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HomeMy WebLinkAboutZBOA Decisions 09.24.2002Submitted Ry1 BohoardOAsoS City Atty. CC: JURISDICTION AND AUTHORITY OF THE ZONING BOARD OF ADJUSTMENT Olson & Olson 333 Clay Street, Suite 3485 Houston, TX 77002 (713)759-0696 May 22, 2001 JURISDICTION AND AUTHORITY OF A ZONING BOARD OF ADJUSTMENT "ALL PROPERTYIS HELD SUBJECT TO THE VALID EXERCISE OF THE [C= S] POLICE POWER;" TEXAS SUPREME COURT 19341 I. Introduction A. Authority for Board. The authority for the creation of a Zoning Board of Adjustment ("ZBA' or `Board") is found in §211.008, TExAs LOCAL GOVERNMENT CODE. B. Purpose. The purpose for which a Board is created is to provide an administrative outlet through which persons aggrieved by city zoning regulations or zoning enforcement officers may seek relief without resorting to litigation. However, there are limitations to the authority of the Board. C. Quasi -Judicial Nature. The ZBA is a quasi-judicial body. As such, the Board has no legislative authority. Legislative authority is reserved to the City Council which determines the various regulations and districts as set forth in a city's zoning ordinance. Even though the Board may disagree with a zoning regulation or district boundary, it has no authority to grant relief to an applicant simply because it would have, given the power, written the regulations differently. D. Scope of Authority. The specific areas of authority listed below constitute the realm of the Board's jurisdiction. If the Board is without authority to act, or if an applicant is unable to prove the elements necessary for relief, the applicant's recourse is to seek an amendment to the ordinance by request to the City Council. II. Areas of Authority A. Section 211.009 of the TEXAS LOCAL GOVERNMENT CODE enumerates the basic statutory authority and functions of the Board. Any limitations on such authority would be found in the city's zoning ordinance. Subsection (a) of s §211.009 reads as follows: "(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; 'Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, 478 (1934). _ZBA—Page 2 Olson & Olson 5/22/01 (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 done; and (4) hear and decide other matters authorized by an ordinance adopted under this subchapter." B. What's the Difference? In general terms, a proceeding under (a)(1) would be referred to as an "appeal," (a)(2) as a "special exception," and (a)(3) as a "variance." They will be discussed in the same order. (1) Appeals. Pure and simple, appeals are appeals to the Board of the administrative official's (zoning official) interpretation of the city's zoning ordinance. If an affected person believes the administrative official has erred in the interpretation of the zoning ordinance, then that affected person may appeal such interpretation to the Board. Appeals may be taken by persons denied permits, or may be taken by persons who believe a permit was wrongfully issued. Appeals may be taken only from decisions of the administrative or zoning official. It is only the decision of this official which is subject to appeal. Upon an appeal the Board assumes all authority of the official, and may reverse, decide in favor of, or modify the decision of the official. (2) Special Excotions. A Special Exception is a circumstance described in a zoning ordinance whereby a person, because of the existence of certain facts, may be granted an exception from one or more regulations. The criteria necessary to grant a Special Exception is established in the zoning ordinance. If the zoning ordinance makes no mention of a Special Exception, the Board will not have one to consider. (3) Variances. By far the most often litigated and least understood of all areas of authority of a Board, a variance may only be granted lawfully if the Board determines the existence of certain elements as set forth in the statute. These elements are: (a) the granting of the variance would not be contrary to public interest; (b) due to special conditions peculiar to the property in question; (c) a literal enforcement of the zoning regulations would result in unnecessary hardship; ZBA—Page 3 Olson & Olson 5/22/01 (d) if the variance is granted, it is done so in the spirit of the ordinance; (e) so that substantial justice is done. (4) Other matters. An amendment that allows cities to expand the ZBAs jurisdiction to include non -statutory duties such as regulating nonconforming uses was passed by the 73' legislature. The language allows ZBAs to hear and decide "other matters" which may be authorized by ordinance. see. 211.009(a). C. What So Hard About Finding a Hardship? Most of the elements are, frankly, quite subjective and in most cases not going to be second-guessed by a court. Element (c) is a different story. Hardship has been addressed many times by the courts of this State. The rule is clear that unless an applicant can show an "mmecessary hardship" he is not entitled to a variance. What is "unnecessary hardship"? 