§ 21. BOARD OF ADJUSTMENT

21-100. Creation; membership; appointment.

(a)

The board of adjustment shall consist of five (5) members and two (2) alternates, who shall be residents and qualified voters of the city. Appointments of members and alternates shall be made by the mayor and city council in January of each year. Terms shall be for a period of two (2) years. The board shall select from among its members a chairman and a vice chairman. The chairman and vice chairman shall act as presiding officers of the board and shall serve in that capacity for a period not to exceed two (2) years. The chairman shall not serve consecutive terms.

(b)

A vacancy on the board shall be filled by appointment by the mayor and city council for the remaining portion of the unexpired term of the vacant position being filled. The city council may remove a board member for cause, as found by the city council, on a written charge after a public hearing. The city council may, by ordinance, provide for the appointment of alternate board members to serve in the absence of one or more regular members when requested to do so by the mayor or city manager. Alternate members shall serve the same period as a regular member and is subject to removal in the same manner as a regular member. A vacancy among the alternate members shall be filled in the same manner as a vacancy among the regular members.

(c)

The board by majority vote shall adopt rules not inconsistent with this code or state law to govern its proceedings.

(Ord. No. 2012-1944, § 2, 2-21-2012)

(21-101)  Board minutes and records. The board shall keep minutes of its proceedings that indicate the vote of each member on each question or the fact that a member is absent or fails to vote. The board shall keep records of its examinations and other official actions. The minutes and records shall be filed immediately in the board's office and are public records.

(Ord. No. 2012-1944, § 2, 2-21-2012)

(21-102)  Quorum and voting. Each case before the board of adjustment must be heard by a least seventy-five percent (75%) of the members of the board of adjustment. The concurring vote of seventy-five percent (75%) of the board is necessary to:

(1)

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

(2)

decide in favor of an applicant on a matter on which the board is required to pass under the zoning ordinance; or

(3)

authorize a variation from the terms of the zoning ordinance.

(Ord. No. 2012-1944, § 2, 2-21-2012)

(21-103)  Authority of the board. The board has the following authority and duties which must be exercised in accordance with this chapter:

(1)

to hear and decide an appeals that allege error in an order, requirement, decision, or determination made by an administrative official in the enforcement of the zoning ordinance. For purposes of this section, "administrative official" means the person within a city department having the final decision-making authority within the department relative to the zoning enforcement issue. In exercising its authority under this subsection, 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;

(2)

to hear and decide special exceptions to the terms of the zoning ordinance when the zoning ordinance requires the board to do so;

(3)

to authorize variances from the front yard, side yard, rear yard, lot area, lot width, minimum floor area per dwelling unit, lot coverage, height, court standards for multi-family residential buildings, off-street parking, off-street loading or landscape regulations if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of the ordinance is observed and substantial justice is done. To grant a variance in accordance with this subsection, the board shall make findings and show in its minutes that:

(a)

the variance is necessary to permit development of a specific parcel of land which differs from other parcels of land because of special circumstances concerning the size, shape, area, topography, conditions and location of the parcel that is the subject of the variance request;

(b)

the granting of the variance will not adversely affect the land use pattern as outlined by the land use plan and will not adversely affect any other feature of the comprehensive zoning plan of the city; and

(c)

the granting of the variance will not be materially detrimental to the public welfare or to the use, enjoyment or values of the surrounding properties.

(4)

to hear and decide requests for the reconstruction, extension or enlargement of a building occupied by a nonconforming use on the lot or tract occupied by such building or the reconstruction of a structure destroyed by fire or the elements not to exceed sixty percent (60%) of its reasonable value and the addition of off-street parking or off-street loading to a nonconforming use;

(5)

to require the discontinuance of a nonconforming structure and/or the discontinuance of a nonconforming use under a plan whereby the full value of the nonconforming structure and/or the nonconforming use is amortized within a definite period of time.

(Ord. No. 2012-1944, § 2, 2-21-2012)

(21-104)  Appeal to the board of a decision made by an administrative official.

(a)

The following persons may appeal to the board of adjustment a decision made by an administrative official:

(1)

a person aggrieved by the decision; or

(2)

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

(b)

The appellant must file with the board and the official from whom the appeal is taken a notice of appeal specifying the grounds for the appeal. The appeal must be filed within ten (10) days of the decision made by the administrative official. On receiving the notice, the official from whom the appeal is taken shall immediately transmit to the board all the papers constituting the record of the action that is appealed.

(c)

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 the board or a court of record on application, after notice to the official, if due cause is shown.

(d)

Upon receipt of an appeal of a decision of an administrative official, the board shall set a reasonable time for the appeal hearing and shall give public notice of the hearing and due notice to the parties in interest. A party may appear at the appeal hearing in person or by agent or attorney. The board shall decide the appeal within a reasonable time.

(Ord. No. 2012-1944, § 2, 2-21-2012)

(21-105)  Amortization of nonconforming uses.

