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Ord 895 Amending Chapter 26 Community Development in its entirety TOWN OF WESTLAKE ORDINANCE NO. 895 AN ORDINANCE OF THE TOWN OF WESTLAKE AMENDING CHAPTER 26 COMMUNITY DEVELOPMENT IN ITS ENTIRETY; PROVIDING A PENALTY CLAUSE; PROVIDING A CUMULATIVE CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; AUTHORIZING PUBLICATION; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the Town of Westlake, Texas is a Type A General Law municipality; and WHEREAS, the Town of Westlake seeks to ensure that new development is consistent with the Town's vision as further described and detailed in the Town's adopted plans, policies and regulations; and, WHEREAS, Chapter 26 Community Development, Town of Westlake Code of Ordinances provides specific requirements for development applications in order to ensure that the application is complete and meets said regulatory requirements; and WHEREAS, The Town of Westlake Code of Ordinances charges Town of Westlake staff with the responsibility of ensuring development applications are complete and properly organized prior to administrative final approval where applicable, and prior to scheduling a development request for legislative consideration before the Planning and Zoning Commission and/or the Town Council; and WHEREAS, Chapter 26 Community Development, Town of Westlake Code of Ordinances provides detailed procedural requirements for the Town Council, Planning and Zoning Commission and the Zoning Board of Adjustment; and WHEREAS, upon the recommendation of staff to amend Chapter 26 Community Development in its entirety, the Town Council of the Town of Westlake, Texas, is of the opinion that it is in the best interests of the town and its citizens that the amendments should be approved and adopted. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: That all matters stated in the preamble are found to be true and correct and are incorporated herein as if copied in their entirety. SECTION 2: That Chapter 26 of the Town of Westlake Code of Ordinances, as amended, is hereby amended in its entirety as follows: Ordinance 895 Page 1 of 18 Chapter 26 COMMUNITY DEVELOPMENT ARTICLE I. IN GENERAL Secs. 26-1-26-30. Reserved. ARTICLE II. UNIFIED DEVELOPMENT CODE DIVISION 1. GENERALLY Sec. 26-31. Jurisdiction. The provisions of the Unified Development Code, as defined in section 1-2, apply generally to all property within the corporate limits of the town and to the lands subject to its zoning jurisdiction as conferred by state law. Those provisions pertaining to the subdivision of land, and those regulations adopted for the primary purpose of protecting water quality or to afford flood protection, apply to all property within the town's corporate boundaries and to all property within its extraterritorial jurisdiction, as established by V.T.C.A., Local Government Code Chs. 42 and 212. References to jurisdictions or the applicability of specific development regulations appearing elsewhere in the Unified Development Code take precedence over this jurisdictional statement in the event of a conflicting interpretation unless specified otherwise. (UDC 1994, art. I, § 3) Sec. 26-32. Purposes. The Unified Development Code was adopted for the following purposes: (a) To protect, promote, improve and provide for the public health, safety, and general welfare of the citizens of the town; (b) To ensure the safe, orderly and efficient development and expansion of the town in accordance with and pursuant to its Comprehensive Plan, Thoroughfare Plan, and Open Space Plan; (c) To conserve, develop, protect and utilize natural resources, including but not limited to topography, vegetation, floodplain and other resources, in keeping with the public interest; (d) To prevent the overcrowding of land and avoid undue concentration or diffusion of population or land uses; (e) To protect and preserve places and areas of historical, cultural or architectural importance and significance to the community; (f) To protect and conserve the value of land throughout the town and the value of buildings and improvements upon the land, and to minimize the conflicts among the uses of land and buildings; (g) To provide for open spaces through the most efficient design and layout of the land; (h) To prevent the pollution of air and water, to ensure the adequacy of drainage facilities, to safeguard water resources and to preserve the integrity and aesthetic quality of the community; (i) To lessen congestion in the streets and provide convenient, safe and efficient circulation for vehicular and pedestrian traffic; (j) To facilitate the adequate and efficient provision of transportation, water, wastewater, schools, parks, public safety and recreational facilities, and other public facilities and services; and (k) To treat in one unified text those areas of regulation more typically dealt with in separate ordinances such as, but not exclusively, the zoning ordinance, the subdivision rules and regulations, the sign ordinance, etc., which are codified in chapters 70, 82, 102, etc. (UDC 1994, art. I, § 4) Ordinance 895 Page 2 of 18 Sec. 26-33. Development applications and proposals. All development applications and proposals filed on or after May 9, 1994, whether for new developments or for add-ons or expansions of existing developments, shall be processed in accordance with the standards and requirements, and pursuant to the procedures established, in the UDC and the Code of Ordinances. Specifically with regard to new applications, where a conflict exists between the terms of this chapter and any other regulation,the provisions of this chapter shall control. (UDC 1994, art. I, § 5) Sec. 26-34. Relationship to Comprehensive Plan,Thoroughfare Plan and Open Space Plan. The Unified Development Code is intended to implement the policies and objectives contained in the Comprehensive Plan, Thoroughfare Plan, and Open Space Plan for the town and to affect the town's plan for provision of public facilities and services within town limits and within the town's extraterritorial jurisdiction. If a zoning or rezoning request differs from what the Comprehensive Plan, Thoroughfare Plan, or Open Space Plan recommends for that area, the town planner will advise applicant of this and will request applicant to submit a written letter. This letter will request the town planner to prepare and process the necessary exception or amendment to the plan. The town will process this request concurrently with the(re)zoning case. (UDC 1994, art. I, § 7) Sec. 26-35. Compliance with UDC. All development of land within the incorporated boundaries of the town or its extraterritorial jurisdiction as applicable, shall conform to the requirements of the Unified Development Code and the Code of Ordinances, and no person may use, occupy, sell or develop land, buildings or other structures, or authorize or permit the use, occupancy, sale or development of land, buildings or other structures under his/her control, except in accordance with all applicable provisions of the UDC and other related regulations. Within the town's extraterritorial jurisdiction, no person may sell or develop land, or authorize or permit the sale or development of land, except in accordance with all applicable provisions of the UDC and Code of Ordinances. (UDC 1994, art. I, § 8) Sec. 26-36. Diagrams and drawings. The