Zoning Amendment, Appeals and Variances
Declaration of Policy
- The City declared the enactment of the zoning regulations set forth in the Red Oak Zoning Ordinance governing the use and development of land, buildings and structures as a measure necessary to the orderly development of the community. Therefore, no change can be made in the adopted regulations or in the boundaries of the zoning districts except as follows:
- to correct any error in the regulations or map;
- to recognize changed or changing conditions or circumstances in a particular locality; or
- to recognize changes in technology, the style of living or manner of conducting business
Authority to Amend Code
- The City Council may, from time to time, after receiving a final report by the Planning and Zoning Commission and after public hearings, amend, supplement or change the zoning regulations or the boundaries of the zoning districts. Any zoning change or amendment may be ordered for consideration by the City Council, be initiated by the Planning and Zoning Commission or be requested by the owner of real property or the authorized representative of an owner of real property.
- Consideration for a change in any district boundary line or special zoning regulation may be initiated only with written consent of the property owner, or by the Planning and Zoning Commission or City Council on its own motion when it finds that public benefit will be derived from consideration of such matter. In the event the ownership stated on an application and that shown on the City records are different, the applicant must submit proof of ownership or an affidavit from the owner authorizing the applicant to act on his behalf.
- An applicant for zoning, for an amendment, or for change to the existing provisions of the zoning requirements, regulation and mapping, must make an application in writing on forms provided by the Administrative Official which must be filed with the City and must be accompanied by payment of the appropriate fee to be charged by the City for administering the zoning application.
Public Hearing and Notice
- Prior to making its report to the City Council, the Planning and Zoning Commission holds at least one public hearing on each application.
- Written notice of all public hearings on proposed changes in district boundaries are sent to all owners of property, or to the person rendering the same for City taxes, located within the area of application and within two hundred (200) feet of any property affected thereby, within not less than ten (10) days before such hearing is held. The notice may be served by using the last known address as listed on the latest approved City tax roll and depositing the notice, postage paid, in the United States mail.
- Notice of hearings on proposed changes in the text of the Red Oak Zoning Ordinance are accomplished by one publication not less than fifteen (15) days prior thereto in the official newspaper of the City. Notices for the public hearing before the City Council may also be published at the same time notice of the Planning and Zoning Commission meeting is published.
Failure to Appear
Failure of the applicant or his representative to appear before the Planning and Zoning Commission for more than one hearing without an approved delay constitutes sufficient grounds for the Planning and Zoning Commission to deny the application.
Planning and Zoning Commission Consideration and Report
After the public hearing is closed, the Planning and Zoning Commission prepares its report and recommendations on the proposed change stating its findings and its evaluation of the request. The Planning and Zoning Commission may defer its report for not more than ninety (90) days until it has had opportunity to consider other proposed changes which may have a direct bearing thereon. In making its determination, the Planning and Zoning Commission considers the following factors:
- whether the uses permitted by the proposed change will be appropriate in the immediate area concerned and their relationship to the general area and the City as a whole
- whether the proposed change is in accord with any existing or proposed plans for providing public schools, streets, water supply, sanitary sewers and other utilities to the area
- the amount of vacant land currently classified for similar development in the vicinity and elsewhere in the City, and any special circumstances which may make a substantial part of such vacant land unavailable for development
- the recent rate at which land is being developed in the same zoning classification as the request, particularly in the vicinity of the proposed change
- how other areas designated for similar development will be, or are unlikely to be affected if the proposed amendment is approved, and whether such designation for other areas should be modified also; and
- any other factors which will substantially affect the health, safety, morals or general welfare.
Council Hearing and Notice
Notice of the City Council hearing is given by publication in the official newspaper of the City, stating the time and place of such hearing at least 15 days after the date of publication.
- A favorable vote of three-fourths (3/4) of all members of the City Council is required to overrule a recommendation for denial from the Planning and Zoning Commission. A tie vote of the Planning and Zoning Commission does not constitute a recommendation for denial.
- If a protest against a proposed amendment, supplement or change to the Red Oak Zoning Ordinance or the Zoning Map has been filed with City Secretary, duly signed and acknowledged by the owners of 20% or more, either of the area of the lots included in such a proposed change or those immediately adjacent to the area thereof extending 200 feet therefrom or of those directly opposite thereto extending 200 feet from the street frontage of such opposite lots, such amendments do not become effective except by a three-fourths (3/4) vote of the City Council.
Joint Public Hearings
- The City Council may elect, from time to time, to combine the Planning and Zoning Commission public hearing and the Council public hearing, however, that the City Council does not take action upon any proposed amendment or change until it has received a final report from the Planning and Zoning Commission.
- To conduct a joint hearing, the City Council causes a notice showing the time and place of the joint public hearing to be published in a newspaper of general circulation before the 15th day before the public hearing. In addition, notice of all jointly held public hearings on proposed changes in classification is sent to owners of real property lying within 200 feet of the property on which the change in classification is proposed, as indicated on the most recently approved municipal tax role, before the 10th day before the public hearing. No additional public hearings are required to affect a change in zoning classification or a textual change in zoning regulations if a joint public hearing is conducted.
