A.

Applicability. The following procedures shall apply to any zoning related plan or application that is required by the city and is submitted in accordance with this zoning ordinance.

B.

Determination of completeness. Every required application shall be subject to a determination of completeness by the responsible official for processing the application.

1.

Acceptance standard. The application shall only be accepted for processing when it is accompanied by all documents required by, and prepared in accordance with, the requirements of this zoning ordinance.

2.

Acceptance procedures.

a.

A determination of completeness shall be made not later than the tenth business day after submittal.

b.

If the submitted application is incomplete, the applicant shall be notified in writing not later than the tenth business day after submittal.

i.

Such notice shall be served by depositing it in the U.S. Postal Service, or by electronic mail transmission, before the tenth business day following submission of the application.

ii.

The notification shall specify the documents or other information needed to complete the application and shall state the date the application will expire if the documents or other information are not provided to the city.

c.

An application shall be deemed complete on the 11th business day after the application has been received if notice is not served in accordance with subsection 6.01.D, expiration of an application due to incompleteness.

d.

If the application is determined to be complete, the application shall be processed as prescribed by this zoning ordinance.

3.

Acceptance shall not constitute compliance. A determination of completeness shall not constitute a determination of compliance with the substantive requirements of this zoning ordinance.

4.

Acceptance shall not guarantee approval. It is not guaranteed that an accepted, complete application will be approved, if after the application is deemed complete it is determined that the application does not comply with this zoning ordinance.

C.

Resubmittal after notification of incompleteness.

1.

If the application is resubmitted after a notification of incompleteness within the time allotted in subsection 6.01.D, expiration of an application due to incompleteness, the application shall be processed upon receipt of the resubmittal.

2.

If the information or documents submitted are not sufficient to enable the decision-maker to apply the criteria for approval, the application may be denied on such grounds.

D.

Expiration of an application due to incompleteness. An application shall automatically expire at the close of business on the 45th calendar day after the application's submittal, if:

1.

The applicant fails to provide documents or other information necessary to comply with the city's technical requirements relating to the form and content of the permit application; and

2.

The city provides to the applicant, not later than the tenth business day after the date the application is filed, written notice that specifies the necessary documents or other information, and the date the application will expire if the documents or other information is not provided; and

3.

The applicant fails to provide the specified documents or other information necessary to comply with the city's requirements relating to the application within the time provided in the notification.

E.

Denial of applications.

1.

If any city official processes an application prior to the application being determined complete, the application shall then be deemed invalid and shall be grounds for denial or revocation of such application.

2.

A typographical error shall not constitute an incomplete application.

3.

The applicant shall be notified of such denial or revocation for an incomplete zoning application in writing.

F.

Submittal of a previously decided application. After the final decision on a specific application by the decision-maker, the same application shall not be submitted again until after six months from the decision-maker's action.

G.

Expiration of projects.

1.

Project shall expire on the fifth anniversary of the date the first application for a permit that was approved by the city was filed if there is no progress towards completion.

2.

Following expiration of a project, any new applications for permits submitted for a project shall be subject to the then existing regulations.

A.

Zoning upon annexation required. The planning and zoning commission and city council shall assign permanent zoning to annexed land.

B.

Annexation precedes zoning.

1.

City council shall adopt the annexation ordinance prior to adoption of an ordinance for zoning.

2.

Proceedings to establish zoning may be undertaken concurrently with annexation procedures (i.e. notified at the same time, public hearings scheduled at the same time as annexation, etc.).

C.

Permanent zoning designation. The planning and zoning commission shall, at its discretion, recommend the permanent zoning of a tract at the time of annexation.

D.

Initial classification restrictions. In an area initially classified as AG agricultural district:

1.

No person shall start or continue any construction of any building or addition without first applying for and obtaining a building permit and/or certificate of occupancy.

2.

No building permit shall be issued other than a permit that will allow the construction of a building permitted in the AG agricultural district, unless and until such territory has been classified as a zoning district other than the AG agricultural district, by the city council in the manner provided by law except as provided in the following:

a.

An application for a building permit for any use other than those allowed in the AG agricultural district shall be made to the director of planning and referred to the planning and zoning commission for consideration and recommendation to the city council.

b.

The planning and zoning commission, in making its recommendation to the city council concerning any such permit, shall take into consideration the appropriate land use for the area and the comprehensive plan.

c.

