1990-01-08CITY OF SOUTHLAKE
667 N. Carroll Avenue
BOARD OF ADJUSTMENTS MEETING
January 8, 1990 7:30 P.M.
BOARD MEMBERS PRESENT: Art Sorenson, Chairman. Members: Joe
Bentley, Robert Downard, Ernest Johnson. Alternate 2, Bill Stoner.
ABSENT: John Scoggan, Vice Chairman. Alternate 1. Dennis Minder.
CITY STAFF PRESENT: City Manager, Curtis Hawk;, Zoning
Administrator, Karen Gandy;, City Attorney, Allen Taylor;, Fire
Marshal, David Barnes;, City Secretary, Sandra LeGrand; and
Building Secretary, Jean Bryson.
The meeting was called to order at 7:30
P. M. by
chairman, Art
Sorenson, who read
into the minutes, the
meeting
format outline
which will be used
for tonight's meeting.
Mr. Sorenson announced
that an alternate
member will be allowed
to cast
a vote during
tonight's meeting, as one regular member is
absent.
Agenda Item #2 Approval of Minutes
Motion was made to approve the minutes of the
November 13, 1989
Board of Adjustments meetings.
Motion: Johnson
Second: Downard
Ayes: Bentley, Downard, Johnson, Stoner, Sorenson
Nays: None
Approved: 5-0 vote
Agenda Item #3 Administrative Comments
No comments were made on this agenda item.
Agenda Item # 4 Case # 79, Request by
Diamond Shamrock
Corporation.
A request for a Special Exception Use Permit for Petroleum
Operations per Section. 44.12 (pp), Ordinance
No. 480, Lot 1,
Brumlow Industrial District,. Owner:
Diamond Shamrock
Corporation. Zoning: Industrial-2, Location: North side of Highway
26, East of Brumlow Avenue.
Public Hearing.
A presentation was made by Karen Gandy, Zoning
Administrator, who
stated she received one reply undecided about the
request.
Representing Diamond Shamrock was Rodney Smith, real estate
representative of Diamond Shamrock and with him Rodney Reese,
Supt. of Pipeline Terminal for Diamond Shamrock.
Mr Stoner ask for the location of the City Limits and Mr. Hawk
replied that he believed the City Limit boundary to be between the
F111
Board of Adjustment Minutes
January 8, 1990
Page 2
railroad and the property line.
Mr. Johnson asked for the described usage. Mr. Reese stated that
the usage would not change. The primary purpose is a truck
loading facility. Actually material is brought into the terminal
by pipeline and there is no onsite blending maybe adding additives
only. Mr. Johnson asked will there be different usage for the
future and Mr. Reese answered, no.
Mr. Downard asked if planning for any expansion in the near future
is foreseen? Mr. Reese answered not at this time but could not say
never.
® Mr. Bentley referenced to Section 44 (pp) 3. No special exception
shall be granted unless a developmental site plan as set forth in
Section 27.6 is submitted to, and approved by, the Zoning Board of
Adjustments. Mr Bentley states he reads that to mean that in order
to approve the special exception that the site plan would also have
to be approved by this board.
Mr. Taylor, City Attorney, stated that you are correct there is a
provision in this specific section. This specific provision was
based on a concept of new construction or new development. And as
was brought out by staff this specific operation is a legal
nonconforming use. It existed in its present form prior to the
adoption of the present ordinance or map so it has a vested right
to continue as it is currently configured. Diamond Shamrock did
submit with the application for a special exception a site plan and
yes, Mr. Bentley is correct that when this special exception is
acted on whether favorable or unfavorable you are acting on the
site plan submitted. If approved that site plan will be the
operative site plan for the site and it will be the basis for
permits for remodeling, electrical circuit changes, maintenance
activity that will be approved or evaluated. If Diamond Shamrock
should decide to develop a major new storage facility on site
they will come back before this body to secure the amendment to the
site plan and reflecting the location and the configuration of the
new facility.
