Denison City Zoning Code
ARTICLE II.
ZONING PROCEDURES AND ADMINISTRATION
Sec. 28.7. - Reserved.
Editor's note— Ord. No. 5060, § 3, adopted May 4, 2020, repealed former § 28.7 (28.7.1—28.7.8), which pertained to the planning and zoning commission, and derived from Ord. No. 4720, adopted July 29, 2009.
Sec. 28.8. - Zoning board of adjustments and appeals (ZBA).
28.8.1. Creation:
There is hereby created a zoning board of adjustments and appeals, hereafter referred to as the "ZBA," for the purpose, in appropriate cases and subject to appropriate conditions and safeguards, to make special exceptions to the terms of this chapter that are consistent with the general purpose and intent of this chapter.
28.8.2. Members; terms of office:
A.
The zoning board of adjustments and appeals shall operate in accordance with of the V.T.C.A., Local Government Code §§ 211.008 through 211.011, as amended.
B.
The ZBA shall consist of five (5) members and two (2) alternate members residing within the City of Denison appointed by the city council.
C.
Each person nominated by the city council to be a ZBA member must be approved by a simple majority vote of the city council before being appointed as a member of the ZBA.
D.
All appointments to the ZBA shall serve as a member for a term of office of two (2) years. All members shall serve three (3) terms of office in accordance with chapter 2, article 2, of the Denison Code of Ordinances (pertaining to residency and attendance requirements).
E.
The zoning board of adjustments and appeals shall elect a chairperson and a vice-chairperson from among its membership, and each officer shall hold office until replaced by a simple majority vote of the full ZBA. The city manager's designee shall serve as secretary to the zoning board of adjustments and appeals, and shall keep minutes of all meetings held by the board.
F.
The zoning board of adjustments and appeals shall have the power to make the rules, regulations and bylaws for its own government.
A.
Meetings of the zoning board of adjustments and appeals shall be held at the call of the chairperson or secretary and at such other times as the ZBA may determine. All meetings of the ZBA shall be open to the public.
B.
All cases to be heard by the zoning board of adjustments and appeals shall always be heard by at least seventy-five (75) percent of the members.
28.8.4. Authority of zoning board of adjustments:
A.
The board of adjustments and appeals shall have the authority, granted in of the V.T.C.A., Local Government Code §§ 211.008 through 211.011, and those established herein, to exercise powers and to perform duties including the following:
1.
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 chapter;
2.
Authorize, in specific cases, a variance from the terms of this chapter if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of this chapter is observed and substantial justice is done;
3.
In exercising its authority under subsection 1. above, the zoning board of adjustments and appeals may reverse or affirm, in whole or in part, or modify the administrative official's order, requirement, decision or determination from which an appeal is taken and make the correct order, requirement, decision or determination, and for that purpose the board has the same authority as the administrative official;
4.
The concurring vote of at least seventy-five (75) percent of the full zoning board of adjustments and appeals is necessary to:
a.
Reverse an order, requirement, decision or determination of an administrative official;
b.
Decide in favor of an applicant on a matter on which the board is required to review under this chapter;
c.
Authorize a variance from the terms of this chapter; or
d.
Hear and decide special exceptions to this chapter.
28.8.5. Limitations on authority of zoning board of adjustments and appeals:
A.
The zoning board of adjustments and appeals may not grant a variance authorizing a use other than those permitted in the district for which the variance is sought, except as provided in subsection 28.8.6.C. below.
B.
The zoning board of adjustments and appeals shall have no power to grant or modify conditional use permits authorized under section 28.11 of these regulations.
C.
The zoning board of adjustments and appeals shall have no power to grant a zoning amendment. In the event that a written request for a zoning amendment is pending before the planning and zoning commission or the city council, the zoning board of adjustments and appeals shall neither hear nor grant any variances with respect to the subject property until final disposition of the zoning amendment.
D.
The zoning board of adjustments and appeals shall not grant a variance for any parcel of property or portion thereof upon which an application for a site plan, preliminary plat, or final plat is pending for decision on the agenda of the commission or, where applicable, of the city council, in which case the site plan or plat application shall be decided first. If the site plan or construction plat application is dependent on the granting of a variance by the board, the application may only be approved on condition that the variance is granted. All administrative and procedural remedies available to the applicant shall have been exhausted prior to hearing by the zoning board of adjustments and appeals.
A.
The zoning board of adjustments and appeals may authorize a variance from these regulations when, in its opinion, undue hardship will result from requiring strict compliance. In granting a variance, the board shall prescribe only conditions that it deems necessary for, or desirable to, the public interest. In making the findings herein below required, the board shall take into account the nature of the proposed use of the land involved, existing uses of land in the vicinity, the number of persons who will reside or work within the proposed use, and the probable effect such variance will have upon traffic conditions and upon the public health, safety, convenience and welfare of the community.
B.
Conditions required for variance:
1.
No variance shall be granted without first having given public notice and having held a public hearing on the written variance request in accordance with this chapter and unless the zoning board of adjustments and appeals finds:
a.
That there are special circumstances or conditions affecting the land involved such that the strict application of the provisions of this chapter would deprive the applicant of the reasonable use of the land; and
b.
That the variance is necessary for the preservation and enjoyment of a substantial property right of the applicant; and
c.
That the granting of the variance will not be detrimental to the public health, safety or welfare, or injurious to other property within the area; and
d.
That the granting of the variance will not have the effect of preventing the orderly use of other land within the area in accordance with the provisions of this chapter.
2.
Such findings of the zoning board of adjustments and appeals, together with the specific facts upon which such findings are based, shall be incorporated into the official minutes of the zoning board of adjustments and appeals meeting at which such variance is granted. Variances may be granted only when in harmony with the general purpose and intent of this chapter so that the public health, safety and welfare may be secured and that substantial justice may be done.
C.
Findings of undue hardship:
1.
In order to grant a variance, the zoning board of adjustments and appeals must make written findings that an undue hardship exists, using the following criteria:
a.
That literal enforcement of the controls will create an unnecessary hardship or practical difficulty in the development of the affected property; and
b.
That the situation causing the hardship or difficulty is neither self-imposed nor generally affecting all or most properties in the same zoning district; and
c.
That the relief sought will not injure the permitted use of adjacent conforming property; and
d.
That the granting of a variance will be in harmony with the spirit and purpose of these regulations.
2.
A variance shall not be granted to relieve a self-created or personal hardship, nor shall it be based solely upon economic gain or loss, nor shall it permit any person the privilege of developing a parcel of land not permitted by this chapter to other parcels of land in the particular zoning district. No variance may be granted which results in undue hardship upon another parcel of land.
3.
The applicant bears the burden of proof in establishing the facts that may justify a variance.
D.
Special exceptions for nonconforming uses and structures: Upon written request of the property owner, the zoning board of adjustments and appeals may grant special exceptions to the provisions of subsection 28.9.2, limited to the following, and in accordance with the following standards:
1.
Expansion of a nonconforming use within an existing structure provided that, in the case of a nonconforming residential use, such expansion does not increase the number of dwelling units to more than the number existing when the use first became nonconforming; or
2.
Expansion of the gross floor area of a nonconforming structure provided that such expansion does not decrease any existing setback.
3.
Change from one nonconforming use to another, reconstruction of a nonconforming structure that has been totally destroyed, or resumption of a nonconforming use previously abandoned, only upon finding that the failure to grant the special exception deprives the property owner of substantially all use or economic value of the land.
4.
In granting special exceptions under this section, the ZBA 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 the nonconforming use may continue to operate or exist before being conformed to the standards of the zoning ordinance.
28.8.7. Appeals to the zoning board of adjustments and appeals:
A.
The appellant must file with the zoning board of adjustments and appeals and the official from whom the appeal is taken a written notice of appeal specifying the grounds for the appeal. The appeal must be filed within sixty (60) days after the decision has been rendered. Upon receiving the notice, the official from whom the appeal is taken shall immediately transmit to the zoning board of adjustments and appeals all papers constituting the record of action that is appealed. An appeal stays all proceedings in furtherance of the action that is appealed unless the official from whom the appeal is taken certifies in writing to the zoning board of adjustments and appeals 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 zoning board of adjustments and appeals or a court of record on application, after notice to the official, if due cause is shown. The appellant party may appear at the appeal hearing in person or by agent or attorney. The zoning board of adjustments and appeals shall decide the appeal within four (4) weeks after the written request (notice of appeal) was received, after which time the written request shall be deemed automatically approved if no formal action is taken. The zoning board of adjustments and appeals 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 may make the correct order, requirement, decision or determination.
B.
A member or members of the zoning board of adjustments and appeals may not bring an appeal on behalf of a property owner other than himself/herself to the zoning board of adjustments and appeals. An appeal must be requested by the owner of the property being considered.
A.
Application and fee. An application for a variance by the zoning board of adjustments and appeals shall be made in writing using forms prescribed by the city, and shall be accompanied by an application fee, a site plan and such additional information as may be requested in writing in order to properly review the application. Such information may include, but is not limited to, plat plans, site building plans, photographs, topographic contour maps, and other similar documents. All drawings must be to scale.
B.
Review and report by the city. The city manager or his/her designee, shall visit the site where the proposed variance will apply and the surrounding area, and shall report his or her findings to the zoning board of adjustments and appeals.
C.
Notice and public hearings. The zoning board of adjustments and appeals shall hold a public hearing for consideration of the written variance request no later than forty-five (45) days after the date the application for action, or an appeal, is filed. Notice of the public hearing shall be provided to all property owners within two hundred (200) feet of the affected property at least ten (10) days prior to the public hearing, and also published in the official local newspaper at least ten (10) days prior to the public hearing.
