Zoning regulations are necessarily rigid and meant to be applied uniformly within a district. Still, there are certain instances, due to a unique situation, such as topography, when their strict enforcement would result in an inappropriate hardship to a property owner. In such cases, where a verifiable hardship exists, the property owner or authorized agent may make an application for a variance of the zoning regulations as they apply to the circumstance. Variances are in effect, a relief valve for the Zoning Ordinance, in that they provide limited exemption for unique cases.
Applications for a variance are made to the Planning and Zoning Department and are heard by the Board of Adjustment. The Board is composed of five citizen members and two alternates. Each serve a two year term. The Board meets as needed to hear requests for variances.
Some problems seem to reoccur; therefore, in an effort to deal with these situations, the following questions and answers are going to be provided to all Board of Adjustment members.
1. What are the powers of the Board as prescribed by State law?
The powers of the Board fall into three (3) areas:
a. Administrative Review: This power exists when the ordinance is not clear. For example, an applicant asks for an examination of the staff's decision that his business was a rehabilitation center versus a boarding house. The ordinance had no definition of boarding house. There was room for factual difference as to which category of use the applicant properly fit. The Board acts to resolve the difficulty. The Board's function is not to rewrite the ordinance, but to fill the gaps. The Planning and Zoning Board and City Council legislate or write or rewrite the ordinance.
b. Special Exceptions: A Special Exception Permit may be granted for individuals when the granting of the permit will not adversely affect the public interest. A Special Exception Permit is an unusual use that is expressly permitted by the ordinance itself. Special Exception Permits appear on the Permitted Use Table as ASE. No specific criteria, save and except public interest, is set out regarding the granting of a special exception. This is not to say that a special exception should be granted in all cases that it is requested.
Special Exceptions are designed to control those uses which, by their nature, should not be allowed to exist in certain areas until after a public hearing has been held to determine whether or not that special use will adversely affect the surrounding area (the public interest) and the City of Tyler.
c. Variances: The requirements for a variance are as follows:
a. Special conditions and circumstances exist which are peculiar to the land or improvements thereto involved and which are not applicable to other lands or improvements thereto in the same district.
b. That literal interpretation of the provisions of the ordinance would result in unnecessary hardship to the owners of the property.
c. That the special conditions and circumstances do not result from the action of the applicant. Possible questions to address to the applicant would be the following:
(1) Are there any peculiar topographical features of your lot? Does it have a peculiar shape? Is there any creek or hill or other peculiar conditions that exist on your property?
(2) Can the building or structure be relocated on the lot in a manner which would conform with the ordinance?
ALL OF THE ABOVE 3 CRITERIA MUST BE SATISFIED.
Variances are proper only in exceptional cases. If it is clear that everyone should be allowed to build closer than what is presently allowed, a request that setbacks be examined is in order. If the law is bad, change the law.
The case law dealing with a variance is presently confused. In 1974 the Court of Civil Appeals of San Antonio held that 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. In 1979 the Court of Civil Appeals of Texarkana held that A Unnecessary hardship must be determined with regard to the facts and circumstances of the particular case. It is the duty of the Board to determine whether literal application of the Zoning Ordinance to the particular piece of property would be unreasonable in light of the general statutory purpose to secure reasonable zoning. Both cases were appealed to the Texas Supreme Court and held to have no reversible error. There are now two (2) lines of cases in Texas. The strict application of the law and the spirit of law approach. The strict application approach follows the zoning concepts recognized in most other states.
2. Is there any limitation on the power of the Board to grant variances if the criteria is satisfied?
Yes, the Board cannot grant use variances. The Board could not, for example allow a proponent to engage in heavy commercial use or activity in a residential district. The power to legislate or rezone is specifically reserved to the Planning and Zoning Board and the City Council. Except for the restriction on use variance, the Board may, when the criteria for variance is satisfied, grant a variance on all the provisions of the Zoning Ordinance, in order to give flexibility to the ordinance and prevent unwarranted harm to the property owner, but cannot grant variances which would amount to amending the zoning ordinance
3. How many affirmative votes does it take to overturn a staff decision or approve a variance or special exception?
Four (4) affirmative votes are required for the Board to overturn a staff decision or approve a variance or special exception. (Loc. Govt. Code Sec. 211.009.)
