Katy City Zoning Code
§ 22
BOARD OF ADJUSTMENT.
22.1
Creation.
There is hereby created a Board of Adjustment consisting of five (5) regular members and four alternate members who shall serve in the absence of one (1) or more regular members when requested to do so by the mayor. Each member of the Board of Adjustment shall be appointed by the mayor and confirmed by the city council for a term of two (2) years or until their successors are appointed and shall be removable for cause by the mayor and city council upon written charge and after public hearing. Vacancies shall be filled for the unexpired term of any member whose position becomes vacant for any cause in the same manner as the original appointment was made. The members of the Board of Adjustment heretofore existing shall continue to serve as members of the board until the terms for which they were originally appointed expire. Members of the board shall serve without compensation.
22.2
Proceedings.
The Board of Adjustment shall adopt rules to govern its proceedings, provided, however, that such rules are not inconsistent with this ordinance or statutes of the State of Texas. Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine. The chairman, or in his absence, the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. The board shall keep minutes of its proceedings showing the vote of each member upon each question, or, if absent or failing to vote, indicate such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be public record.
22.3
Appeal process.
The appeal shall be accompanied by a processing fee in the following amount:
(1)
$500.00 appeals of any contested decision involving residential or commercial structure.
(2)
$200.00 any review of the appeal beyond the initial review by city personnel either prior to filing or after filing for each review requested.
(3)
$50.00 for a review of appeal made by the owner occupied structure/use made the basis of the appeal.
22.4
Stay of Proceeding.
An appeal shall stay 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 or by a court of record upon application after notice to the officer from whom the appeal is taken and on due cause shown.
22.5
General Powers.
The Board of Adjustment shall have the following powers.
22.5-1
To hear and decide appeals when it is alleged there is an error in any order, requirement, decision or determination made by an administrative official in the enforcement of this ordinance. The board must find the following in order to grant an appeal:
a.
That there is a reasonable difference of interpretation as to the specific intent of the zoning regulations or zoning map.
b.
That the resulting interpretation will not grant a special privilege to one property inconsistent with other properties or uses similarly situated.
c.
The decision of the board must be such as will be in the best interest of the community and consistent with the spirit and interest of the city's zoning laws.
22.5-2
To hear and decide special exceptions to the terms of this ordinance. The term “special exception” shall mean a deviation from the requirements of the Zoning Ordinance, specifically enumerated herein, which shall be granted only in the following instances, and then only when the board finds that such special exception will not adversely affect the value and use of adjacent or neighboring property or be contrary to the best public interest:
a.
To reconstruct, extend or enlarge a building occupied by a nonconforming use on the lot or tract occupied by such building, provided that the reconstruction, extension, or enlargement does not prevent the return of the property to a conforming use.
b.
To deviate yard requirements in the following circumstances:
(1)
An exception from the front yard requirements where the actual front yard setback of an abutting lot does not meet the front yard requirement or a rear yard exception where the actual rear yard setback of any four (4) or more lots in the same block do not meet the rear yard requirements of these regulations.
(2)
A yard exception on corner lots.
(3)
An exception where the existing front yard setbacks of the various lots in the same block are not uniform, so that any one of the existing front yard setbacks shall, for buildings hereafter constructed or extended, be the required minimum front yard depth.
(4)
An exception from the minimum front yard requirements for owner identification signs where a structure existing at the effective date of this ordinance precludes locating a sign in compliance with the setback regulation.
(5)
An exception from a minimum interior side yard setback requirement for owner identification signs for existing businesses which were developed prior to the effective date of this ordinance, where there is no safe place to erect a sign in compliance with the minimum setback requirements. A condition for granting of the exception is that the applicant must demonstrate that the sign shall not screen or obstruct the view of an existing sign, building or outdoor display area.
c.
To waive or reduce off-street parking and loading requirements when the board finds the same are unnecessary for the proposed use of the building or structure for which the special exception request applies.
22.5-3
To authorize upon appeal in specific cases such variance from the terms of this ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of said laws will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done. The term “variance” shall mean a deviation from the literal provisions of the Zoning Ordinance which is granted by the board when strict conformity to the Zoning Ordinance would cause an unnecessary hardship because of circumstances unique to the property on which the variance is granted. Except as otherwise prohibited under subsection 22.6 hereof, the board is empowered to authorize a variance from a requirement of the Zoning Ordinance when the board finds that all of the following conditions have been met:
a.
That the granting of the variance will not be contrary to the public interest;
b.
