Highland Village City Zoning Code
II ADMINISTRATION
AND PROCEDURES
§ 7 Nonconforming uses and structures.
7.1
Intent of provisions:
A.
Within the districts established by this ordinance or amendments thereto, there exist lots, structures, uses of land and structures, and characteristics of use which were lawful before this ordinance 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 ordinance to permit such nonconforming uses to continue, as long as the conditions within this section and other applicable sections are met.
B.
It is further the intent of this ordinance that nonconforming uses shall not be enlarged upon, expanded or extended, and not be used as a basis for adding other structures or uses prohibited elsewhere in the same district.
C.
Nonconforming uses are hereby declared to be incompatible with the permitted uses in the districts involved.
7.2
Nonconforming status:
Any use, platted lot, or structure which does not conform with the regulations of the zoning district in which it is located shall be deemed a nonconforming use or structure when:
A.
Such use, platted lot, or structure was in existence and lawfully operating at the time of the passage of the previous ordinances passed December 3, 1970 (ordinance # 70-10) or February 10, 1977 (ordinance # 77-205) and has since been in regular and continuous use; or
B.
Such use, platted lot, or structure is a lawful use at the time of the adoption of any amendment to this ordinance but by such amendment is placed in a district wherein such use, platted lot, or structure is not otherwise permitted and has since been in regular and continuous use; or
C.
Such use, platted lot, or structure was in existence at the time of annexation to the city and has since been in regular and continuous use.
7.3
Nonconforming structures; continuance:
A.
The lawful use of land or lawful existence of structures at the time of the passage of this ordinance, although such do not conform to the provisions hereof, may be continued; but if said nonconforming use or structure is discontinued or abandoned, any future use of said premises shall be in conformity with the provisions of this ordinance.
B.
Discontinuance of a nonconforming use shall commence on the actual act or date of discontinuance. Abandonment of a nonconforming structure shall commence on the act or date of abandonment.
C.
When a nonconforming use or structure is discontinued or abandoned for a period of six months, such use shall not be resumed and proof of such event shall constitute prima facie evidence of an act of abandonment except as allowed in section 7.5. Any nonconforming use which does not involve a permanent type of structure or operation and which is moved from the premises shall be considered to have been abandoned.
D.
No nonconforming use or structure may be expanded, reoccupied with another nonconforming use, or increased in size as of the effective date of this ordinance except as provided in [section] 7.5.
E.
Conforming single-family residential uses on platted lots approved prior to this ordinance, which may now be nonconforming due to stricter standards, shall be deemed in conformance with this ordinance as long as the use of the lot is allowed in the respective district. Only the dwelling unit size, lot size, depth, setbacks and width shall be allowed to be less than the regulations prescribed in the zoning district in which it is located. All other regulations of this ordinance shall be met or the lot use and area standards shall be considered nonconforming.
7.4
Changing nonconforming uses:
A.
Any nonconforming use may be changed to a conforming use, and once such change is made, the use shall not be changed back to a nonconforming use.
B.
Where a conforming use is located in a nonconforming structure, the use may be changed to another conforming use by the process outlined in section 7.5 below.
C.
A nonconforming use may not be changed to another nonconforming use.
7.5
Expansion of nonconforming uses and buildings:
An expansion of a nonconforming use or structure is allowed in accordance with the following:
A.
A nonconforming use located within a building may be extended throughout the existing building, provided:
1.
No structural alteration (except as provided in E. below) may be made on or in the building except those required by law to preserve such building in a structurally sound condition.
2.
The number of dwelling units or rooms in a nonconforming residential use shall not be increased so as to exceed the number of dwelling units or rooms existing at the time said use became a nonconforming use.
B.
No nonconforming use within a building may be extended to occupy any land outside the building.
C.
No nonconforming use of land or building shall be enlarged, increased, or extended to occupy a greater area of land than was occupied at the time the land became a nonconforming use, except to provide off-street loading or off-street parking space.
D.
The minimum residential lot areas for the various zoning districts shall be in accordance with their respective districts except that a lot having less area than herein required which was an official "lot of record" prior to the adoption of this ordinance, may be used for a single-family dwelling.
E.
If use is conforming but the structure is not, the nonconforming structure can be remodeled, maintained or improved as long as the size (square footage) of the structure is not increased more than ten percent.
7.6
Restoration of nonconforming structure:
A.
If a structure occupied by a nonconforming use is destroyed by fire, the elements, or other cause, it may not be rebuilt except to conform to the provisions of this ordinance. In the case of partial destruction of a nonconforming use structure not exceeding 60 percent of its total appraised value as determined by the Denton County Central Appraisal District, reconstruction will be permitted, but the existing square footage or function of the nonconforming use cannot be expanded.
7.7
Completion of structures:
Nothing herein contained shall require any change in the plans, construction, or designated use of (1) a building or structure for which a building permit has been issued or a site plan approved prior to the effective date of these zoning regulations, or (2) a building or structure for which a substantially complete application for a building permit was accepted by the building official on or before the effective date of these regulations, provided however that such building permit shall comply with all applicable ordinances of the City of Highland Village in effect on the date such application was filed and the building permit is issued within 30 days of the effective date of these regulations.
