§ 28-5. Jurisdiction, enforcement and appeals.
(a)
Jurisdiction. The provisions of this chapter shall be applicable to the entire area within the corporate limits of the city and in the extraterritorial jurisdiction (ETJ) of the city as defined in the Municipal Annexation Act.
(b)
Enforcement. Enforcement shall be made by departments of development services, police, or other departments designated by the city manager against any violator of any provision of this chapter. As a condition precedent for the lawful erection and continued erection and maintenance of signs within its jurisdiction, city staff shall have the right to enter into the property wherein said sign is displayed or erected or to be erected, during reasonable working hours, for inspection and/or other health and safety regulatory purposes. Failure to permit city staff entry to the premises and/or to conduct a lawful investigation, or any obstruction thereof, will result in immediate termination of any existing permit and/or permission to lawfully display, erect or maintain said sign. The sign owner or operator must file a written appeal of such termination to the building-related and fire codes appeals and advisory board within ten (10) days of notice of the same being mailed to the sign-owner and/or operator prior to any other administrative or legal action taken by the sign owner and/or operator. A proper and timely filed appeal shall be heard by the building-related and fire codes appeals and advisory board as mandated by chapter 10 of the City Code and termination is tolled pending the outcome. This procedure applies to all pre-existing signs erected, maintained and displayed within the city. This provision may be enforced by the city, using all civil, administrative and/or criminal procedures and remedies available; the election of one means does not preclude enforcement by another.
(c)
Duties and powers of the director.
(1)
In general. The director is authorized and directed to enforce the provisions of this chapter. The director has the authority to render interpretations of this chapter and to adopt policies and procedures in order to clarify the application of its provisions. Such interpretations, policies and procedures shall be in accordance with the intent and purpose of this chapter. Such policies and procedures shall not have the effect of waiving requirements specifically provided for in this chapter. The director shall have the power to suspend or revoke city issued certificates of license and registration as detailed in this chapter.
(2)
Application and permits. The director and designees shall receive applications, review construction documents and issue permits for the erection, repair, alteration, addition, demolition, and relocation of sign structures, inspect the premises for which such permits have been issued and enforce compliance with the provisions of this chapter.
(3)
Notices and orders. The director and designees shall issue all necessary notices or orders to ensure compliance with the provisions with this chapter.
(4)
Inspections. The director and designees shall make all of the required inspections, or may accept reports of inspection by approved agencies or individuals. Reports of such inspections shall be in writing and certified by a responsible officer of such approved agency or by the responsible individual. The director is authorized to engage such expert opinion as deemed necessary to report upon unusual technical issues that arise, subject to the approval of the appointing authority.
(5)
Identification. The director and designees shall carry proper identification when inspecting structures or premises in the performance of duties under this chapter.
(6)
Impersonation prohibited. A person shall not impersonate the director or designees through the use of a uniform, identification card, badge or any other means. Any such impersonation is a violation of this chapter.
(7)
Notice of defects. The director and designees shall examine, or cause to be examined, every building or structure or portion thereof reported as dangerous or damaged.
(8)
Department records. The director and designees shall keep official records of applications received, permits and certificates issued, fees collected, reports of inspections, and notices and orders issued. Such records are retained in the official records for the period required for retention of public records.
(9)
Liability. The director, members and alternate members of the building-related and fire codes board of appeals, or employees charged with enforcement of this chapter, while acting for the city in good faith and without malice in the discharge of the duties required by this chapter or other pertinent law or ordinance, are not civilly or criminally rendered liable personally and are relieved from personal liability for any damage accruing to persons or property as a result of any act, or by reason of an act or omission in the discharge of official duties. Any suit or criminal complaint instituted against an officer or employee because of an act performed by that officer or employee in the lawful discharge of duties and under the provisions of this chapter shall be defended by legal representative of the city until the final termination of the proceedings. The director or any subordinate shall not be liable for cost in any action, suit or proceeding that is instituted in pursuance of the provisions of this chapter.
(10)
Approved materials and equipment. Materials, equipment and devices approved by the director shall be constructed and installed in accordance with such approval.
