§ 35-421. Zoning Amendments.
STATEMENT OF PURPOSE
The purpose of this section is to provide uniform procedures for the amendment of this chapter or the official zoning map by the city council whenever the public necessity, convenience, general welfare or good zoning practice so requires.
(a)
Applicability. The provisions of this section apply to any application for zoning of a tract, parcel or land area from one zoning district to another.
(b)
Initiation. All petitions, applications, recommendations or proposals for changes in the zoning district of property (referred to as a "rezoning") or for changes in the textual provisions of this chapter shall be filed with the zoning commission, and a pre-application conference is required for all applications prior to submittal of said applications. This conference must take place between the applicant and the zoning section of the development services department. Text amendments may be proposed by any person. A proposed rezoning may be initiated by:
(1)
The city council by resolution; or
(2)
An application properly signed and filed by the owner or, with the owner's specific written consent, a contract purchaser or owner's agent of a property included within the boundaries of a proposed rezoning, unless otherwise provided for by this chapter. When an amendment is initiated, an application for such amendment shall be submitted to the director. The applicant may file an application for subdivision plat approval concurrent with an application for a rezoning.
(3)
The director of development services pursuant to an annexation service plan or to correct an administrative error in the rezoning of a tract of land pursuant to this chapter.
(c)
Completeness Review. The director of development services shall conduct a completeness review as set forth in section 35-402 of this chapter within two (2) working days of application submittal. The appellate agency for purposes of completeness review (see subsection 35-402(c) of this chapter) shall be the zoning commission.
(d)
Consistency. For all applications for rezoning, the development services department, based on the information provided by the applicant, shall make a determination regarding consistency with the policies contained in the master plan of the city or if applicable the land use element of a neighborhood, community, perimeter, or sector plan adopted pursuant to section 35-420 of this chapter, within five (5) working days.
(1)
If the development services department makes a determination that the requested rezoning is inconsistent with the master plan policies or the land use element of the applicable neighborhood, community, or sector plan perimeter, then the application for rezoning shall not be deemed complete until a completed application for a master plan amendment is filed with the development services department. The requested rezoning shall not be considered by the city council until the planning commission has considered the master plan amendment request.
(2)
If the development services department determines that the requested change is consistent with the master plan policies or the land use element of the applicable neighborhood, community or perimeter plan, then the zoning case may be deemed complete without an amendment to the master plan of the city.
(3)
The appellate agency for purposes of consistency determination shall be the planning commission.
Commentary: The master plan is the comprehensive plan for the physical development of the city, as prescribed in the City Charter. The master plan includes any unit or part of such plan separately adopted and any amendment to such plan or part thereof. Neighborhood, community, perimeter and sector plans are components of the master plan.
(e)
Decision. Upon certification by the director that the application is complete and required fees have been paid, the application shall be deemed complete and referred to the zoning commission for its review and recommendation as provided by V.T.C.A. Local Government Code § 211.007.
(1)
Type of Hearing. The public hearings before the zoning commission and city council shall be conducted as legislative hearings in accordance with section 35-404, above.
(2)
Zoning Commission. The zoning commission, after public notice in accordance with V.T.C.A. Local Government Code § 211.007(c), shall hold at least one (1) public hearing on such application and as a result thereof shall transmit its final report to the city council. All applications for a change in zoning which have been considered by the zoning commission shall be presented by the applicant to the city council within six (6) months from the date of the commission's final consideration. In the event the applicant fails to present the application for rezoning to the city council within the prescribed period, a new original application and fees shall be required. A new application shall not be submitted to the zoning commission for consideration prior to the expiration of the six-month time period specified in subsection (g), below. See subsection 35-404(b) for rules relating to failure of the zoning commission to submit a recommendation.
(3)
City Council. After the final report of the zoning commission is submitted to the city council as provided in subsection (2) above the council shall consider a zoning change after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. Before the fifteenth day prior to the date of the hearing, notice of the time and place of the hearing shall be published in an official newspaper or a newspaper of general circulation in the city. After the receipt of the final report of the zoning commission, the city council shall approve or deny the rezoning or text amendment in accordance with V.T.C.A. Local Government Code § 211.007.
