05-26-2020 (Zoning Board of Adjustment) BylawsSection 8.4 - Zoning Board of Adjustment.
A. Organization and Procedure.
1. Establishment. The Zoning Board of Adjustment is established in accordance with the
provisions of The Local Government Code ยง 211.008, regarding the zoning of cities and with
the powers and duties as provided in those statutes. The purpose of the Board is to review
and act on, in public hearings, requests for variances and special exceptions to the terms of
this Zoning Ordinance that are consistent with the general purposes and intent of the
Ordinance.
2. Membership. The Board shall consist of five members and two alternates to be appointed by
the City Council for a term of two years each.
a. No member shall serve on the board for more than three consecutive, two-year terms or
six consecutive years, whichever is less, unless extended by the affirmative vote of at least
three -fourths of the full membership of the City Council.
b. Except for aboard member whose tenure has been extended by the City Council as
provided above, a member who has served three consecutive, two-year terms or six
consecutive years, whichever is less, on the board may be reappointed to serve on the
board after being off the board for at least one year, and upon reappointment, the
member is eligible to serve another three consecutive terms or six consecutive years,
whichever is less. Such member is eligible, however, for appointment to a different board
or commission without waiting.
c. The City Council may remove a board member for cause, as found by the City Council, on
a written charge after a public hearing.
d. Vacancies shall be filled by the City Council for the unexpired term.
e. The board shall elect its own chairperson, who shall serve for a period of two years or
until his or her successor is elected.
f. The Council may appoint up to two alternate members of the board who shall serve in the
absence of one or more regular members when requested to do so by the Mayor or City
Manager. These alternate members, when appointed, shall serve for the same term limits,
any vacancies shall be filled in the same manner, and they shall be subject to removal as
regular members.
3. Rules and Regulations. The Board shall adopt rules and regulations and keep minutes of its
proceedings, showing the vote of each member or the fact that a member is absent or fails to
vote. The Board shall adopt from time to time such additional rules and regulations as it may
deem necessary to carry into effect the provisions of the ordinance and shall furnish a copy of
the rules and regulations to the Director, all of which rules and regulations shall operate
uniformly in all cases. All of its resolutions and orders shall be in accordance with the rules and regulations.
All proceedings of the Board shall be public record, and all meetings shall be open to the public.
4. Meetings. 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 acting chairman may administer oaths
and compel the attendance of witnesses. All meetings, hearings or proceedings shall be heard
by at least four members of the Board.
B. Initiation.
1. The Board may initiate a public hearing on issues within the Board's jurisdiction. A Board
initiated public hearing shall comply with the procedures in this section.
2. Any aggrieved person, or an officer, or department of the City may appeal a denial of a
building permit; or an interpretation, exception, or variance request from the development
code to the Board, unless a different appeal process is specifically provided in this chapter.
a. An appeal to the Board shall be made within 10 days after denial of a building permit or
written notice of an interpretation of the development code.
b. The applicant shall file with the Director a written notice of appeal on a form approved by
the Board.
c. The Director shall prepare the record of City action that is being appealed for
consideration by the Board.
3. Any aggrieved person, or an officer, or department of the City may apply for a variance from a
provision of the development code to the Board, unless a different variance process is
specifically provided in this Article.
C. Authority of the Board.
1. Subpoena Witnesses. The Board shall have the power to subpoena witnesses, administer
oaths and punish for contempt, and may require the production of documents, under
regulations as it may establish.
2. Appeals Based on Error. The Board shall have the power to hear and decide appeals where it
is alleged there is an error of law in any order, requirement, decision or determination made
by an administrative official in the enforcement of this ordinance.
3. Variances. Authorize in specific cases a variance from any term of a zoning ordinance if the
variance is not contrary to the public interest and, due to special conditions of the site, 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.
4. Other Areas ofAuthority. The Board may:
a.
