1994-078· , J:\%;pdoos\ord\boa.ord
AN ORDINANCE AMENDING ARTICLE II ENTITLED "BOARD OF ADJUSTMENT" OF
CHAPTER 35 OF THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS,
RELATING TO "ZONING" BY REPEALING SECTIONS 35-41 THROUGH 35-46 AND
ADOPTING NEW SECTIONS 35-41 THROUGH 35-55 PROVIDING FOR THE ORGANI-
ZATION, JURISDICTION AND RULES OF PROCEDURE FOR THE ZONING BOARD OF
ADJUSTMENT; PROVIDING AN APPEAL PROCEDURE; PROVIDING FOR THE
AMORTIZATION, TERMINATION, DISCONTINUATION AND RESTORATION OF
NONCONFORMING USES AND STRUCTURES; PROVIDING FOR VARIANCES AMD
SPECIAL EXCEPTIONS; PROVIDING FOR JUDICIAL REVIEW OF BOARD
DECISIONS; PROVIDING A SEVERABILITY CI~USE; PROVIDING FOR A MAXIMUM
PENALTY OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the present regulations relating to the Zoning Board
of Adjustment are not easily understandable by citizens and devel-
opers alike; and
WHEREAS, the present regulations do not definitely describe
the procedures for terminating nonconforming uses; and
WHEREAS, the Planning and Zoning Commission has held a public
hearing to consider the proposed amendments to the Article of the
Zoning Ordinance relating to the Zoning Board of Adjustment on
February 9, 1994 and recommends approval of these amendments to the
city Council; and
WHEREAS, the city Council of the City of Denton has held a
public hearing to consider the adoption of this ordinance and finds
the proposed amendments to Chapter 35 of the Code of Ordinances to
be reasonably related to the City's desire to make its ordinances
more understandable to the general public and to increase the
opportunities to terminate nonconforming uses and structures; NOW,
THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That Chapter 35 of the Code of Ordinances relating
to "Zoning" is hereby amended by repealing Sections 35-41 through
35-46 and adopting new Sections 35-41 through 35-54, so that here-
after the same shall read as follows:
Sec. 35-41. Organization of Boar4 of Adjustment.
The Board of Adjustment (Board) shall consist of five (5)
members, each to be appointed by the City Council for a staggered
term of two (2) 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. The City Council shall appoint two (2)
alternate members of the Board who shall serve in the absence of
one or more of the regular members when requested to do so by the
Mayor or City Manager, as the case may be. All cases to be heard by
the Board will always be heard by a minimum number of four (4)
members. The alternate members, when appointed, shall serve for the
same period as the regular members, which is for a term of two (2)
years, and any vacancy shall be filled in the same manner as for
regular members, and shall be subject to removal in the same manner
as the regular members.
See. 35-42. Jurisdiction of Board of Adjustment.
When in its judgment, the public convenience and welfare will
be substantially served and the appropriate use of the neighboring
property will not be substantially injured, the Board may, in
specific cases, after public notice and public hearing, and subject
to appropriate conditions and safeguards, act upon certain appeals,
as identified below.
(a) Review of Administrative Decisions. The Board may:
(1) Hear and decide appeals from an Administrative
officer where it is alleged there is error on any order,
requirement, decision or determination made by any officer in
the enforcement of this ordinance; and
(2) Hear and decide appeals from an Administrative
officer's interpretation as to the nature or type of use, for
the purpose of determining the classification and
applicability of the parking standards, appropriate district
for the location of such use, or any other regulations of this
ordinance as may be applied to such use.
(b) Nonconforming Uses and Structures. The Board may:
(1) Evaluate and cause the termination of nonconforming
uses after considering the actual investment in the
structure(s).
(2) Evaluate and consider the change of a nonconforming
use to another nonconforming use.
(3) Consider the replacement, renovation, remodeling or
repair to nonconforming structure(s).
(c) Variances - The Board may authorize in specific cases a
variance from the terms of a zoning ordinance if the variance is
not contrary to the public interest and, due to special conditions,
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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.
(d) Special Exceptions - The board may hear and decide
special exceptions to the terms of the zoning ordinance when the
ordinance requires the board to do so.
Sec. 35-43. Rules of Procedure; Meeting; Reoords.
(a) The Board shall adopt rules to govern its proceedings
provided, however, that such rules are not inconsistent with this
chapter or state law.
