Volente City Zoning Code
Division 3
Board of Adjustment Establishment
§ 9.02.101 General provisions.
(a)
Creation.
In accordance with section 211.008 of the Texas Local Government Code, there is hereby created a board of adjustment (hereafter referred to as the “board”) for the purpose, in appropriate cases and subject to appropriate conditions and safeguards, to make special exceptions to the terms of this article that are consistent with the general purpose and intent of this article.
(b)
Board membership.
The board shall be composed of five (5) board members and two alternate members who:
(1)
Are residents of the village; and
(2)
Have demonstrated their civic interest, general knowledge of the village, independent judgment, interest in zoning and zoning issues, and ability to attend meetings; and
(3)
By reason of their occupations and the areas of the village in which they reside are broadly representative of the village.
(c)
Appointment of board membership.
The council shall appoint the five (5) board members and the two alternate members. The alternate member(s) shall attend meetings and vote on matters before the board of adjustment if one or more of the board members are unable to attend.
(d)
Terms of office; filling of vacancies.
The terms of two (2) of the members shall expire on January 1st of each odd-numbered year, and the terms of three (3) of the members shall expire on January 1st of each even-numbered year. The term of one of the alternate members shall expire on January 1st of each odd-numbered year and the term of the other alternate member shall expire on January 1st of each even-numbered year. Place numbers one through five shall identify the members of the board. Board members may be appointed to successive terms. A member of the board shall serve until his or her successor is appointed and installed. The council shall fill vacancies for the uncompleted term of any vacant position. Newly appointed members shall be installed at the first regular board meeting after their appointment.
(e)
Removal of board members.
The council may by majority vote remove a board member or an alternate member for cause, including lack of confidence, incompetence, corruption, misconduct, or malfeasance, on a written charge after a public hearing. Any board member who misses three (3) consecutive meetings within a twelve (12) month time period or one-third (1/3) of all regular meetings shall be deemed to have automatically vacated his/her position on the board. This subsection shall not apply to a board member who applied for and received an excused absence from the board chairperson prior to the meeting(s) at issue. Any board member who no longer resides within the corporate boundaries is deemed to have automatically vacated his/her position on the board.
(f)
Motions at board meeting.
(1)
A motion may be made by any board member other than the presiding officer. The presiding officer may second a motion and may vote on all matters considered by the board.
(g)
Disqualification from voting.
A board member shall disqualify himself/herself from voting whenever the board member has a personal or monetary interest in a matter before the board that is substantially different from the interest of the other citizens of the village, or if the value of the board member’s property or interest in property will be affected in a substantially different manner than other citizens’ properties or interest in properties within the village.
(Ordinance 2016-O-173, sec. 30.126, adopted 11/15/16)
§ 9.02.102 Rules of procedure.
(a)
Organization and officers.
(1)
Officers.
(A)
The village council shall choose the chair and vice-chair.
(B)
In the absence of both the chairperson and vice-chairperson, the board shall elect an acting chair.
(C)
The village secretary shall attend to the correspondence of the board and shall cause to be given such notices as are required and in the manner prescribed by law.
(2)
Rules of order.
Robert’s Rules of Order, as amended, shall be the board’s final authority on all questions of procedure and parliamentary law not covered by this section.
(3)
Adoption of rules of procedures.
The board by majority vote shall adopt rules of precedes [procedure] that conform to this section.
(b)
Meetings.
(1)
Quorum.
A quorum for a board meeting shall be three (3) board members, except action on cases during a board meeting in accordance with section 9.02.103 of this article shall require at least four (4) board members present and voting.
(2)
Agenda.
The village secretary shall prepare an agenda for each meeting of the board, and shall attach to each agenda a report of matters pending further action by the board. The village secretary shall post a copy of the agenda in the village hall as required by law.
(3)
Special meetings.
Special meetings for any purpose may be held on the call of the chairperson, or on request of two (2) or more board members and by giving written notice to all board members deposited in the mail at least 72 hours before the board meeting, or as may be scheduled by a majority of the board at any previous meeting. The convening authority shall determine the time and place of the special meeting.
(4)
Public meetings.
