Brenham City Zoning Code
PART IV
VARIANCES, SPECIAL EXCEPTIONS, NONCONFORMING USES AND APPEALS
Sec. 1 Authority
The board of adjustment shall have the authority to grant relief in the form of variances and special exceptions to the provisions of this zoning ordinance, subject to the standards and procedures as established herein.
Sec. 2 Purpose
The purpose of this division is to establish procedures and standards for relief where owing to special conditions, the literal enforcement of the regulations of the zoning ordinance will result in unnecessary hardship, provided that the grant of such relief will not be contrary to the public interest and provided further that the spirit and intent of the zoning ordinance will be preserved by the relief granted under the terms and conditions herein provided.
Sec. 3 Eligible applicants
To apply for a variance or special exception under the provisions of this ordinance, the applicant must be an owner of the property to be affected by the variance or must have a contractual interest in the property to be affected by the variance or special exception.
Sec. 4 Application
The application for a variance or special exception shall be filed with the secretary to the board of adjustment according to rules of procedure adopted from time to time by the board and shall be accompanied by a nonrefundable fee as prescribed in such rules of procedure to defray administrative costs.
Sec. 5 Action of the board
The board shall fix a reasonable time for the hearing on a requested variance or special exception pursuant to the procedures set out in Part V, Section 3 of this ordinance.
Sec. 1 Limitations
The board of adjustment shall have the authority to grant variances in accordance with the standards and procedures provided herein, from any and all technical requirements of the zoning ordinance, but may not grant variances to use requirements or procedural requirements or for procedural requirements for hearing or notice, provided that:
(1)
Such modifications are necessary to accommodate appropriate development of a particular parcel of land that is restricted by attributes inherent in the land such as area, shape or slope to the extent that it cannot otherwise be appropriately developed.
(2)
The granting of the variance will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the subject property is located, nor impair an adequate supply of light or air to adjacent property, nor substantially increase the congestion in the public streets, nor increase the danger of fire, or in any way endanger the public health, safety and well being of the neighborhood in which the subject property is located.
(3)
The literal enforcement of the ordinance would work on unnecessary hardship.
(4)
The piece of property is unique and contains properties or attributes not common to other similarly situated properties.
(5)
The need for the variance was not created by the applicant.
(6)
The hardship to be suffered through the literal enforcement of the ordinance would not be financial alone.
(7)
The granting of the variance would not be injurious to the public health, safety and welfare or defeat the intent of the philosophy contained in the zoning ordinance.
(Ordinance O-23-028 adopted 10/19/2023)
Sec. 2 Prohibitions
The board shall not consider or grant use variances, except as provided in Division 4 below for legally existing nonconforming uses.
(Ordinance O-23-028 adopted 10/19/2023)
Sec. 1 Authority to continue
The lawful use of land existing upon the effective date of this ordinance may be continued, although such use does not conform to the provisions hereof. Such use may be extended throughout such portions of the buildings as are arranged or designed for such use.
A nonconforming use of a building may be changed to another nonconforming use of the same or more restricted classification. If such nonconforming building is voluntarily removed, the future use of such premises shall be in conformity with the provisions of this ordinance.
Sec. 2 Purpose
(Sec. 2.01)
The purpose of this division is as follows:
(1)
To declare that nonconforming uses are incompatible uses within the zoning districts in which they are located, therefore the intent is not to encourage their continuation.
(2)
To establish the limitations whereby nonconforming uses may continue until the same are removed.
(3)
To establish the circumstances whereby the board of adjustment may require the discontinuance of nonconformities.
Sec. 3 Nonconforming use status
(Sec. 3.01)
The following uses are legally existing nonconforming uses:
(1)
Any existing use or structure that is not in conformance with the regulations of the zoning district in which it is located but was actually in existence or in operation at the time of the adoption of this zoning ordinance is a nonconforming use if it was legal when originally created or placed in operation.
