4.1.1   Nonconformities

Any lawful Use of a property or structure existing at the time of passage of this Ordinance that does not conform to the regulations prescribed in this Ordinance shall be deemed a legal nonconforming use or structure.

4.1.2   Nonconforming Uses

A.

If no structural alterations (except those required by law or ordinance) are made, a nonconforming use may be extended throughout a building. A Nonconforming Use of a building may not be changed to another Nonconforming Use of any kind.

B.

The right of a Nonconforming Use to continue shall be subject to such regulations as to the maintenance of the premises and conditions of operation as the City may reasonably require for the protection of adjacent property.

4.1.3   Nonconforming Structures

A.

A Nonconforming Structure may continue to be occupied and may be maintained, repaired, or altered provided such action does not create an additional nonconformity or increase the amount, size, or area of the existing nonconformity.

B.

If fifty (50) percent or more of the improvement's appraised value, as determined by the most recent appraisal records of the Wise County Appraisal District, of a Nonconforming Structure is destroyed by fire, the elements, or some other cause, then the Structure may be rebuilt only in conformity with the provisions of this Ordinance.

C.

If less than fifty (50) percent of the improvement's appraised value, as determined by the most recent appraisal records of the Wise County Appraisal District, of a Nonconforming Structure is destroyed by fire, the elements, or some other cause, then the Structure may be reconstructed as it was before the partial destruction but only to its original dimensions and floor area, and provided that such reconstruction is completed within one (1) year (i.e., three hundred sixty-five (365) calendar days) following the event that caused the partial destruction. If reconstruction is delayed by contested insurance claims, litigation, or some other similar cause, then the one-year reconstruction period may be extended by the Board of Adjustment (BOA) for an additional one (1) year period following the conclusion of such delaying event.

D.

Nothing in this Ordinance shall be construed to prohibit the upgrading, strengthening, repair or maintenance of any part of any Structure, conforming or nonconforming, that is declared unsafe or uninhabitable by the Building Official, unless such repairs or maintenance equal or exceed fifty (50) percent of the Structure's appraised value, as determined by the most recent appraisal records of the Wise County Appraisal District.

4.1.4   Amortization of Nonconforming Uses and Structures

A.

Initiation of Compliance Case. Only the City Council, by majority vote, may request that the Board of Adjustment consider establishing a compliance date for a Nonconforming Use.

B.

Public Hearing Process. Upon receiving a request from the City Council under A above, staff shall schedule the First Public Hearing before the BOA. The BOA may establish a compliance date only after holding two (2) separate public hearings. Each public hearing shall be at least thirty (30) days apart, but no more than ninety (90) days apart.

(1)

First Public Hearing. The BOA shall hold a public hearing to determine whether continued operation of the Nonconforming Use will have an adverse effect on nearby properties. If, based on the evidence presented at the public hearing, the BOA determines that continued operation of the Use will have an adverse effect on nearby properties, it shall schedule a second public hearing to establish a compliance date for the Nonconforming Use; otherwise, it shall not. In determining whether the continued operation will have an adverse effect on nearby properties, the Board shall consider the following factors:

(a)

The character of the surrounding neighborhood.

(b)

The degree of incompatibility of the Use with the Zoning District in which it is located.

(c)

The manner in which the Use is being conducted.

(d)

The hours of operation of the Use.

(e)

The extent to which continued operation of the Use may threaten public health or safety.

(f)

The environmental impacts of the Use's operation, including but not limited to the impacts of noise, glare, dust, and odor.

(g)

The extent to which public disturbances and nuisances may be created or perpetuated by continued operation of the Use.

(h)

The extent to which traffic or parking problems may be created or perpetuated by continued operation of the Use.

(i)

Any other factors the BOA in its discretion determines relevant to the issue of whether continued operation of the Use will adversely affect nearby properties.

(2)

Second Public Hearing.

(a)

At the second public hearing to set the date for compliance, the BOA shall, in accordance with the law, provide the compliance date for the Nonconforming Use under a plan whereby the owner's actual investment in the use before the time that the use became nonconforming, can be amortized. A definite time period shall be set. The following factors shall be considered by the BOA in determining a reasonable amortization period:

(i)

The owner's capital investment in structures, fixed equipment, and other assets (excluding inventory and other assets that may be feasibly transferred to another site) located on the property before the time the use became nonconforming.

(ii)

Any costs that are directly attributable to the establishment of a compliance date, including demolition expenses, relocation expenses, termination of leases, and discharge of mortgages.

(iii)

Any return on investment since inception of the use, including net income and depreciation.

(iv)

The anticipated annual recovery of investment, including net income and depreciation.

(v)

A reasonable wind-up period for the nonconforming use.

(b)

If the BOA, at the first public hearing, requests financial documentation and/or records from the owner relating to the factors listed under (a) above, the owner shall provide said documents and/or records at least thirty (30) days before the second public hearing. If the owner does not provide the requested documentation, the BOA is authorized to make its determination of a compliance date based upon any reasonably available public records as well as public testimony at the hearing. Failure by owner to provide the requested financial documents and records shall not prevent the BOA from setting a compliance date.

C.

Ceasing Operations. If the BOA establishes a compliance date for a Nonconforming Use, the Nonconforming Use shall cease operations on that date and it may not operate thereafter unless it becomes a conforming Use.

D.

Finality of Decisions.

(1)

Decisions that cannot be Immediately Appealed. A decision by the BOA that the continued operation of a Nonconforming Use shall have an adverse effect on neighboring property and the BOA's decision to schedule a second public hearing to establish a compliance date are not final decisions and cannot be immediately appealed.

(2)

Decision to Deny a Request to Establish a Compliance Date. A decision by the City Council to deny a request to establish a compliance date is final unless appealed to state court within ten (10) calendar days in accordance with Chapter 211 of the Texas Local Government Code, as amended.

(3)

Decision Setting a Compliance Date. A decision by the BOA setting a compliance date is final unless appealed to state court within ten (10) calendar days in accordance with Chapter 211 of the Texas Local Government Code, as amended.

