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04-26-1956 (Planning & Zoning) Bylaws R54, . /, AN ORDINANCE CREATING A PLANNING AND ZONING 5cL COMMISSION FOR THE CITY OF WYLIE, TEXAS, AND PRESCRIBING THEIR POWERS AND DUTIES . BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: That Section 1 , of Ordinance # 1956 , titled "An Ordinance Creating A Planning and Zoning Commission for the City of Wylie, Texas and Prescribing Their Powers and Duties" be amended to read as follows : Section 1 . That there is hereby created and established for the City of Wylie, Texas , a Planning and Zoning Commission, which shall be composed of 7 members . The members shall be resi- dent citizens , taxpayers and qualified voters of the City, all of whom shall be appointed by the Mayor subject to confirmation by the Governing body, to serve for terms of 2 years . All vacancies shall be filled for the unexpired term in the same manner as provided for the original appointments . All expired terms shall be filled for terms as provided for the original ap- pointments and in the same manners . Members of the Commission may be removed by the Mayor, with the consent of the Governing Body, after public hearing and for cause assigned in writing . The members of the Commission shall serve without compensation. 1 Section. 2. The Planning and Zoning Commission shall elect a Chairman and Vice Chairman from its membership and shall have power to employ such qualified persons as may be necessary for the proper conduct and undertakings of • the Commission and to pay for their services and such other necessary expenses, provided that the cost of such services and expenses shall not exceed the amount appropriated by the governing body for the use of the Commission. It shall also have the power to make rules, regulations and by-laws for its own government, which shall conform -as. nearly as 1, As amended by Ordinance #79-26 November 13, 1979. /J possible with those governing the City Council and same shall be subject to approval by such Council. Such by- laws shall include, among other items, provisions for: (a) regular and special meetings , open to the public; (b) records of its proceedings, to be open for inspection by the public; ( c) reporting to the governing body and the public, from time to time and annually; and (d) for the holding of public hearings on its recommendations. Section 3. The Planning and Zoning Commission shall have the power and it shall be its duty to make and recommend for adoption a master plan, as a whole or in parts, for • the future development and redevelopment of the municipality and its environs and shall have power and it shall be its duty to prepare a comprehensive plan and ordinance for zoning the city in accordance with Chapter 283, Acts of the Regular Session of the Legislature, 1927, (Arts. 1011a to 1011j, R.C.S. ) . The Commission shall perform such other duties as may be prescribed by ordinance of State Law. PASSED AND APPROVED, this 26th day of . April 1956. APPROVED: • A. D. Boyd Mayor Pro-Tem Mayor, City of Wylie • ATTEST: W.W. ousewright City Secretary • .- . ORU INANCE 79-26 3� AN ORDINANCE ANEI..iING PLANNING AND ZONING COM4ISSION ORIDNANCE # 1956 AS AMENDED SECTION 1 . ; SEVERABILITY ; EFFECTIVE DATE: November 13 , 1979. TO ADD SECTION 4 : TO WIT; VALIDITY Should any section or provision of this ordinance be declared invalid, such decision shall not affect the ordinance .as a whole or any part there of except the section or provision so declared to be invalid. TO ADD SECTION 5 ; The effective date of this amendment to Ordinance # 1956 shall take effect on the 13th day of November , 1979 . PASSED AND APPROVED this the 13th day of November , 1979. 2/ ohn W. Akin, Mayor ATT T: Farah A. Connelly City Secretary I4 4«ti..4y, , siP ,..:` 4 ii- .FYi� >16.�ZL.� a .l;:,balI r' '•�� i ' "�" e:�;, x :31cltkalis..,;i.a ,d.a- .r 'I ,'l li Art. 1011e CITIES, TOWNS AND VILLAGES " 'a , ` r Note 7 " a , s ordi- 10. Population increase_ Question whether amendatory zoning 5` nence was illegal and void because amount- Facts that there had been substantial in- ' � �� ing to spot zoning was one of law and not of crease in population within city limits since y p 11 , fact,and court in deciding it was required to enactment of comprehensive zoning ordi- J } , ' have due regard to all circumstances of city, nance and that there was need for multifanv- . t.'