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Magnolia City Zoning Code

CHAPTER 12

Variances, Appeals, and Interpretations

Sec. 12-1-1.01 Eligible Applicants
  • Generally. There are certain eligibilities of those who may initiate an application for variances, appeals, and interpretations from the standards, requirements, and terms of this UDC. Parties not listed in Table 12-1-1.01, Eligible Applicants, may petition the City Council to initiate a change, but the City Council is not bound to act on the behalf of the petitioner.
  • Eligibility. The following applicants may make application for variances and appeals to the standards, requirements, and terms of this UDC:

    • Table 12-1-1.01

    Eligible Applicants

    Eligible Applicant

    Variance

    Appeal

    Property Owner

    Yes

    Yes

    Agent or Representative of Property Owner

    Yes

    Yes

    Option Holder

    No

    No

    Aggrieved Party

    No

    Yes

    Administrator

    No

    Yes

    Planning and Zoning Commission

    No

    No

    City Council

    No

    No

    Table 12-1-1.01

    Eligible Applicants

    Eligible Applicant

    Variance

    Appeal

    Property Owner

    Yes

    Yes

    Agent or Representative of Property Owner

    Yes

    Yes

    Option Holder

    No

    No

    Aggrieved Party

    No

    Yes

    Administrator

    No

    Yes

    Planning and Zoning Commission

    No

    No

    City Council

    No

    No

    Effective on: 1/1/1901

    Sec. 12-1-1.02 Variances
  • Generally. The variance process is intended to provide limited relief from the requirements of this UDC in those cases where strict application of a particular requirement will create an unnecessary hardship by preventing the use and development of land in a reasonable manner that is otherwise allowed under this UDC.
  • Exceptions. Some variances are not within the jurisdiction of the Board of Adjustment (BOA), and are therefore, not subject to this Section. These variances are:
    1. Building code variances (variances to the requirements of adopted standardized building codes and amendments to such codes that are adopted by the City), which are subject to the requirements of Chapter 14, Buildings and Building Regulations, Code of Ordinances, City of Magnolia, Texas, or where such Chapter is silent, the adopted standardized code.
    2. Variances from the terms of one or more conditions of approval imposed by a development review body described in Chapter 10, Administrative Bodies. Modifications to conditions of approval shall be sought from the body that granted the approval.
    3. Variances that would have the effect of make existing nonconforming or illegal construction (buildings and structures), site improvements, parking, or landscaping conforming. Nonconforming situations are subject to the requirements of Chapter 9, Nonconformities.
    4. Adjustments to parking requirements which may be authorized by the Commission pursuant to Section 11-2-3.01, Site Plan Requirements.
    5. Variances to the requirements of Article 5-3, Floodplain Management and Flood Damage Prevention, which are handled by the Administrator, in consultation with the City Engineer, as set out in Section 10-2-1.04, Administrator.
    6. Variances to Article 5-4, Storm Water Management, which may be authorized by the Commission.
      1. The Commission will not consider a variance unless specific reasons justifying the variance are provided by the applicant.
      2. The City Engineer will conduct his or her review of the request for a variance within 10 working days from the receipt of the request, after which it will be approved or disapproved by the Commission.
      3. The Commission may impose reasonable conditions, in its judgment, in order to justify a variance while still maintaining the intent, purposes, and objectives of this UDC.
  • Prohibitions.
    1. Variances shall not be used to allow a use in a zoning district in which the use is prohibited or which would constitute a change in district boundaries (variances to Article 2-2, Land Uses).
    2. Variances shall not be used to modify any requirements that are set out in Section 2-2-1.05, Conditional Uses, with respect to an application for conditional use approval.
    3. State and/or Federal laws and/or regulations may not be varied by the City unless such authority is expressly granted to the City.
  • Authority of BOA. Variances are processed by the BOA as a public meeting approval. The BOA may approve, approve with conditions, or deny a variance. The BOA may impose such conditions and restrictions upon the premises benefitted by a variation as may be necessary to comply with the standards established in this Section, to reduce or minimize the effect of such variations upon other property in the neighborhood and to better carry out the general intent of this UDC.