4.1.5   Abandonment of Nonconforming Uses and Structures

A.

If a Nonconforming Use or Structure is abandoned as set forth in Subsection B of this Section, any future use of the premises shall be in conformity with the provisions of this Ordinance, as amended, and with all other applicable City codes or ordinances that are in effect at the time the Use is resumed or the Structure is re-occupied.

B.

A Nonconforming Use or Structure shall be deemed "abandoned" in the following circumstances, except as specifically provided otherwise in this Ordinance:

(1)

The Use ceases to operate for a continuous period of one hundred eighty (180) calendar days;

(2)

The Structure remains vacant for a continuous period of one hundred eighty (180) calendar days with all or some of the utilities disconnected, or with delinquent utility payments for all or some of the utilities; or

(3)

In the case of a Temporary Building, the Temporary Building is moved from the premises for any length of time, except as provided herein.

C.

Notwithstanding the foregoing, a Nonconforming Use or Structure shall not be deemed "abandoned" for a period of up to one (1) year on properties that are for sale or lease, provided the owner is actively promoting the sale or lease and there is evidence of continual use of signs, advertising or listings.

D.

Normal cessation of a Use, or temporary discontinuance for purposes of maintenance and rebuilding after damage or destruction, as authorized in this Section, shall not be included in calculating the period of discontinuance.

4.1.6   Moving of Nonconforming Structure or Building

No Nonconforming Structure or Building shall be moved in whole or in part to any other location on the lot, or to any other location or lot, unless every portion of such Nonconforming Structure or Building is in compliance with all the regulations of the zoning district wherein the Nonconforming Structure or Building is to be relocated. Such Nonconforming Structure or Building relocation shall conform to all applicable City codes or ordinances in effect at the time of relocation.

4.1.7   Right to Proceed Preserved

Nothing contained in this Section is intended to alter any rights that may have accrued to proceed under prior regulations, pursuant to Texas Local Government Code Chapter 43, or Chapter 245.

4.3.1   Members, Terms of Office

A.

The Board of Adjustment shall consist of five (5) regular members, who shall be appointed by a simple majority vote of the City Council, and shall operate in accordance with Chapter 211 of the Texas Local Government Code, as amended.

B.

The City Council shall provide for the appointment of up to four (4) alternate members to serve in the absence of one (1) or more of the regular Board members on an alternating basis such that all alternate members have equal opportunities to serve on the BOA. The Planning Director shall determine which alternate will serve if an alternate is needed.

C.

Regular BOA members and alternate members shall serve for a term of two (2) years, and expiration of terms shall be staggered so that an overlapping of terms occurs (for example, in any two-year period, the terms of two (2) regular members and at least one (1) alternate member shall expire during one of those years, and the terms of three (3) regular members and at least one (1) alternate member shall expire during the second year).

D.

Any vacancy on the BOA (both regular and alternate members) shall be filled for the unexpired term via appointment by a simple majority vote of the City Council for the remainder of the term.

E.

Members of the BOA, both regular and alternate, may be removed from office for cause as found by the City Council on a written charge, and after a public hearing, by a simple majority vote of the City Council. Failure to attend three (3) consecutive scheduled meetings shall be deemed as neglect and cause for removal from office, unless such absences were due to unusual circumstances beyond the member's control such as sickness of the member or someone within the member's immediate family. Absences may be excused by a simple majority vote of the Board or of the Council.

F.

The members of the BOA (and alternate members, as needed) shall regularly attend meetings and public hearings of the Board, shall serve without compensation at the pleasure of the Council, and shall not hold any other office or position with the City while serving on the BOA.

G.

The Board of Adjustment shall elect a Chairperson and a Vice-Chairperson from among its membership, and each officer shall hold office for two (2) years or until replaced by a simple majority vote of the Board. The Planning Director's designee shall serve as Secretary to the Board of Adjustment, and shall keep minutes of all meetings held by the Board. Minutes shall indicate the vote of each member on each question, or the fact that a member is absent or fails to vote. All records and files herein provided for shall be official records of the City, and shall be filed in the BOA's office.

H.

The Board of Adjustment shall have the power to make the rules, regulations and bylaws for its own governance, which shall conform as nearly as possible to those governing the City Council and the provisions of this Section. The Board's rules, regulations and bylaws shall be subject to approval by City Council.

4.3.2   Meetings

Meetings of the Board of Adjustment shall be held at the call of the Chairperson or Planning Director and at such other times as the BOA may determine necessary. All meetings of the BOA shall be open to the public, and minutes shall be kept of all proceedings at BOA meetings. Four (4) members of the BOA shall constitute a quorum for the conduct of business. The presiding officer or acting presiding officer may administer oaths and compel the attendance of witnesses.

4.3.3   Authority of Board of Adjustment

A.

The Board of Adjustment shall have the authority, subject to the standards established in Chapter 211 of the Texas Local Government Code, as amended, and those established herein, to exercise powers and to perform duties including the following:

(1)

Appeals to Decisions. 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 in accordance with 4.3.5 Appeals to the Board of Adjustment;

(2)

Variances and Special Exceptions. Authorize, in specific cases, a Variance or Special Exception (see 4.3.5 Appeals to the Board of Adjustment and 4.3.7 Special Exceptions) from the terms of this Ordinance if the variance or special exception is not contrary to the public interest and if, due to special conditions, a literal enforcement of the Ordinance would result in unnecessary hardship, and so that the spirit of this Ordinance is observed and substantial justice is done; and

(3)

Reverse, Affirm, or Modify. In exercising its authority under this Section, the Board of Adjustment 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 Planning Director.

B.

The concurring vote of at least four (4) members of the Board of Adjustment is necessary to:

(1)

Reverse an order, requirement, decision or determination of an administrative official;

(2)

Decide in favor of an applicant on a matter on which the BOA is required to act under this Zoning Ordinance;

(3)

Authorize a variance from a provision of this Zoning Ordinance; or

(4)

Hear and decide special exceptions to a provision of this Zoning Ordinance (see 4.3.7 Special Exceptions).

