HomeMy WebLinkAbout10092008 ZPC Agenda Item 2 r
City of West University Place
Harris County, Texas
Ordinance No.
AN ORDINANCE AMENDING THE ZONING ORDINANCE OF THE CITY
OF WEST UNIVERSITY PLACE, TEXAS REGARDING SPECIAL
EXCEPTIONS FOR WORK UNDER PERMIT; AND CONTAINING
FINDINGS AND PROVISIONS RELATING TO THE SUBJECT.
WHEREAS, the City Council and the Zoning & Planning Commission ("Z&PC") of
the City of West University Place, Texas ("City") have held a joint public hearing on a
proposal to amend the Zoning Ordinance of the City, as last re-formatted and re-
adopted by Ordinance No. 1672, adopted March 12, 2001 and as subsequently
amended ("Zoning Ordinance");
WHEREAS, the Z&PC has made a final report to the City Council with respect to
such proposal, which report is attached as Exhibit A and made a part of this ordinance;
and
WHEREAS, the City Council has considered the report of the Z&PC as well as
the City's Comprehensive Plan, and the City Council formally approves and adopts the
report of the Z&PC; and
WHEREAS, all notices, hearings and procedures relating to amending the
Zoning Ordinance, as may be required by law, the City Charter or the Zoning
Ordinance, have been duly given, held and followed, and the City Council has
jurisdiction to amend the Zoning Ordinance as provided herein;
NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST
UNIVERSITY PLACE:
Section 1. The City Council officially finds, determines, declares and adopts all
of the matters set out in the preamble of this ordinance, and the Zoning Ordinance is
hereby amended as recommended by the Z&PC, according to the Z&PC's final report in
Exhibit A, which is attached and made a part of this ordinance for all purposes.
Section 2. All ordinances and parts of ordinances in conflict herewith are hereby
repealed to the extent of the conflict only.
Section 3. If any word, phrase, clause, sentence, paragraph, section or other
part of this ordinance or the application thereof to any person or circumstance, shall
ever be held to be invalid or unconstitutional by any court of competent jurisdiction,
neither the remainder of this ordinance, nor the application of such word, phrase,
clause, sentence, paragraph, section or other part of this ordinance to any other
persons or circumstances, shall be affected thereby.
Section 4. The City Council officially finds, determines and declares that a
sufficient written notice of the date, hour, place and subject of each meeting at which
this ordinance was discussed, considered or acted upon was given in the manner
required by the Texas Open Meetings Act, as amended, and that each such meeting
has been open to the public as required by law at all times during such discussion,
consideration and action. The City Council ratifies, approves and confirms such notices
and the contents and posting thereof. The City Council officially finds, determines and
declares that sufficient notices of the joint public hearing were given, and the City
Council ratifies, approves and confirms such notices, including the contents and the
method in which they were given.
Section 5. This ordinance shall become effective on the tenth day following its
publication, as provided in the City Charter.
CONSIDERED, PASSED AND APPROVED on first reading on
Councilmembers Voting Aye:
Councilmembers Voting No:
Councilmembers Absent:
CONSIDERED, PASSED AND APPROVED on second reading, AND SIGNED,
on ,
Councilmembers Voting Aye:
Councilmembers Voting No:
Councilmembers Absent:
Attest: Signed:
City Secretary (Seal) Mayor
Recommended:
City Manager
Prepared by:
James L. Dougherty, Jr.
Approved as to legal form:
City Attorney
Exhibit A
Zoning & Planning Commission
City of West University Place, Texas
3800 University Boulevard
West University Place, Texas 77005
October 9, 2008
Honorable Mayor &
Members of the City Council
City of West University Place
3808 University Boulevard
Houston, Texas 77005
Subject: Final report on a proposal to amend the zoning
ordinance of the City of West University Place,
Texas ("City") relating to SPECIAL EXCEPTIONS FOR
WORK UNDER PERMIT
To the Honorable Mayor
& Members of City Council:
The Zoning & Planning Commission of the City submits this,
its final report, on the subject proposal, for the assistance of
the Council as well as other interested persons.
Scope of Proposal. Under the current zoning ordinance, a
structure can acquire prior-non-conforming status (PNC status)
if it is "constructed or established in conformance with the
zoning ordinance." On the other hand, if a structure violates
the ordinance "when built," it usually cannot obtain PNC status,
even if the violation is minor or temporary.
Example: Because of a mistake in roof pitch, a new
house gets built with a roof ridge that violates the
maximum height limit by 12 inches. The mistake is not
discovered until the house is almost completed.
