HomeMy WebLinkAbout03302009 ZBA Agenda Item 4
Zoning Board of Adjustment
Rules of Procedure
ARTICLE I
Meetings
Section 1. Regular meetings of the Zoning Board of Adjustment (ZBA) shall be held at
6:30 PK on the third Thursday of each month. The City Manager, with
concurrence from the Presiding Officer may reschedule any meeting of the ZBA.
Section 2. Special meetings may be called by the Presiding Officer of the ZBA.
Section 3. Notice of all meetings shall be posted as required by Texas Local Government
Code ¢ 212 and Article 11 of the City's Code of Ordinances. Each member of the
ZBA shall be notified in writing at least 72 hours prior to the meeting except in
the case of emergency meetings, which can be called with two hours notice.
Section 4. A quorum for hearing by the Board shall consist of four members. A lesser
number may meet and reschedule, recess or adjourn a meeting or hearing.
Section 5. If regular member of the Board
a meeting, the alternate(s) to serve and vote at that meeting shall be as designated
by the Mayor or City Manager. Each alternate may participate in the discussions
and deliberations for each matter heard, however only the designated voting
alternate(s) may vote on any matter before the board.
ARTICLE II
Applications Before the Board
Section 1. Each application to the Board shall be made on the standard City forms and shall
be filed in the office of the Building Division, 3826 Amherst, West University
Place, Texas.
Section 2. To be considered for placement on the agenda of the next regular meeting, all
required data must be received and docketed by 12 noon on the 20'h day prior to
the next regular meeting. The Board may reject any application not made on the
prescribed form properly filled out with all required data attached.
Section 3. Every appeal must be filed on or before the tenth regular City business day
following the date the Official refuses to issue a permit,
or the date the Administrative Official enters an order, ruling, decision, or
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determination, that is the subject of the appeal, and the Administrative Official
shall so advise the applicant in writing. Upon written motion and a showing of
good cause, the Board may allow an appeal to be late-filed (after the ten-day
period specified above).
Section 4. Any communication purporting to be an appeal shall be regarded as mere notice
to seek relief until it is made in the form required by these rules.
ARTICLE III
The Docket; Notices of Hearings, Etc.
Section 1. Each application filed in proper form with the required data shall be numbered
serially, docketed, dated, and placed upon the agenda of the board by the
Recording Secretary. The docket numbers shall begin anew on January first of
each year and shall be hyphenated with the number of the year in which the
application is filed.
Section 2. All cases docketed more than 20 days preceding a regular meeting day, and for
which the notice requirement can be met, shall be set for hearing on the
succeeding regular meeting day. Cases docketed within 19 or fewer days of the
regular meeting day, for which the notice requirements cannot be met, shall be set
for hearing no later than the second regular meeting day after docketing of the
application.
Section 3. Applications shall be heard in the order in which they appear on the agenda,
unless the Board changes the order by motion. Action or further proceedings on
an application may be suspended at any time as determined by the Board upon
motion. Where all applications cannot be disposed of on the day set, the Board
may adjourn from day to day, or until the next regular meeting, as it may order.
Section 4. Notice as prescribed in Section 11-101 of the Zoning Ordinance will be given to
applicants or other interested parties by the Board; provided however, notice may
be posted on the site of the property which is the subject of the hearing, rather
than published in a newspaper.
Section 5. No informal request for advice, or hypothetical questions, will be considered by
the Board. (However, the ~1 ~ r 1 si r:; ; : (.r ci may seek advice or guidance
from the Board by formally presenting matters to the Board at a meeting.)
ARTICLE IV
Hearings
Section 1. Hearings shall be held by the ZBA in the Municipal Building, or at such other
place as set forth in the notice of hearing.
Section 2. All hearings shall be open to the public.
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Section 3. The applicant may appear
personally or be represented by agent or attorney at the hearing. In the absence of
any , , appearance on behalf of the applicant, the Board will proceed to
dispose of the matter on the record before it, or the Board may provide for a
hearing at a future date, in which event it shall give verbal notice at the hearing,
so that all present will be on notice of the date set for future hearing. If required
by state law or city ordinance, additional notices shall be given.