D.
Action by the zoning board of adjustments and appeals. The zoning board of adjustments and appeals shall not grant a variance unless it finds, based upon evidence, that each of the conditions in subsection 28.8.6.2. has been established. The zoning board of adjustments and appeals may impose such conditions, limitations and safeguards as it deems appropriate upon the granting of any variance. Violation of any such condition, limitation or safeguard shall constitute a violation of this chapter.
28.8.9. Finality of decisions; judicial review:
All decisions of the zoning board of adjustments and appeals are final and binding. However, any person aggrieved by a decision of the zoning board of adjustments and appeals may present a verified petition to a court of record which states that the decision of the zoning board of adjustments and appeals is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition must be presented within ten (10) days after the date the decision is filed in the city secretary's office. Subject to the provisions of the V.T.C.A., Local Government Code ch. 211.011, only a court of record may reverse, affirm or modify a decision of the zoning board of adjustments and appeals.
Sec. 28.9. - Nonconforming uses and structures.
28.9.1. Intent of provisions:
A.
Within the districts established by this chapter or amendments thereto, there may exist lots, structures, uses of land and structures, and characteristics of use which were lawfully in existence and operating before this chapter was enacted, amended or otherwise made applicable to such lots, structures or uses, but which do not now conform to the regulations of the district in which they are located. It is the intent of this chapter to permit such nonconforming uses to continue, as long as the conditions within this section and other applicable sections of the chapter are met, except as otherwise provided in this section.
B.
It is further the intent of this chapter that nonconforming uses shall not be enlarged upon, expanded or extended, and shall not be used as a basis for adding other structures or uses prohibited elsewhere in the same district, except as otherwise provided in this section.
C.
Nonconforming uses are hereby declared to be incompatible with the permitted uses in the districts involved.
A.
Any use, platted lot or structure which does not conform with the regulations of this zoning chapter on the effective date hereof or any amendment hereto, except as expressly provided in subsection C. below, shall be deemed a nonconforming use, platted lot or structure provided that:
1.
Such use, platted lot or structure was in existence under and in compliance with the provisions of the immediately prior zoning ordinance; or
2.
Such use, platted lot or structure was a lawful, nonconforming use, platted lot or structure under the immediately prior zoning ordinance; or
3.
Such use, platted lot or structure was in existence at the time of annexation into the city, was a legal use of the land at such time, and has been in regular and continuous use since such time.
B.
Any other use, platted lot or structure which does not conform with the regulations of the zoning district in which it is located on the effective date of this chapter or any amendment hereto, and except as provided in subsection C. below, shall be deemed to be in violation of this chapter, and the city shall be entitled to enforce fully the terms of this chapter with respect to such use, platted lot or structure.
C.
The following types of platted lots shall be deemed conforming lots as lots of record, notwithstanding the fact that such lots do not meet the standards of this chapter in the zoning district in which they are located:
1.
Any vacant lot that conformed to the city's zoning district regulations at the time that it was platted; or
2.
Any lot occupied by a single-family dwelling authorized under the zoning district regulations in which the lot is located.
D.
A lot of record that is nonconforming may be occupied by a single-family dwelling provided that the zoning district in which the lot of record is located allows a single-family land use.
28.9.3. Continuing lawful use of land and structures:
A.
A nonconforming use or structure may continue to be used, operated or occupied in accordance with the terms of the zoning regulations by which it was established, or in the case of annexed property, in accordance with the regulations under which it was created.
B.
A nonconforming structure occupied by a nonconforming use may be re-occupied by a conforming use, following abandonment of the nonconforming use.
28.9.4. Abandonment of nonconforming uses and structures, and cessation of use of structures and land:
A.
If a nonconforming use or structure is abandoned, any future use of the premises shall be in conformity with the provisions of this chapter, as amended, and with any other applicable city codes or ordinances that are in effect at the time the use is resumed or the structure is reoccupied.
B.
A nonconforming use or structure shall be deemed "abandoned" in the following circumstances:
1.
The use ceases to operate for a continuous period of six (6) months (i.e., one hundred eighty (180) calendar days);
2.
The structure remains vacant for a continuous period of six (6) months (i.e., one hundred eighty (180) calendar days); or
3.
In the case of a temporary use, the use is moved from the premises for any length of time.
C.
If the use of any lot, tract or property that does not have a building on it and that is used for open/outside storage as of the effective date of this chapter (or amendment thereto) is made nonconforming by this chapter (or amendment thereto), then such storage use shall cease within six (6) months (i.e., one hundred eighty (180) calendar days) following the effective date of this chapter (or amendment thereto). The lot, tract or property shall be cleaned up and all trash, debris, stored items and vehicles, and other materials shall be removed from the premises such that the property is not a physical or visual nuisance to the public or to surrounding property owners.
28.9.5. Changing nonconforming uses:
A.
A nonconforming use shall not be changed to another nonconforming use.
B.
A nonconforming use may be changed to a conforming use provided that, once such change is made, the use shall not be changed back to a nonconforming use.
C.
A conforming use located in a nonconforming structure may be changed to another conforming use, but shall not be changed to a nonconforming use.
28.9.6. Expansion of nonconforming uses and structures:
A.
A nonconforming use may be extended throughout the structure in which it is located, provided that:
1.
The structure or its premises shall not be enlarged or increased in height, in floor area or in land area to accommodate extension of the nonconforming use;
2.
No alteration shall be made to the structure occupied by the nonconforming use, except those alterations that are required by law to preserve the integrity of the structure and alterations that would upgrade the quality, safety or aesthetic appeal of the structure; and
3.
The number of dwelling units occupying the structure shall not exceed the number of dwelling units existing at the time the use became nonconforming.
B.
A nonconforming use occupying a structure shall not be extended to occupy land outside the structure.
C.
A nonconforming use or structure shall not be enlarged, increased or extended to occupy a greater area of land than was occupied at the time the use or structure became nonconforming, except to provide additional off-street parking or loading areas required by this chapter.
28.9.7. Reconstruction or repair of nonconforming structure:
A.
If more than sixty (60) percent of the total appraised value, as determined by the Grayson 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 standards of this chapter.
B.
If less than sixty (60) percent of the total appraised value, as determined by the Grayson 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 planning director (or his/her designee).
C.
If a nonconforming structure that is totally or partially destroyed was occupied by a nonconforming use at the time of such destruction, then the nonconforming use may be reestablished subject to the limitations on expansion set forth in subsection 28.9.6. above.
D.
Any conforming structure that is totally or partially destroyed shall be reconstructed only in conformity with the standards of this chapter.
E.
Nothing in this chapter 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 proper authority, unless such repairs or maintenance exceeds fifty (50) percent of the structure's appraised value, as determined by the Grayson County Appraisal District.
F.
Special provisions for residential structures located in non-residential zoning districts—Residential structures located in non-residential zoning districts on existing platted lots may be rebuilt or expanded and are exempt from the special exception requirements in Section 28.8.6.D of this ordinance. If rebuilt or expanded, single-family structures shall comply with the requirements of the SF-5 zoning district. Multi-family structures may be rebuilt, but the number of units shall not be increased.
28.9.8. Moving of nonconforming structure:
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 structure is in compliance with all the regulations of the zoning district wherein the structure is to be relocated. Such building relocation shall also require any permits required by the city, and may also require platting of the intended building site pursuant to the city's subdivision ordinance as well as concept plan, site plan or building permit plan approval per section 28.13 and 28.14 of this chapter.
Nothing in this chapter shall be construed to prohibit the use of a lot that does not meet the minimum lot standards of the zoning district in which it is located, provided that the lot is zoned for the land use(s) intended and the lot was platted as a lot of record prior to the effective date of this chapter.
28.9.10. Right to proceed reserved:
Nothing contained in this section 28.9 is intended to alter any rights that may have accrued to proceed under prior regulations, pursuant to V.T.C.A., Local Government Code §§ 245.001 to 245.006 and section 28.8 of this zoning chapter.
28.9.11. Payment of all indebtedness attributable to the subject property:
No person who owes delinquent taxes, delinquent paving assessments, impact fees, or any other delinquent debts or obligations to the City of Denison, and which are directly attributable to a piece of property shall be allowed to submit any application for any type of zoning change or plan review until the taxes, assessments, debts, or obligations directly attributable to said property and owed by the owner or previous owner thereof to the City of Denison shall have been first fully discharged by payment, or 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 said taxes, fees, etc.
(Ord. No. 5232, § 3, 9-19-22)
Sec. 28.10. - Amendments to zoning ordinance and districts, administrative procedures, and enforcement.
28.10.1. 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 that 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.
Whether the zoning petition is consistent with the current land use plan; and
7.
Any other factors that will substantially affect the public health, safety, morals, or general welfare.
28.10.2. Authority to amend ordinance:
A.
The city council may from time to time, after receiving a recommendation thereon by the planning and zoning commission and after public hearings required by law, amend, supplement, or change the regulations herein provided or the boundaries of the zoning districts specified on the zoning map. Any amendment to the zoning ordinance text or to zoning district boundaries may be ordered for consideration by the city council, may be initiated by the planning and zoning commission, or may be requested by the owner of real property (or his/her authorized representative).
B.
