Johnson City City Zoning Code
ARTICLE V
PLANNING AND ZONING COMMISSION AND BOARD OF ADJUSTMENT
§ 5-1 Planning and Zoning Commission composition.
(a)
A Planning and Zoning Commission shall be established in accordance with Chapter 211 of the Texas Local Government Code.
(b)
The Planning and Zoning Commission shall consist of seven members, each appointed by a simple majority vote of the City Council for a term of two years and may be removed from office by the City Council at any time by a simple majority vote of the full City Council. Planning and Zoning Commission members shall adequately fulfill all requirements as listed within the City of Johnson City Boards and Commissions Application. Planning and Zoning Commission members shall serve on a voluntary basis with no compensation.
(c)
Members of the Planning and Zoning Commission may serve simultaneously on any other city board or commission, except for the City Council or the Board of Adjustment.
(d)
Expiration of terms shall be staggered with the first Planning and Zoning Commission so that an overlapping occurs (in the first one-year period, the terms of two members shall expire during that year, and the term of three members shall expire in the second year). Members may be reappointed with no limitation on the number of terms one member may serve.
(e)
A Planning and Zoning Commission member's position is automatically considered vacant if the member is absent for:
(1)
Three consecutive, regular meetings; or
(2)
Four regular meetings (cumulative) during the preceding 12-month period.
Exceptions shall be granted if the member first requests and obtains a written leave of absence from the chairperson of the Planning and Zoning Commission, and absences are due to unusual circumstances beyond the member's control (such as sickness of the member or someone in the member's immediate family). |
(f)
The Planning and Zoning Commission shall appoint a chairman from among the membership of the Planning and Zoning Commission. The Planning and Zoning Commission shall elect from among its membership, a vice-chairperson. The Planning and Zoning Commission may elect from among its membership a secretary. Each officer shall hold office for one year or until replaced. The Planning and Zoning Commission, at its first meeting on or after April, shall select all the positions.
(g)
The Planning and Zoning Commission shall have the power to make rules, regulations and bylaws for its own governance, which shall conform with those set forth by the City Council. Such rules, regulations and bylaws shall be subject to approval by the City Council. Such rules and bylaws shall include, among other items, provisions for the following:
(1)
Regular and special meetings (other than executive sessions);
(2)
A record of its proceedings, to be open for inspection by the public;
(3)
Reporting to the City Council regularly;
(4)
Reviewing the comprehensive plan regularly; and
(5)
Submitting meeting minutes to the City Council in a timely manner.
(Ordinance 16-0303 adopted 2/1/16; Ordinance 16-0401, sec. II.B, adopted 4/5/16)
§ 5-2 Planning and Zoning Commission voting procedures.
(a)
The Planning and Zoning Commission will follow the parliamentary procedure adopted by the City Council, such as Robert's Rules of Order, Newly Revised, and procedures shall not be in conflict with the laws applicable to the Planning and Zoning Commission (Refer to Chapters 171 and 211 of the Texas Local Government Code, and any applicable city ethics policies.)
(b)
The Planning and Zoning Commission shall have the power to make the rules, regulations and bylaws for its own governance, consistent with state law and rules promulgated by the City Council.
(c)
A quorum shall consist of a majority of members of the Planning and Zoning Commission. Motions shall carry with a simple majority vote.
(d)
All Planning and Zoning Commission members, including the chairperson, shall be entitled to one vote each upon any question. Voting procedures shall be in accordance with the parliamentary procedures adopted by the Planning and Zoning Commission, with reference to Robert's Rules of Order. Refer to ordinance [chapter] 171 of the Texas Local Government Code and any applicable city ethics policies or regulations.
(Ordinance 16-0303 adopted 2/1/16)
§ 5-3 Planning and Zoning Commission conflict of interest.
(a)
A Planning and Zoning Commission member shall not vote or participate in any deliberations regarding a matter before the Planning and Zoning Commission if the member has any substantial interest in any tract within 200 feet of the property in question.
(b)
The Planning and Zoning Commission member is considered to have a substantial interest if the Planning and Zoning Commission member is related within the first degree of consanguinity (blood or adoption) or affinity (marriage) to a person who has a substantial interest.
(c)
In any case where the question of a member's interest is raised, the Planning and Zoning Commission chairperson shall rule on whether the member shall be disqualified.
