A. Conditions required for variance.
(i) That there are special circumstances or conditions affecting the land involved such that the strict application of the provisions of this Article 3 would deprive the applicant of the reasonable use of the land; and
(ii) That the variance is necessary for the preservation and enjoyment of a substantial property right of the applicant; and
(iii) That the granting of the variance will not be detrimental to the public health, safety, or welfare, or injurious to other property within the area; and
(iv) That the granting of the variance will not have the effect of preventing the orderly use of other land within the area in accordance with the provisions of this
Section 3.6: Zoning Relief Procedures.
(v) Such findings of the Board, together with the specific facts upon which such findings are based, shall be incorporated into the official minutes of the meeting at which such variance is granted. Variances may be granted only when in harmony with the general purpose and intent of this Section 3.6 so that the public health, safety and welfare may be secured and that substantial justice may be done.
B. Findings of undue hardship.
1. In order to grant a variance, the Board must make written findings that an undue hardship exists, using the following criteria:
(i) That literal enforcement of the controls will create an unnecessary hardship or practical difficulty in the development of the affected property; and
(ii) That the situation causing the hardship or difficulty is neither self-imposed nor generally affecting all or most properties in the same zoning district; and
(iii) That the relief sought will not injure the permitted use of adjacent conforming property; and
(iv) That the granting of a variance will be in harmony with the spirit and purpose of these regulations.
2. A variance shall not be granted to relieve a self-created or personal hardship, nor shall it be based solely upon economic gain or loss, nor shall it allow land use not otherwise permitted in the applicable zoning district or increase the allowed residential density in the applicable zoning district. No variance may be granted which results in undue hardship upon another parcel of land.
3. In exercising its authority, the Board may consider the following as grounds to determine whether compliance with the regulation as applied to a structure that is subject of the request would result in unnecessary hardship:
(i) The financial cost of compliance is greater than 50 percent of the appraised value of the structure as shown on the most recent appraisal roll certified to the assessor for the City under Texas Tax Code section 26.01, as amended;
(ii) Compliance would result in a loss to the lot on which the structure is located of at least 25 percent of the area on which development may physically occur;
(iii) Compliance would result in the structure not being in compliance with a requirement of another municipal ordinance, building code or other requirement;
(iv) Compliance would result in the unreasonable encroachment on an adjacent property or easement; or
(v) The municipality considers the structure to be a nonconforming structure.
4. The applicant bears the burden of proof in establishing the facts that may justify a variance.
5. The Board shall not grant a variance unless it finds, based upon evidence, that each of the conditions listed in
Section 3.6: Zoning Relief Procedures and the findings listed in this subsection B. have been met.
6. The Board may impose such conditions, limitations and safeguards as it deems appropriate upon the granting of any variance. Violation of any such condition, limitation or safeguard shall constitute a violation of the UDC.
C. Finality of decision; judicial review.
1. The decision of the Board shall be final. However, 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 is illegal in whole or in part and specifying the grounds of the illegality:
(i) A person aggrieved by the decision;
(ii) A taxpayer; or
(iii) An officer, department, or board of the City;
2. The petition must be presented within ten (10) days after the date the decision is filed in the Board's office. Subject to the provisions of TLGC Section 211.011, only a court of record may reverse, affirm, or modify a decision of the Zoning Board of Adjustment.
