New Fairview City Zoning Code
ARTICLE 5
Administration
§ 34 Administration and Enforcement.
34.1
ADMINISTRATIVE OFFICIAL.
An administrative official designated by the City Council shall administer and enforce this ordinance. Said person may be provided with the assistance of such other persons or consultants as the City Council may direct.
34.2
ENFORCEMENT.
If the administrative official finds that any of the provisions of this ordinance are being violated, he shall notify in writing the person responsible for such violations, indicating the nature of the violation and ordering the action necessary to correct it. He shall order discontinuance of illegal use of land, buildings or structures; removal of illegal buildings or structures or of illegal additions, alterations, or structural changes; discontinuance of any illegal work being done; or shall take any other action authorized by this ordinance to ensure compliance with or to prevent violation of its provisions.
(Ordinance 2010-01-149 adopted 1/19/10)
§ 35 Completion of Buildings Under Construction.
To avoid undue hardship, nothing in this ordinance shall be deemed to require a change in the plans, construction or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this ordinance and upon which actual building construction has been carried on diligently. Actual construction is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner. Where excavation or demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such excavation or demolition or removal shall be deemed to be actual construction, provided that work shall be carried on diligently.
(Ordinance 2010-01-149 adopted 1/19/10)
§ 36 Zoning Board of Adjustment.
36.1
ESTABLISHMENT.
A.
A zoning board of adjustment is hereby established, which shall consist of five regular members and two alternate members, each to be appointed for a term of two years by the City Council. Alternate members shall serve in the absence of regular member(s) in keeping with rules and procedures adopted by the zoning board of adjustment. Members of the zoning board of adjustment may be removed from office by the City Council for cause upon written charges and after public hearing. Vacancies shall be filled by appointment of the City Council for the unexpired term of the member affected. All cases to be heard by the Zoning Board of Adjustment must be heard by a minimum number of four members.
B.
If it is deemed necessary by the City Council, the City Council may serve as the Zoning Board of Adjustment, according to Section 211.008(9) of the Local Government Code.
36.2
TERMS OF OFFICE.
The terms of three of the members shall expire on the first Monday in June of each odd-numbered year, and the terms of two of the members shall expire on the first Monday in June of each even-numbered year. The members of the board shall be identified by place numbers one through five. The odd-numbered places shall expire in the odd-numbered years; the even-numbered places shall expire in the even-numbered years.
36.3
PROCEDURE.
The Zoning Board of Adjustment members shall select a chairman and vice-chairman from among its members.
A.
The board shall hold an organizational meeting on the first Monday in July of each year and shall elect a vice-chair from among its members before proceeding to any other matters of business.
B.
Officers will serve for a term of one year.
C.
Meetings shall be held at the call of the chairman and at such other times as the board may determine.
D.
All meetings shall be open to the public.
E.
The Zoning Board of Adjustment shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be public record and be immediately filed in the office of the board.
F.
The zoning board of adjustment shall adopt rules necessary to the conduct of its affairs and in keeping with the provisions of this ordinance and state statutes.
G.
A quorum for the conduct of business shall consist of four members of the commission.
H.
The members of the commission shall regularly attend meetings and public hearings of the commission and shall serve without compensation. Three consecutive unexcused absences shall constitute grounds for dismissal.
I.
Duties of the officers shall be as follows:
a.
Chairman.
The chairman shall preside at all meetings and may administer oaths and compel the attendance of witnesses, and shall have the same subpoena powers as the municipal court.
b.
Vice-chairman.
The vice-chairman shall assist the chairman in directing the affairs of the Board and act in the absence of the chairman.
36.4
POWERS OF THE BOARD.
The Board of Adjustment shall have the powers and exercise the duties of a Board of Adjustment in accordance with Section 211.008 of the Texas Local Government Code. The Board's jurisdiction shall extend to and include the hearing and deciding of the following types of appeals and applications, and to that end shall have the necessary authority to ensure continuing compliance with its decision. The zoning board of adjustment shall have the following powers and duties:
A.
Interpretation.
To render an interpretation of the zoning regulations or the manner of their application where it is alleged there is error in any order, requirement, decision, or determination made by the administrative official in the administration of this ordinance. In reaching its decisions the Board shall establish firm guidelines for future administrative action on like matters.
B.
Special exceptions.
To hear and decide upon those applications for special exceptions when the same is authorized under this ordinance subject to Board approval. A special exception shall not be granted by the board of adjustment unless it finds:
a.
That the use is specifically permitted under the ordinance; and
b.
