(a)

Nonconforming uses.

(1)

Any lawful use of property existing at the time of passage of the ordinance from which this chapter is derived that does not conform to the regulations prescribed in article III of this chapter shall be deemed a legal nonconforming use.

(2)

If no structural alterations (except those required by law or ordinance) are made, a nonconforming use may be extended throughout a building. A nonconforming use of a building may be changed to another nonconforming use of the same or more restrictive zoning classification, provided no structural alterations are made. In the event that a nonconforming use of a building is changed to a nonconforming use of a higher or more restrictive zoning classification, it shall not later be reverted to a use in the former lower or less restrictive zoning classification.

(3)

The right of a nonconforming use to continue shall be subject to such regulations as to the maintenance of the premises and conditions of operation as may, in the judgment of the board of adjustments, be reasonably required for the protection of adjacent property.

(b)

Nonconforming structures.

(1)

A nonconforming structure may continue to be occupied and may be enlarged, repaired, or altered, provided such does not create an additional nonconformity or increase the degree of existing nonconformity with respect to maximum building height or minimum yard requirements. No alteration or enlargement shall extend further into the required yard than the existing nonconforming portion of the building. This provision shall apply separately to each yard requirement with which the existing structure does not comply.

(2)

If 50 percent or more of the improvement's appraised value, as determined by the county appraisal district, of a nonconforming structure is destroyed by fire, the elements, or some other cause, then the structure may be rebuilt only in conformity with the provisions of this chapter.

(3)

If less than 50 percent of the improvement's appraised value, as determined by the county appraisal district, of a nonconforming structure is destroyed by fire, the elements, or some other cause, then the structure may be reconstructed as it was before the partial destruction but only to its original dimensions and floor area, and provided that such reconstruction is completed within one year (i.e., 365 calendar days) following the event that caused the partial destruction. If reconstruction is delayed by contested insurance claims, litigation, or some other similar cause, then the one-year reconstruction period may be extended by the board of adjustments.

(4)

If a nonconforming structure that is totally or partially destroyed was occupied by a nonconforming use at the time of such destruction, then the nonconforming use may not be re-established without specific authorization by the board of adjustments. (See section 50-33).

(5)

Any conforming structure that is totally or partially destroyed shall be reconstructed only in conformity with the provisions of this chapter.

(6)

Nothing in this chapter shall be construed to prohibit the upgrading, strengthening, repair or maintenance of any part of any structure, conforming or nonconforming, that is declared unsafe or uninhabitable by the proper authority, unless such repairs or maintenance exceeds 50 percent of the structure's appraised value, as determined by the county appraisal district.

(c)

Abandonment of nonconforming uses and structures, and cessation of use of structure or land.

(1)

If a nonconforming use or structure is abandoned, any future use of the premises shall be in conformity with the provisions of this chapter, as amended, and with any other applicable city codes or ordinances that are in effect at the time the use is resumed or the structure is re-occupied.

(2)

A nonconforming use or structure shall be deemed abandoned in the following circumstances:

a.

The use ceases to operate for a continuous period of 180 calendar days;

b.

The structure remains vacant for a continuous period of 180 calendar days with all or some of the utilities disconnected, or if utility payments are delinquent;

c.

In the case of a temporary use, the use is moved from the premises for any length of time; or

d.

A nonconforming use or structure shall not be deemed abandoned for a period of up to one year on properties that are for sale or lease, provided the owner is actively promoting the sale or lease and there is evidence of continual use of signs, advertising or listings.

(3)

Normal cessation of a use, or temporary discontinuance for purposes of maintenance and rebuilding after damage or destruction, as provided in this section, shall not be included in calculating the period of discontinuance.

(4)

If the use of any lot, tract or property that does not have a building on it and that is used for open/outside storage as of the effective date of the ordinance from which this chapter is derived (or amendment thereto) is made nonconforming by this chapter (or amendment thereto), then such storage use shall cease within 180 calendar days following the effective date of the ordinance from which this chapter is derived (or amendment thereto). The lot, tract or property shall be cleaned and all trash, debris, stored items and vehicles, and other materials shall be removed from the premises such that the property is not a physical or visual nuisance to the public or to surrounding property owners.

(d)

Moving of nonconforming structure. No nonconforming structure or building shall be moved in whole or in part to any other location on the lot, or to any other location or lot, unless every portion of such structure is in compliance with all the regulations of the zoning district wherein the structure is to be relocated. Such building relocation shall also require a structure relocation permit from the city, and may also require platting of the intended building site pursuant to chapter 40, pertaining to subdivisions, as well as any approval processes required by this chapter.

(e)

Right to proceed preserved. Nothing contained in this section is intended to alter any rights that may have accrued to proceed under prior regulations, pursuant to V.T.C.A., Local Government Code § 43.002 or 245.001 to 245.006.

(Ord. No. 2008-01, § 7, 2-4-2008)

(a)

Generally. The planning and zoning commission (also referred to as the commission) shall function according to the criteria this section that establish membership and operating procedures.

(b)

Powers and duties.

(1)

The commission shall have all the rights, powers, privileges and authority authorized and granted by the city council and through the state authorizing and granting cities the power of zoning and subdivision regulation as found in V.T.C.A., Local Government Code chs. 211, 212.

(2)

The commission shall be an advisory body and adjunct to the city council, and shall make recommendations regarding amendments to the comprehensive plan, changes of zoning, zoning ordinance amendments, and zoning to be given to newly annexed areas, and shall consider approval of plats of subdivisions as may be submitted to it for review and other planning-related matters. The commission shall conduct an annual review of the city's comprehensive plan and shall be prepared to make recommendations to the city council as deemed necessary to keep the city's comprehensive plan current with changing conditions and trends and with the planning needs of the city. The commission shall also serve in an advisory capacity on any planning related items in the city and perform other duties as provided for by the city Charter.

(c)

Created; membership; officers; rules and bylaws:

(1)

There is created, in accordance with V.T.C.A., Local Government Code ch. 211, the planning and zoning commission, hereafter sometimes referred to as the commission, which shall consist of five people residing within the city limits.

(2)

Members shall be appointed by the city council.

(3)

All appointments to the commission shall serve as a member of the commission for a term of office of three years. Members may be reappointed with no limitation on the number of terms one member may serve. Upon adoption of the ordinance from which this chapter is derived, the city council appoints the city planning commission members to serve as the planning and zoning commission.

(4)

Any vacancies on the commission shall be filled via appointment by a simple majority vote of the city council.

(5)

Members of the planning and zoning commission may be removed from office at any time by a simple majority vote of the full city council either upon its own motion or upon recommendation of the commission. Failure to attend three consecutive scheduled meetings shall be deemed as neglect and cause for removal from office, unless such absences were due to unusual circumstances beyond the member's control, such as sickness of the member or someone within the member's immediate family, or if the commission or the city council approves the absences as excused. A vote to remove a commission member shall be placed on the appropriate agenda as a regular item, and shall be voted upon accordingly.

(6)

The members of the commission shall regularly attend meetings and public hearings of the commission, shall serve without compensation, and shall not hold any other office within, or serve as an employee of, the city while serving on the commission. The commission shall meet a minimum of once per month at a time established by the city council. If there have been no applications filed for review by the commission, the city secretary shall notify the chairperson and no meeting shall be required for that month.

(7)

The commission shall elect a chairperson and a vice-chairperson from among the commission membership, and each officer shall hold office for one year or until replaced by a simple majority vote of the full commission. The city manager's designee shall serve as secretary to the commission, and shall keep minutes of all meetings held by the commission as well as the full record of all recommendations made by the commission to the city council.

(8)

The commission shall have the power to make rules, regulations and bylaws for its own governance, which shall conform with those set forth by the city council, and such rules, regulations and bylaws shall be subject to approval by the city council. Such rules and bylaws shall include, among other items, provisions for the following:

a.

Regular and special meetings, open to the public;

b.

A record of its proceedings, to be open for inspection by the public;

c.

Reporting to the city council and the public, from time to time and annually; and

d.

Reviewing the comprehensive plan on a regular basis.

(d)

Parliamentary procedure; quorum; voting. The commission will follow the parliamentary procedure adopted by the city council, and procedures shall not be in conflict with the laws applicable to the commission on the following:

(1)

Quorum. A quorum shall consist of a majority of the membership of the commission, and any issue to be voted upon shall be resolved by a majority of those members present.

(2)

Voting. All commission members, including the chairperson, shall be entitled to one vote each upon any question, a quorum being present. Voting procedures shall be in accordance with the parliamentary procedures adopted by the city council.