1. Case Law. In Board of Adjustment of the City of San Antonio v. Willie, 511 S.W.2d 591 (Tex. Civ. App. - San Antonio 1974, ref n.r.e.), the Court, addressing the issue of hardship, held that a variance could only be authorized where the zoning ordinance did not permit any reasonable use of the land. In Reiter v. City of Keene, 601 S.W.2d 547 (Tex. App. - Waco 1980, dism'd), the Court stated that "a property owner challenging the action of a Board of Adjustment must show that enforcement of the ordinance would destroy any reasonable use of his property. A variance is not authorized merely to accommodate the highest and best use of the property, but where the zoning ordinance does not permit any reasonable use of such lot." Thus, in considering an application for a variance, the most critical question to be asked is whether the applicant, if the variance is denied, will be deprived of any reasonable use of his property. If the answer is "no," the Board has no authority to grant a variance. In addition, the Board has no authority to grant a variance that authorizes a use that is prohibited in the district in which the subject property is located. 2. What isn't a hardship. Personal choice, a preferred construction plan, a more pleasing construction project, or cheaper construction costs are not considered "unnecessary hardships." Pecuniary loss, standing alone, does not constitute an `unnecessary hardship." Further, the hardship cannot be self-imposed. In the case of Currey v. Kimple, the court gave the example of a square lot which had been subdivided into two triangle shaped lots to maximize their sales price. The court said that a variance in that instance would not be appropriate because the hardship had been self imposed (dividing the lot). Currey v. Kimple, 577 S.W.2d 508 (Tex. Civ. App.—Texarkana 1979, writ reed n.r.e.). >ZBA—Page 4 Olson & Olson 5/22/O1 D. A ZBA Doesn't Have Enough Authority to Please Everyone. Remember the Board is not a legislative body, and cannot change the ordinances' terms or definitions, or allow uses not otherwise allowed under the ordinance. In the case of West Texas Water Refiners, Inc. v. S&B Beverage Company, 915 S.W.2d 623 (Tex.App.—El Paso 1996, no writ), the court invalidated a special exception granted by the ZBA for the sale of beer and wine. The court found no authority in the ordinance for the ZBA to issue a special exception as if it were a conditional use, and held that the board could not invent such authority on a case by case basis, even if the ordinance intended to allow the board such authority. The special exception was found to be void because the board had exceeded its authority. IH. Recent Legislative Amendments Affecting the ZBA A. Number of Members. Originally all ZBAs were composed of five members, with up to four altemates. This was amended in the 73a legislature, to allow councils to determine how many members should be on the board. §211.008(b). This was further broadened in the 75' Legislature to allow each councilmember to appoint a ZBA member. Other changes include providing that a simple majority (previously four of five members) could adopt rules for the ZBA. §211.008(e). B. When it Goes to Court. The 76th Legislature amended Section 211.011 to provide that appeals from ZBA actions could be taken to county courts, county courts at law, or district court. Prior case law had held that appeal had to be to District Court. IV. Conduct of Zoning Board of Adjustment Hearings A. Due Process. All hearings before the ZBA must be conducted pursuant to concepts of due process. A fair and impartial hearing is crucial to the integrity of the Board's decisions. The statute allows a Board to adopt rules of procedure, and these should be carefully reviewed for compliance with due process standards and then followed. Accurate record keeping is a must. B. The Hearing Before the Board. Because the ZBA is a quasi-judicial body, all hearings before the Board are conducted under accepted standards of due process. Evidence may be presented on both sides. All cases must be heard by at least 75 percent of the members, §211.008(d). C. Actions Which May be Taken by the Board After an application has been presented, and after proper deliberation among the Board's members, the Board -ZBA—Page 5 Olson & Olson 5/22/01 will make a ruling on the application. The approval of four (4) Board members is required by law to grant approval to an application; a simple majority is not sufficient. There are four options available to the Board: a. Grant the relief requested in the application; b. Grant the relief requested, upon satisfaction of whatever conditions might be imposed by the Board; C. Deny the relief requested, but grant some sort of modification of the relief requested; or d. Deny the relief requested. D. Meetings and the Record. 1. All meetings of the Board must be conducted in accordance with the Texas Open Meetings Act, TEXAS GOVERNMENT CODE, Chapter 551. This means that meetings must be posted with at least 72 hours notice. a. Members should be aware of the traps and pitfalls of meeting in fewer than a quorum, circulating memos or documents prior to the meeting, and even telephoning other members about items on the agenda. b. The agenda must post items with reasonable specificity so that members of the public who might be interested may be apprised. C. ZBAs may request legal counsel, and may retire into executive session to receive advice from the attorney or discuss pending or contemplated litigation. 