellant must file with the BA and the administrative official from whom the appeal is taken a written notice of appeal specifying the grounds for the appeal. The appeal must be filed within 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 BA 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 BA 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 BA or a court of record on application, after notice to the official, if due cause is shown. The appealing party may appear at the appeal hearing in person or by agent or attorney. The board shall decide the appeal within 4 weeks after a public hearing is concluded, 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 make the correct order, requirement, decision, or determination.

An application for a variance by the board of adjustment shall be made in writing using forms prescribed by the BA, and shall be accompanied by an application fee (as adopted by the city from time to time and maintained on file), a site plan, and additional information as may be requested in order to properly review the application. This information may include, but is not limited to, plat plans, site building plans, photographs, topographic contour maps, and other similar documents.

The mayor or the mayor’s designee shall visit the site where the proposed variance will apply and the surrounding area, and shall report his or her findings to the BA.

The board of adjustment shall hold a public hearing for consideration of the variance request no later than 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 200 feet of the affected property at least 10 days prior to the public hearing, and also published in the official local newspaper at least 10 days prior to the public hearing.

The BA shall not grant a variance unless it finds, based upon compelling evidence, that each of the conditions in subsection (f) above [section 21.06] has been established. The BA may impose 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 article [this ordinance].