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Ordinance No. 11,848ORDINANCE NO. 11,848 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, REPEALING CHAPTER 130 "ZONING," ARTICLE II "ADMINISTRATION," DIVISION 4 "VARIANCES AND SPECIAL EXCEPTIONS" OF THE CODE OF ORDINANCES, BAYTOWN, TEXAS; AMENDING CHAPTER 130 "ZONING," ARTICLE II "ADMINISTRATION," OF THE CODE OF ORDINANCES, BAYTOWN, TEXAS, TO ADD A NEW DIVISION TO BE NUMBERED AND ENTITLED DIVISION 4 "SPECIAL EXCEPTIONS AND VARIANCES "; AMENDING CHAPTER 130 "ZONING," ARTICLE IV "NONCONFORMITIES," SECTION 130 -251 "SCOPE; CONTINUATION; REPAIR AND MAINTENANCE," SUBSECTION (B), SECTION 130 -252 "NONCONFORMING USES," SUBSECTIONS (A), (13)(5) AND (13)(6), AND SECTION 130 -253 "NONCOMPLYING STRUCTURES" OF THE CODE OF ORDINANCES, BAYTOWN, TEXAS, TO SEPARATE THE VARIANCE AND SPECIAL EXCEPTION PROCESS AND ADOPT NEW PROCESSES AND REGULATIONS FOR VARIANCES AND NONCONFORMING LAND USES AND NONCOMPLYING STRUCTURES; PRESCRIBING A MAXIMUM PENALTY OF TWO THOUSAND AND NO /100 DOLLARS ($2,000.00); PROVIDING A REPEALING CLAUSE; CONTAINING A SAVINGS CLAUSE; AND PROVIDING FOR THE PUBLICATION AND EFFECTIVE DATE THEREOF BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That Chapter 130 "Zoning," Article II "Administration," Division 4 "Variances and Special Exceptions" of the Code of Ordinances, Baytown, Texas, is hereby repealed in its entirety. Section 2: That Chapter 130 "Zoning," Article II "Administration" of the Code of Ordinances, Baytown, Texas, is hereby amended to add a new division to be numbered and entitled Division 4 "Special Exceptions and Variances," which division shall read as follows: CHAPTER 130. ZONING ARTICLE II. ADMINISTRATION DIVISION 4. SPECIAL EXCEPTIONS AND VARIANCES SUBDIVISION 1. SPECIAL EXCEPTIONS Sec. 130 -186. Scope. Special exceptions are deviations from otherwise applicable operational performance standards and compatibility standards where development is proposed that would be: (1) Compatible with surrounding land uses; (2) In keeping with the public interest; and (3) Consistent with the purposes of this chapter. Sec. 130 -187. Authority. The board of adjustment, in accordance with the procedures, standards and limitations of this division, shall approve, approve with conditions or disapprove an application for a special exception permit after receiving a recommendation by the director of planning and development services. Sec. 130 -188. Application. A complete application for a special exception permit shall be submitted by a qualified applicant to the director of planning and development services, on a form prescribed by the director, along with a nonrefundable fee of $100.00, which may be changed from time to time by the city council to defray the actual cost of processing the application. No application shall be processed until the established fee has been paid and the application has been determined complete by the director. Sec. 130 -189. Review and recommendation by director of planning and development services. After determining that the application for a special exception permit is complete, the director of planning and development services shall review the application and prepare a staff report, which may include a recommendation of approval, approval with conditions or disapproval based upon the criteria in section 130 -191. A copy of the report shall be mailed to the applicant at least five days prior to the public hearing on the application. Sec. 130 -190. Public hearing. After due notice, the board of adjustment shall hold a public hearing on an application for a special exception permit. At the public hearing, the board of adjustment shall consider the application, the staff report, the relevant support materials and the public testimony given at the public hearing. After the close of the public hearing, the board of adjustment shall vote to approve, approve with conditions or disapprove the application for a special exception permit, pursuant to the criteria of section 130 -191. Sec. 130 -191. Permit criteria. To approve an application for a special exception permit, the board of adjustment shall make an affirmative finding that granting the special exception will: (1) Ensure the same general level of land use compatibility as the otherwise applicable standards; (2) Not materially and adversely affect adjacent land uses and the physical character of uses in the immediate vicinity of the proposed development because of inadequate buffering, screening, setbacks and other land use considerations; (3) Not adversely affect property values in any material way; and (4) Be generally consistent with the purposes and intent of this chapter. Sec. 130 -192. Conditions. The director of planning and development services may recommend and the board of adjustment may impose such conditions on a special exception permit as are necessary to accomplish the purposes of this chapter, to prevent or minimize adverse impacts upon the public and neighborhoods and to ensure compatibility. These conditions may include, but are not limited to, limitations on size, bulk and