§ 20. Board of adjustment.

(A)

In pursuance to the authority vested in the City of Daingerfield by Vernon's Ann. Civ. Art. 1011g as amended by Section 1 of Chapter 322, Fifty-Seventh Legislature [see now Texas Local Government Code § 211.008 et seq.] , there is hereby created a Board of Adjustment:

(1)

The Board of Adjustment shall consist of five members and two alternates.

(2)

The members, both regular and alternate members, shall be appointed for a term of two years by the Mayor of the City of Daingerfield subject to the approval of the City Council.

(3)

Such term of office shall coincide with that of the Mayor and continue through the two years until such time as the Mayor can appoint the new Board and such Board is approved and properly instated.

(4)

The individual, regular or alternate members, may be removed during such two year terms by the appointing authority, for cause upon written charges and after public hearing.

(5)

Vacancies shall be filled for the unexpired term of any regular or alternate member whose term becomes vacant, in the same manner as the original appointment.

(6)

All cases or questions brought before the Board of Adjustment shall be heard by a minimum number of four members.

(7)

When one or more of the regular members of the Board of Adjustment is unable to attend a meeting, the chairman of the Board shall notify one of the alternate members that his presence is required to serve at such meeting in place of the absent member; nothing herein prevents a meeting from being held when, as set out in subparagraph (6) above, four members are present.

(8)

That it is permissible for all the alternates to attend all meetings of the Board, but they will have no vote on an issue except as provided above when they are serving in the absence of one of the regular members.

(B)

The Board shall adopt rules in accordance with the provisions of this Ordinance. Meetings of the Board shall be held at the call of the chairman and at such other time as the Board may determine. Such chairman, or in his absence, the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record. The concurring vote of four members of the Board shall be necessary to reverse any order, requirement, decision, or determination of any administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such Ordinances or to effect any variation in such Ordinance.

(C)

Appeals to the Board of Adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the City of Daingerfield affected by any decision of the Building Inspector. Such appeal shall be taken within a reasonable time, as provided by the rules of the Board, by filing with the officer from whom the appeal is taken and with the Board of Adjustment a notice of appeal specifying the grounds thereof, and by paying a filing fee of $5.00 to the Tax Collector of the City of Daingerfield, at the time the notice is filed, which shall be credited to the General Fund of the City of Daingerfield. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the Board of Adjustment after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board of Adjustment or by a court of record on application on notice to the officer from whom the appeal is taken and on the cause shown.

(D)

The Board of Adjustment shall fix a reasonable time for the hearing of the appeal, giving public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing any party may appear in person or by agent or by attorney.

(E)

The Board of Adjustment shall have the following powers:

(1)

To hear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this Ordinance.

(2)

When a property owner can show that a strict application of the terms of this Ordinance relating to the use, construction, or alteration of buildings or structures or the use of land will impose upon him practical difficulties or particular hardship, the Board may consider and allow variations of the strict application of the terms of this Ordinance if the variations are in harmony with the general purpose and intent of this Ordinance, and the Board is satisfied, under the evidence heard by it, that a granting of the variation will not merely serve as a convenience to the applicant but will alleviate some demonstrable hardship or difficulty so great as to warrant a variation from the comprehensive plan by this Ordinance created.

(3)

The Board may authorize a variance where by reason of exceptional narrowness, shallowness or shape of a specific piece of property of record at the time of the adoption of this Ordinance, or by reason of exceptional topographical conditions or other extraordinary or exceptional situation or condition of a specific piece of property, the strict application of a provision of this Ordinance would result in peculiar and exceptional practical difficulties and particular hardship upon the owner of the property and amount to a practical confiscation of the property as distinguished from a mere inconvenience to the owner, provided the variation can be granted without substantial detriment to the public good and without substantially impairing the general purpose and intent of the comprehensive plan as established by the regulations and provisions contained in this Ordinance.