UDC contains diagrams and drawings. When diagrams and drawings appear in the UDC, they are presented for explanation purposes only unless specifically referred to in the text of the UDC. The text governs over any diagram or drawing when any discrepancy exists. The provisions of this section do not extend to concept plans or site plans which are required and approved under the UDC. (UDC 1994, art. I, § 9) Secs. 26-37-26-55. Reserved. DIVISION 2. AUTHORITY; ADMINISTRATIVE PROCEDURES Sec. 26-56. Authority. The Unified Development Code was adopted pursuant to the powers granted to the town, subject to any limitations imposed by the constitution and laws of the state. (UDC 1994, art. I, § 2) Sec. 26-57. Governing body. (a) The town council, as the governing body of the town, shall have such authority as is consistent with state law, and the ordinances of the town, to initiate, undertake, and decide all legislative matters pertaining to the regulation of the use and development of land, which is the subject of the Unified Development Code, including but not limited to enactment or amendment of UDC Ordinance 895 Page 3 of 18 provisions; approval, disapproval or modification of amendments to the zoning map; and authorization of planned developments and specific use permits. (b) If authorized in the UDC, the town council shall also have the authority to review and decide appeals from decisions of the commissions, boards, and administrative officers, or exceptions to the UDC otherwise authorized by these regulations in accordance with the procedures established in the UDC. (c) The town council shall appoint the town manager, who in turn, shall be held responsible to the town council for the execution of the laws and the administration of the government of the town. (UDC 1994, art. II, § 1; Ord.No. 512, § 9, 4-23-2007) Sec. 26-58. Sequence of review. (a) Where the recommendations from boards or commissions are required by the UDC, or otherwise by law, prior to action by the town council, no application for development approval shall be placed on the council's agenda for decision until such recommendations are available for consideration by the town council. Such recommendations are not binding on the town council and the council may decide a matter contrary to the recommendations of such boards or commissions. (b) Where an applicant requests a variance from a provision of the UDC in conjunction with an application for amendment of the official zoning map, the variance shall be considered by the town council at the same time that it considers the request for the zoning change. (UDC 1994, art. II, § 2) Sec. 26-59. Reserved. Sec. 26-60. - Initiation of administrative procedures. All platting, zoning and site plan requests to be considered by the planning and zoning commission and/or the town council, shall be initiated by filing an application with the town. All requests for building permits, review of required landscape plans, review of civil construction plans, and construction permits for public improvements and/or excavation/grading shall be initiated by the filing of an application with the town. The applications required by this section shall be on forms supplied by the town, and shall be available in the offices of the town or on the town's website. (UDC 1994, art. II, § 4) Sec. 26-61. Submittal and acceptance. No application shall be accepted and processed until such application is deemed complete by the town manager or their designee and the fee established in the UDC or other ordinance provisions of the town for processing the application has been paid. For the purpose of this requirement, a complete application shall, at a minimum, include all required supporting materials, property owner signatures (where applicable), documents in their correct required format and quantity, and any additional information that is required in any other applicable adopted town regulations and policies. In addition, for all applications other than building permits, the complete application shall not be accepted by the town until a pre-application conference, scheduled in advance by the applicant, to meet with applicable town staff has been completed. (UDC 1994, art. II, § 5) Sec. 26-62. Authority to initiate request. (a) All platting, zoning and site plan requests, and/or requests to amend the Comprehensive Plan or the Thoroughfare Plan may be initiated by the owner of the affected property or his/her authorized representative who files the required application and pays the appropriate fee for the request, or the town council may direct the town planner to initiate such a request on behalf of the town. Ordinance 895 Page 4 of 18 (b) Variances and special exceptions to be considered by the town council may be initiated by the owner of the affected property or his/her authorized representative or any aggrieved person who files the required application and pays the appropriate fee, or by any person aggrieved by the decision of an administrative officer with authority over any matter appealable to the town council per section 26-68, or by an officer, or appropriate board of the town. (UDC 1994, art. II, § 6; Ord. No. 512, § 9, 4-23-2007) Sec. 26-63. Application withdrawal. (a) Any request for withdrawal of an application must be submitted in writing to the town manager or their designee. (b) Once an application for a platting, zoning, or site plan request to be considered by the planning and zoning commission and/or town council, or a variance, special exception or appeal going before the town council has been published in a newspaper or notifications of public hearing, if any, have been mailed, such request for withdrawal must be placed on the public hearing agenda and acted upon by the applicable body. (c) Application fees are not refundable except in cases in which the town planner determines that an application was accepted in error, or the fee paid exceeded the amount due under the provision of the UDC or other ordinance provisions of the town, in which case the amount of the overpayment may be refunded to the applicant. (UDC 1994, art. II, § 7) Sec. 26-64. Conduct of public hearings. (a) Generally. Whenever a public hearing is held, written notice shall be mailed to the appropriate parties and notice shall be advertised in a newspaper of general circulation in the town in accordance with the applicable requirements of the Texas Local Government Code. If the Texas Local Government Code does not provide notice requirements for a public hearing on a particular subject matter,then written notice shall not be mailed to all appropriate parties. (b) Public hearing postponement, recess, and continuations. (1) A public hearing for which notice has been given may be postponed by announcing the postponement at or after the time and place the hearing is scheduled to begin. (2) A public hearing may be recessed and continued any time after the hearing has commenced. (3) If a postponement or continuance of a public hearing is to a specific date and time no later than 60 days from the first or most recent hearing, the announcement of the postponement or continuance at the public hearing in which the application has been postponed or continued shall be sufficient notice and no additional notice is required. (4) Postponed or continued public hearing shall be presumed to be held in the same location, unless a different