If the proposed rezoning is inconsistent with the land use plan of a neighborhood plan, community plan, perimeter plan, or sector plan, an application for an amendment to the neighborhood plan, community plan, perimeter plan, or sector plan, shall be submitted by the applicant.
Amendments to both the official zoning map and the neighborhood plan, community, perimeter plan, or sector plan, may be considered concurrently.
An affirmative vote of at least three-fourths (¾) of all members of the city council is required to approve a proposed change to a regulation or boundary if the change is protested. The protest must be written and signed by the owners of at least twenty (20) percent of either the area of the lots or land covered by the proposed change or the area of the lots or land immediately adjoining the area covered by the proposed change and extending two hundred (200) feet therefrom. In computing the percentage of land area, the area of streets and alleys shall be included in the computation. Written protests must be received by the director at the department of development services offices no later than 4:00 p.m. of the previous business day prior to the posted date and time for the zoning hearing on the city council's agenda. If the written protests appear to be at least twenty (20) percent of either the area of the lots or land covered by the proposed change or the area of the lots or land immediately adjoining the area covered by the proposed change and extending two hundred (200) feet there from the applicant shall be entitled to, but is not required to request an automatic continuance if all members of the city council are not present.
(f)
Approval Criteria. In its review of an application for rezoning, the city council shall consider the following criteria. No single factor is controlling. Instead, each must be weighed in relation to the other standards. If the zoning commission finds that a proposed zoning amendment is inconsistent with the land use element of a neighborhood, community or perimeter plan adopted pursuant to section 35-420 of this chapter, as applicable, the application shall not be considered by the city council until a recommendation regarding a master plan amendment for the proposed zoning amendment has been forwarded by the planning commission to the city council, either prior to or concurrently with the proposed zoning amendment.
(1)
Consistency. The city council does not, on each rezoning hearing, redetermine as an original matter, the city's policy of comprehensive zoning. The city's zoning map shall be respected and not altered for the special benefit of the landowner when the change will cause substantial detriment to the surrounding lands or serve no substantial public purpose.
(2)
Adverse Impacts on Neighboring Lands. The city council shall consider the nature and degree of an adverse impact upon neighboring lands. Lots shall not be rezoned in a way that is substantially inconsistent with the uses of the surrounding area, whether more or less restrictive. Further, the city council finds and determines that vast acreages of single-use zoning produces uniformity with adverse consequences such as traffic congestion, air pollution, and social alienation. Accordingly, rezonings which promote mixed uses subject to a high degree of design control are not necessarily deemed to be inconsistent with neighboring lands and shall be considered.
(3)
Suitability as Presently Zoned. The city council shall consider the suitability or unsuitability of the tract for its use as presently zoned. This factor, like the others, must often be weighed in relation to the other standards, and instances can exist in which the use for which land is zoned may be rezoned upon proof of a real public need or substantially changed conditions in the neighborhood.
(4)
Health, Safety and Welfare. The amendatory ordinance must bear a substantial relationship to the public health, safety, morals or general welfare or protect and preserve historical and cultural places and areas. The rezoning ordinance may be justified, however, if a substantial public need exists, and this is so even if the private owner of the tract will also benefit.
(5)
Public Policy. A strong public policy in favor of the rezoning may be considered. Examples include a need for affordable housing, economic development, or mixed-use development which functionally relates to the surrounding neighborhoods.
(6)
Size of Tract. The city council shall consider the size, shape and characteristics of the tract in relation to the affected neighboring lands. Amendatory ordinances shall not rezone a single city lot when there have been no intervening changes or other saving characteristic. Proof that a small tract is unsuitable for use as zoned or that there have been substantial changes in the immediate area may justify an amendatory ordinance.
(7)
Other Factors. The city council may consider any other factors relevant to a rezoning application under Texas law.
(g)
Postponement of a Case by Applicant.