  • Obligation of Applicant. It is the obligation of an applicant, who bears the burden of proof, to present facts about the circumstances which would justify a variance in convincing fashion so that the decision-making authorities (e.g., Board of Adjustment, the Commission, or Administrator) may be satisfied that the request is not injurious from a public health, safety, and general welfare perspective, and that the effect of the variance will not negatively impact the immediate or general environs of the City.
  • Criteria for Issuance. The BOA may grant a variance from the strict application of this UDC if the variance is not prohibited by Subsection C., above, and the BOA makes findings based upon the evidence presented to it in each specific case that all of the following are demonstrated:
    1. The request for the variance is rooted in special conditions of the applicant's property (e.g., physical surroundings, shape, or topographical conditions) that do not generally exist on other properties in the same zoning district;
    2. Due to such special conditions, the literal enforcement of the strict terms of this UDC would cause an unnecessary hardship, as distinguished from a mere inconvenience, on the applicant;
    3. The alleged difficulty or hardship is caused by the UDC and has not been created by any person presently having an interest in the property;
    4. The variation will not serve as a precedent which, in effect, will rewrite a provision of this UDC;
    5. The variance is not contrary to the public interest or injurious to other property or improvements in the neighborhood in which the property is located, in that:
      1. It will not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion in the public streets, or increase the danger of fire, or endanger the public safety, or substantially diminish or impair property value within the neighborhood.
      2. It does not allow applicants to frustrate the application of the UDC for:
        1. Self-imposed hardships;
        2. Hardships based solely on financial considerations, convenience, or inconvenience; or
        3. Conditions that are alleged to be "special," but that are actually common to many properties within the same zoning district.
      3. The variance will not have a detrimental impact upon:
        1. The current or future use of adjacent properties for purposes for which they are zoned;
        2. The economic welfare of the area in which the subject property is located;
        3. Public infrastructure or services; and
        4. Public health, safety, or welfare.
      4. The degree of variance from this UDC is the least that is necessary to grant relief from the identified unnecessary hardship.
      5. The variance is not used to circumvent other procedures and standards of this UDC that could be used for the same or comparable effect (e.g., if alternative development standards, alternative development patterns, or other flexible measures in this UDC are available that would avoid or mitigate hardship without using a variance, then they must be used).
      6. By granting the variance, the spirit of the UDC is observed and substantial justice is done.
  • Criteria for Issuance of Floodplain Variances. Where an application for a variance is within a flood hazard area, the BOA shall seek and consider the recommendations of the Administrator and the City Engineer, together with the following:
    1. The danger that materials may be swept onto other lands to the injury of others;
    2. The danger to life and property due to flooding or erosion damage;
    3. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage;
    4. The importance of the services provided by the proposed facility to the community;
    5. The necessity of the facility to a waterfront location, in the case of a functionally dependent facility;
    6. The availability of alternative locations, not subject to flooding or erosion damage;
    7. The safety of access to the property in times of flood;
    8. The expected heights, velocity, duration, rate of rise, and sediment transport of flood waters; and
    9. The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities.
  • Reports to the City Council. When an application for a variance is denied for failure to meet the requirement of "special conditions", then the BOA shall report to the City Council as to whether it is appropriate and reasonably practicable to formulate a general regulation for such conditions or situations, and amend the UDC accordingly.
  • Notification. All applicants requesting a variance from the provisions of this UDC shall be notified in writing of the final action taken by the authorized governmental authority.
  • Timing. An approved amendment by the City Council to the text or map shall become effective immediately after such adoption. Any amendment to the Official Zoning Map shall be made by the Administrator, or an appointee, within seven days thereafter.
  • Order to Issue Permit. An approved variance shall be accompanied by an order of the BOA to direct the issuance of a permit within 10 business days.
  • Annotation and Recording. Variance approvals shall be recorded by the Administrator at the applicant's expense. Upon recording, the Administrator shall annotate the Official Zoning Map with the case number of the variance.

