§ 11. Same—Powers and duties.

The board of adjustment shall have the following powers and duties:

A.

Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this appendix. The board shall apply the following standards in deciding the appeal:

1.

That there is a reasonable difference of interpretation as to the specific intent of the zoning regulations or zoning map.

2.

That the resulting interpretation will not grant a special privilege to one property inconsistent with other properties or uses similarly situated.

3.

The decision of the board must be such as will be in the best interest of the community and consistent with the spirit and interest of the city's zoning laws.

B.

Variance; conditions governing applications; authority and limitations. To authorize upon appeal in specific cases, such variance from the terms of this appendix as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this appendix would result in unnecessary hardship, and so that the spirit of the appendix shall be observed and substantial justice done. In exercising such powers of variance, the board may, in conformity with the provisions of this appendix, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and make such order, requirement, decision, or determination as ought to be made, and to that end the board shall have all the powers of the officer from whom the appeal is taken.

1.

In granting any variance, the board of adjustment may describe appropriate conditions and safeguards in conformity with this appendix. Violations of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this appendix.

2.

Under no circumstances shall the board of adjustment grant a variance to allow a use not permissible under the terms of this appendix in the district involved, or any use, expressly or impliedly, prohibited by the terms of this appendix in said district.

C.

Special exceptions. To hear and decide special exceptions to the terms of this appendix upon which the board is required to pass under this appendix.

1.

Authority and scope. The board shall have the power to grant temporary and permanent special exceptions from the city's zoning ordinance.

2.

Permanent special exceptions. A permanent special exception may be granted only for the following reasons:

a.

Interpretive authority. If a definition or term of the city's zoning ordinance is ambiguous or contrary to common understanding, the board would clarify the definition or term based on the common definition or understanding of the term. (Example: An attached garage is normally understood to mean one where there are one or more common walls and a roof structure between the garage and the main property building. A board determination may be that roof structures alone are not considered walls so one or more buildings with a breezeway between them may not be considered as "attached.") No additional special exception shall be granted based on the board's initially interpreted definition.

b.

De minimus exception. The board may grant a special exception for very small exceptions to the zoning ordinance, where the spirit of the Code is met and there is an overriding benefit to the applicant with no detriment to the surrounding neighbors or the city. (An example would be where a 9½-foot setback for building would be allowed where a ten-foot setback is required, to allow the property owner to save an oak tree.)

c.

Medical necessity. The board may grant a special exception to the above cited portions of the zoning ordinance if a medical necessity is proven, or to meet the requirements of the Americans with Disabilities Act. For medical reasons or necessity, the reason for the special exception must be related to the medical condition and be supported by a letter from the applicant's physician defining the physical limitations of the applicant.

d.

No other permanent special exception based on the board's decision or determination in one case regarding structures may be granted for other cases without the proper board determination on the subsequent cases.

e.

A permanent special exception shall have no expiration date.

3.

Temporary special exceptions. A temporary special exception, not to exceed 90 days in term, may be granted by the board to allow for the construction of noncomplying structures for reasons in addition to ambiguous definitions or terms, medical reasons/necessity, or de minimus circumstances. In order for a request for a temporary special exception to be brought before the board, there needs to be:

1)

A finding by the city's building official that an issue of noncompliance with the city's zoning ordinance would exist by virtue of applicant's construction; and

2)

There are demonstrated significant reasons why immediate action cannot reasonably be taken by the applicant to achieve compliance with the city's zoning ordinance.

No other temporary special exception based on the board's decision or determination in one case regarding structures may be granted for other cases without the proper board determination on the subsequent cases.

4.

Requirements. Temporary or permanent special exceptions may be granted only after the following items have been addressed:

a.

The city's building official has denied the applicant a permit or permits based on noncompliance with the city's zoning ordinance;

b.

The applicant has made a written request for a special exception in accordance with V.T.C.A., Local Government Code § 211.010, and section 10.B;

c.

The applicant's request is based on ambiguous definitions or terms, medical reasons or necessity or ADA compliance, or other special de minimis circumstances, and that there are demonstrated significant economic reasons why action cannot be taken by the applicant to achieve compliance with the city's zoning ordinance;

d.

There has been notice and a public hearing as required section 10.C;

e.

The applicant agrees to accept reasonable conditions or actions that the board may suggest to mitigate potential issues with or objections to the applicant's request; however, the board cannot require such conditions or actions to be accepted in return for a favorable decision by the board, rather the case must be otherwise decided on its merits. (An example is installing additional property drainage as a condition for side setback relief);

f.

In no case shall the board be authorized to grant permanent special exceptions or temporary special exceptions that would in effect allow a violation of the city's health code, life safety code or fire safety code; and

g.

Under no circumstances shall the board grant a request for a special exception that would have the effect of allowing a use not permissible under the terms of the zoning ordinance in the district involved, or any use, expressly or impliedly, prohibited by the terms of the zoning ordinance in the subject district.

5.

Finding. A special exception shall not be granted unless the board shall make a determination that the granting of the special exception will not adversely affect the public interest. In making its determination, the board shall duly consider, where applicable, the following:

a.

The most appropriate use of the land and conservation and stabilization of property values;

b.

Adequate open spaces for light and air and required yards and other open spaces;

c.

Congestion of public streets, including ingress and egress to property with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe;

d.

Off-street parking, loading and service areas where required;

e.

Economic, noise, dust, heat, glare or odor effects of the special exception on surrounding properties or the city;

f.

Utilities, with reference to locations, availability, adequacy and compatibility;

g.

Screens and buffers with reference to type, dimensions, character and adequacy;

h.

General compatibility with surrounding properties and general welfare of the persons residing and working in the area;

i.

Whether, at the public hearing, there are objections from the surrounding and affected property owners and whether the objections, if any, can be or have been resolved;

j.

For the medical necessity exception, whether the medical condition is proven and the requested exception reasonably relates to the medical condition;

k.

For the de minimis exception, whether there is an overriding benefit to the applicant with no detriment to the surrounding neighbors or the city; and

l.

The spirit of this Code is met.

D.

Vote required: appeals; variances; special exceptions. The concurring vote of four members of the board shall be necessary to reverse any order, requirements, decision, or determination of an administrative official, or to effect any variation in the application of this appendix, or to decide in favor of the applicant on any matter or special exception upon which it is required to pass or decide under this appendix.

(Ord. No. 90-18, § 2, 7-23-1990; Ord. No. 2009-04, § 1, 5-24-2009)