(11)
Modifications. Whenever there are practical difficulties involved in carrying out the provisions of this chapter, the director is authorized to grant modifications for individual cases, upon application of the owner or owner's authorized representative, providing the director first finds, that special individual reason based upon unique circumstances or undue hardship makes the strict letter of this chapter impractical, the modification is in compliance with the intent and purpose of this chapter, and that such modification does not lessen any of the following: health, accessibility, life and fire safety, or structural requirements. Any modification must be supported through consultation with and upon the advice of qualified persons as defined in this chapter and by review and evaluation of objective criteria. The details of action granting modifications including all materials reviewed and statements by personnel consulted shall be recorded in writing and entered in the files of the department of development services.
(12)
Administrative exceptions. To facilitate flexibility in design while maintaining the safety, health and welfare of the public, the director in concurrence with qualified personnel may grant administrative exceptions to the following provided 1) the director certifies that the proposed exception does not conflict with the intent of this chapter; and 2) the applicant demonstrates, through documentation and/or studies, based on generally accepted engineering, design and installation principles, that exceptions to the standard provided by this chapter would not pose a threat to health and safety. The director shall not modify minimum and maximum dimensions for sign spacing, heights and areas more than ten (10) percent of the value listed in this code where an administrative variance is considered. Any exception shall not eliminate the distinctions between on-premise and off-premise sign types, single and multi-tenant sign types, nor sign sizes by zoning district, street classification or like areas of legislative prerogative.
(13)
Alternative materials, design and methods of construction and equipment. The provisions of this chapter are not intended to prevent the installation of any material or to prohibit any design or method of construction not specifically prescribed by this chapter, provided that any such alternative has been approved by the director. An alternative material, design or method of construction shall be approved where the director, in consultation with qualified persons and based upon objective criteria supporting that decision, finds that the proposed design is satisfactory and complies with the intent of the provisions of this chapter, and that the material, method or work offered is, for the purpose intended, at least the equivalent of that prescribed in this chapter in qualify, strength, effectiveness, fire resistance, durability and safety including minimization of driver distraction. Where the alternative material, design or method of construction is reviewed, the director shall respond in writing to the requester, stating the decision and reasons supporting such decision. The details resulting in a decision including all materials reviewed and statements by personnel consulted shall be recorded in writing and entered in the files of the department of development services.
a.
Research reports. Supporting data, where necessary to assist in the approval of materials or assemblies not specifically provided for in this chapter, shall consist of valid research reports from objective third party sources including national and internationally recognized authorities and/or standards.
b.
Tests. Whenever there is insufficient evidence of compliance with the provisions of this chapter, or evidence that a material or method does not conform to the requirements of this chapter, or in order to substantiate claims for alternative materials or methods, the director has the authority to require tests as evidence of compliance to be made at no expense to the city. Test methods shall be as specified in this chapter or by recognized industry test standards including, but not limited to, ASTM and UL standards. In the absence of recognized and accepted test methods, the director may approve the testing procedures, provided such testing procedures are performed and supported by appropriate qualified persons through written review and opinion reports. If seals and/or signatures are required in the performance of such duties, reports must reflect them. Reports of such tests shall be retained by the department of development services for the period required for retention of public records.
(d)
Board authority, appeals and variance procedures.
(1)
Board authority.
a.
The building-related and fire codes appeals and advisory board, also known as the appeals and advisory board: authorized to hear and decide appeals of orders, decisions or determinations made by the director relative to the application and interpretation regarding licensing issued under this chapter, on-premise and off-premises signs and electrical considerations as explicitly set out in various sections of this chapter. The appeals and advisory board acts as an appellate and advisory board to the director regarding interpretations of this chapter.
b.
The board of adjustment: authorized to hear and grant variances from regulations not specifically reserved for the appeals and advisory board.
(2)
Appeals.
a.
A decision by the director regarding an interpretation of this chapter may be appealed within twenty-one (21) days after notice is served to the appeals and advisory board in accordance with City Code section 10-14. The appeals and advisory board may hear the arguments in favor and against the interpretation from any interested party.
b.