Other persons may be designated as parties to case but only after filing a
,vritten motion: (i) requesting to be designated as a party, ii explaining how the
person is affected differently from the public at large and (iii) identifying any
,pecial right to hppeal. Such a -motion must be filed before the start of
ale public hearing. If the person will be affected differently from the public at
41rge or if the person has a special statutory right to appeal the Board may
designate the person as a party (requires a majority vote of members present).
01 lheariag.
Section 4. The normal order of proceedings for hearings before the ZBA is as follows:
I. Call to order and administration of oaths to witnesses
(I do solemnly affirm that I will testify to the truth under penalty of perjury so
help me God.)
Procedural Matters (designation of parties, determination of time periods of
presentations, etc.)
si: I:f< L <i middle tilli ; lilillts for
r)rese• (before questions by others). Anyone may request additional
:Presentation by the applicant
_y -Receipt of written comments, protests, etc.
linnted purposes (for exampie,
.E«;~~;•.~;I, ;i~l~u, not to establish facts that may be
in dispute. If an objection is raised by a designated party or the
Administrative Official, the Board may refuse to receive an item or
Presentations by other interested persons )ther designated parties (if any)
Presentation by Response by the applicant (limited to issues raised by lersei'a:~)l h
written comments, etc.)
8. Incorporation of testimony, exhibits, etc. into record d bN
Section 5.
tiasonable oral questioning is allowed as follows: (i) First the presenting par
lay ask direct questions. ii) Next the other parties if any) mawquestion
Iii) Next, the Administrative Official may ask questions. (iv) Next the membt:
the_Board mav ask questions. _M Finally, the presentlnQ party may ask re-dirz1
may submit written questions to be asked by the Presiding Officer, at the
Presiding Officer's discretion.
-ono eress
ARTICLE V
Meeting Procedures
Section 1. Except as otherwise prescribed by these rules, the ZBA meetings may be
conducted in accordance with Rf~t ~ t`~ It~ric~> ft ~ +rt c Robel-I'S
569, at the
Presiding Officer's discretion or at the discretion of two board members. If any
question arises as to procedure, the ruling of the Presiding Officer shall be final
unless reversed by a vote of at least three members.
Section 2. Informal voice voting shall be used, unless a ZBA member requests a roll call
vote. Where there is a single vote on a group of items, under circumstances
where no member requests a separate vote, the vote on the group is deemed the
same as a separate, identical vote on each item.
Section 3. The fficer will preserve order and decorum, preventing the
impugning of any member's motives or other personal comments not relevant to
the orderly conduct of business. The residing fficer shall request all
speakers to keep comments brief and relevant to the question before the ZBA. All
persons present in the meeting room should eschew abusive, rude or inappropriate
conduct.
Section 4. This paragraph applies to general comments in public sessions
public hearing Speakers should limit their presentations
to three minutes each or other such limitations as may be decided by the Presiding
Officer or a majority vote of the ZBA members present. Speakers should direct
all remarks and questions to the presiding officer, who may refer them for
investigation, response or other action. The Texas Open Meetings Act requires the
City to post a notice, in advance, listing every topic or subject to be considered by
the ZBA. This law may prevent the ZBA from considering a subject raised by a
member of the public. In this case, the presiding officer may refer the matter and
the ZBA may direct that the matter be placed on the agenda for an upcoming
meeting.
Section 5. Any of the rules prescribed by this section may be suspended, for any single
meeting, by a vote of three-fourths of the ZBA members present.
ARTICLE VI
Final Disposition
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Section 1. The Board's decision shall: (i) affirm, modify or reverse the refusal of a permit
by, or any order or decision of, the Official, (ii) grant,
modify or deny a special exception or variance, or (iii) include two or more of
these actions. Each decision shall be reduced to writing and shall set forth the
action taken and the conditions, if any, imposed. Every application shall be
deemed disallowed, unless the concurring vote of four members of the Board
shall favor the application prior to adjournment, unless another disposition is
expressly made by the Board (such as, for example, taking the matter under
advisement or postponing action to the next meeting). The vote of each member
present on each decision shall be recorded with the decision. An appeal or an
application for variance or special exception shall be deemed denied upon the
vote of two or more voting members supporting a motion to deny; or upon the
vote of one or more voting members supporting a motion to deny if only four
members are present second to the
motion a s vote unless
case-deq a majority of those present and voting
prior to adjournment.