Mr. Sorenson asked Mr. Taylor, to what degree this review and
approval of a site plan and specifically a developmental site plan
if that were the case, as it is worded in this paragraph to what
extent would overlapping the P & Z and City Council. Mr. Taylor
said basically, simply that is the use of a common phrase. It is
not intended by placing special exception according to the
ordinance to remove the Planing & Zoning or City Council from
normal site plan approval. The City Council and the Planning and
Zoning Commission are requiring site plan review when I-2 Zoning is
initially placed on property. In the I-2 Zoning a number of
operation can be placed or effected that are not petroleum based.
t
Board of Adjustment Meeting
January 8, 1990
Page 3
There is a separate site plan review when a special exception is
sought for, a petroleum operations. The City Council has chosen to
give the Board of Adjustment the opportunity to do a site plan
review as part of the special exception process for petroleum
operations. I would point out, in the event Diamond Shamrock
decides to make future improvements it would not go back to the
City Council and Planning Zoning Commission. Their prior site plan
approval invested the I-2 Zoning and the only site plan approval in
the future would be to this body and you are the final review
process for petroleum based changes.
Mr. Bentley inquired about the height approval by this board. Mr.
Taylor, remarked, it simplifies the process you are approving
those exception to normal height regulations because the height of
the existing or proposed tanks and facilities is reflected on the
site plan you are approving.
Mrs. Bill Stowe of 1710 South Brumlow stated she was not opposing
the request but was asking that tanks not be located westward
toward Brumlow Avenue.
A motion was made to grant Case No. 79 A Special Exception Use
Permit for Petroleum Operations and approval of the developmental
site plan as submitted by Diamond Shamrock.
Mr. Taylor outlined the findings for the board, stating that:
i First the information presented by the Zoning Administrator office
reflected that the site in question is currently Zoned I-2 which
is the zoning district in which this type of special exception may
be granted.
Second the size of the tract complies with the I-2 zoning
irr requirement and the conditions precedes for the granting of this
special exception the site in question does not directly abut
+�! residentially zoned properties, the site in question based upon the
development site plan submitted will not require traffic flow or
diversion to residential area. The site in question is adequately
served by utility infrastructure and appropriate transportation
imitates and no evidence has been presented that this is a site
containing no environmental characteristics. Of the parties
present at the hearing tonight presenting the evidence the
applicant has appeared stating their current compliance with all
appropriate state, local, and federal regulations and their intent
to maintain compliance. No parties have appeared in opposition
one party appeared to express satisfaction with the current state
of operation but concern about any future expansion to the West. No
documented evidence has been submitted of any violation of any
"""', local ordinances of the operation of this facility.
F.
FU
Board of Adjustments Meeting
January 8, 1990
Page 4
Motion: Mr. Stoner
Second: Mr. Johnson
Ayes: Stoner, Johnson, Sorenson, Downard, Bentley
Nays: None
Approved: 5-0 Vote
Mr. Taylor ask that if the board had a question to the response to
Mr. Bentley's letter he would be glad to assist.
Agenda Item #5 Adjournment
The meeting was adjourned by Mr. Sorenson at 8:00 P.M.
1111.4 A, 711
Art enson, Chairman
Board of Adjustments
can Bryson
Attended meeting and prepared
minutes -
ATTEST:
Ab.
Sandra L. LeGra
City Secretary
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ADDRESS
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City of Southlake, Texas
M E M O R A N D U M
January 2, 1990
TO: Board of Adjustment Members
FROM: Karen P. Gandy, Zoning Administrator
SUBJECT: Board of Adjustment Case ff 79
r-
Board of Adjustment Case No. 79 is a request fc
permit for Petroleum Operations per Section No.
No. 480.
The owner/applicant is Diamond Shamrock Corporation.
The location of the tract is the north side of Highway No. 26, East of
Brumlow Avenue, being legally described as Lot 1, Brumlow Industrial
District.
The current zoning is Industrial-2.
There were nine (9) letters sent to property owners within 200 feet.
To date, no responses, either written or verbal, have been received.
This request is Diamond Shamrock's attempt to complete the zoning process
as established by the City Council during the 1989 re -zoning. Without
this permit, no enlargement, alteration, or repair requiring a building
permit could be granted for their facility.
151
CITY OF SOUTHLAKE
APPLICATION FOR SPECIAL EXCEPTION PERMIT
APPLICATION NO.: Board of Adjustment No. 79
To be filed with the City Secretary at City Hall, Southlake,
Texas, in time for proper notice of public hearing to be made,
and notices to be sent to property owners within 200 feet,
4 5o, vo
fifteen (15) days prior to the public hearing. A fee of $-
must accompany this application.