(d)
Under this section, a substantial interest exists in the following situations:
(1)
The Planning and Zoning Commission member has an equitable or legal ownership interest in a tract with a fair market value of $2,500.00 or more;
(2)
The Planning and Zoning Commission member acts as a developer of the tract; or
(3)
The Planning and Zoning Commission member receives in a calendar year funds exceeds [exceeding] ten percent (10%) of the Planning and Zoning Commission member's gross annual income for the previous year from a business that:
(Ordinance 16-0303 adopted 2/1/16)
§ 5-4 Planning and Zoning Commission meetings.
(a)
The Planning and Zoning Commission shall meet at City Hall or in some other specified location as may be designated by the chairperson, and at such intervals as may be necessary to orderly and properly transact the business of the Planning and Zoning Commission.
(b)
The members of the Planning and Zoning Commission shall regularly attend meetings and public hearings of the Planning and Zoning Commission.
(c)
Planning and Zoning Commission members shall serve without compensation, and shall not hold any other office within the city, or serve as an employee of the city while serving on the Planning and Zoning Commission.
(d)
Meetings of the Planning and Zoning Commission shall be held at least once a month at the call of the chairperson or secretary, and at such other times as the Planning and Zoning Commission may determine. If there have been no applications filed for review by the Planning and Zoning Commission, the city administrator or city secretary shall notify the chairperson and no meeting shall be required for that month.
(e)
Meetings shall be conducted in accordance with the Texas Open Meetings Act. Refer to Chapter 551 of the Texas Government Code.
(f)
Whenever the City Council and the Planning and Zoning Commission are required by the laws of the State of Texas to conduct public hearings in matters pertaining to planning, zoning or subdividing property, and at other times when it is in the best interest of the city to do so, the City Council and the Planning and Zoning Commission are hereby authorized, after published notice as required by law, to hold joint meetings and to conduct joint public hearings.
(Ordinance 16-0303 adopted 2/1/16)
§ 5-5 Planning and Zoning Commission powers and duties.
(a)
The Planning and Zoning Commission shall have all the rights, powers, privileges and authority authorized and granted by the City Council and through the statutes of the State of Texas authorizing and granting cities the power of zoning and subdivision regulation as found in Chapters 211 and 212 of the Texas Local Government Code, as may be amended.
(b)
The Planning and Zoning Commission shall be an advisory body and adjunct to the City Council, and shall make recommendations regarding amendments to the comprehensive plan, changes of zoning, zoning ordinance amendments, and zoning to be given to newly annexed areas, and shall make recommendations regarding the approval of plats of subdivisions as may be submitted to it for review and other planning related matters delegated to the Planning and Zoning Commission by the City Council and shall also perform the duties and functions contained in the City's Historic Preservation Ordinance.
(c)
When, in its judgment, the public convenience and welfare will be substantially served and the appropriate use of neighboring property will not be substantially or permanently injured, the Planning and Zoning Commission may, in specific cases, after written notice and public hearing, and subject to appropriate conditions and safeguards, authorize or order the following:
(1)
Make recommendations to City Council for the reconstruction, extension or enlargement of a building occupied by nonconforming uses, on a lot or tract occupied by such building, provided such reconstruction does not prevent the return of such property to a conforming use.
(2)
Make recommendations to City Council for the extension of or enlargement of a building occupied by nonconforming uses, under such conditions as the Planning and Zoning Commission may deem necessary in order to protect other property in the neighborhood, provided such extension or enlargements:
(A)
Does not prevent the return of such property to a conforming use;
(B)
Does not exceed 25 percent (25%) of the ground area of the existing building;
(C)
Will not prevent compliance with applicable side yard requirements; and
(D)
Does not allow such building to be used for any use which would normally be restricted to a more restrictive classification.
(3)
Make recommendations to City Council for the discontinuance of nonconforming uses of land or structure under any plan whereby the full value of the structure and facilities can be amortized within a definite period of time, taking into consideration the general character of the neighborhood and the necessity for all property to conform to the regulations of this ordinance. All action to discontinue a nonconforming use of land or structure shall be taken with due regard for the property rights of the persons affected when considered in the light of the public welfare and the character of the area surrounding the designated nonconforming use and the conservation and preservation of property. The board shall, from time to time, on its own motion, or upon cause presented by interested property owners, inquire into the existence, continuation or maintenance of any nonconforming use within the city.
