There is hereby created a Board of Adjustment consisting of five members who are citizens of the City and who are not members of the City Council or the Planning & Zoning Commission, and who shall be appointed as described in chapter 2, article IV, section 2-87. Positions shall exist for a term of two years, beginning on October 1 of each odd numbered year and ending on May 31 of the next succeeding odd-numbered year and continuing thereafter. Board members may be removable for cause by the City Council upon a written charge and after public hearing. The City Council shall confirm four alternate members of the Board of Adjustment who shall serve in the absence of one or more of the regular members when requested to do so by the Mayor. All cases to be heard by the Board of Adjustment will always be heard by a minimum number of four members. All alternate members, when appointed, shall serve for the duration of the same term defined in this section for the regular members, and any vacancy shall be filled in the same manner and shall be subject to removal as the regular members.

(Ord. No. 0-2016-008, § I, 7-25-2016; Ord. No. O-2021-014, § I, 1-24-2022)

The Board of Adjustment shall adopt rules of procedure in accordance with the provisions of this section. Meetings of the Board of Adjustment shall be held at the call of the Chairperson, who shall be selected by the Board at its June meeting each year, and at such other times as the Board of Adjustment may determine. Such Chairperson, or in their absence the Acting Chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the Board of Adjustment shall be open to the public. The Board of Adjustment shall keep minutes to 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, findings, and other official actions, all of which shall be immediately filed in the office of the City and shall be a public record.

(Ord. No. 0-2016-008, § I, 7-25-2016; Ord. No. O-2021-014, § I, 1-24-2022)

The Board of Adjustment shall have the following powers:

(1)

To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official of the City in the enforcement of this chapter.

(2)

To authorize upon appeal a variance from the terms of this chapter that shall not be contrary to the public interest and, where, due to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship, and so that the spirit of this chapter shall be observed and substantial justice done.

(3)

To authorize special exceptions, in accordance with section 36-132, to a zoning standard applicable to particular types of development within any zoning district, which is consistent with the overall intent of the zoning regulations and for which express standards are prescribed, but that requires additional review to determine whether the development with the modification is compatible with adjoining land uses and the character of the neighborhood in which the development is proposed.

(4)

To hear and decide other matters authorized by the City Council.

(Ord. No. 0-2016-008, § I, 7-25-2016; Ord. No. O-2021-014, § I, 1-24-2022)

(a)

Any of the following persons may appeal to the Board of Adjustment a decision made by an administrative official that is not related to a specific application, address, or project under chapter 36 of this Code:

(1)

A person aggrieved by the decision; or

(2)

Any officer, department, board, or bureau of the City affected by the decision.

(b)

Any of the following persons may appeal to the Board of Adjustment a decision made by an administrative official that is related to a specific application, address, or project under chapter 36 of the Code:

(1)

A person who filed the application that is the subject of the decision; or

(2)

A person who is the owner or representative of the owner of the property that is the subject of the decision; or

(3)

Any person who is aggrieved by the decision and is the owner of real property within 200 feet of the property that is the subject of the decision; or

(4)

Any officer, department, or board of the city affected by the decision.

(c)

Such appeal shall be filed not later than the 20th day after an original decision, order, requirement, or determination has been rendered, as provided by the rules of procedure of the Board of Adjustment, by filing in writing with the administrative official from whom the appeal is taken and with the Board of Adjustment a notice of appeal specifying the grounds thereof. The administrative official from whom the appeal is taken shall forthwith transmit to the Board of Adjustment all papers constituting the record of the action that is appealed.

(Ord. No. 0-2016-008, § I, 7-25-2016; Ord. No. O-2019-019, § II, 12-9-2019; Ord. No. O-2021-014, § I, 1-24-2022; Ord. No. O-2024-001, § XIII, 2-26-2024)

Editor's note— Ord. No. O-2019-019, § II, adopted Dec. 9, 2019, changed the title of § 36-125 from "Appeals to the Board of Adjustment" to read as herein set out.

Once an appeal is filed it shall stay all proceedings in furtherance of the action appealed from, unless, after the time that notice of the appeal is filed, the administrative official from whom the appeal is taken certifies in writing to the Board of Adjustment that by reason of facts stated in the certificate a stay would, in the City Manager's opinion, cause immediate peril to life or property. Under this exception proceedings shall not be stayed other than by a restraining order, which may be granted by the Board of Adjustment, or by a court of record on application upon showing of due cause by the appealing party.

(Ord. No. 0-2016-008, § I, 7-25-2016; Ord. No. O-2021-014, § I, 1-24-2022)

The appeal must be filed not later than the 20th day after an original decision, order, requirement, or determination has been rendered. The Board of Adjustment shall make a decision on the appeal at the next meeting for which notice can be provided not later than the 60th day after the date the appeal is filed. The Board of Adjustment shall fix a reasonable time for hearing of the appeal, give public notice thereof, as well as due notice to the interested parties and decide the same within a reasonable time. At the hearing any party may appear in person or by agent or by attorney.

