Since state law requires a zoning ordinance to be comprehensive so that the rules are uniform as to each zoning district and not by individual parcels of property, it is impractical if not impossible to provide for all special or unusual circumstances which may exist when the requirements are applied to a particular piece of property or where the owner would be subject to an unwarranted restriction in the use of his property. In anticipation of such situations the State Zoning Law and this Ordinance make provisions through a Board of Adjustment to take care of certain problems arising out of the application of the regulations.
Hubbard City Zoning Code
ARTICLE 11
BOARD OF ADJUSTMENT
§ 11-1 Organization.
There shall be a Board of Adjustment established and governed by Chapter 211 Texas Statutes Local Government Code, and consisting of five members appointed by the Council, each to be appointed for a term of two years, removable for cause by the appointing authority upon written charges and after a public hearing. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. The City Council may appoint up to four alternate members to the board who shall serve in the absence of one or more regular members when requested to do so by the Mayor. The alternate members shall serve for the same period as the regular members, and any vacancies shall be filled in the same manner and shall be subject to removal as the regular members.
(Ordinance 081115-02 adopted 8/11/15)
§ 11-2 Powers, Jurisdiction and Scope of Activity of Board.
11-2.01
Errors.
The board shall have the power to hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by a City Official in the enforcement of this Ordinance.
11-2.02
Special exceptions.
In order to provide for adjustment in the relative locations of uses and buildings of the same or different classifications, to promote the usefulness of this Ordinance as an instrument for the fact finding, interpretation, application and adjustment, and to supply the necessary elasticity to its efficient operation, special exceptions are permitted to the terms of this Ordinance. The following buildings and uses are permitted as special exceptions if the Board finds that, in its opinion as a matter of fact, such exceptions will not substantially and/or adversely affect the uses of adjacent and neighboring property permitted by this Ordinance:
A.
A nonconforming commercial use to extend to the entire lot or a larger portion of the lot where there is now a commercial use on a portion of the lot.
B.
To waive or reduce the parking requirements in any district whenever the character or use of the building is such as to make unnecessary the full provision of parking, or where such regulations would impose an unreasonable hardship upon the use of the lot.
11-2.03
Variances.
The Board of Adjustment shall have jurisdiction to hear requests for a variance from the terms of this Ordinance. The Board of Adjustment shall be authorized to grant a variance from the terms hereof if, and only if, they find that the strict enforcement of this Ordinance would create a substantial hardship to the applicant, by virtue of unique special conditions not generally found within the City, and that the granting of the Variance would preserve the spirit and intent of the Ordinance, and would serve the general interests of the public and the applicant. Variances may be granted only when in harmony with the general purpose and intent of this Ordinance so that public health, safety, and welfare may be secured and substantial justice done. The City shall publish and mail public notice in accordance with Texas Local Government Code Chapter 211 and hold a public hearing before the Board of Adjustment rendering a decision on a variance.
A.
Standards for Variance.
Board of Adjustment may grant a variance when it has been determined:
1.
Extraordinary Conditions.
That there are extraordinary or special conditions affecting the land involved such that strict application of the provisions of this Ordinance will deprive the applicant of the reasonable use of their land. For example, a variance might be justified because of topographic, or other special conditions unique to the property and development involved, while it would not be justified due to inconvenience or financial disadvantage.
2.
Substantial Detriment.
That the granting of the variance will not be detrimental to the public health, safety, or welfare, or injurious to other property in the area, or to the City in administering this Ordinance.
3.
Other Property.
That these conditions do not generally apply to other property in the vicinity.
4.
Applicant's Actions.
That the conditions are not the result of the applicant's own actions.
5.
General Plan.
That the granting of the variance would not substantially conflict with the Comprehensive Plan and the purposes of this Ordinance,
6.
Utilization.
That because of these conditions, the application of this Ordinance to the particular piece of property would effectively prohibit or unreasonably restrict the utilization of the property.
B.
Insufficient Findings.
The following types of possible findings do not constitute sufficient grounds for granting a variance:
C.
Attendance at City Council Meeting.
The Applicant, the Applicant's Attorney, Engineer or Architect or a duly authorized person must attend the public hearing.
D.
Limitations.
The Board of Adjustment may not grant a variance when the effect of which would be any of the following:
1.
To allow the establishment of a use not otherwise permitted in the applicable zoning district.
2.
To increase the density of a use above that permitted by the applicable district.
3.
To expand a nonconforming residential land use.
4.
To change the zoning district boundaries shown on the Official Zoning Map.
5.
Profitability Not to Be Considered. The fact that property may be utilized more profitably should a variance be granted may not be considered grounds for a variance.
(Ordinance 081115-02 adopted 8/11/15)
§ 11-3 Appeal.
11-3.01
Except as provided by Subsection (C), any of the following persons may appeal to the board of adjustment a decision made by an administrative official:
11-3.02
Board Action.
In exercising the above powers, the Board may reverse or affirm wholly or partially, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, in the interest of the public and the individual affected, and to that end shall have the powers of the Zoning Administrator or Building Inspector from whom the appeal is taken. A written finding of facts, based on testimony and specifying the reason for granting or denying the variation shall accompany every variation granted or denied by the Board. The concurring vote of 75 percent of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Zoning Administrator or Building Inspector, or to decide in favor of the applicant upon any matter which it is required to pass under this Ordinance, or to affect any variation of this Ordinance.
11-3.03
Judicial Review of Board Decision.
Appeals of the Board of Adjustment's decision must be made within ten (10) days to the District Court, County Court, or County Court at law and in accordance with the Texas Local Government Code.
(Ordinance 081115-02 adopted 8/11/15)
§ 11-4 Lapse of Special Exception or Variance.
After the board has approved a special exception or granted a variance, the special exception or variance so approved or granted shall lapse after expiration of one year if no substantial construction or change of use has taken place in accordance with the plans for which such special exception or variance was granted, and the provisions of this Ordinance shall thereafter govern. If an action on the application is made by the Board of Adjustment or City Council, no further applications for rezoning on all or part of the subject property may be considered for a period of twelve (12) months unless a waiver is granted by the City Council.
(Ordinance 081115-02 adopted 8/11/15)
§ 11-5 Fees.
Before any action shall be taken on any appeal to the Board necessitating the publication of notices or sending of notices, the appellant shall deposit with the City Secretary a fee set by the City Council to cover the cost and expense relative thereto. Fee may be adjusted annually.
(Ordinance 081115-02 adopted 8/11/15)