HomeMy WebLinkAboutOrdinance - 2013-O0057 - Amendment To Article 2.03 Division 14 Of Code Of Ordinances - 06/13/2013First Reading
May 23, 2013
Item No. 5.12
Second Reading
June 13, 2013
Item No. 5.10
ORDINANCE NO. 2013-00057
AN ORDINANCE AMENDING ARTICLE 2.03 DIVISION 14 OF THE CODE OF
ORDINANCES OF THE CITY OF LUBBOCK, TEXAS WITH REGARD TO THE
BUILDING BOARD OF APPEALS; PROVIDING FOR ALTERNATE MEMBERS;
VESTING ADDITIONAL AUTHORITY; ESTABLISHING PROCEDURES FOR CONDUCT
OF HEARINGS; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION;
AND PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
SECTION 1. THAT Article 2.03 Division 14 of the Code of Ordinances of the City of Lubbock
is hereby amended to read as follows:
Division 14. Building Board of Appeals
Sec. 2.03.491 Establishment and membership
In order to hear and decide appeals of orders, decisions or determinations made by the
Building Official or Fire Marshal relative to the application and interpretation of the
technical construction and fire prevention codes, and to hear and decide on matters
related to the permitting, licensing, or registration of individuals or entities subject to said
codes, and to determine suitability of alternate materials and methods of construction,
there shall be and is hereby created a board of appeals. Except as specifically noted
below, the board of appeals shall consist of eleven (11) members who are qualified by
experience and training to pass upon matters pertaining to the design, construction and
use of buildings. Members of the board of appeals shall be appointed by the City Council
and shall hold office for a term of two (2) years and until their successors are qualified.
Consistent with the membership set forth below, the presently constituted board members
shall continue in their offices for their regular terms. The membership of the board of
appeals shall include representatives from the following areas of expertise:
(1) A member of the West Texas Home Builders Association;
(2) An active architect;
(3) An active structural engineer;
(4) An active commercial contractor;
(5) An active realtor;
(6) An active master plumber;
(7) An active master electrician;
(8) An active mechanical contractor with a class A license;
(9) Three (3) Lubbock citizens at large who are not associated with the
construction or real estate industry; and
(10) Two (2) Lubbock citizens at large, not associated with the construction
industry, who shall be available as alternate members for the purpose of establishing a
quorum in accordance with Section 2.03.494.
Sec. 2.03.492 Conflicting Interests
Except as is otherwise inevitable due to the prescribed qualifications of its members, no
two regular members of the Board shall represent the same industry, company, or trade
association. All members of the Board shall be subject to The City of Lubbock Code of
Ethics, as set forth in the City of Lubbock Employee Manual.
Sec.2.03.493 Secretary
The building official shall be an ex-officio member and shall act as secretary of the
board.
Sec. 2.03.494. Voting members and quorum; seating of alternates
The presence of 50% plus one of the members identified in Section 2.03.091 (1)-(9) of
this article shall constitute a quorum. Where a quorum of said members cannot be
established or is otherwise lost during the meeting, vacant seats shall be filled by
alternate members, until a quorum is again established. Upon the return of a regular
member to the dais, the Chair shall decide whether to seat the regular member or to retain
the alternate for the remainder of the meeting.
Sec. 2.03.495 Duty to Protect Public Health and Safety
Though charged with the responsibility to consider the granting of relief to individuals
with regard to adopted codes and ordinances, the Board's first duty is the protection of
public health and safety through the thoughtful, deliberative and equitable application of
their requirements.
Sec. 2.03.496 Scope and jurisdiction
The Board is empowered with the authority to hear and decide on:
(a) Requests for appeals regarding the revocation, suspension of permits, or
the refusal to issue same, that would otherwise authorize work governed
by the technical codes, operational or use permits, certificates of
occupancy, inspection approvals, or other approvals necessary in order to
proceed with the construction, occupancy or use of a building;
(b) Requests for appeals regarding the revocation, suspension, or refusal to
issue contractor licenses, registrations, or other approvals necessary in
order to obtain permits or proceed with contracting work governed by the
technical codes;
(c) Requests for variances from the technical requirements within the
construction and fire codes;
(d) Requests for special exceptions to allow the substitution of alternate
materials and methods of construction, or alternative building designs,
than would otherwise be permitted by the technical codes.
