The board of adjustments and appeals shall be organized and have all the powers and authority as set forth in sections 211.008 through 211.011 of the Texas Local Government Code (V.T.C.A., Local Government Code §§ 211.008—211.011) or as the same hereafter is amended.

(Ord. No. 2006-14, § 17-53, 7-11-2006)

The organization and membership of the zoning board of adjustments and appeals, herein called the board, is changed so that the board shall consist of seven citizens of the city together with four alternate members who must also be citizens of the city. The members and alternate members shall be appointed by the city council for a term of two years, which term shall be deemed extended until a successor is appointed and qualified to serve on such board. Such appointees shall serve without compensation. The board shall elect a chairperson from among its regular members. A vacancy in an unexpired term shall be filled by the city council, for the remainder of the term. The alternate board members shall serve in absence of one or more regular Members when requested to do so by the city manager.

(Ord. No. 2006-14, § 17-54, 7-11-2006; Ord. No. 2007-27, § 1, 11-27-2007; Ord. No. 2014-02, § 1, 2-25-2014)

The board of adjustments and appeals shall have the following powers and duties:

(1)

Variances. To authorize upon appeal in specific cases a variance from the terms of this chapter that will not be contrary to the public interest, and due to special conditions, a literal enforcement of the provisions of the ordinance would result in unnecessary hardship, and the granting of the variance would provide substantial justice conforming with the spirit and intent of this chapter.

(2)

Administrative review. To hear and decide appeals where it is alleged there is error in any decision or determination made by any administrative official of the city (except the classification of land uses in zoning districts which shall be the responsibility of the planning and zoning commission) in the enforcement of this chapter.

(Ord. No. 2006-14, § 17-55, 7-11-2006)

Any member or alternate member of the board may be removed from the board for just cause and on written charges by a two-thirds vote of the entire council, but such member shall be entitled to a public hearing before such vote is taken. It shall be the duty of the chairperson of the board to notify the mayor promptly of any vacancies occurring in membership, and the council shall fill such vacancies within 30 days for the unexpired term of the original appointment.

(Ord. No. 2006-14, § 17-56, 7-11-2006)

The board of adjustments and appeals shall adopt its own rules of order and procedure to regulate both the actual meetings of the board and the activities directly related thereto. The rules shall deal only with procedural matters and shall be available to the public and kept on file with the building inspector. A concurring vote of 75 percent of the members of the board is necessary to reverse an order, requirement, decision or determination of an administrative official or to decide in favor of an applicant on a matter passed to the board or to authorize a variation from the terms of this chapter as described herein. Therefore, all cases to be heard by the board of adjustments and appeals shall be heard by a minimum of four (regular and if applicable, acting alternate) members.

(Ord. No. 2006-14, § 17-57, 7-11-2006; Ord. No. 2014-02, § 1, 2-25-2014)

All meetings of the board of adjustments and appeals shall be open to the public. The board shall meet as necessary.

(Ord. No. 2006-14, § 17-58, 7-11-2006)

The board of adjustments and appeals shall keep minutes of its proceedings, showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact, and shall keep records of its examination and other official actions, all of which shall be filed with the building inspector and/or city secretary and shall be a public record.

(Ord. No. 2006-14, § 17-59, 7-11-2006)

(a)

Application. The owner of the land for which the variance is requested or his duly authorized agent shall complete the appropriate application form, supplying all information prescribed in the form, and deliver it to the building inspector or his designee. Application shall be accompanied by a site plan which indicates existing and proposed features, drawn to scale, on the property for which the variance is requested. The application and all attachments must be delivered to the building inspector and all fees paid at least ten days prior to the public hearing.

(b)

Fee. Upon the filing of an application for a variance with the city code department, the applicant shall pay an application filing fee. The request shall not be placed upon the agenda of the board until the fee has been paid. The application fee shall be in accordance with fees set by the city council and kept on file in the office of the city secretary.

(c)

Action by the board on a request for variance. The purpose of granting a variance is to modify the application of this chapter as it applies to a specific piece of property which, because of peculiar circumstances applicable only to the property, prevents it being used on the same basis as other property in the same zoning district. In reaching its decision to grant a variance, the board shall determine that all the following conditions are present:

(1)

Special conditions and circumstances exist which are peculiar to the land or improvements in question and which are not applicable to other lands or buildings in the same zoning district. Such conditions or circumstances shall not be the result of actions taken by nor be self-imposed by the applicant or previous owner.

(2)

Due to special conditions and peculiarities of the land or improvements in question, literal interpretation of the provisions of this chapter would result in unnecessary hardship to the owner of land and prohibit reasonable use of said land.

(3)

The granting of the variance will not be contrary to the public interest. Evidence shall be made that granting a variance is consistent with the intent of this chapter, is in harmony herewith, and will not be injurious to neighboring properties or otherwise detrimental to the public welfare.

(4)

The granting of the variance will not allow activities in any district prohibited by the provisions of that district. This chapter is declared to be a definition of the public interest regarding land use and structural arrangement. Under no circumstances shall a variance be granted which permits a use not generally permitted in a zoning district by the terms of this chapter.

(5)

The granting of the variance will not permit standards lower than those required by state law.

(6)

By comparison with the general good served by literal enforcement of this chapter, the hardship (other than financial) which would be alleviated by granting the request for variance is of greater significance.

(7)

Nonconforming use of neighboring land or improvements thereto in the same district, as well as a permitted use of land or improvements thereto in other districts, are not considered grounds for issuance of a variance.

(Ord. No. 2006-14, § 17-60, 7-11-2006)

In granting any variance, the board of adjustments and appeals may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter and punishable under terms as set forth herein.

