Midlothian City Zoning Code
SECTION 10
ZONING BOARD OF ADJUSTMENT
§ 10.01 CREATION.
There is hereby created a Zoning Board of Adjustment to be composed of 5 members and 2 alternate members who shall be residents and qualified voters of the City of Midlothian and shall serve without compensation.
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(Ordinance 2013-24, sec. 10.01, adopted 7/9/13)
§ 10.02 MEMBERS, TERMS OF OFFICE, AND GENERAL RULES.
a)
The Zoning Board of Adjustment shall consist of five 5 regular members and 2 alternate members who shall be appointed by the City Council in accordance with Chapter 211.008–211.011. of the Texas Local Government Code.
1)
The Board Members shall serve for a period of 2 years and until their successors are duly appointed and qualified.
2)
The Alternate Members will be assigned Numbers 1 and 2 for the order in which the Alternate will be called upon to serve in the absence of a regular member.
b)
All members will be appointed by a majority vote of the City Council.
1)
Members may be removed by a majority vote of the members of the City Council, for cause on a written charge after a public hearing.
2)
Board members may be appointed to succeed themselves.
3)
Vacancies shall be filled by an alternate member for the unexpired term of a member whose term becomes vacant.
c)
Meetings of the Board shall be held at the call of the Chairman and at such other times as stated in the Zoning Board of Adjustment’s Rules of Procedure, Resolution 2009-10.
d)
All meetings of the Board shall be open to the public, except when it is consulting with its attorney.
e)
The Board may adopt rules to govern its proceedings, providing, however, that such rules are not inconsistent with the terms of this Ordinance.
f)
4 members of the Board shall constitute a quorum for the conduct of business. All cases to be heard by the Board of Adjustment will always be heard by a minimum number of 4 members.
g)
The applicant bears the burden of proof in establishing the facts justifying a variance.
(Ordinance 2013-24, sec. 10.02, adopted 7/9/13)
§ 10.03 AUTHORITY OF BOARD.
a)
The Zoning Board of Adjustment shall have the authority, subject to the standards established in Sections 211.008 to 211.011 of the Texas Local Government Code and those established within the Zoning Ordinance, to exercise the following powers and perform the following duties:
b)
Hear and decide an appeal that alleges error in an order, requirement, decision, or determination made by an administrative official in the enforcement or interpretation of this Ordinance.
1)
The Board 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 make the correct order, requirement, decision, or determination, and for that purpose the Board has the same authority as the administrative official.
c)
Hear and decide Special Exceptions to the terms of the Zoning Ordinance.
d)
Authorize in specific cases a variance (see Section 10.05) from the terms of this Ordinance if the 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.
e)
The concurring vote of 4 members of the Board is necessary to:
1)
Reverse an order, requirement, decision, interpretation, or determination of an administrative official;
2)
Decide in favor of an applicant on a matter on which the Board is required to review under this Zoning Ordinance; or
3)
Authorize a variation from the terms of this Zoning Ordinance.
(Ordinance 2013-24, sec. 10.03, adopted 7/9/13)
§ 10.04 LIMITATIONS ON AUTHORITY OF BOARD.
a)
The Board may not grant a variance authorizing a use other than those permitted in the district for which the variance is sought.
b)
The Board shall have no power to grant or modify rezones, Zoning or Subdivision Ordinance amendments, Specific Use Permits (SUP) or Planned Developments (PDs).
c)
In the event that a request for a zoning amendment is pending before the Planning and Zoning Commission or the City Council, the Board shall neither hear nor grant any variances with respect to the subject property until final disposition of the zoning amendment.
d)
All administrative remedies available to the applicant shall have been exhausted prior to a hearing by the Zoning Board of Adjustment.
e)
If a proposed site does not conform to the zoning district standards and a variance has been requested, the Planning and Zoning Commission and/or the City Council may defer its actions until the Zoning Board of Adjustment has acted on the variance requests.
(Ordinance 2013-24, sec. 10.04, adopted 7/9/13)
§ 10.05 VARIANCES.
a)
In order to grant a variance from these zoning regulations, the Board of Adjustment must make written findings that an undue hardship exists, using the following criteria:
1)
That literal enforcement of the Zoning Ordinance will create an unnecessary hardship or practical difficulty in the development of the affected property;
2)
That the situation causing the hardship or difficulty is neither self-imposed nor generally affecting all or most properties in the same zoning district;
3)
That the relief sought will not injure the permitted use of adjacent conforming property; and;
4)
That the granting of a variance will be in harmony with the spirit and purpose of these regulations.
b)
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 particular zoning district.
c)
No variance may be granted which results in undue hardship on another parcel of land.
d)
No variance may be granted that will weaken the specific objectives or regulations of the specific zoning district in which the property is located.
e)
No variance may be granted that will not be in harmony with the general purpose and intent of the Zoning Ordinance.
f)
No variance may be granted that will adversely affect the public health, safety or general welfare.
