Volente City Zoning Code
Division 4
Special Provisions
§ 9.02.141 Conditional use permit.
(a)
Purpose and intent.
(1)
Nature of conditional use.
A conditional use is a land use which, because of its unique nature, is compatible with the permitted land uses in a given district only upon a determination that the external effects of the use in relation to the existing and planned uses of adjoining property and the neighborhood can be mitigated through imposition of standards and conditions. This section sets forth the standards used to evaluate proposed conditional uses and the procedures for approving conditional use permit applications.
(2)
Permit required.
No conditional use shall be established and no building permit shall be issued for any use designated as a conditional use within a district until a conditional use permit is issued in accordance with the provisions of this section. An application for a conditional use permit shall be accompanied by a conceptual site plan prepared in the manner described in the village’s site development ordinance. The conceptual site plan shall illustrate the proposed use to be established, its relationship to adjoining properties, and how it meets the approval standards set forth in subsection.
(b)
Status of conditionally permitted use.
The following general rules apply to all conditional uses:
(1)
The designation of a use in a district as a conditional use does not constitute an authorization or assurance that such use will be approved.
(2)
Approval of a conditional use permit shall authorize only the particular use for which the conditional use permit is issued.
(3)
No use authorized by a conditional use permit shall be enlarged, extended or relocated, nor may the number of dwelling units be increased, unless an application is made for approval of a new conditional use permit in accordance with the procedures set forth in this section.
(4)
Development of the use shall not be carried out until the applicant has secured all the permits and approvals required by the village’s Code of Ordinances, or any permits required by regional, state and federal agencies.
(5)
Conditional use permits are transferrable with the sale of the property, provided that notification and a transfer request have been approved by the council (excluding short-term rentals - see village’s short-term rental ordinance).
(c)
Conditional uses.
The following listed conditional uses may be authorized subject to the terms of this subsection and compliance with all conditional terms, regulations and requirements established by the council.
(1)
Municipal service facilities and buildings.
(2)
Amusement (indoor) and amusement (outdoor) park, but not within five hundred feet (500') of any residential district.
(3)
Commercial, recreational, or amusement development for temporary or seasonal periods.
(4)
Clinic.
(5)
Horse and riding stables for private use of the resident when the stable building is set back from all adjacent property lines at least fifty feet (50'), is at least one hundred feet (100') from any adjacent residence and when the site contains minimum area of one (1) acre.
(6)
Schools, public and denominational.
(7)
Telecommunications facilities - see the village’s telecommunications ordinance.
(8)
Churches, rectories, and places of worship.
(9)
Short-term rentals - see the village’s short-term rental ordinance.
(d)
Procedure.
Before authorization of any conditional use, public notice shall be given and public hearings shall be held as provided in chapter 211, Tex. Loc. Gov’t. Code; provided that a conditional use permit for a period not to exceed seven (7) calendar days may be given for a use set forth in subsection (c)(3) of this section above after a public hearing is held by the council after having received a report and recommendation from the planning and zoning commission concerning the effect of the proposed use on the adjacent and neighboring properties and neighborhoods.
(1)
Permit required.
No conditional use shall be established, operated or maintained except as authorized by a conditional use permit issued in accordance with the requirements of this section.
(2)
Application for conditional use permit.
(A)
Application requirements.
An application for a conditional use permit may be submitted by the property owner or by the property owner’s designated representative to the village. The application shall be accompanied by a conceptual site plan prepared in accordance with the requirements of the village’s site development ordinance. If a zoning amendment is required or requested in writing, such application shall accompany the application for a conditional use permit.
(B)
Subdivision approval.
If the proposed conditional use requires a division of land, an application for subdivision approval shall be submitted in conjunction with the application for a conditional use permit. Approval of the conditional use permit shall not become effective until final approval of the subdivision application; provided that if the land is to be divided in phases, the approval of the conditional use permit shall take effect upon final approval of the phase of the subdivision containing the property on which the conditional use is to be located.
(3)
Procedures for conditional use permit.
(A)
Commission recommendations.
Upon receipt of the recommendation from the village council, the planning and zoning commission shall conduct a public hearing in order to formulate its recommendations to the council on the conditional use permit application (except for short-term rentals - see short-term rental ordinance). Following the public hearing, the planning and zoning commission shall recommend approval, approval subject to modification, or denial of the proposal to the village council. If the appropriateness of the use cannot be assured at the location, the planning and zoning commission shall recommend denial of the application as being incompatible with existing uses or with other uses permitted by right in the district.
(B)
Council action.
The village council shall be the final decision-maker on applications for conditional use permits. Following a public hearing and in consideration of the commission’s recommendations, the council shall approve, modify or deny the proposal for a conditional use permit. If the appropriateness of the use cannot be assured at the location, the application for conditional use permit shall be denied as being incompatible with existing uses or with other uses permitted by right in the district.