(F)

Special exceptions. When in its judgment the public convenience and welfare will not be substantially or permanently injured, the Board of Adjustment may in a specific case, after public notice and hearing and subject to appropriate conditions and safeguards authorize special exceptions to the regulations herein established as follows:

(1)

To permit a transitional use between a business or industrial district and a dwelling district where the side of a lot in a one-family district or a dwelling district or a two-family district abuts upon a lot zoned for business or industrial purposes as follows:

(a)

On a lot in a single-family dwelling district which sides upon a lot zoned for business or industrial purposes, the Board may permit a two-family dwelling.

(b)

Permit the extension of a building or use into a more restricted district, immediately adjacent thereto, but not more than 50 feet beyond the boundary line of the district in which such building or use is authorized.

(c)

Grant in undeveloped sections of the city temporary and conditional permits for not more than two years. The granting or existence of such temporary or conditional permit shall not be reason or cause for extension of such permit.

(d)

Permit such modification of yard, open space, lot area or lot width regulations as may be necessary to secure an appropriate improvement of a parcel of land if such parcel is separately owned at the time of the original passage of this Ordinance or subsequent annexation of the city and is of such restricted area that it cannot be appropriately improved without such modification.

(e)

To determine in cases of uncertainty the classification of any use not specifically named in this Ordinance.

(f)

To grant a permit for the extension of a use, height, or area regulation into an adjoining district, where the boundary line of the district divided a lot in a single ownership at the time of the adoption of this Ordinance.

(g)

To permit as an accessory use a parking area for passenger automobiles on a lot or lots in a single family, duplex, or apartment house district adjoining or across a street of not more than 50 feet in width from a retail, intermediate business or industrial district, subject, however, to the following provisions:

a.

The area shall be properly enclosed with a hedge screen, fence, wall or other suitable enclosure having a height of not less than three feet nor more than six feet. Such fence or enclosure shall conform to the front yard regulations of the district in which it is located.

b.

The area shall be paved.

c.

No parking of vehicles shall be permitted within six feet of any adjoining lot on which is located a single-family residence, duplex or multiple dwelling.

d.

One sign, not exceeding two and one-half square feet in area, may be erected identifying the lot.

e.

No charges may be made for parking and no other business use may be made of the lot.

f.

Any light used to illuminate said parking area shall be so arranged as to direct the light away from any adjoining premises used for residential purposes.

(h)

Permit the reconstruction of a building occupied by a nonconforming use, or permit the extension of a nonconforming use, of a building upon the lot occupied by such use or building at the time of the passage of this Ordinance.

(2)

Any appeal or permit granted by the Board of Adjustment shall not be valid if construction authorized by said permit is not begun within a period of 60 days.

(3)

In exercising the above mentioned powers such Board may in conformity with the provisions of this Ordinance, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.

(4)

In considering all appeals and all proposed variations to this Ordinance, the Board shall, before making any finding, in a specific case, first determine that the proposed variation will not constitute any change in the District Map and will not impair an adequate supply of light and air to adjacent property, or materially increase the congestion in public streets, or increase the public danger of fire and safety, or materially diminish or impair established property values within the surrounding area, or in any other respect impair the public health, safety, comfort, morals and welfare of the City of Daingerfield.

(5)

Every variation granted or denied by the Board shall be accompanied by a written finding of fact, based on sworn testimony and evidence, specifying the reason for granting or denying variation.

(G)

Any persons, jointly or severally, aggrieved by any decision of the Board of Adjustment, or any taxpayer, or any officer, department, board or bureau of the city may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within ten days after the filing of the decision in the office of the Board. Upon the presentation of such petition the court may allow a writ of certiorari directed to the Board of Adjustment to review such decision of the Board of Adjustment and shall prescribe therein the time within which a return thereto must be made and served upon the person's attorney, which shall not be less than ten days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the Board and on due cause shown, grant a restraining order.

The Board of Adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

Costs shall not be allowed against the Board unless it shall appear to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.

All issues in any proceeding under this section shall have preference over all other civic actions and proceedings.