$ +, object sought to be attained and necessity ly housing and public housing did not,n and T. 1 i�� Thompson V. "spotzoning" k, n %; z=i r existing for the ordinance. of themselves, justify i City of Palestine(Civ.App.1973)502 S.W.2d rezoned subdivision from single-family use to , 4 ., #r' i 570, reversed on other grounds 510 S.W.2d multifamily use. Tippett v. City of Pharr t l l 579. (Civ.App.1980) 600 S.W.2d 951, reversed on / s Is ,,j fi cy It was zoning classification of tract of land other grounds 616 S.W.2d 173. K which was rezoned from single-family resi- -4, " «{ dential to multifamily_ residential which 11. Conditional variance i� I' Court of Civil Appeals had to consider, Record established that permission granted F therefore, quality of proposed development defendant by city to move houses onto agri- K. .- was immaterial to its decision Tippett v. - + A ' . 4 y culturally zoned property was,at most,con- , + a t , City of Pharr (Civ.Apgroun) 600 S.W.2d ditionally granted on a temporary basis sub Y� l r 4, 1 951, reversed on other grounds 616 S.W.2d j to subsequent approval by planning and �, , �x R 173. zoning commission; however, no such ap + *" " a1. ., In cases where a city amends its own corn proval was granted and,therefore,defendant ¢ " t r prehensive zoning ordinance,the reasonable was in violation of the zoning ordinance. {4, mess or arbitrariness of the proposed action is Fuentes v.City of Kingsville(Civ.App.1981) „ ."' a question of law to be decided by the court- 616 S.W.2d 679. T - ,ti-s City of Lubbock v. Austin (Sup.1982) 628 g S.W.2d 49. 12. Pleadings gg; & Accessory use of property Naked assertions that action of city zoning ;'e• ' . ' 1„.•„kt 1 Tennis court to be used solely by one board of adjustment, in granting special use 'i ,' '= family and constructed on lot containing exception so that church could conduct non- t t e . 14,s - : practice field in resides- ; lair,#�,�` their dwelling was"accessory use"customar- profit ball park and � �� ', ily incident to dwelling within city ordinance tial zone, was not in conformity with corn- g `'= prescribing zoning regulations for first dwell- prehensive plan did not establish such non- ^ ' 0 r ' ing house districts. Hardy v. Calhoun(Civ. conformity as a matter of law where nowhere ~;„ s i i { App.1965) 383 S.W.2d 652. in their pleadings did objectors to spec w, +, t+ exception challenge validity of legislative so- -4 z „ w„� 9. Traffic increases and iti ..': " Evidence of increased traffic and widened tion which permitted ball parks P y streets in area in question was not sufficient fields to be located in residential districts, .#., Board of Adjustment of City of San Antonio,. to create fact issue as to whether"spot zon- v. Leon(Civ.App.1981)621 S.W.2d 431. . L„ ins" of particular tract was justified by r ter . changed conditions in the area. Tippett v. t � ` City of Pharr (Civ.App.1980) 600 S.W.2d 13. Notice 951, reversed on other grounds 616 S.W.2d Homeowners who purchased theiri «�x"; r 173. after adoption of amendments to city cool... , , Evidence of increased traffic and widened prehensive zoning ordinance did so with streets in the area in question fails even to tice of the rezoning ordinances and th- - ,T .. y create fact issue as to whether case of"spot could not subsequently maintain -.- : -re .. , e - zoning" is justified unless increase in traffic against the city challenging the amen•• - - - `4, 4 " 1. •is tremendous or rezoning in question is sub- Leach v.City of North Richland Hills( ,,rift. �.: stantial. Id. 1982) 627 S.W.2d 854. , . , Art. 1011f. Zoning commission the legtsl (a) In order to avail itself of the powers conferred by this Act, body of a home-rule city shall, and the legislative body of a general municipality may, appoint a commission, to be known as the Zoning Corn . • ' (b) If a Zoning Commission is appointed, it shall recommend the boy'',: `; ' of the various original districts and appropriate regulations to be enforced , Such Commission shall make a preliminary report and hold public ,.s;K thereon before submitting its final report,and such legislative body �y.. its public hearings or take action until it has received the final report ' jCommission; provided,however,that any city or town,by ordinance,may '0_ for the holding of any public hearing of the legislative body, after pu ' 196 ` J H v -..,:. m . ... • % k r - • EY i CITIES, TOWNS AND VILLAGES Art. 101if ,,, �t { u, ` Note 2 s.ltrw-�+s, 1 notice