4. How long does a variance last and does it run with the property forever?
The general view is that a variance runs with the land and passes on to a subsequent purchaser. There currently are no Texas court decisions dealing with the duration of variances, so there is a question as to whether or not time limitations can be set for a variance. Courts in other states have upheld reasonable time limitations on variances, and after reviewing Loc. Gov't Code, Sec. 211.009(3) and City Code Sec. 10-2(d)(3), the Board should be able to put a reasonable time limit in which to complete building or action for which a variance is granted. A good faith argument can be made that such a time limitation for completing the work is valid. However, once the action, building, etc. is completed within the required time, the variance would thereafter run with the land and pass to any subsequent purchaser.
5. Can the area of land subject to variance or special exception be increased?
No, the reason a variance or special exception cannot be increased is that there would not be a proper notice for the increased area. For a request to be granted, all the land subject to the change must have been set out in the notice; a notice is required by City ordinance.
6. Can the area of land subject to a variance or special exception be reduced?
Yes, in this case the people who would be affected by a variance or special exception have been notified. The fact that a change has been made only on a portion of the area is in no way injurious to the neighbors. The neighbors have been notified of the most amount of land subject to a zone change.
THE DECISIONS ON THE ABOVE SITUATIONS ARE BASED ON NOTICE. PROPER NOTICE SHOWING THE MOST DRASTIC CHANGE TO BE CONSIDERED IS A PREREQUISITE TO A VALID VARIANCE OR SPECIAL EXCEPTION.
7. Can the Board of Adjustment, on its own motion, reduce the area of land even if the proponent doesn't want the change?
Yes, the Board of Adjustment has the power to approve variances or special exceptions up to the original request and the power to reduce the change even if the proponent is opposed to the change.
8. Can structural restrictions be placed on the variance or special exception?
Yes, a fence, hedge, or other physical conditions can be included in a variance or special exception. These features can be included.
9. Can we bargain with or enter into an agreement with the proponent to get safeguards we desire before granting a variance or special exception?
Maybe, under certain circumstances some restrictions can be required in order to support the variance or special exception. However, usually bargain for variance or special exception is not allowed. The less the requirements relate directly to the variance, the more likely they will not be upheld. The reason this approach may be found illegal is that the consideration of variance or special exception is a governmental function that cannot be contracted away. The more conditions that appear to be part of a contract, the more likely it is to be challenged.
A way to avoid the contract problem is to send the matter to the Planning and Zoning Board for consideration of Planned Development District.
10. If a variance or special exception is denied by the Board of Adjustment, can the proponent request the same change at the next meeting?
No, when a request is denied it cannot be reconsidered for six (6) months.
11. If a similar variance or special exception can't be made for six (6) months, does that mean that no request can be considered on the property?
No, it just means a similar change cannot be made. The original request might be for a 20-foot variance and be denied. A later request for a 10-foot variance might be found by the Board to not be a similar request. Whether the request is similar or not is a question of fact to be determined by the Board.
12. If a variance or special exception is denied by the Board, can it be appealed to the City Council?
No, a denial of a request cannot be appealed to the City Council. The appeal of a Board decision is to the District Court. Its decisions are judged by a standard even more onerous than the substantial evidence rule, the standard applicable to a writ of certiorari. The District Court can overrule your decision only if it finds no reasonable person could decide as the Board did. This is quite a heavy burden of proof.
13. What is the relationship of the Board of Adjustment to the Planning and Zoning Board?
The Board of Adjustment is the escape valve for the Zoning Ordinance. When the land doesn't fit the ordinance mold, the Board is authorized to act as prescribed by State law.