(Please print or type. attach extra sheets :f r...:essary.)
N.*[E OF APPLICANT:
ADDRESS:
DIAMOND SHAMROCK 9702 BROCKBANK, DALLAS, TX 75220
ATTN: RODNEY SMITH (214) 357-7386
'�rrr
DESCRIPTION (metes and bounds) CF PROPERTY REQUESTED TO BE
/. C C i L
+ ATTACHED
PRESENT ZONING DISTRICT OF PROPERTY IN QUESTION:
I-2
REQUEST FOR SPECIAL EXCEPTION PERMIT FOR THE FOLLOWING:
!" FUEL TERMINAL
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The above information is true and accurate to the best of my
in
knowledge.----o� —.
DATE: E;/
"" Si Tla ure or person tiling
.S (mi t be ow r of the property)
1" NOTE: Plat Map of the property must be attached to this appli-
cation. Names of neighboring property owners must accompany this
application.
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DANIEL R. BARRETT*
�0 ELiZABETH ELAM
DAVID FIELDING
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�✓ Wm. CRAIG HARRIGER
DWAYNE D. HITT
SUSAN E. HUTCHISON
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*BOARD CERTIFIED PERSONAL INJURY TRIAL LAW
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**BOARD CERTIFIED CIVIL APPELLATE LAW
TEXAS BOARD OF LEGAL SPECIALIZATION
OF COUNSEL
SENATOR HUGH Q. PARMER
Mr. Joe Bentley
Southlake Zoning
214 Westwood
Southlake, Texas
FIELDING, BARRETT & TAYLOR
ATTORNEYS
300 WESTERN NATIONAL BUILDING
8851 HIGHWAY 80 WEST
FORT WORTH, TEXAS 76116-1969
January 8, 1990
Board of Adjustment
76092
Re: November 17th Letter Concerning Zoning
40 Ordinance Administration
im
Dear Joe:
TELEPHoNE No.(817) 560-0303
FAX (817) 560-3953
I would initially like to apologize for the delay in
responding to your letter of November 17, 1989. The letter was
received the day before the second council meeting in November.
I had not had an opportunity to fully review it and did not bring
it with me to the November council meeting to discuss it with the
Mayor or City Manager. I did not have the opportunity to discuss
I your request with the Mayor and Curtis Hawk until early December
at which time we received authorization to commence preparing an
answer.
on
I should explain for your benefit and the benefit of other
of
members of
the Boards of Adjustment that we are not authorized to
prepare opinion responses to information requests from individual
0
members of
board and commissions without prior authorization from
Ilr
the Mayor
or City Manager. This regulation is not designed to
limit your
access to legal assistance but to put some control upon
10
expenditures from the city budget. If each individual Board or
4
Commission
member was authorized to task the City Attorney's office
to provide
legal opinions or information on an at will basis there
would be
no single individual within city government who was
0
constantly
on top of the amount of legal expenses that the City was
incurring.
If we receive a request from an individual Board or
Commission
member we take that document to the City Manager and
determine
if the council wishes us to proceed in preparing a
response.
40 I might point out that the same rule does not apply to formal
requests from the entire Board or Commission. If the Zoning Board
of Adjustment should identify a legal questions that they desire
our office to review and if they present and approve such a
P
0
question at
a regular meeting
and ask the Board Secretary to
forward it to
our office we will
immediately address it. The rule
is different
for these types of
questions as they are made a part
14mo,
of the Board's
minute records
and are of public notice to the
coiinr+i 1 ,,_
staff T o takerthe t i rq to
explain this
review and approval
procedure so that the Board and
it's members
might understand
how to more efficiently secure
responses to
their questions or
concerns.
In terms of the broad contents of your letter I want to do a
thorough job in addressing your concerns. As you pointed out in
your concluding paragraph your thoughts were obviously somewhat
rambling as they followed your analysis of the entire variance
OR issue. To assist in responding to your concerns I would like to
i� structure my answer in the following format. I will initially make
some observations upon the role of the City Council and the role
of the Zoning Board of Adjustment in considering zoning items and
then I will turn to addressing the specific sub -questions raised
in your November 17, 1989 letter. I sincerely believe that if I
outline the theoretical distinctions between the two bodies it will
help in clarifying the issues that you have presented.