(Ordinance 02-877, sec. 4E, adopted 3/22/02; Ordinance 2012-1118, sec. 1, adopted 2/14/12)
§ 8 Planning and zoning commission.
8.1
General.
The planning and zoning commission shall function in accordance with policies and procedures as outlined by the city council for boards and commissions. The powers and duties of the planning and zoning commission are further defined below and in section 10.
8.2
Establishment; membership, officers:
There is hereby created in accordance with V.T.C.A., Local Government Code § 211.007, a city planning and zoning commission which shall consist of five members, each of whom shall be a resident of the city. A member of the planning and zoning commission ceasing to reside in the city during his term of office shall immediately forfeit his office. Members shall be appointed or reappointed by the city council. Each member of the planning and zoning commission shall be appointed for and serve for a term of two years. Upon the expiration of the terms of office as herein provided, each member of the planning and zoning commission shall serve until their successors are appointed and qualified. Vacancies shall be filled by appointments for unexpired terms. The city council may appoint two alternates which will serve if any of the five members of the commission is unable to serve. Alternates shall not be appointed to the commission until the member they are to replace resigns or is removed from the commission by the city council.
Members may be removed from office at any time by a majority vote of the city council for any reason. All members shall serve without pay. The secretary shall keep minutes of all meetings held by the planning commission and full record of all recommendations to be made by the planning and zoning commission to the city council. A chairman and vice-chairman shall be elected by the planning and zoning commission from its membership at its first meeting after new members have been appointed or as soon thereafter as possible.
8.3
Quorum; voting:
Three members of the planning and zoning commission consisting of the chairman or vice-chairman and two other members shall constitute a quorum for the transaction of business, and all members, including the presiding chairman, shall have the right of one vote each when a quorum is present. All actions by the planning and zoning commission shall be by a majority vote. A majority for purposes of this section shall mean a majority of the entire membership of the planning and zoning commission, and not a majority of those present and voting. If any member has a conflict of interest in review of any item on the commission's agenda, he or she shall remove themselves from the room and refrain from voting only on the item for which a conflict exists.
8.4
Meetings:
The Planning and Zoning Commission shall meet at such times in the City Hall or other specified locations as may be designated by the Chairman or Vice-Chairman, in the absence of the Chairman and at such intervals as may be necessary to orderly and proper transaction of the business of the Commission.
8.5
Powers and duties:
The planning and zoning commission shall be an advisory body to the city council and shall make recommendations regarding amendments to the comprehensive plan, changes of zoning and permanent zoning to be given to newly annexed areas, and shall make recommendations regarding the approval of the plats of subdivisions as may be submitted to it by the city council. It is recommended that the planning and zoning commission make no less than an annual study of the city's comprehensive plan and be prepared to make such recommendations to the city council as deemed necessary to keep the city's comprehensive plan with the needs and uses of the city. The planning and zoning commission shall serve in an advisory capacity on any planning-related item(s) in the city.
(Ordinance 02-877, sec. 4E, adopted 3/22/02; Ordinance 2012-1118, sec. 1, adopted 2/14/12)
§ 9 Zoning board of adjustment (ZBA).
9.1
Creation:
There is hereby created a zoning board of adjustment (also termed ZBA) to be composed of five members and three alternate members who shall be residents and qualified voters of the City of Highland Village and shall serve without compensation.
9.2
Members and terms of office:
The zoning board of adjustment shall consist of five regular members and three alternate members who shall be appointed by the city council in accordance with V.T.C.A., Local Government Code §§ 211.008– 211.011, as amended. The members shall serve for a period of two 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.
ZBA 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 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 with leave being first obtained from the chairman. An alternate shall not be appointed to the ZBA until the member they are replacing has resigned, misses two consecutive meetings, or removed from the ZBA by the city council. Vacancies of an alternate member shall be filled by appointment of the city council by majority vote.
Meetings of the ZBA shall be held at the call of the chairman or as requested by the city manager or designated official, and at such other times as the ZBA may determine. All meetings of the ZBA shall be open to the public. Four members of the ZBA shall constitute a quorum for the conduct of business. All cases to be heard by the zoning board of adjustment will always be heard by a minimum number of four members. The members of the ZBA shall regularly attend meetings and public hearings of the ZBA.
9.3
Authority of zoning board of adjustment:
The zoning board of adjustment shall have the authority, subject to the standards established in V.T.C.A., Local Government Code §§ 211.008–211.011 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.
Authorize the expansion or continuation of a nonconforming use or structure.
C.
Authorize in specific cases a variance (see section 9.5) 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 A. above, the ZBA 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 ZBA has the same authority as the administrative official.
E.
The concurring vote of four members of the ZBA is necessary to:
9.4
Limitations on authority of zoning board of adjustment:
A.
The ZBA 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 [section] 9.6.
