West Lake Hills City Zoning Code
ARTICLE 38
02 BOARD OF ADJUSTMENT
§ 38.02.001 Creation of board of adjustment.
(a)
There is hereby created a board of adjustment of six members who are members of the governing body of the City of West Lake Hills.
(b)
Each of the six members of the board shall be entitled to one vote in all deliberations of the board.
(c)
There shall be alternate members of the board of adjustment. Alternate board of adjustment members shall be appointed by the governing body. The city administrator may designate alternate board of adjustment members to participate in a particular board of adjustment meeting in the absence of members of the board of adjustment. Alternate board of adjustment members shall count toward the establishment of a quorum, and have full voting rights during the meeting for which the alternate is designated.
(Ordinance 379 adopted 9/25/19)
§ 38.02.002 Terms.
Each member of the board shall serve a two-year term, to run concurrently with his/her term of office as members of the governing body of the city.
(Ordinance 379 adopted 9/25/19)
§ 38.02.003 Organization.
(a)
The chairperson of the board shall be the mayor of the city and shall preside over all board meetings. The board shall elect a vice chairperson from the board’s membership.
(b)
The chairperson shall serve a term of two years concurrent with the term as mayor of the city.
(c)
Notice of each application considered by the board shall be made by the applicant in the manner set forth in section 38.05.094(c) of the Code.
(Ordinance 379 adopted 9/25/19)
§ 38.02.004 Meetings.
(a)
Meetings of the board shall commence at 7:00 p.m., or shall be held at the call of the chairperson and at such other times as the board may determine.
(b)
All meetings of the board shall be open to the public and shall be subject to the Texas Open Meeting Act as set forth in chapter 551 of the Texas Government Code.
(Ordinance 379 adopted 9/25/19)
§ 38.02.005 Rules and regulations.
(a)
The board shall adopt rules necessary to conduct its affairs, and shall furnish a copy of such rules to the building official and city administrator. Rules adopted by the board shall be consistent with the provisions of state law, the City’s Code of Ordinances, and this chapter.
(b)
All orders and other enactments adopted by the board shall be in accordance with this chapter and its rules and regulations.
(c)
The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record. The office of the board shall be in the office of the city secretary where such records shall repose.
(d)
Each case shall be heard by at least 5 board members. The concurring vote of five members of the board shall be necessary to:
(Ordinance 379 adopted 9/25/19)
§ 38.02.006 Appeals to the board of adjustment.
(a)
The board shall have the power to subpoena witnesses, administer oaths, and require the production of documents under regulations it may establish.
(b)
The board shall have the power to:
(2)
Authorize, in specific cases, variances from the Code that will not be contrary to the public interest; in these specific cases, owing to special conditions, literal enforcement of the provisions of the Code provisions will result in unnecessary hardship, and so that the spirit of the Code shall be observed and substantial justice done. A variance shall not be granted, however, to authorize a change of use.
(Ordinance 379 adopted 9/25/19)
§ 38.02.007 Interpretive criteria for the granting of variances.
(a)
The board, in performing its respective duties in reference to applications for variances, shall be guided by the interpretative criteria set forth in section 38.05.033 of the code.
(b)
In exercising its authority under section 38.02.005(d)(3), the board may also consider the following as grounds to determine whether compliance with the ordinance as applied to a structure that is the subject of the appeal would result in unnecessary hardship:
(1)
The financial cost of compliance is greater than 50 percent of the appraised value of the structure as shown on the most recent appraisal roll certified to the assessor for the city under section 26.01, Tax Code;
(2)
Compliance would result in a loss to the lot on which the structure is located of at least 25 percent of the area on which development may physically occur;
(3)
Compliance would result in the structure not being in compliance with a requirement of a city ordinance, building code, or other requirement;
(4)
Compliance would result in the unreasonable encroachment on an adjacent property or easement; or
(5)
The city considers the structure to be a nonconforming structure.
(Ordinance 2022-001 adopted 2/9/22)
§ 38.02.008 Procedure for appeals to the board.
(a)
Appeal to board under section 38.02.006.
(1)
Any of the following persons may appeal to the board of adjustment a decision made by an administrative official that is not related to a specific application, address, or project under any chapter of this Code:
(2)
Any of the following persons may appeal to the board of adjustment a decision made by an administrative official that is related to a specific application, address, or project under chapter 38 of the Code:
(A)
A person who filed the application that is the subject of the decision;
(B)
A person who is the owner or representative of the owner of the property that is the subject of the decision; or
(C)
Any person who is aggrieved by the decision and is the owner of real property within 200 feet of the property that is the subject of the decision; or
(D)
Any officer, department, or board of the city affected by the decision.
(3)
(4)
The appellant must file with the secretary of the board and the official from whom the appeal is taken a notice of appeal specifying the grounds for the appeal and pay a filing fee as may be prescribed by the city council. An appeal by a person aggrieved by an action of an administrative or building official in the enforcement of this chapter shall be filed with the secretary of the board not later than the 20th day after the date the decision is made. On receiving the notice, the secretary of the board shall immediately transmit to the board all the papers constituting the record of the action that is appealed.
(5)
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 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 a court of record.
(6)
The board shall give public notice of the hearing and due notice to the parties in interest for the appeal hearing for the next meeting for which notice can be provided, but not later than the 60th day after the date the appeal is filed. A party may appear at the appeal hearing in person or by agent or attorney.
(b)
Appeals pursuant to sections 38.02.006(b)(2) (variances) and 38.02.006(b)(3) (special use permits).
(1)
Generally.