4.3.4   Limitations on Authority of Board of Adjustment

A.

Except as expressly provided in this Ordinance, the Board of Adjustment may not grant a variance authorizing a use other than those permitted in the Zoning District for which the variance is sought.

B.

The Board of Adjustment shall have no power to grant or modify any Use provisions authorized under these regulations.

C.

The Board of Adjustment shall have no power to grant a zoning amendment or change.

4.3.5   Appeals to the Board of Adjustment

A.

Appeals Defined. An appeal refers to an allegation of error in an order, requirement, decision, or determination made by an administrative official in the enforcement of this Ordinance. Authority

The Board of Adjustment may reverse or affirm, in whole or in part, or may modify an administrative official's order, requirement, decision or determination from which an appeal is taken and may correct the order, requirement, decision or determination.

B.

Procedure for Appeal.

(1)

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

(a)

A person directly aggrieved by the decision; or

(b)

Any officer, department, board, or bureau of the City affected by the decision.

(2)

A person appealing shall file with the Board of Adjustment and the official from whom the appeal is taken a written Notice of Appeal specifying the grounds for the appeal. The Notice of Appeal shall be filed within fifteen (15) calendar days after the decision has been rendered. Upon receiving the Notice, the official from whom the appeal is taken shall immediately transmit to the Board of Adjustment all papers constituting the record of action that is appealed. There shall be no fee for the filing of an appeal.

(3)

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 of Adjustment 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 Board of Adjustment or a court of appropriate jurisdiction on application, after notice to the official, if due cause is shown.

(4)

A person appealing may appear at the appeal hearing in person or by agent or attorney.

(5)

The BOA shall decide the appeal within ninety (90) calendar days after the date the written request (i.e., Notice of Appeal) is filed with the City.

(6)

The person appealing shall bear the burden of proof to establish the basis for his/her appeal.

4.3.6   Variances

A.

Variance Defined. A Variance is the authority to depart from the application of development standards such as dwelling unit size, setbacks, height, parking, and similar regulations to prevent unnecessary hardships.

B.

Authority.

(1)

The Board of Adjustment may authorize a Variance from the regulations of this Ordinance when, in its opinion, undue hardship will result from requiring strict compliance. Variances may be granted only when in harmony with the general purpose and intent of this Ordinance so that the public health, safety and welfare may be secured and that substantial justice may be done.

(2)

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

C.

Criteria for Granting a Variance.

(1)

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

(2)

Findings of Undue Hardship.

(a)

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

(i)

The financial cost of compliance is greater than fifty (50) percent of the appraised value of the structure as shown on the most recent appraisal roll certified to the assessor for the City under Section 26.01, Tax Code;

(ii)

Compliance would result in a loss to the lot on which the structure is located of at least twenty-five (25) percent of the area on which development may physically occur;

(iii)

Compliance would result in the structure not being in compliance with a requirement of a municipal ordinance, building code, or other requirement;

(iv)

Compliance would result in the unreasonable encroachment on an adjacent property or easement; or

(v)

The City considers the structure to be a nonconforming structure.

(b)

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

(3)

Self-Inflicted Hardship. A variance shall not:

(a)

Be granted to relieve a self-created or personal hardship;

(b)

Be based solely upon economic gain or loss;

(c)

Permit or allow any person a privilege or advantage in developing a parcel of land not permitted or allowed by this Ordinance to other parcels of land in the same particular zoning district; or

(d)

Result in undue hardship upon another parcel of land.

Ord. No. 2021-12-23, § 2, 12-13-21)

4.3.7   Special Exceptions

A.

Special Exception Defined. A Special Exception is differentiated from a variance because a Special Exception is a form of relief permitted expressly by this Ordinance under specified conditions, a finding of hardship is not required before it may be granted, and a Special Exception is only allowed for those circumstances and in those cases as set forth in C(2) and as otherwise specifically provided in this Ordinance.

B.

Authority. The Board of Adjustment is authorized to hear and decide a Special Exception to the zoning regulations which is not permitted by right in a particular Zoning District because of potential adverse effect, but which if controlled in the particular instance as to its relationship to the neighborhood and to the general welfare, may be permitted by the Board of Adjustment. Special Exceptions may only be considered and granted by the BOA if expressly authorized by C(2), and in accordance with the substantive and procedural standards of this Ordinance.

C.

Criteria for Granting a Special Exception.

(1)

Requests for a Zoning Special Exception.

(a)

The Board of Adjustment may grant a special exception in accordance with this Ordinance upon written request of the property owner.

(b)

The Planning Director shall process and review special exception applications.

(2)

Circumstances for which Special Exceptions are Authorized. When in the Board of Adjustment's judgment, the public convenience and welfare will be substantially served and the appropriate use of the neighboring property will not be substantially injured, the Board of Adjustment may, in specific cases, after public notice and public hearing and subject to conditions and safeguards as the BOA determines appropriate, authorize the following special exceptions to the regulations herein established:

(a)

Nonconforming Uses or Structures.

(i)

Permit the reconstruction or enlargement of a Nonconforming Structure or the expansion of a Nonconforming Use. Any enlargement of a Nonconforming Structure shall conform to the existing standards in the zoning district in which it is located.

(ii)

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

(b)

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

(c)

Off-Street Parking Requirements. The Board of Adjustment may grant a Special Exception to the requirements of Section 7.3 Off-Street Parking and Loading Regulations of this Ordinance when the BOA determines:

(i)

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

(ii)

That the use can share parking with other adjacent uses upon provision of a shared parking study and a shared parking agreement.

(d)

Fencing—Front and Side Building Lines. The Board of Adjustment may grant a Special Exception to allow fencing within a front or side Building Line under the following conditions:

(i)

Requests for front and side yard fences that do not meet the requirements of Section 7.1 Area Regulations of this Ordinance.