location for the hearing is announced at the time of the postponement or continuance. (5) In the event that any request or amendment is being considered, whether or not a public hearing is involved, and it is continued at the request of the applicant more than one time, an additional fee shall be required to cover the reasonable costs to the town, including the cost of any additional advertising cost and the cost of the town's consultants due to the postponement. (6) If the applicant is not present at a meeting where the request is being considered and the request cannot be considered, then an additional fee, as described in subsection (b)(5) of this section, shall also be required. (c) Conduct of public hearing. Subject to the presiding officer's inherent authority to conduct meetings,the public hearing shall generally be conducted as follows: (1) Report by the town representative; (2) Presentation by the applicant; Ordinance 895 Page 5 of 18 (3) Testimony by parties supporting the application; (4) Testimony by parties in opposition to the application; (5) Rebuttal by the applicant; (6) Closure of the public hearing. (UDC 1994, art. II, § 8) Sec. 26-65. Public hearing conducted by planning and zoning commission. (a) Planning and zoning commission authority. The planning and zoning commission shall conduct a public hearing and make recommendations to the town council on the following matters: (1) Text amendments to the Unified Development Code. (2) Zoning changes and map amendments, including reclassification of the zoning designations on land, specific use permits, and planned developments. (3) Site plans for development. (4) Amendments to the Comprehensive Plan. (5) Amendments to the Thoroughfare Plan. (6) Amendments to the Open Space Plan. (7) Plats as required by chapter 82. (8) Replats, when such public hearing is required by the provisions of V.T.C.A., Local Government Code ch. 212. (b) Commission recommendation. Upon the closure of the public hearing, the planning and zoning commission shall make a recommendation to the council on the subject application. The planning and zoning commission may recommend that: (1) The request or amendment be approved or enacted; (2) The request or amendment be approved or enacted as modified to a more restrictive classification or subject to appropriate conditions as permitted by law; or (3) The request or amendment be denied. (UDC 1994, art. II, § 9) Sec. 26-66. Public hearing conducted by town council. (a) Authority. The town council shall conduct a public hearing and make determinations on the following matters: (1) Text amendments to the Unified Development Code. (2) Zoning changes and map amendments, including reclassification of the zoning designations on land, specific use permits, and planned developments. (3) Site plans for development. (4) Amendments to the Comprehensive Plan. (5) Amendments to the Thoroughfare Plan. (6) Amendments to the Open Space Plan. (7) Variances, special exceptions and appeals. (b) Council approval or denial. Following the closure of the public hearing, the town council may take the following actions: (1) Approval of an item. The council may approve the request or amendment either as requested, or in the form of a more restrictive district, and subject to such appropriate conditions as are allowed by law. Such approval of any request for a text amendment to the Unified Development Code, Code of Ordinances or a zoning change and map amendment shall be granted only if the council determines that the request or amendment is consistent with the Comprehensive Plan and the purposes of the Unified Development code. In the event the request or amendment concerns a text amendment to the Unified Development Code, Code of Ordinances or a zoning change and map amendment, the council shall enact an ordinance amending the Unified Development Code, Code of Ordinances or amending the official zoning map, whichever is applicable. Ordinance 895 Page 6 of 18 (2) Denial of an item. The council may deny the request or amendment with prejudice. If a request or amendment is denied with prejudice, a new application may be submitted for the same lot or tract of land, or any portion thereof, within one year only if the new request is for a more restrictive or less intense use or development. Unless the new proposal is more restrictive or less intense than the previously denied proposal, then no other application pertaining to a change of zoning and map amendment may be submitted on the same lot or tract of land, or any portion thereof for a period of one year from the date of its denial by the council. If a request or amendment is denied by the council without an indication of"with" or "without" prejudice,then the action shall be considered to be "denied with prejudice." (3) Denial without prejudice. The council may deny the request or amendment without prejudice, in which case an application for a change in zoning and map amendment other than that which was requested on the original application may be filed at the applicant's discretion. (4) Reapplication due to changed conditions. A proposal to rezone a tract or parcel of land which has been previously rejected by the council may be resubmitted within one year only if there is an actual change in conditions relating to zoning principles of the tract or parcel of land or the property surrounding it. In that event, the applicant must submit to the town planner, in writing, a resume describing such changed conditions. The town planner shall investigate the property or cause such an investigation to be made and shall report to the planning and zoning commission whether or not such changed conditions exist. Upon hearing such report,the planning and zoning commission shall either grant or deny the request to refile the proposal for rezoning. (c) Protest of proposed change in zoning. (1) Property owners adjacent to and within a radius of 200 feet of a property for which a change in zoning is being considered have the right to file a written protest against the request. The land area of this 200 feet radius includes streets, alleys and other public rights-of-way. (2) Whenever such written protest is signed by the owners of 20 percent or more of the area of the lots or land included in such zoning change, or of the lots or land immediately adjoining the same and within the above-mentioned 200 feet radius, such change in zoning shall not become effective except by a favorable vote of three-fourths of all the members of the council. (3) For purposes of determining representation on the written protest, the written protest of any one owner of land owned by two or more persons shall be presumed to be the protest of all owners. (d) Criteria for granting special exceptions. (1) The town council may make special exceptions to the standards in the UDC that are consistent with the general purpose and intent of the UDC. The planning and zoning commission shall make recommendations on special exceptions. (2) Special exceptions are subject to appropriate conditions and safeguards to ensure that the special exceptions are consistent with the general purpose and intent of the UDC and the town's Comprehensive Plan. (3) The town council, pursuant to the powers conferred upon it by state law, the ordinances of the town, and this division may grant special exceptions to the provisions of the UDC upon