required by Section 4 of this Act,jointly with any public hearing required � ��A' to be held by the Zoning Commission, but such legislative body shall not take , 'action until it has received the final report of such Zoning Commission. Where a � ', 4 l0.4.4-el.., City Plan Commission already exists, it may be appointed as the Zoning Commis- +'x , * i 4 sion. Written notice of all public hearings before the Zoning Commission on proposed changes in classification shall be sent to owners of real property lying 1", ,Vt. p� ` within two hundred (200) feet of the property on which the change in classifica- � tion is proposed, such notice to be given, not less than ten (10) days before the u,` „ a date set for hearing,to all such owners who have rendered their said property for �� citytaxes as the ownershipappears on the last approved citytax roll. Such PPe PP 4`j A `?``i� 4, notice may be served by depositing the same,properly addressed and postage paid, , ,`, . , -;- in the city post office. Where property lying within two hundred(200)feet of the i a -• „ t- property proposed to be changed is located in territory which was annexed to the d.. l city after the final date for making the renditions which are included on the last * - - approved city tax roll, notice to such owners shall be given by publication in the r e V' '. manner provided in Section 4 of this Act. ' '" 1 (c) Any other law that refers to a municipal Zoning Commission or Planning °,, 4`4 4'' « Tk Commission shall be construed as referring to the legislative body in the case of a "x '" general law municipality that exercises zoning power without appointment of a ' .. . ''' ' ''''..:::: ' ' r Zoning Commission. ...id rt t, r 14 i Amended by Acts 1979, 66th Leg., p. 1869,ch. 754, § 1,eff. Aug.27, 1979. e ,, slf Cross References Where deed provided that grantees would Ir.y '''''.1_,, '' Enforcement of land use restrictions con- make no objection to any governing body . xagainst zoning of remainder of grantors' , � � 4�- . � rained in plats,cities of more than 1,000,000, � ,,,, " ` rl - . see art. 974a-1. property for business or commercial use,ob- Ijection subsequently made to City Plan _If*`6 ' 'F Law Review Commentaries Commission by sole stockholder and presi- e, , ' f dent of corporation which was successor of s ; Annual surveyof Texas law: Property- original grantees was made in behalf of cor- � • Land utilization. Paul B. Larsen, 21 South- poration, and not in an individual capacity, western L.J. (Tex.)9, 10(1967), where sole stockholder and president owned a $n ,:4,,,, western . Regional land use control. Robert Bruce no property in vicinity and property con- 4. Evans, 22 Baylor L.Rev. 1 (1970). veyed under deed was only property owned " '= ""- Rezoning: Should it be legislative or judi- by corporation in vicinity. Id. cial function? Jerry L. Harris, 31 Baylor Right to appear before zoning cotnmission ii l g' is mere legislative right as distinguished from u ; L.Rev. 409(1979). � constitutional right. Lawton v. City of Aus- tin(Civ.App.1966)404 S.W.2d 648,ref.n.r.e. Supplementary Index to Notes Legislature may put such restrictions on r" and provide manner in which municipalitiesI Zoning changes 7 . may exercise delegation of zoning authority ,`' as it sees fit. Id Pre-election campaign statements and 1. Validity of law promises,allegedly made by home rule city's `' Notice provisions of statutes governing es- mayor and two councilmen running on polit- tablishment of and procedure by zoning corn- ical platform opposing construction of more • mission were constitutionally adequate and apartments, did not disqualify members of valid Lawton v. City of Austin (Civ.App. council from participating in its future offi- R 1966)404 S.W.2d 648,ref. n.r.e. cial actions in passing or refusing to pass ' amendatory ordinance changing zoning from 2. Construction and application apartment to residential. City of Farmers ;' Where grantees agreed to make no objec- Branch v. Hawnco, Inc. (Civ.App.I968) 435 tion to any governing body against zoning of S.W.2d 288, ref. n.r.e :f grantor's remaining property for business or Assurances in regard to continuing apart- ., , commercial use, objection subsequently ment zoning given to property owner by made to City Plan Commission was an"ob- individual members of home rule city's coon- jection to any governing body." Dilbeck v. cil were not binding on such governmental Bill Gaynier,Inc.