A.

A board of adjustment is hereby created in accordance with the provisions of Vernon's Ann. Civ. St. art. 1011g [V.T.C.A., Local Government Code § 211.008 et seq.]. The board of adjustment shall consist of five members who are residents and taxpayers of the city, each to be appointed by the mayor and approved by the board of commissioners [city commission] for two years and removable for cause by the appointing authority upon written charges and after public hearing. 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. Provided, however, that the board of commissioners [city commission] may by Charter provision or ordinance provide for the appointment of two 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 mayor or city manager, as the case may be. All cases to be heard by the board of adjustment will always be heard by the minimum number of four members. These alternate members, when appointed, shall serve for the same period as the regular members, which is for a term of two years, and any vacancy shall be filled in the same manner and they shall be subject to removal the same as the regular members.

B.

The director of planning or his authorized representative shall be an ex officio member of the zoning board of adjustment without power of vote and as an ex officio member of such board shall set up and maintain a separate file for each application for appeal, special exception and variance received and shall record therein the names and addresses of all persons, firms and corporations to whom notices are mailed, including the date of mailing and the person by whom such notices were delivered to the mailing clerk, post office or mailbox and further keep a record of all notices published as required herein. All records and files herein provided for shall be permanent and official files and records of the city.

C.

Two members of the board must be members of the city planning and zoning commission, provided such appointment shall be for the term of office as commissioner only.

D.

The secretary of the board shall forthwith notify in writing the board of commissioners [city commission], the commission and the city building inspector of each decision, interpretation, special exception and variance granted under the provisions of this ordinance.

E.

The board of adjustment shall annually select one of its members to be the chairman, a vice-chairman to act in the absence of the chairman, and a secretary.

A.

General:

1.

The board shall adopt rules to govern its proceedings, provided, however, that such rules are not inconsistent with this ordinance or state law. 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 vice-chairman, may administer oaths and compel the attendance of witnesses.

2.

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, indicating such fact, and shall keep record of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record.

3.

Appeals to the board may be made by any person aggrieved, or by any municipal officer, department, or board affected by any decision of the director of planning. Such appeal shall be filed with the board by the director of planning within 15 days after the original decision. The appeal shall be accompanied by all papers constituting the record pertaining to such appeal. Formal notice of the appeal shall be issued by the director of planning, such notice to specify the grounds upon which the appeal is made. The board shall set a reasonable time for the hearing of the appeal.

4.

An appeal shall stay all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certified [certifies] to the board, 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 cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board or a court of record on application, on notice to the officer from whom the appeal is taken and on due cause shown.

5.

Fees: Upon notice of appeal being given to the director of planning and before such appeal shall be construed as having been perfected, the applicant must file with such notice of appeal to the board a fee. The board of adjustment, with the concurrence and approval of the board of commissioners [city commission], shall determine and set forth a fee schedule for the purpose of recovering the administrative cost of processing requests and appeals called for by this ordinance. Such fee shall be paid by the applicant and shall not be designed for restricting an applicant's ability to seek a hearing and/or to generate revenue for other than recovery of actual administrative cost incurred by the city. Immediately upon receipt of such application and fee, the director of planning shall note thereon the date of filing, and make a permanent record thereof.

6.

No appeal to the board for the same or related variance on the same piece of property shall be allowed prior to the expiration of six months from a previous ruling by the board on any appeal to such body unless other property in the immediate vicinity has, within the said six-months' period, been changed or acted on by the board or board of commissioners [city commission] so as to alter the facts and conditions on which the previous board action was based. Such change of circumstances shall permit the rehearing of an appeal by the board prior to the expiration of six-months' period, but such conditions shall in no way have any force in law to compel the board, after a hearing, to grant a subsequent appeal. Such subsequent appeal shall be considered entirely on its merits and the peculiar and specific conditions related to the property on which the appeal is brought.

7.

At a public hearing relative to any appeal, any interested party may appear in person or by agent or by attorney. The burden of proof shall be on the applicant to establish the necessary facts to warrant favorable action of the board on any appeal. Any special exception or variance granted or authorized by the board under the provisions of this ordinance shall authorize the issuance of a building permit or a certificate of occupancy, as the case may be, for a period of 90 days from the date of the favorable action of the board unless said board shall have in its action approved a longer period of time and has so shown such specific longer period in the minutes of its action. If the building permit and/or certificate of occupancy shall not have been applied for within said 90-day period or such extended period as the board may have specifically granted, then the special exception or variance shall be deemed to have been waived and all rights thereunder terminated. Such termination and waiver shall be without prejudice to a subsequent appeal and such subsequent appeal shall be subject to the same regulations and requirements for hearing as herein specified for the original appeal.

