The Board of Adjustment shall have the authority to hear requests for variance in accordance with the terms of this chapter. In granting a variance the Board of Adjustment will determine if the strict enforcement of this chapter would create a substantial hardship to the applicant, by virtue of unique special conditions not generally found within the City. The spirit of the Future Land Use Plan must also be preserved and balanced with the general interests of the public and the applicant. Variances may be granted only when in harmony with the general purpose and intent of this chapter so that public health, safety, and welfare may be secured.
(1) Application Requirements for Variance. The following terms prescribe the initiation and initial process of a variance application:
a. Initiation of a variance process must be made in accordance with § 211.010 of the Texas Local Government Code.
b. Applications must be made in a format consistent with requirements determined by the City Manager. Applications must include all materials determined necessary by the City Manager. Information regarding format requirements and submittal materials required for the application will be made available by the City Manager in advance of any application. Applications are available at City Hall.
c. Upon submission of an application, the City Manager will determine whether the application is complete.
d. The City Manager shall establish procedures for administrative review necessary to ensure compliance with this Code and state law.
e. The City Manager may assign staff to review the application and to provide a preliminary report to the City Manager.
(2) Required Notice and Hearings. The Board of Adjustment shall hold a public hearing to consider citizen comment concerning the application. Written notice of any such public hearing shall be mailed to all owners of real property lying within two hundred (200) feet of the property for which the variance is requested. Such notice shall be mailed not less than ten (10) days before the date set for hearing to owners that appear on the most current County tax rolls. A legal notice giving the time and place of such hearing shall be published in the official newspaper of the City, not less than fifteen (15) days before the date set for hearing.
(3) Consideration. The City Manager's report shall include a recommendation for final action. The BOA will review the application, the City Manager's report, conduct a hearing in accordance with the BOA's established procedures and state law, and take final action on the application. In accordance with Texas Local Government Code § 211.009, the concurring vote of seventy-five (75) percent of the members of the board is necessary to:
a. Reverse an order, requirement, decision or determination of an administrative official;
b. Decide in favor of an applicant on a matter on which the board is required to pass under a zoning requirement; or
c. Authorize a variance from the terms of the zoning ordinance.
(4) Criteria for Granting a Variance, Findings Required. The Board of Adjustment shall prescribe only conditions that it deems not prejudicial to the public interest, and shall enumerate its decision with findings of fact. In making the required findings, the Board of Adjustment shall take into account the nature of the proposed use of the land involved, the existing use of land in the vicinity, the number of persons who will reside or work in the proposed development, the possibility that a nuisance may be created, and the probable effect of such variance upon traffic conditions and upon public health, convenience, and welfare of the vicinity. No variance shall be granted unless the Board of Adjustment finds all of the following:
a. Extraordinary Conditions. That there are extraordinary or special conditions affecting the land involved such that strict application of the provisions of this Code will deprive the applicant of a reasonable use of the land. For example, a variance might be justified because of topographic, or other special conditions unique to the property and development involved, while it would not be justified due to inconvenience or financial disadvantage.
b. Preservation of a Substantial Property Right. That the variance is necessary for the preservation of a substantial property right of the applicant.
c. Substantial Detriment. That the granting of the variance will not be detrimental to the public health, safety, or welfare, or injurious to other property in the area, or to the City in administering this Code.
d. Other Property. That the conditions that create the need for the variance do not generally apply to other property in the vicinity.
e. Applicant's Actions. The plight of the owner of the property for which the variance is sought is due to unique circumstances existing on the property, and the unique circumstances were not created by the owner of the property.
f. Future Land Use Plan. That the granting of the variance would not substantially conflict with the Future Land Use Plan and the purposes of this chapter.
g. Utilization. That because of the conditions that create the need for the variance, the application of this Code to the particular piece of property would effectively prohibit or unreasonably restrict the utilization of the property.
(5) Insufficient Findings. The following types of possible findings alone do not constitute sufficient grounds for granting a variance:
a. That the property cannot be used for its highest and best use.
b. That there is only a financial or economic hardship.
c. That there is a self-created hardship by the property owner or its agent.
d. That the development objectives of the property owner are or will be frustrated.
e. The fact that property may be utilized more profitably should a variance be granted.
(6) Limitations. The Board of Adjustment may not grant a variance when the effect of the variance would be any of the following:
a. To allow the establishment of a use not otherwise permitted in the applicable zoning district.
b. To increase the density of a use above that permitted by the applicable district.
c. To extend physically a nonconforming use of land.
d. To change the zoning district boundaries shown on the Official Zoning Map.
(7) Time to Exercise Variances. A special exception or variance shall not be valid if action authorized is not begun within a period of ninety (90) days. Action shall include the issuance of a building permit. The Board of Adjustment may grant extensions to the ninety (90) day time period provided:
a. The Board of Adjustment is presented with a status report on the development of the Property that is the subject of the Variance and finds good cause to grant the variance."
b. Such extension shall not exceed ninety (90) days and should the applicant require additional time beyond the time granted by the extension the applicant shall be required to return to the Board of Adjustment and present an updated status report on each occasion an additional extension is requested; and the Board of Adjustment shall be required to make a finding that good cause exists before granting such extension.
c. In the event that a Variance had expired for more than sixty (60) days, the Board of Adjustment shall not be authorized to grant an exception to the expired Variance.
(8) [Withdrawn Appeals, Exceptions, Variances.] A proposed administrative appeal, special exception or variance that is withdrawn following the submission of a notice of public hearing of the Board of Adjustments shall not be submitted and considered again before twelve (12) months have passed from the date of the public hearing. If the Board of Adjustments denies an administrative appeal, refuses to grant a special exception or variance, such appeal shall not be submitted and considered again before twelve (12) months have passed from the date of the Board of Adjustments decision to disapprove and deny the appeal.