Appeals pursuant to section 38.02.006(b)(2) and 38.02.006(b)(3) shall be made in writing in a form provided by the city administrator and shall be accompanied by a site plan and additional information as may be requested in order to properly review the application. Such appeals shall be filed with the board secretary who shall transmit same as soon as possible to the chairman of the board. Such information may include, but is not limited to, plat plans, site and building plans, and contour maps. If applicant is not the legal owner(s) of the property, a statement from the owner that the applicant is the authorized agent of the owner should be provided with the application. Applications for appeals to the board under this section shall be accompanied with the payment of the filing fee. When applications are made for variances to the terms of this chapter under section 38.02.006(b)(2), either the city administrator or the city inspector shall visit the site where the proposed variance will apply and the surrounding area and shall report his findings to the board. Applications for special use permits shall be made in accordance with the procedures set forth in section 38.04.032 of this chapter.
(2)
Review by board of adjustment at public hearings.
The board shall review each application filed pursuant to section 38.02.006(b) after a public hearing and shall make a final written finding. Notice of an appeal under section 38.02.006 shall be given in the same manner as required for notice of a public hearing to consider a special use application under section 38.04.032(e) of the Code.
(3)
Requirements for approving applications for variances.
The board shall not approve a variance unless it finds, based on competent evidence, that each of the conditions in section 38.05.032 has been established. The burden of establishing such conditions is on the applicant. An approval may be conditioned on the applicant’s adoption of specified changes, conditions, limitations, or safeguards deemed appropriate by the board. A violation of any such condition, limitation or safeguard shall constitute a violation of the Code.
(4)
Requirements for approving applications for special use permits.
The board shall not approve a special use permit application unless it finds, based on competent evidence, that each of the conditions in section 38.04.033 and the criteria applicable to individual special uses under section 38.04.034 of this chapter have been established. The burden of establishing such conditions and criteria is on the applicant. An approval may be conditioned on the applicant’s adoption of specified changes, conditions, limitations, or safeguards deemed appropriate by the board. A violation of any such condition, limitation or safeguard shall constitute a violation of this Code.
(5)
Appeal of administrative official’s decisions or actions.
In exercising its authority under section 38.02.006, 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 make the correct order, requirement, decision, or determination, and for that purpose the board has the same authority as the administrative official.
(6)
Board of adjustment findings.
(A)
The final decision of the board shall be in writing and shall concisely state all pertinent and material facts upon which its findings are based and references to applicable sections of the chapter or rules that the board relied upon in reaching its decision. The final decision shall be verified by the city secretary.
(B)
The board shall forward its findings to the city council, the applicant in writing, and the secretary of the board of adjustment.
(C)
The board’s final decision shall be immediately filed with the board of adjustment office, which shall be maintained by the board’s secretary. The time and date that the board’s final decision is filed with the board’s office shall be stamped on the face of the decision.
(Ordinance 379 adopted 9/25/19)
§ 38.02.009 Variance may lapse after one year.
Any rights authorized by a variance which are not exercised within one year from the date of granting such variance shall lapse and may be reestablished only after notice and a new hearing pursuant to this article. The board may waive the requirement for the payment of fees for such variance renewal application if there has been no material change of conditions pertaining to the property since the granting of the first variance. Variances originally granted concurrently and in connection with a change of a zoning designation as set forth in section 38.05.097 hearings shall expire when and if the zoning designation is changed or the site plan approved with variance(s) expires.
(Ordinance 379 adopted 9/25/19)
§ 38.02.010 Limitations.
(a)
No appeal under section 38.02.006 may be filed by the same applicant within 365 days of the date upon which the board denied such appeal, request or application, unless other property in the immediate vicinity has, within the 365-day period, been changed or acted on by the board so as to alter the facts and conditions upon which the previous board action was based. Such change of circumstances shall permit the rehearing of an appeal, request or application by the board prior to the expiration of the 365-day period, but such conditions shall in no way have any force in law to compel the board to reconsider the appeal, request or application. Such subsequent rehearing shall be considered entirely on its merits and the peculiar and specific conditions related to the property with reference to which such proceeding is brought.
(b)
Any appeal, request or application approved by the board, either under the provision of this chapter or under the authority granted to the board under the statutes of the State of Texas, shall authorize the issuance of a building permit or a certificate of occupancy, as the case may be, for a period of 90 days from the date of the favorable action on the part of the board unless the board in its minutes shall, at the same time, approve a longer period. If an application for such building permit or certificate of occupancy is not filed within the 90-day period or such extended period as the board may specifically approve, then the approval of the appeal or variance shall be deemed waived and all rights thereunder terminated. Such termination and waiver shall be without prejudice to a subsequent appeal, request or application to the board in accordance with the rules and regulations herein contained.
(Ordinance 379 adopted 9/25/19)
§ 38.02.011 Review of board of adjustment’s decision.
(a)
Appeal.
Any person or persons, jointly or severally, aggrieved by any decision of the board or any taxpayer, or any officer, department, or board of the city may present any such matter to a court of competent jurisdiction for review after the final action of the board thereon and in the manner and upon the terms provided by the laws of the state.
(b)
Reconsideration.
Any board of adjustment decision that fails by a vote of 4 to 1 may be appealed to all 6 members of the board of adjustment. The board of adjustment may reverse such recommendations or findings by supermajority vote of those present. This appeal must be filed in writing within 30 calendar days after the rendering of board of adjustment’s recommendation.
(Ordinance 379 adopted 9/25/19)
§ 38.02.012 Enforcement.
If the variance application(s) are denied or withdrawn prior to approval, the applicant has ten (10) days to bring the property into compliance. If the deviation(s) are not corrected within the ten (10) days or timeframe agreed to, in writing, by the city administrator, immediate enforcement action described by section 2.02.041 of this code may be taken to bring the property into compliance.
(Ordinance 2021-004, att. F, adopted 6/23/21)