(Ordinance 2013-24, sec. 10.05, adopted 7/9/13)
§ 10.06 VARIANCE PROCEDURES.
a)
Whenever a literal enforcement of the provisions of the Zoning Ordinance will result in unnecessary hardship in the development of the property, an application for a variance may be filed with the Planning Department.
1)
An application for granting a variance by the Zoning Board of Adjustment shall be in writing using forms provided by the City and shall be accompanied by a fee pursuant to the adopted fee schedule.
2)
The application shall include:
i)
a plot plan, drawn to scale, showing all lot dimensions and easements and the locations and dimension of all existing and proposed lot improvements;
ii)
a statement of facts and special conditions why the Zoning Ordinance should not be applied to the property in question and how the standards governing the Board’s action would be satisfied; and
iii)
a statement by the Planning Director or his designated citing the facts and why there are no special conditions for granting the variance.
b)
The Zoning Board of Adjustment shall hold a public hearing no later than 45 days after the date the application for action is filed. Notice of a public hearing shall be provided to all property owners within 200 feet of the affected property 10 days prior to the public hearing and also published in the official local newspaper and the City’s official website 10 days prior to the public hearing.
c)
Before acting on an application for a variance, the Board shall consider:
1)
facts filed with the application;
2)
testimony presented at the public hearing on the application;
3)
Staff’s technical report on the application;
4)
the Board’s findings in its field inspection of the property; and
5)
the Board’s own knowledge of the facts and conditions relative to the application.
d)
The Board may grant the variance, subject to such special terms and conditions as it may require, provided the applicant has demonstrated to the satisfaction of the Board that the conditions exist that are found in Section 10.05.
(Ordinance 2013-24, sec. 10.06, adopted 7/9/13)
§ 10.07 SPECIAL EXCEPTION PROCEDURES.
a)
Whenever a use requires a Special Exception as stated in the Use Table of the Zoning Ordinance, an application may be filed with the Planning Department.
1)
An application for granting a Special Exception by the Zoning Board of Adjustment shall be in writing using forms provided by the City and shall be accompanied by a fee pursuant to the adopted fee schedule.
2)
The application shall include:
i)
A site plan, drawn to scale, showing all lot dimensions, and the location and dimensions of all existing and proposed lot improvements;
ii)
A written statement by the Applicant describing the way in which all conditions prescribed by the Zoning Ordinance and by these Rules have been or will be met; and
iii)
Other matters required by the Zoning Ordinance.
b)
The Zoning Board of Adjustment shall hold a public hearing no later than 45 days after the date the application for action is filed. Notice of a public hearing shall be provided to all property owners within 200 feet of the affected property 10 days prior to the public hearing and also published in the official local newspaper and the City’s official website 10 days prior to the public hearing.
c)
Before action on the application, the Board shall consider:
1)
The facts filed with the application;
2)
The testimony presented at the Public Hearing;
3)
The staff’s technical report on the application; and
4)
The Board’s own knowledge of the facts and conditions relative to the application.
d)
The Board shall decide upon those applications for Special Exception when such use or development is specifically authorized under the Zoning Ordinance subject to the approval of the Board.
e)
In reaching its decision, the Board shall determine that the requested Special Exception will establish only those uses permitted under the Ordinance; that the location of the proposed activities and improvements are clearly defined on the site plan filed by the Applicant; and that the Special Exception will be wholly compatible with the use and permitted development of adjacent properties either as filed or subject to such requirements as the Board finds to be necessary (to protect and maintain the stability of adjacent properties).
f)
The Board may limit the term of any approved Special Exception use to any period of time it deems appropriate under the circumstances.