location; standards for landscaping, buffering and screening, lighting and adequate ingress and egress; cash deposits, bonds and other guarantees of deposit; other on -site improvements; and limitations on the duration of the permit or hours of operation. Sec. 130 -193. Notice of decision. The director of planning and development services shall provide a copy of the decision issued under this division to the applicant by mail within ten days of the decision of the board of adjustment. Sec. 130 -194. Effect of special exception permit. (a) Generally. Issuance of a special exception permit shall authorize only the particular variation which is approved in the special exception permit. A special exception permit shall run with the land. (b) Time limit. Unless otherwise specified in the special exception permit, an application to commence construction of the improvements that are the subject of the special exception permit request must be applied for and approved within 12 months of the date of the approval of the special exception permit; otherwise the special exception permit shall 3 automatically become null and void. Permitted timeframes do not change with successive owners. Upon written request, only one extension of the 12 -month timeframe may be granted by the board of adjustment for a period not to exceed 12 months for good cause shown. SUBDIVISION 2. VARIANCES Sec. 130 -195. Scope. The purpose of this division is to set minimum requirements, standards and conditions for approving proposed variances to nonconforming structures. These regulations are intended to ensure the same general level of compatibility as is set forth in the comprehensive plan, neighborhood plans, and redevelopment and economic development plans adopted by city council. The regulations in this division are intended to ensure that variances granted to nonconforming structures do not (1) adversely affect the adjacent land uses, especially adjacent residential uses; or (2) the physical character of uses or structures in the immediate vicinity of the neighborhood in which the variance is sought. Finally, the purpose of variances is to - over time - bring nonconforming structures into compliance with the current zoning regulations in order to improve neighborhoods, businesses and tax base. Sec. 130 -196. Authority. The board of adjustment and the director of planning and development services may grant variances from the dimensional standards of zoning for a property if the variance satisfies criteria identified in section 130 -197. (1) Variance by director. The director may grant a variance for a nonconforming structure affecting up to 10 percent, not to exceed 5,000 square feet, of the footprint of the nonconforming structure, provided the applicable variance credits are proposed and approved. (2) Variance by the board. The board of adjustment may grant a variance affecting a nonconforming structure, provided the applicable variance credits are proposed and approved. The board of adjustment may grant a variance or variances that cumulatively with any variance or variances granted by the director allow up to a 40 percent expansion, but not to exceed 25,000 square feet of the nonconforming structure as it was shown on the application for the first variance request. Variances may not be granted for 100 percent of the nonconforming structure. 4 Sec. 130 -197. Application. (a) A complete application for a variance permit shall be submitted by a qualified applicant to the director of planning and development services, on a form prescribed by the director, along with a nonrefundable fee of $100.00, which may be changed from time to time by the city council to defray the actual cost of processing the application. No application shall be processed until the established fee has been paid and the application has been determined complete by the director. (b) Any application for a variance permit shall be accompanied by a site plan, drawn to scale that accurately depicts the existing conditions and the proposed conditions, including lot lines, locations of all structures, driveways, fences, berms, buffer landscaping, signs and paved areas and other items or features that may be appropriate to the consideration of the variance being sought as requested by the director of planning and development services. An as -built survey may serve as the basis for the existing conditions shown on the site plan. (c) Any application for a variance permit shall also contain a detailed description of the number and type of variance credits proposed to be applied to the property by the applicant in accordance with section 130 -198. Sec. 130 -198. Credits. (a) Number of credits. In addition to the variance criteria listed in section 130 -201, an applicant may be granted a variance only when he has supplied credits in the amounts shown in the variance credits table contained in this section that illustrate the number of approved credits required for his proposed project based on the percentage expansion of the project. Variance Credits Table Percent of V.iri.tnee Number To be Gr-.111ted 10% or less