(3)

Conflict of interest. If any member has a conflict of interest regarding any item on the commission's agenda, that member may remove himself from the room and shall refrain from discussing and/or voting only on the item for which a conflict exists. Refer to V.T.C.A., Local Government Code ch. 171, and any applicable city ethics policies or regulations.

(e)

Meetings; public record.

(1)

The planning and zoning commission shall meet in the municipal building or in some other specified location as may be designated by the presiding chairperson and at such intervals as may be necessary to orderly and properly transact the business of the commission but not less than once each month.

(2)

Meetings shall be conducted in accordance with the Open Meetings Law (refer to V.T.C.A., Government Code ch. 551).

(f)

Procedure on zoning hearings. The procedure and process for zoning changes or amendments shall be in accordance with section 50-34.

(g)

Joint meetings with the city council. Whenever the city council and the commission are required by the laws of the state to conduct public hearings in matters pertaining to planning, zoning or subdividing property, and at other times when it is in the best interest of the city to do so, the city council and the commission are hereby authorized, after published notice as required by law, to hold joint meetings and to conduct joint public hearings.

(Ord. No. 2008-01, § 8, 2-4-2008)

(a)

Creation. There is hereby created a board of adjustments, hereafter sometimes referred to as the board, for the purpose, in appropriate cases and subject to appropriate conditions and safeguards, of making special exceptions and variances to the terms of this chapter that are consistent with the general purpose and intent of this chapter. The board shall be composed of members who are resident citizens of the city.

(b)

Members; terms of office.

(1)

The board of adjustments shall consist of five regular members, who shall be appointed by a simple majority vote of the full city council, and shall operate in accordance with V.T.C.A., Local Government Code §§ 211.008 through 211.011.

(2)

The city council shall provide for the appointment of up to four alternate members to serve in the absence of one or more of the regular board members on an alternating basis such that all alternate members have equal opportunities to serve on the board. The planning director shall determine which alternate will serve if an alternate is needed.

(3)

Regular board members and alternate members shall serve for a term of two years, and expiration of terms shall be staggered so that an overlapping of terms occurs (e.g., in any two-year period, the terms of two regular members and at least one alternate member shall expire during one of those years, and the terms of three regular members and at least one alternate member shall expire during the second year).

(4)

Any vacancies on the board (both regular and alternate members) shall be filled for the unexpired terms via appointment by a simple majority vote of the full city council for the remainder of the terms.

(5)

Members of the board may be removed from office for cause, and after a public hearing, by a simple majority vote of the full city council. Failure to attend three consecutive scheduled meetings shall be deemed as neglect and cause for removal from office, unless such absences were due to unusual circumstances beyond the member's control such as sickness of the member or someone within the member's immediate family. Absences may be excused by the board or by the city council.

(6)

The members of the board (and alternate members, as needed) shall regularly attend meetings and public hearings of the board, shall serve without compensation, and shall not hold any other office or position with the city while serving on the board.

(7)

The board of adjustments shall elect a chairperson and a vice-chairperson from among its membership, and each officer shall hold office for two years or until replaced by a simple majority vote of the full board. The city manager's designee shall serve as secretary to the board of adjustments, and shall keep minutes of all meetings held by the board. The secretary shall also set up and maintain a separate file for each application for hearing by the board, and shall record therein the names and addresses of all persons/entities to whom notices are mailed, including the date of mailing and the person by whom such notices were delivered to the post office. All records and files provided for in this subsection shall be official records of the city. The secretary shall also immediately notify in writing the city council, planning and zoning commission, and the city building official of each decision rendered by the board in the conduct of its duties.

(8)

The board of adjustments shall have the power to make the rules, regulations and bylaws for its own government, which shall conform as nearly as possible to those governing the city council and the provisions of this section. The board's rules, regulations and bylaws shall be subject to approval by city council.

(c)

Meetings. Meetings of the board of adjustments shall be held at the call of the chairperson or planning director and at such other times as the board may determine. All meetings of the board shall be open to the public, and minutes shall be kept of all proceedings at board meetings. Four members of the board shall constitute a quorum for the conduct of business.

(d)

Authority.

(1)

The board of adjustments shall have the authority, subject to the standards established in V.T.C.A., Local Government Code §§ 211.008 through 211.011 and those established in this chapter, to exercise powers and to perform duties including the following:

a.

Hear and decide an appeal that alleges error in an order, requirement, decision or determination made by an administrative official in the enforcement of this chapter;

b.

Authorize, in specific cases, a variance or special exception (see section 50-33, subsections (f) and (g) of this section) from the terms of this chapter if the variance is not contrary to the public interest and if, due to special conditions, a literal enforcement of the chapter would result in unnecessary hardship, and so that the spirit of this chapter is observed and substantial justice is done; and

c.

Make interpretations on zoning district boundaries shown on the zoning map where uncertainty exists because physical features on the ground differ from those on the zoning map or where the rules in section 50-64 do not apply or are ambiguous.

(2)

In exercising its authority under subsection (d)(1)a of this section, the board of adjustments may reverse or affirm, in whole or in part, or modify the administrative official's order, requirement, decision or determination from which an appeal is taken and make the correct order, requirement, decision or determination, and for that purpose the board has the same authority as the city manager or his designee.

(3)

The concurring vote of at least four members of the board of adjustments is necessary to:

a.

Reverse an order, requirement, decision or determination of an administrative official;

b.

Decide in favor of an applicant on a matter on which the board is required to review under this chapter;

c.

Authorize a variance from a provision of this chapter; or

d.

Hear and decide special exceptions to a provision of this chapter (see section 50-33 subsection (g) of this section).

(e)

Limitations on authority.

(1)

The board of adjustments may not grant a variance authorizing a use other than those permitted in the district for which the variance is sought, except as specifically provided for in this chapter.

(2)

The board of adjustments shall have no power to grant or modify conditional use provisions authorized under section 50-81.

(3)

The board of adjustments shall have no power to grant a zoning amendment. In the event that a request for a zoning amendment is pending before the planning and zoning commission or the city council, the board shall neither hear nor grant any variances with respect to the subject property until final disposition of the zoning amendment by the commission and the city council.

(4)

The board of adjustments shall not grant a variance for any parcel of property or portion thereof upon which a required site plan (refer to section 50-36), or any plat is pending on the agenda of the planning and zoning commission and/or the city council. All administrative and procedural remedies available to the applicant shall have been exhausted prior to hearing by the board of adjustments.

(f)

Variances.

(1)

Defined. A variance is the authority to depart from the application of areas, side yard, setback, height, and similar regulations to prevent unnecessary hardships.

(2)

Granting authority. The board of adjustments may authorize a variance from these regulations when, in its opinion, undue hardship will result from requiring compliance. Variances may be granted only when in harmony with the general purpose and intent of this chapter so that the public health, safety and welfare may be secured and that substantial justice may be done.

a.

In granting a variance, the board shall prescribe only conditions that it deems necessary for, or desirable to, the public interest.

b.

In making the findings outlined in subsection (f)(3) of this section, the board shall take into account:

1.

The nature of the proposed use of the land involved;

2.

Existing uses of land in the vicinity;

3.

The number of persons who will reside or work within the proposed use; and

4.

The probable effect such variance will have upon traffic conditions and upon the public health, safety, convenience and welfare of the community.

(3)

Conditions required. No variance shall be granted without first having given public notice and having held a public hearing on the variance request in accordance with section 50-33 subsection (c) of this section and unless the board of adjustments finds:

a.

That there are special circumstances or conditions affecting the land involved such that the application of the provisions of this chapter would deprive the applicant of the reasonable use of his land;

b.

That the variance is necessary for the preservation and enjoyment of a substantial property right of the applicant;

c.

That the granting of the variance will not be detrimental to the public health, safety or welfare, or injurious to other property within the area;

d.

That the granting of the variance will not have the effect of preventing the orderly use of other land within the area in accordance with the provisions of this chapter; and

e.

The granting of an individual variance will not set a precedent.

Such findings of the board of adjustments, together with the specific facts upon which such findings are based, shall be incorporated into the official minutes of the board of adjustments meeting at which such variance is granted.

(4)

Findings of undue hardship. In order to grant a variance, the board of adjustments must make findings that an undue hardship exists, using the following criteria:

a.

That literal enforcement of the controls will create an unnecessary hardship or practical difficulty in the development of the affected property;

b.

That the situation causing the hardship or difficulty is neither self-imposed nor generally affecting all or most properties in the same zoning district;

c.

That the relief sought will not injure the permitted use of adjacent conforming property;

d.

That the granting of a variance will be in harmony with the spirit and purpose of this chapter; and

e.

