Pelican Bay City Zoning Code
SECTION 33
ZONING BOARD OF ADJUSTMENT
§ 33.1 Creation, Membership and Procedures.
33.1.1
Zoning Board of Adjustment Established:
A Zoning Board of Adjustment is hereby reestablished in accordance with the provisions of Texas Local Government Code, section 211.008, as amended, regarding the zoning of cities and with the powers and duties as provided in said Code.
33.1.2
Membership:
The Zoning Board of Adjustment shall consist of five (5) members, each to be appointed by the City Council for a term of two (2) years and removable for cause by the appointing authority upon written charges and after public hearing. If a member is absent for three consecutive meetings, or if the member misses more than 50% of the meetings in a calendar year, the member’s office is considered vacant unless the member is sick or has first obtained a leave of absence at a meeting.
Vacancies shall be filled for the unexpired term of any member, whose place becomes vacant for any cause, in the same manner as the original appointment was made. Three (3) members shall serve until January 1 of odd-numbered years, as heretofore appointed, and two (2) members, as heretofore appointed, shall serve until January 1 of even-numbered years, and thereafter each member reappointed or each new appointee shall serve for a full term of two (2) years unless removed as hereinabove provided. The City Council may also appoint four (4) alternate members of the Board who shall serve in the absence of one or more of the regular members when requested to do so by the chairman of the Board, so that all cases to be heard by the Board will always be heard by a minimum number of four (4) members. These alternate members, when appointed, shall serve for the same period as the regular members, which is for a term of two (2) years, and any vacancy shall be filled in the same manner and they shall be subject to removal by the same means and under the same procedures as the regular members.
33.1.3
Hearings:
The hearings of the Board shall be public. The Board shall hear the intervention of any owner of property adjacent to, in the rear of, or across the street from a lot as to which the granting of any permit is pending, and shall also hear any other parties in interest. All hearings are to be heard by at least four (4) members of the Board.
33.1.4
Meetings:
Regular meetings of the Board shall be held at such times as the Board may determine. Special meetings of the Board shall be held at the call of the chairman or at the written request of two regular members of the Board, said request to be submitted to the Chairman.
33.1.5
Rules and Regulations:
The Board 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 immediately filed in the office of the City Secretary and shall be public record. The Board shall act by resolution in which four (4) members must concur. The Board shall adopt from time to time such additional rules and regulations as it may deem necessary to carry into effect the provisions of the ordinance, and shall furnish a copy of the same to the Zoning Administrator and the Building Inspector, all of which rules and regulations shall operate uniformly in all cases. All of its resolutions and orders shall be in accordance therewith.
(Ordinance 180 adopted 5/10/05)
§ 33.2 Powers and Duties of Board.
33.2.1
Appeals Based on Error:
The Board shall have the power to hear and decide appeals where it is alleged there is error of law in any order, requirement, decision or determination made by an administrative official of the city in the enforcement of this ordinance.
33.2.2
Special Exceptions:
The Board shall have the power to hear and decide special exceptions to the terms of this ordinance upon which the Board is required to pass as follows:
33.2.2.1
Permit the erection and use of a building or the use of premises for railroads if such uses are in general conformity with the Master Plan and present no conflict or nuisance to adjacent properties.
33.2.2.2
Permit a public utility or public service or structure in any district, or a public utility or public service building of a ground area and of a height at variance with those provided for in the district in which such public utility or public service building is permitted to be located, when found reasonably necessary for the public health, convenience, safety, or general welfare.
33.2.2.3
Grant a permit for the extension of a use, height, or area regulation into an adjoining district where the boundary line of the district divides a lot in a single ownership on the effective date of this ordinance.
33.2.2.4
Permit the reconstruction of a nonconforming building which has been damaged by explosion, fire, act of God, or the public enemy, to the extent of more than fifty percent (50%) of its fair market value, where the Board finds some compelling necessity requiring a continuance of the nonconforming use and primary purpose of continuing the nonconforming use is not to continue a monopoly.
33.2.2.5
Waive or reduce the parking and loading requirements in any of the districts, whenever the character or use of the building is such as to make unnecessary the full provision of parking or loading facilities, or where such regulations would impose an unreasonable hardship upon the use of the lot, as contrasted with merely granting an advantage or a convenience.
33.2.2.6
Determine whether an industry should be permitted within the M-1 - Light Industrial District and M-2 - Heavy Industrial District because of the methods by which it would be operated and because of its effect upon uses within surrounding zoning districts.
33.2.2.7
Rule on all applications on siting of manufactured homes in districts not so zoned. Approval shall only be allowed in cases of extreme hardship under guidelines established by the Board.
33.2.3
Limitation on Reapplications:
When the Board has denied a proposal, no new applications of similar nature shall be accepted by the Board or scheduled for twelve (12) months after the date of Board denial. Applications which have been withdrawn at or before the Board meeting may be resubmitted at any time for hearing before the Board.
33.2.4
Vote of Four Members Required:
The concurring vote of four members of the Board is necessary to:
(Ordinance 180 adopted 5/10/05)
§ 33.3 Appeals.