(4)
Factors for consideration.
When considering applications for a conditional use permit, the planning and zoning commission in making its recommendation and the village council in rendering its decision on the application shall, on the basis of the conceptual site plan and other information submitted, evaluate the impact of the conditional use on, and the compatibility of the use with, surrounding properties and neighborhoods to ensure the appropriateness of the use at a particular location. The planning and zoning commission and the village council shall specifically consider the extent to which:
(A)
The proposed use at the specified location is consistent with the policies embodied in the adopted comprehensive plan;
(B)
The proposed use is consistent with the general purpose and intent of the applicable district regulations;
(C)
The proposed use meets all supplemental standards specifically applicable to the use as established in the applicable [provisions of the] village Code of Ordinances;
(D)
The proposed use is compatible with and preserves the character and integrity of adjacent development and neighborhoods and, as required by the particular circumstances, includes improvements or modifications either on-site or within the public rights-of-way to mitigate development-related adverse impacts, including but not limited to:
(i)
Adequate ingress and egress to property and proposed structures thereon with particular reference to vehicular and pedestrian safety and convenience, and access in case of fire;
(ii)
Off-street parking areas, loading areas, and pavement type;
(iii)
Refuse and service areas;
(iv)
Utilities with reference to location, availability, and compatibility;
(v)
Screening and buffering, features to minimize visual impacts, and/or setbacks from adjacent uses;
(vi)
Control of signs, if any, and proposed exterior lighting with reference to glare, traffic safety, economic effect, and compatibility and harmony with properties in the district;
(vii)
Required yards and open space;
(viii)
Height and bulk of structures;
(ix)
Hours of operation;
(x)
Exterior construction material, building design, and building facade treatment;
(xi)
Roadway adjustments, traffic-control devices or mechanisms, and access restrictions to control traffic flow or divert traffic as may be needed to reduce or eliminate development-generated traffic on neighborhood streets;
(xii)
Provision for pedestrian access, amenities and areas; and
(e)
Conditions.
In approving the conditional use permit application, the planning and zoning commission and/or the village official may recommend and the village council shall impose such conditions as are reasonably necessary to assure compliance with these standards and the purpose and intent of this article. Any conditions imposed shall be set forth in the ordinance approving the conditional use, and shall be incorporated into or noted on the conceptual site plan for final approval. The village shall verify that the conceptual site plan incorporates all conditions set forth in the ordinance authorizing the conditional use. The village shall maintain a record of such approved conditional uses and the conceptual site plan and conditions attached thereto.
(f)
Prohibition on waivers and variances.
The foregoing standards of development shall not be subject to variances that otherwise could be granted by the board of adjustment, nor may conditions imposed by the council subsequently be waived or varied by the board of adjustment. In conformity with the authority of the council to authorize conditional uses, the council may waive or modify specific standards otherwise made applicable to the use by this article, to secure the general objectives of this article; provided, however, that the council shall not waive or modify any approval factor set forth in subsection (d)(4) above.
(g)
Expiration and extension.
Termination of approval of a conditional use for failure to commence development and extension of the time for performance for a conditional use permit shall be governed by the village’s site development ordinance.
(h)
Amendment.
No proposed or existing building, premises or land use authorized as a conditional use may be established, enlarged, modified, structurally altered, or otherwise changed from that approved in the conditional use permit, unless such amendment is authorized in accordance with the standards and procedures set forth in this section, and the conditional use permit and approved site plan are amended accordingly.
(i)
Other regulations.
The board of adjustment shall not have jurisdiction to hear, review, reverse, or modify any decision, determination, or ruling with respect to the specific land use designated by any conditional use permit.
(Ordinance 2016-O-173, sec. 30.134, adopted 11/15/16)
§ 9.02.142 Changes and amendments to zoning ordinances and districts, and administrative procedures.
(a)
Declaration of policy and review criteria.
(1)
The village declares the enactment of this article 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 article or in the boundaries of the 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;
(D)
To change the property to uses in accordance with the approved comprehensive plan; or
(E)
To make changes in order to implement policies within the comprehensive plan.
(2)
In making a determination regarding a written requested zoning change, the commission and the 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 the village as a whole;
(B)
Whether the proposed change is in accord 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 village, 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 written request, particularly in the vicinity of the proposed change;
(E)
How other areas designated for similar development will be, or are unlikely to be, affected if the proposed amendment is approved; and
(F)
Any other factors which will substantially affect the public health, safety, morals, or general welfare.
(b)
Authority to amend ordinance.