That the locations of proposed activities and improvements are clearly defined on the site plan filed by the applicant; and
c.
That the exception will be wholly compatible with the use and permitted development of adjacent properties.
C.
Variances.
To authorize upon appeal in specific cases such variance from the height, yard area, coverage, and parking regulations set forth in this ordinance as may be necessary to secure appropriate development of a parcel of land which differs from other parcels in the district by being of such restricted area, shape, or slope that it cannot be appropriately developed without such modification. A variance from the terms of this ordinance shall not be granted by the zoning board of adjustment unless and until it finds that:
a.
Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same district; and
b.
That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance;
c.
That the special conditions and circumstances do not result from the actions of the applicant;
d.
That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, structures or buildings in the same district.
e.
The board shall further make a finding that the reasons set forth in the application justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure.
f.
The zoning board of adjustment shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this ordinance, and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.
g.
Under no circumstances shall the board grant a variance to allow a use not permissible under the terms of this ordinance in the district involved, or any use expressly or by implication prohibited by the terms of this ordinance in said district.
D.
Nonconforming Uses.
a.
The Board may permit the reconstruction, extension, or enlargement of a building occupied by a nonconforming use on the lot or tract occupied by the building, and the addition of off-street parking or off-street loading to a nonconforming use.
b.
The Board may require the discontinuance of nonconforming uses of land or buildings under any plan whereby the full value of the buildings and facilities can be amortized within a definite period of time, taking into consideration the general character of the neighborhood and the necessity of all property to conform to the regulations of this ordinance. All actions to discontinue a nonconforming use of land or structure shall be taken with due regard to the property rights of the persons affected, when considered in light of the public welfare and the character of the area surrounding the designated nonconforming use and the conservation and preservation of the property.
c.
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.
36.5
APPEALS TO THE BOARD OF ADJUSTMENT.
A.
Interpretation.
Appeals to the zoning board of adjustment concerning interpretation or administration of this ordinance may be taken by any person aggrieved or by any officer, agency, department or commission of the City affected by any decision of the administrative official. Such appeals shall be taken within 10 business days or such lesser period as may be provided by the rules of the board, by filing with the administrative official from whom the appeal is taken, and with the zoning board of adjustment a notice of appeal specifying the grounds for appeal. The administrative official shall forthwith transmit to the board all papers constituting the record upon which the action appealed from was taken.
B.
Stay of proceedings.
An appeal stays all proceedings in furtherance of the action appealed from, unless the administrative official from whom the appeal is taken certifies to the zoning board of adjustment after the notice of appeal is filed with him that, by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the zoning board of adjustment or by a court of record on application, and on due cause shown.
C.
Special Exception Application.
An application for a special exception to use or develop property as specifically authorized in district use regulations or in this section may be filed by any person owning the affected property or by any tenant upon written authorization of the owner. Such application shall be filed with the Board, and a copy thereof with the administrative official.
D.
Form of Appeal or Application.
The appeal or application shall be in such form and contain such information as the Board may require under its rules of procedure. An incomplete appeal or application shall be deemed only to give notice of intent to appeal or apply to the Board, and shall not be reviewed or scheduled for hearing until brought to completion.
E.
Notice of Hearing.
Official written notice of public hearing on every application for a variance or special exception or for an interpretation of regulations applying solely to an individual property shall be sent to all owners of property, or to the person rendering the same for City taxes, affected by such application, located within 200 feet of any property affected thereby, within not less than 10 days before such hearing is held. Such notice shall be served by using the last known address as listed on the City tax roll and depositing the notice, postage paid, in the United States mail. Notice of hearings on requests for interpretation of regulations applying to more than one property and ownership shall be given by means of a general notice as provided below. In addition, a list of items on the agenda to be heard by the Board shall be posted at a public place in City Hall at least 72 hours before the hearing on said items, and a list of agenda items shall be published in a newspaper of general circulation in the City of New Fairview at least twenty-four (24) hours before the hearing at which action will be considered.
36.6
HEARING AND DECISION.
A.
Generally.
The board shall fix a reasonable time for the hearing of appeal, give public notice thereof as well as due notice to the parties in interest, and decide the same within a reasonable time. At the hearing, any party may appear in person or by agent or attorney. Evidence supporting the grant or denial of an appeal shall be submitted only through the administrative official or to the Board in public meeting. An appeal or application may be withdrawn upon written notice of the administrative official, but no appeal shall be withdrawn after posting of hearing notice and prior to board action thereon without formal consent of the Board.
B.
Decision and Voting.
a.