Consideration for a change in any zoning district boundary line or special zoning regulation may be initiated only by the property owner or his/her authorized agent (proof of such authorization must be submitted with the zoning application, per subsection 28.10.3.), or by the planning and zoning commission or the city council on its own motion when it finds that public benefit will be derived from consideration of such matter. In the event the ownership stated on an application and that shown in city records are different, the applicant shall submit proof of ownership and verification that he/she is acting as an authorized agent for the property owner.
C.
No person who owes delinquent taxes, delinquent paving assessments, impact fees, or any other delinquent debts or obligations to the City of Denison, and which are directly attributable to a piece of property requested for zoning shall be allowed to submit a zoning request until the taxes, assessments, debts, or obligations directly attributable to said property and owed by the owner or previous owner thereof shall have been first fully discharged by payment, or 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 have been paid.
A.
Each application for zoning, rezoning, or for a text amendment to a provision(s) of this zoning chapter, shall be made in writing on an application form available in the office of the planning director. The application shall be delivered to the city at least thirty (30) days prior to the date of the public hearing before the planning and zoning commission, and by motion of the city council. An accurate metes and bounds description of the subject property (or other suitable legal description), a survey (i.e., drawing) exhibit, and other appropriate exhibits (i.e., site plans, maps, architectural elevations, information about proposed uses, etc.) that are determined necessary by the planning director (or his/her designee) shall also be submitted with the zoning application in order to ensure that the request is understood.
B.
All zoning change requests involving real property (including PD requests) may be accompanied by a notarized statement verifying land ownership and, if applicable, authorization of land owner's agent to file the zoning change request.
C.
Official submission date and completeness of application: Zoning applications which do not include all required information and materials will be considered incomplete in accordance with subsection 28.15A.2 of this chapter.
28.10.4. Notice requirements of zoning hearing:
A.
Notice of the planning and zoning commission hearing for zoning amendment involving real property. Written notice of the public hearing 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 calendar day prior to the date such hearing is held. Such notice may 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 United States mail.
B.
Notice of the planning and zoning commission hearing for proposed changes to the text of the zoning ordinance. For requests involving proposed changes to the text of 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 fifteenth calendar day prior to the date of the public hearing. Changes in the ordinance text that do not change zoning district boundaries (i.e., which do not involve specific real property) do not require written notification to individual property owners.
C.
Notice of the city council hearing for zoning amendments. Published notice of the city council public hearing for a zoning request, rezoning request or zoning ordinance text amendment request shall be accomplished by publishing the purpose, time, and place of the public hearing in the official newspaper of the city before the fifteenth calendar day prior to the date of the public hearing. Notification for the city council's public hearing may be accomplished simultaneously with the public notification given for the public hearing to be held before the planning and zoning commission.
D.
Protests. For zoning and rezoning requests involving a proposal change to a regulation or zoning district boundary, a favorable vote of three-fourths (¾) of all members of the city council shall be required to approve any change in zoning when written objections are received from twenty (20) percent or more of the land area covered by the proposed change, or of the land area within two hundred (200) feet of the subject property, in accordance with the provisions of V.T.C.A., Local Government Code § 211.006. If a protest against such proposed zoning change has been filed with the city secretary, duly signed and acknowledged by the owners of twenty (20) percent or more, either of the area of the land included in such a proposed change or those owners of property immediately adjacent to the subject property and extending two hundred (200) feet there from, such zoning change shall not become effective except by a three-fourths (¾) vote of the full city council.
E.
Joint public hearings. The city council may hold a joint public hearing on a zoning, rezoning or zoning ordinance text amendment request 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. Any such joint public hearing shall only be held after passage of a resolution setting the hearing date, purpose for the hearing, and location of the hearing. The city council by a two-thirds (⅔) vote may prescribe the type of notice to be given of the time and place of the joint public hearing, in which case the notice requirements of subsections A. through D. shall not apply.
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 (or his/her designee) shall constitute sufficient grounds for the planning and zoning commission or the city council to table or deny the application unless the city is notified in writing by the applicant at least seventy-two (72) hours prior to the hearing.
28.10.6. Planning and zoning commission consideration and recommendation:
A.
The planning and zoning commission shall function in accordance with applicable provisions in the city's Code of Ordinances.
B.
The commission shall hold a public hearing on a zoning or rezoning request (including a PD request or a proposed text amendment to the zoning ordinance). After all public input has been received and the public hearing closed, the commission shall make its recommendations on the proposed zoning request stating its findings, its overall evaluation of the request, and its assessment regarding how the request relates to the city's comprehensive plan. The planning and zoning commission may, on its own motion or at the applicant's request, defer its decision/recommendation for not more than ninety (90) calendar days from the time the public hearing was first opened, or until it has had an opportunity to consider other information or proposed modifications to the request which may have a direct bearing thereon. If the commission elects to table the request, 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 denial. The commission's recommendation for approval, approval with conditions, or denial will be automatically forwarded to the city council for a second public hearing thereon (see section 28.10.7).
28.10.7. City council consideration:
A.
Applications forwarded from the planning and zoning commission to the city council. Every zoning application which is recommended for approval, approval with conditions, or denial by the planning and zoning commission shall be automatically forwarded to the city council for setting and holding of a second public hearing thereon following appropriate public hearing notification as prescribed in subsection 28.10.4 above (i.e., publication in the newspaper, notices sent to property owners within two hundred (200) feet, etc.).
B.
City council action on zoning, rezoning or text amendment requests. After a public hearing is held before the city council regarding the zoning application, the city council may approve the request in whole or in part, deny the request in whole or in part, table the application to a future meeting (and specifically citing the city council meeting to which it is tabled), or it may refer the application back to the planning and zoning commission for further study.
1.
If the city council approves the request, then subsection 28.10.7.C. will apply.
2.
If the city council denies the request, then no other zoning application may be filed for all or part of the subject tract of land (or for that portion of the zoning ordinance, in the case of a text amendment request submitted by a property owner or citizen) for a waiting period of six (6) months following the denial. In the instance that the request was initiated by the city and involved a proposed amendment to the text of the zoning ordinance, then there is no waiting period before the request can be reconsidered. The city council may, at its option, waive the six-month waiting period if, after due consideration of the matter at a scheduled and posted meeting, it is determined that denial of the request was based upon erroneous or omitted information, or if substantial new information pertaining to the request is discovered.
C.
Final approval and ordinance adoption. Upon approval of the zoning request by the city council, the applicant shall submit all related material with revisions, if necessary, to the planning director (or his/her designee) for the preparation of the amending ordinance. The amending ordinance will not be prepared for adoption until a correct description and all required exhibits have been submitted to the planning director (or his/her designee) and the amending ordinance shall not be formally adopted until it is adopted by the city council, signed by the mayor, and attested by the city secretary.
(Ord. No. 5142, § 3, 5-17-21)
Sec. 28.11. - Conditional use permit.
28.11.1. Conditional use purpose:
The purpose of a conditional use permit is to allow the establishment of uses which may be suitable only in certain locations in a zoning district or only when subject to standards and conditions that assure compatibility with adjoining uses. Conditional uses are those uses which are generally compatible with the permitted land uses in a given zoning district, but which require individual review of their location, design and configuration and the imposition of conditions in order to ensure the appropriateness of the use at a particular location within a given zoning district. Only those uses that are enumerated as conditional uses in a particular zoning district shall be authorized as conditional uses. A conditional use permit may authorize variations from the standards in the zoning district only such as are necessary to meet the conditions attached to the permit.
A.
A conditional use permit is required to develop property within city limits for any use designated as a conditional use, or for the expansion of an existing conditional use. Conditional uses are of two (2) types. A Type I conditional use is a use that is identified as such in the use charts in section 28.49 of this zoning chapter for the zoning district in which the property is located. A Type II conditional use is a use that has been classified as such for a particular district as of the effective date of this chapter. Type II conditional uses are not listed in the use charts in section 28.49, may not be established within the designated district after the effective date of this zoning chapter and are subject to the conditions set forth in the ordinance adopting these zoning regulations. The conditional use permit application must be accompanied by a general site plan prepared in accordance with subsection 28.13.8.
B.
A conditional use permit is not a zoning amendment and does not require a zoning map change.
28.11.4. Official submission date and completeness of application:
Conditional use permit applications that do not include all required information and materials (as outlined below and per other city development review policies which may change from time to time) will be considered incomplete in accordance with subsection 28.15A.2 of this chapter.
28.11.5. Supplemental requirements:
The city's staff may require other information and data for specific conditional use permit applications. this data may include but is not limited to geologic information, water yields, flood data and/or hydrological studies, environmental information, traffic impact analysis, road capacities, market information, economic data for the proposed development, hours of operation, and similar information. Approval of a general site plan may establish conditions for construction based upon such information.
Approval of a conditional use permit authorizes the use of the property in accordance with the conditions of the permit. Approval of a conditional use permit shall be deemed to authorize only the particular use for which the permit is issued. No conditionally permitted use shall be enlarged, extended, increased in intensity or relocated unless an application is made for a new conditional use permit in accordance with the procedures set forth in this section. Development of the use shall not be authorized until the applicant has secured all the permits and approvals required by this zoning chapter.
A.
A conditional use permit for a Type I conditional use shall not be approved unless the use is authorized in the zoning district in which the applicant's property is located and until a final subdivision plat, that includes the lot for which the conditional use permit is sought, has been approved.
B.
Type II conditionals are not permitted unless they were in existence prior to the effective date of this chapter.
28.11.8. Application requirements:
A.
Responsible official. The planning director shall be the official responsible for processing a conditional use permit application.
B.
Contents. An application for approval of a Type I conditional use permit shall contain the following information and documents:
1.