(1)
The council may from time to time, after receiving a final report and recommendation thereon by the commission and after public hearings required by law, amend, supplement, or change this article or the boundaries of the districts specified on the district map. Any article amendment or district boundary amendment may be requested by the council, the commission, or, in writing by the owner of real property. Upon such request, the item(s) shall be posted on the next commission agenda after proper application and notification has been made.
(2)
Consideration for a change in any district boundary line or special zoning regulation may be initiated only by the property owner or his or her authorized agent or by the commission or by the council on its own motion when it finds that public benefit will be derived from consideration of such matter. Proof of authorization by the property owner must be submitted with the zoning application. In the event the ownership stated on an application and that shown in village records are different, the applicant shall submit proof of ownership or verification that he or she is acting as an authorized agent for the property owner.
(3)
No person who owes delinquent taxes, fees, delinquent paving assessments, impact fees, or any other delinquent debts or obligations to the village or county or to a state, or federal entity and which are directly attributable to a piece of property requested for zoning shall be allowed to submit a zoning request or amendment until the taxes, assessments, debts, or obligations directly attributable to said property and owed by the owner or previous owner thereof shall have been first fully discharged by payment, or until an arrangement in form satisfactory to the village has been made for the payment of such debts or obligations. It shall be the applicant’s responsibility to provide evidence or proof that the taxes have been paid.
(c)
Application.
Applications for zoning or for change to the existing provisions of this article shall conform to all applicable provisions of the village’s Code of Ordinances.
(Ordinance 2016-O-173, sec. 30.135, adopted 11/15/16)
§ 9.02.143 Nonconforming uses.
(a)
Intent of provisions.
(1)
Within the districts established by this article or amendments thereto, there may exist lots and tracts where the use of the land was lawfully in existence and operating before this article was enacted, amended or otherwise made applicable to such lots and tracts but which do not now conform to the zoning regulations of the district in which they are located. It is the intent of this article to permit such nonconforming uses to continue, as long as the conditions within this section and other applicable sections of this article are met.
(2)
It is further the intent of this article that nonconforming uses shall not be enlarged upon, expanded or extended, and shall not be used as a basis for adding other uses prohibited elsewhere in the same district.
(3)
Nonconforming uses are hereby declared to be incompatible with the permitted uses in the districts involved.
(b)
Nonconforming status.
(1)
Any use of a platted lot or an unplatted tract of land which does not conform with the regulations of this article on the effective date hereof or any amendment hereto, shall be deemed a lawful, nonconforming use of the lot or tract provided that:
(A)
Such use of a platted lot or tract was lawful and was in existence and was a conforming use, lot, tract structure under the provisions of the City of Austin, Texas, Travis County, Texas, and Lower Colorado River Authority applicable ordinances in effect immediately prior to the incorporation of the village; or
(B)
Such use of a platted lot or tract was lawful and was in existence and was a nonconforming use, lot, tract or structure under the provisions of the City of Austin, Texas, Travis County, Texas, and Lower Colorado River Authority applicable ordinances in effect immediately prior to the incorporation of the village; or
(C)
Such use of a platted lot or tract was in existence at the time of incorporation of the village, was a legal use of the land at such time, and has been in regular and continuous use since such time.
(2)
Any other use of the platted lot or tract which does not conform with the regulations of the district in which it is located on the effective date of this article or any amendment thereto shall be deemed to be in violation of this article, and the village shall be entitled to enforce fully the terms of this article with respect to such use of the platted lot or unplatted tract.
(c)
(d)
Changing nonconforming uses.
(1)
A nonconforming use shall not be changed to another nonconforming use.
(2)
A nonconforming use may be changed to a conforming use; provided that, once such change is made, the use shall not be changed back to a nonconforming use.
(3)
A conforming use located in a nonconforming structure may not be changed to a nonconforming use.
(e)
Expansion of nonconforming uses within an existing structure.
(1)
A nonconforming use may be extended within the building footprint of an existing structure provided that:
(A)
The building was approved for expansion of such nonconforming use prior to the adoption or amendment of this article; and
(B)
No alteration shall be made to the structure occupied by the nonconforming use, except those required by law to preserve the integrity of the structure; and
(C)
The number of dwelling units occupying the structure shall not exceed the number of dwelling units existing at the time the use became nonconforming.
(2)
A nonconforming use occupying a structure shall not be extended to occupy land outside the structure.
(3)
A nonconforming use shall not be enlarged, increased or extended to occupy a greater area of land than was occupied at the time the use became nonconforming, except to provide additional off-street parking or loading areas required by this article and by the applicable [provisions of the] village Code of Ordinances.
(f)
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 Texas Local Government Code, section 43.002, or sections 245.001 through 245.006.