Financial hardship alone is not an undue hardship if the property can be used, meeting the requirements of the zoning district it is located in.

(5)

Self-inflicted hardship. A variance shall not:

a.

Be granted to relieve a self-created or personal hardship;

b.

Be based solely upon economic gain or loss;

c.

Permit or allow any person a privilege or advantage in developing a parcel of land not permitted or allowed by this chapter to other parcels of land in the same particular zoning district;

d.

Result in undue hardship upon another parcel of land.

(g)

Special exceptions.

(1)

Defined. A special exception is a type of variance, but is differentiated from a variance by the following:

a.

A special exception does not require a finding of a hardship.

b.

Approval of a special exception by the board of adjustments is specifically provided for and defined in this chapter.

c.

A special exception applies to nonconforming uses and structures, off-street parking requirements, Façade Overlay District requirements, and landscaping requirements.

(2)

Requests. The board of adjustments may grant a special exception to the provisions of sections 50-31, 50-112 and/or 50-113 upon written request of the property owner.

(3)

Standards. The board may also grant a special exception in accordance with the following circumstances and/or standards:

a.

Change from one nonconforming use to another, reconstruction of a nonconforming structure that has been totally destroyed, or resumption of a nonconforming use previously abandoned, only upon finding that the failure to grant the special exception deprives the property owner of substantially all use or economic value of the land.

b.

For existing single-family and duplex (two-family) structures that were legally constructed prior to the effective date of the ordinance from which this chapter is derived, the board of adjustments may authorize a special exception for any structure that was constructed over a setback line established by this chapter.

(4)

Conditions. In granting special exceptions under this subsection (g) of this section, the board may impose such conditions as are necessary to protect adjacent property owners and to ensure the public health, safety and general welfare, including but not limited to conditions specifying the period during which the nonconforming use may continue to operate or exist before being brought into conformance with the provisions of this chapter.

(h)

Appeals.

(1)

Authority. In addition to the authorization of variances and special exceptions from the terms of this chapter, the board of adjustments shall have the authority to hear and decide an appeal that alleges error in an order, requirement, decision or determination made by an administrative official in the enforcement of this chapter. The board of adjustments may reverse or affirm, in whole or in part, or may modify the administrative official's order, requirement, decision or determination from which an appeal is taken and make the correct order, requirement, decision or determination, and for that purpose, the board of adjustments has the same authority as the city manager or his designee.

(2)

Who may appeal. Any of the following persons may appeal to the board of adjustments a decision made by an administrative official:

a.

A person directly aggrieved by the decision; or

b.

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

(3)

Procedure for appeal. The appellant must file with the board of adjustments and the official from whom the appeal is taken a written notice of appeal specifying the grounds for the appeal. The notice of appeal shall be filed within 15 calendar days after the decision has been rendered. Upon receiving the notice, the official from whom the appeal is taken shall immediately transmit to the board of adjustments all papers constituting the record of action that is appealed. An appeal stays all proceedings in furtherance of the action that is appealed unless the official from whom the appeal is taken certifies in writing to the board of adjustments facts supporting the official's opinion that a stay would cause imminent peril to life or property. In that case, the proceedings may be stayed only by a restraining order granted by the board of adjustments or a court of appropriate jurisdiction on application, after notice to the official, if due cause is shown. The appellant party may appear at the appeal hearing in person or by agent or attorney. The board shall decide the appeal within 30 calendar days after the written request (i.e., notice of appeal) was received. The board may reverse or affirm, in whole or in part, or modify the administrative official's order, requirement, decision or determination from which an appeal is taken, and may make the correct order, requirement, decision or determination.

(i)

Procedures.

(1)

Application and fee. An application for a variance, special exception or appeal to the board of adjustments shall be made in writing using forms prescribed by the city, and shall be accompanied by an application fee in accordance with the city council's adopted fee schedule, a required plan (see section 50-36), and any other additional information as may be requested in order to properly review the application. There is no filing fee for an appeal filed by any officer, department, board, or bureau of the city affected by the decision.

(2)

Review and report by the city. The city manager, or his designee, shall visit the site where the proposed variance or special exception will apply and the surrounding area, and shall report his findings to the board of adjustments.

(3)

Notice and public hearing. The board of adjustments shall hold a public hearing for consideration of the variance or special exception request no later than 60 calendar days after the date the application for action, or an appeal, is filed. Notice shall be published in the official local newspaper before the fifteenth calendar day prior to the public hearing. Written notice of the public hearing for a variance or exception shall also be sent to all owners of property, as indicated by the most recently approved city tax roll, that is located within the area of application and within 300 feet of any property affected thereby, said written notice to be sent before the tenth calendar day prior to the date such hearing is held. Such notice shall be served by using the last known address as listed on the most recently approved tax roll and depositing the notice, postage paid, in the regular United States mail.

(4)

Action by the board of adjustments. The board of adjustments shall not grant a variance unless it finds, based upon compelling evidence provided by the applicant, that each of the conditions in subsection (f) of this section have been satisfied. The board of adjustments may impose such conditions, limitations and safeguards as it deems appropriate upon the granting of any variance or special exception as are necessary to protect the public health, safety, convenience and welfare. Violation of any such condition, limitation or safeguard shall constitute a violation of this chapter.

(5)

Burden of proof. The applicant bears the burden of proof in establishing the facts that may justify a variance, a special exception, an appeal, or any other action in his favor by the board.

(6)

Waiting period. No appeal to the board for the same or a related variance or special exception on the same piece of property shall be allowed for a waiting period of 180-calendar-days following an unfavorable ruling by the board unless other property in the immediate vicinity has, within the 180 calendar day waiting period, been changed or acted upon by the board or the city council so as to alter the facts and conditions upon which the previous unfavorable board action was based. Such changes of circumstances shall permit the re-hearing of a variance or special exception request by the board, but such circumstances shall in no way have any force in law to compel the board, after a hearing on the matter, to grant a subsequent variance or special exception request. Any subsequent variance or special exception request shall be considered entirely on its own merits and on the specific circumstances related to the subject property.

(7)

Timeliness of application for building permit or certificate of occupancy. Upon a favorable board action on a variance or special exception request, the applicant shall apply for a building permit or a certificate of occupancy, as applicable to his particular situation, within 180-calendar-days following the date of board action, unless the board specifies a longer time period in the minutes of its action. If the applicant fails to apply for a building permit or certificate of occupancy, as applicable, within the 180 calendar day timeframe, then the variance or special exception shall be deemed to have expired, and all rights thereunder shall be terminated. Such termination shall be without prejudice to a subsequent appeal, and such subsequent appeal shall be subject to the same regulations and requirements for hearing as specified in this chapter for the original variance or special exception request.

(j)

Finality of decisions; judicial review; final and binding; petition. All decisions of the board of adjustments are final and binding and may not be appealed to the city council. However, any person aggrieved by a decision of the board of adjustments may present a verified petition to a court of appropriate jurisdiction that states that the decision of the board is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition must be presented within ten calendar days after the date the board's decision is filed in the office of the secretary to the board. Subject to the provisions of V.T.C.A., Local Government Code § 211.011, only a court with appropriate jurisdiction may reverse, affirm or modify a decision of the board of adjustments.

(Ord. No. 2008-01, § 9, 2-4-2008; Ord. No. 2015-16, § 3, 9-8-2015; Ord. No. 2022-25, § 2(Exh. A), 9-6-2022)

(a)

Declaration of policy and review criteria.

(1)

The city declares the enactment of the ordinance from which this chapter is derived governing the use and development of land, buildings, and structures as a measure necessary to the orderly development of the community. Therefore, no change shall be made in this chapter or in the boundaries of the zoning districts except:

a.

To correct any error in the regulations or map;

b.

To recognize changed or changing conditions or circumstances in a particular locality;

c.

To recognize changes in technology, the style of living, or manner of conducting business; or

d.

To change the property to uses in accordance with the city's adopted comprehensive plan.

(2)

In making a determination regarding a requested zoning change, the planning and zoning commission and the city council shall consider the following factors:

a.

Whether the uses permitted by the proposed change will be appropriate in the immediate area concerned, and their relationship to the general area and to the city as a whole;

b.

Whether the proposed change is in accordance with any existing or proposed plans for providing public schools, streets, water supply, sanitary sewers, and other utilities to the area;

c.

The amount of vacant land currently classified for similar development in the vicinity and elsewhere in the city, and any special circumstances which may make a substantial part of such vacant land unavailable for development;

d.

The recent rate at which land is being developed in the same zoning classification as the request, particularly in the vicinity of the proposed change;

e.

How other areas designated for similar development will be, or are likely to be, affected if the proposed amendment is approved;

f.

