§ 11-1-12. Board of adjustment.
(A)
Organization. There is hereby created a board of adjustment consisting of five members, each to be appointed by the City Council for a term of two years beginning and ending on September 30 of the appropriate years. The terms of all current board members are extended to the September 30 following their currently scheduled dates of termination. The terms of three of the board members shall expire in odd-numbered years, while the terms of the other two board members shall expire in even-numbered years. The City Council may also appoint up to four alternate members to serve concurrent terms as the regular members and serve on the board when requested to do so by the chairman of the board so that all cases to be heard by the board of adjustment shall always be heard by a minimum of four members. Two alternate members shall serve terms expiring in odd-numbered years and two expiring in even-numbered years. The Council may appoint members and alternates for terms of lesser duration than two years when necessary to comply with the terms of this subsection. Vacancies in positions of both board members and alternate board members shall be filled by appointment of the Council for the remaining portion of the unexpired term. Board members and alternate board members may be removed for cause by the City Council upon written charges and after public hearing. If a board member is absent from more than 25 percent of the duly called meetings in any period of 12 consecutive months or absent from more than two duly called meetings in any period of 12 consecutive months, whichever is greater, for any reason other than a medical reason which prevents the member's attendance, it shall be presumed that cause exists for removal of the board member by the City Council. Similarly, if an alternate board member is absent from more than 25 percent of the duly called meetings at which his attendance is requested in any period of 12 consecutive months or absent from more than two duly called meetings at which his presence is requested in any period of 12 consecutive months, whichever is greater, for any reason other than a medical reason which prevents the member's attendance, it shall be presumed that cause exists for the City Council to remove the alternate board member. The term "duly called meetings" includes all meetings of the board and all meetings of subcommittees of the board on which the board member serves.
The board may adopt rules to govern its proceedings; provided, however, that such rules are not inconsistent with this Chapter. Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. 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.
(B)
Procedure for special exceptions, appeals and granting of variances.
1.
Appeals.
(a)
Appeals to the board of adjustment may be taken by a person aggrieved or by an officer, department or board of the City affected by any decision of an administrative officer. Such appeal shall be taken within 15 days' time after the decision has been rendered by the administrative officer, by filing with the officer from whom the appeal is taken and with the secretary of the board of adjustment a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith have made available to the secretary of the board all the papers constituting the record upon which the action appealed from was taken.
(b)
Such notice of appeal properly filed as herein provided shall stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of adjustment, after the notice of appeal shall have been filed with him, that, by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the board of adjustment or by a court of record on application and after notice to the officer from whom the appeal is taken and for due cause shown.
(c)
Upon notice of appeal being given to the secretary of the board of adjustment, before such appeal shall be construed as having been perfected, the applicant must deposit $300.00 with the secretary, zoning board of adjustment, to pay for the advertising, publishing and mailing of required notices, and, when an appeal involves the issue of development of a specific tract of land, the applicant must concurrently file eight copies of a site plan drawn to scale showing existing and proposed development of the property in question. The $300.00 fee shall automatically increase to $400.00 on January 1, 2008 and shall increase to $500.00 on January 1, 2009.
2.
Variances and special exceptions. Application for variances from and special exceptions to the terms of this Chapter shall be made in writing on forms provided in the office of the secretary of the board of adjustment by the prospective occupant and/or owner of the property. The applicant must deposit $300.00 with the secretary, zoning board of adjustment, to pay for the advertising, publishing and mailing of required notices, and, when an application involves the issue of development of a specific tract of land, the applicant must concurrently file eight copies of a site plan drawn to scale showing existing and proposed development of the property in question. The $300.00 fee shall automatically increase to $400.00 on January 1, 2008 and shall increase to $500.00 on January 1, 2009.
3.
Notice. The zoning board of adjustment shall hold a public hearing on all appeals and requests for special exceptions and variances, and written notice of all such public hearings shall be sent by the secretary of the board on forms prepared by the City attorney's office to the applicant and all other persons deemed by the board to be affected thereby, and all owners of real property lying within 200 feet of the property on which the special exception, variance or appeal is proposed, such notice to be given not less than ten days before the date set for hearing to all such owners who have rendered their said property for city taxes as the ownership appears on the last approved city tax roll. Such notice may be served by depositing the same, properly addressed and postage paid, in the City post office. Notice shall also be given by publishing the same in a newspaper of general circulation in the City at least ten days prior to the date set for hearing, which notice shall state the time and place of such hearing; provided, however, all provisions contained herein with respect to the mailing and publishing of notices of hearing shall be deemed sufficient upon substantial compliance with this Section.
4.
[Burden of proof.] The burden of proof shall be on the applicant to establish the facts necessary, which the zoning board of adjustment must find before granting any special exception, variance or appeal as herein contained.
5.