2. A complete and accurate record is a must. Most meetings will be recorded. Copies of all documents must be retained in city files in accordance with your city document retention policy. Tapes of open meetings, agendas, minutes and supporting applications, documents considered at the meeting or submitted by individuals are in most cases, all open records, and subject to review by anyone. Agendas or tapes of executive session are not public, unless ordered by a court. See TEXAS GovERNNiExT CoDE Chapter 552. 3. A motion should, ideally, identify the reasons for making a particular decision. It should be recorded on a forth which serves as notice to the property owner what action has been taken, and that form should be recorded in the ZBA's files. A copy should be signed by and given to the applicant at the meeting, if at all possible. 2BA—Page 6 Olson & Olson 5122/01 Regular Meeting Zoning Board of Adjustment September 24, 2002 Minutes of the Regular Meeting of the Zoning Board of Adjustment of the City of Friendswood that was held at City Hall on September 24, 2002 at 7:00 p.m. with the following members present constituting a quorum: Chairman Vice Chairman Regular Member Regular Member Regular Member Alternate Member Alternate Member Building Official Z.B.O.A. Secretary Chairman Decker called the meeting to order at 7:10 p.m. Absent from this meeting: Ron Bazzy Ron Decker Greg Hughes Ken Boggs David O'Brien, III Wayne Ford David Dannemiller Melissa Pride Randy Mason Linda Thornton Oath of Office: was administrated by Staff Liaison Linda Thornton to reappointed regular member Greg Hughes, newly appointed regular members Ken Boggs, Wayne Ford and newly appointed alternate member Melissa Pride. Orientation: Presentation by City Attorney John Olson. David Dannemiller requested the City Attorney to draft Special Exceptions for the Board to review. *Greg Hughes made a motion to approve the minutes from the March 26, 2002 meeting. Seconded by: David O'Brien Motion approved unanimously. Motion was made and approved to adjourn at 7:50 p.m Greg Hughes Vice Chairman ATTEST: Linda homton Assistant City Secretary/ And Staff Liaison co RESOLUTION NO. R92-2 A RESOLUTION ADOPTING RULES OF PROCEDURE FOR ____ ZONING BOARD OF ADJUSTMENT OF THE CITY OF FRIENDSWOOD, TEXAS, PURSUANT TO AUTHORITY CONTAINED IN SECTION 10 OF THE ZONING ORDINANCE OF THE CITY OF FRIENDSWOOD, TEXAS. BE IT RESOLVED BY THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF FRIENDSWOOD, TEXAS: Section 1. The following rules of procedure shall govern all meetings and proceedings of the Zoning Board of Adjustment ("BOA") of the City of Friendswood, Texas, and the conduct of its members and persons in attendance at such meetings: Rule 1. Meetings. (A) Regular meetings of the BOA shall be held in the Council Chambers of the City Hall on the 4th Tuesday of each month as needed, commencing at 7:00 o'clock p.m. In the event Tuesday falls on a holiday, the meeting for that day -shall be rescheduled as determined by the BOA. Any meeting of the BOA may be recessed from hour to hour or from day to day by a majority vote of the members present at such meeting, and such recessed meeting shall be held without further notice of any member; provided, that no meeting shall be recessed to a time later than forty-eight (48) hours after the time at which the action to recess any such meeting is taken unless a, new notice of meeting is duly posted in accordance with law. (B) Special meetings of the BOA shall be held by the call of the Chairman and three (3) or more members. Such meetings may be held at City Hall or at another location within the City designated by the BOA. (C) Notice and conduct of all meetings, whether regular or special, shall be in accordance with Tex. Rev. Civ. Stat. Ann. art_ 6252-17, the Texas Open Meetings Act_ Rule 2. The BOA shall be comprised of five (5) members, each of which are appointed as regular members of the BOA by the City Council. Pursuant to law, the City Council also appoints four (4) alternate members to the BOA, serving only during the absence of a regular member, and further such alternate members serve in such absence only when specifically, requested to do so by the Mayor or the City Manager as set forth in Section 2l1.008(c), Texas Local Government Code. No alternate member is entitled or permitted to participate as a BOA member except in such absence and pursuant to such request_ The BOA shall not meet unless at least four (4) members are present, such number -constituting a quorum for the transaction of business, but in no event shall more than five (5) members sit at any time. Except as otherwise provided herein, no action of the BOA shall be valid or binding unless adopted by the affirmative vote of four (4) members. In the event the BOA membership falls below four (4), then the meeting shall be. adjourned until the next called or'regular meeting. Rule 3. Chairman Call to Order. The Chairman, or in his absence the Vice -Chairman, shall preside at all meetings of the BOA. In the absence of the Chairman and the Vice -Chairman, any member elected by a majority of the BOA at such meeting