Sometimes, owners try to obtain relief for "when-built"
violations by seeking variances. State zoning law makes this
very difficult---even impossible. The law requires both
"special conditions" and an "unnecessary hardship" to support
the granting of any variance. A "personal" or "self-created"
condition usually does not count.
In a 2006 variance case (called City of Dallas v. Vanesko),
the Texas Supreme Court ruled that building a house in violation
of a height limit was a "personal" or "self-created" condition
that could not support the granting of a variance. (Note: In a
companion report, the Commission is recommending that the City
recognize this Supreme Court ruling by amending the ordinance
section on variances.)
This proposed amendment would allow the zoning board of
adjustment to grant relief for an item built in violation of the
ordinance, but only if certain circumstances are present,
including all of the following:
(1) the violation must have been shown in plans and
specifications submitted to the City;
(2) neither the owner, the designer, the surveyor, the
contractor nor any other person assisting with the work knew
about the violation;
(3) the violation was covered by a City permit;
(4) upon learning about the violation, the owner promptly
conferred with City staff (and voluntarily halted any non-
conforming work);
(5) granting relief will not cause a health or safety
hazard, or any significant impact upon another person or
property;
(6) the violation can be cured---by bringing it into
conformance with the ordinance---within a set time period and at
a modest or reasonable cost. Notes: Cure is not required if the
impact on others is either nil or extremely small. The cure
period (if there is one) ends early if ownership is transferred,
unless the new owner acknowledges the special exception and cure
period before the transfer.
If all these circumstances are present, the board could
issue a special exception granting PNC status for the item built
in violation of the ordinance.[ ] Such a special exception
could also require reduction of the violation, mitigation, etc.
Normal PNC rules would also apply. They require that non-
conforming items be brought into compliance when certain events
occur, e.g., when a new house is built.
This proposal would provide some flexibility for dealing
with inadvertent violations of the zoning ordinance, but only if
all the listed circumstances are present. Perhaps the most
important circumstance is that the violation may not have a
significant impact upon others.
Proceedings After Preliminary Report. Pursuant to public
notices, the Zoning & Planning Commission and the City Council
held a joint public hearing on September 8, 2008. The hearing
provided an opportunity for parties in interest and citizens to
be heard in relation to the proposal. At the hearing, City
staff and legal counsel explained the proposal, and there was
limited discussion. The Commission has considered all of this
information and the Comprehensive Plan. The Commission
recommends the proposal, with only a minor grammatical change
(recasting one sentence to read: 11 . . . the item will neither
constitute a health or safety hazard nor cause a significant
impact upon another person or property . .
Recommendation. Based on the review given this proposal,
the Commission: (i) finds that the proposal would be in the
public interest and consistent with the Comprehensive Plan, (ii)
finds that the proposal reasonably addresses circumstances which
have arisen since the last comprehensive revision of the zoning
ordinance, (iii) makes its final recommendation favorable to the
proposal, and (iv) recommends that the City Council adopt the
proposal with a minor grammatical change, as shown in the
attachment to this report.
The Vote. This report was authorized by the Commission at
its meeting held on the date of this report. The vote was as
follows: Commissioners
voted "aye;" Commissioner(s) voted
"no;" Commissioner(s) absent.
Respectfully submitted:
ZONING AND PLANNING COMMISSION OF THE
CITY OF WEST UNIVERSITY PLACE, TEXAS
By:
For the Commission
Amendment relating to
special exceptions for
work under permit
Draft 6-6-08 recommended by ZPC 6-12-08 (preliminary)
and 10-09-08 (final, with minor grammatical change)
Add a new Section 12-106, as follows:
Section 12-106. Special Exception, Certain Work Under Permit.
(a) Generally. The ZBA may issue a special exception to grant PNC status for a
structural item that did not conform to this ordinance when it was constructed or established, if
the ZBA finds: (i) the non-conformance was clearly and nd specifically shown in plans and
specifications duly submitted to obtain a City permit; (ii) before the work was done neither the
owner, the designer, the surveyor, the contractor nor any other person assisting with the work
knew about the non-compliance; (iii) the non-conformance was clearly covered by the City
permit (the same permit for which the plans and specifications were submitted), and the permit
was otherwise re ularly issued; (iv) after learning of the non-conformance, the owner promptly
conferred with the administrative official (and voluntarily halted any further non-conforming
work); (v) the item will neither constitute a health or safety hazard nor cause a significant impact
upon another person or property, and (vi) the item can be brought into conformance with this
ordinance within the time period specified in the special exception, at a modest or reasonable
cost. Exception: Bringing the item into conformance need not be required if the ZBA finds that
the impact of the item on other persons or properties is either nil or extremely small.