An application for a conditional use permit with signatures of the owner or his/her designated representative if the applicant is not the owner of the subject property;
2.
Application fee as established on the City of Denison schedule of fees;
3.
Verification that all taxes and assessments on the subject property have been paid;
4.
Copies of the required general site plan(s), including all information specified by this chapter and any applicable sections of the City of Denison subdivision ordinance, on 24″ × 36″ sheet(s) drawn to a known engineering scale (with dimensions labeled) that is large enough to be clearly legible and other required information, the quantity of which shall be determined by the planning director, or his/her designee;
5.
Reduced copies (11″ × 17″) of the required plan(s) as required by the planning director or his/her designee;
6.
Any additional information/materials (such as plans, maps, exhibits, legal description of property, information about proposed uses, etc.) as deemed necessary by the planning director (or his/her designee) in order to ensure that the development request is understood;
7.
A general site plan illustrating the following items:
a.
The location of all existing structures on the subject property and on adjoining property;
b.
Landscaping and/or fencing of yards and setback areas and proposed additions or changes;
c.
Design and location of ingress and egress;
d.
Off-street parking and loading spaces;
e.
Height of all structures;
f.
Proposed structures and uses; and
g.
The location and types of all existing and proposed signs.
8.
All information and illustrations necessary to show the nature and effect of proposed variations to the standards in the zoning district.
28.11.9. Processing of application and decision:
A.
Hearings. The planning director shall schedule successive public hearings before the planning and zoning commission and before the city council on the application for a conditional use permit. The hearings shall be conducted on the application in accordance with section 28.10 of this zoning chapter.
B.
Commission's action. Following the initial public hearing, the commission shall make its recommendation to the city council for approval, approval with modifications or denial of the application for a conditional use permit. The commission also shall recommend whether any requested variations from the standards in the zoning district regulations should be granted.
C.
Council decision. Upon receipt of the commission's recommendation, the city council shall approve, approve with modifications, or deny the application. The council also shall decide whether to grant any requested variations from the standards in the zoning district regulations.
D.
No variances. The conditions imposed on the application shall not be subject to variances that otherwise could be granted by the board of adjustment and appeals, nor may conditions imposed by the city council subsequently be waived or varied by the board of adjustments and appeals.
28.11.10. Criteria for approval:
A.
Factors. When considering applications for a conditional use permit, the commission and the council shall evaluate the impact of the proposed conditional use on and its compatibility with surrounding properties and neighborhoods to ensure the appropriateness of the use at the particular location, and shall consider the extent to which:
1.
The proposed use at the specified location is consistent with the policies embodied in the adopted comprehensive plan;
2.
The proposed use is consistent with the general purpose and intent of the applicable zoning district regulations;
3.
The proposed use is compatible with and preserves the character and integrity of adjacent development and neighborhood and includes improvements either on site or within the public rights-of-way to mitigate development-related adverse impacts, such as traffic, noise, odors, visual nuisances, drainage or other similar adverse effects to adjacent development and neighborhoods;
4.
The proposed use does not generate pedestrian and vehicular traffic which will be hazardous or conflict with the existing and anticipated traffic in the neighborhood;
5.
The proposed use incorporates roadway adjustments, traffic control devices or mechanisms, and access restrictions to control traffic flow or divert traffic as may be needed to reduce or eliminate development generated traffic on neighborhood streets;
6.
The proposed use incorporates features to minimize adverse effects, including visual impacts, of the proposed conditional use on adjacent properties; and
7.
The proposed use meets the standards for the zoning district, or to the extent variations from such standards have been requested, that such variations are necessary to render the use compatible with adjoining development and the neighborhood.
B.
Conditions. The commission may recommend and the council may require such modifications in the proposed use and attach such conditions to the conditional use permit as are necessary to mitigate adverse effects of the proposed use and to carry out the spirit and intent of this section. Conditions include but are not limited to matters related to limitation of building size or height, increased open space, increased impervious surface, enhanced loading and parking requirements, additional landscaping and improvements including curbing and sidewalks, vehicular access and parking, placement or orientation of buildings and entryways, buffer yards, landscaping and screening, signage restrictions and design, maintenance of buildings and outdoor areas, duration of the permit and hours of operation.
28.11.11. Expiration and revocation:
A.
Time of expiration. A conditional use permit shall expire if:
1.
A building permit for the use has not been approved within one (1) year of the date of approval of the permit;
2.
The building permit subsequently expires;
3.
The use has been discontinued or abandoned for a period exceeding six (6) months; or
4.
A termination date attached to the permit has passed.
B.
Revocation. The city council may revoke any conditional use permit that is in violation of any condition of use imposed under subsection 28.11.10.
28.11.12. Abandonment and replacement of conditional use:
A.
In determining whether a conditional use has been discontinued or abandoned, the city shall apply the standards in subsection 28.9.4 of this zoning chapter applicable to a nonconforming use.
B.
A conditional use that has been destroyed in whole or the part may be replaced subject to the same standards and conditions applicable to the original use.
Sec. 28.12. - Cluster development plan.
28.12.1. Purpose:
The purpose of a cluster development plan shall be to authorize the use of residential density standards in substitution for minimum lot size standards for residential uses.
A cluster development plan shall be required inside the city limits or where authorized by a development agreement, whenever the property owner seeks authorization to have subsequent development applications reviewed under residential density standards in lieu of minimum lot size standards, as authorized in the RD or UD Zoning Districts.
Approval of a cluster development plan authorizes the property owner to submit a plat application for the property subject to the cluster development plan.
28.12.4. Sequence of approvals:
A.
Prior approvals. An application for a cluster development shall not be approved unless all legislative applications, including the establishment of an RD, or UD Zoning District, have been approved, or as stated in B. below.
B.
Accompanying applications. The application for a cluster development plan may be included with an application to rezone a piece of property to an RD, or UD zoning district where a cluster development is proposed or prior to plat approval.
28.12.5. Application requirements:
A.
Responsible official. The director of planning shall be the responsible official for processing a cluster development plan.
B.
Contents. All cluster development plans shall be prepared by a qualified civil engineer, land planner, or other qualified professional and it shall show how the site will be developed. To ensure the submission of adequate information, the city is hereby empowered to maintain and distribute a separate list of specific requirements for the review of cluster development plan applications. Among other requirements a site inventory shall be required to document existing trees and woodland areas.
28.12.6. Processing of application and decision:
A.
Hearing and notification. The director of planning shall schedule a public hearing before the planning and zoning commission on the application for approval of a cluster development plan.
B.
Commission's action. The planning and zoning commission shall conduct a public hearing on the application in accordance with section 28.10 of this chapter. The commission shall approve, conditionally approve or deny the application for a cluster development plan.
C.
Appeals. See subsection 28.12.8 for appeal and extension process.
28.12.7. Criteria for approval:
A.
Factors. The planning and zoning commission, if applicable, or the city council on appeal, shall apply the following factors in taking action on the cluster development plan application:
1.
The cluster development plan meets the density standards (dwelling units per acre) as specified in the RD or UD Base Zoning Districts as applicable.
2.
The cluster development plan is consistent with other zoning district regulations.
3.
The cluster development plan meets the development standards specified in section 28.61 of this chapter.
B.
Conditions. The planning and zoning commission, or the council on appeal, may impose such conditions on approval of the cluster development plan as are necessary to assure conformity with the conditions and requirements of this chapter and compatibility with existing or future adjoining uses and neighborhood character.
A.
The applicant or property owner may appeal a denied cluster development plan to the city council by filing a written notice of appeal in the office of the director of planning, no later than ten (10) calendar days after the date upon which the planning and zoning commission denied the cluster development plan.
B.
The notice of appeal shall set forth in clear and concise fashion the basis for the appeal. The city council shall consider the appeal at a public meeting no later than thirty (30) calendar days after the date upon which the notice of appeal was filed.
C.
The city council may affirm or may change the decision of the planning and zoning commission by a simple majority vote.
28.12.9. Expiration and revocation:
A.
Expiration. If a final plat has not been approved for a portion of the land subject to the cluster development plan within two (2) years from the date of approval of a cluster development plan, the cluster development plan shall lapse and no application for plat approval, on another phase of the development, shall be accepted for filing thereafter unless the cluster development plan is reinstated.
B.
Extension and reinstatement. The planning and zoning commission may extend the time of expiration for or reinstate a cluster development plan for a period not to exceed one (1) year, in accordance with the following procedures:
1.
Extension procedures. A permit holder may apply for an extension of the expiration date for a cluster development plan for a period not to exceed one (1) year, or for a second extension of the expiration date of the permit for a period not to exceed one (1) additional year. No more than two (2) extensions shall be granted. The application must be in writing and set forth the reasons why the applicant is unable to obtain approval of the final plat before the plan is due to expire. Such an extension may be granted only by the planning and zoning, commission following a public hearing. In determining whether to grant a request for extension, the planning and zoning commission shall take into account the reasons for the requested extension, the ability of the applicant to comply with any conditions attached to the original approval, whether extension is likely to result in timely completion of the project, and the extent to which any newly adopted regulations should be applied to the proposed development.
2.
Conditions. In granting an extension, the planning and zoning commission may impose such conditions as are needed to assure that the land will be developed in a timely fashion and that the public interest is served. In granting a subsequent extension request, the planning and zoning may require that one (1) or more newly adopted development standard(s) be applied to the development subject to the extension request.
3.