Limitation on reapplications. When the board of adjustment has denied a proposal, no new applications of similar nature shall be accepted by the board or scheduled for 12 months after the date of board denial. Applications which have been withdrawn at or before the board meeting may be resubmitted at any time for hearing before the board.
6.
Acceptance of applications. The secretary to the board shall not accept an application for a special exception or a variance unless the same is specifically authorized by this Code. If an appeal is made from a determination by the secretary that no variance or special exception of the nature requested is authorized by this Code, said appeal shall be to the City Council, without requirement for a public hearing, and the zoning board of adjustment shall not act on the item under question until a clarification or ruling has been obtained from the City Council.
(C)
Jurisdiction. The board of adjustment shall have the following powers:
1.
Appeals from administrative decisions. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by any administrative official of the City in the enforcement of V.T.C.A., Local Government Code, Chapter 211, or of Title XI of this Code. The board of adjustment shall not have jurisdiction to consider an appeal or any matter that concerns or effects in any way the following:
(a)
The height of any residences, detached accessory structures or attached accessory structures;
(b)
The building materials of any structures;
(c)
The size and percentage of coverage of any lots;
(d)
The height, setback, materials or openness of any fences;
(e)
The determination of what constitutes the front, side or rear yard of a lot or lots; or
(f)
The requirement of on-site or off-site parking.
The board of adjustment shall continue to have jurisdiction to consider minor architecture projections.
Any appeals of administrative decisions that concern or effect the above-listed matters may be appealed to the Midland City Council for consideration. Any such appeals must require the filing of a written application of appeal and the payment of a $300.00 fee.
2.
Special exceptions.
(a)
To hear and decide special exceptions to the terms of this Title XI upon which such board is authorized and required to pass as follows:
(1)
Where a nonconforming building or a building occupied by a nonconforming use is in being, a permit for a special exception may be issued for any of the following:
a.
The addition of off-street parking.
b.
The addition of off-street loading.
c.
The reconstruction, extension or enlargement of such building on the lot or tract upon which such nonconforming use was located as of the time it became nonconforming, provided that, where same has been destroyed by fire or the elements, such destruction does not exceed 50 percent of its reasonable value.
(2)
Require the discontinuance of nonconforming uses of land or structures under any plan whereby the full value of the structure and facilities can be amortized within a definite period of time, taking into consideration the general character of the neighborhood and the necessity of all property to conform to the regulations of this Code. All actions to discontinue a nonconforming use of land or structure shall be taken with due regard to the property rights of the persons affected when considered in the light of the public welfare and the character of the area surrounding the designated nonconforming use and the conservation and preservation of the property. The board shall, from time to time, on its own motion or upon cause presented by interested property owners or on request of the City Council or planning and zoning commission, inquire into the existence, continuation or maintenance of any nonconforming use within the City.
(3)
Allow as a special exception, by permit, an institutional sign in a residential zoning district to exceed the maximum size permitted by Section 11-7-1 through 11-7-8 of this title, subject to the following conditions:
a.
Such exception shall only be made where the sign is to be located along the frontage of an arterial street. Arterial streets include only freeways, expressways, section-line arterials and other streets of equal importance to section-line arterials. Main collector streets which serve and bisect residential sections shall not be construed as arterial streets.
b.
The sign shall not exceed the maximum size permitted for a sign in the O-1 Office District, but the board may set lesser limits if it deems appropriate.
c.
The sign shall be set back from property lines a sufficient distance to prevent an adverse effect on adjacent property.
d.
The sign shall be designed to be generally consistent with the residential character of the zoning district in which it is located.
e.
The sign shall conform to all regulations of the zoning Chapter except maximum size regulations, and only one such exception shall be granted for a single institutional use or each arterial street frontage of an institutional use.
(4)
Permit such modifications of the height or yard regulations as may be necessary to secure equity in the development of a parcel of land where it has been demonstrated that, due to the existence of nonconforming structures, a substantial proportion of the other properties in the same area and zoning district are legally enjoying the conditions which the applicant is requesting.
(5)
Permit the placement of air conditioners and other similar equipment or machinery within minimum side yard areas, contrary to Section 11-1-7(E) of this Chapter, where circumstances would render such placement unobjectionable and where the equipment (if adjacent to a street or other public area) is adequately screened from sight.
(6)
Architectural or other projections of a minor extent beyond a height limit or into required front, side or rear yard areas, provided such projections do not constitute general encroachments of living, storage, equipment or other principal use areas beyond prescribed limits, and provided the board determines that the exception will not be contrary to the intent of the Code restrictions.
(b)
The board shall deny a request for a special exception unless it shall find the following conditions have been met:
(1)
The board shall determine that satisfactory evidence has been presented that the use to be authorized by the granting of the special exception will not be detrimental to the health, safety, comfort and welfare of the occupants of the land area near the tract on which the use to be allowed by special exception will be located.