may preside unless another member has been designated- by the 'Chairman .for such purpose. At the hour of the meeting, the Chairman or acting Chairman shall assume the chair, call the BOA to order, and the Secretary shall call the roll_ Rule 4. Handling of Agenda Subjects. The BOA shall be the sole judge of its own procedure and shall be in full control of the business before it. Neither the Chairman, nor the Vice -Chairman, nor any member appointed to preside shall have any power to either recess a meeting or adjourn a meeting, or prevent the BOA from considering an agenda item, or lay the same out for consideration, except in accordance with the Texas Open Meetings Act, the City Charter, and as otherwise provided herein. If, notwithstanding the positive provisions of this Rule, the presiding officer, whether Chairman, Vice - Chairman, or member presiding, shall attempt to prevent the BOA from taking any action on any agenda item brought before it, any member present may call for a vote of the BOA to consider the matter. Rule 5. Conduct of Chairman and Members. Any member of the BOA, including the Chairman, who shall fail to. observe decorous and orderly behavior during a meeting of the BOA shall be subject to expulsion from such Tr eeting upon motion_ passed by majority vote of the BOA present at the meeting. - 2 - Rule 6_ Non -interruption_ Members of the BOA shall be permitted to address the Chair while either seated or standing, and after recognition shall not be interrupted while speaking without his consent, except by a call of order of the Chair_ Rule 7_ Handling. of Question of Order. . All questions of order shall be decided by the Chairman with the right of appeal of such decision to the members, and a majority of the members present may overrule the decision of the Chair_ When the Chair rules on a point of order and one of the members states "I appeal the ruling of the Chair," or the words to such effect, no other business shall be transacted until the question, "Shall the ruling of the Chair be sustained?" be voted on.: The Chairman shall immediately put such question to vote without debate, and, if he fails to do so immediately, any member of the BOA may put the question to a vote. Rule 8. Motion to Table_ Since the BOP_ will always have regularly scheduled meetings, a motion to table, when carried, does not permanently defeat a measure. If a -notion or other measure is tabled by a majority vote of the BOA, such motion, or other measure, shall be considered always to be lying upon the table and may be called from. the table at any time by a majority vote of the members present, and again considered. -Rule 9. Procedure to Defeat Without Debate_ Upon any measure being laid out, or any motion being made, any member present, before there is any debate opened on the subject, may make a parliamentary objection to the consideration `of the subject which need not be seconded. No debate shall then be permitted, and the Chairman shall immediately put the question, "Shall the objection be sustained?" If the objection is sustained by a vote of two- thirds of the members present, the motion or other measure is permanently defeated for the meeting and shall not be debated (except in accordance with Rule 1,0)_ Rule ].0. P.rocedur_e to Debate. If, .during a debate unon any notion or other matter before the BO =, a!ly moves .that the subject under discussion be PL't to a vote without furtiier debate (and such a motion teed rot be seconded j , the Chairman shall isrznediately ask the BOA, "Is here any objection to proceeding to vote on the motion or other measure before the- BOA being taken immediately"? If any member objects, the Chairman shall - 3 -- immediately and without debate put the question, -Shall the subject being discussed be put to a vote without debate to a vote of the BOA," and if two-thirds of the members present vote in favor of ordering the vote, debate on the question shall be closed and a vote on the motion or other measure shall be taken immediately - Rule 11. Reconsideration of a Subject_ When a motion or other measure of any sort has been placed before_ the BOA and defeated, the same question shall not again be considered by the BOA until a lapse of ninety (90) days. Rule 12_ Reducing motion to Writing- -All motions must Be seconded before being put to a vote by the Chair (except where otherwise provided in these Rules), and upon request of any other member or Chairman, the party making any such motion (except a motion to order a, vote on a subject being considered per Rule 8 to table, or such other procedural matter) shall reduce the same to writing, or request the Secretary to do the same. Rule 13. Secretarial Procedure_ The BOA Secretary_ shall be the secretary of the BOA and shall act as reading and recording clerk to the BOA_ By his or her ' signature, the Secretary shall certify the correctness of the minutes and journals, shall record all acticns taken by the BOA, shall record the. vote upon each measure when taken, by ayes and nays, or the showing of hands, and shall perform such other duties as may be required of the BOA Secretary by the Chairman. In the absence of the Secretary, any suitable person may be appointed by