(ii)

If approved by the Board of Adjustment, any fencing must also meet the following conditions:

• Regardless of the type or height of fence constructed pursuant to this subsection, access for public safety services shall be maintained. Owners assume all liability for any losses incurred when the responding public safety services remove any impediment (e.g., fencing, locks, chains, animals).

• Fencing shall be structurally sound and kept in an attractive state and in good repair at all times.

• Front yard fencing shall not be sight-proof either by construction or ornamentation and at all times shall allow clear vision while backing onto a street.

• Fencing shall contain at least one (1) gate with an unobstructed clear width of three (3) feet at all times. If an archway is placed above the gate, then it shall retain a clearance of no less than seventy-eight (78) inches at all times.

• If additional right-of-way or sight triangles are required by the City, the property owner shall dedicate these prior to issuance of a fence permit.

• Fence gates shall be constructed in such a manner so as to avoid vehicles having to remain in the paved right-of-way while the gate is being opened and closed.

• Fencing shall not obscure or restrict the access to any fire hydrant or any fire connection.

• Fencing shall not be located in the street right-of-way. It shall be the responsibility of the property owner to determine the property boundaries. In the event the fence is constructed in the right-of-way, it shall be the property owner's responsibility to move the fence.

• In the event there is not at least twelve (12) feet between the right-of-way line and the edge of paving, the fencing shall be set back at least twelve (12) feet from the edge of paving.

(3)

Conditions Imposed. In granting Special Exceptions under this Section, the Board of Adjustment may impose such conditions as are necessary to protect adjacent property owners and to ensure the public health, safety and general welfare, including but not limited to conditions specifying the period during which a nonconforming use may continue to operate or exist before being brought into conformance with the provisions of this Ordinance.

4.3.8   Procedures for Variances and Special Exceptions

A.

Application and Fee. An application for a Variance or Special Exception to the Board of Adjustment shall be made in writing using forms prescribed by the City, and shall be accompanied by an application fee in accordance with the Council adopted fee schedule, a required plan, and any other additional information as may be requested in order to properly review the application. There is no filing fee for a Variance or Special Exception filed by any officer, department, board, or bureau of the City affected by the decision.

B.

Review and Report by the City. The Planning Director shall visit the site where the proposed Variance or Special Exception will apply and the surrounding area, and shall report his findings to the Board of Adjustment.

C.

Notice and Public Hearing.

(1)

The Board of Adjustment shall hold a public hearing for consideration of the Variance or Special Exception request.

(2)

Notice shall be published in the official local newspaper before the fifteenth (15th) calendar day prior to the public hearing. Written notice of the public hearing for a Variance or Special Exception shall also be sent to all owners of property, as indicated by the most recently approved City tax roll, that is located within the area of application and within two hundred (200) feet of any property affected thereby, said written notice to be sent before the tenth (10th) calendar day prior to the date such hearing is held. Such notice shall be served by using the last known address as listed on the most recently approved tax roll and depositing the notice, postage paid, in the regular United States mail.

D.

Action by the Board of Adjustment. The Board of Adjustment shall not grant a Variance or Special Exception unless it finds, based upon compelling evidence provided by the applicant, that each of the conditions in Section 4.3 Board of Adjustment (BOA) has been satisfied. The Board of Adjustment may impose such conditions, limitations and safeguards as it deems appropriate upon the granting of any Variance or Special Exception as is necessary to protect the public health, safety, convenience and welfare. Violation of any such condition, limitation or safeguard shall constitute a violation of this Ordinance.

E.

Burden of Proof. The applicant shall bear the burden of proof to establish the facts that justify a Variance, a Special Exception, an Appeal, or any other action in his/her favor by the BOA.

F.

Waiting Period. No appeal to the BOA for the same or a related Variance or Special Exception on the same piece of property shall be allowed for a waiting period of one hundred eighty (180) calendar days following an unfavorable ruling by the BOA unless other property in the immediate vicinity has, within the one hundred eighty (180) calendar day waiting period, been changed or acted upon by the BOA or the City Council so as to alter the facts and conditions upon which the previous unfavorable BOA action was based. Such changes of circumstances shall permit the re-hearing of a Variance or Special Exception request by the BOA, but such circumstances shall in no way have any force in law to compel the BOA, after a hearing on the matter, to grant a subsequent Variance or Special Exception request. Any subsequent Variance or Special Exception request shall be considered entirely on its own merits and on the specific circumstances related to the subject property.

G.

Timeliness of Application for Building Permit or Certificate of Occupancy. After a favorable BOA action on a Variance or Special Exception request, the applicant shall apply for a building permit or a Certificate of Occupancy, as applicable to his/her particular situation, within 180 calendar days following the date of BOA action, unless the BOA specifies a longer time period in the minutes of its action. If the applicant fails to apply for a building permit or Certificate of Occupancy, as applicable, within the 180 calendar day time frame, then the Variance or Special Exception shall be deemed to have expired, and all rights thereunder shall be terminated. Such termination shall be without prejudice to a subsequent appeal, and such subsequent appeal shall be subject to the same regulations and requirements for hearing as herein specified for the original Variance or Special Exception request.

4.3.9   Finality of Decisions, Judicial Review

A.

Final and Binding. All decisions of the Board of Adjustment are final and binding and may not be appealed to the City Council.

B.

Petition. Any person aggrieved by a decision of the Board of Adjustment may present a verified petition to a court of appropriate jurisdiction that states that the decision of the BOA is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition shall be presented to the court within ten (10) calendar days after the date the BOA's decision is filed in the office of the Secretary to the BOA. Subject to the provisions of Chapter 211 of the Texas Local Government Code, as amended, only a court of appropriate jurisdiction may reverse, affirm or modify a decision of the Board of Adjustment.

4.4.1   Declaration of Policy and Review Criteria

A.

The City declares the enactment of these regulations governing the use and development of land, buildings, and structures as a measure necessary to the orderly development of the community. Therefore, no change shall be made in these regulations or in the boundaries of the zoning districts except:

(1)

To correct any error in the regulations or map;

(2)

To recognize changed or changing conditions or circumstances in a particular locality;

(3)

To recognize changes in technology, the style of living, or manner of conducting business; or

(4)

To change the property to uses in accordance with the City's adopted Comprehensive Plan.