B.

Actions of the board:

1.

In exercising its powers, the board may, on [in] conformity with the provisions of the statutes of the State of Texas as existing or hereafter amended, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and make such order, requirement, decision or determination as ought to be made and shall have all the powers of the officer from whom the appeal is taken. The board shall have the power to impose reasonable conditions to be complied with by the applicant.

2.

The concurring vote of four 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 this ordinance or to effect any variance in said ordinance.

3.

Any person or persons, jointly or severally aggrieved by any decision of the board, or any taxpayer or officer, department or board of the municipality may present to a court of record (district court) a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of illegality. Such petition shall be presented to the court within ten days after the filing of the decision in the office of the board and not thereafter.

C.

Notice of hearing before the board required:

1.

The board shall hold a public hearing on all appeals made to it and written notice of such public hearing shall be sent to the applicant, all persons who are owners of real property lying within 200 feet of the property on which the appeal is made, and all other persons deemed by the board to be affected thereby.

2.

Such notice shall be given not less than 15 days before the date set for hearing to all such owners who have rendered their said property for city taxes as the ownership appears on the last city tax roll. Such notice may be served by deposition of the same, properly addressed and postage paid, in the U.S. post office.

3.

Notice shall also be given by publishing the same in official publication of the city at least three times and at least 15 days prior to the date set for the hearing, which shall state the time and place of such hearing.

D.

Jurisdiction of the board:

1.

Exceptions and variances distinguished:

a.

A special exception is a permission given by the board properly authorized by this ordinance in specific cases for an applicant to use his property in a manner contrary to the provisions of this ordinance provided such use subserves the general welfare and preserves the community interest.

b.

A variance is an authorization by the board granting relief and doing substantial justice in the use of the applicant's property by a property owner where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship.

2.

Special exceptions:

a.

A special exception may be granted an applicant when the board finds:

(1)

That the granting of such exception will not be injurious or otherwise detrimental to the public health, safety, morals and general welfare of the general public, and

(2)

That the granting of such exception will not be detrimental or injurious to the property or improvements in such zone or neighborhood in which the property is located, and

(3)

That the granting of such exception will be in harmony with the general purpose and intent of this ordinance.

b.

In determining its finding, the board shall take into account the character and use of adjoining buildings and those in the vicinity, the number of persons residing or working in such building or upon such land, traffic conditions in the vicinity, and the conformance of such area to the zoning map and general plan.

c.

The board may, after public hearing and subject to the conditions and safeguards herein contained, authorize special exceptions to this ordinance as follows:

(1)

Permit the enlargement of a nonconforming use only when the enlargement will not prolong the life of the nonconforming use. A specific period of time for the return to conformity can be required.

(2)

Permit the use of a lot or lots in any dwelling district adjacent to any other district, even if separated therefrom by an alley or by a street, for the parking of passenger cars under such safeguards and conditions of the more restricted property, provided no other business use is made of such lot or lots.

(3)

Permit such modification of a yard, lot area or lot width regulation requirements as may be necessary to secure appropriate improvement of a parcel of land where such parcel was separately owned on the effective date of this ordinance, and is not adjacent to another parcel of the same ownership and where such parcel is of such size that it cannot be improved without such modification or of such restricted area that it cannot be appropriately improved without such modification.

(4)

Grant conditional use permits in any zone where such uses are allowed conditionally by the provisions of this ordinance.

(5)

Permit the modification of the requirements for signs.

(6)

May grant a permit for the extension of a use, height, or area regulation into an adjoining district for a distance of not more than 25 feet, where the boundary line of the district divides a lot in single ownership as of the effective date of this ordinance.

d.

In granting any special exception under the provisions of this ordinance, the board may designate such conditions in connection therewith which, in its opinion, will secure substantially the purpose and intent of this ordinance.

3.

Variances:

a.

A variance may be granted to an applicant when the board finds:

(1)

That there are special circumstances or conditions applying to the land or building for which the variance is sought, which circumstances or conditions are peculiar to such land or building and do not apply generally to lands or buildings in the same zone or neighborhood, and that said circumstances or conditions are such that the strict application of the provisions of this ordinance would deprive the applicant of the reasonable use of such land or building; and

(2)

That the granting of such variance will not be detrimental to the public welfare or injurious to the property or improvements in such zone or neighborhood in which the property is located; and

(3)

That the granting of the variance is necessary for the reasonable use of the land or building and that the variance as granted by the board is the minimum variance that will accomplish this purpose; and

(4)

That the literal enforcement and strict application of the provisions of this ordinance will result in an unnecessary hardship inconsistent with the general provisions and intent of this ordinance and that in granting such variance the spirit of the ordinance will be preserved and substantial justice done; and

(5)

In addition to considering the character and use of adjoining buildings and those in the vicinity, the board, in determining its findings, shall take into account the number of persons residing or working in such buildings or upon such land and traffic conditions in the vicinity.

b.