a majority of the members to serve as Secretary Pro-Tem of any meeting. The Secretary shall keep a copy of these Rules and any and all other required documents available for reference. Rule 14_ Voting. The concurring vote of four (4) members of the Board of F.djustment is necessary to: (a) reverse an order, requirement, decision, or determination of the zoning official; (b) decide in favor of an applicant on a matter on which the BOA is required to pass under the zoning Ordinance; or (3) authorize a variance from the terns of the Zoning Ordinance. All members of the BOP_ present at such ^:eeting (but not including alternate members who have not been selected to participate but may nevertheless be present) shall'vote on each matter before the board unless required to abstain pursuant to state-_ law or the City`s charter. Rule 15: Citizen`s Right to be Beard. Any citizen shall have a reasonable opportunity to 'be heard at any and all regular and special meetings Of the BOA in regard to any and all matters to be considered at any such meeting. A time shall be set aside during each meeting for the BOA to hear from the public. No member of the public shall be heard unless recognized by the Chairman. Any member of the 'public who interrupts the BOA proceedings, fails to abide by these :rules of procedure. in addressing the BOA, or is otherwise disruptive to the extent the BOA_ is unable to conduct its meeting in an orderly fashion, shall be subject to removal from the meeting place upon the direction of'the Chairman, Records relating to items before the BOA shall be available for public inspection at the City Hall in accordance with Tex. Rev_ Civ. Stat_ Ann., art. 6252-17a, the Open Records' Act_ Rule 16. Order of Business - Regular Meetings. Unless agreed to otherwise by majority vote of the BOA, the normal order of business before the BOA in any. regular meeting shall be as follows: (1) Call to order. (2) The Secretary shall mark the absence of the Chairman or any other member of the BOA. (3) The Secretary shall test and attest to the satisfactory operation of the tape, recorder, and maintain proper functioning and tape changes as needed throughout the meeting. (4) Communications from the Chairman shall be presented. (5) Reports from the members of the BOA shall be presented. (6) The BOA shall receive petitions and hear any of the public as provided in Rule 15,. and any appeal or other matter specially set for public.hearing shall then be heard by the BOA. (7) Unfinished business shall then be considered. (8) Then the BOA shall consider any business that is currently before them. (9) New business shall then be considered. (10) The BOA shall correct and adopt or table the minutes of the previous meeting(s). (11) Adjournment. Rule 17_ Order of Business for Special Meetings. Unless agreed to otherwise by a majority vote of the BOA, the normal order of business before the BOA in any special meeting shall be the sa:ae as provided in Rule 16 above for Regular Meetings. Rule 18_ Suspension of Rules of Procedure. Any one or all of these rules of procedure may be suspended in order to. allow a particular consideration of a matter,_ provided that it does not violate state law, or the City's Home Rule Charter, and not less than two-thirds of. the members present vote in favor of such suspension. Where any rule embodies a provision of state law, identically or in substance, such rule may not be suspended_ The requirement of two-thirds of members present to suspend a rule shall not apply to Rules 16 and Rules 17, but the order of business may..be suspended by a majority vote. Rule 19. Rules of Procedure. Except where in conflict with state law, the City's Home Rule Charter, city ordinance, or the rules of procedure adopted by this Resolution, the rules of the procedure laid down in Robert's Rules of Order, 75th Anniversary Edition, shall govern the proceedings of the. BOA. Section 2.. Rules- regarding official instruments of the BOA -- The BOA shall utilize four (4) instruments to formally report its work as follows: Instrument 1. Official Notice. Provisions for advance general announcement_ of BOA meetings. Instrument 2_ 'Agenda. The agenda of the .BOA shall have coherent and consistent structure, with similar items grouped together and relevant attachments clearly referenced and/or attached. Instrument 3_ Orders. All decisions for which the BOA is required to act pursuant to state law and the City's Zoning Ordinance shall be evidenced by a written order which shall be executed by the Chairman, and attested by the Secretary_ All written orders shall be placed in the official records of the BOA immediately upon adoption and execution. Instrument 4. Minutes__ The structure of the minutes shall follow the order of the agenda as amended. The content of minutes shall recognize all information presented to the BOA whether by staff, other public agencies or BOA, community groups, or interested parties. The minutes shall provide formal record of the BOA's actions, including the name of the mover and seconder by notions, the specific construction of motions and the voting record. This record must be provided for all motions, whether passed or defeated_ The minutes of each meeting shall be prepared, made publicly available, and adopted by the BOA at a subsequent meeting; at that subsequent meeting, revisions of the minutes may be made by vote_ PASSED, P_djustmerft of of January_ ATTEST: APPROVED, AND ADOPTED by the Zoning Board of the City of Priendswood, Texas, this the 13th day 199?