The city council, after receiving and reviewing the recommendation of the planning and zoning commission, may by majority vote authorize the issuance of a building permit or certificate of occupancy, or may disapprove the application.

A.

Initiation of changes. Any person or corporation having a proprietary interest in any property may petition the city council for a change or amendment to the provisions of this ordinance. The planning and zoning commission may on its own motion or on request from the city council institute study and proposal for changes and amendments in the public interest.

B.

Two types of zoning amendments.

1.

Zoning map amendment (rezoning). A zoning map amendment (rezoning) is a change or modification to the boundaries of any zoning district within the zoning district map.

2.

Zoning text amendment. A zoning text amendment (text amendment) is the change of the text within this zoning ordinance and does not include change or modification to the boundaries of any zoning districts.

C.

Approval authority and report/hearing requirement for zoning amendments.

1.

Revision authority. The city council may, from time to time, amend, supplement, or change by ordinance, the boundaries of the districts (i.e. rezoning) or the regulations herein established (i.e. zoning text amendment) as provided by the state statutes.

2.

Planning commission report. Per V.T.C.A., Local Government Code § 211.007, the planning and zoning commission shall make a preliminary report and hold a public hearing before submitting a final report to the city council. The city council shall not hold a public hearing or take action until it receives the final report of the planning and zoning commission.

D.

Written notice for planning and zoning commission public hearings for a rezoning. The planning and zoning commission shall hold a public hearing on any application for any amendment or change prior to making its recommendation and report to the city council.

1.

Except when the city council prescribes a different notice under V.T.C.A., Local Government Code § 211.007(d), before the tenth day before the planning and zoning commission hearing date, written notice of each public hearing before the planning and zoning commission on a proposed rezoning shall be sent to each owner, as indicated by the most recently approved municipal tax roll, of real property within 200 feet of the property on which the change in classification is proposed. The notice may be served by its deposit in the municipality, properly addressed with postage paid, in the United States mail.

2.

When any such amendment relates to a change of a zoning regulation or to the text of this ordinance, notice of the public hearing of the planning and zoning commission shall be given by publication in a newspaper of general circulation in the city without the necessity of notifying property owners by mail. Before the tenth day before the hearing date, such notice shall be published stating the time and place of such hearing and the nature of the subject to be considered.

E.

Newspaper notice for city council public hearings for any zoning amendment.

1.

A public hearing shall be held by the city council before adopting any proposed amendment, supplement, or change.

2.

Before the 15th day before the date of the city council hearing, notice of the time and place of the hearing for any zoning amendment (i.e. a rezoning or a zoning text amendment) must be published in an official newspaper or a newspaper of general circulation in the city stating the time and place of such hearing. The city council hearing may be conducted as a joint hearing with the planning and zoning commission in accordance with the provisions of V.T.C.A., Local Government Code § 211.007.

F.

City council action.

1.

Super-majority required to overturn planning and zoning commission recommendation. If a proposed amendment, supplement, or change has been recommended to be denied by the planning and zoning commission, the affirmative vote of at least three-fourths of all members of the city council is required to overrule the recommendation.

2.

Protests for rezoning.

a.

If a proposed rezoning is protested in accordance with this subsection, the proposed change must receive the affirmative vote of at least three-fourths of all members of the city council in order to take effect. The protest must be written and signed by the owners of at least 20 percent of either:

i.

The area of the lots or land covered by the proposed change; or

ii.

The area of the lots or land immediately adjoining the area covered by the proposed change and extending 200 feet from that area.

b.

In computing the percentage of land area, the area of streets and alleys shall be included.

G.

Limitations on reapplications. When the city council has denied a proposal, no new applications of like nature shall be accepted by the city or scheduled for hearing by the commission within a period of 12 months of the date of council denial or withdrawal of application.

1.

On receipt of written request by the original applicant stating how conditions have changed substantially in the community since consideration of the prior proposal so as to justify an earlier review of this matter, the planning and zoning commission may waive the mandatory delay period and authorize acceptance of a new application.

H.

Administrative fees. The city council may, by separate ordinance or ordinances, provide for fees to be paid by a petitioner to cover the administrative and advertising costs related to petitions for amendment or change to this ordinance.

I.

Expiration of zoning approvals. Any application for a zoning request that has been approved by the city but that is not subject to an expiration date shall expire 90 days from the effective date of the original application approval, unless one of the following events has occurred by such date:

1.