(Ordinance 2013-24, sec. 10.07, adopted 7/9/13)
§ 10.08 APPEAL PROCEDURES.
a)
Whenever it is alleged that there is an error by the Planning Director in any determination or enforcement of the requirements of the Zoning Ordinance, an appeal for interpretation of the regulations or map designations may be filed with the Planning Department.
b)
An application for Appeal of Administration Decision by the Zoning Board of Adjustment shall be in writing using forms provided by the City and shall be accompanied by a fee pursuant to the adopted fee schedule. The application shall include:
1)
A statement by the applicant describing the way it is alleged the Ordinance should be interpreted or enforced, together with diagrams and charts illustrating the error and the proper application of the map or text provisions of the Ordinance; and,
2)
A statement by the Planning Director giving the reasons for his interpretation or enforcement of the Zoning Ordinance.
c)
The Zoning Board of Adjustment shall hold a public hearing no later than 45 days after the date the application for action is filed. Notice of a public hearing shall be published in the City’s official website 10 days prior to the public hearing.
d)
Before action on an appeal, the Board shall consider:
1)
The facts and statements filed in the application;
2)
The testimony presented at the public hearing;
3)
The staffs report on the appeal;
4)
The Board’s independent investigation of the language of the Ordinance and of related ordinances bearing thereon.
e)
The Board shall make such interpretation as ought to be made provided the applicant has demonstrated to the satisfaction of the Board that one or more of the following conditions exist and that the decision of the Board would be in the interest of the community and would carry out the spirit and intent of the Zoning Ordinance:
1)
That there is reasonable doubt or difference of interpretation as to the specific intent of the regulations or map;
2)
that an appeal of use provisions would clearly permit a use which is in character with the uses enumerated for the various zones and with the objectives of the zone in question; and
3)
that the resulting interpretation will not grant a special privilege to one property inconsistent with other properties or use similarly situated.
4)
In reaching its decision the Board shall establish firm guidelines for future administrative actions on like matters.
f)
The Board shall render an interpretation of those provisions of the Zoning Ordinance where it is alleged that there is an error in any order, requirements, decision or determination made by an Official in the administration of such provisions. In reaching its decision, the Board shall establish firm guidelines for future administrative actions on like matters.
1)
The facts filed with the application;
2)
The testimony presented at the Public Hearing;
3)
The staff’s technical report on the application; and
4)
The Board’s own knowledge of the facts and conditions relative to the application.
(Ordinance 2013-24, sec. 10.08, adopted 7/9/13)
§ 10.09 SUBPOENA AUTHORITY.
The Chairman may issue subpoenas to compel the attendance of witnesses at the request of the Board or a party to the appeal or application. Any party requesting the issuance of a subpoena shall provide the name and address of the witness and a brief statement of the relevance of the witness testimony to the Chairman at least ten days before the scheduled hearing date.
(Ordinance 2013-24, sec. 10.09, adopted 7/9/13)
§ 10.10 SUBMISSION OF EVIDENCE.
The appellant’s or applicant’s evidence supporting the grant or denial of an application or application shall be submitted only through the Executive Secretary or the Board in public meeting.
(Ordinance 2013-24, sec. 10.10, adopted 7/9/13)
§ 10.11 WITHDRAWAL OF APPLICATION.
a)
An appeal or an application may be withdrawn upon written notice to the Executive Secretary, prior to giving public notice of the request.
b)
A request to withdraw the application or application after public notice has been given and prior to Board action shall require formal consent of the Board.
(Ordinance 2013-24, sec. 10.11, adopted 7/9/13)
§ 10.12 APPLICATION AFTER BOARD DENIAL.
When an appeal or application has been denied by the Board of Adjustment, a new application shall not be considered by the Board of Adjustment within 2 years after the date of denial or withdrawal unless the application was denied without prejudice or the new plans materially changed the nature of the case.
(Ordinance 2013-24, sec. 10.12, adopted 7/9/13)
§ 10.13 EXPIRATION OF GRANTED APPLICATION.
a)
If a Building Permit or Certificate of Occupancy is not issued within 180 days after the Board’s decision, such approval shall expire unless a greater specific time is requested at the time of the application and is authorized by the Board.
b)
The Board delegates to the Planning Director the authority to extend the date for expiration of an application for an additional 180-day period on written request. No subsequent application for extension of commencement shall be granted.
c)
The time limit for every granted application shall commence on the day after the Board renders its decision.
(Ordinance 2013-24, sec. 10.13, adopted 7/9/13)
§ 10.14 JUDICIAL REVIEW.
Any person or persons, jointly or severally, aggrieved by a decision of the Zoning Board of Adjustment, or any taxpayer, or any officer, department, or Board of the City may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition must be presented within 10 days after the date the decision is filed in the Planning Department.
(Ordinance 2013-24, sec. 10.14, adopted 7/9/13)