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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, PAGE 2 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. PAGE 3 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 PAGE 4 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. PAGE 5 (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. PAGE 6 (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 PAGE 7 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, PAGE 8 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. PAGE 9 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 / PAGE 10