A. Authority for Zoning:
4P
The Constitution of the State of Texas provides that every
Home Rule Municipality has a general legislative grant of power
somewhat equivalent to that of the State Legislature. A Home Rule
City may establish laws, rules and regulations for the governance
and management of all land lying within the corporate limits of the
city and may establish certain development regulations for the
extraterritorial jurisdiction of the city. The limits on the
i police power authority of a home rule city are established only
when a controlling State Statute exists which constrains or limits
�. the powers of home rule communities.
The State of Texas has adopted the standard zoning enabling
.. act which was originally established as Article 1011, Subsections
a-j of Vernon's Annotated Texas Civil Statutes. In a recent
recodification of Texas law the provisions of Article 1011,
Subsections a-j have come Chapter 211 of the Local Government Code
in of the State of Texas. Home Rule Municipalities within the State
iW of Texas may create a zoning system and structure by ordinance only
in accordance with the provisions of Chapter 211 of the Local
40 Government Code. The City of Southlake has chosen to adopt a
system of zoning regulation by the adoption of local ordinances and
as your are aware has recently adopted a completely new zoning code
and map after extensive public hearings and a lengthy review
process.
The purpose of a Municipal Zoning Ordinance is to divide the
�A city into a variety of districts or zoning categories to be
reflected on a community zoning map. The text of the ordinance
contains definitions for each district or classification
�,, identifying appropriate land uses which may be undertaken within
@W
y
1k
that classification. In addition to establishing permitted uses
* within each district the text of the Zoning Ordinance usually
establishes certain ancillary regulations such as building height
restrictions, lot size requirements relating to width, depth, size
of r.P.gu0,- front:, rp-ar and siclevarc3a. establ xsbes -nff-ctrpc+t
parking requirements, establishes regulations governing the
erection and use of accessory buildings and contains miscellaneous
regulations relating to performance standards for noise, vibration,
odor, glare and other activities which are the natural results of
land use.
The Municipal Zoning Ordinance establishes regulations
concerning how amendments are made to the Municipal Zoning
Ordinance by textual change or map change. In conformance with the
provisions of state law, the Municipal Zoning Ordinance creates a
Zoning Board of Adjustment and establishes it's powers of review
+ for the purpose of granting variances, granting special exceptions
and making rulings upon interpretations of the ordinance made by
the Chief Zoning Administrator.
B. The Role of the City Council.
Under the provisions of both the State Zoning Enabling Act and
44 the Municipal Zoning Ordinance the City Council of the City of
Southlake is the body responsible for determining whether a
Municipal Zoning Ordinance and System is appropriate for the
community. In order to make this determination it is required to
engage in master planning efforts to identify appropriate future
land uses and land use relationships within the city. Once a
community has developed a Master Plan for it's growth and
development the council is then authorized to determine whether a
municipal zoning system will be implemented. The city council is
then required to conduct a series of public hearings to secure
.� citizen input on the contents of the text of the Municipal
im Ordinance and the allocation of districts or classifications on the
Municipal Zoning Map. The city council has absolute discretion and
ow authority to determine the number of districts, the requirements
placed upon land uses within each district or conditions precedent
IN to the allocation of districts and upon their placement on
different properties within the community. In order to discharge
0 this responsibility the city council is required to secure a
recommendation from it's duly appointed Planning & Zoning
Commission. Once the Planning & Zoning Commission has prepared a
recommendation on the text of an ordinance and on the map
allocating purposed districts or classifications to all property
within the city the city council then makes a final decision on
these matters.
C. The Role of the Zoning Board of Adjustment.
I1 Under the terms of the State Zoning Enabling Act and the
provisions of the Southlake Municipal Zoning Ordinance the Zoning
OM Board of Adjustment serves as an escape valve for the consideration
,r of specific individual site requests for relief from the specific
M
enforcement of the terms or interpretations of the Zoning Ordinance
/�* and map by city officials. The Zoning Board of Adjustment is
fir+ specifically authorized by state law to grant variances to the
technical requirements of the Municipal Zoning Ordinance. These
var. i.anr:egm-ay__ not involve, a change in land use or uses,
"Variances" are exemptions from technical site requirements such
as lot sizes, yard sizes, building heights and other similar
ancillary regulations.