(b) Meetings of the Board shall be held at the call of the
chairperson or at such other times as the Board may determine.
(c) The chairperson, or in his or her absence, the acting
chairperson, may administer oaths and compel the attendance of
witnesses.
(d) Ail meetings of the board shall be open to the public.
(e) 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 a record of its exam-
inations and other official actions, all of which shall be immed-
iately filed in the office of the Board and shall be of public
record.
(f) The concurring vote of four (4) members of the Board
shall be necessary to reverse any order, requirement, decision or
determination of any administrative officer, or to decide in favor
of the applicant on any matter upon which the Board is required to
act under this chapter or to cause any variance in this chapter.
Sec. 35-44. Notice of Public Hearings.
The Board shall hold a public hearing on all applications and
appeals made thereto. It shall first send written notice of such
public hearing 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 application for variance, appeal or special
exception is made. Such notice shall be given not less than ten
(10) days before the date set for the hearing to all owners of real
property 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 United States Post office. Notice
shall also be given by publishing the same at least one (1) time in
a newspaper of general circulation in the city of Denton at least
ten (10) days prior to the date of such hearing, which notice shall
state the time and place of such hearing.
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Sec. 35-45. Appeals.
(a) Appeals to the Board can be taken by any person
aggrieved, or by an officer, department, or Board of the munici-
pality affected by any decision of any officer relative to the
enforcement of this ordinance, such appeal shall be taken within
fifteen (15) days time after the decision has been rendered by an
officer, by filing with the officer from whom the appeal is taken
and with the Board, a notice of appeal specifying the grounds
thereof, and upon payment of a fee in an amount determined by the
city Council. The board may waive such filing fee when it appears
to the board that the particular property is adversely affected by
circumstances created by the city, not the appellant, and that an
exception to the zoning regulations be granted. The officer from
whom the appeal is taken shall forthwith transmit to the Board all
the papers constituting the records upon which the decision of the
officer was based.
(b) In exercising its powers, the Board may, in conformity
with the provisions of TEX. LOC. GOV'T CODE §§ 211.001 through
211.013 as existing or hereafter amended, reverse or affirm, wholly
or partly, or may modify the order, requirements, decision, or
determination appealed from and make order, requirement, decision
or determination in the Board's opinion, as ought to be made and
shall have all the powers of the officer from whom the appeal is
taken. The Board shall have the power to impose reasonable
conditions to be complied with by the applicant.
(c) An appeal shall stay all proceedings in furtherance of
the action appealed from unless the officer from whom the appeal is
taken certifies to the Board, after the notice of appeal shall have
been filed, that in his or her opinion such stay will 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 or a court of record on application or notice
to the officer from whom the appeal is taken and on due cause
shown.
Sec. 35-46. Limitations on Reconsideration of Appeals.
No appeal to the Board shall be allowed prior to the expira-
tion of six (6) months from a previous ruling by the Board on any
appeal to such body unless other property in the immediate vicinity
has within the said six (6) month period been changed or acted on
by the Board or City Council so as to alter the facts and
conditions upon which the previous Board action was based, as
determined by the Board. Such change of circumstances shall permit
the rehearing of an appeal by the Board prior to the expiration of
a six (6) month period, but such conditions shall not have any
force in law to compel the Board, after a hearing, to grant a sub-
sequent appeal; such subsequent appeal shall be considered entirely
on its merits and the peculiar and specific conditions related to
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the property on which the appeal is brought.
Sec. 35-47. Remedies Available from an Appeal.
At a public hearing relative to an appeal, any interested
party may appear before the Board in person or by agent or by
attorney. The burden of proof shall be on the applicant to estab-
lish the necessary facts to warrant favorable action of the Board
on any matter. Any action granting a variance authorizing the
issuance of a building permit or Certificate of Occupancy shall be
valid only for a period of six (6) months from such action, unless
said building permit or Certificate of Occupancy is secured in the
six (6) month period, in which event the action shall be permanent.
The Board shall have the authority to grant a longer period. If
said building permit or Certificate of Occupancy is not secured
within the six (6) months period, or within any extended period
granted by the Board, the action of the Board shall become void
without prejudice to a subsequent appeal and such appeal shall be
subject to the same regulations and requirements for hearing as
herein specified for the original appeal.