finding that: a. Such special exception will not substantially or permanently injure the appropriate use of adjacent property in the same district; b. Such special exception will not adversely affect the health, safety or general welfare of the public; c. Such special exception will not be contrary to the public interest; Ordinance 895 Page 7 of 18 d. Such special exception will not authorize the operation of a use other than those uses specifically authorized for the district in which the property for which the exception is sought is located, except as provided elsewhere in the UDC; e. Such special exception will be in harmony with the spirit and purpose of the UDC; f. Such special exception will not alter the essential character of the district in which is located the property for which the exception is sought; g. Such special exception will not substantially weaken the general purposes of the zoning regulations established for the district in which the property is located; and h. Such special exception is within the spirit and intent of the town's Comprehensive Plan and other policies. (UDC 1994, art. II, § 10) Sec. 26-67. Planning and zoning commission. (a) Creation and membership. There is hereby created a planning and zoning commission for the town consisting of five regular members, each to be appointed by the town council for a term of two years and removable for cause. The terms of three members shall expire in odd-numbered years, and the terms of two members shall expire in even-numbered years. Each member shall continue to serve until their successors are appointed and qualified. In addition to the five regular members, three alternate members, first alternate, second alternate, and third alternate shall be appointed by the town council for terms of two years. The alternate members shall only vote in the absence of a regular member(s) or in place of a regular member(s) that has abstained. Priority shall be given to the first, and the then the second alternate. (b) Powers and duties. The planning and zoning commission shall have the following powers and duties: (1) To serve as an advisory body to the town council concerning adoption of or amendments to the zoning regulations and zoning map and to make recommendations thereon; (2) To advise the council and make recommendations concerning adoption of, or amendments to the town's comprehensive plan, thoroughfare plan, and open space plan and implementation thereof; (3) To oversee the town's regulations governing the platting and recording of subdivisions, including matters pertaining to the dedication of public facilities, and to advise the council on matters pertaining to public improvements, traffic, utility extensions and the provision of public facilities and services, in order to implement the town's comprehensive plan; (4) To undertake such actions as are necessary to exercise its delegated powers, as indicated by adopted ordinance; (5) To approve certain matters relating to platting and recording of subdivisions as dictated by the town's ordinances and the UDC; (6) To select a planning and zoning commission chair; (7) To call public hearings to initiate zoning changes. (UDC 1994, art. II, § 11; Ord.No. 680, § 2, 3-26-2012; Ord.No. 709, § 2, 9-16-2013) Cross reference—Boards, commissions and authorities, § 2-121 et seq. Sec. 26-68. Board of adjustment. (a) Organization. The town council shall sit as the board of adjustment for the purposes of this section. The mayor may sit as an alternate member when necessary to make a quorum. (b) Procedures. (1) Adopting procedural rules. The board of adjustment, by majority vote, shall adopt such procedural rules as are necessary to execute its duties. Ordinance 895 Page 8 of 18 (2) Quorum. All cases before the board of adjustment must be heard by at least four members. (3) Calling meetings. Meetings of the board shall be held at the call of the chairperson, and at such other times as the board may determine. Such chairperson, or in his/her absence the acting chairperson, shall administer oaths and compel attendance of witnesses. (4) Meetings open to the public. All meetings of the board shall be open to the public. (5) Keeping of minutes. 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 other official actions, all of which shall be filed in the office of the board and shall be a public record. (c) Jurisdiction. When in its judgment, the public convenience and welfare will be substantially served and the appropriate use of the neighboring property will not be substantially or permanently injured, the town council may, in specific cases, after public notice and public hearing, and subject to appropriate conditions and safeguards authorize the following special exceptions to the regulations established in the UDC: (1) Appeal of an administrative decision that is not related to a specific application, address, or project. Consider an appeal from any person aggrieved by a decision of any administrative officer with authority over any matter regulated by the Unified Development Code, zoning regulations or by any officer, department, board or division of the town affected by any decision of the administrative officer. (2) Appeals of other administrative decisions. Any of the following persons may appeal to the board of adjustment a decision made by the administrative officer that is related to a specific application, address, or project: a. a person who filed the application that is the subject of the decision; b. a person who is the owner or representative of the owner of the property that is the subject of the decision; or c. a person who is aggrieved by the decision and is the owner of real property within 200 feet of the property that is the subject of the decision; or d. any officer, department, board, or bureau of the municipality affected by the decision. Such appeal shall be taken, within 15 calendar days after the decision has been rendered by the administrative officer, by filing with the officer from whom the appeal is taken and with the town council a notice of appeal specifying the grounds therefor, tendering with such notice the amount in accordance with the town's fee. The board shall decide the appeal at the next meeting for which notice can be provided following the hearing and not later than the 60th day after the date the appeal is filed. 