(Civ.App.1963)368 S.W.2d body which may act only in its official capac- 804,ref.n.r.e. ity. Id - , 197 1 j t T 1 . r. air. “; 1 ... -4 c r r "�•�c... , . } stir ,,r�f€4efi"w ..aw-nt 4 e 't4a ' _ i.. CITIES, TOWNS AND VILLAGES Art. 1011g ,;: '., .`.i Requirement is not that amendment by Unger v. State (App.1982) 629 S.W.2d 811, r city council to zoning ordinance have actual- review refused. t ly been discussed before city planning corn- '-'-.7.? Exercise of police power by ordinance re- mission, msson but that opportunity was affordedquiring permit for drilling oil within home ,:, for it to have been. Midway Protective �r ti � ,� �, "��+, a .« � rule city's limits did not require city to incor- k "1„h )-, League v.City of Dallas(Civ.App.1977) 552 poste within its ordinance all of statutory m' �M S.W.2d 170, 7 A.LR. 4th 725, ref. n.r.e. requirements for zoning regulations. Id. a � , }& Generally speaking, zoning ordinances, t both original and amendatory, are presumed Home rule city's ordinance requiring per- � 4 y� ,� to be valid; consequently,extraordinary bur- mits for drilling oil wells within city limits < l 4• ', - ,den rests on party attacking the ordinance to was presumably constitutional. Id. ,w r i, t ' ,•t-' show that no conclusive or even controver- ,F +,k sial or issuable facts or conditions exist 7. Zoning changes The CityPlan Commission is anagency which would authorise city to exercise its # , �P~ discretion. Tippett v. Cityof Pharr (Civ. invested by law with duty of hearing applica- ' 1 " t PPe lions for zoninchanges and of makingrec- �'+��;;,„ ,t ,� • App.1980)600 S.W.2d 951,reversed on other B ,, t svT. s grounds 616 S.W.2d 173. ommendations thereon to the city council, Where city imposed temporary zoning in and an objection filed with the City Plan .; t1�11?- newly annexed area but did not comply with Comrrussion is in effect an objection to the +' , r ,•` • statutory zoning notice and hearing city council, which is the governing body. require- ment, and for nine years thereafter did not Dilbeck v. Bill Gaynier, Inc. (Civ.App.1963) initiate proceedings to enact permanent zon- 368 S.W.2d 804, ref.-n.r.e. t ,1 E ing plans for annexed area,temporary zoning Trial court had no authority to restrain 4 i Y t classification imposed on property annexed home rule city's planning and zoning corn- R •' was invalid. Haynes v.City of Quanah(Civ. mission from exercising its legislative func- • ..¢ , a�r , App.1980) 610 S.W.2d 842, ref. n.r.e. tion of holding public hearings on advisabil- x r' ';"t U ar lad Ordinance requiring permit from city for ity'of zoning change. City of Farmers ' ,!. 4 s drilling oil well within city limits did not Branch v. Hawnco, Inc. (Civ.App.1968) 435 1.11 t 1 y; , „' .`,' conflict with state law on the same subject. S.W.2d 288, ref. n.r.e. • ', r r' 4 x ' Art. t s +, : 1011g. Board of adjustment " a 4 ' (a) Such local legislative body may provide for the appointment of a Board of i , l r* , _ Adjustment, and in the regulations and restrictions adopted pursuant to the w ' t , authority of this Act may provide that the said Board of Adjustment may, in a ,*'', ,' appropriate cases and subject to appropriate conditions and safeguards, make ,a'. special exceptions to the terms of the ordinance in harmony with its general "0 purpose and intent and in accordance with general or specific rules therein contained. _ c.: (b) The Board of Adjustment shall consist of five (5) members, each to be appointed for a term of two (2)years and removable for cause by the appointing .t' ,*4 authorityupon written charges and afterpublic hearing. Vacancies shall be filled itt Po g g t ' �7 ; for the unexpired term of any member whose term becomes vacant. Provided, r' :1 t however, that the governing body of any city may, by charter provision or x� ry ordinance, provide for the appointment of four (4) alternate members of the v Board of Adjustment who shall serve in the absence of one or more regular r members when requested to do so by the mayor or city manager, as the case may : r be. All cases to be heard by the Board of Adjustment will always be heard by a t minimum number of four(4) members. These alternate members,when appoint- V� ed,shall serve for the same period as the regular members and any vacancies shall .. be filled in the same manner and shall be subject to removal as the regular 4 4.s members. a ,„a•. ' ' - (c) The Board shall adopt rules in accordance with the provisions of any ,F,,,, , , ordinance adopted pursuant to this Act: Meetings of the Board shall be.held at .; the call of the chairman and at such other times as the Board may_determine. ,~ ,` Such chairman, or in his absence the acting chairman, may administer oaths and ',. hi.,.. , V compel the attendance of witnesses, -All meetings of the Board shall be open to t ' t ', ' the public. The Board'shall keep minutes of its proceedings,showing the vote of '.'