Every decision of the Board shall be based upon findings of fact and every finding of fact shall be supported in the record of proceedings. The enumerated conditions required to exist on any matter upon which the Board is authorized to pass under this ordinance shall be construed as limitations on the power of the Board to act.
b.
Nothing herein contained shall be construed to empower the Board to change the terms of this ordinance, or to effect changes in the zoning districts. The powers of the Board shall be so applied that the terms of this ordinance will be strictly enforced.
c.
In exercising the above-mentioned powers, the zoning board of adjustment may, so long as such action is in conformity with the provisions of Section 211.008, Board of Adjustment through Section 211.013, Conflict with Other Laws, Exceptions, of the Texas Local Government Code, may modify in whole or in part any order, requirement, decision or determination appealed from and may make such order, requirements, decision or determination as ought to be made, and to that end shall have the powers of the administrative official from whom the appeal is taken.
d.
The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of the administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance, or to effect any variation in the application of this ordinance.
C.
Disqualification from voting.
a.
A member shall disqualify himself from voting whenever he finds that he has a personal or monetary interest in the property under appeal, or that he will be directly affected by the decision of the Board.
b.
A member may disqualify himself from voting whenever any applicant, or his agent, has sought to influence the vote of the member on the appeal, other than in the public hearing.
D.
Approval of Request.
a.
In approving any request, the Board of Adjustment may designate such conditions in connection therewith in order to secure substantially the objectives of the regulations or provisions to which such variance is granted and to provide adequately for the maintenance of the integrity and character of the zone in which such permit is granted.
b.
When necessary, the Board of Adjustment may require guarantees, in such form as it deems proper, to insure that conditions designated in connection therewith are being or will be complied with.
c.
Unless a building permit or certificate of occupancy is obtained, appeal shall expire 60 days after the Board's decision unless a greater time is requested in the application and is authorized by the Board. Any approval may be granted one emergency extension of 60 days on written request filed with the Board before expiration of the original approval.
E.
Denial of Request.
No appeal or application that has been denied shall be further considered by the Board under a subsequent request obtained by filing new plans and obtaining of a new decision from the administrative official unless:
F.
Appeals of Zoning Board of Adjustment Action.
Any person or persons, or any board, taxpayer, department, commission or agency of the City aggrieved by any decision of the zoning board of adjustment may seek review by a court of record a petition duly certified, setting forth that such decision is illegal in whole or in part, specifying the grounds of such illegality. Shall petition shall be presented to the court within ten days after the filing of the decision complained of in the office of the Board of Adjustment, and not thereafter.
36.7
AUTHORIZED SPECIAL EXCEPTIONS.
The following privately owned or privately operated uses may be permitted as special exceptions by the Board of Adjustment in the districts indicated below, subject to full and complete compliance with any and all conditions listed, together with such other conditions as the Board may impose for protection of the public health or safety. In addition, provisions for special exceptions listed within the text of this document but not contained in the table herein shall be authorized and enforced with the same authority as those events and listings contained herein.
Special Exception | District Where Permitted |
|---|---|
Shared [parking] of the same off-street parking areas by two or more uses as follows: a. When two or more uses, according to such approved plan, share the same off-street parking area, each may be considered as having provided such shared space individually. b. The land uses and common parking facility must be located in close proximity to one another. c. The land uses must be located not farther from the shared parking than a distance of 300 feet, measured by a straight line from the nearest point of the land on which the use is served is located to the nearest point of the separated off-street parking space. | C and M |
Off-site parking when the following applies: a. Must be located not farther from the use served than a distance of 300 feet, measured by a straight line from the nearest point of the land on which the use is served is located to the nearest point of the separated off-street parking space. b. A written agreement shall be drawn to the satisfaction of the City attorney and executed by all parties concerned assuring the continued availability of the off-site parking facilities for the use they are intended to service. | C and M |
Additional Height for Parking Lot Light Poles | All Districts |
Exceed Illumination of 20 footcandles for Public and Semi-Public Facilities | All Districts |
Permit Laser Source Lights, Searchlights, [sic] | All Districts |
Reduction of required parking between 11% and 50% | C and M |
Antenna facilities which do not meet the requirements of Section 30, Wireless Communication Facilities | See Section 30 |
Additional height over 60 feet | C and M |
Percentage of Masonry Exterior Requirement may be established according to merit | All Districts |
36.8
FEES.
There shall be a fee assessed for each request for a variance to this ordinance, in accordance with the City of New Fairview fee schedule. Costs shall not be allowed against the Board unless it shall appear to the court that the Board acted with gross negligence or in bad faith, or with malice in making the decision appealed.