(b) Time to comply; conditions. No such special exception is effective unless it specifies
a time period within which the item must be brought into conformance with this ordinance 0
required; see above). PNC status granted for a specified time period is lost when the specified
time period expires or if ownership is sooner transferred (unless the new owner acknowledges
both the special exception and the date the time period expires by written instrument filed with
the administrative official before the transfer). Any special exception issued under this section
may contain conditions designed to: 0) reduce non-conformance, (ii) mitigate (or compensate
for) the effects of non-conformance, (iii) achieve conformance sooner than the specified time
period, or (iv) any combination of the foregoing
(c) Scope of exception. For good cause shown, such a special exception may allow
completion, minor modification and occupancy of the structural item without losing PNC status.
•
f •
City of West University Place
Harris County, Texas
Ordinance No.
AN ORDINANCE AMENDING THE ZONING ORDINANCE OF THE CITY
OF WEST UNIVERSITY PLACE, TEXAS REGARDING VARIANCE
LIMITATIONS; AND CONTAINING FINDINGS AND PROVISIONS
RELATING TO THE SUBJECT.
WHEREAS, the City Council and the Zoning & Planning Commission ("Z&PC") of
the City of West University Place, Texas ("City") have held a joint public hearing on a
proposal to amend the Zoning Ordinance of the City, as last re-formatted and re-
adopted by Ordinance No. 1672, adopted March 12, 2001 and as subsequently
amended ("Zoning Ordinance");
WHEREAS, the Z&PC has made a final report to the City Council with respect to
such proposal, which report is attached as Exhibit A and made a part of this ordinance;
and
WHEREAS, the City Council has considered the report of the Z&PC as well as
the City's Comprehensive Plan, and the City Council formally approves and adopts the
report of the Z&PC; and
WHEREAS, all notices, hearings and procedures relating to amending the
Zoning Ordinance, as may be required by law, the City Charter or the Zoning
Ordinance, have been duly given, held and followed, and the City Council has
jurisdiction to amend the Zoning Ordinance as provided herein;
NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST
UNIVERSITY PLACE:
Section 1. The City Council officially finds, determines, declares and adopts all
of the matters set out in the preamble of this ordinance, and the Zoning Ordinance is
hereby amended as recommended by the Z&PC, according to the Z&PC's final report in
Exhibit A, which is attached and made a part of this ordinance for all purposes.
Section 2. All ordinances and parts of ordinances in conflict herewith are hereby
repealed to the extent of the conflict only.
Section 3. If any word, phrase, clause, sentence, paragraph, section or other
part of this ordinance or the application thereof to any person or circumstance, shall
ever be held to be invalid or unconstitutional by any court of competent jurisdiction,
neither the remainder of this ordinance, nor the application of such word, phrase,
s
clause, sentence, paragraph, section or other part of this ordinance to any other
persons or circumstances, shall be affected thereby.
Section 4. The City Council officially finds, determines and declares that a
sufficient written notice of the date, hour, place and subject of each meeting at which
this ordinance was discussed, considered or acted upon was given in the manner
required by the Texas Open Meetings Act, as amended, and that each such meeting
has been open to the public as required by law at all times during such discussion,
consideration and action. The City Council ratifies, approves and confirms such notices
and the contents and posting thereof. The City Council officially finds, determines and
declares that sufficient notices of the joint public hearing were given, and the City
Council ratifies, approves and confirms such notices, including the contents and the
method in which they were given.
Section 5. This ordinance shall become effective on the tenth day following its
publication, as provided in the City Charter.
CONSIDERED, PASSED AND APPROVED on first reading on
Councilmembers Voting Aye:
Councilmembers Voting No:
Councilmembers Absent:
CONSIDERED, PASSED AND APPROVED on second reading, AND SIGNED,
on ,
Councilmembers Voting Aye:
Councilmembers Voting No:
Councilmembers Absent:
Attest: Signed:
City Secretary (Seal) Mayor
Recommended:
City Manager
Prepared by:
James L. Dougherty, Jr.