Section 2. Any applicant may, in writing, or upon the record at a meeting withdraw his
application prior to a final disposition by the Board.
Section 3. If an application is granted by the Board, the written decision shall contain
conditions as follows: (1) that all permits necessary for the prosecution of work
shall be applied for within 90 days, or such other period determined by the Board,
(ii) that construction shall be commenced and completed within two years from
the date of granting by the Board, unless otherwise prescribed in the decision
itself, or unless an extension of time is granted by the Board and (iii) the decision
shall be recorded with Harris County Clerk's Office (Real Property Records). No
extensions may be granted by the Official unless
authorized to do so by the Board. Neither additional notice nor hearing is
required for granting a time extension. If any such condition is not fulfilled
within the prescribed time, the decision remains in effect but is subject to reversal
or modification by the Board without additional notice or hearing.
Section 4. The applicant and the Official will be notified of the
decision of the ZBA.
ARTICLE VII
Rehearing
Section 1. No decision by the Board shall be heard reconsiders except
on motion Board N,,, the
Recording Secretary ji or be tenth c: wing hy- a member
I+ade t 9-C~ the date the decision is filed in the Board's office. The
shall be acted upon within 30 days after the decision
has been filed or at the next regular meeting of the ZBA (whichever comes later)
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fi-anting the motion requires at least four votes The Board may grant either
:hearing or reconsideration only (without rehearing). eaff4ea b net bun
Section 2. lie Board may not grant °ehe
a suggestion that new evidence will be submitted,
which was not presented at the meeting at which the hearing was originally heard.
The Board may require the of new evidence and may
-deeisic upon a finding that no new
evidence has been ';,rx- l
Section 3. If a rehearing is granted, the case shall be put on the calendar for a rehearing and
new notice in accordance with F o~ iiuf t!v
these rules , ,,o_essaiy if the
)nsideration only, without re .consideration maybe
Section 4. After E decision of the Board is final (that is, no rehearing
or appeal to the District Court is pending), the Board not
~'ioO
unless per-e sna= been a substantial change in the
circumstances the case.
The Board may first hear evidence on the issue of
substantial change in the circumstances ~I-.•..
_:i may dismiss the application., and4 n
HEtk the determination v t' ~u rri ir0~rd-rr-hearing on the appl ie i -
ARTICLE VIII
Precedents
Section 1. Recognizing that each parcel of real property is unique, that the facts presented in
each case are almost always unique and that the applicant may not always meet
the heavy burden of proof imposed by state law and city ordinance, no action of
the Zoning Board of Adjustment shall set a precedent. Each case shall be decided
upon its merits and upon the circumstances attendant thereto.
ARTICLE IX
Officers
Section 1. The City Council may provide for appointments of the Presiding Officer and the
Vice-Presiding Officer, and may allow one or both such officers to be selected by
the ZBA.
Section 2. The Presiding Officer shall preside at all meetings and hearings of the Board. In
the event of the absence or disability of the Presiding Officer, the Vice-Presiding
Officer shall preside. In the event of the absence or disability of both the
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Presiding Officer and Vice-Presiding Officer, a temporary Presiding Officer shall
be elected to preside.
Section 3. The Presiding Officer, subject to these rules, shall decide all points of procedure
unless otherwise directed by a majority of the Board at that time.
Section 4. The Presiding Officer toy .3~~~~
unless d t - directed by a
majority of the Board, shall appoint such committees as may be found necessary.
Section S. The Presiding Officer shall report at each meeting on all official transactions that
have not otherwise come to the attention of the Board.
Section 6. The Presiding Officer shall, subject to these rules and further instructions from the
Board, transact the official business of the Board and exercise general disciplinary
power.
Section 7. The Recording Secretary shall be such person as may be designated by the City
Manager.
Section 8. The Recording Secretary, subject to the provisions of the Zoning Ordinance, these
rules, and the direction of the Board and Presiding Officer, shall conduct all
correspondence of the Board; shall attend all meetings of the Board and all
hearings; shall scrutinize all applications to see that these rules are complied with;
shall keep all dockets and minutes of the Board's proceedings; shall maintain the
necessary files and indexes and generally supervise all clerical work of the Board.