(Ordinance 2016-O-173, sec. 30.136, adopted 11/15/16)
§ 9.02.144 Nonconforming structures.
(a)
Intent of provisions.
(1)
Within the districts established by this article or amendments thereto, there may exist structures which were lawfully in existence and operating before this article was enacted, amended or otherwise made applicable to such structures, but which do not now conform to the zoning regulations of the district in which they are located. It is the intent of this article to permit such nonconforming structures to continue, as long as the conditions within this section and other applicable sections of this article are met.
(2)
It is further the intent of this article that nonconforming structures may only be enlarged upon, expanded or extended beyond the existing building footprint as long as the encroachment is not increased and all other village regulations are met, and shall not be used as a basis for adding other structures prohibited elsewhere in the same district.
(b)
Nonconforming status.
(1)
Any structure which does not conform with the regulations of this article on the effective date hereof or any amendment hereto shall be deemed a lawful, nonconforming structure provided that:
(A)
Such structure was lawful and was in existence as a conforming structure under the provisions of the City of Austin, Texas, Travis County, Texas, and Lower Colorado River Authority applicable ordinances in effect immediately prior to the incorporation of the village; or
(B)
Such structure was lawful and was in existence as a nonconforming structure under the provisions of the City of Austin, Texas, Travis County, Texas, and Lower Colorado River Authority applicable ordinances in effect immediately prior to the incorporation of the village; or
(C)
Such structure was in existence at the time of incorporation of the village, was a legal structure at such time, and has been in regular and continuous use since such time.
(c)
Continuing lawful nonconforming structures.
(1)
A nonconforming structure may continue to be used, operated or occupied in accordance with the terms of the City of Austin, Texas, Travis County, Texas, or Lower Colorado River Authority regulations by which it was established.
(2)
A nonconforming structure loses its status as a nonconforming structure following abandonment of the nonconforming structure.
(d)
Abandonment of nonconforming structures.
(1)
If a nonconforming structure is abandoned, any future use of the premises shall be in conformity with the provisions of this article, as amended, prior to the time the structure was abandoned.
(2)
A nonconforming structure shall be deemed abandoned when the structure ceases to be occupied for a continuous period of ninety (90) days.
(e)
Expansion of nonconforming structures.
(1)
A nonconforming structure may be expanded beyond the building footprint of an existing structure provided that:
(A)
The expansion is into the approved buildable area of the lot and does not increase any encroachment.
(B)
Any alteration to increase the height of the dwelling unit within a setback can only be done as a special exception to this article to be granted by the board of adjustment. The conditions for qualifying for this special exception are as follows:
(i)
Only applies to an SFR dwelling unit whose nonconformance results from construction prior to the 2004 adoption of setback regulations and that currently is located in a required setback.
(ii)
Vertical expansion can only go up in the setback to a maximum height of twenty-five feet (25').
(iii)
The structure must meet all other village regulations, must be inspected by the village engineer, must follow the building permit process of the village, and no other variance related to setbacks is required.
(iv)
Notice of the BOA hearing and the proposed improvements must be given in writing to surrounding property owners. Notices are to be sent to all property owners within 200' of the affected property and must be sent prior to the 10th day before the hearing date.
(v)
The BOA should also consider:
a.
The applicant demonstrated it is a hardship to locate any proposed improvement to the dwelling unit in a part of the structure outside the setback and in the buildable area.
b.
Effect on surrounding properties including consistency of height and similarity in size and shape.
c.
Effect on orderly development of the area such as proximity of other buildings, impact on sight lines, etc.
d.
Possible effect on public health and safety, i.e. no impediments to access by emergency personnel.
e.
Property rights of those seeking an exception to the requirements for nonconforming structures should be balanced equally with the property rights of adjacent property owners.
(vi)
All applicable fees are paid.
(vii)
Special exceptions will run with the property.
(C)
The number of dwelling units occupying the structure shall not exceed the number of dwelling units existing at the time the structure became nonconforming.
(2)
A nonconforming structure can only be extended to occupy land outside of the building footprint of the nonconforming structure if that land is in the buildable area of the lot consistent with current regulations.
(f)
Restoration of nonconforming structure.
(1)
If more than sixty percent (60%) of the total appraised value of a nonconforming structure, as determined from the records of the Travis County Central Appraisal District, has been destroyed, it may be rebuilt only in conformity with the then standards of the village’s ordinances.
(2)
If less than sixty percent (60%) of the total appraised value of a nonconforming structure is destroyed, it may be reconstructed to its original dimensions.
(3)
All restoration of nonconforming structures shall comply with the village’s construction codes.
(g)
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 Texas Local Government Code, section 43.002, or sections 245.001 through 245.006.
(Ordinance 2016-O-173, sec. 30.137, adopted 11/15/16)