(d)
Statutes of the State of Texas authorizing and empowering cities to regulate the platting and recording of subdivisions or additions within the city's corporate limits and establishing ETJ are hereby adopted. The Planning and Zoning Commission, acting through its duly authorized officials, shall have all the rights, powers, privileges and authority authorized and granted by and through said statutes and any lawfully executed agreements by the city pertaining to regulation of subdivisions in the city limits and ETJ.
(Ordinance 16-0303 adopted 2/1/16)
§ 5-6 Board of Adjustment creation.
There is hereby created a Board of Adjustment, sometimes referred to herein as the “BOA,” for the purpose of making special exceptions to the terms of this ordinance that are consistent with the general purpose and intent of this ordinance. The BOA may grant special exceptions, in appropriate cases, that are subject to certain conditions and safeguards. The BOA may be composed of the members of the City Council of the City of Johnson City as authorized by Section 211.008(g) of the Texas Local Government Code, until such time as separate membership is appointed by the City Council.
(Ordinance 16-0303 adopted 2/1/16)
§ 5-7 Board of Adjustment membership.
(a)
The City Council shall act as the BOA.
(b)
The City Council shall appoint a chairperson for the BOA, who shall serve a one-year term of office.
(c)
The BOA shall elect a vice-chairperson from among its membership who shall serve a one-year term of office.
(d)
The BOA shall designate a secretary to the BOA who shall keep minutes of all meetings held by the BOA and serve a one-year term of office.
(Ordinance 16-0303 adopted 2/1/16)
§ 5-8 Board of Adjustment meetings.
(a)
Meetings of the BOA shall be held at the call of the chairperson or secretary and at such other times as the BOA may determine. All meetings of the BOA shall be open to the public, except as allowed by law. All cases to be heard by the BOA shall always be heard by at least four of the members.
(b)
When meeting as the Board of Adjustment, the BOA cannot function as the City Council. While BOA hearings may be held on the same day as City Council meetings, BOA hearings must be clearly identified as separate from City Council hearings.
(c)
BOA meetings shall be conducted in accordance with Chapter 551 of the Texas Government Code.
(Ordinance 16-0303 adopted 2/1/16)
§ 5-9 Board of Adjustment authority.
(a)
The BOA shall have the authority, granted under the Texas Local Government Code 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 ordinance;
(2)
Authorize, in specific cases, a special exception-variance from the terms of this ordinance if the special exception-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; and
(b)
The concurring vote of at least 75 percent (75%, or 4 of 5) of the full BOA is necessary to:
(Ordinance 16-0303 adopted 2/1/16)
§ 5-10 Board of Adjustment conflict of interest.
(a)
A member shall not vote or participate in any deliberations regarding a matter before the BOA if the member has any personal interest in the property in question, whether such interest is direct, indirect, financial or otherwise. In any case where the question of a member's interest is raised, the chairman shall rule on whether the member shall be disqualified.
(b)
A BOA member shall not vote or participate in any deliberations regarding a matter before the BOA if the member has any substantial interest in any tract within 200 feet of the property in question.
(c)
The BOA member is considered to have a substantial interest if the BOA member is related within the first degree of consanguinity (blood or adoption) or affinity (marriage) to a person who has a substantial interest.
(d)
In any case where the question of a member's interest is raised, the BOA chairperson shall rule on whether the member shall be disqualified.
(e)
Under this section, a substantial interest exists in the following situations:
(1)
The BOA member has an equitable or legal ownership interest in a tract with a fair market value of $2,500.00 or more;
(2)
The BOA member acts as a developer of the tract; or
(3)
The BOA member receives in a calendar year funds exceeds [exceeding] ten percent (10%) of the BOA member's gross annual income for the previous year from a business that:
(Ordinance 16-0303 adopted 2/1/16)
§ 5-11 Board of Adjustment authority limitations.
(a)
The BOA may not grant a special exception authorizing a use other than those permitted in the district for which the special exception is sought, except as provided below.
(b)
In the event that a written request for a zoning amendment is pending before the Planning and Zoning Commission or the City Council, the BOA shall neither hear nor grant any special exceptions with respect to the subject property until final disposition of the zoning amendment.
(Ordinance 16-0303 adopted 2/1/16)
§ 5-12 Special exceptions, also Variances.
(a)
There shall be a presumption against special exceptions-variances.
(b)
The BOA may authorize a special exception from these regulations when, in its opinion, undue hardship will result from requiring strict compliance.