B.
The ZBA shall have no power to grant or modify conditional use permits authorized under section 12 of these regulations.
C.
The ZBA shall have no power to grant a zoning ordinance amendment. In the event that a request for a zoning amendment is pending before the planning and zoning commission or the city council, the ZBA shall neither hear nor grant any variances with respect to the subject property until final disposition of the zoning amendment.
D.
The ZBA 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 ZBA.
9.5
Variances:
A.
In order to grant a variance from these zoning regulations, the ZBA must make written findings that an undue hardship exists, 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.
9.6
Nonconforming uses and structure:
A.
The ZBA shall have the authority to authorize the expansion or enlargement of a nonconforming use, or the expansion, enlargement or structural alteration to a structure containing a nonconforming use, when such an expansion, enlargement or alteration would not tend to prolong the life of the nonconforming use. Upon review of the facts, the ZBA may establish a specific period of time for the occupancy to revert to a conforming use; and
B.
To authorize the reconstruction and occupancy of a nonconforming structure, or a structure containing a nonconforming use, where such structure has been damaged by fire or other causes to the extent of more than 60 percent, but less than the total, of the replacement cost of the structure on the date of the damage. Such action by the zoning board of adjustment shall have due regard for the property rights of the person or persons affected, and shall be considered in regard to the public welfare, character of the area surrounding such structure, and the conservation, preservation and protection of property; and
C.
To authorize the enlargement, expansion or repair of a nonconforming structure in excess of 60 percent of its current value. In such instance, current value shall be established at the time of application for a hearing before the ZBA.
If such expansion or enlargement is approved by the ZBA, all provisions of the district in which such structure is located shall apply to the new construction on the lot or parcel.
D.
To authorize a change of use from one nonconforming use to another nonconforming use, provided that such change is to a use of a more restrictive classification, the building or structure containing such nonconforming use shall not revert to the former lower or less restricted classification. The ZBA may establish a specific period of time for the conversion of the occupancy to a conforming use. Any change of a nonconforming use consistent with this section shall be in accordance with the provisions of section 7 of this ordinance.
E.
To authorize the occupancy of an abandoned nonconforming structure. Such action by the ZBA shall have due regard for the property rights of the person or persons affected, and shall be considered in regard to the public welfare and safety, character of the area surrounding such structure, and the conservation, preservation and protection of property.
9.7
Procedures:
A.
Application and fee.
An application for granting a variance or special exception by the zoning 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 zoning 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 200 feet of the affected property ten days prior to the public hearing and also shall be published in the official city 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 ZBA and the official against whom the appeal is taken a written notice of appeal specifying the grounds for the appeal within a reasonable time as determined by the rules of the ZBA. The officer to whom the appeal is made shall forthwith transmit to the ZBA 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 certifies in writing to the ZBA 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 ZBA 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 ZBA shall decide the appeal within three weeks after placement on its agenda after which time the request shall be deemed automatically approved. The ZBA may reverse or affirm, in whole or in part, or modify the city manager's or designated administrative official's order, requirement, decision or determination from which an appeal is taken, and make the correct order, requirement, decision, or determination.
D.
Judicial review.
Any person or persons, jointly or severally, aggrieved by a decision of the zoning board of adjustment, or any taxpayer, or any officer, department, board or bureau 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 days after the date the decision is filed in the ZBA's office.
(Ordinance 08-1063, sec. 2, adopted 11/25/08)
§ 10 Changes and amendments to all zoning ordinances and districts and administrative procedures.
10.1
Declaration of policy:
The city council 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. Changes made in these regulations or in the boundaries of the zoning districts should generally be made:
A.
To correct any error in the regulations or map.
B.
To recognize changed or changing conditions or circumstances in a particular locality.
C.
To recognize changes in technology, the style of living, or manner of conducting business.
D.
To change the property to uses in accordance with the approved comprehensive plan.
10.2
Review criteria:
In making a determination regarding a requested zoning change, the planning and zoning commission and city council shall consider the following factors:
A.
Whether the use is in accordance with the comprehensive plan and the purposes stated in each zoning district.
B.
Whether the uses permitted by the proposed change will be appropriate in the immediate area concerned and their relationship to the general area and the city as a whole.
C.
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.
D.
The amount of vacant land currently classified for similar development in the vicinity and elsewhere in the city, and any special circumstances which may make a substantial part of such vacant land unavailable for development.
E.
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.
F.
How other areas designated for similar development will be, or are unlikely to be, affected if the proposed amendment is approved.
The City Council and Commission may consider any other factors which will substantially affect the public health, safety, morals, or general welfare. |
10.3
Authority to amend ordinance:
After receiving a final report containing a recommendation by the planning and zoning commission and after holding the public hearings required by law, the city council may amend, supplement, or change the regulations herein set forth or the boundaries of the zoning districts specified on the zoning district map.