    • Effective on: 1/1/1901

    Sec. 12-1-1.03 Administrative Appeals
  • Qualification. Appeals to the BOA may be taken by any person aggrieved or by any officer, department, board, or bureau of the City affected by any decision of the Administrator or other staff person set out in Chapter 10, Administrative Bodies.
  • Notice of Appeal. Appeals shall be taken within a reasonable time, as provided by the rules of the BOA, by filing with the officer from whom the appeal is taken, and with the BOA a notice of appeal specifying the grounds for the appeal.
  • Transmission of Records. The officer from whom the appeal is taken shall transmit to the BOA all the papers constituting the record upon which the action appealed from was taken, after all transcript costs and all other costs of appeal are paid by the person or entity taking the appeal, the appellant.
  • Re-Hearing. Requests for re-hearing of an appeal shall not be granted by the BOA unless the applicant has additional relevant evidence to present which was not presented at the first hearing. Only one request for a re-hearing shall be allowed.
  • Stay of Proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the BOA after the notice of appeal shall have been filed, that by reason of facts stated in the certificate, a stay would in his or her opinion, cause imminent peril of life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order that may be granted by the BOA or by a court of record on application or notice to the officer from whom the appeal is taken and on due cause shown.
  • Required Deposit. Any person requesting an appeal for a condition which is in violation at the time of filing of the appeal or which would become in violation during the pendency of the appeal if the appeal had not been filed, must deposit with the permit office a fee in the amount reflected on the fee schedule established by the City Council, as amended from time to time. If the BOA rules against the applicant, the deposit shall be forfeited if the BOA specifically finds that the appeal was for a matter over which the BOA has no authority to act. If, in the opinion of the Administrator or City Attorney, the BOA has no authority to act on the matter requested, the applicant shall be so notified in writing at the time of the application on a form to be provided by the Administrator and signed by the applicant. If the deposit is not forfeited, it shall be returned to the applicant within 10 days after the BOA’s decision on the matter.

    • Effective on: 1/1/1901

    Sec. 12-1-1.04 Appeals to City Council
  • Generally. Appeals from decisions of the Commission are heard by the City Council as provided in Subsection C., below.
  • Jurisdiction; Limitation of Jurisdiction. The City Council may decide appeals of dispositive decisions of the Commission which are made during the processing of applications for approvals pursuant to this UDC. An asserted error in any order, requirement, permit, decision, determination, refusal, or interpretation made by the Commission in interpreting the provisions of this UDC may be appealed to the City Council, provided that:
    1. The action is dispositive with respect to the application or a material part of it; and
    2. The appeal is not used to address or resolve disputed questions of fact or law in connection with an enforcement action, or to seek relief from an enforcement action.
  • Filing of Appeal; Automatic Stay. An appeal may be brought by any person or entity that is aggrieved by the decision appealed, as follows:
    1. A complete application for an appeal, including required fees, shall be filed with the Administrator within 10 days of the date of the decision appealed from. No appeal will be heard if the application is untimely.
    2. The filing of an appeal shall stay all proceedings and further actions by both parties in furtherance of the contested action, unless the Administrator certifies to the City Council that, in his or her opinion by reason of facts stated in the certification, such a stay could cause imminent peril to life and/or property. In such case, proceedings shall not be stayed except by a restraining order granted by the City Council or by a court of law on notice to the Administrator, with due cause shown.
    3. Upon a finding that the application is complete, the Administrator shall schedule the appeal for consideration at a hearing before the City Council. The Administrator shall transmit all applications and other records pertaining to such appeal to the City Council.
  • Hearing.
    1. Upon receiving the application materials from the Administrator, the City Council shall hold a public hearing on the appeal.
    2. The burden of proof shall rest with the appellant.
  • Effect of Appeal. The City Council shall have the power to review the decision de novo, and may grant the appeal, grant the appeal with conditions that modify the order appealed from, or deny the appeal.