A subsequent application has been approved and remains in effect; provided, however, that if the subsequent application is for a zoning permit, such subsequent application also is subject to expiration under this subsection; or

2.

A subsequent application has been filed and is pending for decision; or

3.

Substantial construction on the development has occurred as authorized by and consistent with the zoning permit.

A.

Required. No building hereafter erected, converted, or structurally altered shall be used or occupied and no land or building may be changed in use unless or until a certificate of occupancy has been issued by the building official.

B.

Application coincident with building permit. A certificate of occupancy shall be applied for coincident with the application for a building permit and will be issued within ten days after the completion of the erection, alteration, or conversion of such building or land provided such construction or change has been made in complete conformity to the provisions of this zoning ordinance.

C.

Compliance with the law. A certificate of occupancy shall state that the building or proposed use of a building or land complies with all the building and health laws and ordinances and with the provisions of this zoning ordinance. A record of all certificates shall be kept on file in the office of the building official and copies shall be furnished, on request, to any person having a proprietary or tenancy interest in the land or building affected.

D.

Completion of building under construction. A building under construction at the time of passage of this ordinance may be completed and occupied as originally permitted provided that the construction is complete within one year.

A.

Purpose. The purpose of the site plan process is to coordinate and expedite review of proposed improvements to property. Through site plan review, the city and other jurisdictional agencies can effectively apply the standards of this zoning ordinance other applicable development standards to multifamily, mixed-use, and nonresidential development.

B.

Design standards and specifications. All site plans must conform with applicable requirements and regulations found in this zoning ordinance.

C.

Applicability.

1.

The following site plan applications require director of planning approval:

a.

A request for approval of a nonresidential development;

b.

A request for approval of a mixed use development;

c.

A request for approval of multiple-family dwelling development; or

d.

A request for approval of a development related to a specific use permit.

2.

The following site plan applications require planning and zoning commission approval:

a.

All large-scale developments of five acres in size including multiple-family projects, shopping centers, manufactured home parks and multi-building or multi-use projects; or

b.

All development in a planned development district or involving a specific use permit when there is a deviation from the approved concept plan.

3.

The following applications are exempted from requiring site plan approval:

a.

A request for approval to construct a building for agricultural use in an AG agricultural district; or

b.

A request for approval to construct a single family dwelling, single family attached—two-family dwelling or single family attached—townhome.

D.

Site plan application procedure and requirements.

1.

The property owner or authorized agent shall file an application for the approval of a site plan. This application shall include the information listed on the site plan application form, which shall be created and maintained by the director of planning.

2.

The following plans may be required with a site plan application and approval is necessary prior to final authorization for development:

a.

Final plat or replat;

b.

Engineering plans or construction plans;

c.

Traffic impact analysis, if applicable;

d.

Façade plan, if required;

e.

Landscape plans, if required;

f.

Flood study, if required; and

g.

Other approvals as required by ordinance or resolution.

3.

Elements of site plan. A site plan shall be drawn to scale and shall contain the following elements as appropriate:

a.

A plan showing the location, size or dimensions of all public or private streets, driveways or alleys; building sites, lots or plots; areas proposed for dedication of parks, parkways, easements, street widenings other public facilities; points of ingress and egress; topography; specific areas proposed for specific types of land use.

b.

Elevations or perspectives for nonresidential buildings over one story.

c.

For uses or districts requiring screening of adjacent property, a plan showing the location and size of all fencing, berms and plant materials. Construction details, plant sizes, etc., may also be required as necessary to evaluate the adequacy of the screening.

4.

The director of planning and building official shall review the application and shall approve, conditionally approve, or deny a site plan based upon the criteria listed in subsection 6.05.F, approval criteria.

E.

Site plan application procedure and requirements for applications requiring planning and zoning commission approval.

1.

The property owner or authorized agent shall file an application for the approval of a site plan. This application shall follow the procedures identified in subsection 6.05.D, site plan application procedure and requirements.

2.

The director of planning shall review the application and recommend to the planning and zoning commission to approve, conditionally approve, or deny the site plan based upon the criteria listed in subsection 6.05.F, approval criteria.

3.

Revisions involving significant changes to an approved site plan shall be submitted to the commission for review. The determination of whether the changes are significant shall be made by the director of planning. Once the commission has reviewed proposed changes, it may call a public hearing before taking action.