_ Eil�,izaaLtthh Ayers ,�cret�ry Zoning Board of Adjustment Received January ATTEST: <: William Taylor, Zftairman Zoning Board of Adjustment January- 13, 1992 Signed this date: by the City Council this the 6th day of '1992-. au W_ Schrader Mayor 'eloriG archer, C14C City Secr zasy January 6. 1992 Signed this date: . �:C: LINDA THORNTON i• RON DECKER bl) OLSON & OLSON ATTORNEYS AT LAW THREE ALLEN CENTER SUITE 3485 333 CLAY STREET HOUSTON, TEXAS 77002 TELEPHONE: 713-759-0696 FACsrnHLE: 713-759-0342 MEMORANDUM TO: Zoning Board of Adjustment City of Friendswood FROM: Kimberley Mickelson DATE: January 16, 2001 RE: Special Exception Language Attached is a draft proposal for the special exceptions we discussed at the last meeting. After reviewing the case law on special exceptions, I am of the opinion that the concept of special exception does not allow discretion for the board to make decisions based on the "best interests of the city and community," such as was discussed at the last meeting. Special. I believe there is not a tool to implement such a proposal that would survive a delegation of power challenge. An unlimited delegation of land use power to the Board would be illegal. See West Texas Water Refiners, Inc. v. S&4 Beverage Co., 915 SW2d 623, 628 (Tex.App.—El Paso 1996, no writ) (holding that the Board could not invent exceptions, even if such were the intention of council). Accordingly, I have not drafted a general exception. There were four other areas discussed at that meeting: errors in inspection, medical exceptions, "substandard" lots; and financial hardship. I have responded to each of these below. The Zoning Enabling Act, Chapter 211 of the Texas Local Government Code, provides that a city council may grant authority to its 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 the council has determined would maintain the ordinances' general purpose and intent. Special exceptions are specified uses that the ordinance determines are appropriate and allowed in designated districts if the standards for their placement or construction are met. The following would be a new section of the zoning ordinance. Special Exception Memo January 16, 2001 Page 2 Special Exceptions. The Board may grant special exceptions to the terms of the zoning ordinance in the following situations: 1. To allow for completion or occupancy when there has been an error by building department staff in inspections when: a. There is an error on the building plans which was a good faith error on the part of the applicant, that is, it is reasonably discernible that the error was not intentionally made in order to circumvent the zoning ordinance requirements; b. The project is substantially completed, that is, seventy-five percent or more of the total project is done, or that portion of the project which is not in conformance with the zoning regulations is 100% completed; and C. Any encroachment into the side or rear yard setbacks is "de- minimus" in nature. For purposes of this section, "de-minimus" shall be defined to be an encroachment that is ten percent or less of the required yard; d. Inspections have been conducted as required by city officials and the inspectors failed to notice the error. 2. To allow for reduced setbacks in residential structures for occupancy by persons with medical need or physical disabilities, or to make a reasonable accommodation for such persons when: a. Request is accompanied by an affidavit from the property owner or a doctor with a statement for the need for reduced setbacks; b. The reduction in setbacks shall not result in setbacks less than the following: sideyard: five feet street sideyard: fifteen feet rear yard: ten feet front yard: fifteen feet Special Exception Memo January 16, 2001 Page 3 Note that this proposal combines two of the items the Board discussed into the first special exception: errors in inspection and de-minimus encroachments. There was some discussion relating to substandard lot sizes, but the Planning and Zoning Commission does not approve plats that contain substandard lots, and this should not be a problem. Lots for garden homes are small by design in the zoning ordinance, and are not "substandard," they're just smaller. If the Board believes this is a problem, I would recommend suggesting to Council and the Commission that they amend the lot size standards for that type of development. The final item discussed at the last meeting was to consider how to allow the Board to consider financial matters in order to find hardship. We discussed that if it would cost more than 25% of the value of the structure to correct the non-compliance with the zoning ordinance standards, that could be considered and be sufficient to constitute a hardship. The appropriate way to handle this, I believe, is to request Commission and Council to consider an amendment that would provide that guidance. cc: Deloris McKenzie City Secretary