B.

In making a determination regarding a requested zoning change, the Planning and Zoning Commission and the City Council shall consider the following factors:

(1)

Whether the uses permitted by the proposed change will be appropriate in the immediate area concerned, and their relationship to the general area and to the City as a whole;

(2)

Whether the proposed change is in accord with any existing or proposed plans for providing public schools, streets, water supply, sanitary sewers, and other utilities to the area;

(3)

The amount of vacant land currently classified for similar development in the vicinity and elsewhere in the City, and any special circumstances which may make a substantial part of such vacant land unavailable for development;

(4)

The recent rate at which land is being developed in the same zoning classification as the request, particularly in the vicinity of the proposed change;

(5)

How other areas designated for similar development will be, or are likely to be, affected if the proposed amendment is approved;

(6)

Any other factors that will substantially affect the public health, safety, morals, or general welfare; and

(7)

Whether the request is consistent with the Comprehensive Plan.

4.4.2   Application

A.

Consideration of a change or amendment in any Zoning District boundary line may be initiated only by the owner of the real property (or his/her authorized agent to affect a change to his/her property), by the Planning and Zoning Commission, or by the City Council on its own motion.

B.

Consideration of an amendment to the provisions of this Ordinance may be initiated only by the Planning and Zoning Commission or by the City Council on its own motion.

C.

Each application for zoning, rezoning, Specific Use Permit (SUP), Planned Development (PD), or for an amendment to a provision(s) of this Zoning Ordinance, shall be made in writing on an application form available in the Planning Director's office, and shall be accompanied by payment of the appropriate fee as established by ordinance adopted by the City Council.

D.

The Planning Director is hereby authorized to develop application forms requiring pertinent information from the applicant. During the review process, the Planning Director may require an applicant to provide such additional information and documentation necessary for a full review of the application.

E.

The application shall be delivered to the City at least forty (40) calendar days prior to the date of the public hearing before the Planning and Zoning Commission for which consideration is requested by the applicant.

F.

Payment of all delinquent taxes and City fees of any kind due and owing that are attributable to the subject property shall be required as set forth in Section 4.5.2B. as a condition precedent to submission of an application for zoning under this Article.

4.4.3   Official Filing Date, Completeness of Application, Expiration of Application

The following shall apply to any application, including without limitation Concept Plans and Site Plans submitted in accordance with this Zoning Ordinance.

A.

Official Filing Date. The time period established by state law or this Zoning Ordinance for processing or deciding an application shall commence on the official filing date. The official filing date for a required plan application is the date the application is received by the City.

B.

Determination of Completeness.

(1)

Every required plan application shall be subject to a determination of completeness within ten (10) business days by the Planning Director for processing the application. The determination of completeness shall be made in writing and provided to the applicant within ten (10) business days after the date the application is filed with the City.

(2)

No required plan application shall be accepted by the Planning Director for processing unless it is accompanied by all documents required by and prepared in accordance with the requirements of this Zoning Ordinance.

(3)

The incompleteness of the required plan application shall be grounds for denial of the application.

(4)

A determination of completeness shall not constitute a determination of compliance with the substantive requirements of this Zoning Ordinance.

(5)

If the required plan application is determined to be complete, the application shall be acted upon in the proper manner as prescribed by this Zoning Ordinance.

(6)

If the required plan application is determined to be incomplete, the notification shall specify the documents or other information needed to complete the application and shall state the date the application will expire in accordance with this Section if the documents or other information is not provided.

(7)

A required plan application shall be deemed complete on the eleventh (11th) business day after the application has been received if the applicant has not otherwise been notified in writing that the application is incomplete.

C.

Expiration of Application. The required plan application shall expire on the forty-fifth (45th) calendar day after the date the application is filed with the City and shall be returned to the applicant if:

(1)

The applicant fails to provide documents or other information necessary to comply with the City's technical requirements relating to the form and content of the required plan application;

(2)

The City provides to the applicant, not later than the tenth (10th) business day after the date the application is filed, written notice of the failure that specifies the necessary documents or other information, and the date the application will expire if the documents or other information is not provided; and

(3)

The applicant fails to provide the specified documents or other information within the time provided in the notification.

D.

If the required plan application is resubmitted after a notification of incompleteness, the timeframe for a determination of completeness described in this Section shall begin on the date of resubmission of the required plan application.

4.4.4   Notice of Public Hearing

A.

Public Hearing for Zoning Changes Involving Real Property.

(1)

For zoning and rezoning requests involving real property (including PD and SUP requests), the Planning and Zoning Commission and the City Council shall hold at least one public hearing on each zoning application, as required in Chapter 211 of the Texas Local Government Code, as amended.

(2)

Notice of the public hearing to occur before the Planning and Zoning Commission shall be accomplished by publishing the purpose, time and place of the public hearing in the official newspaper or a newspaper of general circulation in the City before the tenth (10th) calendar day prior to the date of the public hearing.

(3)

Notice of the public hearing to occur before the City Council shall be accomplished by publishing the purpose, time and place of the public hearing in the official newspaper or a newspaper of general circulation in the City before the fifteenth (15th) calendar day prior to the date of the public hearing.

(4)

Written notice of the public hearing before the Planning and Zoning Commission shall also be sent to all owners of real property, as indicated by the most recently approved City tax roll, that is located within two hundred (200) feet of the property on which the change in classification is proposed. Written notice shall be sent before the tenth (10th) calendar day before the hearing date. Such notice shall be served by using the last known address as listed on the most recently approved tax roll and depositing the notice, postage paid, in the regular United States mail. If written notice as required is not sent before the tenth (10th) calendar day prior to the date of the hearing, then the hearing must be delayed until this notice requirement is met. If the property within two hundred (200) feet of the property on which the change is proposed is located in territory annexed to the City and is not included on the most recently approved City tax roll, notice shall be given in the manner provided by this Section.