Sec 35-48. Nonconforming Uses and Structures.
(a) Amortization of Nonconforming Uses. The Board may
require the discontinuance of nonconforming uses of land or
structure 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 for all property to conform to the regulations of
this chapter. Ail actions to discontinue a nonconforming use of
land and structure shall be taken with 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
designated nonconforming use and the conservation and preservation
of property. The board shall, from time to time, on its own motion
or upon cause presented by the City or an aggrieved person, inquire
into the existence, continuation or maintenance of any
nonconforming use within the city.
(b) Criteria for DeterminingAmortization Period. Before the
Board may determine an amortization period, it must consider the
following factors:
(1) The owner's capital investment in the structures on
the property at the time the use became nonconforming.
(2) The amount of the investment realized to date and
the amount remaining, if any, to be recovered during the
amortization period.
(3) The life expectancy of the investment.
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(4) The existence or nonexistence of lease obligations,
as well as any contingency clauses therein permitting
termination of such leases.
(5) Removal costs that are directly attributable to the
establishment of a termination date.
(6) Other costs and expenses that are directly attribu-
table to the establishment of a termination date.
(c) Discontinuation of Nonconforming Uses.
(1) If the board establishes a termination date for a
nonconforming use, the use must cease operations on that date
and the owner may not operate it after that date unless it
becomes a conforming use.
(2) The right to operate a nonconforming use terminates
if the nonconforming use is discontinued or remains vacant for
six months or more. The Board may grant an exception to this
provision only if the owner can state an extreme circumstance
that demonstrates that there was not an intent to abandon the
use even though the use was discontinued for six months or
more.
(3) A nonconforming use terminates when the structure
housing the use is destroyed by the intentional act of the
owner or his agent.
Sec. 35.49. Restoration of Nonconforming Use.
The Board may authorize the reconstruction and occupancy of a
nonconforming structure, or a structure containing a nonconforming
use, where such structure has been damaged by fire or other causes
to the extent of more than fifty (50) percent, but less than the
total, of the replacement cost of the structure on the date of the
damage. The structure must be restored or reconstructed so as to
have the same approximate height and floor area that it had
immediately prior to the damage or destruction. The property owner
has the burden of proof to establish the height and floor area of
the structure immediately prior to the damage or destruction. A
restoration or reconstruction in violation of this paragraph
immediately terminates the right to operate the nonconforming use.
Sec. 35.50. Nonoonformlng Structures.
(a) A person may renovate, remodel, repair or rebuild a non-
conforming structure without Board approval if the work does not
increase the degree of nonconformity nor enlarge the nonconforming
structure. A person shall comply with all applicable codes and
ordinances when renovating, remodeling or repairing a structure
housing a nonconforming use that has been approved by the Board.
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(b) The right to rebuild a nonconforming structure terminates
if the structure is destroyed by the intentional act of the owner or
the owner's agent. If a nonconforming structure is damaged or
destroyed other than by the intentional act of the owner or owner's
agent by less than fifty (50) percent of the replacement cost of the
structure on the date of the damage, a person may restore or
reconstruct the structure without Board approval.
Bec. 35-51. Variances.
(a) A variance may be granted when the Board finds:
(1) That there are special circumstances or conditions
applying to the land or building for which the variance is
sought, which circumstances or conditions are peculiar to such
land or building and do not apply generally to land or
buildings in the same zone or neighborhood, and that said
circumstances or conditions are such that the strict
application of the provisions of this ordinance would deprive
the applicant of the reasonable use of such land or building;
and
(2) That the granting of such variance will not be
detrimental to the public welfare or injurious to the property
or improvements in such zone or neighborhood in which the
property is located; and
(3) That the granting of the variance is necessary for
the reasonable use of the land or building and that the
variance as granted by the Board is the minimum variance that
will accomplish this purpose; and
(4) That the literal enforcement and strict application
of the provisions of this ordinance will result in an
unnecessary hardship inconsistent with the general provisions
and intent of this ordinance and that in granting such variance
the spirit of the ordinance will be preserved and substantial
justice done.
(b) In granting any variance under the provisions of this
Article, the Board may designate such conditions in connection
therewith which, in its opinion, will secure substantially the
purpose and intent of this ordinance.