(Ord. No. 0-2016-008, § I, 7-25-2016; Ord. No. O-2019-019, § II, 12-9-2019; Ord. No. O-2021-014, § I, 1-24-2022)

In exercising the powers set forth in section 36-124, the Board of Adjustment may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the administrative official's order, requirement, decision, or determination and to that end shall have all the powers of the administrative official from whom the appeal is taken.

(Ord. No. 0-2016-008, § I, 7-25-2016; Ord. No. O-2021-014, § I, 1-24-2022)

The concurring vote of four members of the Board of Adjustment shall be necessary to reverse any order, requirement, decision, or determination of an administrative official, to decide in favor of the applicant on any matter on which the Board of Adjustment is authorized under this chapter, or to authorize a variance from the terms of in this chapter.

(Ord. No. 0-2016-008, § I, 7-25-2016; Ord. No. O-2021-014, § I, 1-24-2022)

The notice of public hearing, provided for in this section, shall be given by publication one time in the City's official newspaper, stating the time and place of such hearing, which time shall not be earlier than 15 days from date of such publication, and in addition thereto, the Board of Adjustment shall mail notices of such hearing to the applicant and to all owners of property lying within 200 feet of any point of the lot or portion thereof, on which a variance or special exception is desired, and to all other persons deemed by the Board of Adjustment to be affected thereby; such owners and persons shall be determined according to the last approved tax roll of the City. Such notice may be served by depositing the same, properly addressed and postage paid, in any post office.

(Ord. No. 0-2016-008, § I, 7-25-2016; Ord. No. O-2021-014, § I, 1-24-2022)

(a)

Requests for variance. All requests for variations from the terms of this chapter shall be in writing and shall specify the facts involved, the relief desired, and grounds therefore. Each such application shall be filed with the City Secretary who, after investigation, shall transmit such application together with supporting materials prepared by City staff to the Board of Adjustment within 30 days of receipt. Should circumstances be presented that justify it, the Board of Adjustment may hear a request for variance and may grant a variance outside of the deadline of an appeal noted in section 36-125.

(b)

Hearings on applications for variances. The Board of Adjustment shall fix a reasonable time for the hearing of all applications for variances, give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Any party may appear in person or by agent or by attorney at this hearing.

(c)

Granting variances. The Board of Adjustment is hereby authorized, upon a party's appeal from the decision of the City, to grant a variance from the terms of this chapter that shall not be contrary to the public interest, and where, due to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship, and so that the spirit of this chapter shall be observed and substantial justice is done. The Board of Adjustment may consider the following as grounds to determine whether compliance with the 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 City under Tex. 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 a City ordinance, building code, or other requirement;

(4)

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

(5)

The City considers the structure to be a non-conforming structure.

(d)

Criteria for granting variances. No variance can be granted unless all criteria are met:

(1)

The variance will not be contrary to public interest and will not adversely affect the public health, safety or general welfare.

(2)

The plight of the owner of the property for which the variance is sought is due to special circumstances existing on the property, and the special circumstances were not created by the owner of the property, and are not due to or the result of general conditions in the district in which the property is located.

(3)

A literal enforcement of the ordinance would result in unnecessary hardship.

(4)

The spirit of the ordinance is observed and the variance will not substantially weaken the general purposes of this chapter or the regulations herein established for the specified district.

(5)

The variance will ensure that substantial justice is done.

(6)

The variance will not authorize a use other than those uses specifically authorized for the district in which the property is located.

(7)

The variance will not substantially or permanently injure the appropriate use of adjacent conforming property in the same district.

(8)

The literal interpretation of the Ordinance will deprive the applicant of rights commonly enjoyed by other properties in the same district under the Ordinance.

(e)

Limitation on variances. Any variance authorized by the Board of Adjustment shall constitute authority to authorize the issuance of a building permit or a certificate of occupancy, as the case may be, if applied for within 120 days from the date of favorable action by the Board of Adjustment, unless such Board of Adjustment authorizes a longer period. If the permit or certificate of occupancy is not applied for within said 120-day period, or such extended period as the Board of Adjustment may have authorized, then the grant of the variance shall terminate. Such termination shall be without prejudice to a subsequent application to said Board of Adjustment in accordance with the rules and regulations regarding applications. No application to the Board of Adjustment shall be allowed on the same property until six months after a ruling of the Board of Adjustment, unless other property within 200 feet thereof, has been altered or changed by a ruling of the Board of Adjustment within such six-month period. In which case such change of circumstances shall permit the allowance of such application but in no way to compel the Board of Adjustment, after a hearing, to grant such subsequent application. Such subsequent applications shall be considered on its merits as in all other cases.