Permit the erection and use of a building or the use of premises for railroads if the uses are in general
conformance with the master plan and present no conflict or nuisance to adjacent properties.
b. Permit a public utility or public service or structure in any district, or a public utility or
public service building of a ground area and of a height at variance with those provided
for in the district in which the public utility or public service building is permitted to be
located, when found reasonably necessary for the public health, convenience, safety, or
general welfare.
c. Grant a permit for the extension of a use, height or area regulation into an adjoining
district, where the boundary line of the district divides a lot in a single ownership on the
effective date of this ordinance.
d. Permit the reconstruction of a nonconforming building which has been damaged by
explosion, fire, act of God, or the public enemy, under the provisions contained in Article
9 Nonconforming Uses and Structures.
e. Waive or reduce the parking and loading requirements in any of the districts, whenever
the character or use of the building is such as to make unnecessary the full provision of
parking or loading facilities, or where such regulations would impose an unreasonable
hardship upon the use of the lot, as contrasted with merely granting an advantage or a
convenience.
D. Appeal Procedures
1. Record. The office or department from which the appeal is taken shall transmit to the Board
all of the minutes constituting the record upon which the action appealed from was taken.
2. Stay of Proceedings. An appeal shall stay all proceedings in furtherance of the action appealed
unless the Director certifies to the Board that, by reason of facts in the certificate, a stay
would, in his or her opinion, cause imminent peril to life or property, in which case
proceedings shall not be stayed otherwise than by a restraining order which may be granted
by the Board or by a court of record, after notice to the office from whom the appeal is taken
and on due cause shown.
3. Notice of Hearing on Appea/. The Board shall fix a reasonable time for the hearing of the
appeal or other matters referred to it, shall give public notice of the hearing, and shall mail
notices of the hearing to the petitioner and to the owners of property lying within 200 feet of
any point of the lot or portion of the lot on which a variation is desired, and to all other
persons deemed by the Board to be affected by the appeal. The owners and persons shall be
determined according to the current tax rolls of the City. Depositing of the written notice in
the mail shall be deemed sufficient compliance to the notification requirements.
4.
Decision by Board. The Board shall decide the appeal within a reasonable time. Upon the hearing, any party
may appear in person or by agent or attorney. The Board may reverse or affirm wholly or partly or may
modify the order, requirements, decisions or determination as in its opinion ought to be made to the
premises and, to that end, shall have all powers of the officer or department from whom the appeal is
taken.
5. Concurring Vote. The concurring vote of 75 percent of the members of the Board shall be
necessary to reverse any order, requirement, decision or determination of any administrative
official, or to decide in favor of the applicant on any matter upon which it is required to pass
under this ordinance or to affect any variance in the ordinance.
6. Standards Used in Hearing an Appeal.
a. The Board in hearing an appeal from an interpretation of the development code shall
consider:
(1) The technical meaning of the provision being appealed;
(2) Evidence of the manner in which the provision has been interpreted in the past;
(3) The positive or negative impact of the requested appeal on the achievement of stated
City development goals and objectives; and
(4) The intent of the provision in implementing the Comprehensive Plan.
b. In approving a requested interpretation of the development code, the Board shall provide
a written record of its findings and the Staff shall use it to propose amendments that
address future interpretation problems.
E. Variance Procedures.
1. Pending Action. An application or request for a variance shall not be heard or granted with
regard to any parcel of property or portion of property upon which a concept plan, detail site
plan or development plan, preliminary plat or final plat, when required by this ordinance for
any parcel of property or portion of property, has not been finally acted upon by both the
Commission and the Council. The administrative procedures and requirements of this
ordinance, with regard to Commission consideration and action, on concept plans, detail site
plans, preliminary plats and final plats, must be exhausted prior to requesting a variance from
the terms of this ordinance.
2. Variances Based on Hardship. The Board shall have the power to authorize upon appeal in
specific cases a variance from the terms of this ordinance as will not be contrary to the public
interest, where, owing to special conditions, a literal enforcement of the provisions of this
ordinance will result in unnecessary hardship and so that the spirit of this ordinance shall be
observed and substantial justice done, including the following:
a.
Permit a variance in the yard requirements of any district where there are unusual and practical difficulties
or unnecessary hardships in the carrying out of these provisions due to an irregular shape of the lot,
topographical or other conditions, provided the variance will not seriously affect any adjoining property or
the general welfare.
b. Authorize upon appeal, whenever a property owner can show that a strict application of
the terms of this ordinance relating to the construction or alterations of buildings or
structures will impose upon him or her unusual and practical difficulties or particular
hardship, such variances from the strict application of the terms of this ordinance as are
in harmony with its general purpose and intent, but only when the Board is satisfied that
a granting of the variation will not merely serve as a convenience to the applicant, but will
alleviate some demonstrable and unusual hardship or difficulty so great as to warrant a
variance from the standards or regulations established by this ordinance and, at the same
time, the surrounding property will be properly protected.