Any other factors that will substantially affect the public health, safety, morals, or general welfare; and

g.

Whether the request is consistent with the comprehensive plan.

(b)

Application.

(1)

Generally. Consideration for:

a.

A change in any zoning district boundary line;

b.

Zoning regulation; or

c.

An amendment to the zoning chapter text;

May be initiated only by the owner of real property (or his authorized agent), by the planning and zoning commission, or by the city council on its own motion.

(2)

Fee required. Each application for zoning, rezoning, conditional use permit (CUP), planned development (PD), or for a text amendment to a provision of this chapter, shall be made in writing on an application form available in the planning director's office, and shall be accompanied by payment of the appropriate fee as established by resolution adopted by the city council.

(3)

Form developed. The planning director is hereby authorized to develop application forms requiring pertinent information from the applicant.

(4)

Date due. The application shall be delivered to the city at least 40 calendar days prior to the date of the public hearing before the planning and zoning commission.

(5)

Payment of all indebtedness attributable to the subject property. Refer to subsection 50-36(3).

(6)

Official filing date, completeness of application, expiration of application. The following shall apply to any application (e.g., concept plan, building permit plan, site plan) submitted in accordance with this chapter:

a.

Official filing date. The time period established by state law or this chapter for processing or deciding an application shall commence on the official filing date. The official filing date for a required plan application is the date the application is received by the city.

b.

Determination of completeness. Every required plan application shall be subject to a determination of completeness within ten business days by the planning director for processing the application.

1.

No required plan application shall be accepted by the planning director for processing unless it is accompanied by all documents required by and prepared in accordance with the requirements of this chapter.

2.

The incompleteness of the required plan application shall be grounds for denial of the application.

3.

A determination of completeness shall not constitute a determination of compliance with the substantive requirements of this chapter.

4.

A determination of completeness shall be made by the planning director in writing and delivered to the applicant no later than the tenth business day after the official filing date that the required plan application is submitted to the city.

(i)

The applicant shall be notified within that ten-business-day period of the determination of completeness.

(ii)

If the required plan application is determined to be complete, the application shall be acted upon in the proper manner as prescribed by this chapter.

(iii)

If the required plan application is determined to be incomplete, the notification shall specify the documents or other information needed to complete the application and shall state the date the application will expire (see subsection (b)(6)c of this section) if the documents or other information is not provided.

(iv)

A required plan application shall be deemed complete on the 11th business day after the application has been received if the applicant has not otherwise been notified that the application is incomplete.

c.

Expiration of application. The required plan application shall expire on the 45th calendar day after the date the application is filed if:

1.

The applicant fails to provide documents or other information necessary to comply with the city's requirements relating to the required plan application;

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 within the time provided in the notification. If the required plan application is not completed by the 45th calendar day after the application is submitted to the responsible official, the required plan application will be deemed to have expired and it will be returned to the applicant together with any accompanying applications.

d.

Resubmittal. If the required plan application is resubmitted after a notification of incompleteness, the timeframe for a determination of completeness described in subsection (b)(6)3 of this section shall begin on the date of the resubmittal of the required plan application.

(c)

Notice of public hearing.

(1)

Public hearing for zoning changes involving real property. For zoning and rezoning requests involving real property (including PD and CUP requests), the planning and zoning commission and the city council shall hold at least one public hearing on each zoning application, as per applicable state law (V.T.C.A., Local Government Code ch. 211).

a.

Notice of the public hearing to occur before the planning and zoning commission shall be accomplished by publishing the purpose, time and place of the public hearing in the official newspaper of the city before the eighth calendar day prior to the date of the public hearing.

b.

Notice of the public hearing to occur before the city council shall be accomplished by publishing the purpose, time and place of the public hearing in the official newspaper of the city before the 15th calendar day prior to the date of the public hearing.

c.

Written notice of the public hearing before the planning and zoning commission shall also be sent to all owners of property, as indicated by the most recently approved city tax roll, that is located within the area of application and within 300 feet of any property affected thereby, said written notice to be sent before the tenth calendar day prior to the date such hearing is held. Such notice shall be served by using the last known address as listed on the most recently approved tax roll and depositing the notice, postage paid, in the regular United States mail. If written notice as required is not sent before the tenth calendar day prior to the date of the hearing, then the hearing must be delayed until this notice requirement is met.

(2)

Public hearing for zoning changes involving ordinance text. For requests involving proposed changes to the text of the zoning chapter, notice of the planning and zoning commission hearing shall be accomplished by publishing the purpose, time and place of the public hearing in the official newspaper of the city before the eighth calendar day prior to the date of the public hearing. Notice of the city council hearing shall be accomplished by publishing the purpose, time and place of the public hearing in the official newspaper of the city before the 15th calendar day prior to the date of the public hearing. Changes in the chapter text which do not change zoning district boundaries (i.e., which do not involve specific real property) do not require written notification to individual property owners.

(3)

Dual notification of planning and zoning commission public hearings and city council public hearings. The city may, at its option, publish the required zoning change notifications in conformance with V.T.C.A., Local Government Code ch. 211 for public hearings for the planning and zoning commission and the city council at the same time; said notifications must be published eight days prior to the planning and zoning commission public hearing and 15 days prior to the city council public hearing.

(4)

Joint public hearings. The city council may hold a joint public hearing on a zoning, rezoning or zoning chapter text amendment request along with the planning and zoning commission, but the city council shall not take action on the request until it has received a final recommendation from the commission. Notification for a joint public hearing shall be accomplished by publishing the purpose, time and place of the joint public hearing in the official newspaper of the city before the 15th calendar day prior to the date of the public hearing. In accordance with V.T.C.A., Local Government Code § 211.007, the city council shall prescribe any other necessary methods of notification for joint public hearings.

(5)

Additional rules and procedures established. The city council may, at its option, establish additional rules and procedures for public notification of proposed zoning changes and development proposals (e.g., required plans, plats, etc.) which may include, but not be limited to, the posting of a signs on any property that is proposed for a zoning change or development by the applicant or its agents. Knowledge of and adherence to such rules and procedures, if so established by the city, shall be the responsibility of the applicant and shall be required as part of a zoning change or development application.

(d)

Failure to appear. Failure of the applicant or his authorized representative to appear before the planning and zoning commission or the city council for more than one hearing without an approved delay by the city manager, or his designee, shall constitute sufficient grounds for the planning and zoning commission or the city council to table or deny the application unless the city manager or his designee is notified in writing by the applicant at least 72 hours prior to the hearing. If the agenda item is tabled, the planning and zoning commission shall specify a specific date at which it will be reconsidered.

(e)

Planning and zoning commission consideration and recommendation.

(1)

Accordance with section 50-32. The planning and zoning commission shall function in accordance with section 50-32 and with applicable provisions in this Code.

(2)

Tabling of the decision/recommendation. The planning and zoning commission may, on its own motion or at the applicant's request, table its decision/recommendation for not more than 90 calendar days from the time the public hearing was first opened. Such tabling shall specifically state the time period of the tabling by citing the meeting date whereon the request will reappear on the commission's agenda, and further notice in the newspaper and to surrounding property owners shall not be required.

(3)

Recommending approval. When the commission is ready to act upon the zoning request, it may recommend approval of the request as it was submitted by the applicant, approval of the request subject to certain conditions, or disapproval of the request. The request will then be forwarded to the city council for public hearing (see subsection (f)(2) of this section). The commission may recommend more restrictive uses, area requirements, restrictions or a zoning district than was requested in the original application and included in the advertised and written notice. In no case, however, may a use, area requirement or restriction that is considered less restrictive or a less restrictive zoning district than was requested in the original application and included in the advertised and written notice be recommended.

(4)

Recommending denial. If the planning and zoning commission recommends denial of the zoning change request, it shall provide reasons to the applicant for the denial, if requested by the applicant. The planning and zoning chairperson shall inform the applicant of the right to receive reasons for the denial. The recommendation of denial will then be forwarded to the city council for public hearing (see subsection (f)(2) of this section).

(f)

City council authority and consideration.

(1)

City council authority. The city council, after receiving a recommendation by the planning and zoning commission and after public hearings required by law, may amend, supplement, or change the regulations of this chapter or the boundaries of the zoning districts on the zoning map.

(2)

Applications forwarded to the city council. After consideration by the planning and zoning commission, all zoning applications shall be automatically forwarded to the city council for a public hearing following appropriate public hearing notification as prescribed in subsection (f)(1) of this section.

(3)

City council action on zoning, rezoning or text amendment requests. After a public hearing is held before the city council regarding the zoning application, the city council may:

a.