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 shall stay all proceedings of the action appealed from unless the officer from whom the appeal is taken certifies to the board, after the notice of appeal shall have been filed with such officer, that by reason of facts stated in the certificate, that a stay would, in such officer's opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by restraining order which may be granted by the board or by a court of competent jurisdiction on application, and notice to the officer from whom the appeal is taken. (3) Odd shaped parcels. Permit such modifications of the height, yard, area, coverage and parking regulations as may be necessary to secure appropriate development of a parcel of land which differs from other parcels in the district by being of such restricted area, shape, or slope that it cannot be appropriately developed without such modification. Ordinance 895 Page 9 of 18 (4) Nonconforming use. Permit the expansion or enlargement of a building occupied by a nonconforming use on the lot or tract occupied by such building provided such reconstruction does not prevent the return of such property to a conforming use. Upon review of the facts, the board may establish a specific period of time for the occupancy to revert to a conforming use. (5) Change of nonconforming use. To authorize a change of use from one nonconforming use to another nonconforming use, provided that such change is to a use of the same or more restricted classification. In the event that a nonconforming use is changed to a nonconforming use of a higher or more restrictive classification, the building or structure containing such nonconforming use shall not later be reverted to the former lower or less restricted classification. The board may establish a specific period of time for the conversion of the occupancy to a conforming use. (6) Discontinuance of a nonconforming use. Require the discontinuance of nonconforming areas of land or structures under any plan whereby the full value of the structure and facilities can be amortized within a definite period of time, taking into consideration the general character of the neighborhood and the necessity for all property to conform to the regulations of the UDC. a. All actions to discontinue a nonconforming use of land or structure shall be taken with due regard for the property rights of the persons affected when considered in the light of the public welfare and the character of the area surrounding the designated nonconforming use and the conservation and preservation of property. b. The board shall from time to time on its own motion or upon cause presented by interested property owners inquire into the existence, continuance or maintenance of any nonconforming use within the town. (7) Structure for a legal nonconforming use. Permit the construction, reconstruction, enlargement or addition of a structure occupied by or for a use, normally ancillary to a single-family residential use, when such single-family residential use or structure, is legally nonconforming, provided, however, such construction, reconstruction, enlargement or addition does not prevent the return of such property to a conforming use. (8) Nonconforming structure. To authorize the reconstruction and occupancy of a nonconforming structure, or a structure containing a nonconforming use, where such structure has been damaged by fire or other causes to the extent of more than 50 percent, but less than the total, of the replacement cost of the structure on the date of the damage. Such action by the town council shall have due regard for the property rights of the person or persons affected, and shall be considered in regard to the public welfare, character of the area surrounding such structure, and the conservation, preservation and protection of property. (9) Expansion of a nonconforming structure. To authorize the enlargement, expansion or repair of a nonconforming structure in excess of 50 percent of its current value. In such instance, current value shall be established at the time of application for a hearing before the board. If such expansion or enlargement is approved by the board, all provisions of the district in which such structure is located shall apply to the new construction on the lot or parcel. (10) Occupation of an abandoned nonconforming structure. To authorize the occupancy of an abandoned nonconforming structure. Such action by the board shall have due regard for the property rights of the person or persons affected, and shall be considered in regard to the public welfare and safety, character or the area surrounding such structure, and the conservation, preservation and protection of property. Ordinance 895 Page 10 of 18 (11) Violation of other ordinances. The board is not authorized to permit or approve any request that would be in violation of any other ordinances or town regulations that would prohibit such improvement or construction to be made. (d) Criteria for granting variances. The town council, acting as the town's board of adjustment, pursuant to the powers conferred upon it by state law, the ordinances of the town, and this division may grant variances to the provisions of the UDC upon finding that: (1) Such variance will not substantially or permanently injure the appropriate use of adjacent property in the same district; (2) Such variance will not adversely affect the health, safety or general welfare of the public; (3) Such variance will not be contrary to the public interest: (4) Such variance will not authorize the operation of a use other than those uses specifically authorized for the district in which the property for which the variance is sought is located, except as provided in subsection (c) of this section; (5) Such variance will be in harmony with the spirit and purpose of the UDC; (6) Such variance will not alter the essential character of the district in which is located the property for which the variance is sought; (7) Such variance will not substantially weaken the general purposes of the zoning regulations established for the district in which the property is located; (8) Due to special conditions, a literal enforcement of the UDC would result in unnecessary hardship; (9) The plight of the owner of the property for which the variance or exception is sought is due to unique circumstances existing on the property, including but not limited to the area, shape or slope, and the unique circumstances were not created by the owner of the property and are not merely financial, and are not due to or the result of general conditions in the district in which the property is located; (10) The variance or exception is not a self-created hardship; and (11) The variance is clearly identified as a variance to the town's standards on the concept plan, site plan or text of chapter 102. (e) Actions of the board. (1) In exercising its powers, the board may, in conformity with the provisions of the Texas Local Government Code, revise or reform, wholly or partly, or may modify the order, requirement, decisions, or determination appealed from, and shall have all the powers of the officer from whom the appeal is taken including the power to impose reasonable conditions to be complied with by the applicant. (2) The concurring vote of four members of the board shall be necessary to revise any order, requirements, decision or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under the UDC or to affect any variance in the UDC. (3) Any special exceptions authorized by the board, either under the provisions of the UDC, or under the authority granted to the board under the statutes of the state, shall authorize the issuance of a building permit or a certificate of occupancy or other relief as the case may be for a period of 90 days from the date of the favorable action on the part of the board,unless the board in its minutes shall, at the same time, grant a longer period. (4) If a building permit or certificate of occupancy shall not have been applied for or issued within a 90-day period or as the board may specifically grant, the special exceptions shall be deemed waived, and all rights thereunder terminated. The board may grant one or more extensions to this time period upon the applicant's request and if due cause is shown. (5) Such termination and waiver shall be without prejudice to a subsequent appeal to the board in accordance with the rules and