3. Submittal Requirements. A written application for variance shall be submitted with a fee,
accompanied by an accurate legal description, maps, site plans, drawings and any necessary
data, demonstrating:
a. That special conditions and circumstances exist which are peculiar to the land, structure
or building involved and which are not applicable to other lands, structures, or buildings
in the same district.
b. That literal interpretation of the provisions of this ordinance would deprive the applicant
of rights commonly enjoyed by other properties in the same district under the terms of
this ordinance.
c. That the special conditions and circumstances do not result from the actions of the
applicant.
d. That granting the variance requested will not confer on the applicant any special privilege
that is denied by this ordinance to other lands, structures or buildings in the same district.
4. Standards Used in Hearing a Variance Request.
a. The Board shall not grant a variance to the development code which:
(1) Permits a land use not allowed in the zoning district in which the property is located;
or
(2) Is in the public right-of-way or on public property; or
(3) Alters any definition of the development code; or
(4) Is other than the minimum variance that will afford relief with the least modification
possible to the requirements of the development code; or
(5)
Is based on physical conditions or circumstances of the property so general or recurring in nature as to
reasonably make practicable the formulation of a general regulation to be adopted as an amendment to
the development code; or
(6) Is based exclusively on findings of personal or financial hardship.
b. In order to grant a variance to the development code the Board shall find that all the
following have been satisfied:
(1) That there are unique physical circumstances or conditions of the lot, or other
exceptional physical condition particular to the affected property;
(2) That because of these unique physical circumstances or conditions, the property
cannot be reasonably developed or used in compliance with the provisions of the
development code;
(3) That due to such unique physical circumstances or conditions, the strict application of
the development code would create a demonstrated hardship;
(4) That the demonstrable hardship is not self-imposed;
(5) That the variance if granted will not adversely affect the proposed development or use
of adjacent property or neighborhood;
(6) That the variance, if granted will not change the character of the zoning district in
which the property is located;
(7) That the variance, if granted is in keeping with the intent of the development code;
and
(8) That the variance, if granted will not adversely affect the health, safety or welfare of
the citizens of Wylie.
c. Convenience, profit or caprice shall not constitute undue hardship.
d. This section shall not apply to variances related to signs and advertising devices.
e. The Board may impose any reasonable conditions on the issuance of a variance and may
amend the variance from that requested.
f. No nonconforming use of neighboring lands, structures, or buildings in the same district
and no permitted use of lands, structures, or buildings in other districts shall be
considered grounds for the issuance of a variance.
g. The Board shall have no authority to change any provisions of this ordinance and its
jurisdiction is limited to the scope of authority indicated in this Article. The Board may not
change the district designation of any land.
F. Public Notice.
1. The Board shall hold a public hearing on all applications and appeals.
2. Notice of the public hearing shall be provided by:
a. Publication in a newspaper of general circulation in the community at least 10 days prior
to the public hearing; and
b. In the case of variances to the development code, giving proper notice to property owners
within 200 feet of the property requesting the variance.
G. Board Action.
1. The applicant or the appellant has the burden of proof to establish the necessary facts to
warrant favorable action of the Board.
2. The Board shall have all the powers of the Director, Building Official, or applicable City official
on the action appealed from. The Board may in whole or in part affirm, reverse, or amend the
decisions of the Director, Building Official, or applicable City official.
3. The Board may impose reasonable conditions in its order to be complied with by the
appellant in order to further the purposes and intent of this chapter.
4. No single decision of the Board sets a precedent. The decision of the Board shall be made on
the particular facts of each case.
5. The appellant shall act on an approved variance or interpretation within 90 days from the
date of the favorable action of the Board or an extended period specifically granted by the
Board at the time of the hearing. If the appellant fails to act within the time period, the action
of the Board is void and the appellant shall begin the appeal process or variance process
anew.
H. Appeals to Board Action. Appeals to decisions of the Board shall be made to a district court.