10.4
Initiation of amendment process:
Any amendment to the zoning regulations or zoning district boundaries may be ordered for consideration by the city council, be initiated by the planning and zoning commission or the city manager, or be requested by the owner of real property, or the authorized representative of an owner of real property. Consideration for a change in any district boundary line or zoning regulation may be initiated only with written consent of the property owner, or by the planning and zoning commission or 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 on the city records are different, the applicant shall submit proof of ownership or authority to represent the owner of the property that is the subject of the application or otherwise has the consent of the owner to make the application.
10.5
Application:
Each application for an amendment or change to the use and/or development regulations set forth in the Comprehensive Zoning Ordinance with respect to specific property shall be made in writing on an application form available from the city, filed with the city and shall be accompanied by payment of the appropriate fee as established by the city. If applicable, a metes and bounds description of the boundary of the property that is the subject of the application and appropriate exhibits the applicant requests, or that the Comprehensive Zoning Ordinance or other applicable ordinances require, become part of the development regulations affecting the property that is the subject of the application, which may include, but not be limited to, land use and/or site plan, building elevations, landscape plans, and sign plans must be submitted with the application. No application shall be required for amendments that are initiated by the city manager, the planning and zoning commission, or the city council.
10.6
Public hearing and notice:
Prior to making its report to the city council, the planning and zoning commission shall hold at least one public hearing on each proposed amendment to the comprehensive zoning ordinance text or zoning district map. Notice of the date, time and place of the public hearing shall be published in the official newspaper of the city before the 15th day before the date of the hearing. Written notice of the public hearing also shall be sent to each owner, as indicated by the most recently approved municipal tax roll, of real property within 200 feet of the property on which a zoning map amendment is proposed before the tenth day before the hearing date. The notice may be served by its deposit in the municipality, properly addressed with postage paid, in the United States mail. Written notification to individual property owners is not required for an amendment to the text of the zoning ordinance which does not change zoning district boundaries.
10.7
Failure to appear:
Failure of the applicant or the applicant's representative to appear before the planning and zoning commission or city council for more than one hearing without an approved delay by the city manager or designated administrative official shall constitute sufficient grounds for the planning and zoning commission to table or recommend denial of the application or for the city council to table or deny the application with or without prejudice.
10.8
Planning and zoning commission consideration and report:
The planning and zoning commission, after the public hearing is closed, shall forward to the city council its recommendation on the requested amendment to the text of the comprehensive zoning ordinance and/or the zoning district map, which recommendation shall be to approve the amendment as requested, to approve the requested amendment with modifications recommended by the planning and zoning commission, or to deny the requested amendment.
10.9
City council consideration:
A.
Applications recommended for approval by the planning and zoning commission:
Every application for an amendment to the comprehensive zoning ordinance and/or or zoning district map which is recommended for either approval or approval with modifications by the planning and zoning commission shall be automatically forwarded to the city council for setting of a public hearing thereon. No change, however, shall become effective until after the adoption of an ordinance for same and its publication as required by law.
B.
Applications recommended for denial by the planning and zoning commission:
When the planning and zoning commission makes a recommendation that an application for an amendment to the comprehensive zoning ordinance and/or or zoning district map should be denied, the request, in its original form, will (i) be considered withdrawn, (ii) treated as a denial without prejudice by the city council, and (iii) not be placed on the city council agenda unless requested by the applicant in writing delivered to the Community Development Coordinator not later than the tenth (10th) day after the meeting at which the commission voted to recommend denial of the application.
C.
Resubmission of applications:
A request for an amendment which has been denied by the city council without prejudice may be resubmitted at any time for reconsideration by the city with payment of a new filing fee. If a request for an amendment has been denied by the city council with prejudice, the same or similar request may not be resubmitted to the city for six months from the date of the vote by the city council to deny the original application.
D.
City council hearing and notice for zoning changes:
Published notice and written notification to individual property owners, of the city council public hearing, shall be as provided in section 10.6.
E.
Three-fourths vote:
A favorable vote of three-fourths of all of the members of the entire city council shall be required to approve any change in zoning when:
1.
Written protests are received and filed with the city secretary in accordance with V.T.C.A., Local Government Code Section 211.006, which protest must be written and signed in compliance with the requirements of Section 10.10 by the owners of at least 20 percent of either:
(a)
the area of the lots or land covered by the proposed change; or
(b)
the area of the lots or land immediately adjoining the area covered by the proposed change and extending 200 feet from that area. In computing the percentage of land area, the area of streets and alleys shall be included in the computation; or
2.
The planning and zoning commission recommends denial of the requested change.
10.10
Written protest procedures.
A.
Purpose.
(1)
State law expressly enables the governing body of a municipality to establish procedures for adopting and enforcing zoning regulations and district boundaries. Pursuant to that authority, the city council enacts this Section 10.10 governing the receipt of written protests submitted for the purpose of requiring the favorable vote of three-fourths of all members of the city council to effect a change in a zoning district classification or boundary.