F.

Approval criteria.

1.

Compliance with the zoning ordinance regulations and other applicable regulations and previously approved, valid plans for the property.

2.

Compliance with the following design standards and specifications, as may be amended, is required in addition to the design standards and specification set forth in this zoning ordinance:

a.

Subdivision regulations;

b.

Fire code;

c.

Engineering standards;

d.

Building code; and

e.

Any additional design standards and specifications approved by the city council.

G.

Site plan in effect.

1.

During the time the site plan remains valid, the city shall not apply any additional requirements concerning building placement, streets, drives, parking, landscaping or screening.

2.

Except where authorized by ordinance, a site plan shall not be used to approve a variance or special exception to development regulations.

H.

Site plan lapse.

1.

Two-year effective period. The approval of a site plan shall be effective for a period of two years from the date of filing of the application.

2.

Expired site plans.

a.

Upon expiration of a site plan, the applicant shall be required to submit a new site plan subject to the then existing regulations.

b.

Site plan approval shall expire upon completion of the improvements shown on the plan. Permits must remain valid during the construction process.

c.

Subsequent additional development, site modifications and redevelopment shall be considered a new project subject to the then existing ordinances, laws and regulations of the city.

I.

Revocation of site plan approval. The city council may revoke approval of a site plan if it determines that the conditions of the approval have not been met or if the plan contains, or is based upon, incorrect information or if it is determined that it was obtained using fraud or deceit.

1.

Creation.

a.

The city council, after public hearing and notice to all parties affected and after recommendation from the planning and zoning commission, may authorize the creation of a PD planned development district.

b.

The minimum net acreage for a PD planned development district request shall be five acres unless a specific finding is made by the city council that the establishment of the district is required to implement the comprehensive plan.

2.

Application and PD master plan.

a.

Application.

i.

Application for a PD planned development district shall be completed in the same manner as section 6.01, applicability, completeness, and expiration.

ii.

The PD master plan, which is submitted with the application, shall consist of a PD design statement and a PD concept plan.

b.

PD design statement. The PD design statement shall be a written report containing a minimum of the following elements:

i.

Title of the planned development;

ii.

List of the owners and/or developers;

iii.

Statement of the location and relationship to existing and proposed adjoining land uses;

iv.

Description of the PD concept plan, including an acreage or square foot breakdown of land use areas and densities proposed, a description of building use types, proposed restrictions, and typical site layouts;

v.

Selection of one conventional zoning district as a base zoning district to regulate all uses and development regulations not identified as being modified;

vi.

A list of all applicable special development regulations or modified regulations to the base zoning district, plus a list of requested exemptions from or modifications to applicable development regulations;

vii.

A statement identifying the existing and proposed streets, including right-of-way standards and street design concepts;

viii.

Drainage information, including number of acres in the drainage area and delineation of applicable flood levels;

ix.

A statement of utility lines and services to be installed, including lines that will be dedicated to the city and lines that will remain private;

x.

A description of the proposed sequence of development; and

xi.

Other supporting maps as necessary to meet the submission requirements of zoning ordinance.

c.

PD concept plan.

i.

In establishing a PD planned development district, the city council shall require a PD concept plan of the development. This concept plan shall be approved and filed as a part of the ordinance prior to the issuance of any building permit. The PD concept plan shall be a graphic representation of the development plan for the area of a PD planned development district containing a minimum of the following elements:

a)

The specific categories of land use to be permitted;

b)

Requirements for ingress and egress to the property;

c)

Public streets with adequate right-of-way in conformance with the thoroughfare plan;

d)

Private streets or driveways;

e)

Sidewalks;

f)

Utilities;

g)

Drainage;

h)

Parking space;

i)

Height of building; and

j)

Maximum lot coverage, yards and open spaces, screening walls or fences and other development and protective requirements considered necessary to create a reasonable transition to and protection of the adjacent property.

ii.

The director of planning, planning and zoning commission, or city council may also require the applicant to produce other supporting maps demonstrating how the PD planned development district will meet the goals of this section and the comprehensive plan.

3.

All planned developments to be ordinance amendments.

a.

Every planned development district approved under the provisions of this ordinance shall be considered as an amendment to the ordinance as applicable to the property involved.

b.