The authority of the Zoning Board of Adjustment to grant
variances as defined by the State Statute and the Municipal Zoning
Ordinance keys around a finding of hardship. The variance power
is designed to allow an individual with a specific case or problem
to present evidence to the Zoning Board of Adjustment seeking
relief from the literal application of the ordinance. In order to
grant a variance the Zoning Board of Adjustment must make the
following findings:
1. The Board must determine that the piece of property
,qP involved is unique and is not configured the same as every other
lot or tract in the area. In this regard a variance was designed
for use where a piece of property lay in the midst of a large
subdivision with all lots being configured in a square or
rectangular fashion. After the subdivision has been partially
developed some outside event happens like a condemnation action by
the Highway Department for right-of-way for a new expressway. One
of the lots that had originally been configured for normal,
rectangular development has now been sliced in some type of
triangular manner where it is now physically impossible to get the
required front yards, side yards and year yards required by the
0, Municipal Zoning Ordinance. The lot or tract is no longer
configured in it's original form and is uniquely shaped when
compared to surrounding properties. The uniqueness of the shape
+�• or design makes it impossible to comply with the provisions of the
Zoning Ordinance.
2. In addition to showing that the parcel or tract is unique
and contains properties or attributes not common to other similarly
situated properties the applicant must also show that the need for
the variance has not been self created. An applicant may not come
before the Board and seek a variance to cure a problem that the
applicant himself created by prior development activity.
3. The applicant must further show that any hardship is not
financial alone. The fact that it will cost a great deal of money
to correct the problem is not sufficient grounds for the granting
of a variance if that is the only reason for which it is sought.
Financial hardship can be one of a number of reasons for which a
variance is granted.
4. Finally, the applicant must show that the literal
enforcement of the terms of the Zoning Ordinance will work a
hardship on his property denying him all reasonable use of the
property. The Board cannot and should not consider what other
n
go
ib
zoning categories the property might be placed in by council
action. The individual tract in question has a current zoning with
�+ certain identified permitted uses. The Board is simply to consider
those available uses and see if any other reasonable use of the
,property, l,e Ynade wi.+-H r tlp- cv; ct'; nrj zoning r'la si f ca* i n*1..
In order to grant a variance the Board of Adjustment must make
affirmative findings to all of the above identified criteria. As
a legal matter it is almost impossible to qualify for a variance
to a Municipal Zoning Ordinance. In a purely legal sense about one
out of every five hundred applications fully meets the test of the
Texas State Bar.
zr As a practical matter most Zoning Boards of Adjustment are
somewhat relaxed in their review of the variance tests. Most ZBA's
are willing to grant variances far more frequently that the
technical application the law would permit and generally require
only a showing of hardship and clear showing that the problem is
not the result of an intentional act on the part of the applicant.
The Zoning Board of Adjustment then seeks to ensure that the
variance granted would not result in a negative impact on
surrounding development or property owners.
Is this the correct technical approach? The answer is
obviously no in a legal sense. If the Board of overly liberal in
granting a variance is the variance legal? The answer to this
question is yes until challenged. Once the Zoning Board of
1W Adjusment moves to grant or deny a requested variance the action
of the Board of Adjustment stands unless it is challenged in a
court of competent jurisdiction within ten (10) days of the return
of the Boards decision. If the city council is unhappy with the
action of Zoning Board of Adjustment and feels that is has been
overly liberal it is fully empowered to sue its own Board of
Adjustment and seek to invalidate their action. Most of the early
i�
Zoning Board of Adjustment Law in Texas was made by the City of
Dallas suing the Dallas Zoning Board of Adjustment. For
approximately twenty years those two bodies couldn't even agree on
the time of day.
Most cities seem to reach an informal balance between the
literal application of the law and the need to provide some type
of logical and practical relief to individual property owners who
need some waiver of the technical zoning provisions. In many
communities it is a common practice for the Zoning Board of
Adjustment and the City Council to have an annual retreat or
workshop in which they discuss the philosophy of the city on how
tight the variance provisions are to be interpreted. A
philosophical consensus is reached and the variance provision is
used to the satisfaction of all concerned. I would never pretend
that that is the correct "legal" approach but it is the most
frequent practical approach to the variance issue.
