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HomeMy WebLinkAboutZoning Board of Adjustment-Agenda Packets-1/9/2008City of Colleyville 100 Main Street Colleyville, Texas 76034 (817) 503-1000 www. Colleyville. com ~.~a~ ~~~ ~~` ,~ Meeting Agenda Wednesday, January 9, 2008 6:30 PM Workshop Executive Conference Room Zoning Board of Adjustment ~~~> ~~~ City of Colleyville ''~~ ,~ ~~~ ~`~ Meeting Agenda „:~.,~ Zoning Board of Adjustment 100 Main Street Colleyville, Texas 76034 (817) 503-1000 www.colleyville.com Wednesday, January 9, 2008 6:30 PM Executive Conference Room Workshop 1. LEGAL BRIEFING BY CITY ATTORNEY REGARDING FLOW CHART 2. DISCUSSION OF ZONING BOARD OF ADJUSTMENTS TOPICS 3. STAFF COMMENTS, REPORTS AND DISCUSSION ITEMS 4. BOARD MEMBERS COMMENTS AND REPORTS I hereby~ertify the alive agenda was posted on the bulletin boards at City Hall on Friday, January 4, 2008 by 5:00 p.m. Amy Shelley, Planning and Zoning Assistant City of Colleyville Page 1 Printed on 12/19/2007 THE ZONING BOARD OF ADJUSTMENT VARIANCES The Zoning Board of Adjustment ("ZBA") is an quasi-judicial body whose primary function is to serve as final decision-maker regarding individual determinations of variances from the City's zoning restrictions. VARIANCE The Texas Local Government Code ~ 211.009(a)(3) specifies the elements that must be shown to authorize the ZBA to approve a variance: [ZBA 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, a literal enforcement of the ordinance would result in unnecessary hardship, so that the spirit of the ordinance is observed and that substantial justice is done. A. Definition of variance -Permission given to an owner to use or build his property in a manner forbidden by the zoning ordinance. B. Purpose - To prevent unconstitutional application of the zoning ordinance. A variance is used to relax the strict requirements of the zoning ordinances when certain statutory and common law requirements are met. Texas law does not allow the ZBA to authorize different uses of the property. Texas courts have held that no matter how much hardship a land use regulation creates, the ZBA has no power to relax it. Lombardo v. City of Dallas, 47 S.W.2d 495 (Tex. Civ. App. -Dallas 1932), aff=d, 73 S.W.2d 475 (Tex. 1934). In other words, a variance is not to be used merely to accommodate the highest and best use of the land -this is left up to the legislative bodies of the City: the Planning and Zoning Commission and the City Council. FOUR ELEMENTS TO A VARIANCE: 1. That the granting of the variance will not be contrary to the public interest; 2. The applicant must show that special conditions exist and that the literal enforcement of the zoning ordinance will result in unnecessary hardship; 3. That by granting the permit contrary to the provisions of the ordinance, the spirit of the ordinance will be observed; and 4. That there is substantial justice in granting the variance. Elements of a Variance Special condition inherent in the property itself a. Texas case law provides that any "special condition" must one that is inherent in the property itself. Examples: lot shape, topography, body of water, or trees -Southland Addition Homeowner=s Ass=n v. Board of Adjustmenfs, 710 S.W.2d 194 (Tex. Civ. App. -Fort Worth 1986) (Court upheld the granting of a variance to allow for the preservation of trees on the land as a special condition peculiar to the property which necessitated the granting of a variance). b. Special condition cannot be a problem common to the neighborhood-- remedy is zoning change not variance. Unnecessary hardship to an extent preventing any reasonable use whatsoever To find an "unnecessary hardship," the board of adjustment must determine whether a literal application of the zoning ordinance in question to the particular property would be unreasonable in light of the general statutory purpose to secure reasonable zoning. Currey v. Kimple, 577 S.W.2d 508 (Tex. Civ. App. - Texarkana 1979, writ ref'd n.r.e.). The test for determining the existence of an unnecessary hardship has been stated by one court as: "Is the environment such that the lot is not reasonably adapted to a conforming use?" Board of Adjustment v. Stovall, 218 S.W.2d 286, 288 (Tex. Civ. App. -Fort Worth 1949, no writ). Other Texas courts have agreed, holding "a property owner challenging the action of a Board of Adjustment must show that enforcement of the ordinance would destroy any reasonable use of his property." Reiter v. City of Keene, 601 S.W.2d 547 (Tex. Civ. App. -Waco 1980, writ dism'd). [emphasis added]. Moreover, the hardship must be something more than financial: The Code expressly provides that the unique circumstances existing on the property so as to justify granting a variance must be something other than a financial hardship. A variance is not authorized merely to accommodate the highest and best use of the property, but where the zoning ordinance does not permit any reasonable use of such lot. Board of Adjustment of the City of San Antonio v. Willie, 511 S.W.2d 591, 594 (Tex. Civ. App. -San Antonio 1974, writ ref'd n.r.e.) A financial hardship is not a "special condition" as described in the statute. Battles v. Board of Adjustment and Appeals of the City of Irving, 711 S.W.2d 297 (Tex. App. -Dallas 1986, no writ). Examples of undue hardship: a. Due to a river flowing through the property, a landowner cannot build a house to meet the setback requirements of the Zoning Ordinance. b. Due to several large trees on the property, the landowner cannot build a business office that meets the setback requirements of the Zoning Ordinance. Southland Addition Homeowner=s Ass=n v. Board of Adjustments, 710 S.W.2d 194 (Tex. Civ. App. -Fort Worth 1986, writ ref'd n.r.e.). Hardship not self-imposed or self created a. "In order to justify a variance, a hardship must not be self-imposed, nor financial only, and must relate to the very property for which the variance is sought, i.e., a condition unique, oppressive, and not common to other property." City of Alamo Heights v. Boyar, 158 S.W.3d 545, 553 (Tex. App. San Antonio 2005, no writ). b. An example of a personal or self-created hardship might be a situation in ,which the owner of a square lot divides it into two triangles then tries to secure a variance in order to sell the property at a high price.