In approving the planned development district, the city council may impose conditions relative to the standard of development and such conditions shall be complied with before a certificate of occupancy is issued for the use of the land or any structure which is part to the planned development district and such conditions shall not be construed as conditions precedent to the granting of a certificate of occupancy.

4.

All planned developments to be shown on the zoning district map. All PD planned development district approved in accordance with the provisions of this ordinance in its original form or by subsequent amendments thereto shall be referenced on the zoning district map and a list of such planned development districts together with the category of uses permitted therein shall be maintained by the director of planning.

5.

Amendments to approved planned development districts.

a.

The director of planning may approve a request for a minor amendment to an approved PD planned development district if the PD concept plan is unexpired and the requested change meets the following criteria:

i.

The request does not have the effect of altering the planned development boundaries;

ii.

The request does not have the effect of authorizing uses that are prohibited or are not listed within the ordinance adopting the planned development or amendment thereto or removing uses that are authorized;

iii.

The request does not increase or reduce land allocated to a particular use or uses in a way that is inconsistent with the ordinance adopting the planned development or amendment thereto;

iv.

The request does not increase or decrease the residential density authorized in the planned development by more than ten percent; and

v.

The request would not result in a net increase of impervious coverage or net decrease in park or landscaped area.

b.

If the director of planning finds that the request does not meet the above criteria, the applicant must submit the request to the city council as a PD planned development district request in accordance with the procedures of this subsection.

A.

General.

1.

The city council, after public hearing and proper notice to all parties affected and after recommendations by the planning and zoning commission, may authorize the issuance of specific use permits for the uses indicated by "SUP" in section 3.03, land use table.

2.

Specific use permits are issued to the property, not to the applicant, use, or business.

B.

Considerations.

1.

The planning and zoning commission, in considering and determining its recommendations to the city council on any request for a specific use permit, may require from the applicant plans, information, operating data, and expert evaluation concerning the location and function and characteristics of any building or use proposed.

2.

The planning and zoning commission shall review the particular facts and circumstances of each proposed specific use in terms of the following general standards to ensure that the use:

a.

Will be harmonious with and in accordance with the general objectives, or with any specific objectives of the comprehensive plan;

b.

Will be designed, constructed, operated, and maintained to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and will not change the essential character of the area;

c.

Will have vehicular approaches to the property which shall be so designed as not to create interference with traffic on surrounding thoroughfares;

d.

Will not be hazardous or disturbing to existing or future neighboring uses;

e.

Will not create excessive additional requirements on public facilities or services;

f.

Will not involve uses, activities, processes, materials, equipment, or conditions of operation that will be detrimental to any persons, property, or the general welfare by reason of excessive traffic, noise, smoke, fumes, glare, or odors; and

g.

Will not result in the destruction, loss, or damage of a natural, scenic, or historic feature of major significance.

C.

Conditional requirements. The city council may, in the interest of the public welfare and to ensure compliance with this ordinance, establish conditions of operation, location, arrangement, and construction of any use for which a permit is authorized. In authorizing the location of any of the uses listed as specific use permits, the city council may impose such development standards and safeguards as the conditions and locations indicate important to the welfare and protection of adjacent property from noise, vibration, dust, dirt, smoke, fumes, gas odor, explosion, glare, offensive view, or other undesirable or hazardous conditions.

D.

Zoning map. All specific use permits approved in accordance with the provisions of this ordinance in its original form or as hereafter amended shall be referenced on the zoning district map. A list of such permits shall be maintained in the appendix of this ordinance. A specific use permit is cumulative to the preexisting zoning classification and is also an amendment to the zoning ordinance.

E.

Revocation. A specific use permit may be revoked or modified, after notice and hearing, for any of the following reasons:

1.

The specific use permit was obtained or extended by fraud or deception.

2.

That one or more of the conditions imposed by the permit has not been met or has been violated.

A.

Legal nonconformities.

1.

A nonconformity describes a use, structure, or lot that does not conform to the current standards of this zoning ordinance, but that was in conformance with the standards in place at the time of its inception, and have been rendered nonconforming due to a change in the applicable standards and regulations.

2.

Nonconformities occur in three categories, or combinations thereof:

a.

Nonconforming lots;

b.

Nonconforming structures; and/or

c.

Nonconforming uses.

B.

Nonconforming lots.

1.