The Recording Secretary shall, upon docketing any application notify any
property owner or other person required to be notified under the provisions of the
Zoning Ordinance and State Law.
Section 9. The Recording Secretary shall require from the applicant such additional
information and data as may be required to fully advise the Board with reference
to the application, whether or not such information and data is called for by the
official forms or not. Any failure or refusal on the part of the applicant to furnish
such additional information or data shall be grounds for the dismissal of the
application by the Board.
ARTICLE X
Minute Book
Section 1. The Recording Secretary shall keep a permanent Minute Book which shall record
all applications docketed, disposition of action of the ZBA by individual vote and
in the case of denial of an application considered by the ZBA, state the reason or
reasons given by the Board for such denial.
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ARTICLE XI
Resolutions
Section 1. Every resolution not otherwise provided for shall require a majority vote of the
members present at a legally constituted meeting.
ARTICLE XH
Amendments; Suspension
Section 1. These Rules of Procedures may be amended at any meeting by a vote of not less
than four members of the Board, provided that such amendment is presented in
writing at a regular meeting as a special agenda item. Any of the rules may be
suspended, for any single meeting or proceeding, by a vote of at least four
members.
ARTICLE XIII
Valid Action
Any action taken by the ZBA, in compliance with applicable law, shall be deemed to have
waived these Rules of Procedure as to the action taken. Such action shall be valid despite any
technical noncompliance with these Rules of Procedure or their predecessors.
Adopted by the Zoning Board of Adjustment of the City of West University Place ti
Richard J. Wilson, Presiding Officer
Zoning Board of Adjustment
City of West University Place
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Sallye Clark
From: Debbie Scarcella
Sent: Friday, November 14, 2008 9:16 AM
To: Sallye Clark
Subject: FW: Recent case on administrative hearings
please include this in the zba packets. thanks.
Debbie Scarcella
City Planner
Planning and Code Enforcement Division
City of West University Place
713-662-5893
-----Original Message-----
From: Jim Dougherty [mailto:jim@JLDJR.com]
Sent: Thu 11/13/2008 9:12 PM
To: Debbie Scarcella
Subject: Recent case on administrative hearings
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SUBJECT TO ATTORNEY-CLIENT PRIVILEGE. DO NOT CIRCULATE OR DUPLICATE.
TO: Debbie Scarcella (and ZBA Members)
FROM: James L. Dougherty, Jr.
Attorney at Law
12 Greenway Plaza, Suite 1100
Houston, Texas 77046
Phone: 713-880-8808
Fax: 281-220-8984
Email: jim@JLDJR.com
Website: JLDJR.com
Hello, Debbie,
Here's a summary of a recent case involving administrative hearings, like ZBA hearings:
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Citation: City of Arlington Centerfolds, Inc., 232 S.W.3d 238 (Tex.
App.-Fort Worth 2007, pet. denied)
Background: Arlington set up an an "Amortization Appeal Board" to hear
claims from sexually-oriented businesses (like Centerfolds) that claimed prior-non-conforming
status. An administrative law judge presided at the hearing, but: (i) there were general
public comments, apparently with some audible applause but without cross examination; and
(ii) the applicant did not get the chance to cross-examine (or re-examine) witnesses after
the Board members asked questions. Note: The court observed that the "tenor"
of the Board's questioning was "at times, confrontational, as if the Board members had placed
themselves in an adversarial role, conducting cross-examination instead of neutrally
gathering information to assist in their fact-finding role."
Outcome: In these circumstances, "due" process was denied. The
applicant did not get to cross-examine AND RE-EXAMINE all the witnesses.
Comment: This case is consistent with a long trend toward requiring administrative agencies
(like ZBA's) to provide more "due process" rights.
I recommend that we buttress our rules accordingly. Three areas we should
address: (1) Forbid statements or letters that are not subject to cross-examination, either
all the time or, perhaps, whenever someone objects (but always limit the purpose for which
they will be considered). (2) Allow each party the right to examine and re-examine all
witnesses, at least if
the party files a motion to request it. (3) Make sure the last round of
questions comes after the Board has asked questions. Another idea: Adopt two sets of rules,
one informal and one formal. At the beginning of each hearing, the Board could ask each
party to select one set or the other.
Could you circulate this memo to the ZBA members?
Best regards,
/s/ Jim
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