The board may, after public notice and hearing and subject to the conditions and safeguards herein contained, vary or adapt the strict application of any of the terms of this ordinance under the power and authority herein granted and consistent with section 1.91, subsection D.

c.

In granting any variance under the provisions of this ordinance, the board may designate such conditions in connection therewith which, in its opinion, will secure substantially the purpose and intent of this ordinance.

d.

The board may permit the change of occupancy from one nonconforming use to another nonconforming use when the extent of the second nonconforming use is found to be less detrimental to the environment than the first.

e.

The board may permit the enlargement of a nonconforming use only when the enlargement will not prolong the life of the nonconforming use. A specific period of time for the return to conformity can be required.

f.

The board may permit the reconstruction of a nonconforming structure or building on the lot or tract occupied by such building, provided such reconstruction does not, in the judgment of the board, prevent the return of such property to a conforming use or increase the nonconformity of a nonconforming structure.

g.

The board may permit such variance of the front yard, side yard, rear yard, lot width, lot depth, coverage, minimum setback standards, off-street parking or off-street loading regulations where the literal enforcement of the provisions of this ordinance would result in an unnecessary hardship, and where such variance is necessary to permit a specific parcel of land which differs from other parcels of land in the same district by being of such restricted area, shape or slope that it cannot be developed in a manner commensurate with the development permitted upon other parcels of land in the same district. A variation from the standard established by this ordinance shall not be granted to relieve a self-created or personal hardship, nor for financial reason only, nor shall such modification be granted to permit any person a privilege in developing a parcel of land not permitted by this ordinance to other parcels of land in the district.

4.

The board shall hear and decide appeals where it is alleged that there is error on any order, requirement, decision, or determination made by the director of planning in the enforcement of this ordinance.

5.

The board shall interpret the intent of the zoning district map where uncertainty exists because the physical features on the ground vary from those on the zoning districts map and none of the rules of this ordinance set forth in section 1.82 apply.

E.

Appeals from the board of adjustment:

1.

Any person or persons, or any board, taxpayer, department, board or bureau of the city aggrieved by any decision of the board may seek review by a court of record of such decision, in the manner provided by the laws of this state.

2.

Upon presentation of such petition referred to in section 1.91, subsection B3, the court of record may allow a writ of certiorari directed to the board to review such decision of the board and shall prescribe therein the time within which a return thereto must be made and served upon the realtor's attorney, which shall not be less than ten days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decisions appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order.

3.

The board shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

4.

If, upon hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a reference to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

5.

Costs shall not be allowed against the board unless it shall appear to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.

6.

All issues in any proceedings under this section shall have preference over all other civil actions and proceedings.

A.

Intent:

1.

It is the intent of this section that all questions of interpretation and enforcement shall be first presented to the director of planning and that such questions shall be presented to the board only on appeal from the decision of the director of planning, and that recourse from the decisions of the board shall be to the courts as provided by law.

2.

It is further the intent of this section that the duties of the board of commissioners [city commission] in connection with this section shall not include hearing and deciding questions of interpretation and enforcement that may arise. The procedure for deciding such questions shall be as stated in section 1.91 of this article.

B.

Duties: Under this article, the board of commissioners [city commission] shall have only the duties:

1.

Of considering and adopting or rejecting proposed amendments or the repeal of this section, as provided by law;

2.

Of establishing a schedule of fees and charges as stated in subsection B.5. below;

3.

Of appointing members of the board; and

4.

Of hearing appeals regarding recommendations on use permits from the planning and zoning commission. Note: On any conditional use permit application voted on by the board of commissioners and denied, reapplication will not be allowed until one year has elapsed from the date of the board's action.

5.

The planning and zoning commission, with the concurrence and approval of the board of commissioners [city commission], shall determine and set forth a fee schedule for the purpose of recovering the administrative cost of processing requests and the public hearings called for by this section.

6.

On any change of zone application denied by the board of commissioners, reapplication will not be permitted until six months have elapsed after the board's action.

(Ord. No. O-2007-46, 9-4-07)