Existing platted lots are conforming lots. Any existing lot that was legally platted shall be deemed a conforming lot.

C.

Nonconforming structures.

1.

Expansion. A nonconforming structure may be increased by up to ten percent from the date when the structure became nonconforming. Any expansion shall comply with the requirements of this zoning ordinance.

2.

Partial destruction.

a.

If a nonconforming structure is damaged by 60 percent or less of its appraised value as determined by the appraisal district, then reconstruction may by authorized by the board of adjustment approving a special exception. The square footage of the structure at the time the damage was incurred shall not be increased.

b.

In all cases, any permits required to restore the damaged structure must be obtained within two years of the date of damage. If required permits are not obtained within two years, the structure's nonconforming status is lost.

3.

Complete destruction.

a.

If a nonconforming structure is destroyed or damaged by 60 percent or more of its appraised value as determined by the appraisal district due to man-made or natural causes, then the structure shall not be rebuilt except to conform to the provisions of this zoning ordinances.

b.

If a nonconforming use is located within a nonconforming structure that has been destroyed under this section, the nonconforming use may not be reestablished in a new structure on the same site.

D.

Nonconforming uses.

1.

Expansion.

a.

A nonconforming use located within a building may be extended throughout the existing building, provided:

i.

No structural alteration may be made on or in the building except those required by law to preserve such building in a structurally sound condition, and

ii.

The number of dwelling units or rooms in a residential nonconforming use shall not be increased from the time the use became nonconforming.

b.

A nonconforming use located outdoors may be extended throughout the existing lot, provided:

i.

The use does not extend beyond one lot; and

ii.

Any applicable screening requirements in section 4.03, fences, walls, and screening are met.

2.

Discontinuance.

a.

If a nonconforming use ceases operation for more than six months, then such nonconforming use shall be deemed to be permanently discontinued. For purposes of calculating the six-month period, a use is discontinued upon the occurrence of the first of any of the following events:

i.

On the date when the use of land is physically vacated;

ii.

On the date the use ceases to be actively involved in the sale of merchandise or the provision of services;

iii.

On the date of termination of any lease or contract under which the nonconforming use has occupied the land; or

iv.

On the date a final reading of water or power meters is made by the applicable utility provider(s).

b.

Discontinuance of a nonconforming use requires intent, such as disconnecting utilities.

3.

Change in use. A use may only be changed to a conforming use.

4.

Inquiry. The board of adjustment 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 or nonconforming structure within the city.

E.

Establishment of legal or illegal nonconformities.

1.

Legal nonconformities.

a.

Those uses, structures, or lots that do not conform to current zoning standards, but were legally established prior to the effective date of this zoning ordinance, at which time they were in conformance with applicable standards, shall be considered "legal nonconformities."

b.

Such uses, structures, or lots may be maintained or potentially altered subject to the provisions of this section.

2.

Illegal nonconformities.

a.

Those uses, structures, or lots, which in whole or part are not in conformance with current zoning standards and were not in conformance with applicable standards at the time of their inception shall be considered "illegal nonconformities."

b.

Such uses, structures, or lots and shall be subject to penalties.

A.

City council initiation of amortization case. The city council may, by majority vote, request that the board of adjustment study and decide upon the amortization of a nonconforming use, including a specific date that the use is to be considered amortized.

B.

Board of adjustment decision of amortization case.

1.

The board of adjustment may require the discontinuance of a nonconforming use under any plan whereby the full value of the use's structure and facilities can be amortized within a definite period of time, taking into consideration the general character of the neighborhood and the necessity for all properties to conform to the zoning ordinance.

2.

All actions to discontinue a nonconforming use shall be taken with due regard for the property rights of the persons affected when considered in the light of the public welfare and the character of the area surrounding the nonconforming use and the conservation and preservation of property.

C.

Public hearing process. The board shall issue no order regarding the amortization of a nonconforming use until it has held two public hearings on the matter.

1.

First public hearing. The board shall hold a public hearing to determine whether continued operation of the nonconforming use will have a significant adverse effect on nearby properties. If, based on the evidence presented at the public hearing, the board determines that continued operation of the nonconforming use will have a significant adverse effect on nearby properties, it shall schedule a second public hearing to establish a compliance date for the nonconforming use; otherwise, it shall not. In determining whether the continued operation will have a significant adverse effect on nearby properties, the board shall consider the following factors:

a.