of Approved Credits Required 2 Over 10% to 20% 3 Over 20% to 30% 4 Over 30% to 40% 5 (b) Administration of credits. (1) The variance credits proposed to be met herein for the board of adjustment or the director of planning and development services shall not be the same standards already approved to support a variance granted on the same property. (2) Credits may be approved by the board of adjustment or the director of planning and development services as part of the application for variance and the chief building official may deny any subsequent building permit if applicant fails to comply with the variance conditions set by the board of adjustment or the director of planning and development services. (3) If a variance is granted by the board of adjustment or director of planning and development services, the variance granted shall specify the maximum time period for compliance (e.g., months, years, a permit shall be obtained within 30 days and work commenced and completed within one year or the variance is null and void). (4) Once the variance becomes null and void, owner shall remove any nonconforming structures or pieces of structures that were addressed by the variance granted. Any structures or pieces of structures not associated with the variance granted are not required to be removed. (c) Choice of credits. The applicant for a variance shall choose any of the following credits that matches the number of required credits for the project, subject to the approval of the director of planning and development services or the board of adjustment, as applicable: (1) Installation of a streetscape along the street at which the project is addressed following the standards that are set forth in section 18 -1206 of the code; (2) Installation of parking lot landscaping to the percent of required landscaping that equals or exceeds the extent of the expansion requested in the variance based upon section 18 -1205 of the code; (3) Installation of a public sidewalk along the frontage(s) of the property where no sidewalk exists; (4) Installation of an improved buffer between the property and adjacent properties zoned or used for residential purposes, which may include the addition of hedges or decorative posts, or the substitution of higher quality materials for the buffer fence or other similar improvements; (5) Painting or otherwise modifying the exterior of the structure with appropriate building materials to match the color range and/or materials of adjacent properties and/or those immediately across the street. Modifications may include, but are not limited to, the addition of siding, awnings, window trim, and new facia. When the property in question is located in a neighborhood that has a plan adopted by the city council and that addresses architectural standards, then material /exterior must comply with the adopted plan before credit may be given under this division; (6) Construction of a new roof on the structure such that the appearance and safety of the structure are improved; (7) Specifying the period during which the nonconforming structure may continue to operate or exist before being brought into conformance with the standards of the zoning regulations; (8) Maintenance of specific operating hours for a nonconforming use; or (9) Alternative proposals that meet all the intent and purpose of this chapter as approved by the board of adjustment or the director of planning and development services. Sec. 130 -199. Action by director. (a) After determining that the application for a variance permit is complete, the director of planning and development services shall review the application. (b) If the application is for a variance to be granted by the board of adjustment, the director shall prepare a staff report, which may include a recommendation of approval, approval with conditions or disapproval based upon the criteria in section 130 -201. (c) The director may approve, approve with conditions or disapprove the application for a variance permit, pursuant to the criteria of section 130 -201. Any approval or conditional approval of a variance shall include the number and type of credits approved by the director for the variance consistent with section 130 -198. Sec. 130 -200. Action by board. After due notice, the board of adjustment shall hold a public hearing on an application for a variance permit. At the public hearing, the board of adjustment shall consider the application, the staff report, the relevant support materials and the public testimony given at the public hearing. After the close of the public hearing, the board of adjustment shall vote to approve, approve with conditions or disapprove the application for a variance permit, pursuant to the criteria of section 130 -201. Any approval or conditional approval of a variance shall include the number and type of credits approved by the board of adjustment for the variance consistent with section 130 -198. Section 130 -201. Criteria. The director of planning and development services or the board of adjustment may grant a variance when the applicant demonstrates that his variance request