(Ordinance 2010-01-149 adopted 1/19/10)
§ 37 Duties of City Council.
The duties of the City Council in connection with this ordinance shall not include hearing and deciding questions of interpretation and enforcement that may arise. Under this ordinance the City Council shall have only the duties of considering and adopting or rejecting proposed amendments or the repeal of this ordinance, as provided by law, and, of establishing a schedule of fees and charges as stated in Section 38, Fee Schedule.
(Ordinance 2010-01-149 adopted 1/19/10)
§ 38 Fee Schedule.
The City Council shall establish a schedule of fees, charges and expenses and a collection procedure for the administration, review and processing of applications regarding the issuance of building permits, certificates of occupancy, zoning change requests, plats, zoning board of adjustment appeals and other matters pertaining to this ordinance. The schedule of fees shall be posted in the office of the zoning administrative official, and may be altered or amended only by action of the City Council. Until all applicable fees, charges and expenses have been paid in full, no action shall be taken on any application or appeal.
(Ordinance 2010-01-149 adopted 1/19/10)
§ 39 Amendments.
39.1
GENERALLY.
The regulations, restrictions, and district boundaries created by this ordinance may be amended from time to time by the City Council.
39.2
AMENDMENT INITIATION.
An amendment to this ordinance may be initiated by the City Council on its own motion or an owner or agent having proprietary interest in any property.
39.3
PROCEDURE.
Any amendment to this ordinance shall require public hearings to be held before the City Council.
39.4
NOTICE.
When any amendment relates to a change in classification or boundary of a zoning district, written notice of all public hearings before the City Council on proposed changes and classifications shall be sent to owners of real property lying within 200 feet of the property on which the change in classification is proposed. Such notice will be given not less than ten days before the date set for hearing, to all owners as the ownership appears on the last approved City tax roll. Such notice may be served by depositing the same, properly addressed, postage paid, in the City post office. Notice shall also be posted along with the agenda for all hearings and related meetings in accordance with the applicable laws of the State of Texas.
When an amendment relates to a change of zoning classification or to the text of this ordinance not affecting specific property, notice of the public hearings before the City Council shall be given by publication in a newspaper of general circulation in the City without necessity of notifying property owners by mail. The notice shall state the time and place of the hearing and the nature of the subject to be considered, which time shall not be earlier than 15 days from the date of publication.
39.5
PROTEST.
In case the City Council does not approve the change, or in case of a written protest against such change, filed with the City secretary and signed by the owners of 20 percent or more, either of the area of the lots included in such proposed change, or of those lying within 200 feet of the property on which the change is requested, the amendment shall not be approved except by the favorable vote of three-fourths of all members of the City Council.
39.6
FREQUENCY OF PETITION.
A property owner, lessee, developer or option holder may petition the City Council for an amendment to the text or district map of this ordinance, provided that before any action shall be taken as provided in the section, the party or parties petitioning for amendment shall deposit with the City secretary the fee amount stipulated by resolution of the City Council to cover the approximate cost of this procedure, and under no condition shall said sum or any part thereof be refunded for failure of such proposed amendment to be enacted into law. A party shall not initiate the same action for a zoning amendment or specific use permit affecting the same land more often than once every 12 months.
(Ordinance 2010-01-149 adopted 1/19/10)
§ 40 Violations and Penalties.
40.1
COMPLAINTS REGARDING VIOLATIONS.
Whenever a violation of this ordinance occurs, or is alleged to have occurred, any person may file a written complaint. Such complaint stating fully the causes and basis thereof shall be filed with the administrative official. He shall record properly such complaint, immediately investigate, and take action thereon as provided by this ordinance.
40.2
PENALTIES FOR VIOLATION.
Any person, firm, association of persons, corporation, or other organization who shall violate any provision of this ordinance shall be guilty of a misdemeanor and, upon conviction, shall be fined an amount not to exceed $2,000.00. Each day a violation of this ordinance shall continue shall constitute a separate offense. Nothing herein contained shall prevent the City from taking such other lawful action as is necessary to prevent or remedy any violation.
(Ordinance 2010-01-149 adopted 1/19/10)
§ 41 Severability.
The sections, paragraphs, sentences, clauses, and phrases of this ordinance are severable, and if any phrase, clause, sentence, paragraph, or section of this ordinance shall be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the remaining phrases, clauses, sentences, paragraphs, or sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional or invalid phrase, clause, sentence, paragraph, or section.
(Ordinance 2010-01-149 adopted 1/19/10)