Approve the request in whole or in part (if the city council approves the request, then subsection (f)(5) of this section will apply);

b.

Modify and approve the request to any more restrictive uses, area requirements, restrictions or zoning district than was requested in the original application and included in the advertised and written notice. In no case, however, may a use, area requirement or restriction that is considered less restrictive or a less restrictive zoning district than was requested in the original application and included in the advertised and written notice be approved;

c.

Deny the request in whole or in part;

d.

Table the application to a future meeting (and specifically citing the city council meeting to which it is tabled); or

e.

Refer the application back to the planning and zoning commission for further study.

(4)

Protests. For zoning and rezoning requests involving real property (including PD and CUP requests), a favorable vote of three-fourths of all members of the city council shall be required to approve any change in zoning when written objections are received from the owners of 20 percent or more of the land area covered by the proposed change, or of the land area within 200 feet of the subject property, in accordance with the provisions of V.T.C.A., Local Government Code § 211.006 (commonly referred to as the "20 percent rule"). If a protest against such proposed zoning change has been filed with the city secretary, duly signed and acknowledged by the owners of 20 percent or more, either of the area of the land included in such a proposed change or those owners of property immediately adjacent to the subject property and extending 200 feet therefrom, such zoning change shall not become effective except by a three-fourths vote of the full city council.

(5)

Final approval and ordinance adoption. Upon approval of the zoning request by the city council, the applicant shall submit all related material with revisions, if necessary, to the city manager (or his designee) for the preparation of the amending ordinance. The amending ordinance will be prepared for adoption when a correct description and all required exhibits have been submitted to the city manager or his designee. The amending ordinance shall be effective at such time that it is adopted by the city council, signed by the mayor, and attested by the city secretary.

(g)

Administration and enforcement.

(1)

Authority to enforce chapter. The city manager, or his designee, shall be authorized by the city council to administer and enforce the provisions of this chapter. If the city manager (or his designee) finds, upon his own personal observation, or upon receipt of a complaint, that the provisions of this chapter are being violated, he shall immediately investigate and, when necessary, give written notice to the persons responsible to cease or correct such violations immediately. Notice may be delivered in person or by certified mail to the violators or to any person owning, leasing, or occupying a property where the violation is occurring. The city manager, or his designee, shall have the right to enter upon any business premises during regular business hours for the purpose of making inspections of buildings or premises that may be necessary to carry out the duties in the enforcement of this chapter. The city manager, or his designee, shall request permission of a residence owner to enter upon residential premises for the purpose of making inspections of buildings or premises that may be necessary to carry out the duties in the enforcement of this chapter. If the owner of a residence refuses permission to make such inspection or if an inspection of a business is needed after hours or while not open to the public, then the city staff may work with the city attorney to obtain a warrant or other legal authorization to make such inspections.

(2)

Stop work orders. Whenever any building or construction work is being done contrary to the provisions of this chapter, the city manager, or his designee, shall have the authority to order the work stopped by notice in writing served on the property owner or the contractor doing the work or causing such work to be done, or by posting on the new construction itself and any such person shall forthwith stop such work until authorized in writing by the city to proceed with such work. Failure to immediately stop work as provided by this subsection shall constitute a violation of this chapter, in accordance with section 50-5, and may incur penalties for such violation.

(h)

Schedule of fees, charges and expenses.

(1)

Action dependent on fees paid. Until all applicable fees, charges and expenses have been paid in full, no action shall be taken on any zoning, rezoning or development application or on any appeal.

(2)

Fee schedule. The city council shall determine and adopt a fee schedule as currently established or as hereafter adopted by resolution from time to time for the purpose of recovering the administrative costs associated with processing zoning and development requests, including public hearings that are called for in this chapter. Such fees shall be paid by the applicant and shall not be designed to in any way restrict the applicant's ability to seek and receive a hearing or to generate revenue for other than recovery of actual administrative costs incurred by the city in the review and processing of applications. Immediately upon receipt of a complete submission (in accordance with subsection (h)(1) of this section), the city secretary or his designee shall issue a fee receipt and shall create a city record thereof.

(Ord. No. 2008-01, § 10, 2-4-2008; Ord. No. 2022-25, § 2(Exh. A), 9-6-2022)

(a)

Building permits required. No building or other structure shall be erected, moved, added to, or structurally altered without a permit issued by the building official, or his designee. A building permit shall not be issued except in conformity with the provisions of this chapter, unless otherwise authorized by the board of adjustments in the form of a variance or special exception as provided in section 50-33(f) or (g) of this chapter, or authorized to replace or expand a nonconforming use in accordance with section 50-31. A building permit shall not be issued until the property is properly zoned for the intended use, until the property is platted in accordance with chapter 40, pertaining to subdivisions, and not until all appropri ate plans have been approved by the city and all applicable ordinances have been met and all fees have been paid.

(b)

Cancellation of building permit. Failure of an applicant or any of his agents, representatives or contractors to erect, construct, reconstruct, alter, use or maintain any building, structure or premises in conformance with the approved plans upon which a building permit was issued, when such failure constitutes a violation of any provision of this chapter and applicant fails to make corrections upon proper notice, shall render such building permit void, and the building official, or his designee, is hereby authorized and directed to revoke any such permit by giving written notice to the applicant or his agent or representative, and all work upon such building, structure or premises shall be immediately discontinued until such building, structure or premises shall be brought into conformance with the approved plans and with all applicable provisions of this chapter. Expiration of building permits shall be in accordance with the building codes of the city.

(c)

Certificate of occupancy.

(1)

Required. A certificate of occupancy shall be required for any of the following:

a.

Occupancy and use of a building hereafter erected or structurally altered;

b.

Change in use of an existing building and/or the use of land to a use of a different classification.

(2)

No work before certificate of occupancy issued. No such use, or change of use, shall take place until a certificate of occupancy therefor shall have been issued by the building official or his designee. The application fees for a certificate of occupancy shall be as set forth by resolution of the city council.

(3)

Record of certificate of occupancy. A record of all certificates of occupancy shall be kept on file in the building official's office or his designee's office, and copies shall be furnished upon request to any person in accordance with state laws governing public records.

(4)

Procedure for new or altered buildings. Written application for a certificate of occupancy for a new building or for an existing building which is to be altered shall be made at the same time as the application for the building permit for such building. Said certificate shall be issued after the building official, or his designee, orders the building or structure inspected and finds no violations of the provisions of this chapter or other regulations which are enforced by the building official or his designee. Said certificate shall be issued by the building official, or his designee, after the erection or alteration of such building or part thereof has been completed in conformity with all applicable provisions of this chapter.

(5)

Procedure for vacant land or a change in building use. Written application for a certificate of occupancy for the use of vacant land, a change in the use of land or a change in the use of a building, or for a change from a nonconforming use to a conforming use, shall be made to the building official or his designee. If the proposed use is a conforming use, as in this chapter provided, written application shall be made to said building official or his designee. If the proposed use is found to be in conformity with the provisions of this chapter, the certificate of occupancy shall be issued after the application for same has been made and all required inspections are completed and approved by the building official or his designee.

(6)

Contents of certificate of occupancy. Every certificate of occupancy shall contain the following:

a.

Building permit number;

b.

The address of the building;

c.

The name and address of the owner;

d.

A description of that portion of the building for which the certificate is issued;

e.

A statement that the described portion of the building has been inspected for compliance with the requirements of the city's building codes for the particular group and division of occupancy;

f.

The name of the building official or his designee;

g.

Uses allowed;

h.

Maximum number of persons/occupants; and

i.

Issue date of certificate of occupancy.

(7)

Posting of certificate of occupancy. The certificate of occupancy shall be posted in a conspicuous place on the premises on a location approved by the building official and shall not be removed except by the building official or his designee.

(8)

Revocation of certificate of occupancy. The building official (or his designee) may, in writing, suspend or revoke a certificate of occupancy issued under the provisions of this chapter whenever the certificate is issued in error, or on the basis of incorrect information supplied, or when it is determined that the building or structure or portion thereof is in violation of any ordinance or regulation or any of the provisions of this chapter or the building code and other codes adopted by the city, and any amendments thereto.

(9)

Exemptions. Single-family and duplex (two-family) dwellings do not require a certificate of occupancy but do require a final clearance or whatever approval is utilized in the building code to allow residential occupancy.

(d)

Completion of buildings in progress. Nothing contained in this section shall require any change in the plans, construction or designated use of a building, the foundation for which has been completely constructed as of the effective date of the ordinance from which this chapter is derived, and the remaining construction of which shall have been completed within one year (i.e., 365 calendar days) following the effective date of the ordinance from which this chapter is derived.