will meet all the criteria below: (1) Ensures the same general level of land use compatibility as the otherwise applicable standards; (2) Is not a hardship of the applicant's own making; (3) Does not adversely affect adjacent land uses and the physical character of uses in the neighborhood in which the exception is sought because of inadequate buffering, screening, setbacks and other land use considerations; (4) Does not adversely affect property values of adjacent properties in any material way and will improve the property value of the property for which the exception is sought; (5) Furthers the goals and vision of the city as set forth in the comprehensive plan, the vision statement, and an applicable neighborhood plan or redevelopment plan adopted by the city council; (6) Is generally consistent with the purposes and intent of this chapter; (7) Is needed as special circumstances exist that are peculiar to the land or structure that are not applicable to other land or structures in the same district and are not merely financial; (S) Is necessary as literal interpretation and enforcement of the terms and provisions of the dimensional standards would deprive the applicant of rights commonly enjoyed by landowners in the same district and would cause an unnecessary and undue hardship; (9) Is the minimum action that will make possible the use of the land or structure which is not contrary to the public interest and which would carry out the spirit of this chapter and would result in substantial justice; (10) Does not decrease any setback and does not further encroach into a required setback; and (11) Will bring the existing and proposed structure closer into compliance with this chapter or will otherwise improve or enhance public health, safety or welfare. Sec. 130 -202. Conditions. The director of planning and development services and the board of adjustment may impose such conditions on a variance permit as are necessary to accomplish the purposes of this chapter, to prevent or minimize adverse impacts upon the public and neighborhoods and to ensure compatibility. These conditions may include, but are not limited to, limitations on size, bulk and location; standards for landscaping, buffering and screening, lighting and adequate ingress and egress; cash deposits, bonds and other guarantees of deposit; other on -site improvements; and limitations on the duration of the permit. Sec. 130 -203. Notice of decision. The director of planning and development services shall provide a copy of the decision issued under this division to the applicant by mail within ten days of the decision of the board of adjustment. Sec. 130 -204. Effect of variance permit. (a) Generally. Issuance of a variance permit shall authorize only the particular variation which is approved in the variance permit. A variance permit shall run with the land. (b) Time limit. Unless otherwise specified in the variance permit, an application to commence construction of the improvements that are the subject of the variance permit request must be applied for and approved within 12 months of the date of the approval of the variance permit; otherwise the variance permit shall automatically become null and void. Permitted timeframes do not change with successive owners. Upon written request, only one extension of the 12 -month timeframe may be granted by the board of adjustment for a period not to exceed 12 months for good cause shown. Section 3: That Chapter 130 "Zoning," Article IV "Nonconformities," Section 130- 251 "Scope; continuation; repair and maintenance," subsection (b) of the Code of Ordinances, Baytown, Texas, is hereby amended to read as follows: CHAPTER 130. ZONING ARTICLE IV. NONCONFORMITIES. Sec. 130 -251. Scope; continuation; repair and maintenance. (b) Authority to continue. (1) Continuation of nonconforming use. a. A nonconforming use that lawfully occupied a structure or a vacant site on August 7, 1995, may be continued so long as it remains otherwise lawful, subject to the standards and limitations of this chapter. b. A use that was made nonconforming by the creation of the LI and HI zoning districts that lawfully occupied a structure or a vacant site on December 23, 2007, may be continued so long as it remains otherwise lawful, subject to the standards and limitations of this chapter. (2) Continuation of noncomplying structure. a. A noncomplying structure that lawfully occupied a land site on August 7, 1995, that does not conform to the standards for front setbacks, side setbacks, rear setbacks, height, screening, floor area of structures, driveways or open space for the district in which the structure is located may be used and maintained, subject to the standards and limitations in this chapter. b. A structure that was made noncomplying by the creation of the LI and HI zoning districts that lawfully occupied a land site on December 23, 2007, that does not conform to the standards for front setbacks, side setbacks, rear setbacks, height, screening, floor area of structures, driveways or open space for the district in which the structure is located may be used