A party who seeks to appeal an interpretation shall submit a written request along with the required appeals to the department of development services. The director shall review the notice of appeal for completeness within three (3) working days. The appellate agency for purposes of completeness review is the appeals and advisory board. Upon receipt of a complete application for an appeal and the fee, the appeals and advisory board must meet within fourteen (14) calendar days after either the building official receives an application in accordance with City Code section 10-14. The appeals and advisory board may reverse or affirm, in whole or in part, or modify the director's order, requirement, decision, or determination from which an appeal is taken and make the correct order, requirement, decision, or determination in accordance with chapter 10 of the City Code. The applicant will be notified of such decision by first class mail or by e-mail at the request of the applicant. This request shall be made in writing and signed by the applicant containing at a minimum an email address for where the decision is to be sent. Development services shall keep proof of the request and a log of the email sent containing the appeals and advisory board decision. Note that public notice and appeals of the appeals and advisory board's decisions shall be in accordance with chapter 10.
(3)
Variances.
a.
Any person seeking a variance from the requirements of this article shall submit a written request on an application form approved by the director along with the required variance application fee to the development services department. The director shall review the variance application for completeness within three (3) working days. The appellate agency for purposes of completeness review shall be the appeals and advisory board. Upon receipt of the complete variance application and fee, the application shall be placed on the first open date of the docket of the board of adjustment that meets the requirements of the Texas Open Meetings Act.
b.
The director shall not forward a variance application to the board of adjustment for consideration that would eliminate the distinctions between on-premises and off-premises sign types, single and multi-tenant sign types, nor sign sizes by zoning district, street classification or like areas of legislative prerogative. An applicant may appeal the director's decision to the appeals and advisory board pursuant to subsection (2).
c.
The board of adjustment may grant a variance if it finds that:
1.
The variance is necessary because strict enforcement of the regulation prohibits any reasonable opportunity to provide adequate signs on the site, considering the unique features of a site such as its dimensions, landscaping, or topography; or
2.
A denial of the variance would probably cause a cessation of legitimate, longstanding active commercial use of the property; and
3.
After establishing that one or more of the findings set forth in subparagraphs 1. or 2. have been met, the board finds that:
A.
Granting the variance does not provide the applicant with a special privilege not enjoyed by others similarly situated or potentially similarly situated;
B.
Granting the variance will not have a substantially adverse impact upon neighboring properties; and
C.
Granting the variance will not substantially conflict with the stated purposes of chapter 28.
(4)
The board of adjustment shall not grant a variance if that variance would eliminate the distinctions between on-premises and off-premises sign types, single and multi-tenant sign types, sign sizes by zoning district, street classification or like areas of legislative prerogative.
(5)
The board of adjustment shall conduct its review and render a decision in accordance with the procedures contained in chapter 35 of the City Code. In making its decision, the board shall consider the director's recommendation and apply the factors delineated in subsection (3)c. above. The action taken by the board shall be in the form of a motion to grant the variance. Such motion shall require a three-fourths (¾) vote by the appointed members of the board.
(6)
The person seeking the variance or the owners or lessees of property lying one thousand (1,000) feet of any point of the lot or portion thereof on which a variance is desired may appeal the decision of the board of adjustment. Within seven (7) days after the board of adjustment's final action an appeal to the city council may be made. The appeal shall be initiated by filing a letter indicating that the applicant seeks to appeal the decision of the board to the city council. The appeal shall be accompanied with the required appeal application fee and delivered to the city clerk. The city council shall consider all the circumstances of the variance request, including the factors outlined in this section, and make its determination by majority vote. If the city council has not acted on the appeal on or before the 60th calendar day after the date the letter of appeal was filed with the city clerk, the decision of the board of adjustment shall be final.
(7)
Public notice of such variance request to the board of adjustment or further appeal to city council shall be in accordance with chapter 35 of the City Code.
(8)
Voting procedures.
a.
The board of adjustment shall vote in accordance with chapter 35, article 8 of the City Code.
b.
The appeals and advisory board shall vote in accordance with chapter 10 of the City Code.
(Ord. No. 2017-05-04-0297 , § 1(Att. 1), 5-4-17)