1.

Creation. There is hereby created a Board of Adjustment to be composed of five (5) members and two (2) alternate members who shall be residents and qualified voters of the City of Hamilton and shall serve without compensation.

2.

Members and Terms of Office. The Board of Adjustment shall consist of five (5) regular members and two (2) alternate members who shall be appointed by the City Council in accordance with subchapter 211.008 through 211.011 of the Local Government Code, V.T.C.A., as amended. The members shall serve for a period of two (2) years and until their successors are duly appointed and qualified. The regular members of the Board shall be identified by place numbers 1 through 5. Places 1, 3 and 5 and the first alternate member shall be appointed to serve for two-year terms with terms beginning on November 1 of odd numbered years. Places 2, 4 and the second alternate member shall be appointed to serve for two-year terms beginning on November 1 of even numbered years. All members will be appointed by a majority vote of the City Council. Members may be removed by a majority vote of the members of the City Council, for cause on a written charge after a public hearing. Board members may be appointed to succeed themselves. Vacancies shall be filled by an alternate member for the unexpired term of a member whose term becomes vacant. Any member absent for two (2) regular consecutive meetings shall be deemed to have vacated such office unless such absences were due to sickness of the member or the member's family or with leave being first obtained from the Chairman. Vacancies of an alternate member shall be filled by appointment of the City Council by majority vote.

3.

Meetings. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. All meetings of the Board shall be open to the public. Four (4) members of the Board shall constitute a quorum for the conduct of business. All cases to be heard by the Board of Adjustment will always be heard by a minimum number of four (4) members. The members of the Board shall regularly attend meetings and public hearings of the Board and shall serve without compensation.

4.

Authority of Board. The Board of Adjustment shall have the authority, subject to the standards established in V.T.C.A., Local Government Code §§ 211.008—211.011, as amended, and those established herein, to exercise the following powers and perform the following duties:

a.

Hear and decide an appeal that alleges error in an order, requirement, decision, or determination made by an administrative official in the enforcement of this Ordinance;

b.

Hear and decide special exceptions to the terms of this Ordinance when it requires the Board to do so; and

c.

Authorize in specific cases a variance from the terms of this Ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of this Ordinance is observed and substantial justice is done.

d.

In exercising its authority under paragraph 4a above, the Board may reverse or affirm, in whole or in part, or modify the administrative official's order, requirement, decision, or determination from which an appeal is taken and make the correct order, requirement, decision, or determination, and for that purpose the Board has the same authority as the administrative official.

e.

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

1)

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

2)

Decide in favor of an applicant on a matter on which the Board is required to pass under a zoning ordinance; or

3)

Authorize a variation from the terms of a zoning ordinance.

5.

Limitations on Authority of Board.

a.

The Board may not grant a variance authorizing a use other than those permitted in the district for which the variance is sought.

b.

The Board shall have no power to grant or modify Specific Use Permits authorized under Section VI.7. of these regulations.

c.

The Board shall have no power to grant a zoning amendment. In the event that a request for a zoning amendment is pending before the Planning and Zoning Commission or the City Council, the Board shall neither hear nor grant any variances with respect to the subject property until final disposition of the zoning amendment.

d.

The Board shall not grant a variance for any parcel of property or portion thereof upon which a Site Plan, Preliminary Plat, or Final Plat, where required, has not been finally acted upon by both the Planning and Zoning Commission and, where required, by the City Council. All administrative remedies available to the applicant shall have been exhausted prior to hearing by the Zoning Board of Adjustment.

6.

Variances.

a.

In order to grant a variance from these zoning regulations, the Board of Adjustment must make written findings that the variance creates undue hardship, using the following criteria:

1)

That literal enforcement of the controls will create an unnecessary hardship or practical difficulty in the development of the affected property;

2)

That the situation causing the hardship or difficulty is neither self-imposed nor generally affecting all or most properties in the same zoning district;

3)

That the relief sought will not injure the permitted use of adjacent conforming property; and

4)

That the granting of a variance will be in harmony with the spirit and purpose of these regulations.

b.

A variance shall not be granted to relieve a self-created or personal hardship, nor shall it be based solely on economic gain or loss, nor shall it permit any person a privilege in developing a parcel of land not permitted by this Ordinance to other parcels of land in the particular zoning district. No variance may be granted which results in undue hardship on another parcel of land.

c.