33.3.1
Procedure:
Appeals may be taken to and before the Zoning Board of Adjustment by any person aggrieved, or by any officer, department, board or bureau in the city. Such appeal shall be made by filing in the office of the City Secretary a notice of appeal and specifying the grounds thereof. The office or department from which the appeal is taken shall forthwith transmit to the Board all of the papers constituting the record from which the action appealed was taken.
33.3.2
Stay of Proceedings:
An appeal shall stay all proceedings in furtherance of the action appealed from unless the Building Inspector shall certify to the Zoning Board of Adjustment that, by reason of facts in the certificate, a stay would cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted or by a court of equity, after notice to the office [officer] from whom the appeal is taken.
33.3.3
Notice of Hearing on Appeal:
The Board shall fix a reasonable time for the hearing of the appeal or other matter referred to it, and shall mail notices of such hearing to the petitioner and to the owners of property lying within two hundred (200) feet of any point of the lot or portion thereof on which a variation is desired, and to all other persons deemed by the Board to be affected thereby, such owners and persons being determined according to the current tax rolls of the City. Depositing of such written notice in the mail shall be deemed sufficient compliance therewith.
33.3.4
Decision by Board:
The Board shall decide the appeal within a reasonable time. Upon the hearing, any party may appear in person or by agent or attorney. The Board may reverse or affirm wholly or partly or may modify the order, requirements, decision, or determination as in its opinion ought to be made in the premises, and to that end, shall have all powers of the officer or department from whom the appeal is taken.
(Ordinance 180 adopted 5/10/05)
§ 33.4 Variances.
The Board shall have the power 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 this ordinance will result in unnecessary hardship and so that the spirit of this ordinance shall be observed and substantial justice done, including the following:
33.4.1
Permit a variance in the yard requirements of any district where there are unusual and practical difficulties or unnecessary hardships in the carrying out of the provisions due to an irregular shape of the lot or topographical or other conditions, provided such variance will not seriously affect any adjoining property or the general welfare.
33.4.2
Authorize, upon appeal, whenever a property owner can show that a strict application of the terms of this ordinance relating to the construction or alterations of buildings or structures will impose upon him unusual and practical difficulties or particular hardship, such variances from the strict application of the terms of this ordinance as are in harmony with its own general purpose and intent, but only when the Board is satisfied that granting of such variation will not merely serve as a convenience to the applicant, but will alleviate some demonstrable and unusual hardship or difficulty so great as to warrant a variance from the term of this ordinance and at the same time protecting the surrounding property.
33.4.3
The Board shall have the power to hear and decide appeals where it is alleged there is error of law in any order, requirements, decision or determination made by the Building Inspector in the enforcement of this ordinance. Except as otherwise provided herein, the Board shall have, in addition, the following specific powers:
33.4.3.1
To permit the erection and use of a building or the use of premises for railroads if such uses are in general conformance with the Master Plan and present no conflict or nuisance to adjacent properties.
33.4.3.2
To permit a public utility or public service or structure in any district, or a public utility or public service building of a ground area and of a height at variance with those provided for in the district in which such public utility or public service building is permitted to be located, when found reasonably necessary for the public health, convenience, safety, or general welfare.
33.4.3.3
To grant a permit for the extension of a use, height or area regulation into an adjoining district, where the boundary line of the district divides a lot in a single ownership on the effective date of this ordinance.
33.4.3.4
To permit the reconstruction of a nonconforming building which has been damaged by explosion, fire, act of God, or the public enemy, to the extent of more than ninety percent (90%) of its fair market value, where the Board finds some compelling necessity requiring a continuance of the nonconforming use.
33.4.3.5
To waive or reduce the parking and loading requirements in any of the districts, when (i) the character or use of the building is such as to make unnecessary the full provision of parking or loading facilities; or (ii) when such regulations would impose an unreasonable hardship upon the use of the lot. The Board shall not waive or reduce such requirements merely for the purpose of granting an advantage or a convenience.
33.4.4
A written application for variance shall be submitted together with the required fee, accompanied by an accurate legal description, maps, site plans, drawings and any necessary data, demonstrating:
a) | that 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; |
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; and |
e) | no nonconforming use of neighboring lands, structures, or buildings in the same district and no permitted use of lands, structures, or buildings in other districts shall be considered grounds for the issuance of a variance. |
(Ordinance 180 adopted 5/10/05)
§ 33.5 Changes.
The Board shall have no authority to change any provisions of this ordinance and its jurisdiction is limited to hardship and borderline cases which may arise from time to time. The Board may not change the district designation of any land either to a more or less restrictive zone.
It is the intent of this ordinance that all questions of interpretation and enforcement shall be first presented to the administrative official, that such questions shall be presented to the Board only on appeal from the decision of the Building Official and that recourse from the decisions of the Zoning Board of Adjustment shall be to the courts as provided by the laws of the State of Texas.
(Ordinance 180 adopted 5/10/05)