Setting Up a Municipal Zoning Review Board in Texas

In the state of Texas, municipal zoning authority is governed by Chapter 211 of the Texas Local Government Code. Section 211.003 specifically authorizes cities to regulate “the location and use of buildings, other structures, and land for business, industrial, residential, or other purposes.”

Section 211.008 authorizes, but does not require, cities to appoint a board of adjustment. If a city creates a board of adjustment, these are the requirements for the board:

• it must consist of at least five members appointed for two-year terms
• the city must provide the procedure for appointment to the board
• each case must be heard by at least 75 percent of the board members
• board must, by majority, adopt rules in accordance with any ordinance adopted under Chapter 211
• all meetings must be open to the public
• board must keep minutes of its proceedings that indicate the vote of each member and if a member is absent or fails to vote
• minutes and records must be filed immediately and are public record

The statute does not specify any particular procedures for board of adjustment meetings. For an application for a variance, a three-part organization would seem to make sense:

1. Applicant presents request to the board, with questions and discussion
2. Board invites public comment, questions, and discussion
3. Board closes public comment, deliberates, and votes

Typically, a city will set forth a code of ordinances concerns zoning rules and regulations, and that governing document can also provide for administration and procedures, including the creation of a board of adjustment and the procedures for requesting a variance.

An applicable ordinance could state the following requirements for the board of adjustment:

• The board shall hold a public hearing on an application for a variance permit
• The board shall consider the application, the staff report, the relevant supporting materials, and the public testimony given at the public hearing
• At the close of the public hearing, the board shall vote to approve, approve with conditions, or disapprove the application
• The city planner shall provide a copy of the decision to the applicant by mail within ten days of the board’s decision

As for the basis for approving or denying such permits, the ordinance should clearly define reasonable parameters. A city could require that a board of adjustment “shall make an affirmative finding” that all of the following criteria are met when approving an application for a variance permit:

1. Special circumstances exist that are peculiar to the land or structure that are not applicable to other land or structures in the same zoning district and are not merely financial;
2. These special circumstances are not the result of the actions of the applicant;
3. Literal interpretation and enforcement of the terms and provisions of this chapter would deprive the applicant of rights commonly enjoyed by other land in the same zoning district, and would cause an unnecessary and undue hardship;
4. Granting the variance is the minimum action that will make possible the use of the land or structure which is not contrary to the public interest, and which would carry out the spirit of this chapter and substantial justice;
5. Granting the variance will not adversely affect adjacent land in a material way; and
6. Granting the variance will be generally consistent with the purposes and intent of this chapter.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.