Italy City Zoning Code
§ 32
ZONING BOARD OF ADJUSTMENT.
32.1
Creation:
There is created a board to be known as the Board of Adjustment of the City.
32.2
Members of the Board:
The Board of Adjustment shall consist of five (5) regular members and up to four (4) alternates who shall be appointed by the City Council upon recommendation from the mayor to serve for two (2) years, staggered terms, or until their successors are duly appointed. Upon the initial appointment of the Board, the City Council shall designate three appointees to serve for two years and two appointees to serve for one year. If alternate members are appointed as a part of the initial Board, the Council shall designate up to two alternates to serve for two years and up to two alternates to serve for one year. Alternates shall serve in the absence of one or more regular members when requested to do so by the Mayor.
32.3
Board Chair and Vice-Chair; Rules of Procedure:
At its first meeting, the Board shall elect a Chair and Vice-Chair. The Board shall also at such meeting adopt rules of procedure to govern proceedings before the Board.
32.4
Duties of Board of Adjustment:
The Board of Adjustment shall have the powers and perform those duties as are provided for in Chapter 211 of the Texas Local Government Code.
The Board shall have the power to hear and decide any special exception which the Board is authorized by ordinance to grant. All administrative remedies must be exhausted through the City Council or other decision-making body having final authority over the matter prior to a hearing by the Board of Adjustment. The Board shall further have the power to authorize upon appeal in specific cases such variance from the terms of the zoning ordinance of the City as will not be contrary to public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.
32.5
Written Application:
Any aggrieved applicant shall make written application to the Board.
32.6
Fee:
The City shall designate an application fee to be paid by the applicant to cover administrative processing costs.
32.7
Jurisdiction:
When, in its judgment, the public convenience and welfare will be substantially served and the appropriate use of the neighboring property will not be substantially or permanently injured, the Board of Adjustment may, in specific cases, after written notice and public hearings, and subject to appropriate conditions and safeguards, authorize or order the following:
A.
Hear and decide appeals where it is alleged there is error on any order, requirement, decision or determination made by an administrative official of the City in the enforcement of this ordinance.
B.
Permit the reconstruction, extension, or enlargement of a building occupied by nonconforming uses, on the lot or tract occupied by such building, provided such reconstruction does not prevent the return of such property to a conforming use.
C.
Permit such variance of height, yard, area, exterior structure, lot coverage, off-street parking and loading regulations that will not be contrary to the public interest and where, because of special conditions, the enforcement of this ordinance or its amendments would result in an unnecessary hardship. 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 district. No variance may be granted if it results in an unnecessary hardship, as herein defined, on another parcel of land.
In order to make a finding of hardship and to grant a variance, the Board of Adjustment must determine that:
1.
The requested variance does not violate the intent of the ordinance or its amendments.
2.
Special conditions of restricted area, shape, topography, or physical features exist that are peculiar to the subject parcels of land and are not applicable to other parcels of land in the same zoning district.
3.
The hardship is in no way the result of the applicant’s own actions.
4.
The interpretation of the provisions of this ordinance or its amendments would deprive the applicant of rights commonly enjoyed by other properties, in the same zoning district, that comply with the same provisions.
D.
No variance may authorize a use other than those permitted in the district for which the variance is sought. Also, an application or request for a variance shall not be heard or granted with regard to any parcel of property or portion thereof upon which a Site Plan, Preliminary Plat or Final Plat, when required by this Ordinance or the Subdivision Ordinance for any parcel of property or portion thereof, has not been finally acted upon by both the Planning and Zoning Commission and, where required, by the City Council. The administrative procedures and requirements of this Ordinance and the Subdivision Ordinance, with regard to both Planning and Zoning Commission and City Council consideration and action, Site Plans, Preliminary Plats, and Final Plats, must be exhausted prior to requesting a variance from the terms of this Ordinance.
32.8
Appeals to the Board of Adjustment can be taken by any person aggrieved by any office, official, board or department of the City concerning a decision in the enforcement of this ordinance. A notice of appeal, specifying the grounds thereof, shall be taken within fifteen (15) days after the decision has been rendered by filing with the officer from whom the appeal is taken and with the Board of Adjustment. The officer from whom the appeal is taken shall forthwith transmit to the Board all papers constituting the record upon which the action appealed was taken. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the Board of Adjustment after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed, otherwise than by a restraining order which may be granted by the Board of Adjustment or by a court of record on application, after notice to the officer from whom the appeal is taken and on due cause shown.
Any person aggrieved by a decision of the Board of Adjustment or a taxpayer or an officer, department, or board of the City may present to a district court, county court or county court at law a petition, duly verified, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition shall be presented to the court within ten (10) days after the filing of the decision in the office of the Board and not thereafter.
The concurring vote of 75 percent of the 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 the Board is required to pass under any ordinance, or to effect any variation from the terms of this ordinance.
(Ordinance 041109 adopted 11/8/04)