The Zoning Board of Adjustment is also authorized to grant
special exceptions to the provisions of the Municipal Zoning
I1
E
Ordinance. The State Enabling Act does not provide any
�* preconditions to the granting of a special exception. A special
�rrr' exception is a specific waiver or "variance" to the normal
provisions of the ordinance. It can deal with a technical
snci.11 each. .as building him.ig_ht, side yards,_ front-
yards, rear yards, lot width or depth, industrial performance
standards dealing with noise, light, glare, odor, vibration, it can
deal with fence placement, landscaping or offstreet parking or
loading requirements. A special exception can include the
authorization of land or building uses which would not normally be
permissible within that district. Yes, it can actually give the
Zoning Board of Adjustment the authority to change land uses. The
single most important consideration in dealing with special
exceptions is recognizing that they must be set out in print in the
Zoning Ordinance. The Zoning Board of Adjustment does not get to
determine what constitutes a special exception. The city council,
in preparing the zoning ordinance, identifies those powers that it
wishes to specifically delegate to the Board of Adjustment as
special exceptions and must set them out in black and white in the
ordinance. The city council can attach specific conditions that
must be met before the Zoning Board of Adjustment can grant a
special exception. The city council is not delegating to the Board
of Adjustment the right to make final decisions on zoning or to
allocate land uses, because the city council has done that specific
act by designating it as a special exception. The city council has
simply given the Zoning Board of Adjustment the authority to
qW approve these changes when it considers the special exceptions to
rr► meet the standards set by the city council.
The granting of a special exception does not require a finding
of hardship. In the real world most items commonly requested as
variances should be set up to be presented as special exceptions.
They usually don't qualify as hardships under the technical
OR requirements of the statute and should be treated as exceptions
approved by the Board of Adjustment subject to conditions set out
in advance by the city council. The reason they are not treated
that way is it takes too much time and effort for the city council
to craft in advance an acceptable list of all of the exceptions
that would be permitted and to outline all of the appropriate
preconditions for their approval.
Finally, the Zoning Board of Adjustment is authorized to make
rulings on the correctness of the Zoning Administrators
interpretation of the zoning ordinance. Any party who is unhappy
with an interpretation by the Zoning Administrator is authorized
to appeal that decision to the Board of Adjustment for a ruling as
to correctness. Under the case law interpretating this provision
of the enabling act it has been determined that the Zoning
Administrator himself may seek a ruling from the Board of
Adjustment if he or she feels that a new area has been encountered
in which an interpretation is important. An argument can be made
that the State Legislature should have deleted this provision and
forced interpretations of the ordinance to be ruled upon by the
9P w.r city council that created the ordinance. However compelling that
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argument that was not the decision of the legislature. The
legislative history of the act would indicate that the Board of
Adjustment was selected as the interpretative body to reduce the
case load and work of the city council and to ensure review by an
pprgpxi_� 4.npellate body authorized to make case by case
interpretations.
The single most important philosophical distinction between
the role of the council and Board of Adjustment in dealing with
individual cases is related to the scale at which they operate.
The city council considers, debates, and adopts the Municipal
Zoning Ordinance and amendments to the ordinance that have city-
wide application. The city council considers all amendments to the
zoning map, changing the allocation of districts and uses on the
ground. Both of these activities relate to system -wide changes in
the zoning structure. The Zoning Board of Adjustment is a body
designed to consider individualized case -by -case questions and to
hold public hearings and evaluate impact solely on individual cases
in a relatively small area of the community. It is established as
a different body with different powers to create a minimum of
precedent and to cause the smallest possible disruption in the
overall scheme of zoning or land use regulation.
on D. Questions of November 17th.
iN
In your letter of November 17th, you seemed principally
qM concerned with a recent case in which the Zoning Board of
Adjustment had been asked to consider a variance to the minimum
acreage requirement necessary for a residential planned unit
development. In light of my earlier comments, I would like to
address the issue in what I hope will be a logically consistent
pattern.
OR When the City Council of the City of Southlake received the
recommendation of the Planning and Zoning Commission, held public
hearings, and after debate, adopted the new municipal zoning
ordinance, it created an array of land use districts or
classifications. One of the districts created was a planned unit
development district and a subcategory of that district was the
residential PUD district. The City Council established as a
condition precedent to the existence of that district a minimum
tract size of 50 acres. The City Council, acting by ordinance,
stated, "There will not be a residential planned unit development
RM district unless the minimum tract size is 50 acres." By
establishing this size as a specific district limitation, the
Council gave direction to the city staff that applications would
not be processed unless they met this minimum test. You might
! consider this the same as a requirement that before a zoning
application is considered, a fee must be paid. If the fee is not
paid, the case is not presented to the Council. The ordinance
requires that for certain zoning classifications, a site plan must
be submitted. If the site plan is not submitted, the case is not
presented to the Council. I could continue with the list, but I
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assume that you take my point.