B.

Public Hearing for Zoning Ordinance Amendments. For proposed amendments to the Zoning Ordinance, notice of the Planning and Zoning Commission hearing shall be accomplished by publishing the purpose, time and place of the public hearing in the official newspaper of the City before the tenth (10th) calendar day prior to the date of the public hearing. Notice of the City Council hearing shall be accomplished by publishing the purpose, time and place of the public hearing in the official newspaper of the City before the fifteenth (15th) calendar day prior to the date of the public hearing. Changes in the Ordinance which do not affect zoning district boundaries (i.e., which do not involve specific real property) do not require written notification to individual property owners.

C.

Separate Public Hearings—Planning and Zoning Commission Public Hearing(s) and City Council Public Hearing(s). The City may, at its option, publish the required zoning change notifications in conformance with Chapter 211 of the Texas Local Government Code for public hearings for the Planning and Zoning Commission and the City Council at the same time. Such notifications shall be published ten (10) days prior to the Planning and Zoning Commission public hearing and fifteen (15) days prior to the City Council public hearing.

D.

Joint Public Hearings—Planning and Zoning Commission Public Hearing(s) and City Council Public Hearing(s). The City Council may hold a joint public hearing on a zoning, rezoning or Zoning Ordinance amendment request along with the Planning and Zoning Commission, but the City Council shall not take action on the request until it has received a final recommendation from the Commission. Notification for a joint public hearing shall be accomplished by publishing the purpose, time and place of the joint public hearing in the official newspaper or a newspaper of general circulation in the City before the fifteenth (15th) calendar day prior to the date of the public hearing. In accordance with Chapter 211 of the Texas Local Government Code, as amended, the City Council shall prescribe any other necessary methods of notification for joint public hearings.

4.4.5   Failure to Appear

Failure of the applicant or his/her authorized representative to appear before the Planning and Zoning Commission or the City Council for more than one (1) hearing without an approved delay by the Planning Director shall constitute sufficient grounds for the Planning and Zoning Commission or the City Council to find that the applicant has withdrawn the application and take action to table or deny the application unless the Planning Director is notified in writing by the applicant at least seventy-two (72) hours prior to the hearing.

4.4.6   Commission Consideration and Recommendation

A.

The Planning and Zoning Commission shall function in accordance with Section 4.2 Planning and Zoning Commission of this Ordinance and with applicable provisions in the City's Code of Ordinances, City Charter, and State law.

B.

The Planning and Zoning Commission may, on its own motion or at the applicant's request, table its decision/recommendation for not more than sixty (60) calendar days from the time the public hearing was first opened. Such tabling shall specifically state the time period of the tabling by citing the meeting date whereon the request will reappear on the Commission's agenda, and further notice in the newspaper and to surrounding property owners shall not be required.

C.

When the Commission is ready to act upon the zoning request, it may recommend approval of the request as it was submitted by the applicant, approval of the request subject to certain conditions, or disapproval of the request. The request shall then be forwarded to the City Council for public hearing. The Commission may recommend more restrictive conditions than were requested in the original application and included in the advertised and written notice. In no case, however, may a Use, area requirement or restriction that is considered less restrictive or a less restrictive Zoning District than was requested in the original application and included in the advertised and written notice be recommended.

D.

If the Planning and Zoning Commission recommends denial of the zoning change request, it shall provide reasons to the applicant for the denial, if requested by the applicant. The Planning and Zoning Commission Chairperson shall inform the applicant of the right to receive reasons for the denial. The recommendation of denial shall then be forwarded to the City Council for public hearing.

4.4.7   City Council Authority and Consideration

A.

The City Council, after receiving a recommendation by the Planning and Zoning Commission and after public hearings required by law, may amend, supplement, or change the regulations of this Ordinance or the boundaries of the Zoning Districts on the Zoning Map in accordance with the parameters set forth in this Section. If the boundary is increased, a new public hearing shall be required.

B.

After consideration by the Planning and Zoning Commission, all zoning applications shall be automatically forwarded to the City Council for a public hearing following appropriate public hearing notification as prescribed in this Section.

C.

After a public hearing is held before the City Council regarding the zoning application, the City Council may:

(1)

Approve the request in whole or in part;

(2)

Modify and approve the request to any more restrictive conditions than were requested in the original application and included in the advertised and written notice. In no case, however, may a proposed Zoning District boundary be increased, or may a use, area requirement or restriction that is considered less restrictive or a less restrictive Zoning District than was requested in the original application and included in the advertised and written notice be approved;

(3)

Deny the request in whole or in part; or

(4)

Table the application to a future meeting.

D.

For zoning and rezoning requests involving real property (including PD and SUP requests), a favorable vote of three-fourths (¾) of all members of the City Council shall be required to approve any change in zoning when a written protest signed by the owners of at least twenty (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 two hundred (200) feet from the area, has been filed with the City Secretary, and meets all requirements of Section 211 of the Texas Local Government Code.

E.

A vote of three-fourths (¾) of all members of the City Council is required to overrule a recommendation of the Planning and Zoning Commission that a proposed change to a regulation or boundary be denied.

4.4.8   Administration and Enforcement

A.

Authority to Enforce the Zoning Ordinance. The Planning Director shall be authorized by the City Council to administer and enforce the provisions of this Ordinance. If the Planning Director finds upon observation or knowledge, or upon receipt of a complaint, that the provisions of this Ordinance are being violated, he shall have the authority to immediately investigate or to order the investigation of, and when necessary, give written notice or require that written notice be given to the person(s) responsible to cease or correct such violation(s) immediately or within a time frame required by ordinance or State law. Notice may be delivered in person, by certified mail, or by another means of written communication to the owner, occupant, or other person in control or possession of the property where the violation is occurring. The Planning Director shall have the right to enter upon any business premises during regular business hours for the purpose of making inspections of buildings or premises that may be necessary to carry out the duties in the enforcement of this Ordinance. The Planning Director shall request permission of a residence owner or person having control of a residence to enter upon residential premises for the purpose of making inspections of buildings or premises that may be necessary to carry out the duties in the enforcement of this Ordinance. If the owner of a residence or person in control of a residence refuses permission to make such inspection or if an inspection of a business is needed after hours or while not open to the public, then appropriate City Staff may work with the City Attorney to obtain a warrant or other legal authorization to make such inspections.