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

7.

Special Exceptions.

a.

The Zoning Board of Adjustment shall have the authority to hear and allow special exceptions only for uses which are conforming but the building structure is not.

b.

In granting a special exception, the Zoning Board of Adjustment shall not authorize uses that are not allowed under the terms of this Ordinance for the respective district.

c.

A proof of hardship is not required for granting a special exception.

d.

In granting a special exception, the Board shall not permit variances from the use district regulations which are not prevalent on other lots in the same zoning district.

8.

Procedures.

a.

Application and Fee. An application for granting a variance or special exception by the Board of Adjustment, other than an appeal, shall be in writing using forms provided by the City and shall be accompanied by a fee. The application for a special exception shall be the same as for a zoning variance.

b.

Notice and Hearing. The Board of Adjustment shall hold a public hearing no later than 45 days after the date the application for action or an appeal is filed on each such application or appeal. Notice of a public hearing shall be provided to all property owners within two hundred feet (200') of the affected property ten (10) days prior to the public hearing and also published in the official local newspaper.

c.

Appeals.

1)

An appeal may be taken from the decision of an administrative official by an applicant for the permit on which the decision is rendered, by any person or persons directly aggrieved by the decision or by any officer, department, board or bureau of the municipality affected by the decision.

2)

The appellant must file with the Board and the official against whom the appeal is taken a written notice of appeal specifying the grounds for the appeal within fifteen (15) days after the decision has been rendered. The officer to whom the appeal is made shall forthwith transmit to the Board all papers constituting the record of the action that is appealed.

3)

An appeal stays all proceedings in furtherance of the action that is appealed unless the official from whom the appeal is taken certified in writing to the Board that facts supporting the official's opinion that a stay would cause imminent peril to life or property. In that case, the proceedings may be stayed only by a restraining order granted by the Board or a court of record on application, after notice to the official, if due cause is shown.

4)

The appellant party may appear at the appeal hearing in person or by agent or attorney.

5)

The Board shall decide the appeal within three (3) weeks after placement on its agenda after which time the request shall be deemed automatically approved. The Board may reverse or affirm, in whole or in part, or modify the administrative official's order, requirement, decision, or determination from which an appeal is taken, and make the correct order, requirement, decision, or determination.

d.

Vote Required for Board Decisions. The concurring vote of four (4) members of the Board shall be necessary to reverse any order, requirement, decision, or determination of an administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under these zoning regulations, or to effect any variance to the zoning regulations granted by the Board.

e.

Judicial Review. Any person or persons, jointly or severally, aggrieved by a decision of the Board of Adjustment, or any taxpayer, or any officer, department, or Board of the City may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition must be presented within ten (10) days after the date the decision is filed in the Board's office.

f.

Filing Fees and Charges. The fees and charges shall be paid to the City when any application, petition, or appeal is tendered to the Planning and Zoning Commission or any other authorized board, agency, or official of the city. Each of the fees and charges provided shall be paid in advance, and no action of the Commission, City Council, or any other board, agency, or official of the City shall be valid until the fees and charges shall have been paid to the City. Except as hereinbefore provided, these fees and charges shall be paid on all applications, petitions, and appeals, regardless of the action taken by the Commission or any other board, agency, or official of the city, and whether the application, petition, or appeal is approved or denied by the City Council. Such fees and charges shall not, however, be charged or paid for any amendment, change, or other action initiated by the City.

1)

Application for Rezoning (Amendment to Zoning Ordinance). An applicable fee of $350.00 as established by the City Council on 9/11/08.

2)

Building Permits. Fees and charges for building permits shall be in accordance with the schedule of fees and charges otherwise adopted or in use by the City.

3)

Certificate of Occupancy. Fees and charges for certificates of occupancy shall be as set by the schedule of fees and charges otherwise adopted or in use by the City.

4)

Specific Use Permit. An applicable fee of no charge as established by the City Council.

5)

Variance. An applicable fee of $350.00 as established by the City Council on 9/11/08.

(6)

Application for special Exception. An applicable fee of $350.00 as established by the City Council on 911/08.

(7)

Appeal to the Board of Adjustment. An applicable fee of $350.00 as established by the City Council on 911/08.

(Amendment of 9-11-08)