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!r* In refusing to accept and process the PUD until a variance to
�r the minimum acreage requirement had been considered, the staff was
acting properly. The city council's prior ordinance enactment
stating-r-9m eabsnlilt4 fl nor_ of ROD at-res. Pstabli.shed a. c orOi.ti ors
precedent which must be satisfied in one of two manners before the
request placed upon the council agenda by the staff. A applicant
could produce a plan or application showing the existence of a
minimum of 50 acres or the staff could have the applicant secure
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a variance from this provision from the Zoning Board of Adjustment.
Remember, the staff is not authorized to vary or wave anything.
The city council has specifically given the Zoning Board of
Adjustment (in accordance with the Zoning Enabling Act) the
authority to vary specific ancillary provisions of the ordinance.
The 50-acre minimum is a specific ancillary condition.
To follow this reasoning to its logical conclusion, you must
identify the review authority of the council. The city council is
authorized to approve a planned unit development for any tract at
any location at any size under the provisions of the Zoning
Enabling Act. The council voluntarily chose, after public
hearings, an ordinance provision to put a cap at 50 acres. Once
the council chose to do this by its intentional act, it established
the threshold review point at which it would take jurisdiction for
the residential PUD cases. The city council was not delegating its
authority to the staff. The city council had made its decision
when it adopted the new zoning ordinance and set the specific
condition of review. If the applicant for the residential PUD in
question wanted to secure council review of the issue rather than
ZBA review of the issue, it could have requested the council to
consider an amendment to the municipal zoning ordinance,
specifically deleting the 50-acre minimum. The applicant had
apparently visited with council members and staff members and made
a determination that that type of proposal would not be favorably
received. The applicant then had the option of dropping the
request, acquiring additional acreage, or in the alternative, going
to the Zoning Board of Adjustment and seeking a one-time variance
to the minimum size requirement of the tract. To understand this
concept you must accept the fact that the staff is not denying an
application, the council has denied the application by setting
forth a yardstick against which all applications will be measured.
If you want to be placed on the agenda for residential PUD
evaluation, you must bring forward a plan and application
containing 50 acres. No 50 acres, no review.
You expressed some concerns about the procedural due process
position of the city if an applicant is prevented from presenting
his case to the council for final action. As I have outlined
above, that is simply not the case in this situation. An applicant
has the alternative of going to the city council and asking that
the master ordinance be revised to delete or alter the 50-acre
minimum requirement. The applicant in this case did not seek to
avail himself of this relief and, therefore, could not acquire
standing to come forward without more land or a variance. Any time
we evaluate development issues, it must always be remembered,
4w* development is not a right, it is a privilege. It is subject to
Vol the establishment of reasonable police power regulations providing
that they are procedurally fair in guaranteeing that all comparably
ci t,�atadr.i] i� d,aals_ arp treatp.cl in a n0a.11tira7.. innn:-di snr, jr1Dat,Qry
nature. All potential applicants for a residential PUD with less
than 50 acres of land are subject to the same choices and will be
accorded the same status. The existing regulatory system of
Southlake is therefore facially neutral in its procedural
application to these development proposals.
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You have also expressed concern that by applying for a
variance to the Zoning Board of Adjustment, an applicant might
preclude the city council from taking certain actions on a
subsequent zoning request. You expressed in some detail your
concern that a required finding for a variance was the fact that
a determination of reasonable use options for the property had to
be made. The Zoning Board of Adjustment was apparently concerned
that in determining whether any other reasonable use of land was
possible, it might be required to evaluate what other zoning
options were available for the tract. I would suggest to the Board
that in this instance, that question is both unnecessary and
improper. Always begin with the premise that each piece of
property has a current zoning category. The entire analysis of the
Zoning Board of Adjustment is always predicated on the existing
zone. If a requested variance is denied, does the property owner
retain any reasonable use of his property as it's currently zoned.