@ Currey v. Kimple,577 S.W.2d 508, 513 (Tex.Civ.App.-Texarkana 1978, writ ref'd n.r.e.). c. In City of Dallas v. Vanesko, 189 S.W.3d 769 (Tex. 2006), the Texas Supreme Court clarified how far the "self created" doctrine will extend. In Vanesko, the landowners had torn down and existing house and constructed a new one. The plans had been submitted to the City of Dallas and were approved. After the house was substantially completed, the City inspector determined that the house exceeded the City's height restrictions by eight feet and eleven inches. The City ordered work to stop on the house until the height was fixed. The cost to fix the height of the house was $50,000 to $100,000 and so the Vanesko's sought a variance from the ZBA. The Texas Supreme Court held that landowners' hardship was personal and self-created, and thus the landowners were not entitled to variance from applicable height restrictions. "Not contrary to public interest @ within the spirit of the ordinance and "substantial justice donee No action contrary to spirit of the ordinance would violate policy established by the City Council=s legislative action. APPEAL Any of the following persons may file a lawsuit challenging the legality of a decision of the board of adjustment in whole or in part and specifying the grounds of the illegality: (1) A person aggrieved by a decision of the board; (2) A taxpayer; or (3) An officer, department, board, or bureau of the municipality. Any appeal must be filed within 10 days. LIABILITY OF BOARD MEMBERS In addition to any appeal of a BOA decision, the individual members of the BOA may be sued under a number of different causes of action: If the applicant loses something of value due to the actions of a member, then the applicant might assert a regulatory takings action. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417 (Tex. 2004). If a members' decision is arbitrary or irrational, an applicant might sue and assert a substantive due-process claim. See„ Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 938 (Tex.1998). If an applicant is treated differently from other similarly situated applicants absent a rational basis, they might assert an equal- protection violation. See id. at 939. And if an applicant is denied an appropriate and meaningful opportunity to be heard, procedural due process might be implicated. See id. Granting or denial of a variance is a discretionary act and the BOA member is entitled to the defense of "official immunity". Where a public official has quasi- judicial or discretionary duties, "he enjoys immunity as long as he acts in good faith within the scope of his authority." Ballantyne., 144 S.W.3d at 422 (quoting Baker v. Story, 621 S.W.2d 639, 644 (Tex.Civ.App.-San Antonio 1981, writ refd n.r.e.)). Public officials act within the scope of their authority if they are discharging the duties generally assigned to them. Id. at 424. To determine whether a public official acted in good faith, the court will use an objective standard and ask whether a reasonably prudent official, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred. Id. H:\Boyle-Lowry\Colleyville\CO-ZBA training paper.doc VARIANCE FLOW CHART Follow each step in order to establish all necessary elements of a variance and the related findings of fact established by evidence presented by the applicant or in the record. In uir Is the request for a variance owing to a special condition inherent in the property itself? If yes, CONTINUE If no, STOP, no variance exists 1 Is the condition one unique to the land requesting the variance? If yes, CONTINUE If no, STOP, no variance exists 1 Is the condition self-imposed or self-created? If no, CONTINUE If yes, STOP, no variance exists 1 Will a literal enforcement of the zoning ordinance result in an unnecessary hardship? If yes, CONTINUE If no, STOP, no variance exists 1 Will the hardship prevent any reasonable use whatsoever? If yes, CONTINUE If no, STOP, no variance exists 1 Would the grant of the variance be contrary to public interest? If no, CONTINUE If yes, STOP, no variance exists 1 Is the request within the spirit of the ordinance; does it further substantial justice? Finding of Fact The property is/has ... (e.g., -~ odd-shaped, unusual topo, etc. ) The condition of is unique to this -> property. The condition necessitating the -> request was not created by the property owner. Strict enforcement of the zoning ordinance would impose a hardship -> above that suffered by the general public. Without the grant of the requested variance, the property owner would -> be deprived of the right to use his property. Financial considerations alone cannot satisfy this requirement. If yes, VARIANCE If no, STOP, no variance exists FORM OF MOTION TO APPROVE OR DENY A VARIANCE To Deny: A. "I move to deny the variance request because [list the element that the case lacks] c To Approve: A. "I move that there exists an unnecessary hardship and a special condition in this case. The special conditions are: [list the hardship and special conditions].c [Once the above motion passes, then proceed with the motion approving the variance:] B. "I move that the Board approve (or `partially approve') the variances[s] to: (List the section and subsection number of the zoning ordinance and describe the degree of the variance.)@