The Pottsboro City Council (Council) shall serve as the Zoning Board of Adjustment for the purpose of deciding all matters related to special exceptions, granting of variances and appeals of this Ordinance.

The Pottsboro City Secretary 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 where 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 [sic]

Meetings shall be held at the Pottsboro City Hall and shall be open to the public. All cases heard by the Council shall be heard by a quorum of the City Council. Notice of each meeting shall be placed in Pottsboro’s newspaper of record at least fifteen (15) days in advance of the meeting and the agendas for each meeting shall be posted at least seventy-two (72) hours prior to the meeting in a place accessible to the public twenty-four (24) hours a day.

The City Secretary shall keep minutes of the 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 and every decision of the Council shall be in writing and shall contain in full record of the findings of the Council in each case, all of which shall be immediately filed in the office of the City and shall be a public record.

The City Secretary shall forthwith notify, in writing, the Planning and Zoning Commission of each decision, interpretation, special exception and variance considered under the provisions of this Ordinance.

The Council may hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this Ordinance and may also decide any questions involving the interpretation of any of the provisions of this Ordinance including determination of the location of any district boundary, if there is uncertainty in respect thereto.

The Council may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances to the terms of this Ordinance in harmony with its general purpose and intent and in accordance with the general and specific rules herein contained.

The Council may authorize, upon appeal, in specific cases such variance from the terms of the Ordinance that will not be contrary to the public interest, where, owing to such condition, 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.

Appeals and requests for variances to the Council may be taken by a person aggrieved or by an officer, department or Board of the City of Pottsboro affected by any decisions of the administrative officer. Such appeal or request for variance shall be taken within fifteen (15) days time after the decision has been rendered by the administrative officer, by filing with the officer from whom the appeal is taken and with the City Secretary, all the papers constituting the record upon which the action appealed from was taken.

Such notice of appeal properly filed as herein provided, shall stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the Council 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 case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Council or by a court of record on application or notice to the officer from whom the appeal is taken and on due cause shown.

Upon notice of appeal being given to the City Secretary, before such appeal shall be construed as having been perfected the applicant must file with such notice of appeal to the City Secretary, an amount of money estimated by the City Secretary as sufficient to mail and publish all notices required herein, such amount listed in the “Schedule of Fees.”

Application for special exceptions to the terms of this Ordinance shall be made in writing in duplicate on forms provided in the office of the City Secretary by the prospective occupant and/or owner of the property. One such application shall be accompanied by an amount of money listed in the “Schedule of Fees.”

One duplicate original of such application shall be maintained by the City Secretary.

The Council shall hold a public hearing on all special exceptions, granting of variances and appeals; and, written notice of all such public hearings shall be sent by the City Secretary to the applicant and all other persons deemed by the Council to be affected thereby, and all owners of real property lying within two hundred (200) feet of the property on which the special exception, grant of a variance or appeal is proposed, such notice to be given not less than ten (10) days before the date set for the hearing to all such owners who have rendered their said property for school taxes as the ownership appears on the last approved school tax roll. Such notice may be served by depositing the same properly addressed and postage paid in the local post office. Notice shall also be given by publishing the same in a newspaper of general circulation (Pottsboro’s newspaper of record) at least fifteen (15) days prior to the date set for hearing which notice shall state the time and place of such hearing, provided however, all provisions contained herein with respect to the mailing and publishing of notices of hearing shall be deemed sufficient upon substantial compliance with this section, and is to be construed as directory and not mandatory.

Upon the hearing, 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 facts necessary which the Council must find before granting any special exception, variance or appeal as herein contained.

In exercising the powers herein granted, the Council may, in conformity with the provisions of this Ordinance, reverse or affirm wholly or partly or may modify the order, requirement, decision or determination, as ought to be made and to that end shall have all the powers of the officer from whom the appeal is taken.

A 75% approval vote of the Council 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 variation of this Ordinance or grant any special exception hereto.

No appeal, request or application to the Council shall be allowed on the same piece of property prior to the expiration of six (6) months from a ruling of the Council on any appeal, request or application to such body unless other property abutting or adjoining such property shall have within such six (6) months period been altered or changed by a ruling of the Council, in which case such change of circumstances shall permit the allowance of an appeal, request or application but shall in no way have any force in law to compel the Council after a hearing, to grant such subsequent appeal, request or application but such hearing shall be considered on its merits as in all other cases.

Any special exception, variance or appeal authorized or granted by the Council either under the provisions of this Ordinance or under the authority granted to the Council under the statutes of the State of Texas shall authorize the issuance of a building permit, or a certificate of occupancy, as the case may be, for a period of ninety (90) days from the date of the favorable action on the part of the Council, unless said Council in its minutes shall, at the same time, grant a longer period. If the building permit and/or certificate of occupancy shall not have been issued within said ninety (90) day period, or such extended period as the Council may specifically grant, then the special exception, variance or favorable appeal shall be deemed waived and all rights thereunder terminated. Such termination and waiver shall be without prejudice to a subsequent appeal to Council in accordance with the rules and regulations herein contained.

A special exception (a use not allowed in any district) is a permission given by the Council 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 sub-serves the general welfare and preserves the community interest.

A variance, on the other hand, is an authorization by the Council 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.

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

The Council may, after public notice and hearing and subject to the conditions and safeguards herein contained, authorize special exceptions to the terms of this Ordinance as follows:

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

A variance may be granted an applicant when the Council finds:

The Council 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 powers and authority herein granted.

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

Any person or persons, jointly or severally, aggrieved by any decision of the Council, or any taxpayer, or any officer, department or board of the City of Pottsboro may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the ground of the illegality. Such petition shall be presented to the court within ten (10) days after the filing of the decision by the Council.

Upon the presentation of such petition the court may allow a writ of certiorari directed to the Council to review such decision of the Council and shall prescribe therein the time within which a return thereto must be made and served upon the petitioner’s attorney, which shall not be less than ten (10) days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the Council, and on due cause shown, grant a restraining order.

The Council 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 of 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.

If, upon the 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 referee to take such evidence as it may direct and report the same to the court with its 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.

Costs shall not be allowed against the Council 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.

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