(c) The Board may permit such variance of the front yard, side
yard, rear yard, lot width, lot depth, coverage, minimum setback
standards and landscaping where the literal enforcement of these
provisions would result in an unnecessary hardship, and where such
variance is necessary to permit a specific parcel of land which
differs from other parcels of land in the same district by being of
such restricted area, shape or slope that it cannot be developed in
a manner commensurate with the development permitted upon other
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parcels of land in the same district.
(d) A variation from the standards established by this ordi-
nance shall not be granted to relieve a self-created or personal
hardship, nor for financial reason only, nor shall such modification
be granted to permit any person a privilege in developing a parcel
of land not permitted by this ordinance to other parcels of land in
the district.
Sec. 35-52. Speoial Exceptions.
(a) A special exception may be granted when the Board finds
that:
(1) the exception is in harmony with the ordinance;
(2) the public welfare and convenience are substantially
served;
(3) neighboring property is not substantially injured;
(4) exceptions will not alter essential character of the
district and immediate location; and
(5) the exception will not weaken the general purposes of
the regulations.
(b) In determining its finding, the Board shall take into
account the character and use of adjoining buildings and those in
the vicinity, the number of persons residing or working in such
building or upon such land, traffic conditions in the vicinity, and
conformance of such area to the official Zoning Map and comprehen-
sive plan.
(c) In granting any special exception under the provisions of
this ordinance, the Board may designate such conditions in connec-
tion therewith which, in its opinion, will secure substantially the
purpose and intent of this ordinance.
(d) The Board may, after public hearing and subject to the
conditions and safeguards herein contained, authorize special
exceptions to this ordinance, limited to the following:
(1) The Board may allow a change from one noneonforming
use to another nonconforming use when:
(a) the change of the use does not prolong the life
of the nonconforming use; and
(b) the change of the use is to a more restrictive
classification. When a nonconforming use is changed to a
nonconforming use of a more restrictive classification,
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the building or structure containing such nonconforming
use shall not later be reverted to the former lower or
less restricted classification. The Board may establish a
specific period of time for the conversion of the
occupancy to a conforming use.
(2) A person shall comply with all applicable codes and
ordinances when renovating, remodeling or repairing a structure
housing a nonconforming use that has been approved by the
Board.
(3) A person shall not expand a nonconforming use beyond
the lot on which the use is located except the Board may permit
the person to provide off-street parking or loading spaces on
another lot.
See. 35-53. Signs.
The provisions of this Article shall not apply to the regula-
tion of signs. Appeals, variances and special exceptions involving
signs shall be heard by the Sign Board Of Appeals.
Beo. 35-54. Judicial Review Of Board Decision.
Judicial review of a Board decision shall be in accordance with
TEX. LOC. GOV'T CODE § 211.011, as amended.
Sec. 35-55. Savings Clause.
The provisions of Sections 35-41 through 35-54 shall govern and
control over any conflicting provision of Sec. 35-13, but all
provisions of Sec. 35-13 not in conflict herewith Shall continue in
full force and effect.
SECTION II. That if any section, subsection, paragraph, sen-
tence, clause, phrase or word in this ordinance, or application
thereof to any person or circumstance is held invalid by any court
of competent jurisdiction, such holding shall not affect the
validity of the remaining portions of this ordinance, and the City
Council of the City of Denton, Texas hereby declares it would have
enacted such remaining portions despite any such invalidity.
SECTION III. That any person who shall violate any provision
of this ordinance, or fails to comply therewith or with any require-
ments thereof, or a permit or certificate issued thereunder, shall
be guilty of a misdemeanor punishable by a fine not exceeding Two
Thousand Dollars ($2,000.00). Each such person shall be deemed
guilty of a separate offense for each and every day or portion
thereof during which any violation of this ordinance is committed,
or continued, and upon conviction of any such violations such person
shall be punished within the limits above.
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SECTION IV. That this ordinance shall become effective four-
teen (14) days from the date of its passage, and the city Secretary
is hereby directed to cause the caption of this ordinance to be
published twice in the Denton Record-Chronicle, the official news-
paper of the City of Denton, Texas, within ten (10) days of the date
of its passage.
PASSED AND APPROVED this the~day of ~, 1994.
BOB CASTLEBERRY, MAYO ~
ATTEST: ~~
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
DEBRA A. DRAYOVITCH, CITY ATTORNEY
/
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