(2)
Any existing use or structure that is not in conformance with the regulations of the zoning district in which it is located but was legally existing at the time of the adoption of any amendment to the zoning text or map, applicable to the district in which it is located, is a nonconforming use.
(3)
Any existing use or structure that is not in conformance with the regulations of the zoning district in which it is located at the time of annexation of the area in which said use is located is a nonconforming use.
(Sec. 3.02)
The status of nonconforming uses is not affected by ownership and/or occupancy change, subject to the limitations provided herein.
(1)
he owner or authorized agent of any nonconforming use may register said nonconforming use with the city secretary within six months of receiving notice of becoming a nonconforming use through a newspaper of general circulation in the City of Brenham. In the event that said owner or authorized agent chooses to register any nonconforming use, registration shall be obtained by issuance of a certificate of occupancy nonconforming, and shall thereafter be considered legal evidence of the legal existence of a nonconforming uses. The city secretary, zoning administrator or other appropriate city administrator designated by the city manager shall maintain on file for the City of Brenham of all certificates of occupancy nonconforming.
In the event that said owners or their authorized agents do not register as required herein, then thereafter the City of Brenham will require proof that shall be provided by the owner that the nonconforming use was legally existing at the time of adoption of this ordinance or said nonconforming use shall be deemed illegal and a violation of this ordinance. |
Sec. 4 Limitations to continuing nonconforming uses
(Sec. 4.01)
The limitations to continuing a nonconforming use are as follows:
(1)
Routine repairs and alterations may be made to a building occupied by a legally existing nonconforming use, provided that no structural alterations or extensions shall be made unless the building is changed to a conforming use.
EXCEPTION: Expansions, extensions and enlargements of floor area may be made to structures occupied by nonconforming uses in the B-1 District, provided that a specific use permit is first obtained from the planning and zoning commission in accordance with Part III, Section 4 of this ordinance. |
(2)
A building occupied by a legally existing nonconforming use may be rebuilt in case of obsolescence or total or partial destruction by fire or other causes. The building inspector shall issue a permit for reconstruction as built at the time of damage, provided that said permit is applied for within six (6) months from the date of the damage. If a permit has not been automatically issued within six (6) months from the date of the damage, the board of adjustment may grant a permit for repair or replacement to the previous building parameters after a public hearing and having due regard for the property right of the persons affected when considered in the light of public welfare and the character of the areas surrounding the designated nonconforming use and the purposes of this ordinance. No permit issued by the building official or granted by the board of adjustment under the authority of this section shall approve an increase in the floor area to be occupied by the nonconforming use.
(3)
No expansion or enlargement of a nonconforming structure occupied by a permitted use shall be permitted except as provided in Division 4 Special Exceptions, Section 1.01(2).
EXCEPTION: No permit other than a building permit is required to expand a nonconforming single-family dwelling provided that (1) said residential expansion does not increase the nonconforming attributes of the structure, (2) said dwelling is nonconforming by virtue of its lot size, front, side or rear yard setbacks and (3) said dwelling is located in a district in which said structure is a permitted use. |
EXCEPTION: No permit other than a building permit is required to reconstruct a nonconforming single family structure to its previous nonconforming status in the event that it has been accidentally damaged or destroyed in whole or in part. If a permit has not been automatically issued within six (6) months from the date of damage, the board of adjustment may grant a special exception for a permit to repair or replacement to the previous building parameters after a public hearing and having due regard for the property right of the persons affected when considered in the light of public welfare and the character of the areas surrounding the nonconforming structure and the purposes of this ordinance. |
(4)
No occupancy of additional land shall be permitted by a nonconforming use.
(5)
No nonconforming structure or structure housing a nonconforming use shall be moved unless moved into a zoning district into which it is in conformance with the regulations.
(6)
A nonconforming use if changed to a conforming use or a more restricted nonconforming use, may not thereafter by changed back to a less restricted use than that to which it was changed.