(Ord. No. 2006-14, § 17-61, 7-11-2006)

(a)

Appeals to the board of adjustments and appeals can be taken by any person aggrieved, or by any department or board of the city, affected by any decision of any administrative official of the city, in the enforcement of this chapter.

(1)

Application. Such appeal shall be taken by filing a notice with the officer from whom the appeal is taken, and with the board of adjustments and appeals, within not more than 15 days after the decision in question has been rendered by the administrative officer or deciding board, as applicable. Such notice shall be taken on the appropriate application form provided by the building inspector, specifying grounds for the appeal.

(2)

Schedule of hearing. After receipt of the properly executed appeal from the applicant, the building inspector or the city secretary shall schedule the request for hearing by the board of adjustments and appeals by placing it on the agenda for the next regularly scheduled meeting of the board.

(3)

Presentation of findings. The officer from whom the appeal is taken shall immediately transmit to the board all papers constituting the records upon which the action appealed was taken. At the time of the public hearing, the building inspector or his duly authorized representative shall present the basis for the appeal by the applicant by stating the sections of the ordinance which sets forth the requirements.

(4)

Burden of proof. The applicant or agent shall be present at the hearing. The burden of proof shall be on the applicant to establish the necessary facts to warrant favorable action by the board.

(5)

Stay of proceeding. An appeal shall stay all proceedings in furtherance of the action appealed, unless the officer from whom the appeal is taken certifies to the board of adjustments and appeals after the notice of appeal was filed with him, that by reason of facts stated in the certificate, a stay would in his opinion cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the board of adjustments and appeals or a court of record on application to the officer from whom the appeal or application is taken and on due cause shown. If the board denies the appeal or application, the stay shall remain in effect for ten days following the decision of the board.

(6)

Action by the board on appeals for administrative review. In exercising its powers, the board may, in conformity with the laws of the state as existing or hereafter amended, reverse or affirm, wholly or partly, or modify the decision or determination appealed from and make such decision or determination as ought to be made and shall have all the powers of the officer or board from whom the appeal or application is taken. The board shall have the power to impose reasonable conditions to be complied with by the applicant.

(b)

If the appeal is from the refusal of the building inspector to accept a request for a variance and the board finds that the request shall have been accepted, the board shall proceed to hear the request which shall have been forwarded with the appeal after the giving of due notice.

(Ord. No. 2006-14, § 17-62, 7-11-2006)

Upon filing an appeal or application for a variance or special exception, the applicant shall pay to the code department a filing fee in accordance with fees as set by the city council and kept on file in the office of the city secretary to be applied to costs of processing applications required by this section and by applicable state laws. Should the application be withdrawn or tabled at the request of the applicant, an additional fee shall be paid to the city to be applied to reprocessing, before the item will be considered on a subsequent agenda. Filing fees, which shall accompany each application, shall in no way be refundable to the applicant. The request shall not be placed upon the agenda of the board until the fee has been paid. No building permit which may first require the granting of a variance shall be issued unless and until such fees have been paid in full.

(Ord. No. 2006-14, § 17-63, 7-11-2006)

The board of adjustments and appeals shall hold a hearing on all appeals or applications received. Written notice of such public hearing shall be sent to the applicant and to the owners of real property lying within 200 feet of the property on which the appeal or application is made, except for requested variances from separation requirements for liquor stores, in which case written notice shall be provided to the applicant and to the owners of real property lying within 300 feet of the property on which the application is made. At a hearing for any appeal or application, any interested party may appear in person, by agent, or by attorney. Newspaper notice shall not be required.

(1)

Such notice shall be given not less than ten days before the date set for public hearing to all such owners as the ownership appears on the current city tax records. Such notice shall be made by depositing same, properly addressed with postage paid, in the United States mail.

(2)

The notice shall set forth a date, time and place of the public hearing and provide a general overview of the appeal or application.

(Ord. No. 2006-14, § 17-64, 7-11-2006)

The concurring vote of four (regular and if applicable, acting alternate) members of the board shall be necessary to decide in favor of an application on any matter upon which the board of adjustments and appeals is required to act, under the terms of this chapter. Likewise, the concurring vote of four (regular and if applicable, acting alternate) members of the board shall be necessary to reverse any decision or determination of any administrative official.

(Ord. No. 2006-14, § 17-65, 7-11-2006; Ord. No. 2014-02, § 1, 2-25-2014)

Any variance granted by the board of adjustments and appeals under provisions of this chapter shall authorize the issuance of the building permit for a period of 180 days from the date of favorable action by the board, unless said board shall have approved a longer period of time and has so shown such specific longer period in the minutes of its action. If the building permit shall not have been applied for within said 180-day period or such extended period, as the board may have such waived and all rights thereunder terminated, as of the expiration of the 180 days. Such termination and waiver shall be without prejudice to a subsequent appeal and such subsequent appeal shall be subject to the same regulation and requirement for as herein specified for the original appeal.

(Ord. No. 2006-14, § 17-66, 7-11-2006)

Any person, jointly or severally aggrieved by any decision of the board of adjustments and appeals or any officer, department or board of the city may present to a court of record, a duly verified petition, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition shall be presented to the court within ten days after the date of the decision by the board and not thereafter.

(Ord. No. 2006-14, § 17-67, 7-11-2006)

When the board of adjustments and appeals has denied a proposal, no new applications of similar nature shall be scheduled for hearing before the board for 12 months after the date of board denial. Applications which have been withdrawn at or before the board meeting may be resubmitted at any time for hearing before the board.

(Ord. No. 2006-14, § 17-68, 7-11-2006)