and maintained, subject to the standards and limitations in this chapter Section 4: That Chapter 130 "Zoning," Article IV "Nonconformities," Section 130- 252 "Nonconforming uses," subsection (a) of the Code of Ordinances, Baytown, Texas, is hereby amended to read as follows: CHAPTER 130. ZONING ARTICLE IV. NONCONFORMITIES. Sec. 130 -252. Nonconforming uses. (a) Abandonment. Under this chapter a nonconforming use may be abandoned subject to the following: (1) Determination. A nonconforming use of land or of a structure in a district that is discontinued or remains vacant for a continuous period of one year shall be presumed to be abandoned and shall not thereafter be reestablished or resumed. Any subsequent use or occupancy of the structure or land site must conform to the regulations for the district in which it is located. (2) Overcoming presumption of abandonment. The presumption of abandonment may be rebutted upon a showing, to the satisfaction of the director of planning and development services, that during such period the owner of the land or structure (i) is maintaining the property in accordance with the building code, (ii) is in compliance with the article XV of chapter 18 of this code pertaining to vacant buildings, and (iii) is either: a. Actively and continuously marketing the land or structure for sale or lease; or 10 b. Engaged in other activities that would affirmatively prove there was no intent to abandon. (3) Calculation of period of abandonment. Any period of such discontinuance caused by government action, fire or natural calamities and without any contributing fault by the nonconforming user shall not be considered in calculating the length of discontinuance pursuant to this section. Section 5: That Chapter 130 "Zoning," Article IV "Nonconformities," Section 130- 252 "Nonconforming uses," subsection (b)(5) of the Code of Ordinances, Baytown, Texas, is hereby amended to read as follows: N7.I11;10 D) ,4FL11 1k11019[el ARTICLE IV. NONCONFORMITIES. (b) Movement, alteration and enlargement. No nonconforming use may be moved, enlarged or altered and no nonconforming use of land may occupy additional land, except as follows: (5) Destruction of structure with nonconforming use. If a structure that contains a nonconforming use is destroyed to the extent of 50 percent or more by fire or natural calamity or is voluntarily razed or is required by law to be razed, the nonconforming use shall not be resumed except as provided in subsection (b)(6) of this section. The determination of the extent of damage or destruction under this subsection shall be determined in accordance with section 130- 253(g). Section 6: That Chapter 130 "Zoning," Article IV "Nonconformities," Section 130- 252 "Nonconforming uses," subsection (b) "Movement, alteration and enlargement" of the Code of Ordinances, Baytown, Texas, is hereby amended to add a new subsection to be numbered and entitled subsection (6) "Special use permit," which subsection shall read as follows: CHAPTER 130. ZONING ARTICLE IV. NONCONFORMITIES. (b) Movement, alteration and enlargement. No nonconforming use may be moved, enlarged or altered and no nonconforming use of land may occupy additional land, except as follows: • . • (6) Special use permit. If a structure that contains a nonconforming use is destroyed to the extent of 50 percent or more by fire or natural calamity, the owner must file an application for a special use permit in accordance with section 130 -612 if the owner desires to resume the non - conforming use. The application shall be processed in accordance with article VII, Division 4 of this chapter, except all of the following conditions must be met in lieu of those conditions found in 130- 617: a. Not contrary to the public interest; b. Due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship; and C. The spirit of this chapter is observed and substantial justice is done. Section 7: That Chapter 130 "Zoning," Article IV "Nonconformities," Section 130- 253 "Noncomplying structures" of the Code of Ordinances, Baytown, Texas, is hereby amended to read as follows: CHAPTER 130. ZONING ARTICLE IV. NONCONFORMITIES. Sec. 130 -253. Noncomplying structures. (a) Generally. Under this chapter, no noncomplying structure may be moved, enlarged or altered, except in the manner provided in this section or article II, division 4 or unless required by law. (b) Applicability. Nothing contained in this section shall be construed to prohibit improvements, maintenance or repair for any part of structures that are inside the existing footprint of a noncomplying structure that do not increase the height of the existing noncomplying structure. Some examples are the following: a water heater may be repaired or replaced within the existing footprint; components, cladding and roofs may be repaired as long as square footage (usable or not usable) is not added to make another story on the building or to exceed the existing footprint of the structure. (c) Repair, maintenance, alteration and enlargement. Any noncomplying structure may be repaired, maintained, altered or enlarged; provided, however, that no such repair, maintenance, alteration or enlargement shall either create any new noncompliance or increase the degree of the existing noncompliance of all or any part of such structure except in the manner provided in this section or article II, division 4 of this chapter. (d) Moving. A noncomplying structure shall not be moved in whole or in part, for any distance whatsoever, to any other location on the same or any other lot unless the entire structure shall thereafter conform to the regulations of the district in which it is located after being moved except in the manner provided in this section or article II, division 4 of this chapter. 