Reinstatement. An applicant may request reinstatement of an expired cluster development plan by filing a written request with the responsible official within thirty (30) days of the date of expiration. The request for reinstatement shall include a statement of the reasons why the cluster plan should be reinstated. A request for reinstatement shall be processed and decided in the manner provided for an extension of an expiration period as prescribed in subsections 28.12.5 and 28.12.6 above. The cluster development plan shall not be reinstated for more than two (2) years from the original date of expiration.
4.
Effect of decision on extension or reinstatement. The granting of an extension or reinstatement request for a cluster development plan also extends or reinstates any other permits otherwise deemed expired pursuant to this section 28.12. The denial of an extension or reinstatement results in the immediate lapse of the plan. Thereafter, the permit holder shall file a new application for a cluster development plan before undertaking any activity authorized by the lapsed cluster development plan.
Sec. 28.13. - Site plan requirements.
28.13.1. Purpose:
This section establishes a review process for all non-residential, multi-family and townhouse development that includes a concept plan (where required) and a site plan. The purpose of this process is to:
1.
Ensure compliance with all applicable adopted city ordinances and regulations prior to construction.
2.
Promote safe, efficient and harmonious use of land.
3.
Protect and enhance the city's environmental and aesthetic qualities.
4.
Integrate storm water management planning into the site planning process.
5.
Ensure adequate public facilities to serve development.
6.
Aid evaluation and coordination of land subdivision.
The site plan review process shall apply to the following types of development:
1.
Development within a planned development district, except for single-family detached residential subdivisions.
2.
Non-residential development, except as provided in subsection 28.13.3.
3.
Multi-family residential development.
4.
Single-family residence attached (townhouse) development.
5.
Manufactured/Mobile home parks.
6.
Parking lot development, reconstruction, or restriping (only if the angle of parking is changed) of more than twenty (20) spaces.
7.
Private amenities and golf courses that are part of a single-family residential development.
8.
Any increase that is greater than thirty (30) percent of the existing building square footage for an existing non-residential structure or a multi-family development.
The following types of development are exempted from the requirements of this section:
1.
Agricultural buildings.
2.
Temporary buildings, including but not limited to model homes and construction and sales trailers associated with active non-residential and residential development projects.
3.
Single-family detached residential homes.
28.13.4. Submission of applications and fees:
Site plan applications must be submitted to the planning department on or before an official submittal date as published by the department. City council shall establish a schedule of fees as required to recoup costs related to the administration of this section. The planning department may establish and maintain procedures, forms, requirements and standards for the content, format and number of copies of information that will constitute a complete application for concept plans and site plans.
28.13.5. Building permit and certificate of occupancy:
No building permit shall be issued until a site plan, if required, and all other required engineering and construction plans are first approved by the city. No certificate of occupancy shall be issued until all construction and development conforms to the approved site plan and engineering and construction plans.
A concept plan is the initial plan in the site plan review process and portrays the general site conditions and development concept for the property. The purpose of the plan is to:
1.
Ensure compliance with applicable development regulations and previously approved, valid plans affecting development of the property.
2.
Determine the approximate placement, configuration and height of buildings.
3.
Determine the design of public street improvements and rights-of-way, and the design and location of drives, aisles and parking.
4.
Determine location of open space and public parks.
5.
Delineate development phasing.
6.
Determine the preliminary design of drainage facilities and utilities.
7.
Other purposes related to the establishment of a planned development district.
A concept plan is required for:
1.
All residential and non-residential development proposed as part of a planned development district, in accordance with article III, section 28.43.
2.
All non-residential and multi-family development within the Lakeside Development District, in accordance with article III, section 28.27.2.
28.13.8. Concept plan requirements:
The concept plan shall include existing and proposed site conditions and improvements as follows:
1.
Site boundaries and dimensions, site acreage and square footage and approximate distance to the nearest cross street.
2.
Location map, north arrow, scale and title block.
3.
Topography at five-foot contours or less.
4.
Natural features including tree masses, floodplains, drainage ways and creeks.
5.
Land use onsite and on adjacent properties.
6.
The approximate location and shape of building sites, including maximum building intensity, density, height and use.
7.
Public streets, alleys and private drives and fire lanes with pavement widths, rights-of-way, median openings, turn lanes and driveways (including those on adjacent property) with approximate dimensions.
8.
Propose parking areas and parking requirements.
9.
Proposed dedications and reservations of land for public use including but not limited to rights-of-way, easements, park land, open space drainage ways, floodplains and facility sites.
10.
Phases of development, including delineation of areas, building sites, land use and improvements to be constructed in independent phases and the sequence of development.
28.13.9. Standards of approval:
The planning and zoning commission (and city council, if the plan is associated with the establishment of a planned development district in accordance with section 28.43) may approve, conditionally approve, table or deny a concept plan based on:
1.
Conformance with the comprehensive plan and adopted design studies.
2.
Conformance to the zoning ordinance and other applicable development regulations.
3.
Impact on the site's natural resources and effect on adjacent area, property and land uses.
Approval of a concept plan by the planning and zoning commission and where required, city council, constitutes authorization by the city for the property owner to submit an application for approval of a site plan subject to compliance with any condition attached to the approval of the concept plan. While the concept plan remains valid, the location of streets, drives, median openings, and curb cuts shall be fixed and any subsequently prepared plan for an adjacent property or property on the opposite side of a public street shall coordinate its circulation system with the earlier approved concept plan. Except when authorized, a concept plan may not be used to approve a variance to development regulations. Where an approved plan conflicts with an adopted regulation and no variance or exception is expressly approved, the regulation shall apply. Where approved, valid concept plans delineate areas as separate phases of development, each phase may be independently planned and developed in accordance with the concept plan and applicable regulations.
Concept plan approval shall expire two (2) years following the date of original approval, at the end of which time the applicant must have submitted and received approval of a site plan. If a site plan is not approved within two (2) years, the concept plan approval is null and void. If site plan approval is only for a portion of the property, the approval of the concept plan for the remaining property shall be null and void. The applicant shall be required to submit a new concept plan for review and approval subject to the regulations in place at that time.
A site plan is the final plan required in the site plan approval process. The site plan is a detailed plan of the public and private improvements to be constructed. The purpose of the plan is to:
1.
Ensure compliance with applicable development regulations and previously approved, valid plans affecting development of the property.
2.
Coordinate and document the design of public and private improvements to be constructed.
3.
Coordinate the subdivision of land, including the granting of easements, development agreements and the provision of surety.
An approved, valid site plan shall be required prior to the approval of any construction plan and building permit for development defined in subsection 28.13.2.
28.13.14. Site plan requirements:
The site plan shall include existing and proposed site conditions and improvements as follows:
1.
Boundaries and dimensions, lot lines, site acreage and square footage and approximate distance to the nearest cross street.
2.
Location map, north arrow, scale and title block.
3.
Topography at one-foot contours or less, reference to sea level datum.
4.
Natural features including tree masses and anticipated tree loss, floodplains, drainage ways and creeks.
5.
Land use onsite and on adjacent properties.
6.
Building locations and footprints, including dimensions, size, coverage, height, building intensity, building lines and setbacks, and use.
7.
Public streets, alleys and private drives and fire lanes with pavement widths, rights-of-way, median openings, turn lanes and driveways (including those on adjacent property) with approximate dimensions and radii.
8.
Parking areas and structures, including the number and layout of standard spaces, handicapped spaces, and loading areas with typical dimensions and surface type.
9.
Access easements and offsite parking.
10.
Dumpster and trash compactor locations and screening.
11.
Proposed dedications and reservations of land for public use including but not limited to rights-of-way, easements, park land, open space drainage ways, floodplains and facility sites.
12.
Screening walls, fences, living screens, retaining walls, headlight screens and service area screens, including height and type of construction and/or planting specifications.
13.
Landscaping and open space areas with dimensions and total square footage.
14.
Fire hydrants, water meter locations and sizes.
15.
Inlets, culverts, and other drainage structures onsite and immediately adjacent to the site.
28.13.15. Additional requirements:
In addition to meeting the requirements for site plan approval, the following approvals may be necessary prior to authorization for development:
1.
Concept plan and preliminary plat approvals.
2.
Engineering plans.
3.
Traffic impact analysis.
4.
Landscape and irrigation plans.
5.
Façade plans.
6.
Other approvals as required by ordinance.
28.13.16. Standards of approval:
The planning and zoning commission shall consider all applications for site plan approval for properties located within planned development districts and the Austin Avenue, Morton Street, and Highway Oriented overlay districts, and may approve, conditionally approve or deny such applications. The planning department may approve, conditionally approve, or deny the site plans submitted for development in all other zoning districts and areas of the city. Actions of the commission and the Department on site plans shall be based on the criteria below:
1.
Conformance with the zoning ordinance and other applicable regulations and previously approved, valid plans for the property.
2.
The design and location of off-street parking and loading facilities to ensure that all such spaces are usable and are safely and conveniently arranged.
3.
The width, grade and location of street designed to accommodate prospective traffic and to provide access for firefighting and emergency equipment to buildings.
4.
The use of landscaping and screening to provide adequate buffers to shield lights, noise, movement or activities from adjacent properties when necessary, and to complement the design and location of buildings and be integrated into the overall site design.
5.
The location, size and configuration of open space areas to insure they are suitable for intended recreation and conservation uses.
6.
The adequacy of streets, water, drainage, sewerage facilities, garbage disposal and other utilities necessary for essential services to residents and occupants.
7.
Consistency with the comprehensive plan.