(1)
Prior to the city publishing the zoning case in the newspaper, an applicant may request in writing that the case not be scheduled for a public hearing date. In such cases, the applicant shall have six (6) months from the date of the written request to schedule the case. After expiration of the six-month period, the applicant will have to submit a new application with new fees for further consideration of a zoning change on the subject property.
(2)
If a written request for postponement is submitted by the applicant after the city has published the case in the newspaper, the fees paid shall be non-refundable and the case will not be rescheduled for a public hearing date until the postponement fee has been paid by the applicant. In such cases, the applicant shall have six (6) months from the date of the written request for postponement to reactivate the case. After expiration of the six-month period, the applicant will have to submit a new application with new fees for further consideration of a zoning change on the subject property. In no instance shall a postponement extend beyond six (6) months from the date of the commission's final consideration.
(3)
If a request for postponement is not received by 4:30 p.m. on the seventh day prior to the public hearing date, the case shall remain on the public hearing agenda and will require the applicant to personally request such a postponement in front of the zoning commission or city council.
(h)
Subsequent Applications.
(1)
Applicability. The provisions of this subsection shall not apply to any application for a rezoning which is initiated by the city council.
(2)
Withdrawal of Zoning Application.
A.
Withdrawal without time penalty. An applicant may withdraw a zoning application up to the time that it is called forward and the city staff begins presentation of the application during a duly advertised public meeting without a time penalty on resubmission of another rezoning application for the property whether by the original applicant or a new applicant.
B.
Withdrawal with time penalty. An applicant may withdraw a zoning application after it has been called forward for discussion and staff has begun presentation however such withdrawal shall be penalized by imposing an automatic six-month time period following the date of withdrawal before the same or another application for the same property can be submitted for processing.
C.
Waiver of time penalty in subsection B. above for resubmission. At the time of withdrawal of an application for rezoning the zoning commission may consider a request by the applicant to bring the application or a modification of the application back prior to the expiration of six (6) months subject to all notifications and postings of the case being observed. If the zoning commission fails to approve such resubmission prior to continuing with the next agenda item the six-month submission limitation shall stand.
D.
Request of relief of time penalty. If new relevant and substantial evidence which could not have been secured at the time set for the original hearing shall be produced by applicant, under a sworn affidavit to that effect, then in that event, the zoning commission may elect to hear and consider such application prior to the expiration of the time penalty.
(3)
Reserved.
(4)
Denial of Rezoning. It is further provided that no application for the rezoning of any lot, lots or block of land situated in the city shall be received or filed with the zoning commission of the city and no hearing had thereon, if within one (1) year prior thereto the city council, after consideration and hearing, has denied an application for rezoning of the same property.
(i)
Amendments. Any subsequent rezoning requires a new application for a rezoning and shall be processed as set forth in subsections (b) through (e) of this section.
(j)
Scope of Approval. The approval of an amendment to this chapter or a rezoning shall not be deemed to authorize the development of land. Such an amendment shall authorize the applicant to apply for a building permit, in the case of uses permitted as of right, or a specific use authorization, in the case of uses designated as specific uses within the applicable zoning district. Such amendment does not supersede any requirement for master development plan or subdivision plat approval by this chapter.
(k)
Recording Procedures. When the amendment involves changes to the existing zoning district boundaries, the form of the amending ordinance shall contain a narrative description of the land to be reclassified or reference to an accompanying plat of such land showing the new zoning districts and indicating their boundaries. The director of planning and development services shall refer to said attested ordinance as a record of the current zoning status until such time as the zoning map can be changed accordingly.
(Ord No. 98697 § 1 and 6) (Ord. No. 98698 § 4) (Ord. No. 2006-11-30-1333, § 2, 11-30-06) (Ord. No. 2008-04-03-0267, § 2, 4-3-08) (Ord. No. 2009-01-15-0001, § 2, 1-15-09) (Ord. No. 2010-11-18-0985, § 2, 11-18-10; Ord. No. 2015-12-17-1077 , § 2, 12-17-15)