Proposal Recommended for Approval
Every proposal which is recommended favorably by the Planning and Zoning Commission is forwarded to the Council for setting and holding of a public hearing thereon. No change, however, becomes effective until after the adoption of an ordinance for same and its publication as required by law.
Proposal Recommended for Denial
When the Planning and Zoning Commission determines that a proposal should be denied, it so reports and recommends to the Council. The failure of a proposed change to receive four affirmative votes constitutes a recommendation for denial.
Unless waived by the City Council, a request which has been denied by the Planning and Zoning Commission and/or City Council may not be resubmitted by the applicant for reconsideration by the City until one year from date of denial. A new filing fee must accompany the request.
BOARD OF ADJUSTMENT
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 Board of Adjustment may, in specific cases, after written notice to all property owners within 200 feet of the request and public hearing, and subject to appropriate conditions and safeguards, authorize or order the following action:
- revise or modify any order, requirement, decision or determination made by the Administrative Official in the enforcement of the Red Oak Zoning Ordinance
- permit the reconstruction, extension or enlargement of a building occupied by nonconforming uses, on the lot or tract occupied by such building, provided such reconstruction does not prevent the return of such property to a conforming use
- permit such variances of specific items such as height, yard area, exterior structure, lot coverage, off-street parking and loading regulations that will not be contrary to the public interest and where, because of special conditions, the enforcement of this code or its amendments would result in an unnecessary hardship to the property owner
Written Appeal and Application
Any aggrieved person by any officer, department, or board of the City, or affected by any decision of the Administrative Official may appeal the decision by making a written application or appeal to the Board of Adjustment using application forms provided by the City. The appeal must be filed within 10 days after the decision has been rendered by the Administrative Official or Board.
Findings Required for Variance
- In order to make a finding of hardship and to grant a variance, the Board of Adjustment must determine that:
- the requested variance does not violate the intent of the ordinance or its amendments;
- special conditions of restricted area, shape, topography or physical features exist that are peculiar to the subject parcel of land and are not applicable to other parcels of land in the same zoning district; and
- the hardship is in no way the result of the applicant’s own actions.
- A variance is not be granted to relieve a self-created or personal hardship, nor is it based solely on economic gain or loss, nor does it permit any person a privilege in developing a parcel of land not permitted by the Red Oak Zoning Ordinance to other parcels of land in the particular zoning district.
No variance may authorize a use other than those permitted in the district for which the variance is sought. Also, an application or request for a variance cannot be heard or granted with regard to any parcel of property or portion thereof upon which a site plan, preliminary plat or final plat, when required by the Red Oak Zoning Ordinance for any parcel of property or portion thereof, has not been finally acted upon by both the Planning and Zoning Commission and, where required, by the City Council. The administrative procedures and requirements of the Red Oak Zoning Ordinance, with regard to both Planning and Zoning Commission and City Council consideration and action on zoning requests, site plans, preliminary plats and final plats must be exhausted prior to requesting a variance from the terms of this Code. It is the responsibility of the applicant to establish the necessary facts and burden of proof that a hardship exists which justifies a variance.
Procedure for Appeal of Official’s Decision
- The Board of Adjustment hears and decides appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by the administrative officer in the enforcement of the Red Oak Zoning Ordinance; and/or in exercising its power, the board of adjustment may, revise or reform, wholly or partly, or may modify the order, requirement, decision or determination as sought to be made and has all the powers of the officer from whom the appeal is taken, and may require conditions and safeguards as the Board finds necessary to preserve the spirit and intent of the Red Oak Zoning Ordinance.
- Appeals to the Board of Adjustment can be taken by any person aggrieved by a decision of any office, official, board or department of the City. The person wishing to appeal must give notice of appeal, specifying the grounds thereof, within 15 days after the decision has been rendered by filing the notice with the officer from whom the appeal is taken and with the Board of Adjustment.
- The officer from whom the appeal is taken must forthwith transmit to the Board, all paper constituting the record upon which action appeals 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 has 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 case, proceedings are not be stayed, otherwise than by a restraining order which may be granted by the Board of Adjustment or by a court of record or application on notice to the officer from whom the appeal is taken.
The concurring vote of 4 members of the Board is necessary to reverse any order, requirement, decision or determination of the Administrative Official, or to decide in favor of the applicant on any matter upon which it is required to pass under the Red Oak Zoning Ordinance.
- The Board of Adjustment may permit the reconstruction, extension, or enlargement of a structure occupied by a nonconforming use on the lot occupied by such structure.
- The Board of Adjustment may require the discontinuance of nonconforming uses under any plan whereby the full value of the structure or use 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 Red Oak Zoning Ordinance.
Authority to Establish
The Administrative Official may adopt procedures for administering zoning, platting, variances, appeals and any other requirements of the Red Oak Zoning Ordinance whereby uniform procedural standards are required.
- Uniform standards are approved by the appropriate elected or appointed body which has the authority for which the procedural requirements have been written.
- When no specific authority is assigned to the elected or appointed body, then such procedural requirements are approved by the City Council.