(2)
This Section 10.10 is not intended to conflict with the state law; it is being enacted at a time when the state law does not explicitly provide how, when, or where a written protest must be filed. The city council expressly recognizes that this Section 10.10 may be partially or completely preempted at any such time that the state law is amended to explicitly provide how, when, or where a written protest must be filed.
(3)
This Section 10.10 is intended to accomplish the following listed objectives which, in the opinion of the city council, are fully in keeping with the purposes, spirit, and intent of the state law:
(a)
To allow city staff sufficient time to accurately calculate the land area percentages that determines the voting requirement;
(b)
To protect the rights of all parties by establishing minimum criteria to assure the reliability of written protests received;
(c)
To protect the rights of those protesting by establishing procedures and deadlines which are not unduly burdensome or restrictive; and
(d)
To promote order and maintain the integrity of the zoning process.
B.
Form of protest.
(1)
A protest must be in writing submitted on a form prepared by the city secretary and, at a minimum, contain the following information:
(a)
A description of the zoning case at issue;
(b)
The printed or typewritten names of all persons signing the protest of the proposed change in zoning district classification or boundary;
(c)
A description of the area of lots or land owned by the protesting parties that is either covered by the proposed change or located within 200 feet of the area covered by the proposed change;
(d)
The mailing addresses of all persons signing the protest;
(e)
The date and time the protest is signed; and
(f)
If signing the protest on behalf of the owner of property pursuant to a power of attorney, so indicate on the protest and submit a copy of the power of attorney with the protest.
(2)
The protest must bear the original signatures of all persons required to sign under paragraph C., below.
C.
Who must sign.
(1)
A protest must be signed by the owner of the property in question, or by a person authorized by power of attorney to sign the protest on behalf of the owner. If the property is owned by two or more people, the protest must be signed by a majority of the owners, or by a person authorized by power of attorney to sign the protest on behalf of a majority of the owners, except that in the case of community property, the city shall presume the written protest of one spouse to be the protest of both.
(2)
In the case of property owned by a corporation, the protest must be signed by the president, a vice-president, or by an attorney in fact authorized to sign the protest on behalf of the corporation. In the case of property owned by a general or limited partnership, the protest must be signed by a general partner or by an attorney in fact authorized to sign the protest on behalf of the partnership. In the case of property owned by a trust, the protest must be signed by the trustee(s) authorized under the trust agreement to perform actions with respect to the property.
(3)
Lots or land subject to a condominium regime are presumed to be commonly owned in undivided interests by the owners of all condominium units and under the control of the governing body of the condominium. For such lots or land to be included in calculating the lots or land area protesting a proposed rezoning, the written protest must state that the governing body of the condominium has authorized a protest in accordance with procedures required by its bylaws, and that the person signing the protest is authorized to act on behalf of the governing body of the condominium. A written protest signed by the owner of an individual condominium unit shall not be accepted unless the filing party produces legal documents governing the condominium which clearly establish the right of an individual owner to act with respect to his or her respective undivided interest in the common elements of the condominium.
(4)
For purposes of this subsection, the "owner" of the property for which a protest is being submitted shall be determined to be the owner of the property shown in the records of the Denton County Appraisal District as of the date of delivery of the protest to the city secretary. A person with only a leasehold or easement interest in property is not an "owner" for purposes of filing a protest pursuant to this subsection.
(5)
A person who is not named on the records of the Denton County Appraisal District as the owner of the property may submit additional information to the city attorney indicating that the person is the current record owner of the property identified in the protest. The determination of the city attorney as to the sufficiency of such information and whether or not the person should be considered the record owner of the property for purpose of filing the protest is final. Any additional information submitted pursuant to this paragraph (5) must be submitted by the deadline required for submission of the protest.
D.
Filing deadline.
(1)
A written protest must be filed with the city secretary before noon of the business day immediately preceding the date advertised for the city council public hearing in the statutory notice published in the official newspaper of the city. A protest sent through the mail must be received by the city secretary before the deadline.
(2)
Before the public hearing on the case, the filing deadline is automatically extended whenever the public hearing is re-advertised in the official newspaper of the city pursuant to statutory notice requirements.
(3)
After the public hearing has begun, and
(a)
the public hearing is concluded with no action being taken on the zoning amendment at the same meeting and a subsequent public hearing and advertising that public hearing in the official newspaper of the city pursuant to statutory notice requirements; or
(b)
the public hearing is continued to a date certain as otherwise allowed under the Texas Open Meetings Act;
the filing deadline may be extended to noon of the working day immediately preceding the newly advertised public hearing date or the date to which the public hearing is continued, as the case may be. |
(4)
Written protests may be filed electronically be emailing the written protest as an attachment in .pdf format to the city secretary or by sending via facsimile transmission to the published facsimile telephone number for the office of the city secretary.
(5)
For purposes of determining compliance with the filing deadline, the date and time the city secretary's office actually receives the written protest is solely determinative.
E.
Withdrawals of protests filed.
Withdrawals of protests filed must be in writing and filed with the city secretary before the filing deadline for protests. The provisions of this subsection governing the form and filing of protests apply equally to withdrawals.