The character of the surrounding neighborhood;

b.

The degree of incompatibility of the use with the zoning district in which it is located;

c.

The manner in which the use is being conducted;

d.

The hours of operation of the use;

e.

The extent to which continued operation of the use may threaten public health or safety;

f.

The environmental impacts of the use's operation, including but not limited to the impacts of noise, glare, dust, and odor;

g.

The extent to which public disturbances and nuisances may be created or perpetuated by continued operation of the use;

h.

The extent to which traffic or parking problems may be created or perpetuated by continued operation of the use;

i.

Any other factors relevant to the issue of whether continued operation of the use will adversely affect nearby properties; and

j.

The extent the nonconforming use impacts the value and marketability of the abutting and surrounding properties or neighborhood.

2.

Second public hearing.

a.

If the board has determined in the first public hearing that the nonconforming use has an adverse effect on nearby properties, it shall hold a second public hearing to set a date for compliance. The board shall, in accordance with the law, provide a compliance date for the nonconforming use under a plan whereby the owner's actual investment in the use before the time that the use became nonconforming can be amortized within a definite time period. The following factors must be considered by the board in determining a reasonable amortization period:

i.

The owner's capital investment in structures, fixed equipment, and other assets (excluding inventory and other assets that may be feasibly transferred to another site) on the property before the time the use became nonconforming;

ii.

Any costs that are directly attributable to the establishment of compliance date, including demolition expenses, relocation expenses, termination of leases, and discharge of mortgages;

iii.

Any return on investment since inception of the use, including net income and depreciation;

iv.

The anticipated annual recovery of investment, including net income and depreciation; and

v.

A reasonable closeout and termination period for the nonconforming use.

b.

If the board, at the first public hearing, requests financial documentation and/or records from the owner relating to the factors listed directly above, the owner shall provide said documents and/or records at least 30 days before the second public hearing. If the owner does not provide said documentation, the board is authorized to make its determination of a compliance date based upon any reasonably available public records as well as public testimony at the hearing. failure by owner to provide the requested financial documents and records shall not prevent the board from setting a compliance date.

D.

Ceasing operations.

1.

If the board votes to issue an order amortizing the nonconforming use and establishes a compliance date, the use must cease all operations by that date and the owner may not continue or reestablish the nonconforming use, including any operation subject to the order of the board, on or after that date.

2.

The board may structure its order so as to phase amortization of portions of the use by certain dates and may establish any conditions upon the use operation related to the factors listed in subsections 6.09.C.1 or 6.09.C.2 above; however, the board may not issue an order that explicitly or in effect provides for only a partial amortization with no date by which the use must entirely cease.

E.

Appeal and extension of order.

1.

If the board approves a motion to amortize the use by setting a compliance date, the decision of the board is final unless appealed to a court of competent jurisdiction no later than ten calendar days following the board's decision.

2.

The board may approve a one-time extension of up to six months after the compliance date following a public hearing and consideration of additional testimony and evidence by the owner, and subject to any conditions the board may place upon the extension to protect public safety and welfare.

A.

Authority. The board may hear and decide appeals where it is alleged there is error on any order, requirement, decision or determination made by an administrative official in the enforcement of this zoning ordinance. The board may change or affirm the action appealed. In making its decision, the board may also impose reasonable conditions on the applicant. (V.T.C.A., Local Government Code § 211.010).

B.

Appeals to the board.

1.

Appeals to the board may be made by any person aggrieved or by any officer, department or board of the municipality affected by the decision of the administrative official. Such petition shall be presented to the board within ten days after the date the decision has been rendered and shall specify the grounds for the appeal. The director of planning shall transmit to the board all the papers constituting the record of the action being appealed.

2.

The board shall fix a reasonable time for the hearing of an appeal, give the owners of the property affected by the appeal notice of the hearing by mail and notify the public of the hearing by publishing a notice in a paper in general circulation in the city at least ten days prior to the date set for the hearing.

C.

Filing procedure.

1.

Such appeal shall be filed within 20 days after the decision has been rendered by the administrative official, by filing with the officer from whom the appeal is taken and with the board a notice of appeal specifying the grounds thereof.

2.

The officer from whom the appeal is taken shall transmit to the board all the papers constituting the record upon which the action appealed from was taken.

D.

