November 6, 2014
We’ve had recent agenda items and conversation surrounding the creation of a Board of Adjustments for the City of Alpine. The nature of this conversation centers around hearing variances related to our current Zoning Ordinances.
I’d like to utilize this blog post to share some of the city ordinances, state statutes and Attorney General opinion letters on the topic. Hopefully that will give you an opportunity to do some further research.
City of Alpine Ordinances – Appendix C Zoning – Section 11:
“Section 11 Duties of administrative official, city council and courts on matters of appeal.
It is the intent of this ordinance that all questions of interpretation and enforcement shall be first
presented to the administrative official, and that recourse from the decisions of the administrative official
shall be to the courts as provided by the laws of the State of Texas.
It is further the intent of this ordinance that the duties of the city council in connection with the
ordinance shall not include hearing and deciding questions of interpretation and enforcement that may
arise. The procedure for deciding such questions shall be as stated in this section and this ordinance.
Under this ordinance the city council shall have only the duties:
(1) Of considering and adopting or rejecting proposed amendments or the repeal of this ordinance,
as provided by law; and
(2) Of establishing a schedule of fees and charges as stated in Section 12, below.”
State of Texas – Local Government Code – 211.008 to 211.011
“Sec. 211.008. BOARD OF ADJUSTMENT. (a) The governing body of a municipality may provide for the appointment of a board of adjustment. In the regulations adopted under this subchapter, the governing body may authorize the board of adjustment, in appropriate cases and subject to appropriate conditions and safeguards, to make special exceptions to the terms of the zoning ordinance that are consistent with the general purpose and intent of the ordinance and in accordance with any applicable rules contained in the ordinance.
(b) A board of adjustment must consist of at least five members to be appointed for terms of two years. The governing body must provide the procedure for appointment. The governing body may authorize each member of the governing body, including the mayor, to appoint one member to the board. The appointing authority may remove a board member for cause, as found by the appointing authority, on a written charge after a public hearing. A vacancy on the board shall be filled for the unexpired term.
(c) The governing body, by charter or ordinance, may provide for the appointment of alternate board members to serve in the absence of one or more regular members when requested to do so by the mayor or city manager. An alternate member serves for the same period as a regular member and is subject to removal in the same manner as a regular member. A vacancy among the alternate members is filled in the same manner as a vacancy among the regular members.
(d) Each case before the board of adjustment must be heard by at least 75 percent of the members.
(e) The board by majority vote shall adopt rules in accordance with any ordinance adopted under this subchapter. Meetings of the board are held at the call of the presiding officer and at other times as determined by the board. The presiding officer or acting presiding officer may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public.
(f) The board shall keep minutes of its proceedings that indicate the vote of each member on each question or the fact that a member is absent or fails to vote. The board shall keep records of its examinations and other official actions. The minutes and records shall be filed immediately in the board’s office and are public records.
(g) The governing body of a Type A general-law municipality by ordinance may grant the members of the governing body the authority to act as a board of adjustment under this chapter.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg., ch. 126, Sec. 1, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 724, Sec. 1, eff. Aug. 28, 1995; Acts 1997, 75th Leg., ch. 363, Sec. 1, eff. Sept. 1, 1997.
Sec. 211.009. AUTHORITY OF BOARD. (a) The board of adjustment may:
(1) hear and decide an appeal that alleges error in an order, requirement, decision, or determination made by an administrative official in the enforcement of this subchapter or an ordinance adopted under this subchapter;
(2) hear and decide special exceptions to the terms of a zoning ordinance when the ordinance requires the board to do so;
(3) 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, and so that the spirit of the ordinance is observed and substantial justice is done; and
(4) hear and decide other matters authorized by an ordinance adopted under this subchapter.
(b) In exercising its authority under Subsection (a)(1), the board may reverse or affirm, in whole or in part, or modify the administrative official’s order, requirement, decision, or determination from which an appeal is taken and make the correct order, requirement, decision, or determination, and for that purpose the board has the same authority as the administrative official.