-':::-14 W 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 :::::::::,,,,,,,,,,,i,,,.:;ri-,.., 199 .t 7 .�.ec., t '!V , .. e 1 , Art. 1011g CITIES, TOWNS AND VILLAGES I ti ,: • which shall be immediately filed in the office of the Board and shall be a public , ""j . 1 . record. , '4 ` (d) Appeals to the Board of Adjustment may be taken by any person a i 4: '� `'' aggrieved or by any officer, department, board, or bureau of the municipality f, ' affected byanydecision of the administrative officer. Such appeal shall be taken ,* , ,' } within a reasonable time,as provided by the rules of the Board,by filing with the ` 14.! i Y1 �' &t$ _ officer from whom the appeal is taken and with the Board of Adjustment-a notice 1 of appeal specifying the thereof. The officer from whom the appeal is �: �� pie grounds � a�� ,��k ' s ' taken shall forthwith transmit to the Board all the papers constituting the record $ upon which the action appealed from was taken. -- ' i 4. `� (e) An appeal stays all proceedings in furtherance of the action appealed ie 5 r � from, unless the officer from whom the appeal is taken certifies to the Board of „a zs } , i "�, Adjustment after the notice of appeal shall have been filed with him that by a z' reason of facts stated in the certificate a stay would, in his opinion, cause t . i , t. ` imminent peril to life or property. In such case proceedings shall not be stayed ', a4:� otherwise than by a restraining order which may be granted by the Board of ,,, `, 4,,1 Adjustment or by a court of record on application on notice to the officer from - , -„` : 4. whom the appeal is taken and on due cause shown. ' ' (f) The Board of Adjustment shall fix a reasonable time for the hearing of ;'r� ,.� � a'4 t - the appeal, give public notice thereof, as well as due notice to the parties in a * 1�?i a interest, and decide the same within a reasonable time. Upon the hearing any ,"�' art mayappear inperson oragent orattorney. _ r gtt Eli, :� >�,� party PPe by gby Y •:� (g) The Board of Adjustment shall have the following powers: ' ' ,<< . I 1. To hear and decide appeals where it is alleged there is error in any order, �� ,��'' � a' requirement, decision, or determination made by an administrative official in the enforcement of this Act or of any ordinance adopted pursuant thereto. • - f W ,. ., �. 2. To hear and decide special exceptions to the terms of the ordinance upon A;., 4 4 ., A� which such Board is required to pass under such ordinance. '''t> ' ,,, 3. To authorize upon appeal in specific cases such variance from the terms of "` ', ,, the ordinance as will not be contrary to the public interest, where, owing to + `. -41 special conditions, a literal enforcement of the provisions of the ordinance will 3 • t,. i, 1 41 result in unnecessary hardship, and so that the spirit of the ordinance shall be , ,..ii,ki, 0 , ' r+i observed and substantial justice done. , ��, (h).In exercising the above-mentioned powers such Board may,in conformity , , , ' with the provisions of this Act, reverse or affirm,wholly or partly,or may modify ` . - the order, requirement, decision or determination appealed from and make such " w; ,,, order, requirement, decision or determination as ought to be made, and to that r ,i - ' .; end shall have all the powers of the officer from whom the appeal is taken. ,.g i , ri (i) The concurring vote of four (4) members of the Board shall be necessary �` 0, °" to reverse any order,requirement,decision or determination of any such adminis- 't t z " �ii st f trative official,or to decide in favor of the applicant on any matter upon which it 14 is required to pass under any such ordinance, or to effect any variation in such S ;S�' , ordinance. (j) Any person or persons, jointly or severally, aggrieved by any decision of k' µ, , F , - ' k the Board of Adjustment, or any taxpayer, or any officer, department, board or ,: bureau of the municipality, may present to a court of record a petition, duly µr i.,"*,., verified, setting