Approval of a site plan is the city's authorization to apply for approval of a final plat and engineering plans. During the site plan's period of validity, the city shall not apply any additional requirements concerning building placement, streets, drives, parking, landscaping or screening. Site plan approval is separate and distinct from other permits and approvals as may be required by the city and other regulatory agencies. Approval of a site plan shall not affect other applicable regulations concerning development and land use. Except where authorized by ordinance, a site plan shall not be used to approve a variance to development regulations. Where an approved plan conflicts with an adopted regulation and no variance or exception is expressly approved, the regulation shall apply.
The approval of a site plan shall be effective for a period of two (2) years from the date of approval by the planning and zoning commission, city council or staff, at the end of which time the applicant must have submitted and received approval of a final plat, engineering plans and building permits. If the final plat, engineering plans and permits are not approved, the site plan approval is null and void. If a final plat, engineering plans and permits have been approved only for a portion of the property and for improvements, the site plan for the remaining property and/or improvements shall be null and void. The applicant shall be required to submit a new site plan for review and approval subject to the then existing regulations. Site plan approval shall expire upon completion of the improvements shown on the plan. Subsequent additional development, site modifications and redevelopment shall be permitted in accordance with section 29.13.19.
At any time following the approval of a concept plan or site plan and before the lapse of such approval, the property owner may request an amendment. Amendments may be classified as major or minor. Minor amendments shall include corrections of distances and dimensions, adjustments of building configuration and placement, realignment of drives and aisles, layout of parking, adjustments to open space, landscaping, and screening, and changes to utilities and service locations which do not substantially change the original plan. The planning and zoning commission must approve major amendments to concept plans and site plans which were initially approved by the planning and zoning commission. Other major and all minor amendments to site plans may be approved by the planning department. The planning department may approve or disapprove amendments. Disapproval may be appealed to the planning and zoning commission.
28.13.20. Extension and reinstatement procedure:
Sixty (60) days prior to or following the lapse of approval of a concept plan or site plan, the property owner may petition the city to extend or reinstate the approval. The planning and zoning commission must consider extension and reinstatement of concept plans and site plans which were initially approved by the commission. The planning department shall consider extension and reinstatement of other site plans; however, if the request is denied by the department the property owner may appeal the decision to the planning and zoning commission. The commission and planning department shall consider the reasons for the lapse, the ability of the property owner to comply with any conditions attached to the original approval, and the extent to which newly adopted regulations shall apply to the plans. The property owner's request may be approved or denied. If the request is denied the property owner must submit a new application for approval.
The planning and zoning commission's denial of a concept plan or site plan may be appealed to the city council. The planning department's denial of a site plan may be appealed to the planning and zoning commission. Appeals must be made in writing to the planning department no later than ten (10) days after the commission's action or the planning department's denial. The notice of appeal shall set forth the basis for the appeal. The planning and zoning commission may affirm or change the decision of the planning department by a simple majority vote.
(Ord. No. 4924, § 2(2.01), 12-11-17)
Editor's note— Ord. No. 4924, § 2(2.01), adopted December 11, 2017, repealed the former § 28.13, and enacted a new § 28.13 as set out herein. The former § 28.13 pertained to similar subject matter.
Sec. 28.14. - Building permits; certificates of occupancy and compliance.
28.14.1. Building permits required:
A.
Applicability and effect:
1.
Applicability. An application for a building permit is required within the city limits, or where authorized by a development agreement, in the city's extraterritorial jurisdiction, prior to placement, construction or alternation of a building or structure.
2.
Effect. Approval of an application for a building permit authorizes the property owner to construct, alter or place a structure on the lot, tract or parcel. Approval of an application for a building permit also authorizes the property owner, upon completion of a structure intended for human occupancy, to make application for a certificate of occupancy.
B.
Application requirements:
1.
Responsible official. The building official (or his/her designee) shall be the responsible official for a building permit.
2.
Contents. An application for approval of a building permit shall be prepared in accordance with the procedures as established by the building official (or his/her designee).
C.
Decision:
1.
Decision. The building official (or his/her designee) shall approve or deny the application for a building permit.
2.
Time for decision. The building official shall determine whether the application for a building permit is complete and shall notify the applicant in the manner provided in sections 28.10 and 28.15A and 28.15B of this chapter.
a.
If the application is complete, the building official shall approve or deny the application not later than the forty-fifth day after the date the application is submitted.
b.
If the application is incomplete, the building official shall approve or deny the application not later than the thirtieth day after the date the notice of incompleteness is mailed, unless the applicant and the city enter into a written agreement for a deadline for granting or denying the application.
D.
Appeals:
1.
Any interested person may appeal the building official's (or his/her designee's) decision on the building permit application to the zoning board of adjustments and appeals in accordance with section 28.8 of this zoning chapter, other than an appeal arising under the building code or other construction codes included or adopted by the City of Denison, in which case such appeal shall be made to the appropriate board or commission as specified in the appropriate code. The zoning board of adjustment and appeals shall decide the appeal in accordance with section 28.8 of this zoning chapter.
E.
Criteria for approval:
1.
The building official (or his/her designee) shall apply the following criteria in deciding the application for a building permit:
a.
The application generally conforms to all prior approved development applications for the property and any variance petition authorizing variation from the standards otherwise applicable to the permit.
b.
The location of the structure on the property is in accordance with all prior approved development applications.
c.
The proposed plan for construction or alteration conforms to the building code and other applicable construction codes adopted by the city.
d.
All applicable fees, including impact fees, if applicable, have been paid.
F.
Expiration and extension:
1.
Expiration. A building permit expires if construction, alteration or placement of the structure authorized by the permit has not commenced on the property within six (6) months after final approval of the permit. The building permit shall expire within one (1) year of the date of approval if a certificate of occupancy for the structure has not been approved, or if the structure is not intended for human occupation, the construction, alteration or placement of the structure on the property has not been completed, within such period. Nothing herein shall be construed to limit chief building official from imposing different or distinct time limits that are imposed and appearing on the face of the building permit.
2.
Extension and Reinstatement. Application for extension and reinstatement may be of a building permit may be made to the city's building appeals board and the zoning board of adjustment.
G.
Revocation of building permit:
1.
If the building official (or his/her designee) determines, based upon his/her inspection or investigation, that there are reasonable grounds for revocation of an approved building permit, the building official is hereby authorized and directed to revoke any such permit. Circumstances that warrant revocation of an approved building permit shall include but not be limited to the following:
a.
A material mistake was made in approving the building permit application;
b.
Approval of the building permit application was procured on the basis of material misrepresentations or fraud on the part of the applicant; or
c.
Construction activities being undertaken on the land subject to the building permit are not in conformity with terms of the approved building permit application.
2.
The applicant and any interested parties shall be given notice of the revocation of a building permit. Said written notice shall be mailed via certified mail and shall state the reasons for the revocation of the building permit.
3.
In rendering its decision whether to revoke the approved building permit, the decision-maker shall determine whether the activity authorized under the original approved application complies with the terms, conditions and requirements of such approval. The decision-maker may revoke the application, affirm it, or affirm it with attached conditions that assure that the terms; conditions and requirements of the application shall be met.
4.
A decision to revoke an approved development application shall become final ten (10) days after the date notice is mailed to the applicant, unless appealed. Appeal from the decision to revoke the approved building permit application shall be in accordance with the procedures specified in subsection 28.14.1.D.
28.14.2. Certificate of occupancy:
A.
A certificate of occupancy shall be required for any of the following:
1.
Occupancy and use of a building hereafter erected or structurally altered (including renovation or rehabilitation of residential structures;
2.
Change in use of an existing building to a use of a different classification; and
3.
Change in the use of land to a use of a different classification.
B.
No such use, or change of use, shall take place until a certificate of occupancy therefor shall have been issued by the building official.
C.
A record of all certificates of occupancy shall be kept on file in the building departments office and copies shall be furnished upon request to any person in accordance with state laws governing public records.
D.
Procedure for new or altered buildings: Written application for a certificate of occupancy for a new building or for an existing building that is to be altered shall be made at the same time as the application for the building permit for such building. Said certificate shall be issued after the building official (or his/her designee) orders the building or structure inspected and finds no violations of the provisions of this chapter or other regulations that are enforced by the building official, or his/her designee. Said certificate shall be issued by the building official (or his/her designee) after the erection or alteration of such building or part thereof has been completed in conformity with all applicable provisions of this chapter.
E.
Procedure for vacant land or a change in building use: Written application for a certificate of occupancy for the use of vacant land, a change in the use of land or a change in the use of a building, or for a change from a nonconforming use to a conforming use, shall be made to the building official, or his/her designee. If the proposed use is a conforming use, as herein provided, written application shall be made to said building official, or his/her designee. If the proposed use is found to be in conformity with the provisions of this chapter, the certificate of occupancy shall be issued after the application for same has been made and all required inspections are completed and approved by the building official or his/her designee.
F.
Contents of certificate of occupancy: Every certificate of occupancy shall contain the following:
(1)
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 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 particular group and division of occupancy;
(6)
The name of the building official (or his/her designee);
(7)
Use(s) allowed;
(8)
Maximum number of persons/occupants; and
(9)
Issue date of certificate of occupancy.
G.
Posting of certificate of occupancy: The certificate of occupancy shall be posted in a conspicuous place on the premises and shall not be removed except by the building official, or his/her designee.
H.
Revocation of certificate of occupancy: The building official (or his/her designee) may, in writing, suspend or revoke a certificate of occupancy issued under the provisions of this chapter whenever the certificate is issued in error, or on the basis of incorrect information supplied, or when it is determined that the building or structure or portion thereof is in violation of any ordinance or regulation or any of the provision of this chapter or the building code and other codes adopted by the city, and any amendments thereto.