regulations regarding appeals. Ordinance 895 Page 11 of 18 (f) Appeals on same matter. No appeal to the town council shall be allowed concerning the same matter prior to the expiration of six months from a ruling of the board on any appeal to such body unless other rulings on the same or similar subject matter have, within such six-month period, been altered or changed by ruling of the board, in which case such change of circumstances shall permit the allowance of an appeal, but shall in no way have force in law to compel the board, after a hearing, to grant such subsequent appeal, but such appeal shall be considered on its merits as in all other cases. (g) Effective date. A decision on a variance shall be effective upon approval by the board. (h) Appeal from board. Any person aggrieved by any decision of the town council or any officer, department, or board of the municipality pursuant to this section, may present to a court of competent jurisdiction, a petition, duly verified, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of such illegality. Such petition shall be presented to the court within ten days after the filing of the decision complained of in the office of the town secretary and not thereafter. (UDC 1994, art. II, § 12; Ord. No. 707, § 2, 8-26-2013) Sec. 26-69. Town planner. (a) Qualifications. The town planner must be a member in good standing of AICP, AIA or PE. (b) Powers and duties. The town planner shall have the following powers and duties: (1) To make recommendations and provide assistance to the town council and planning and zoning commission concerning exercise of their responsibilities under the Unified Development Code; (2) To develop and recommend to the planning and zoning commission, and the town council, a Comprehensive Plan for the town or any amendments to the plan and to propose actions to implement the plan; (3) To coordinate all planning relating to the town's Comprehensive Plan; (4) To submit recommendations to the planning and zoning commission and council on request for zoning changes,variances and exceptions; (5) To render such administrative decisions as are required of the town planner by the UDC; (6) To perform such other duties as may be prescribed by ordinance or directed by the town council or planning and zoning commission. (UDC 1994, art. II, § 13) Sec. 26-70. Building official. (a) Qualifications. The building official must be a licensed architect, engineer or certified building official (CBO)as granted by the International Code Council(ICC) in good standing. (b) Powers and duties. The building official shall have the following powers and duties: (1) To issue permits in accordance with the UDC and Code of Ordinances; (2) To issue certificates of occupancy in accordance with the UDC and Code of Ordinances; (3) To enforce the provisions of the UDC and Code of Ordinances; (4) Such other powers and duties as may be lawfully delegated. (UDC 1994, art. II, § 14) Sec. 26-71. Procedure in planning and zoning cases/additional information submitted. (a) New matters of evidence not present to the planning and zoning commission shall not be heard or considered by the town council in its public hearings related to amendments to the zoning ordinance and maps to the town. (b) In the event new evidence develops between the date of the hearing by the planning and zoning commission and the hearing of the council on any zoning change, or if for any other valid reason a person wishes to present evidence to the council which had not been presented Ordinance 895 Page 12 of 18 to the planning and zoning commission, the council shall refer the case back to the planning and zoning commission for further hearings to consider the new evidence. (c) Nothing contained in this section shall be construed to prohibit anyone from speaking in the public hearing related to changes in zoning. (UDC 1994, art. II, § 15) Secs. 26-72-26-90. Reserved. DIVISION 3. ENFORCEMENT Sec. 26-91. Compliance required. (a) No person shall use, occupy, or develop any land, building or other structures, or authorize or permit such use, occupancy or development, except in accordance with all applicable provisions of the Unified Development Code and Code of Ordinances. (b) The owner of any building, structure, or land, or part thereof, and any architect, builder, contractor, agent or any other person employed in connection therewith, who violates, or assists in or contributes to the commission of a violation of the UDC or Code of Ordinances, shall be deemed guilty of such violation and shall become liable for the penalties established in this chapter. (UDC 1994, art. XV, § 1) Sec. 26-92.Notice of intent to suspend or revoke. Before suspension or revocation of any permit or authorization pursuant to this division, the building official, or designee, may give notice of the intent to suspend or revoke such permit or authorization, which notice may specify a reasonable time for compliance with the UDC or Code of Ordinances. If notice of intent is given, suspension or revocation may not occur before the time for compliance has expired. (UDC 1994, art. XV, § 2; Ord.No. 512, § 9, 4-23-2007) Sec. 26-93. Suspension or revocation of permit. (a) When the town determines that a permit has been issued in error or on the basis of incorrect information, or that there has been noncompliance with the provisions of the UDC or Code of Ordinances, the town manager or their designee may suspend the permit or license pending compliance with the UDC. The town manager or their designee may revoke a permit if compliance is not achieved within a reasonable period of time. (b) Notice of suspension or revocation of a building permit, or certificate of occupancy shall be sent to the permit holder by certified mail, return receipt requested. (c) A permit or certificate of occupancy may be immediately revoked by the town manager or their designee when and if additional noncompliance with the UDC and Code of Ordinances occurs after the permit has been suspended. (UDC 1994, art. XV, § 3; Ord.No. 512, § 9, 4-23-2007) Sec. 26-94. Suspension or revocation of permits conditioned by a variance or special exception. (a) When it is determined that there is a failure to comply with any term, condition or requirement of a variance or special exception, the town manager or their designee may suspend any permits pending. (b) Notice of suspension or revocation of a permit shall be sent by certified mail, return receipt requested. (c) The town council shall hold a public hearing no later than 45 days after notification of the suspension or revocation. If the council determines that there is a failure to comply with any term, condition or requirement of the variance or special exception, it may revoke the Ordinance 895 Page 13 of 18 variance or special exception or take such action as it considers necessary to ensure compliance. (UDC 1994, art. XV, § 4; Ord.No. 512, § 9, 4-23-2007) Sec. 26-95. Suspension and revocation of site plan, specific use permit or subdivision construction/engineering plan. (a) When the town determines that a subdivision construction plan has been approved in error or on the basis of incorrect information, or that there has been a failure to comply with the provision of the Unified Development Code and Code of Ordinances, the town manager or their designee may suspend the approval of the subdivision