(7)
In the event that a nonconforming use of a building or premises is voluntarily discontinued for a period of one year, a presumption shall exist that the owner has abandoned the nonconforming use and thereafter the use of the same shall thereafter conform to the provisions of the district in which it is located. The board of adjustment may grant one extension of the allowable abandonment, not to exceed six (6) calendar months.
(8)
No nonconforming accessory use or structure shall continue after the principal structure or use shall have ceased or terminated unless such structure or use shall thereafter conform to the provisions of the zoning district in which it is located.
Sec. 1 Limitations
(Sec. 1.01)
Authority.
The board of adjustment shall have the authority to grant special exceptions in accordance with the procedures and standards herein provided to permit:
(1)
The reconstruction of a nonconforming structure, if said structure is totally or partially damaged or destroyed, provided that said permit is applied for within six (6) months from the date of damage. If a permit has not been automatically issued within six (6) months from the date of damage, the board of adjustment may grant a permit for repair or replacement to the previous building parameters after a public hearing and having due regard for the property right of the persons affected when considered in the light of public welfare and the character of the areas surrounding the designated nonconforming structure and the purposes of this ordinance.
(2)
The extension or enlargement of a nonconforming structure, provided that the structure or portion thereof being extended or enlarged is not for the purpose of a nonconforming use.
(3)
To deviate yard requirements in the following circumstances:
(a)
An exception from the front yard requirements where the existing front yard setbacks of the various lots in the same block are not uniform, so that any one of the existing front yard setbacks shall for any building hereinafter constructed be the required minimum front yard set back.
(b)
An exception from the rear yard requirements where the actual rear yard setback of any four (4) or more lots in the same block do not meet the applicable rear yard requirements of these regulations.
(c)
The board of adjustment shall be empowered to grant special exceptions allowing a waiver or reduction of up to ten (10) percent in any required yard where it is shown that the encroachment into the required yard occurred unintentionally during the construction of the building and the encroachment was inadvertent and not a part of a deliberate plan to violate the terms and conditions of the zoning ordinance.
(4)
To deviate bufferyard requirements that would otherwise apply to single family residential units that are to replace housing on existing residential lots located in the R-1 or R-2 districts.
(5)
To waive or reduce off-street parking and loading requirements when the board finds that the same are unnecessary for the proposed use of the building or structure for which the special exception request applies.
(6)
To permit any nonconformity which is nonconforming solely because of inability to comply with regulations governing screening or landscaping, subject to conditions which may be imposed by the board.
Sec. 1 Authority
The board of adjustments shall have the authority to hear and decide appeals from any decision, determination or interpretation by any administrative official with respect to the provisions of the zoning ordinance, subject to the standards and procedures hereinafter set forth.
Sec. 2 Application.
An application for an appeal may be initiated by any person aggrieved or by any officer, department, board or bureau of the City of Brenham affected by any decision of the building official. Such appeal shall be filed with the secretary of the board of adjustment according to rules of procedure adopted from time to time by the board and shall be accompanied by a fee as prescribed in such rules of procedure to defray administrative costs.
Sec. 3 Procedures
A notice of appeal in prescribed form must be filed with the secretary of the board of adjustment and with the office or department rendering the decision, determination or interpretation which is the subject of the appeal, within fifteen (15) days of such decision, determination or interpretation. The filing of such notice of appeal will require the building official or other city department to forward to the board any and all records concerning the subject matter of the appeal. Failure to file such appeal shall constitute a waiver of any rights under this ordinance to appeal any interpretation or determination made by such administrative official.
Sec. 4 Effect of filing an appeal
Filing a notice of appeal shall stay any proceedings in furtherance of the action appealed as provided in Part V. Sec. 3 of this ordinance.
Sec. 5 Action of the board
The board of adjustment shall fix a reasonable time for hearing appeals after a notice of appeal is filed. The failure of the board to act within a reasonable time shall not deprive it of jurisdiction of the matter. The board may reverse, affirm in whole or in part, or may modify the decision, determination or interpretation appealed as provided in Part V, Section 3 of this ordinance.