(2)
The board finds that it is clearly and specifically authorized by the terms of this Chapter to grant such a special exception and that it will be in harmony with the general purposes and intent of this Chapter.
3.
Variances.
(a)
To authorize upon request in specific cases of unnecessary hardship such variance of the height, yard, area, coverage and floor area ratio regulations and required number of parking and loading spaces prescribed by this Chapter as may be necessary to secure appropriate development of a parcel of land which differs from other parcels in the vicinity and the same zoning district by being of such restricted area, shape or slope that it cannot be reasonably developed or used without such modification. In exercising its power to grant a variance in accordance with this Chapter, the board of adjustment shall make findings and show in its minutes such facts and/or special conditions by which each of the following conditions has been satisfied:
(1)
There are special circumstances existing on the property on which the application is made related to size, shape, area, topography, surrounding condition or location that do not apply generally to other property in the same area and the same zoning district and that said circumstances or conditions are such that the strict application of the provisions of this Chapter would deprive the applicant of the reasonable use of such land or building; and
(2)
That granting of the variance on the specific property 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 plan for the area; and
(3)
That the variance, if granted, will be no material detriment to the public welfare or injury to the use, enjoyment or value of property in the vicinity; and
(4)
That the variance to be granted is the minimum variance that will relieve the proven hardship.
(b)
In exercising such authority, the board shall be mindful that a variance shall not be granted where:
(1)
The variance will operate to relieve the applicant of conditions or circumstances:
a.
Which are not inherent in the property itself, but rather are the result of the use or development of the property; or
b.
Which are caused by the division of land after the effective date hereof, which division of land caused the property to be unusable for any reasonable development under the existing regulations; or
c.
Which were otherwise self-imposed by the present or a previous owner; or
(2)
The variance is grounded solely upon the opportunity to make the property more profitable or to reduce expense to the owner; or
(3)
The variance would modify any requirement or condition placed upon a specific use permit which is in addition to the general requirements and provisions of this Chapter or would modify any provision of a planned district; or
(4)
The variance would not only affect a specific parcel of property but would be of such general nature as to constitute, in effect, a change in zoning of said parcel or a larger area, or would merit consideration of an amendment to this Code.
(D)
Actions of the board.
1.
In exercising its powers the board may, in conformity with the provisions of V.T.C.A., Local Government Code ch. 211, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken, including the power to impose reasonable conditions and safeguards to be complied with by the applicant. In exercising its powers the board shall not consider, reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination made by an administrative officer of the City, when such decisions involve matters listed in Subsection (C) Paragraph 1 herein.
2.
The concurring vote of four members of the board shall be necessary to revise any order, requirement, decision or determination of any such administrative official or to decide in favor of the applicant on any matter upon which it is required to pass under this Chapter or to affect any variance in this Chapter.
3.
Any person or persons jointly or severally aggrieved by any decision of the board of adjustment or any taxpayer or any officer, department or board of the City may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the ground of the illegality. Such petition shall be presented to the court within ten days after the filing of the decision in the office of the board and not thereafter.
4.
Any special exceptions, variances or appeals authorized or granted by the board of adjustment either under the provisions of this Chapter or under the authority granted to the board of adjustment 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 180 days from the date of the favorable action on the part of the board of adjustment, unless said board of adjustment in its minutes shall, at the same time, grant a longer period. Provided, however, no building permit shall be issued pursuant to the granting of a special exception, variance or appeal by the board of adjustment until the expiration of ten days after the filing of the decision granting such special exception, variance or appeal in the office of the board. In the event any person entitled to do so should, within said ten days, appeal the decision of the board of adjustment to the courts, no permit shall be issued by the building official pursuant to such special exception, variance or appeal until the action of the courts supporting the decision of the board becomes final, and the issuance of a building permit or certificate of occupancy, as the case may be, is authorized for a period of 180 days from the date the action of the courts became final. If the building permit and/or certificate of occupancy shall not have been requested and issued within said 180-day period, or such extended period as the board may specifically grant, then the special exception, variance or favorable appeal shall be deemed waived and all rights thereunder terminated. Such terminating and waiver shall be without prejudice to a subsequent appeal to said board in accordance with the rules and regulations herein contained.
(E)
Administrative staff. The director of planning of the City shall serve as secretary to the board and the City attorney shall serve as legal advisor.
(Ord. No. 5456, 4-24-1979; Ord. No. 5627, 8-12-1980; Ord. No. 5923, 1-26-1982; Ord. No. 6453, 9-25-1984, eff. 10-1-1984; Ord. No. 6917, 4-11-1989; Ord. No. 7381, 11-8-1994; Ord. No. 8416, §§ 1—4, 6-13-2006)
Cross reference
Commissions and boards, tit. II.