Approved as to legal form:
City Attorney
A
Exhibit A
Zoning & Planning Commission
City of West University Place, Texas
3800 University Boulevard
West University Place, Texas 77005
October 9, 2008
Honorable Mayor &
Members of the City Council
City of West University Place
3808 University Boulevard
Houston, Texas 77005
Subject: Final report on a proposal to amend the zoning
ordinance of the City of West University Place,
Texas ("City") relating to VARIANCE LIMITATIONS
To the Honorable Mayor
& Members of City Council:
The Zoning & Planning Commission of the City submits this,
its final report, on the subject proposal, for the assistance of
the Council as well as other interested persons.
Scope of Proposal. Sometimes, owners try to obtain
variances for structures built in violation of a zoning
ordinance. State zoning law makes this very difficult---even
impossible. The law requires both "special conditions" and an
"unnecessary hardship" to support the granting of any variance.
A "personal" or "self-created" condition usually does not count.
In a 2006 variance case (called City of Dallas v. Vanesko),
the Texas Supreme Court ruled that building a house in violation
of a height limit was a "personal" or "self-created" condition
that could not support the granting of a variance. In part, the
Supreme Court relied upon language limiting variances in the
Dallas zoning ordinance.
This proposal would recognize the Supreme Court's ruling by
putting similar language into the City's zoning ordinance. The
new language would be as follows:
A "special condition" or "hardship" that is self-created,
personal or based only on financial reasons is not sufficient to
support the issuance of a variance.
This language reflects the traditional approach taken by the
zoning board of adjustment in this City.
The proposal would also clarify that the applicant carries
the burden of proof when seeking a variance (or special
exception). This, too, reflects actual practice at zoning board
of adjustment hearings.
Proceedings After Preliminary Report. Pursuant to public
notices, the Zoning & Planning Commission and the City Council
held a joint public hearing on September 8, 2008. The hearing
provided an opportunity for parties in interest and citizens to
be heard in relation to the proposal. At the hearing, City
staff and legal counsel explained the proposal, and there was
limited discussion. The Commission has considered all of this
information and the Comprehensive Plan.
Recommendation. Based on the review given this proposal,
the Commission: (i) finds that the proposal would be in the
public interest and consistent with the Comprehensive Plan, (ii)
finds that the proposal reasonably addresses circumstances which
have arisen since the last comprehensive revision of the zoning
ordinance, (iii) makes its final recommendation favorable to the
proposal, and (iv) recommends that the City Council adopt the
proposal with no amendment, as shown in the attachment to this
report.
The Vote. This report was authorized by the Commission at
its meeting held on the date of this report. The vote was as
follows: Commissioners
voted "aye;" Commissioner(s) voted
"no;" Commissioner(s) absent.
Respectfully submitted:
ZONING AND PLANNING COMMISSION OF THE
CITY OF WEST UNIVERSITY PLACE, TEXAS
By:
For the Commission
Amendment relating to
variance limitations
Draft 5-8-08, recommended by ZPC 6-12-08 (preliminary) and 10-9-08 (final)
Amend Section 11-102 as follows;
Section 11-102. Findings; burden of proof.
(a) Variances. The ZBA may not issue or modify a variance unless all of the following
circumstances are present:
(1) The ZBA has made all findings and determinations required by state law for
the granting of a variance. A "special condition" or "hardship" that is self-
created, personal or based only on financial reasons is not sufficient to support the
issuance of a variance.
(2) The ZBA has made any additional findings and determinations required by a
specific provision of this ordinance which relates to the variance.
(3) The variance has been reduced to writing and includes any conditions
prescribed by the ZBA or required by this ordinance for the variance in question.
(b) Special exceptions. The ZBA may not issue or modify a special exception unless all
of the following circumstances are present:
(1) The ZBA has determined that the proposed special exception will not cause
any significant increase in on-street parking, will not cause any substantial traffic
congestion, will not cause any substantial increase in traffic or an unreasonable
burden upon utility systems or upon any other public facility or public service.
(2) The ZBA has determined that the proposed special exception will be in
harmony with the general purpose and intent of this ordinance.
(3) If the proposed special exception involves a bar, the ZBA has found that the
applicant has clearly demonstrated that there is a readiness, willingness and ability
to comply with all applicable laws, rules, regulations and ordinances relating to
alcoholic beverages.
(4) The ZBA has made any additional findings and determinations required by a
specific provision of this ordinance.
(5) The special exception has been reduced to writing and includes any conditions
prescribed by the ZBA or required by this ordinance for the special exception in
question.
(c) Barden of proo . The applicant has the burden of presenting evidence to the ZBA and
persuading the ZBA that:
(1) each circumstance required for a variance or special exception is present; and
(2) each required finding and determination is supported by substantial evidence.