(Ord. No. 2008-01, § 11, 2-4-2008)

(a)

Approval process.

(1)

Maximum of three steps. The review process shall include up to three steps:

a.

Preapplication conference with the city manager or his designee. (refer to section 50-36(b));

b.

Concept plan, building permit plan, or site plan review and approval; and

c.

Construction of project (after city approval of all required plans and plats).

(2)

Type of plan required.

a.

Concept plan.

1.

A concept plan shall be required for all planned development applications.

2.

All requirements for such applications are included in section 50-80 for planned developments.

3.

A concept plan validity and/or lapse or expiration shall be in accordance with sections 50-34(b)(6) and 50-37.

b.

Building permit plan.

1.

A building permit plan shall be required for development within all zoning districts. A site plan or concept plan shall be submitted and approved first in those districts where required.

2.

The approval process for a building permit plan shall generally be review for conformance to city ordinances and approval by the building official or his designee.

3.

A building permit plan validity and/or lapse or expiration shall be in accordance with sections 50-34(b)(6) and 50-37.

c.

Site plan.

1.

A site plan shall be required for development within all zoning districts except single-family residential districts.

2.

The approval process for a site plan shall generally be review for conformance to city ordinances and approval by the city engineer (or his designee).

3.

A site plan validity and/or lapse or expiration shall be in accordance with sections 50-34(b)(6) and 50-37.

d.

Required plans. For the purposes of this zoning chapter, the term "required plans" is intended to refer to any of the plans listed in subsections (2)a through c of this section, as applicable.

(3)

Payment of all indebtedness attributable to the subject property. No person who owes delinquent taxes, delinquent paving assessments, or any other fees, delinquent debts or obligations or is otherwise indebted to the city, and which are directly attributable to a piece of property shall be allowed to submit any application for any type of rezoning, building permit, or plan review until the taxes, assessments, debts, or obligations directly attributable to said property and owed by the owner or previous owner thereof to the city shall have been first fully discharged by payment, or until an arrangement satisfactory to the city has been made for the payment of such debts or obligations. It shall be the applicant's responsibility to provide evidence or proof that all taxes, fees, etc., have been paid, or that other arrangements satisfactory to the city have been made for payment of said taxes, fees, etc.

(4)

Official submission date, completeness of application, and expiration of application. All applications must be submitted, reviewed for completeness and approved in accordance with section 50-34(b).

(5)

Supplemental requirements. The city's staff may require other information and data for specific required plans. Approval of a required plan may establish conditions for construction based upon such information.

(b)

Preapplication conference. Prior to formal application for approval of any required plan, the applicant may wish to consult with the city manager or his designee, the building official, the city engineer, and any other pertinent city officials in order to become familiar with the city's development regulations and the development process. At the preapplication conference, the developer may be represented by his land planner, engineer, surveyor, or other qualified professional. If such conference is desired, then the applicant shall sign a form or submit a letter stating the conference shall not establish vesting of property rights.

(c)

Site plan.

(1)

Purpose. This section establishes a review process for non-single-family developments, including those within a planned development or utilizing a conditional use permit. The purpose is to ensure that a development project is in compliance with all applicable city ordinances and guidelines prior to commencement of construction.

(2)

Applicability. Submission and approval of a site plan shall be required for all development within the following zoning districts: all nonresidential and multifamily districts.

(3)

Building permit and certificate of occupancy. A site plan shall be submitted in conjunction with a building permit application (this is a different application than the building permit plan that is discussed later within this section). No building permit shall be issued until a site plan, as required, and all other required engineering/plats/construction plans are first approved by the city. No certificate of occupancy shall be issued until all construction and development conforms to the site plan and engineering/construction plans, as approved by the city.

(4)

Extent of area that should be included in a site plan. When the overall development project is to be developed in phases, the area included within the site plan shall include only the portion of the overall property that is to be developed/constructed. The city manager or his designee may require a concept of the future phases to be submitted in conjunction with the site plan, but such plans are not part of the approval process and only to determine if the initial phases will work.

(5)

Procedures and submission requirements for site plan approval. All site plans shall be prepared by a qualified civil engineer, land planner, architect and/or surveyor, and it shall clearly show in detail how the site will be constructed (such as paving, buildings, landscaped areas, utilities, etc.). To ensure the submission of adequate information, the city is hereby empowered to maintain and distribute a separate list of specific requirements for the review of site plan applications.

(6)

Review and approval of a site plan.

a.

City staff review of site plans.

1.

Upon official submission of a complete application of a site plan for approval, the city shall review the application. Specifically, the city engineer, and the building official or his designee, shall review the site plan for conformance to this and other adopted city ordinances. Determination of application completeness, notice to applicant of missing documents and information within ten business days and expiration of application within 45 calendar days due to incompleteness shall be in accordance with section 50-34(b).

2.

Site plans shall be evaluated to ensure that all developments are, to the best extent possible, constructed according to the city's codes and ordinances.

3.

Following city staff review, and following discussions regarding necessary revisions, the applicant shall resubmit additional copies of the corrected site plan to the city manager or his designee.

4.

The city manager or his designee shall approve, approve with conditions or deny the corrected plan.

5.

It should be noted that the city manager or his designee shall deny the original plan application if the corrected version is not resubmitted within the prescribed time period.

6.

It should also be noted that a corrected plan that is incomplete or is otherwise not ready for consideration shall be subject to denial.

b.

Site plan appeal process.

1.

The applicant or property owner may appeal a denied site plan by the city staff to the planning and zoning commission by filing a written notice of appeal in the office of the city manager or his designee no later than ten calendar days after the date upon which staff denied the site plan.

2.

The notice of appeal shall set forth in clear and concise fashion the basis for the appeal. The commission shall consider the appeal at a public meeting no later than 30 calendar days after the date upon which the notice of appeal was filed.

3.

The applicant or property owner may appeal a denial of the appeal by the planning and zoning commission to the city council.

4.

The city council may affirm or reverse the decision of the planning and zoning commission by a simple majority vote.

5.

The city council may also, where appropriate, remand the site plan application back to the commission for reconsideration if it believes that there is a compelling reason to do so (such as the introduction of significant new facts or testimony, etc.).

(7)

Revisions to the approved site plan.

a.

Minor revisions/amendments.

1.

It is recognized that final architectural and engineering design may necessitate minor changes in the approved site plan. In such cases, the city manager, or his designee, shall have the authority to approve minor modifications to an approved site plan. Such minor modifications shall be submitted on an amended site plan, which shall substantially conform to the previously approved site plan.

2.

Submission materials and requirements for approval of an amended site plan shall be as determined by the city manager or his designee.

b.

Major revisions. In the event of revisions that are more extensive in nature (i.e., do not conform to the description for minor amendments in subsection (c)(7)a of this section), a revised site plan must be resubmitted, reviewed, and approved by the city manager or his designee. The city manager or his designee shall have the authority to determine whether a revised site plan warrants a review and approval as outlined in subsection (c)(7)a of this section.

(8)

Effect of review/approval. The site plan shall be considered authorization to proceed with construction of the site provided all other required plans and city approvals are obtained (such as final plat, civil engineering plans, etc.).

(9)

Validity, lapse, and reinstatement of site plan. Refer to section 50-37.

(d)

Building permit plan.

(1)

Purpose. This section establishes a review process for all development within zoning districts in which a site plan or concept plan is not required. The purpose is to ensure that development projects are in compliance with all applicable city ordinances and guidelines prior to commencement of construction.

(2)

Applicability. Submission and approval of a building permit plan shall be required for all development within all zoning districts in accordance with the adopted building codes of the city.

(3)

Building permit and certificate of occupancy. Building permit plans shall be submitted in conjunction with a building permit application. No building permit shall be issued until a building permit plan, as required, and all other required engineering/construction plans are first approved by the city. No certificate of occupancy shall be issued until all construction and development conforms to the building permit plan and engineering/construction plans, as approved by the city.

(4)

Extent of area that should be included in a building permit plan. When the overall development project is to be developed in phases, the area included within the building permit plan shall include only the portion of the overall property that is to be developed/constructed.

(5)

Procedures and submission requirements for building permit plan approval. All building permit plans shall be prepared in accordance with the adopted building codes by a qualified civil engineer, land planner, architect and/or surveyor, if required, and it shall clearly show in detail how the site will be constructed (such as paving, buildings, landscaped areas, utilities, etc.). To ensure the submission of adequate information, the city is hereby empowered to maintain and distribute a separate list of specific requirements for the review of applications.

(6)

Review and approval of a building permit plan.

a.

City staff review and approval of building permit plans.