28.14.3. 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 chapter, 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 chapter. In addition, any nonresidential building or structure for which a building permit has been approved by the city not more than one (1) year (i.e., three hundred sixty-five (365) calendar days) prior to the effective date of this chapter may be constructed according to the terms of that building permit.
Sec. 28.15A. - Complete application.
28.15A.1. Definitions: For purposes of sections 28.15A, B and C:
A.
Zoning permit means any of the following types of applications, approval of which was granted pursuant to chapter 28 of the City Code of Ordinances, as amended, or any predecessor zoning ordinance, whether or not such permits were issued in conjunction with or as a condition of approval of any other permits: site plans for special use permits; in planned development districts, preliminary development plans or concept plans, and comprehensive site plans; zoning permits; landscaping or site plans within planned parkway development areas or corridor development plan areas; any application that was approved subject to a schematic drawing illustrating the location, arrangement, orientation or design of land uses or improvements on a site intended for development; or a building permit.
B.
Initial permit application means the first application for approval required by the city to initiate a development project, and includes an application for a zoning permit or preliminary plat.
C.
Subsequent application means an application for approval of any zoning permit, certificate of occupancy, or preliminary or final plat that is required to complete or further the development for which a prior zoning permit was approved, and that is consistent with the prior zoning permit.
28.15A.2. Completeness determination:
Every application for a zoning permit authorized by this zoning chapter shall be subject to a determination of completeness by the official responsible for processing the application. No application shall be accepted by the responsible official for processing unless it is accompanied by all documents required by and prepared in accordance with the requirements of this chapter.
28.15A.3. Incompleteness as grounds for denial:
The processing of an application by any city official or employee prior to the time the application is determined to be complete shall not be binding on the city as the official acceptance of the application for filing, and the incompleteness of the application shall be grounds for denial or revocation of the application. A determination of completeness shall not constitute a determination of compliance with the substantive requirements of this zoning chapter.
28.15A.4. Pre-application conference:
A property owner may request a pre-application conference with the administrator for purposes of identifying requirements that are applicable to a zoning permit. The request shall be made in writing on a form prepared by the administrator and shall state that any proposed development concept discussed at the pre-application conference is not intended as a plan of development or application for zoning permit approval.
28.15A.5. Responsible official:
A determination of completeness shall be made by the official responsible for processing the application in writing not later than the tenth business day after the date the application is submitted to the official. The determination shall specify the documents or other information needed to complete the application and shall state the date the application will expire if the documents or other information is not provided.
28.15A.6. When deemed complete:
An initial permit application that is filed on or after April 28, 2005, or any subsequent application filed after approval of such initial zoning permit, shall be deemed complete on the eleventh business day after the application has been received, if the applicant has not otherwise been notified that the application is incomplete.
28.15A.7. Time for completing application:
If an application is not completed on or before the forty-fifth day after the application is submitted to the official responsible for processing the application in accordance with the official's written notification, the application will be deemed to have expired and it will be returned to the applicant together with any accompanying documents.
28.15A.8. Sequence of applications:
Notwithstanding any other provision of this chapter 28 to the contrary, an application for a zoning permit, or an application to the board of adjustment for a variance or special exception, shall not be considered complete unless accompanied by a copy of the zoning ordinance or other certification verifying that the proposed use for which the application is submitted is authorized by the zoning district in which the property is located. No application for a building permit shall be considered complete unless accompanied by an approved site plan or other zoning permit that applies standards to the property required by this chapter 28.
For purposes of determining a vested rights petition pursuant to section 28.15B, no vested rights accrue solely from the filing of an application that has expired pursuant to this section, or from the filing of a complete initial application that is subsequently denied.
28.15A.10. Official filing date:
An application subject to discretionary review by this Chapter shall be considered filed when the planning director deems an application ready for consideration by the decision-maker for that type of application. The planning director shall make that determination based upon the completeness of the application, responsiveness to application submittal requirements and resolution of issues identified during the review process. The determination shall not be made based on whether the applicant and planning director agree that findings for approval can be made based upon the applicable criteria.
(Ord. No. 5059, § 2, 5-4-20)
Sec. 28.15.B. - Determination of vested rights.
28.15B.1. Vested rights petition:
A.
Purpose. The purpose of a vested rights petition is to determine whether one (1) or more standards of this zoning chapter should not be applied to a zoning permit application by operation of state law, or whether certain permits are subject to expiration.
B.
Applicability. A vested rights petition may be filed with an application for a zoning permit. A vested rights petition may not be filed with a request to amend the text of the zoning regulations or the zoning map, or with a request for approval of a special use permit. A vested rights petition also may be filed to prevent expiration of certain zoning permits pursuant to section 28.15C.
C.
Effect. Upon granting of a vested rights petition in whole or in part, the zoning permit application shall be decided in accordance with the standards specified in the relief order based on prior ordinance requirements or development standards, or the permit otherwise subject to expiration pursuant to section 28.15C shall be extended.
28.15B.2. Petition requirements:
A.
Who may petition. A vested rights petition may be filed by a property owner or the owner's authorized agents, including the applicant, with any zoning permit application, or by the holder of a permit subject to expiration pursuant to section 28.15C.
B.
Form of petition. The vested rights petition shall allege that the petitioner has a vested right for some or all of the land subject to the zoning permit application under V.T.C.A., Local Government Code ch. 245 or successor statute, or pursuant to V.T.C.A., Local Government Code § 43.002 or successor statute, that requires the city to review and decide the application under standards in effect prior to the effective date of the currently applicable standards. The petition shall include the following information and documents:
1.
A narrative description of the grounds for the petition;
2.
A copy of each approved or pending zoning permit or other development application which is the basis for the contention that the city may not apply current standards to the zoning permit application which is the subject of the petition;
3.
The date of submittal of the application for the permit, or of a development plan pursuant to which the permit was subsequently filed, if different from the official filing date;
4.
The date the project for which the application for the zoning permit was submitted was commenced;
5.
Identification of all standards otherwise applicable to the zoning permit application from which relief is sought;
6.
Identification of the standards which the petitioner contends apply to the zoning permit application;
7.
Identification of any current standards which petitioner agrees can be applied to the zoning permit application at issue;
8.
A narrative description of how the application of current standards affect proposed use of the land, landscaping or tree preservation, open space, or park dedication, lot size, lot dimensions, lot coverage or building size shown on the development application for which the petition is filed;
9.
A copy of any prior vested rights determination involving the same land; and
10.
Where the petitioner alleges that a zoning permit subject to expiration under section 28.15C should not be terminated, a description of the events, including any zoning permit or other development applications on file that should prevent such termination.
C.
Time for filing petition. A vested rights petition shall be filed with a zoning permit application for which a vested right is claimed, except that the petition may be filed before the date of expiration of any permit subject to expiration under section 28.15C. Where more than one (1) zoning permit application is authorized to be filed by this zoning chapter, the petition may be filed simultaneously for each application.
28.15B.3. Processing of petition and decision:
A.
Responsible official. The official responsible for processing the zoning permit application shall process the vested rights petition. A copy of the petition shall be forwarded to the city attorney following acceptance.
B.
Official's decision. If the responsible official is the decision maker on the zoning permit application, the official shall determine whether the relief requested in the vested rights petition should be granted in whole or in part, and shall formulate a written report summarizing the official's reasoning and setting forth the decision on the petition, which shall be delivered to the applicant within ten (10) days of the date the vested rights petition is accepted for filing.
C.
Decision by commission on petition. If the zoning permit application is to be decided by the planning and zoning commission, the planning and zoning administrator shall submit a report in the form of a recommendation to the decision maker. The commission shall render a decision on the vested rights petition in conjunction with its decision on the zoning permit application.
D.
Appeal of decision on petition. The petitioner or any interested person may appeal the responsible official's or the commission's decision on the vested rights petition within ten (10) working days of the date of such decision to the city council. An appeal under this subsection stays acceptance of filing of any related development applications.
E.
Decision by city council. Where the city council is the final decision maker on the zoning permit application, for any petition submitted pursuant to section 28.15C, or upon appeal, the city council shall decide the vested rights petition. The request must be accompanied by a waiver of the time for decision on the application imposed under this zoning chapter pending decision by the council, which shall stay further proceedings on the application. The council shall decide the petition, after considering the responsible official's report and any decision by the planning and zoning commission with its decision on the zoning permit application or within thirty (30) calendar days of receipt of the responsible official's report, or the notice of appeal, whichever is later.
28.15B.4. Action on petition and order:
A.
Action on the petition. The decision-maker on the vested rights petition may take any of the following actions:
1.
Deny the relief requested in the petition, and direct that the zoning permit application shall be reviewed and decided under currently applicable standards;
2.
Grant the relief requested in the petition, and direct that the zoning permit application shall be reviewed and decided in accordance with the standards contained in identified prior regulations; or
3.
Grant the relief requested in part, and direct that certain identified current standards shall be applied to the zoning permit application, while standards contained in identified prior regulations also shall be applied; or
4.
For petitions filed pursuant to section 28.15C, determine whether the zoning permit(s) should be terminated, or specify the expiration date or the conditions of expiration for such permit(s).
B.
Order on petition. The responsible official's report and each decision on the vested rights petition shall be memorialized in an order identifying the following:
1.
The nature of the relief granted, if any;
2.
The approved or filed zoning permit or other development application(s) upon which relief is premised under the petition;
3.