All meetings of the board shall be open to the public. Any party in interest may appear in his/her own behalf or be represented by legal counsel or agent.
(c)
Official records.
(1)
Official records.
The official records shall be the minutes of the board, together with all findings, decisions and other official records of the board.
(2)
Recording of vote.
The minutes of the board’s proceedings shall show the vote of each member, or indicate a member’s absence or failure to vote.
(3)
Records retention.
All matters coming before the board shall be filed in the village’s records. Original papers of all requests and proposals shall be retained as part of the permanent record.
(4)
Public records.
The official records and citizen requests filed for board action in special meetings shall be on file with the village and shall be open to public inspection during customary work hours.
(Ordinance 2016-O-173, sec. 30.127, adopted 11/15/16)
§ 9.02.103 Authority of board.
(a)
The board shall have the authority granted in sections 211.008 through 211.011 of the Texas Local Government Code and those established herein, to exercise powers and to perform duties including the following:
(1)
Hear and decide on appeals to administrative decisions made by the village per its ordinances;
(2)
Hear and decide on special exceptions to this article via terms established in this article granting authority over expansion of nonconforming structures, section 9.02.144(e)(1)(B);
(3)
Authorize, in specific cases, a variance from the terms of this article if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of this article would result in unnecessary hardship, and so that the spirit of this article is observed and substantial justice is done; and
(4)
Hear and decide other matters as may be authorized by an ordinance adopted under this article.
(b)
In exercising its authority under subsection (a)(1) above, the board may reverse or affirm, in whole or in part, or modify the village 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 village official.
(c)
The concurring vote of at least seventy-five percent (75%) of the full board membership is necessary to:
(Ordinance 2016-O-173, sec. 30.128, adopted 11/15/16)
§ 9.02.104 Limitations on authority of board.
(a)
The board may not grant a variance authorizing a use other than those permitted in the district for which the variance is sought.
(b)
The board shall have no power to grant or modify conditional use permits authorized under the zoning regulations of the village.
(c)
The board shall have no power to grant a zoning amendment. In the event that a written request for a zoning amendment is pending before the committee or the council, the board shall neither hear nor grant any variances with respect to the subject property until final disposition of the zoning amendment.
(d)
The board shall not grant a variance for any parcel of property or portion thereof upon which a site plan, preliminary plat or final plat, where required, is pending on the agenda of the commission or where applicable, by the council. All administrative and procedural remedies available to the applicant shall have been exhausted prior to hearing by the board.
(e)
The board shall have no power to grant variances regarding water quality, including impervious cover.
(Ordinance 2016-O-173, sec. 30.129, adopted 11/15/16)
§ 9.02.105 Variances.
(a)
The board may authorize a variance from the terms of this article when, in its opinion, undue hardship will result from requiring strict compliance. In granting a variance, the board shall prescribe only conditions that it deems necessary for, or desirable to, the public interest. In making the findings hereinbelow required, the board shall take into account the nature of the proposed use of the land involved, existing uses of land in the vicinity, the number of persons who will reside or work within the proposed use, and the probable effect such variance will have upon traffic conditions and upon the public health, safety, convenience and welfare of the village.
(b)
Conditions required for variance.
No variance shall be granted without first having given public notice and having held a public hearing on the written variance request in accordance with this article and unless the board finds:
(1)
That there are special circumstances or conditions affecting the land involved such that the strict application of the provisions of this article would deprive the applicant of the reasonable use of the land; and
(2)
That the variance is necessary for the preservation and enjoyment of a substantial property right of the applicant; and
(3)
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; and
(4)
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 article.
(c)
Such findings of the board, together with the specific facts upon which such findings are based, shall be incorporated into the official minutes of the board meeting at which such variance is granted. Variances may be granted only when in harmony with the general purpose and intent of this article so that the public health, safety and welfare may be secured and that substantial justice may be done.
(d)
Findings of undue hardship.
In order to grant a variance, the board must make written findings that an undue hardship exists, using the following criteria:
(1)
That literal enforcement of the zoning controls will create an unnecessary hardship or practical difficulty in the development of the affected property; and
(2)
That the situation causing the hardship or difficulty is neither self-imposed nor generally affecting all or most properties in the same district; and
(3)
That the relief sought will not injure the permitted use of adjacent conforming property; and
(4)
That the granting of a variance will be in harmony with the spirit and purpose of this article.