(c)
In granting a special exception, the BOA may prescribe conditions that it deems necessary to preserve the public interest. Violation of any such condition, limitation or safeguard shall constitute a violation of this ordinance.
(d)
In making the findings hereinbelow required, the BOA 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 special exception will have upon traffic conditions and upon the public health, safety, convenience and welfare of the community.
(Ordinance 16-0303 adopted 2/1/16)
§ 5-13 Conditions for special exception.
(a)
No special exception shall be granted without first having given public notice and having held a public hearing on the written special exception request in accordance with this ordinance.
(b)
No special exception shall be granted unless the BOA finds that:
(1)
There are special circumstances or conditions affecting the land involved such that the literal enforcement of the provisions of this ordinance would deprive the applicant of the reasonable use of the land; and
(2)
The special exception is necessary for the preservation and enjoyment of a substantial property right of the applicant; and
(3)
The granting of the special exception will not be detrimental to the public health, safety or welfare, or injurious to other property within the area; and
(4)
The granting of the special exception constitutes a minimal departure from this ordinance; and
(5)
The subject circumstances or conditions giving rise to the alleged hardship are not self-imposed, are not based solely on economic gain or loss, and do not generally affect most properties in the vicinity of the property; and
(c)
Such findings of the BOA, together with the specific facts upon which such findings are based, shall be incorporated into the official minutes of the BOA meeting at which such special exception is granted.
(Ordinance 16-0303 adopted 2/1/16)
§ 5-14 Burden on applicant.
The applicant bears the burden of proof in establishing the facts that may justify a special exception.
(Ordinance 16-0303 adopted 2/1/16)
§ 5-15 Special exceptions for nonconforming uses.
(a)
Upon written request of the property owner, the BOA may grant special exceptions to the provisions of Section 4-4 (Nonconforming uses), 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; or
(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.
(b)
In granting special exceptions to nonconforming uses, the BOA may impose such conditions as are necessary to protect adjacent property owners and to ensure the public health, safety and general welfare. Examples of possible conditions include, 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.
(Ordinance 16-0303 adopted 2/1/16)
§ 5-16 Special exception hearing procedures.
(a)
Application and fee.
An application for a special exception 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)
Administrative report by the city.
The city administrator or designated city representative shall visit the site where the proposed special exception will apply and the surrounding area, and shall report findings to the BOA.
(c)
Public hearings.
The BOA shall hold a public hearing for consideration of the written special exception request no later than 45 days after the date the application for action, or an appeal, is filed.
(d)
Notice.
Notice of the hearing must be published in the city's official newspaper no more than 30 nor less than 15 days prior to the date of the hearing. Notice of the hearing shall also be provided to all property owners within 200 feet of the affected property no more than 30 nor less than 15 days prior to the public hearing. Weather resistant signs shall be erected on the property under application for the purposes of advertising the special exception request.
(1)
The signs shall be provided by the city.
(2)
Signs placed on the property involved must be within ten feet of any property line paralleling any established or proposed street, and must be visible from that street.
(3)
All required signs shall remain on the property until final disposition of the special exception request is determined.
(Ordinance 16-0303 adopted 2/1/16)
§ 5-17 Appeals to the Board of Adjustment.
(a)
The appellant must file with the BOA and the official from whom the appeal is taken a written notice of appeal specifying the grounds for the appeal.
(b)
The appeal must be filed within 60 days after the decision has been rendered.
(c)
Upon receiving the notice, the official from whom the appeal is taken shall immediately transmit to the BOA all papers constituting the record of action that is appealed.
(d)
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 BOA facts supporting the official's opinion that a stay would cause imminent peril to life or property.
(e)
The appellant party may appear at the appeal hearing in person, by agent or attorney, or in abstentia.
(f)
The BOA shall decide the appeal within four 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.
(g)
The BOA 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.
(h)
A member or members of the BOA may not bring an appeal on behalf of a property owner, other than himself/herself, to the BOA. An appeal must be requested by the owner of the property being considered.
(Ordinance 16-0303 adopted 2/1/16)
§ 5-18 Judicial review.
All decisions of the BOA are final and binding. Any person or persons, jointly or severally, aggrieved by any decision of the Board or any taxpayer, or any officer, department, or board of the city may present, within ten days of the date the BOA decision is filed in the board's office, a petition to a court of competent jurisdiction for review in accordance with Chapter 211 of the Texas Local Government Code, as amended.
(Ordinance 16-0303 adopted 2/1/16)