(a)

Compliance regulations for nonconforming uses. It is the declared purpose of this subsection that nonconforming uses be eliminated and be required to comply with regulations of this code, having due regard for the property rights of persons affected, the public welfare, and the character of the surrounding area.

(b)

Initiation of council request for compliance. By a majority vote, the city council may request that the Board of Adjustment consider establishing a compliance date for a nonconforming use.

(c)

Public hearings process.

(1)

Initial public hearing. Upon receiving a request by the city council to consider establishing a compliance date, the board shall hold an initial public hearing to determine whether continued operation of the nonconforming use will have an adverse effect on nearby properties. The board shall consider one or more of the following factors when determining whether the nonconforming use has an adverse impact on nearby properties:

(A)

the character of the surrounding neighborhood;

(B)

the degree of incompatibility of the nonconforming use with the zoning district in which the nonconforming use is located;

(C)

the manner in which the nonconforming use is being conducted;

(D)

the hours of operation of the nonconforming use;

(E)

the extent to which the continued operation of the nonconforming use may threaten public health or safety;

(F)

the environmental impacts of the nonconforming use's operation, including, but not limited to, the impacts of noise, glare, dust, odor and/or noxious emissions;

(G)

the extent to which public disturbances may be created or perpetrated by continued use of the nonconforming use;

(H)

the extent to which traffic or parking problems may be created or perpetuated by the continued use of the nonconforming use;

(I)

the extent to which the nonconforming use complies with environmental regulations and performance standards; and/or

(J)

any other factor relevant to the issue of whether continued operation of the nonconforming use will adversely affect nearby properties.

The board must make a finding that the nonconforming use will have an adverse impact on nearby properties before a second public hearing to determine a compliance date is scheduled. The board's finding must be in writing and state the reasons for its finding that the nonconforming use will adversely affect nearby properties. A decision by the board finding that the nonconforming use will have an adverse impact on nearby properties is not a final decision and cannot be appealed. A decision by the board finding that the nonconforming use will not adversely affect nearby properties is final unless appealed within ten (10) days in accordance with Chapter 211 of the Texas Local Government Code.

(2)

In the event the board makes a finding that the nonconforming use will have an adverse impact on nearby properties, the board may request financial documentation and/or records from the owner of the nonconforming use relating to the factors listed below to be considered in determining a compliance date. The owner shall provide said documents and/or records to the board at least thirty (30) days prior to the second public hearing to set a compliance date. If the owner of the nonconforming use fails to provide the requested documentation, the board is authorized to proceed forward to make a determination of a compliance date based on any reasonably available public records as well as any testimony at the second hearing. Failure by the owner to provide the requested financial documentation and/or records related to the compliance date factors shall not prevent the board from setting a compliance date.

(3)

Second public hearing. If the board, at the initial public hearing, determines that the nonconforming use will adversely affect nearby properties, the board shall hold a second public hearing to set a compliance date. The board shall, in accordance with the law, provide a compliance date for the nonconforming use under a plan whereby the owner's actual investment in the use before the time the use became nonconforming can be amortized within a definite period of time. The following factors must be considered by the board in determining a reasonable amortization period in which the owner can recoup his remaining investment:

(A)

the owner's actual capital investment in the structure(s), fixed equipment and other assets (excluding inventory and other assets that may be feasibly transferred to another site) on the property before the time the use became nonconforming;

(B)

any costs that are directly attributable to the establishment of a compliance date, including demolition expenses, termination of leases, and discharge of mortgages;

(C)

any return on investment since inception of the use, including net income and depreciation; and

(D)

the anticipated annual recovery of investment, including net income and depreciation.

(4)

Compliance requirement. If the board sets a compliance date for a nonconforming use, the owner must cease the use on that date and the use may not be conducted on the property thereafter unless the use becomes a legal, conforming use.

(5)

For purposes of this section, "owner" means the owner of the nonconforming use at the time of the board's determination of setting a compliance date for the nonconforming use.

(6)

Final decision. A decision by the board setting a compliance date is final unless appealed within ten (10) days in accordance with Chapter 211 of the Texas Local Government Code.

(Ord. No. 2012-1944, § 2, 2-21-2012)

(21-106)  Meetings, records and rules.

(a)

All meetings and hearings of the board must be open to the public in accordance with the Texas Open Meetings Act, Chapter 551 of the Texas Government Code.

(b)

All records of the board are public records open to inspection at reasonable times and upon reasonable notice in accordance with the Public Information Act, Chapter 552 of the Texas Government Code.

(c)

The board shall adopt rules not inconsistent with this code or state law to govern its proceedings.

(Ord. No. 2012-1944, § 2, 2-21-2012)

(21-107)  Effect of decision of the board. Except as provided in this section, all decisions of the board are final unless appealed to the district court, county court, or county court at law within ten (10) days in accordance with Chapter 211 of the Texas Local Government Code.

(Ord. No. 2012-1944, § 2, 2-21-2012)