forth that such decision 1s illegal, in whole or in part, specifying y the grounds of the illegality. Such petition shall be presented to the court within �T t ' ten (10) days after,the filing of the decision in the office of the Board. , 1 .. (k) Upon presentation of such petition the court may allow.a writ of p N certiorari directed to the Board of Adjustment to review such decision of the ,:, '. Board of Adjustment and shall prescribe therein the time within which a retur4 > YY thereto must be made and served upon the relator's attorney, which shall not he,- - ,N, less than ten (10)days and may be extended by the court. The allowance of ' writ shall not stay proceedings upon the decision appealed from, but the r 200 i • CITIES, TOWNS AND VILLAGES Art. 1O11g Note 2 . 4,77 may, on application, on notice to the Board and on due cause shown, grant a ' restraining order. (1) The Board of Adjustment shall not be required to return the original P papers acted upon by it, but it shall be sufficient to return certified or sworn f copies thereof or of such portions thereof as may be called for by such writ. The ; I. return shall concisely set forth such other facts as may be pertinent and materialI., to show the grounds of the decision appealed from and shall be verified. (m) If, upon the hearing, it shall appear to the court that testimony is I ,, . necessary. for the proper disposition of the matter,it may take evidence or appoint " a referee to take such evidence as it may direct and report the same to the court . 4 with his findings of fact and conclusions of law, which shall constitute a part of , r ': - the proceedings upon which the determination of the court shall be made. The i k t court may reverse or affirm wholly or partly,or may modify the decision brought ' I. up for review. `� f. "' (n) Costs shall.not be allowed against the Board unless it shall appear to the f '. court that it acted with gross negligence,or in bad faith,or with malice in making ,' wittlk t the decision appealed from." , (o) Repealed by Acts 1981, 67th Leg., p. 2646, ch. 707, § 4(54), eff. Aug. 31, 1981. r { Amended by Acts 1971,62nd Leg.,p.2385,ch. 742, § 1,eff.June 8, 1971. ll�!ll...vcss , --ii 1 Law Review Commentaries . City of Dallas (Civ.App.1974) 517 S.W.2d Judicial review of administrative orders in 344. Texas. David M. Guinn, 23 Baylor LRev. Delegation of authority from home-rule W e 34(1971). city to its board of adjustment to initially Rezoning: Should it be legislative or judi- hear and determine questions relating to cial function? Jerry L Harris, 31 Baylor nonconforming use of property was a valid _ LRev.409.(1979). exercise of city's police power. Id Standing to appeal administrative deci- In suit in which plaintiff sought injunctive- sions in Texas. Franklin S. Spears and Jeb relief and writ of mandamus to compel city C. Sanford, 33 Baylor LRev. 215 (1981). engineer to issue permit to allow repair of a Substantial evidence review in Texas building damaged by fire,error in refusing to Thomas M. Reavley, 23 Southwestern LJ. dismiss part of suit prematurely pled was (Tex.) 239(1969). hamiless,in that trial court's judgment limit- ..1 ed to constitutional issues was valid if sup- a ported by the record. Adcock v. King(Civ. Supplementary Index to Notes App.1975)520 S.W.2d 418. In suit brought by city for mandatory in- Costs 22 junction compelling removal or lowering of Discretion of court, review 21S advertising sign erected in violation of city Findings of board 24 airport zoning ordinance, trial court did not ` Injunction 13.5 il have power concurrent with that of board of Meetings 23 adjustment to issue variances, despite fact 3 Remedies generally 15.5 that, on appeal from board of adjustment, Res judicata 25 court could have determined independently whether exception or variance was appropri- ate, and thus could not permit advertising 2. In general sign to remain as a variance to airport zoning Legislature may put such restrictions on ordinance. City of Dallas v. Gaechter(Civ. - and provide manner in which municipalities App.1975) 524 S.W.2d 400, error dismissed may exercise delegation of zoning authority Where undisputed testimony established as it sees fit. Lawton v. City of Austin that building fronted on highway and that (Civ.App.1966) 404 S.W.2d 648, ref. n.r.e. wall of building which did face eastern street This article which provides that boards of was solid wall