Sec. 2.03.497 Limitations of authority
The Board shall have no authority relative to interpretation of the administrative
provisions of this code, nor shall the Board have any administrative authority other than
as expressly stated in this Article. The Board shall have no authority to waive provisions
of the technical codes, except as expressly permitted herein. Because each case brought
before the Board is heard on its merits and is therefore unique, decisions of the Board
shall not be construed as setting any precedent with regard to the future application of the
technical codes by administrative officials, and do not thereby legally obligate said
officials nor the Board with regard to future cases, though they may be similar.
Sec. 2.03.498 Appeals, Variances and Special Exceptions
In exercising its authority under Section 2.03.496 the Board shall consider an appeal,
variance or special exception, as set forth therein. Procedures for hearing, considering
and acting on appeals, variances and special exceptions shall conform to Sections
2.03.499 through 2.03.501 below.
In all types of cases, the burden of proof shall be on the applicant to establish the facts
necessary that the Board must find before granting any appeal, variance, or special
exception as herein contained. A concurring vote of three -fourths (3/4) of the quorum
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
the Board is required to act under this Article, or to approve any variance.
Any person or persons jointly or severally aggrieved by any decision of the Board, or any
taxpayer or any officer, department or board of the municipality 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 (10) days after the decision of the Board and not thereafter.
Sec.2.03.499 Appeals
In exercising its authority to hear and decide on appeals under Section 2.03.496 (a) or (b).
the Board shall proceed as follows:
In exercising its powers, the Board may, in conformity with the provisions of the statutes
of the state of Texas as existing or hereafter amended, reverse or affirm, wholly or partly,
or may modify the order, requirements, decision, or determination appealed from and
make order, requirement, decision or determination, in the Board's opinion as ought to be
made, and in that respect shall have all the powers of the official making the original
determination from whom the appeal is sought. The Board shall have the power, and is
hereby charged with the responsibility to impose reasonable conditions to ensure
appropriate levels of compliance in order to protect lives and property.
(a) General Appeals. Any request for appeal from an administrative decision
hereunder shall be based on a claim that the true intent of the subject code
or rules legally enforced thereunder have been incorrectly interpreted, or
that the provisions of the subject code do not apply or fully apply. The
Board shall hear testimony from the applicant and the official from whom
the appeal is sought, and may hear testimony from witnesses and may
examine evidence in support of either position.
(b) Appeals Involving Permits or Licenses. A request for appeal from an
administrative decision involving the suspension or revocation of a permit,
license, registration, or other approval necessary in order to continue
operations or conduct business shall be based on a claim of hardship as
well as one or more of the following:
1) That the situations or conditions giving rise to the original
suspension or revocation action were misinterpreted by the official;
2) That the situations or conditions giving rise to the original
suspension or revocation action have been cured and resolved;
3) That the applicant did not have the opportunity to appear in a
hearing before the administrative official to show cause why their
license or registration should not be suspended or revoked, or that
the hearing before said administrative official was not fairly
conducted.
The Board shall hear testimony from the applicant and the official from
whom the appeal is sought, and may hear testimony from witnesses and
may examine evidence in support of either position.
(c) Permit & License Actions not Subject to Appeal. A suspension or
revocation of a permit, license, registration, or other approval necessary in
order to conduct business is not subject to appeal where such action was
taken as a result of one or more of the following:
1) Non-payment of required fees associated with the issuance or
maintenance of any permit, license_ registration;
2) Failure to obtain or maintain bonds and/or insurance coverage
required as a condition for obtaining any permit, license or
registration;
3) Failure to obtain or maintain any license, permit or other statutory
approval necessary as a pre -requisite for obtaining any City permit,
license or registration.
The Board may, after public notice and hearing in which the testimony of
applicable City officials as well as the appellant shall be heard, and subject
to the conditions and
safeguards herein contained, vary or adapt the strict application of any of
the terms of
the original suspension or revocation action under the power and authority
herein granted. In so doing, the Board may designate such conditions in
connection therewith which will, in its opinion, secure substantially the
purpose and intent of this code or ordinances.
(d) Appeals involving third -parties. Any person, including a member of the
Board, aggrieved by a decision of the Building Official or Fire Marshal as
to an administrative decision regarding the suspension, revocation, or
refusal to issue a permit, license, registration, or other approval necessary
in order to continue operations or conduct business of another person or
entity, may seek relief from said decision through the appeal process in the
same manner as a person or entity directly affected by the decision in
accordance with Section 2.03.499 (b) herein. Where a Board member is
the appellant, the member shall file an affidavit of conflict of interest, shall
not sit for the hearing nor discuss the case as a member, and shall abstain
from voting on the item.