(e)
A variance shall not be granted to relieve a self-created or personal hardship, nor shall it be based solely upon economic gain or loss, nor shall it permit any person the privilege of developing a parcel of land not permitted by this article on other parcels of land in the particular district. No variance may be granted which results in undue hardship upon another parcel of land.
(f)
The applicant bears the burden of proof in establishing the facts that may justify a variance.
(g)
Special exceptions for nonconforming uses.
Upon written request of the property owner the board may grant special exceptions to the provisions of section 9.02.143 of this article, limited to the following, and in accordance with the following standards:
(1)
Expansion of a nonconforming use within an existing structure; provided that, in the case of a nonconforming residential use, such expansion does not increase the number of dwelling units to more than the number existing when the use first became nonconforming.
(2)
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.
(3)
In granting special exceptions of section 9.02.105 [9.02.143] if [of] this article 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 conformed to the standards of this article.
(Ordinance 2016-O-173, sec. 30.130, adopted 11/15/16)
§ 9.02.106 Procedures.
(a)
Application and fee.
An application to the board shall be made in writing using forms prescribed by the village, and shall be accompanied by an application fee, a site plan and such additional information as may be requested in writing in order to properly review the application. Such information may include, but is not limited to, plat plans, site building plans, photographs, topographic contour maps, and other similar documents. All drawings must be to scale.
(b)
Review and report by the village.
The village shall visit the site where the requested board action will apply and the surrounding area, and shall report its findings to the board.
(c)
Notice and public hearing.
The board shall hold a public hearing for consideration of the application no later than forty-five (45) days after the date the application for action, or an appeal, is filed. Notice of the public hearing shall be provided to all property owners within two hundred feet (200') of the affected property at least ten (10) days prior to the public hearing, and also published in the official local newspaper at least ten (10) days prior to the public hearing.
(d)
Action by the board.
The board shall not grant an appeal or a variance unless it finds, based upon evidence, that each of the conditions in section 9.02.105 of this article have been met. The board may impose such conditions, limitations and safeguards as it deems appropriate upon the granting of any variance or appeal. Violation of any such condition, limitation or safeguard shall constitute a violation of this article.
(Ordinance 2016-O-173, sec. 30.131, adopted 11/15/16)
§ 9.02.107 Appeals to the board.
(a)
The appellant must file with the board and the village official from whom the appeal is taken a written notice to appeal specifying the grounds for the appeal. The appeal must be filed within sixty (60) days after the village official’s decision has been rendered. Upon receiving the notice, the village administrative official from whom the appeal is taken shall immediately transmit to the board all papers constituting the record of village action that is appealed.
(b)
An appeal stays all village proceedings in furtherance of the village action that is appealed unless the village official from whom the appeal is taken certifies in writing to the board facts supporting the village official’s opinion that a stay would cause imminent peril to life or property. In that case, the village proceedings may be stayed only by a restraining order granted by the board or a court of record on application, after notice to the village official, if due cause is shown.
(c)
The appellant may appear at the appeal hearing in person or by agent or attorney.
(d)
The board shall decide the appeal within four (4) weeks after the notice of appeal is filed with the village, after which time the appeal shall be deemed automatically approved if no formal action is taken.
(e)
The board may reverse or affirm, in whole or in part, or modify the village official’s order, requirement, decision or determination from which an appeal is taken, and may make the correct order, requirement, decision or determination.
(Ordinance 2016-O-173, sec. 30.132, adopted 11/15/16)
§ 9.02.108 Finality of decisions; judicial review.
All decisions of the board are final and binding. However, any person aggrieved by a decision of the board may present a verified petition to a court of record which 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 (10) days after the date the board’s decision is filed in the village subject to the provisions of section 211.011 of the Texas Local Government Code, [and] only a court of record may reverse, affirm or modify a decision of the board.
(Ordinance 2016-O-173, sec. 30.133, adopted 11/15/16)