F.
Presumptions of validity.
(1)
In all cases where a protest has been properly signed pursuant to this subsection, the city shall presume that the signatures appearing on the protest are authentic and that the persons or officers whose signatures appear on the protest are either owners of the property or authorized to sign on behalf of one or more owners as represented.
(2)
In cases of multiple ownership, the city shall presume that a properly signed protest which on its face purports to represent a majority of the property owners does in fact represent a majority of the property owners.
(3)
The presumptions in subparagraphs (1) and (2) above are rebuttable, and the city attorney may advise the city council that a presumption should not be followed in a specific case based on extrinsic evidence presented.
G.
Conflicting instruments.
In the event that multiple protests and withdrawals are filed on behalf of the same owner, the instrument with the latest date and time of execution controls.
10.11
Joint public hearings:
As authorized in V.T.C.A., Local Government Code Section 211.007, the city council may, by a two-thirds vote, prescribe the type of notice to be given of the time and place of a public hearing held jointly by the city council and planning and zoning commission. If the notice provisions are different than section 10.6 above, then the provisions of section 10.6 do not apply.
10.12
Procedure for newly annexed land:
As soon as reasonable after an annexation ordinance is approved by the city council, the city manager or designated city official shall prepare an application for zoning the newly annexed property to SF-40 unless the property owner, city council or planning and zoning commission determines another zoning district is more appropriate. The application shall be placed on the planning and zoning commission's agenda. All procedures as set forth in this section shall apply.
(Ordinance 2012-1118, sec. 2, adopted 2/14/12)
§ 11 Site plan review.
11.1
Site plan review:
A.
Purpose.
This section establishes a site plan review process for proposed developments. The purpose of the review is to ensure efficient and safe land development, harmonious use of land, compliance with appropriate design standards, safe and efficient vehicular and pedestrian circulation, parking and loading, and adequate water supply, drainage and stormwater management, sanitary facilities, and other utilities and services.
B.
Applicability.
Site plan review and approval shall be required for the following:
1.
Any nonresidential development.
2.
Any multifamily development.
3.
Any development with two or more buildings per platted lot.
4.
Any conditional use permit (public hearings may also be required, see section 12).
No building permit shall be issued for any of the above developments unless a site plan is first submitted to and reviewed by the city staff and planning and zoning commission and approved by the city council. No certificate of occupancy shall be issued unless all construction and development conform to the site plan as approved by the city. A public hearing on a site plan is not required unless a site plan is prepared in conjunction with a conditional use permit. |
C.
Exemptions and exceptions.
Site plan approval shall not be required for any detached one or two dwelling unit buildings or any accessory uses incidental thereto, except as provided in B(4) above.
D.
Site plan details.
The site plan shall contain sufficient information relative to site design considerations, including but not limited to the following:
1.
Location of proposed building(s) and structures and sizes.
2.
On- and off-site circulation (including truck loading and pickup areas) and fire lanes.
3.
Parking.
4.
Grading.
5.
Conceptual landscaping design.
6.
Placement of utilities.
7.
Screening.
8.
Engineering for streets and utilities.
9.
Drainage.
10.
Signage.
Provision of the above items shall conform to the principles and standards of this ordinance. To ensure the submission of adequate site plan information, the city is hereby empowered to maintain and distribute a list of specific requirements for site plan review applications. Upon periodic review, the city manager or designated administrative official shall have the authority to update such requirements for site plan details. |
E.
Supplemental requirements.
The city staff may require other information and data for specific site plans if it is relevant to the proposed use of the property. This data may include but is not limited to geologic information, water yields, flood data, environmental information, traffic analysis, road capacities, market information, economic data for the proposed development, hours of operation, elevations and perspective drawings, lighting, and similar information.
F.
Standards for site plan review.
Based upon its review, the city may approve, conditionally approve, request modifications, or deny the site plan based on evaluation of the site plan details with respect to:
1.
The site plan's compliance with all provisions of the zoning ordinance and other ordinances of the City of Highland Village including but not limited to off-street parking and loading, lighting, open space, and the generation of objectionable smoke, fumes, noise, odors, dust, glare, vibration, or heat.
2.
The impact of the development relating to the preservation of existing natural resources on the site and the impact on the natural resources of the surrounding properties and neighborhood.
3.
The relationship of the development to adjacent uses in terms of harmonious design, setbacks, maintenance of property values, and negative impacts.
4.
The provision of a safe and efficient vehicular and pedestrian circulation system.
5.
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.
6.
The sufficient width and suitable grade and location of streets designed to accommodate prospective traffic and to provide access for firefighting and emergency equipment to buildings.
7.
The coordination of streets so as to arrange a convenient system consistent with the thoroughfare plan of the City of Highland Village.
8.
The use of landscaping and screening (1) to provide adequate buffers to shield lights, noise, movement, or activities from adjacent properties when necessary, and (2) to complement the design and location of buildings and be integrated into the overall site design.
9.