without any doors or win- adjustment of home-rule cities shall have au- dows,property was subject to 50-foot setback thority "to hear and decide appeals" grants requirement for highway despite owner's authority and does not prohibit boards of contention that his building 'fronted" on adjustment from hearing matters initially if eastern street. Reiter v.City of Keene(Civ. granted such right by city council. White v. App.1980) 601 S.W.2d 547, certiorari denied 4 201 4 11 A y £ems F »1. .. ,,p `_` 111 the effective date of this Ordinance or was a nonconforming use under the provisions of the prior zoning ordinance and has since been in regular and continuous use. 20-101 Any non-conforming use of land or structures may be continued for definite periods of time subject to such regulations as the Board of Adjustment may require for immediate preservation of the adjoining property prior to the ultimate removal of the non-conforming use. The Building Inspector may grant a change of occupancy from one non-conform- ing use to another, providing the use is within the same, or higher or more restricted classification as the original non-conforming use and 11 such change of use and occupancy will not tend to prolong and continue the non-conforming use. In the event a non-conforming use of a building may be changed to another non-conforming use of the same or more restricted classification, it shall not later be changed to a less restrictive classification of use and the prior less restrictive classification shall be considered to have been abandoned. 20-102 If a structure occupied by a non-conforming use is destroyed by fire, the elements or other cause, it may not be rebuilt except to conform to the provisions of this ordinance. In the case of partial destruction of a non-conforming use not exceeding ninety (90) percent of its reason- able value, reconstruction will be permitted but the size or function of the non-conforming use cannot be expanded. 2E0007 11 SECTION 21: BOARD OF ADJUSTMENT I 21-100 Organization: There is hereby created a Board of Adjustment consisting of five (5) members who are qualified citizens and voters and are members of the Plannin_g_Commission or City Council , each to be appointed by resolution of the City Council for a term of two years and removable for cause by the appointing authority upon written charges and after public hearing. Vacancies shall be filled for the unexpired term of any member, whose place becomes vacant for any cause, in the same manner as the original appointment was made. Two members heretofore appointed shall serve until or until their successors are appointed and three members, as heretofore appointed, shall serve until or until their successors are appointed, and thereafter each member reappointed or each new appointee shall serve for a full term of two years unless removed as hereinabove provided. Provided, however, that the City Council may appoint two alternate members of the Board of Adjustment who shall serve in the absence of one or more of the regular members when requested to do so by the Mayor. All cases to be heard by the Board of Adjustment will always be heard by a minimum number of four members. These alternate members, when appointed, shall serve for the same period as the regular members, which is for a term of two years, and any vacancy shall be filled in the same manner and they shall be subject to removal the same as the regular members. 21-101 The Board shall adopt rules to govern its proceedings, provided however, that such rules are not inconsistent with this ordinance or any State Statutes. Meetings of the Board shall be held at the call of the I 38 1 - N Chairman and at such other times as the Board may determine. The Chairman, or in his absence, the.Acting Chairman, may administer oath 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, indicate 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. 21-102 Appeals to the Board of Adjustment may be taken by any person aggrieved I or by�n officer, depar men or nicipality effected by - any decision of the administrat ve__officer, by filing with the officer from whom the appeal is to ek n and with the Board of Adjustment, a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken. I21-103 An appeal shall stay all proceedings 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 on notice to the officer from whom the appeal is taken and on due cause shown. I21-104 The Board of Adjustment shall fix a reasonable time for the hearing of an appeal , give the public notice thereof, as well as due notice to the parties in interest and decide the same within a reasonable time. Upon the hearing any party may appear in person or by attorney or by agent. 