B.

Stop Work Orders. Whenever any building or construction work is being done contrary to the provisions of this Ordinance, the Planning Director shall have the authority to order the work stopped by notice in writing served on the property owner or on the contractor doing the work or causing such work to be done, or by posting notice on the construction site itself. Upon such notice, all such work shall stop until authorized in writing by the City to proceed with such work. Failure to immediately stop work as provided herein shall constitute a violation of this Ordinance, subject to all penalties allowed by this Ordinance and State law.

4.4.9   Schedule of Fees, Charges and Expenses

A.

Action Dependent on Fees Paid. Until all applicable taxes, application fees, charges and review expenses have been paid in full, no action shall be taken on any zoning, rezoning or development application or on any appeal.

B.

Fee Schedule. The City Council shall determine and adopt fees that it determines reasonable and necessary as a result of the costs of administering the provision of this Zoning Ordinance. The amount and nature of the fees and costs assessed shall be at the discretion of the City Council and established by separate ordinance.

4.5.1   Building Permits Required

No Building or other Structure shall be erected, moved, added to, or structurally altered without a permit issued by the Building Official. A building permit shall not be issued except in conformity with the provisions of this Ordinance, unless otherwise authorized by the Board of Adjustment in the form of a Variance or as otherwise provided in this Ordinance. Subject to the foregoing, a building permit shall not be issued until the property is properly zoned for the intended use, the property is platted in accordance with the Subdivision Ordinance, all appropriate plans have been approved by the City, all applicable ordinances have been met, and all fees have been paid.

4.5.2   General Requirements

A.

Required Site Plan.

(1)

Applicability. Submission and approval of a Site Plan shall be required for all development within all Zoning Districts and in accordance with all applicable City ordinances. An application for approval of a Site Plan may be submitted by the owner of real property or a designated representative (hereinafter "Applicant").

(2)

Building Permit and Certificate of Occupancy.

(a)

Building Permit Issuance. Site Plans shall be submitted in conjunction with a building permit application. The City shall not issue a building permit until a Site Plan, , and all other required engineering/construction plans are first approved by the City.

(b)

Certificate of Occupancy Issuance. The City shall not issue a Certificate of Occupancy until all construction and development conforms to the Site Plan and engineering/construction plans, as approved by the City.

(c)

Payment of Taxes and Fees. All required taxes and fees shall be paid prior to the issuance of a building permit or Certificate of Occupancy.

(3)

Extent of Area that should be Included within a Site Plan. When the overall development project is to be developed in phases, the area included within the Site Plan shall include only the portion of the overall property that is to be developed/constructed for the phase submitted for review and approval.

(4)

Procedures and Submission Requirements for Site Plan Approval. All Site Plans shall be prepared in accordance with the adopted building codes by a qualified civil engineer, land planner, architect and/or surveyor, if required, and shall clearly show in detail how the site will be constructed, including without limitation, paving, buildings, landscaped areas, and utilities. To ensure the submission of adequate information, the City is hereby empowered to adopt, maintain and distribute a separate list of specific requirements that are necessary for an Applicant to submit in order for the City to review an application for compliance with this Ordinance as well as other local, state, and federal laws, rules, and regulations.

(5)

Review and Approval of a Site Plan.

(a)

City Staff Review and Approval of Site Plans.

(i)

Upon official submission of an application for Site Plan approval, the City shall review the application. Specifically, the Planning Director, City Engineer, Fire Marshal, and Building Official, as well as other City staff members deemed appropriate by the Planning Director shall review the Site Plan. Determination of application completeness, notice in writing to applicant of missing documents and information shall be in accordance with this Section.

(ii)

Site Plans shall be evaluated to ensure that all developments are, to the best extent possible, constructed according to the City's codes and ordinances.

(iii)

Following City staff review, the Planning Director shall approve, approve subject to certain conditions, or deny approval of the Site Plan.

(b)

Site Plan Appeal Process.

(i)

An applicant may appeal the denial or the conditional approval of a Site Plan by the Planning Director to the Planning and Zoning Commission by filing a written notice of appeal. Such written notice shall be filed in the office of the Planning Director no later than ten (10) calendar days after the date upon which the Site Plan was denied or conditionally approved. Appeals of denials of related permits for failure to meet the regulations contained in the adopted building, fire, or other codes shall be processed in accordance with the procedures contained in those codes.

(ii)

The notice of appeal shall set forth in clear and concise fashion the basis for the appeal. The Planning and Zoning Commission shall consider and make a determination on the appeal at a public meeting held no later than sixty (60) calendar days after the date upon which the notice of appeal was filed in the office of the Planning Director.

(iii)

The Planning and Zoning Commission may affirm, deny or amend the decision of the Planning Director by a simple majority vote.

(iv)

The Planning and Zoning Commission may also, where appropriate, remand the Site Plan application back to the Planning Director for reconsideration if it believes that there is a compelling reason to do so (such as the introduction of significant new facts or testimony, etc.).

(6)

Amendments/Modifications to the Approved Site Plan.

(a)

Amendments/Modifications. It is recognized that final architectural and engineering design may necessitate changes in the approved Site Plan. Upon official re-submission of a complete application, the City shall review the application. Specifically, the Planning Director, City Engineer, Fire Marshal, and/or Building Official, as well as other City staff members deemed appropriate by the Planning Director, shall review the amended/modified Site Plan. Following City staff review, the Planning Director shall have the authority to approve amendments/modifications to an approved Site Plan (except for Site Plans/Concept Plans pertaining to Planned Development Districts).

(b)

Appeal Process for Site Plan Amendment/Modifications. An applicant may appeal the denial or the conditional approval of a Site Plan Amendment/Modification in accordance with the procedures set forth in this Section.