Exterior lighting to ensure safe movement and for security purposes, which shall be arranged so as to minimize glare and reflection on adjacent properties.
10.
The location, size, and configuration of open space areas to ensure that such areas are suitable for intended recreation and conservation uses.
11.
Protection and conservation of soils from erosion by wind or water or from excavation or grading.
12.
Protection and conservation of watercourses and areas subject to flooding.
13.
The adequacy of water, drainage, sewerage facilities, garbage disposal, and other utilities necessary for essential services to residents and occupants.
11.2
Approval process:
A.
[Review of plan; comments.]
The city manager or designated administrative official shall review the site plan and prepare technical comments to be submitted with the site plan to the planning and zoning commission and city council.
B.
[Disposition.]
The city staff shall place the site plan on the regular agenda of the planning and zoning commission within 30 days after a complete application has been submitted to the city. If recommended for approval by the planning and zoning commission, the site plan shall automatically be placed on the city council agenda. If the site plan is recommended for denial by the planning and zoning commission, the applicant must request the site plan be placed on the city council's agenda. The city council shall have final approval or disapproval on all site plans.
C.
Lapse of site plan approval.
If development of a lot with an approved site plan has not commenced within one year of the date of final approval of the site plan, the site plan shall be deemed to have expired. The property owner, however, may submit a request for extension of the site plan at least 60 days prior to expiration of the such plan, setting forth the reasons why an extension should be granted. The planning and zoning commission thereafter shall consider such request and shall determine whether to extend the site plan, subject to approval of the city council. In no case shall the site plan be extended for a period in excess of two years.
D.
Amendment of site plans.
The property owner may propose amendment of an approved site plan. The application for amendment of the site plan shall be filed with the planning and zoning commission and shall be processed in accordance with the standards and procedures for approval of a site plan.
It is recognized that final architectural and engineering design may necessitate minor changes in the approved site plan. In such cases, the city manager or designated administrative official shall have the authority to approve minor modifications of an approved site plan, provided that such modifications do not materially change the circulation and building location on the site, or any conditions specifically attached as part of a city council approval. Minor modifications mean changes of not more than 15 percent as long as said changes do not violate other provisions of this ordinance.
(Ordinance 2018-1254 adopted 11/13/18)
§ 12 Conditional use permits.
12.1
General description:
A conditional use is a land use which because of its nature is compatible with the permitted land uses in a given zoning district, only upon a determination that the external effects of the use in relation to the existing and planned uses of adjoining property and the neighborhood can be mitigated through imposition of standards and conditions. This section sets forth the standards used to evaluate proposed conditional uses and the procedures for approving conditional use permit applications.
12.2
Applicability:
A.
Permit required.
No building permit shall be issued for any use designated as a conditional use within a zoning district unless a conditional use permit has first been approved in accordance with the standards and procedures of this section.
B.
Site plan required.
An application for a conditional use permit shall be accompanied by a site plan prepared in the manner described in section 11 of these zoning regulation[s] illustrating the proposed use to be established, its relationship to adjoining properties and how it meets the approval standards set forth in section 12.3.
12.3
Approval standards:
A.
Standards.
The planning and zoning commission in making its recommendation and the city council in rendering its decision on an application for a conditional use permit shall, on the basis of the site plan and other information submitted, evaluate the impact of the proposed use on and the compatibility of the use with surrounding properties and neighborhoods to ensure the appropriateness of the use at the proposed location. The planning and zoning commission and the city council shall specifically consider the extent to which:
1.
The proposed use at the specified location is consistent with the future land use policies and map in the city's 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 not materially detrimental to the public health, safety, convenience and welfare, or results in material damage or prejudice to other property in the vicinity; and
4.
The proposed use is compatible with and preserves the character and integrity of adjacent properties and neighborhoods and includes improvements or modifications that mitigate development-related adverse impacts, including but not limited to:
(1)
Adequate ingress and egress to property and proposed structures thereon with particular reference to vehicular and pedestrian safety and convenience, and access in case of fire;
(2)
Off-street parking and loading areas where required;
(3)
Paving of streets, alleys and sidewalks;
(4)
Provisions for drainage;
(5)
Utilities with reference to location, availability, and compatibility;
(6)
Screening and buffering, features to minimize visual impacts, and/or setbacks from adjacent uses;
(7)
Control of signs, if any, and proposed exterior lighting with reference to glare, traffic safety, economic effect, and compatibility and harmony with properties in the district;
(8)
Required yards and open space;
(9)
Height and bulk of structures;
(10)
Hours of operation; and
(11)
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.
B.
Condition.
In approving a conditional use permit, the planning and zoning commission may recommend and the city council shall impose such conditions as are reasonably necessary to assure compliance with these standards and the purpose and intent of this section. Any conditions imposed shall be set forth in writing by the city council and attached to the site plan drawing(s). The city shall maintain a record of such approved conditional uses and the site plans and conditions attached thereto.
12.4
Approval procedures:
A.
Planning and zoning commission recommendation.