(Ord. No. 0-2016-008, § I, 7-25-2016; Ord. No. O-2021-014, § I, 1-24-2022; Ord. No. O-2024-004, § III, 8-26-2024)

(a)

Applications for special exception. All applications for special exceptions from the terms of the chapter shall be in writing and shall specify the facts involved, the special exception desired and grounds therefore. The property owner shall file such application with the City Secretary who, after investigation by the City Manager or their designee(s), shall transmit such application together with supporting materials prepared by City staff to the Board of Adjustment within 60 days after receipt. The non-refundable fee for an application shall be the same as the fee for an application for variance or as described in Appendix A - City of Shavano Park Fee Schedule. Should circumstances be presented that justify it, the Board of Adjustment may grant hear a request for special exception and may grant a special exception outside of the deadline of an appeal noted in section 36-125.

(b)

Hearings on applications for special exceptions. The Board of Adjustment shall fix a reasonable time for the hearing of all applications for special exceptions, give public notice thereof, as well as due notice to all persons entitled to notice under section 36-130, and such hearing shall be held within 90 days after receipt of the City Manager's report. At each hearing, any person may appear in person or by agent or by attorney.

(c)

Granting special exceptions. The Board of Adjustment may grant special exceptions to the side and rear setbacks provided for under this chapter and solely in accordance with the following:

(1)

Reduce the side or rear setbacks requirements in all single family residential zoning districts and all single family residential planned unit development zoning districts by up to 75 percent if the application satisfies the conditions provided for in subsections (d) and (e) and the side or rear setback in question abuts the following:

a.

The streets of N.W. Military, and DeZavala;

b.

City of San Antonio zoning districts;

c.

O-1, B-1 or B-2 zoning districts; or

d.

Greenbelts as designated on a plat.

(2)

Reduce a side or rear building setback by up to ten percent in all single family residential zoning districts and all single family residential planned unit development zoning districts.

(d)

Conditions for granting special exceptions. If the Board of Adjustment finds that all of the conditions in this subsection have been satisfied, the Board of Adjustment may approve the special exception application. This subsection's conditions are as follows:

(1)

That the special exception will not adversely affect public health, safety, or general welfare;

(2)

That as of the hearing date, it is not foreseeable that the special exception will substantially impair or diminish the presently permitted neighborhood uses, values and enjoyment of neighboring properties;

(3)

That the special exception will not significantly impede the normal and orderly development and/or improvement of surrounding properties as to uses permitted in the district and/or immediately contiguous district;

(4)

That the special exception will not result in such property violating any height, lot coverage, building size and/or exterior requirements;

(5)

That the special exception will not result in such property violating any district parking space regulations and/or tree preservation requirements;

(6)

That the special exception will not result in such property being incompatible with other properties within the zoning district;

(7)

That the conditions provided for in subsection (e) have been satisfied; and

(8)

That any accessory building allowed under this subsection shall be neither larger than 500 square feet nor taller than 16 feet from the lowest grade point of such building.

(e)

Conditions and guarantees. Prior to the granting of any special exception, the Board of Adjustment shall stipulate such conditions and restrictions upon the establishment, location, construction, maintenance and operation of the special exception as deemed necessary in its sole discretion to protect the public health, safety and general welfare of the community and to secure compliance with the standards and requirements specified in subsection (d) above. When granting a special exception, the Board of Adjustment shall require such evidence and written guarantees as it deems necessary as proof that the property owner has and/or will comply with all conditions stipulated in connection therewith.

(f)

Effect of denial of application. If the Board of Adjustment denies a special exception in whole or in part, the property owner must wait at least one year from the date of said denial to make a resubmission under this section.

(g)

Failure to comply with conditions. Should a property owner fail to comply with any conditions of the Board of Adjustment in granting a special exception to a property, the City shall seek appropriate enforcement and remedies as stated in section 36-5 of this chapter.

(Ord. No. 0-2016-008, § I, 7-25-2016; Ord. No. O-2017-022, § I, 11-27-2017; Ord. No. O-2021-014, § I, 1-24-2022; Ord. No. O-2024-004, § IV, 8-26-2024)

Any person, jointly or severally, aggrieved by any decision of the Board of Adjustment, or any taxpayer, or any officer, department, board of the City, may present to a court of record a verified petition as provided by Tex. Local Government Code § 211.011, setting forth that such decision is illegal, in whole or in part, and 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 City Secretary.

(Ord. No. 0-2016-008, § I, 7-25-2016; Ord. No. O-2021-014, § I, 1-24-2022)

The Board of Adjustment shall be empowered to assess and collect the fees specified in Appendix A - City of Shavano Park Fee Schedule to defray administrative costs. Such fees shall be deposited with the Secretary of the City, for deposit in the General Fund of the City.

(Ord. No. 0-2016-008, § I, 7-25-2016; Ord. No. O-2021-014, § I, 1-24-2022)