12 (e) Damage or partial destruction. If a noncomplying structure is damaged or destroyed by fire or natural calamity to the extent of 50 percent or less, the structure may be restored if restoration is started within six months and diligently pursued to completion. The city may require a cash deposit, bond or other guarantee of performance to ensure diligent progress and completion of the restoration. Any delay in starting such restoration that is caused by government action or natural calamities and without contributing fault by the owner shall be deducted in calculating the starting date of restoration. (f) Destroyed structures. Reconstruction of a nonconforming structure that has been 50 percent or more destroyed may be granted by the board of adjustment only upon its finding that granting the variance satisfies the following conditions: a. Not contrary to the public interest; b. Due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship; and The spirit of this chapter is observed and substantial justice is done. The board of adjustment may impose such conditions as are necessary to protect adjacent property owners, to safeguard the character of the neighborhood in which the nonconforming structure is located, and to ensure the protection of the public health, safety and welfare, including, but not limited to, conditions specifying the period during which the nonconforming use may continue to operate or exist before being brought into conformance with the standards of this chapter. In considering such reconstruction, the board of adjustment shall address the public welfare, character of the area surrounding such structure, the conservation, preservation and protection of property, including the applicant's property, as well as all plans adopted by the city council that affect or cover the area in which the land is located. (g) Calculation for percentage destroyed. The board of adjustment shall utilize the following to make its determination concerning 50 percent or more destroyed: (1) The value of the nonconforming structure prior to destruction shall be established using the most current (pre- destruction) appraisal district tax roll; and (2) The owner may propose to substitute a current appraisal of the nonconforming building (before it was destroyed) prepared by an appraiser licensed in the state to prepare such appraisal. Section 8: Any person who fails to comply with any provision of this ordinance shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine not exceeding TWO THOUSAND AND NO /100 DOLLARS ($2,000.00). Each act of violation and each day upon which any such violation shall occur shall constitute a separate offense. In addition to the 13 penalty prescribed above, the city may pursue other remedies Such as abatement of nuisances, injunctive relief, administrative ad . judication and revocation ot'licenses or permits. Section 9: All ordinances or parts of ordinances inconsistent with the terms of this ordinance are hereby repealed; provided, however, that such repeal shall be only to the extent of such inconsistency and in all other respects this ordinance shall be CUITILilative of other ordinances regulating and governing the subject matter covered by this ordinance. Section 10: If any provisions, section, exception, Subsection, paragraph, sentence, clause or phrase of this ordinance or the application of same to any person or set of circumstances, shall t-or any reason be held 1,111COnStitUtional, void or invalid, such invalidity shall not affect the validity of the remaining provisions of"this ordinance or their application to other persons or sets ol'circurnstances and to this end all provisions ol'this ordinance are declared to be severable. Section 11: ']'his ordinance shall take effect from and after ten (10) days from its passage by the City Council. The City Clerk is hereby directed to give notice hereof by causing the caption of this ordinance to be published in the official newspaper of" the City otllaytown at least twice within ten (10) days after passage of this ordinance. 1--7 INTRODUCED, READ and PASSED by the afflirniative vo - ol'the City Council of the City of Bayto,,N,n, this the 26"' day of January, 2012. 2 �, 4 STEPI-11-7INTI. DONCARLOSJ.,Mayor ATT T: 1.11"FICIA BRYSCNH, .,lztyClcrk APPROV171) AS 'ro FORM: VCVAICI 0 RAM I REZ, S R,, Cituttorney I \I ega I \KarmTi I es,Cily (:'otiiicihOr(Iiiiajico21,112�Jaiitjiiry 20 1ZedhTieVasiowlCoun6 L docx 14