(7)

Effect of Review/Approval. Upon approval of a Site Plan or a Site Plan Amendment/Modification , building permits may be issued and shall be considered authorization to proceed with construction of the site provided all other required City approvals are obtained (such as final plat, engineering plans, etc.), and all applicable taxes and fees are paid pursuant to this Section.

(8)

Validity, Expiration, and Reinstatement of Site Plan or Site Plan Amendment/ Modification. Validity, expiration, and reinstatement of Site Plan or Site Plan Amendment/ Modification shall be governed by the regulations contained in Section 2.3 Vested Rights and Review Procedure of this Ordinance in accordance with State law.

B.

Payment of all Indebtedness Attributable to the Subject Property. No person who owes delinquent taxes, delinquent assessments, or any other fees, delinquent debts or obligations or who is otherwise indebted to the City, and which are directly attributable to a piece of property shall be allowed to submit any application for any type of rezoning, building permit, or plan review for that property until an arrangement satisfactory to the City has been made for the payment of such debts or obligations. It shall be the applicant's responsibility to provide evidence or proof that all taxes, fees, etc. have been paid, or that other arrangements satisfactory to the City have been made for payment of all obligations.

C.

Submission and Review of Applications. All applications shall be submitted, reviewed for completeness and approved in accordance with provisions in this Section.

D.

Supplemental Requirements. The City's staff may require other information and data for specific required plans.

4.5.3   Revocation or Expiration of Building Permit

Failure of Permit Holder or any of his agents, representatives or contractors to erect, construct, reconstruct, alter, use or maintain any Building, Structure or Premises in conformance with the approved plans upon which a building permit was issued when (1) such failure constitutes a violation of any provision of this Ordinance and (2) Applicant fails to make corrections upon proper notice, shall render such building permit voidable. The Building Official is hereby authorized and directed to revoke any such permit by giving written notice of such revocation to the Permit Holder or his agent or representative. Upon such notice of revocation, all use or work upon such Building, Structure or Premises shall be immediately discontinued until such Building, Structure or Premises shall be brought into conformance with the approved plans and with all applicable provisions of this Ordinance. Expiration of building permits shall be in accordance with the City's Building Codes.

4.5.4   Certificate of Occupancy

A.

Written application for a Certificate of Occupancy shall be made to the Building Official. If the proposed Use is found to be in conformity with the provisions of this Ordinance and all other applicable City ordinances, the Certificate of Occupancy shall be issued after the application for same has been made, all fees paid, and all required inspections are completed and approved by the Building Official. A Certificate of Occupancy shall be required for each of the following:

(1)

Occupancy and Use of a nonresidential Building hereafter erected or structurally altered;

(2)

A change in Use of an existing Building to a Use of a different classification.

(3)

A change in business name, business owner, tenant or property owner.

B.

No such Use, or change of Use, shall take place until a Certificate of Occupancy shall have been issued by the Building Official. The application fee(s) for a Certificate of Occupancy shall be as set forth by ordinance of the City Council.

C.

A record of all Certificates of Occupancy shall be kept on file in the Building Official's office.

D.

Procedure for New or Altered Buildings. Written application for a Certificate of Occupancy for a new Building or for an existing Building which is to be altered shall be made at the same time as the application for the building permit for such Building. A Certificate of Occupancy shall be issued after the Building Official orders the Building or Structure inspected and finds no violations of the provisions of this Ordinance or other applicable regulations. A Certificate of Occupancy shall be issued by the Building Official after the erection or alteration of a Building or part thereof has been completed in conformity with this Ordinance and all applicable laws and regulations.

E.

Contents of Certificate of Occupancy. Every Certificate of Occupancy shall contain the following:

(1)

The Building permit number;

(2)

The address of the Building;

(3)

The name and address of the owner;

(4)

A description of that portion of the Building for which the Certificate of Occupancy is issued;

(5)

A statement that the described portion of the Building has been inspected for compliance with the requirements of the City's Building Codes for the Occupancy and division of Occupancy, and for the Use which the proposed occupancy is classified;

(6)

The name of the Building Official (or designee);

(7)

The edition of the Building Code under which the permit and occupancy are issued;

(8)

The Use(s) and Occupancy allowed;

(9)

If an automated sprinkler system is provided and whether the sprinkler system is required;

(10)

Any special stipulations and conditions of the building permit;

(11)

The maximum number of persons/occupants; and

(12)

The issue date of the Certificate of Occupancy.

F.

Posting of Certificate of Occupancy. The Certificate of Occupancy shall be posted in a conspicuous place on the premises on a location approved by the Building Official and shall not be removed except by the Building Official.

G.

Revocation of Certificate of Occupancy. The Building Official is authorized to, in writing, suspend or revoke a Certificate of Occupancy issued under the provisions of this Ordinance whenever the Certificate is issued in error, or on the basis of incorrect information supplied, or where it is determined that the Building, Structure, or land, or portion thereof is in violation of any ordinance or regulation or any of the provisions of this Ordinance or the building code and other codes adopted by the City, and any amendments thereto.

H.

Improvements across Property Lines.

(1)

Common Land Ownership. In cases of common land ownership when the City determines that replatting is not appropriate, the construction of improvements (e.g., parking, fire lanes, retention ponds) may be authorized by the Planning & Zoning Commission and City Council to extend across property lines of land under common ownership and an easement is granted on the adjacent property where the construction of utilities is proposed.

(2)

Revocation or Certificate of Occupancy or Review of Parking Requirements. The City is authorized to revoke a Certificate of Occupancy or review parking requirements in the event that one of the parcels is sold to a different owner.

4.5.5   Completion of Buildings in Progress

Nothing contained herein shall require any change in the plans, construction or designated Use of a Building, the foundation for which has been completely constructed as of the effective date of this Ordinance, and the remaining construction of which shall have been completed within one (1) year (i.e., three hundred sixty-five (365) calendar days) following the effective date of this Ordinance.