construction/engineering plan until there is compliance with the UDC. The town manager or their designee may revoke the approval of the subdivision construction/engineering plan if compliance is not achieved within a reasonable time. (b) Notice of suspension or revocation of the approval of a subdivision construction plan shall be sent by certified mail, return receipt requested. (c) A site plan or specific use permit may be revoked by the town council upon public hearing if violations of conditions are determined to exist. In addition, a specific use permit shall terminate in accordance with subsection 102-63(d). (UDC 1994, art. XV, § 5; Ord.No. 512, § 9, 5-23-2007) Sec. 26-96. Suspension and revocation of certificate of occupancy. (a) When the town manager or their designee determines that a certificate of occupancy has been issued in error or on the basis of incorrect information or that the building or structure is in violation of any ordinance or regulation, the town manager or their designee may suspend the certificate of occupancy until there is compliance with all ordinances and regulations. The town manager or their designee may revoke a certificate of occupancy if compliance is not achieved within a reasonable time. (b) Notice of suspension or revocation of a certificate of occupancy shall be mailed by certified mail, return receipt requested. (c) A certificate of occupancy may be immediately revoked by the building official or designee where additional noncompliance occurs after the certificate has been suspended. (d) The town council may hear appeals to the building official's decision to revoke the certificate of occupancy when it is alleged that there was an error of law in his/her order, requirement, decision or determination. (UDC 1994, art. XV, § 6; Ord.No. 512, § 9,4-23-2007) Sec. 26-97. Cease and desist order. (a) When the town determines that there has been noncompliance with any material term, condition or requirement of the UDC or Code of Ordinances, the town may order any person having a proprietary interest in the property or any person engaged in the development or construction on the property to cease and desist from engaging in any further development or construction activities on the site. The cease and desist order shall be in writing and shall be posted on the site. The order shall specifically state the nature of the noncompliance and the acts prohibited. (b) The town may bring suit in a court of competent jurisdiction to restrain and enjoin any person attempting or allowing development or construction without a permit or other authorization or who fails to cease and desist from further development or construction after notice of a cease and desist order has been posted in accordance with this division. (c) When the town determines that there has been noncompliance with the UDC or Code of Ordinances which constitutes a health or safety hazard, a cease and desist order shall be issued and shall remain in effect until there has been compliance with the UDC or Code of Ordinance 895 Page 14 of 18 Ordinances. This division shall not override the county health director or designee's ability to suspend, or reinstate food or child care permits in conformance with state and federal laws. (UDC 1994, art.XV, § 7) Sec. 26-98. Appeal of cease and desist order, revocation or suspension. (a) Appeal of a cease and desist order, suspension or revocation may be made to the town council or the appropriate board, by any person aggrieved, by giving written notice no later than three days after the cease and desist order is posted, or notice of the suspension or revocation is received. The notice shall state: (1) The name and address of the person making the appeal; (2) The facts surrounding a particular appeal; (3) The nature of the cease and desist order, suspension or revocation; and (4) The reasons why the ruling should be set aside. (b) The town council or appropriate board shall hear the appeal at its next regularly scheduled meeting following receipt of the notice of appeal provided that the appeal is received at least three working days prior to that meeting. The town council or appropriate board shall either affirm or reverse the decision appealed no later than seven days after the close of the hearing. (c) An appeal brought under this section shall not stay the cease and desist order, suspension or revocation. (UDC 1994, art. XV, § 8) Sec. 26-99. Criminal enforcement. The violation of any of the provisions of the UDC or Code of Ordinances shall be unlawful and shall constitute a misdemeanor. (UDC 1994, art. XV, § 9) Sec. 26-100. Civil remedies. (a) If any building, structure or land is used, constructed, maintained, repaired or altered, or any development is undertaken in violation of the UDC or Code of Ordinances, including failure to comply with the landscape requirements, the town may institute any appropriate action to prevent, restrain, correct or abate the violation authorized by the state, including but not limited to the following: (1) To impose a civil penalty, not to exceed $2,000.00 a day, for the kinds of violations enumerated in V.T.C.A., Local Government Code § 54.012; (2) To enjoin violations or threatened violations of chapter 82 relating to the subdivision of land; (3) To recover damages from the owner of a tract of land in violation of chapter 82 in an amount adequate for the town to undertake any construction or other activity to bring about compliance with such regulation. (b) The imposition of any penalty shall not preclude the town from instituting any other appropriate action to require compliance with the UDC or Code of Ordinances and with administrative orders and determinations made pursuant to the UDC or Code of Ordinances. (UDC 1994, art. XV, § 10) Secs. 26-101-26-120. Reserved. ARTICLE III. DEVELOPMENT; TAX ABATEMENT DIVISION 1. GENERALLY Sec. 26-121. -Adoption of tax abatement policy. Ordinance 895 Page 15 of 18 The tax abatement policy for the town, attached to Ordinance No. 303 as exhibit "1," as now or hereafter amended, and the economic development incentive policy for the town, attached to Ordinance No. 303 as exhibit "2," as now or hereafter amended are hereby adopted as provisions in this section as if set out at length in this section. Copies of such Tax Abatement Policy and copies of such Economic Development Incentive Policy have been filed as required in the office of the town secretary and are available to the public. (Ord.No. 303, §§ 2,3, 8-3-1998) Secs. 26-122-26-140. Reserved. DIVISION 2. REINVESTMENT ZONE Sec. 26-141. Definitions. The following words,terms and phrases when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Act means the Property Redevelopment and Tax Abatement Act(V.T.C.A., Tax Code ch. 312). Zone or reinvestment zone means the reinvestment zone created in this division. (Ord. No. 304, 8-3-1998) Cross reference—Definitions generally, § 1-2. Sec. 26-142. Hearing. (a) A public hearing at a regularly scheduled meeting before the board was held at 7:30 on August 3, 1998. (b) The town at such hearing invited all interested persons, or their representatives, to appear and speak for or against the creation of a proposed reinvestment zone, the boundaries of the proposed reinvestment zone, whether all or part of the territory described in this division should be included in such proposed reinvestment zone, and the