That literal enforcement of the ordinance will result in unnecessary hardship because of exceptional narrowness, shallowness, shape, topography or other extraordinary or exceptional physical situation unique to the specific piece of property in question. “Unnecessary hardship” shall mean physical hardship relating to the property itself as distinguished from a hardship relating to convenience, financial considerations or caprice, and the hardship must not result from the applicant or property owner's own actions; and
c.
That literal enforcement of the ordinance will result in unnecessary hardship as applied to a structure. The board may consider the following as grounds to determine whether compliance with the ordinance as applied to a structure that is the subject of the appeal would result in an unnecessary hardship:
(1)
the financial cost of compliance is greater than 50 percent of the appraised value of the structure as shown on the most recent appraisal roll certified to the assessor for the municipality under Section 26.01, Tax Code;
(2)
compliance would result in a loss to the lot on which the structure is located of at least 25 percent of the area on which development may physically occur;
(3)
compliance would result in the structure not being in compliance with a requirement of a municipal ordinance, building code, or other requirement;
(4)
compliance would result in the unreasonable encroachment on an adjacent property or easement; or
(5)
the municipality considers the structure to be a nonconforming structure; and
d.
That by granting the variance, the spirit of the ordinance will be observed and substantial justice will be done.
The applicant shall have the burden of proving to the board that the foregoing conditions have been met. |
22.6
Use Variance Prohibited.
No variance shall be granted to permit a use in a zoning district in which that use is prohibited.
22.7
Additional Conditions.
The board is empowered to impose upon any variance or special exception any condition reasonably necessary to protect the public interest and community welfare.
22.8
Revocation or Modification.
A variance or special exception may be revoked or modified for any of the following reasons:
a.
That the variance or special exception was obtained or extended by fraud or deception.
b.
That one (1) or more of the conditions imposed by the board in granting such variance or special exception has not been complied with or has been violated.
c.
That the variance or special exception, although granted in accordance with all requirement[s] hereof, has caused a nuisance or is otherwise detrimental to public health, safety and welfare.
An action to revoke or modify a previously granted variance or special exception may be initiated by order of the city council, the mayor, any member of the board or the person who obtained the variance or special exception. |
The Board of Adjustment shall hear a request for the revocation or modification of a variance or special exception in accordance with the same notification and hearing procedures established for original variances and special exceptions. |
22.9
Notification and Hearing Process.
Any request for an appeal, variance or special exception shall require a public hearing before the board. Notice of said hearing shall be published at least one (1) time in the official newspaper of the City of Katy, at least ten (10) days prior to the day of the hearing. A written notice of the hearing shall be sent to owners of property situated within two hundred (200) feet of the exterior boundary of the property with respect to which such appeal, variance or exception is requested. It shall be sufficient that such written notice is addressed to the owner appearing on the most current tax roll of the city and addressed to such owner at the address stated on said roll. If no owner is stated on the tax roll, or no address appears thereon, the written notice to such property owner shall not be required. Such notice as herein provided shall be in addition to any and all notices required by state law.
22.10
Action of the Board.
The concurring vote of four (4) members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in such ordinance.
22.11
Appeal from Decision of Board.
Any person aggrieved by any decision of the Board of Adjustment, or any officer, department or other board or commission of the city or the city council, may appeal the decision or action of the Board of Adjustment by filing a petition for same in a court of competent jurisdiction, setting forth that such decision is illegal in whole or in part, and specifying the grounds for the alleged illegality. Such petition shall be filed with the court within ten (10) days from the day the board renders its decision, and not thereafter. The time period set forth herein shall be deemed jurisdictional.
22.12
Reapplication.
No application for a variance, special exception, or appeal which has been denied shall be again filed earlier than one (1) year from the date of original denial.
22.13
Validity.
If an application is granted by the board, all permits necessary for the prosecution of the work must be obtained within ninety (90) days and construction completed within the time established by the building code. All previous applications approved by the board for which building permits have not been issued shall be valid only if a building permit is obtained within ninety (90) days after receipt of a written notice of the requirements of this section and construction must be completed within the time limits set forth in the building code. Written notice shall be considered received on the date such notice is mailed to the person, firm or corporation who received the variance addressed to the address of such person, firm or corporation as the same shall appear in the records of the City Planning and Zoning Commission relating to the granting of such application.
(Ordinance 621 adopted 3/24/83; Ordinance 3001 adopted 9/27/21; Ordinance 3014 adopted 1/10/22)