The city planning and zoning commission shall schedule a public hearing in order to formulate its recommendations to the city council on the conditional use permit application. Notice and public hearing shall be pursuant to section 10.5 of these zoning regulations. Following the public hearing, the commission shall recommend approval, modification or denial of the proposal to the city council. If the appropriateness of the use cannot be assured at the location, the commission shall recommend denial of the application as being incompatible with existing uses or uses permitted by right in the district.
B.
City council action.
The city council shall be the final decision-maker on applications for conditional use permits. Following notice and a public hearing in accordance with section 10.8 of these zoning regulations, and in consideration of the planning and zoning commission's recommendations, the city council shall approve, modify or deny the proposal for a conditional use permit. If the appropriateness of the use cannot be assured at the location, the application for conditional use permit shall be denied as being incompatible with existing uses or uses permitted by right in the district.
12.5
Amendment of conditional use permit:
A.
Modification.
No proposed or existing building, premises, or land use authorized as a conditional use may be established, enlarged, modified, structurally altered, or otherwise changed from that approved in the conditional use permit, unless such amendment is authorized in accordance with the standards and procedures set forth in this section, and the conditional use permit and approved site plan are amended accordingly.
B.
Limitation on board of adjustment.
The board of zoning adjustment shall have no jurisdiction to hear, review, reverse, or modify any decision, determination, or ruling with respect to an application for a conditional use permit.
12.6
Lapse and extension:
A.
Lapse of permit.
If no building permit has been issued within one year of date of approval of the conditional use permit, such permit shall lapse and no construction shall be permitted nor use be established until a new application for conditional use permit is submitted and approved for the intended use.
B.
Extension.
If the applicant requests an extension of the conditional use permit in writing at least 60 days prior to the date of lapse to the city council, the council shall consider such extension request, prior to the expiration date. For good cause shown, the permit may be extended for a period not to exceed one year.
12.7
Continuation of prior uses as conditional uses:
The city council may continue in effect certain existing uses that otherwise would be nonconforming uses within particular zoning districts following the effective date of these amended zoning regulations, or uses formerly authorized under a S-P-1 site plan classification under prior zoning regulations, by converting such existing or authorized uses to conditional uses; provided that any such use be authorized as a conditional use in the zoning district into which it is classified under these zoning regulations; and further provided that such use shall be governed by such standards and conditions as are under the zoning regulations in effect immediately prior hereto. In converting such existing or authorized use to a conditional use, the city council, upon recommendation of the planning and zoning commission, shall issue a conditional use permit, and, in the case of undeveloped uses authorized under S-P-1 district regulations, may attach such conditions as are necessary to ensure that the purpose and effect of this section is implemented.
(Ordinance 2018-1254 adopted 11/13/18)
§ 13 Certificates of occupancy and compliance.
13.1
[Certificates of occupancy requirement:]
Certificates of occupancy shall be required for any of the following:
A.
Occupancy and use of a building hereafter erected or structurally altered (passage of a final building inspection of a residential structure shall qualify as a certificate of occupancy).
B.
Change in use of an existing building to a use of a different classification.
C.
Change in the use of land to a use of a different classification.
D.
Change in occupancy or business ownership within a building.
No such use, or change of use, shall take place until a certificate of occupancy therefor shall have been issued by the building official. A fee shall be established by separate ordinance. |
13.2
Procedure for new or altered buildings:
Written application for a certificate of occupancy for a new building or for an existing building which is to be altered shall be made at the same time as the application for the building permit for such building. Said certificate shall be issued after the building official orders the building or structure inspected and finds no violations of the provisions of this ordinance or other regulations which are enforced by the building official. Said certificate shall be issued by the building official or his agent after the erection or alteration of such building or part thereof has been completed in conformity with the provisions of this ordinance.
13.3
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 said building official or his agent. If the proposed use is a conforming use, as herein provided, written application shall be made to said building official. If the proposed use is found to be in conformity with the provisions of this ordinance, 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.
13.4
Contents:
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 Uniform Building Code, group and division of occupancy, and 6) the name of the building official.
13.5
Temporary certificate:
If the building official or his agents find that no substantial hazard will result from occupancy of any building or portion thereof before the same is completed, a temporary certificate of occupancy may be issued for a period not to exceed six months, for the use of a portion or portions of a building or structure prior to the completion of the entire building or structure. Such temporary certificate shall not be construed as in any way altering the respective rights, duties, or other obligations of the owners/tenants relating to the use or occupancy of the premises or any other provision of this ordinance.
13.6
Posting:
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 authorized agent.
13.7
Revocation:
The building official may, in writing, suspend or revoke a certificate of occupancy issued under the provisions of this ordinance whenever the certificate is issued in error, or on the basis of incorrect information supplied, or when it is determined that the building or structure or portion thereof is in violation of any ordinance or regulation or any of the provisions of this ordinance or the most current Uniform Building, National Electrical, Uniform Mechanical, Uniform Fire and Uniform Plumbing Codes.
(Ordinance 2018-1254 adopted 11/13/18)