concept of tax abatement. (c) All interested persons spoke and the proponents of the reinvestment zone offered evidence, both oral and documentary, in favor of the creation of the proposed reinvestment zone and the proponents also submitted evidence as to the proposed improvements. (Ord.No. 304, 8-3-1998) Sec. 26-143. Findings and determinations. The town, after conducting such hearing and having heard such evidence and testimony, has made the following findings and determinations based on the testimony and evidence presented to it: (1) That a public hearing on the designation of the reinvestment zone has been properly called, held and conducted and that notices of such hearings have been published as required by law and delivered to all taxing units located within the proposed reinvestment zone; (2) That the boundaries of the reinvestment zone should be the area as described in the metes and bounds description attached to Ordinance No. 304 and identified as exhibit "A," which is incorporated in this section for all purposes and which area is within the taxing jurisdiction of the town; (3) That the creation of the reinvestment zone for commercial-industrial tax abatement, with boundaries as described in exhibit "A" attached to Ordinance No. 304 will result in benefits to the land included in the zone and to the town after the expiration of any tax abatement agreement entered into and the improvements sought within the zone are feasible and practical; (4) That the reinvestment zone as defined in exhibit "A" attached to Ordinance No. 304 meets the criteria for the creation of a reinvestment zone as set forth in the Act, as Ordinance 895 Page 16 of 18 amended, in that it is reasonably likely as a result of the designation to contribute to the retention or expansion of primary employment or to attract major investment in the zone that would be a benefit to the property and that would contribute to the economic development of the town; and (5) That the reinvestment zone as defined in exhibit "A" attached to Ordinance No. 304 meets the criteria for the creation of a reinvestment zone as set forth in the town Tax Abatement Policy, which policy establishes guidelines and criteria governing tax abatement agreements by the town and provides for the availability of tax abatement for both new facilities and structures and for the expansion or modernization of existing facilities and structures. (Ord. No. 304, § 2, 8-3-1998) Sec. 26-144. Reinvestment zone created. Pursuant to the Act, the town hereby creates a reinvestment zone for commercial-industrial tax abatement encompassing only the area described by the metes and bounds in exhibit "A" attached to Ordinance No. 304, and such reinvestment zone is hereby designated and shall hereafter be designated as Reinvestment Zone No. One, Town of Westlake, Texas. (Ord.No. 304, § 3, 8-3-1998) SECTION 3: That this Ordinance shall be cumulative of all other Town Ordinances and all other provisions of other Ordinances adopted by the Town which are inconsistent with the terms or provisions of this Ordinance are hereby repealed. SECTION 4: That any person violating any provision of this Chapter may be issued a citation and upon conviction thereof, the person shall be deemed guilty of a misdemeanor and punished as provided in subsection 1-9 of the Code of Ordinance of the Town of Westlake. Each 24-hour period of violation, and each separate act or condition in violation of this Chapter, shall constitute a separate offense. SECTION 5: It is hereby declared to be the intention of the Town Council of the Town of Westlake, Texas, that sections, paragraphs, clauses and phrases of this Ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared legally invalid or unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such legal invalidity or unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs or sections of this Ordinance since the same would have been enacted by the Town Council of the Town of Westlake without the incorporation in this Ordinance of any such legally invalid or unconstitutional, phrase, sentence, paragraph or section. Ordinance 895 Page 17 of 18 SECTION 6: This ordinance shall take effect immediately from and after its passage as the law in such case provides. PASSED AND APPROVED ON THIS 30th DAY OF SEPTEMBER 2019 ATTEST: \AlitLc 1 .F ,_Carol K. Lan don a or Pro Tern Kell Edw� s, Town Secretary �44 y�N.•••••••.SD ` APPROV A FORM: * ••. Arc 1 • TFX As 0 L. tanton , Town Attorney "'Y.; ,.,,+• Ordinance 895 Page 18 of 18 • Star-Telegram MEDIA Arlington Citizen-Journal I The Keller Citizen I La Estrella Mansfield News-Mirror I Star-Telegram Northeast I Weatherford Star-Telegram star-telegram.com 1808 Throckmorton St.I Ft Worth,Tx.78102.8315 AFFIDAVIT OF PUBLICATION Account h Ad Number Identification PO Amount Cols Depth 6C3646 0004409053 TOWN OF WESTLAKE ORDINANCE NO. 895 ORDINANCE NO. 895 I $1 068.28 29.00 Li Attention: Kelly Edwards THE STATE OF TEXAS TOWN OF WESTLAKE County of Tarrant 1500 SOLANA BLVD 7TH FLR BULD 7200 ROANOKE, TX 76262 Before me. a Notary Public in and for said County and State,this day personally appeared VICTORIA TOWN OF WESTLAKE RODELA, Bid and Legal Coordinator ORDINANCE NO. 895 AN ORDINANCE OF THE TOWN OF for the Star-Telegram, published WESTLAKE AMENDING CHAP- TER gram by TER 26 COMMUNITY DEVELOP- the Star-Telegram, Inc. at Fort Worth, MENT IN ITS ENTIRETY; PRO- VIDING A PENALTY CLAUSE; in Tarrant County,Texas;and who. PROVIDING A CUMULATIVE CLAUSE; PROVIDING A after being duly sworn,did depose SEVERABILITY CLAUSE; PRO- VIDING A SAVINGS CLAUSE; and say that the attached clipping of AUTHORIZING PUBLICATION; an advertisement was AND ESTABLISHING AN EFFEC- TIVE published in TIVE DATE. SECTION 4: That the above named on the listed any person violating any provi- sion paper sion of this Chapter may be is- dates: sued a citation and upon convic- tion thereof,the person shall be TOWN OF WESTLAKE deemed guilty of a misdemeanor ORDINANCE NO. 895 and punished as provided in sub- AN ORDINANCE OF THE TOWN OF section 1-9 of the Code of Ordi- nance of the Town of Westlake. TER WESTLAKE26AMENDING CHAP- Each 24-hour period of violation, T MENT IN S COMMUNITYENTIRETY;DEVELOP- PRO- tion 2 Insertion(s) and each separate act or Goner, VIDING A PENALTY CLAUSE; in violation of this Chapter, shall constitute a separate of- PROVIDING A CUMULATIVE Published On: fence. PASSED AND AP- CLAUSE; PROVIDING A PROVED ON THIS 30th DAY OF SEVERABILITY CLAUSE; PRO- October 05 2019.October 06. 2019 SEPTEMBER 2019 VIDING A SAVINGS CLAUSE; AUTHORIZING PUBLICATION; AND ESTABLISHING AN EFFEC- TIVE DATE. SECTION 4: That any person violating any provi- sion of this Chapter may be is- sued a citation and upon convic- tion thereof,the person shall be deemed guilty of a misdemeanor and punished as provided in sub- section 1-9 of the Code of Ordi- nance of the Town of Westlake. Each 24-hour period of violation, and each separate act or condi- tion in violation of this Chapter, shall constitute a separate of- fense. PASSED AND AP- PROVED ON THIS 30th DAY OF � , SEPTEMBER 2019 �( --( (Principal Clerk) SUBSCRIBED AND SWORN TO BEFORE ME,THIS 7th day of ober in the year of 2019 Nota Public- ?e'P�• B' AMANDA DAWN GRISHAM � A; �� q My Notary lD#132031326 :>;F oF,•Zi, Expires May 30,2023 F. Extra charge for lost or duplicate affidavits. Legal document please do not destroy!