21-200 The Board of Adjustment shall hold a public hearing on all appeals made to it and written notice of such public hearing shall be sent to the applicant and all other persons who are owners of real property lying within two hundred (200) feet of the property on which the appeal is made. Such notice shall be given not less than ten (10) 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 City tax roll . Such notice may be served by depositing the same properly addressed and postage paid in the United States Post Office. 21-300 Jurisdiction: When in the Board of Adjustment's judgment, the public convenience and welfare will be substantially served and the appropri- ate use of the neighboring property will not be substantially or permanently injured, the Board of Adjustment may, in specific cases, after public notice and public hearing, and subject to appropriate conditions and safeguards authorize the following special exceptions to the regulations herein established. 1. Permit the reconstruction, extension or enlargement of a building occupied by non-conforming use on the lot or tract occupied by such building provided such reconstruction does not prevent the return of such property to a conforming use. 39 2. Permit such modifications of the height, yard, area, coverage and parking regulations as may be necessary to secure appropriate development of a parcel of land which differs from other parcels in the district by being of such restricted area, shape, or slope j that it cannot be appropriately developed without such modification. 3. Require the discontinuance of non-conforming uses under any plan whereby the full value of the structure can be amortized within a definite period of time, taking into consideration the general character of the neighborhood and the necessity for all property to conform to the regulations of this ordinance. It is the declared purpose of this ordinance that non-conforming uses be eliminated and be required to conform to the regulations prescribed in the preceding articles of this ordinance, having due regard for the property rights of the persons affected when considered in the light of the public welfare and the character of the area surrounding the desig- nated non-conforming use and the conservation and preservation of property. The Board shall from time to time on its own motion or upon cause presented by interested property owners inquire into the existence, continuation or maintenance of any non-conforming use within the City. 21-400 In exercising its powers, the Board may, in conformity with the provi- sions of Articles 1011-A and including 1011-J of the 1925 Civil Statutes of Texas, as amended, revised or reformed, wholly or partly, or may modify the order, requirement, decisions, or determination appealed from and make such order, requirement, decision or determin- ation as ought to be made and shall have all the powers of the officer from whom the appeal is taken including the power to impose reasonable conditions to be complied with by the applicant. 21-500 The concurring vote of four (4) 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 application on any matter upon which it is required to pass under this ordinance or to affect any variance in said ordinance. - 21-600 Any person or persons, jointly or severally, aggrieved by any decision of to Board of Adjustment or any taxpayer or any officer, department or board of the municipality may present to a court of record a petition, duly verified, setting forth that such decision is illegal , in whole or part, specifying the grounds of the illegality. Such petition shall be presented to the court within ten (10) days after the filing of the decision in the Office of the Board and not thereafter. SECTION 22: PROCEDURES FOR CHANGES AND AMENDMENTS 22-100 Any person or corporation or group of persons having a proprietary interest in any property, upon proof of such interest, may petition the governing body for a change or amendment to the provisions of this ordin- ance or the Planning and Zoning Commission may on its own motion, insti- tute proposals for change and amendment in the public interest. All 1 40 1 I