1.

Upon official submission of a complete application of a building permit plan for approval, the city shall review the application. Specifically, the city manager, city engineer, and the building official (or their designee) shall review the building permit plan. Determination of application completeness, notice in writing to applicant of missing documents and information within ten business days and expiration of application with 45 calendar days due to incompleteness shall be in accordance with section 50-34(b)(6)c.

2.

Building permit plans shall be evaluated to ensure that all developments are, to the best extent possible, constructed according to the city's codes and ordinances.

3.

Following city staff review, the city manager or his designee shall approve, approve subject to certain conditions, or deny approval of the building permit plan.

b.

Building permit plan appeal process for zoning reasons.

1.

The applicant or property owner may appeal the denial of a building permit plan for not meeting the regulations contained in this chapter to the planning and zoning commission by filing a written notice of appeal in the office of the city manager or his designee no later than ten calendar days after the date upon which the city manager or his designee denied the building permit plan. Appeals of denials of permits for not meeting the regulations contained in the adopted building codes shall be processed in accordance with the procedures contained in those codes.

2.

The notice of appeal shall set forth in clear and concise fashion the basis for the appeal. The planning and zoning commission shall consider the appeal at a public meeting not later than 60 calendar days after the date upon which the notice of appeal was filed.

3.

The planning and zoning commission may affirm or may change the decision of the city manager or his designee by a simple majority vote.

4.

The planning and zoning commission may also, where appropriate, remand the building permit plan application back to the city manager or his designee for reconsideration if it believes that there is a compelling reason to do so (such as the introduction of significant new facts or testimony, etc.).

(7)

Revisions to the approved building permit plan.

a.

Minor revisions/amendments.

1.

It is recognized that final architectural and engineering design may necessitate minor changes in the approved building permit plan. In such cases, the city manager, or his designee shall have the authority to approve minor modifications to an approved building permit plan. Such minor modifications shall be submitted on an "amended building permit plan", which shall substantially conform to the previously approved building permit plan.

2.

Submission materials and requirements for approval of an amended building permit plan shall be as determined by the city manager or his designee.

b.

Major revisions. In the event of revisions that are more extensive in nature (i.e., do not conform to the description for minor amendments in subsection (d)(7)a of this section), a revised building permit plan must be resubmitted, reviewed, and approved by the city manager or his designee. The city manager or his designee shall have the authority to determine whether a revised building permit plan warrants a review and approval as outlined in subsection (d)(7)a of this section.

(8)

Effect of review/approval. The building permit plan shall be considered authorization to proceed with construction of the site provided all other required city approvals are obtained (such as final plat, engineering plans, etc.).

(9)

Validity, lapse, and reinstatement of building permit plan. Refer to section 50-37.

(Ord. No. 2008-01, § 12, 2-4-2008)

(a)

Land use upon annexation validity and lapse. Vested rights in land use upon annexation shall be governed by V.T.C.A., Local Government Code § 43.002.

(b)

Permit, plan or planned development validity and lapse.

(1)

Site plan validity and lapse of approval. A site plan shall be considered a "permit" as described by state law in V.T.C.A., Local Government Code § 245.005.

a.

Valid for two years. Any approved site plan shall be deemed expired two years from the date on which the site plan was originally approved by the city council if no progress has been made toward completion of the project.

b.

Progress benchmarks. The term "progress" shall be as defined based on V.T.C.A., Local Government Code § 245.005 as follows:

1.

Plans for construction and an application for a building permit for at least one of the buildings on the approved site plan are submitted within two years following approval of the site plan;

2.

A good-faith attempt is made to file with the city an application for a permit necessary to begin or continue towards completion of the project;

3.

Costs have been incurred for developing the project, including, without limitation, costs associated with roadway, utility, and other infrastructure facilities designed to serve, in whole or in part, the project (but exclusive of land acquisition) in the aggregate amount of five percent of the most recent appraised market value of the real property on which the project is located;

4.

Fiscal security is posted with the city to ensure performance of an obligation required by the city; or

5.

Utility connection fees or impact fees for the project have been paid to the city.

c.

Expiration. If one of the items listed in subsection (b)(1)b.1 through 5 of this section is not accomplished within the two-year period, the approved site plan shall expire upon the second anniversary of its approval by the city council and shall become null and void.

d.

Extension and reinstatement procedure.

1.

Prior to the lapse of approval for a site plan, the applicant may petition the city (in writing) to extend the site plan approval.

2.

Such petition shall be recommended for approval or denial by the planning and zoning commission, and shall be granted approval or denial by the city council.

3.

If no petition is submitted, then the site plan shall be deemed to have expired and shall become null and void. Any new request for site plan approval thereafter shall be deemed a new permit, and shall be submitted with a new application form, with a new filing fee, and with new plans and materials in accordance with the procedures set forth in this section. The new request shall also be reviewed for compliance with the ordinances and regulations in effect at the time the new application is made.

4.

In determining whether to grant a request for extension, the planning and zoning commission and the city council shall take into account:

(i)

The reasons for the lapse;

(ii)

The ability of the property owner to comply with any conditions attached to the original approval; and

(iii)

The extent to which development regulations would apply to the site plan at that point in time.

(2)

Building permit plan and validity and lapse of approval. A building permit plan shall be considered a "permit" as described in V.T.C.A., Local Government Code § 245.005.

a.

Valid for two years. Any approved building permit plan shall be deemed expired two years from the date on which the building permit plan was originally approved by the city council if no progress has been made toward completion of the project.

b.

Progress benchmarks. The term "progress" shall be as defined based on V.T.C.A., Local Government Code § 245.005 as follows:

1.

Plans for construction and an application for a building permit for at least one of the buildings on the approved building permit plan are submitted within two years following approval of the building permit plan;

2.

A good-faith attempt is made to file with the city an application for a permit necessary to begin or continue towards completion of the project;

3.

Costs have been incurred for developing the project including, without limitation, costs associated with roadway, utility, and other infrastructure facilities designed to serve, in whole or in part, the project (but exclusive of land acquisition) in the aggregate amount of five percent of the most recent appraised market value of the real property on which the project is located;

4.

Fiscal security is posted with the city to ensure performance of an obligation required by the city; or

5.

Utility connection fees or impact fees for the project have been paid to the city.

c.

Expiration. If one of the items listed in subsection (b)(2)b.1 through 5 of this section is not accomplished within the two-year period, then the approved building permit plan shall expire and shall become null and void.

d.

Extension and reinstatement procedure.

1.

Prior to the lapse of approval for a building permit plan, the applicant may petition the city (in writing) to extend the building permit plan approval.

2.

Such petition shall be recommended for approval or denial by the planning and zoning commission and shall be granted approval or denial by the city council.

3.

If no petition is submitted, then the building permit plan shall be deemed to have expired and shall become null and void. Any new request for building permit plan approval shall be deemed a new permit, and shall be submitted with a new application form, with a new filing fee, and with new plans and materials in accordance with the procedures set forth in this section. The new request shall also be reviewed for compliance with the ordinances and regulations in effect at the time the new application is made.

4.

In determining whether to grant a request for extension, the planning and zoning commission and the city council shall take into account:

(i)

The reasons for the lapse;

(ii)

The ability of the property owner to comply with any conditions attached to the original approval; and

(iii)

The extent to which development regulations would apply to the building permit plan at that point in time.

(3)

Conditional use permit (CUP) concept plans; validity and expiration. A CUP concept plan shall be considered a "permit" as described in V.T.C.A., Local Government Code § 245.005.

a.

Valid for two years. Any approved CUP concept plan shall be deemed expired two years from the date on which the CUP concept plan was originally approved by the city council if no progress has been made toward completion of the project.

b.

Progress benchmarks. The term "progress" shall be as defined based on V.T.C.A., Local Government Code § 245.005 as follows:

1.

Plans for construction and an application for a building permit for at least one of the buildings on the approved CUP concept plan are submitted within two years following approval of the CUP concept plan;

2.

A good-faith attempt is made to file with the city an application for a permit necessary to begin or continue towards completion of the project;

3.

Costs have been incurred for developing the project including, without limitation, costs associated with roadway, utility, and other infrastructure facilities designed to serve, in whole or in part, the project (but exclusive of land acquisition) in the aggregate amount of five percent of the most recent appraised market value of the real property on which the project is located;

4.

Fiscal security is posted with the city to ensure performance of an obligation required by the city; or

5.

Utility connection fees or impact fees for the project have been paid to the city.

c.

Expiration. If one of the items listed in subsection (b)(3)b.1 through 5 of this section is not accomplished within the two-year period, then the approved CUP concept plan shall expire and shall become null and void.

d.