(c) The concurring vote of 75 percent of the members of the board is necessary to:
(1) reverse an order, requirement, decision, or determination of an administrative official;
(2) decide in favor of an applicant on a matter on which the board is required to pass under a zoning ordinance; or
(3) authorize a variation from the terms of a zoning ordinance.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg., ch. 126, Sec. 2, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 724, Sec. 2, eff. Aug. 28, 1995.
Sec. 211.010. APPEAL TO BOARD. (a) Except as provided by Subsection (e), any of the following persons may appeal to the board of adjustment a decision made by an administrative official:
(1) a person aggrieved by the decision; or
(2) any officer, department, board, or bureau of the municipality affected by the decision.
(b) The appellant must file with the board and the official from whom the appeal is taken a notice of appeal specifying the grounds for the appeal. The appeal must be filed within a reasonable time as determined by the rules of the board. On receiving the notice, the official from whom the appeal is taken shall immediately transmit to the board all the papers constituting the record of the action that is appealed.
(c) An appeal stays all proceedings in furtherance of the action that is appealed unless the official from whom the appeal is taken certifies in writing to the board facts supporting the official’s opinion that a stay would cause imminent peril to life or property. In that case, the proceedings may be stayed only by a restraining order granted by the board or a court of record on application, after notice to the official, if due cause is shown.
(d) The board shall set a reasonable time for the appeal hearing and shall give public notice of the hearing and due notice to the parties in interest. A party may appear at the appeal hearing in person or by agent or attorney. The board shall decide the appeal within a reasonable time.
(e) A member of the governing body of the municipality who serves on the board of adjustment under Section 211.008(g) may not bring an appeal under this section.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1997, 75th Leg., ch. 363, Sec. 2, eff. Sept. 1, 1997.
Sec. 211.011. JUDICIAL REVIEW OF BOARD DECISION. (a) Any of the following persons may present to a district court, county court, or county court at law a verified petition stating that the decision of the board of adjustment is illegal 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.
(b) The petition must be presented within 10 days after the date the decision is filed in the board’s office.
(c) On the presentation of the petition, the court may grant a writ of certiorari directed to the board to review the board’s decision. The writ must indicate the time by which the board’s return must be made and served on the petitioner’s attorney, which must be after 10 days and may be extended by the court. Granting of the writ does not stay the proceedings on the decision under appeal, but on application and after notice to the board the court may grant a restraining order if due cause is shown.
(d) The board’s return must be verified and must concisely state any pertinent and material facts that show the grounds of the decision under appeal. The board is not required to return the original documents on which the board acted but may return certified or sworn copies of the documents or parts of the documents as required by the writ.
(e) If at the hearing the court determines that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take evidence as directed. The referee shall report the evidence to the court with the referee’s findings of fact and conclusions of law. The referee’s report constitutes a part of the proceedings on which the court shall make its decision.
(f) The court may reverse or affirm, in whole or in part, or modify the decision that is appealed. Costs may not be assessed against the board unless the court determines that the board acted with gross negligence, in bad faith, or with malice in making its decision.
(g) The court may not apply a different standard of review to a decision of a board of adjustment that is composed of members of the governing body of the municipality under Section 211.008(g) than is applied to a decision of a board of adjustment that does not contain members of the governing body of a municipality.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1997, 75th Leg., ch. 363, Sec. 3, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 646, Sec. 1, eff. Aug. 30, 1999.”
Attorney General Opinions and Ensuing Legislation
Op. Tex. Atty. Gen. JM-1069 (July 7, 1989)
Letter Opinion No. 92-56 (September 28, 1992) (applies to general law and home-rule cities)
Tex. Atty. Gen. Letter Op. 97-062 (July 7, 1997).
Legislation adopted in 1997 – Acts 1997, 75th Leg., ch. 363, §§ 1–3, eff. Sept. 1, 1997.
I do hope this information is informative in its content. It is not meant to serve as a legal opinion, rather a presentation of the current written law and Attorney General opinions. Our City Attorney, Mick McKamie, and his staff are available for deeper dialogue and questions if residents need.
Have a great rest of the week,
Erik M. Zimmer, City Manager