    • Effective on: 1/1/1901

    Sec. 12-1-1.05 Requests for Interpretation
  • Generally. It is the intent of this UDC that all questions of interpretation and enforcement shall be first presented to the Administrator and that such questions shall be presented to the BOA only on appeal from the decision of the Administrator and that recourse from the decision of the BOA shall be to the courts as provided by law.
  • Requests for Interpretation. Any person may request an administrative interpretation of the terms, provisions, or requirements of this UDC if the application of the terms, provisions, or requirements is not obvious.
  • Applicability. This Section applies to any request to interpret a provision of this UDC.
  • Application Fee.
    1. It is the intent of the City Council that this UDC be accessible and clear to the residents, business owners, and landowners in the City. As such, City Staff will provide:
      1. General information to residents, business owners, and landowners with respect to the zoning districts that apply to property;
      2. References to the standards that may be applied to individual uses or buildings; and
      3. Requested public records that are related to the administration and enforcement of this UDC.
    2. It is not the intent of the City Council that the Administrator affirmatively evaluates the full development potential of individual properties or resolve other such detailed inquiries about specific properties or issues without a pending application.
    3. Within these guidelines, the Administrator is authorized to waive the application fee for specific inquiries that do not involve material time commitments or copying costs, and to charge an hourly research fee for broad inquires that are likely to involve material time commitments. Such fee shall be according to a fee schedule promulgated by City Council resolution.
  • Process. The interpretation is made by the official charged with administering the provision for which an interpretation is requested (the "responsible official"). The responsible official and the City are not obligated to render an interpretation. The interpretation is not subject to appeal, although related appeals may proceed as provided in this UDC (e.g., appeals of decisions on applications which may be impacted by the interpretation). After an interpretation is issued, the Administrator may propose a text amendment to this UDC to codify the interpretation.
  • Application Requirements.
    1. Applications for interpretations shall be submitted on a form approved by the Administrator.
    2. The applicant shall cite the code provision for which interpretation is sought, a description of a hypothetical situation or scenario to which the application of this UDC is in question, and a statement of the nature of the interpretation sought.
  • Decision. Within 30 days after the application for an interpretation is filed, the responsible official shall make a good faith effort to interpret the provision that is the subject of the application. The responsible official shall respond to the applicant in writing, and shall keep a copy of the response in a record of interpretations. The responsible official may consult with the Administrator in drafting the interpretation.
  • Standards for Interpretations. The interpretation shall be based on:
    1. The materials or scenario posed by the applicant;
    2. The plain and ordinary meaning of the terms that are subject to the application for an interpretation as set out in Webster's Third New International Dictionary or other current and authoritative dictionaries;
    3. The purpose statement for the UDC section that is subject to interpretation;
    4. Any other provision of the Comprehensive Plan, the Code of Ordinances, State law, or Federal law that are related to the same subject matter;
    5. Any technical meanings of the words used in the provision subject to interpretation;
    6. Other interpretations rendered by the City relating to the same or related provisions of this UDC;
    7. The consequences of the interpretation;
    8. The legislative history;
    9. The problem or issue that is addressed by the provision subject to interpretation; and
    10. Sources outside of the UDC provision that provide a related source for the definition, such as technical or professional literature.
  • No Legal Advice. The City does not provide legal advice to applicants or property owners. Private parties, including purchasers, lenders, title insurers, and others are advised to seek legal opinions from their attorneys with respect to specific potential applications of this UDC. No interpretation provided by City staff pursuant to this Section shall be construed as legal advice.
  • No Binding Effect. It is the policy of the City to evaluate applications for development approval comprehensively on their individual merits. Therefore, interpretations may be persuasive to the applicable development review bodies, but they are not binding on the City.
  • Recordkeeping. The Administrator shall keep records of interpretations made pursuant to this Section.

    • Effective on: 1/1/1901