Current standards which shall apply to the zoning permit application for which relief is sought;
4.
Prior standards which shall apply to the zoning permit application for which relief is sought, including any procedural standards;
5.
The statutory exception or other grounds upon which relief is denied in whole or in part on the petition;
C.
For petitions filed pursuant to section 28.15C, determine whether the zoning permit(s) should be terminated, and specify the expiration date or the conditions of expiration for the permit(s).
28.15B.5. Criteria for approval:
A.
Factors. The decision maker shall decide the vested rights petition based upon the following factors:
1.
The nature and extent of prior zoning permit or other development applications filed or approved for the land subject to the petition;
2.
Whether any prior vested rights determinations have been made with respect to the property subject to the petition;
3.
Whether any prior approved applications for the property have expired or have been terminated in accordance with law;
4.
Whether current standards adopted after commencement of the project affect proposed use of the land, landscaping or tree preservation, open space, or park dedication, lot size, lot dimensions, lot coverage or building size based upon the proposed development application;
5.
Whether any statutory exception applies to the standards in the current zoning regulations from which the applicant seeks relief;
6.
Whether any prior approved zoning permit or other development applications relied upon by the petitioner have expired;
7.
For petitions filed pursuant to section 28.15C, whether any of the events in subsection B. have occurred.
B.
Conditions. If the claim of vested rights under a petition is based upon a pending zoning or other development application subject to standards that have been superseded by current standards under this zoning chapter, the decision maker may condition any relief granted on the petition on the approval of the application under such prior standards.
28.15B.6. Application following relief order:
Following the city's final decision on the vested rights petition, the property owner shall conform the zoning permit application for which relief is sought to such decision. If the zoning permit application on file is consistent with the relief granted on the vested rights petition, no revisions are necessary. Where proceedings have been stayed on the zoning permit application pending referral of the vested rights petition to the city council, proceedings on the application shall resume after the council's decision on the vested rights petition.
Relief granted on a vested rights petition shall expire on occurrence of one (1) of the following events:
A.
The petitioner or property owner fails to submit a required revised zoning permit application consistent with the relief granted within thirty (30) days of the final decision on the petition;
B.
The zoning permit application for which relief was granted on the vested rights petition is denied under the criteria made applicable through the relief granted on the petition; or
C.
The zoning permit application for which relief was granted on the vested rights petition expires.
Sec. 28.15C. - Dormant projects.
28.15C.1. Termination of zoning permits:
Any application for a zoning permit that has been approved by the city but which is not subject to an expiration date shall expire ninety (90) days from the effective date of this section, unless one (1) of the following events has occurred by such date:
A.
A subsequent application has been approved and remains in effect; provided, however, that if the subsequent application is for a zoning permit, such subsequent application also is subject to expiration under this subsection B.; or
B.
A subsequent application has been filed and is pending for decision; or
C.
Substantial construction on the development has occurred as authorized by and consistent with the zoning permit.
28.15C.2. Effect on prior SUPs and PD Districts:
Notwithstanding any provision of this chapter 28 of the City Code of Ordinances, relating to special use permits (SUP) or planned development districts, to the contrary, the expiration of any zoning permit pursuant to subsection 28.15A for land that is subject to a special use permit or that is located within a planned development district shall thereupon suspend the authority to file any subsequent application for such land pending a determination by the city council whether to reinstate such authority with or without conditions, or to rezone the land in accordance with the procedures in section 28.10.
Notwithstanding any other provision of chapter 28 of the City Code of Ordinances, for any application for a zoning permit to which no expiration date applies under chapter 28 and which has been filed and is pending for decision on, or which is filed on or after the effective date of this chapter, approval of such application shall expire six (6) months from the date of approval, unless a subsequent application is filed and approved, or construction is commenced consistent with and pursuant to the zoning permit, within such period. This subsection does not apply to a zoning permit application within a planned development district or subject to a special use permit.
Sec. 28.16. - Enforcement and revocation of permits.
28.16.1. Enforcement procedures and revocation of permits.
A.
Enforcement activities. Enforcement activities include informal contacts with individuals to advise them of requirements, the issuance of verbal warnings, written warnings, and municipal court citations, formal court action, and billing and collection. Employees of the planning, building inspections, code enforcement, public works, environmental health, water and wastewater, and environment and engineering departments are the responsible officials authorized to issue municipal court citations for violations of this article.
B.
Right to enter. The responsible official shall have the right to enter upon any premises at any reasonable time for the purpose of making inspections of buildings or premises that may be necessary to carry out the duties in the enforcement of this zoning chapter. Submittal of any application for a development permit that authorizes construction of structures or improvements shall be construed as a grant of authority to the responsible official to enter on land subject to the application for purposes of enforcing the approved permit.
C.
General remedies. If any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained or any building, structure, or land is used or developed in violation of this zoning chapter or any development application approved there under, in addition to other remedies, the city may institute any appropriate action or proceedings to prevent or abate such activity. Appropriate action or proceedings include termination of utility services (water, gas, electric); revocation of permits, licenses, or bonds; and institution of legal action in a court of competent jurisdiction.
D.
Stop work orders.
1.
Whenever any construction or development activity is being done contrary to any term, condition or requirements of an approved development application or this zoning chapter, the responsible official or the official's authorized representative may order the work stopped by notice in writing, served on the property owner or authorized agent. Notice shall be given before the order shall be effective, except when the order should be effective immediately to protect and preserve the public health, safety, or general welfare. Any person thereafter shall cease and desist from further development or construction material to the alleged noncompliance, until corrected by compliance and authorized by the responsible official to proceed with the work. This prohibition shall extend throughout any appeal period.
2.
The owner or authorized agent may appeal the stop work order to the building official by giving written notice. The responsible official shall hear the appeal within five (5) working days of receiving the notice. The appellant may appeal a negative ruling by the responsible official in writing to the city council, which shall hear the appeal at the next regular meeting that occurs at least ten (10) days after receipt of the notice of appeal.
3.
The decision-maker on the appeal may require the placement of temporary erosion control, water quality protection or other measures by the owner or appellant in order to protect the site and the community resources during the appeal period.
4.
The responsible official or the city council, as the case may be, shall decide the appeal and make such order as is necessary to assure compliance with the terms of this zoning chapter and all approved development applications.
E.
Municipal court actions. The city attorney is authorized to prosecute violations of this zoning chapter in the municipal court where jurisdiction lies for the action.
F.
Civil court actions. If authorized by the city council, the city attorney is authorized to file and prosecute an action at law or in equity, where permitted under the laws of Texas, in a court of competent jurisdiction to enforce the provisions of this zoning chapter. The initiation of one (1) form of enforcement action by the city attorney will not preclude the city attorney from initiating any other form of enforcement action.
G.
Fines and penalties. A person who violates any provision of this zoning chapter pertaining to zoning or public health and sanitation shall be punished, upon conviction, by a penalty not to exceed two thousand dollars ($2,000.00). The owner or owners of any building or premises or part thereof, where anything in violation of this chapter shall be placed or shall exist, any architect, builder, contractor, agent, persons or corporation employed in connection therewith, and who may have assisted in the commission of any such violation, shall be guilty of a separate offense and upon conviction shall be fined as herein provided.
H.
Separate offenses. Each day that a violation continues shall be deemed a separate offense under this section.
I.
Revocation proceedings.
1.
If the building official determines, based on inspection or investigation by the city, that there are reasonable grounds for revocation of an approved development application, the official shall set a hearing before the original decision-maker, or if the decision was made by the official or another responsible official, before the board or commission to which appeal may be taken from such decision under this zoning chapter. If the city council was the original decision-maker, the council may refer the proposed revocation to the planning and zoning commission for its report and recommendation prior to such hearing. Circumstances that warrant revocation of an approved development application shall include but not be limited to the following:
a.
A material mistake was made in approving the development application;
b.
Approval of the development application was procured on the basis of material misrepresentations or fraud on the part of the applicant;
c.
Development activities being undertaken on the land subject to the development permit are not in conformity with terms of the approved development application;
d.
The land use is in violation of a condition of approval of the development application;
2.
The applicant and any interested parties shall be given notice of the hearing in the manner provided in section 28.10. The public hearing shall be conducted in accordance with the procedures described in section 28.10.
3.
In rendering its decision whether to revoke the approved application, the decision-maker shall determine whether the activity authorized under the original approved application complies with the terms, conditions and requirements of such approval. The decision-maker may revoke the application, affirm it, or affirm it with attached conditions that assure that the terms; conditions and requirements of the application shall be met.
4.
A decision to revoke an approved development application shall become final ten (10) days after the date notice of the decision was given, unless appealed. After the effective date, it shall be unlawful to undertake or perform any activity that was previously authorized by the approved application without applying for and obtaining approval of a new development application for the activity. Appeal from the decision to revoke the approved development application shall be to the city council, unless the decision to revoke was made by the council.
28.16.2. Schedule of fees, charges and expenses:
A.
Until all applicable fees, charges and expenses have been paid in full, no action shall be taken on any zoning or development application or on any appeal, in accordance with section 28.8 of this zoning chapter.
B.
The city council, upon the recommendation of the planning and zoning commission, shall determine and adopt a fee schedule for the purpose of recovering a portion of the administrative costs associated with processing zoning and development requests, including public hearings that are called for in this chapter. Such fees shall be paid by the applicant and shall not be designed to in any way restrict the applicant's ability to seek and receive a hearing or to generate revenue for other than recovery of actual administrative costs incurred by the city in the review and processing of applications.