Stays. An appeal shall stay all proceedings of the action appealed unless one of the following actions is taken:

1.

The administrative official certifies to the board in writing that a stay would, in his/her opinion, cause immediate peril to life or property. The certificate shall state the reasons for his/her opinion.

2.

A restraining order is granted by the board.

E.

Notice.

1.

The board shall fix a reasonable time for the hearing of an appeal. The following will be considered reasonable notice:

a.

Posting notice in the mail addressed to all owners of real property located within 200 feet of the property on which the appeal is made; and

b.

Publishing notice of the hearing in a newspaper of general circulation in the city.

2.

Both the posted and published notice shall be given at least ten days prior to the date set for the hearing. A party may appear at the appeal hearing in person or by agent or attorney. The board shall decide the appeal at the next meeting for which notice can be provided following the hearing and not later than the 60th day after the date the appeal is filed.

F.

Concurring vote of 75 percent required. The concurring vote of 75 percent of the members of the board is necessary to reverse an order, requirement, decision, or determination of an administrative official.

A.

Authority. The board of adjustment may authorize, in specific cases, a variance from the terms of this zoning ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the zoning ordinance would result in unnecessary hardship, and so that the spirit of the zoning ordinance is observed and substantial justice is done. (V.T.C.A., Local Government Code § 211.009).

B.

Authority to file. Only the owner of the subject property or the property owner's authorized agent may submit an application for a variance.

C.

Conditions for granting a variance. In exercising its power to grant a variance, the board shall make findings and show in its minutes that:

1.

There are special circumstances existing on the property on which the application is made related to the size, shape, area, topography, surrounding conditions, and location that do not apply generally to other property in the same area and the same zoning ordinance. A variance is necessary to permit the applicant the same rights in the use of their property that are presently enjoyed under this zoning ordinance by other properties in the vicinity and zone, but which rights are denied to the property on which the application is made.

2.

The granting of a variance on the specific property will not adversely affect the land use pattern as outlined in the land use plan and will not adversely affect any other feature of the comprehensive plan.

3.

The granting of the variance will not be based upon the recognition of a self-imposed hardship or only the opportunity to make the property more profitable to the applicant and/or owner.

4.

The variance, if granted, will be no material detriment to the public welfare or injury to the use, enjoyment of property in the vicinity.

D.

Additional considerations. The board may consider the following as grounds to determine whether compliance with this zoning ordinance as applied to a structure that is the subject of the appeal would result in unnecessary hardship:

1.

The financial cost of compliance is greater than 50 percent of the appraised value of the structure as shown on the most recent appraisal roll certified to the assessor for the municipality under V.T.C.A., Tax Code § 26.01;

2.

Compliance would result in a loss to the lot on which the structure is located of at least 25 percent of the area on which development may physically occur;

3.

Compliance would result in the structure not being in compliance with a requirement of the city ordinance, building code, or other requirement;

4.

Compliance would result in the unreasonable encroachment on an adjacent property or easement; or

5.

The structure is considered to be a nonconforming structure.

E.

Limitations on variance granting authority.

1.

The board shall have no power to grant a use other than those permitted in the district for which the variance is sought, except as specifically provided for in this zoning ordinance.

2.

The board shall have no power to grant or modify provisions of a specific use permit authorized under section 6.07, specific use permit.

F.

Precedent. The granting of a variance shall not set a precedent.

G.

Concurring vote of 75 percent required. The concurring vote of 75 percent of the members of the board is necessary to grant a variation from the terms of the zoning ordinance.

A.

Authorized special exceptions. The board of adjustment may hear and decide special exceptions to the terms of the zoning ordinance when the ordinance requires the board to do so. (V.T.C.A., Local Government Code § 211.009).

B.

Authority to file. Only the owner of the subject property or the property owner's authorized agent may submit an application for a special exception.

C.

Conditions for granting special exception. When, in the board's judgment, the public convenience and welfare will be substantially served and the appropriate use of the neighboring property will not be substantially injured, the board may, in specific cases and subject to appropriate conditions and safeguards, authorize the following special exceptions to the regulations identified in table 6-1.

Table 6-1. Regulations Eligible for
Special Exception

D.

Precedent. The granting of a special exception shall not set a precedent.

E.

Concurring vote of 75 percent required. The concurring vote of 75 percent of the members of the board is necessary to grant a special exception to the terms of the zoning ordinance.