Loading...
HomeMy WebLinkAboutORD 1883 Regarding Special Exceptions for Work Under PermitCity of West University Place Harris County, Texas Ordinance No. 1883 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 All ordinances and parts of ordinances in conflict herewith are hereby repealed to the extent of the conflict only.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 October 27 , 2008. Councilmembers Voting Aye: Kelly, Fry, Talianchich, and Guffey Councilmembers Voting No: N/A Councilmembers Absent: Councilmember Cohen ~CONSIDERED, PASSED AND APPROVED on second reading, AND SIGNED, on Councilmembers Voting Aye: kajj y, 4-AA4-, lt*w r'-~, Councilmembers Voting No: /)Itl- Councilmembers Absent: /J F ( / / Fem./ \ L 1A n . Secretary Thelma Lenz V,,SeX- N./ /Mayor Bob Recommended: Prepared by: City James L. Dougherty, Jr. Approved as to legal for.::: ~ z City Attorney Alan Petrov ~2aGv-n 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: 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 Brown, Clark, Duncan, Elkowitz, McManus and Yehle voted "aye;" Commissioner(s)-None- voted "no;" Commissioner(s) None- absent. Respectfully submitted: ZONING AND PLANNING COMMISSION OF THE CITY OF WEST UNIVERSITY PLACE, TEXAS C 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 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 hermit for which the plans and specifications were submitted), and the permit was otherwise regularly 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: (i) reduce non-conformance. (ii) mitigate (or compensate for) the effects of nonconformance. (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.