Sec.2.03.500 Variances
In exercising its authority to hear and decide on variances under Section 2.03.496 (c), the
Board shall proceed as follows:
For purposes of this Article, a variance is an authorization by the Board granting relief
and doing substantial justice where, owing to special and unique conditions, a literal
enforcement of the provisions of the technical codes are improper and will result in
unnecessary hardship. Special and unique conditions, as contemplated herein, do not
include self-created conditions. Hardships do not include those that are purely personal or
of a financial nature, and a variance shall not be considered on the basis of such, nor shall
any variance be granted to permit any person a privilege not available to others.
Any request for a variance from an administrative decision hereunder shall be based on a
claim that the true intent of the subject code or the rules legally enforced thereunder have
been incorrectly interpreted, that the provisions of the subject code do not apply or fully
apply, or that an equally good or better form of construction is proposed, and that the
request cannot qualify for a special exception under Section 2.03.500 of this Article.
A variance may be granted to an applicant when the Board finds:
a) That there are special circumstances and unique conditions applying to the
situation for which the variance is sought, which circumstances or
conditions are peculiar to the situation under consideration and do not
generally apply;
b) That said circumstances or conditions are such that the strict application of
the provisions of the technical codes would deprive the applicant of the
ability to construct, improve and/or use the subject building or premise;
and
c) That the granting of such variance will not violate any statute or
administrative rule otherwise applicable, and will not be detrimental to the
public health, safety or welfare or injurious to the subject building and
surrounding properties; and
d) That the granting of the variance is necessary for the reasonable design,
construction or use of the building and is the minimum that will
accomplish the intended purpose; and
e) That the literal enforcement and strict application of the applicable code
provisions will result in an unnecessary hardship inconsistent with the
general spirit and intent of same and that, in granting such variance, the
spirit of said code provisions will be preserved and substantial justice
done.
The Board may, after public notice and hearing in which the testimony of applicable City
officials as well as the applicant shall be heard, and subject to the conditions and
safeguards herein contained, vary or adapt the strict application of any of the terms of this
ordinance under the power and authority herein granted.
In granting any variance under the provisions of this Article, the Board may designate
such conditions in connection therewith which will, in its opinion, secure substantially
the purpose and intent of this ordinance.
Sec. 2.03.501 Special Exceptions
In exercising its authority to hear and decide on Special Exceptions under Section
2.03.495 (d), the Board shall proceed as follows:
The owner of a building seeking relief from the Board in cases where strict compliance
with the technical codes presents a practical difficulty or unnecessary hardship without
corresponding public benefit, may make written application to the Board requesting a
special exception to allow substitution of alternate materials and methods of construction
or alternative building designs to that required by the pertinent technical codes and
ordinances.
Each applicant shall, upon making such application, submit to the Board sufficient
technical data to demonstrate that the proposed substitute is equivalent in quality,
strength, fire resistance, effectiveness and safety to that prescribed by the applicable
technical codes and ordinances. The application shall be made through the Building
Official or Fire Marshal, as applicable, on forms provided by him, and the request placed
on the next available board agenda for discussion and consideration.
Secs.2.03.502-2.03.520 Reserved
SECTION 2. THAT violation of any provision of this Ordinance shall be deemed a misdemeanor
punishable as provided by Section 1.01.004 of the Code of Ordinances of the City of Lubbock,
Texas.
SECTION 3. THAT should any paragraph, sentence, clause, phrase or word of this Ordinance be
declared unconstitutional or invalid for any reason, the remainder of this Ordinance shall not be
affected thereby.
SECTION 4. THAT the City Secretary is hereby authorized to cause publication of the
descriptive caption of this Ordinance as an alternative method provided by law.
Passed by the City Council on first reading on May 23, 2013
Passed by the City Council on second reading on
GLgiV6ERTSON, MAYOR
ATTEST:
e- I JK
Rebe ca Garza, City Secretary
AS TO CONTENT:
Steve O'Neal, Chief Building Official
APPROVED AS TO FORM:
Y s, A t City Attorney
ccdocs/BBA Ordinance
April 4, 2013