Extension and reinstatement procedure.

1.

Prior to the lapse of approval for a CUP concept plan, the applicant may petition the city (in writing) to extend the CUP concept plan approval.

2.

Such petition shall be recommended for approval or denial by the planning and zoning commission and shall be granted approval or denial by the city council.

3.

If no petition is submitted, then the CUP concept plan shall be deemed to have expired and shall become null and void. Any new request for CUP concept plan approval shall be deemed a new permit, and shall be submitted with a new application form, with a new filing fee, and with new plans and materials in accordance with the procedures set forth in this section. The new request shall also be reviewed for compliance with the ordinances and regulations in effect at the time the new application is made.

4.

In determining whether to grant a request for extension, the planning and zoning commission and the city council shall take into account:

(i)

The reasons for the lapse;

(ii)

The ability of the property owner to comply with any conditions attached to the original approval; and

(iii)

The extent to which development regulations would apply to the CUP concept plan at that point in time.

(4)

Planned development (PD) concept plans; validity and expiration. In conformance with V.T.C.A., Local Government Code § 245.005, the applicant shall retain the following rights related to concept plan:

a.

Preliminary plat submittal within two years required. An application for a preliminary plat shall be submitted for approval within two years of the date of approval of a concept plan, unless otherwise provided in the PD district adopting ordinance. If a preliminary plat consistent with the concept plan is not submitted within such period, the concept plan shall expire.

b.

Expiration of an approved concept plan. Expiration of an approved concept plan (based on subsection (b)(4)a of this section) shall result in suspension of the ability to submit a preliminary plat related to the original concept plan. A new concept plan must be submitted before the development process can continue.

c.

Expiration of an approved preliminary plat.

1.

The expiration of an approved preliminary plat shall be governed by the provisions of the city's subdivision ordinance as provided in chapter 40.

2.

If a required development application (e.g., preliminary plat, final plat, building permit) is submitted within the two-year period, but such development application subsequently expires, the associated concept plan shall also expire.

(5)

Ability to retain the rights to the PD project. In conformance with V.T.C.A., Local Government Code § 245.005, the applicant shall retain the following rights related to a proposed planned development following submittal and approved of a concept plan.

a.

Ability to submit applications for five years. The applicant shall retain the ability to submit a new concept plan for a period of five years following the original approval of the concept plan. Such new concept plan may only be for a substantially similar PD project. However, any such new concept plan shall adhere to any and all new standards and regulations that the city has adopted in relation to a concept plan and/or any other PD application requirements.

b.

Expiration of project in five years. Any PD project for which no preliminary plat has been submitted for a period of five years following the approval of the related concept plan shall expire on the last day of that five-year period.

c.

Planning and zoning commission consideration. After such five-year period has ended and the project expires, the planning and zoning commission shall consider whether the undeveloped land within a PD district should be changed to another zoning classification in accordance with the procedures for a zoning amendment pursuant to section 50-34. The commission thereafter shall recommend to the city council whether the right to submit a preliminary plat or other development application for the same PD project should be reinstated, or whether the property should be rezoned to another classification.

d.

City council consideration. The commission's recommendation (as outlined in subsection (b)(5)c of this section) shall be considered by the city council in accordance with procedures for a zoning amendment pursuant to section 50-34. The council shall determine whether the right to submit the preliminary plat or other development application for the same PD District project should be reinstated, or whether the property should be rezoned to another classification. In making such determination, the city council shall consider the following factors:

1.

Whether the PD District remains consistent with the Comprehensive Plan;

2.

Whether the uses authorized in the PD District are compatible with existing and planned land uses adjacent to the site;

3.

Whether there are extenuating circumstances justifying the failure to submit a preliminary plat or other development application during the applicable time period; and

4.

Whether rezoning the property to another classification constitutes confiscation of a vested property right or deprives the owner of the economically viable use of the land.

e.

Council action. Upon subsections (b)(5)d.2 through 4 of this section occurring, the city council may take the following actions:

1.

Reinstate the right to submit the preliminary plat or other development application for the original PD District project within a certain time period, subject to any conditions that may be appropriate to ensure that significant progress will be made toward development of land within the PD District;

2.

Modify the PD District regulations applicable to the property; or

3.

Repeal the PD District for the affected portions of the property and zone such property to another zoning district classification.

(c)

Vested rights request.

(1)

Any property owner who believes that he has obtained a vested right under V.T.C.A., Local Government Code ch. 245 shall submit to the city secretary a letter explaining the factual and legal bases upon which the property owner relies in his contention that he has a particular vested right and, consequently, is exempt or not subject to a particular city order, regulation, ordinance, rule, expiration date, or other properly adopted requirement (hereinafter referred to collectively as "regulations"). Such written submission shall include, at a minimum, the following:

a.

The name, mailing address, phone number and fax number of the property owner (or the property owner's duly authorized agent);

b.

Identification of the property for which the property owner claims a vested right;

c.

Identification of the "project," as that term is defined in V.T.C.A., Local Government Code § 245.001(3);

d.

Identification of the original application for the first permit in the series of permits required for the project, as described in V.T.C.A., Local Government Code §§ 245.001(1) and 245.002(a) and (b);

e.

The date that the first permit in the series of permits required for the project was filed with the city;

f.

A chronology of the history of the project, with special emphasis on facts establishing that the project was in progress on or commenced after September 1, 1997, as required by V.T.C.A., Local Government Code § 245.003;

g.

Identification of all city regulations in effect at the time the original application for the permit was filed that the owner contends are vested and the owner contends controls the approval, disapproval, or conditional approval of an application for a permit, pursuant to V.T.C.A., Local Government Code §§ 245.002(a) and (b);

h.

Identification of all city regulations that the property owner contends do not apply to the project due to the vested rights provided the property owner by V.T.C.A., Local Government Code ch. 245; and

i.

Identification of all city regulations that the property owner contends would apply to the project that predate the regulations the property owner contends do not apply.

(2)

If a property owner contends that certain city regulations do not apply to the project, the property owner is expected to identify, with particularity, all requirements that the property owner contends do not apply. Global references to a particular ordinance, or set of criteria, may be deemed insufficient and the city may consider the request for a vested rights determination to be incomplete and, hence, not subject to a staff determination at that time.

(d)

Vested rights determination. The city secretary shall promptly forward the owner's vested rights request pursuant to section 50-37(d), along with any supporting information or documentation provided along with the request, to the city manager and city attorney for their respective reviews. The city manager, after consultation with the city attorney, shall issue a final administrative determination of whether a vested right exists in relation to the project, and shall identify, with particularity, all claims for vested rights exists in relation to the project, and shall identify, with particularity, all claims for vested rights that have been granted and all claims for vested rights that have been denied. Prior to rendering his final determination, the city manager may request a pre-determination conference with the owner to discuss the owner's vested rights claim and to ensure that the nature of the claim is fully and completely understood by the city manager prior to a final determination being rendered.

(e)

Appeals to the board of adjustments. If the property owner and/or the city council believes that the city manager's vested rights determination is in error, the property owner and/or the city council shall have the right to appeal such determination to the board of adjustments, which will have jurisdiction to hear and decide the appeal pursuant to this chapter and/or V.T.C.A., Local Government Code ch. 211. The property owner may also request the board of adjustments to grant a variance from the regulations at issue under the same standards governing variances for other matters, as set forth in this chapter and/or V.T.C.A., Local Government Code ch. 211. The property owner may also request the board of adjustments to grant a variance from the regulations at issue under the same standards governing variances for other matters, as set forth in this chapter and/or V.T.C.A., Local Government Code ch. 211.

(f)

Judicial review. Should the property owner, any aggrieved person, and/or the city council be dissatisfied with the actions of the board of adjustments, they may avail themselves of all legal remedies to review the board of adjustments' decision as set forth in V.T.C.A., Local Government Code § 211.011.

(g)

Binding determination. The city manager's final determination, if not timely appealed to the board of adjustments, shall be immediately filed in the city's files related to the project and the determination shall be considered binding upon the city and the property owner for the duration of the project. Similarly, any decision by the board of adjustments regarding a vested right claim, if not timely appealed pursuant to V.T.C.A., Local Government Code § 211.011, shall be filed in the city's files related to the project and the determination shall be considered binding upon the city and the property owner for the duration of the project. Notwithstanding the binding nature of the city manager's final determination and any ruling by the board of adjustments, the city and the property owner may, at any time, enter into a development agreement that, to the extent authorized by law, modifies the final determination and the applicable development regulations to be applied to the project.

(Ord. No. 2008-01, § 48, 2-4-2008)