The Board of Adjustment is not authorized to speculate on what
other zonings might be appropriate, might be practical, or might
be subsequently granted by the city council. The property
currently has a specific zoning; that zoning category outlines
certain permitted uses. If the variance is not granted, does the
existing zoning allow the applicant any other reasonable uses. If
a finding is made that other reasonable uses are available,
variance is inappropriate.
If the Zoning Board of Adjustment should choose to grant the
variance, would that in some manner preclude the council from
exercising its absolute discretion in the zoning arena. The answer
in this specific case is, of course, no. The applicant on the
residential PUD tract was requesting a variance to the minimum size
requirement of 50 acres. If that request had been approved by the
Zoning Board of Adjustment, the city council would have had the
optiion of seeking a review of that decision by a district court
within ten (10) days. In the event that the city council chose not
to question the action of the Board and no other party sought
review, the case would have then been appropriate for submittal in
the normal zoning change process. When the case was presented
before the city council for its review, the council was still free
to grant or deny the residential PUD district. Zoning district
allocation is not a ministerial function. The city council is
authorized and expected to consider a wide array of issues in
determing the appropriateness of a specific classification. It is
to consider compliance or noncompliance with the community's master
plan, availability of transportation assets and utility
infrastructure, the holding capacity of the site in terms of its
AW environmental constraints, the creation of congestion, the
likelihood of increasing dangers of fire and explosion, the impact
on the at nr of a..1 r anti 1 i n�1,t 4-h- ba' arc i - ,- of e.en- i t i es I
the community, the maintenance or alteration in property values of
both the subject property and adjacent properties, the impacts on
the character of development in the area and on surrounding tracts
and neighborhoods, and the conformance of the proposal with long-
term community goals and objectives. The municipal zoning
ordinance does not require that the city council approve all
proposed PUDs where the site proposed is greater than 50 acres.
A residential PUD proposal can be submitted with a site containing
300 acres and the city council can deny the requested rezoning.
The granting of a variance to the minimum area requirement for
residential PUDs would simply have given the applicant standing
allowing the staff to have placed their application on the council
review agenda.
In the unlikely event that a Zoning Board of Adjustment did
begin to consider other available zoning options, districts, or
classifications in considering a variance proposal those
discussions would be absolutely void and meaningless in relation
to future council action. It would be an illegal act of the Board
of Adjustment and therefore without force and effect. The Zoning
Board of Adjustment may consider alternate land uses or zoning
classifications only when they are outlined as special exceptions
A, in the municipal zoning ordinance. The Board must evaluate each
d variance request only in the context of usage permitted in that
district. If the Board finds that the uses permitted in that
= district do not allow a reasonable use of the land without the
variance, the Board's only alternative is to grant the variance.
' It cannot change the zoning without a special exception.
I am belaboring the point, but your letter continuously
expressed concern over the implications of granting a variance to
► the minimum PUD area as constituting a taking of the discretionary
iAl authority of the council. Please remember that even if the Board
of Adjustment had granted a variance to the 50-acre minimum, the
city council could have looked at the tract and decided it was too
small and could have denied the proposed rezoning. The decision
of the Board of Adjustment to vary the minimum tract size would
"� only have been one of a number of factors which the council could
have considered in reaching its zoning decision. I hope that I
have adequately addressed your concerns in regard to the variance
issue. Please remember that throughout this entire case, the
battlefield (if you will) had been set forth by the city council
e�+ in ordinance form when it made an official determination that the
50-acre size minimum was the precedent condition to proceeding with
that type of zoning. So long as the staff is only enforcing those
conditions set out in the ordinance adopted by the council, then
the staff is not usurping the authority or discretion of the
council.
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In the closing portion of your letter, you did express some
^ concern about the voting composition of the Board of Adjustment in
+ti✓ reaching its formal decisions. The specific requirement for vote
composition is set out in Chapter 211.009 of the Local Government
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concurring vote of four members of the Board is necessary to
reverse an order, requirement, decision or determination of an
administrative official, to decide in favor of an applicant on a
matter in which the Board is required to pass under a zoning
ordinance or to authorize a variation from the terms of the zoning
ordinance. This indicates by inference that the Board is not
required to have a four -fifths vote to uphold a decision of the
Zoning Administrator or to act upon normal procedural business.
A Board of Adjustment is allowed to adopt it's own rules of
organization and operation under the authority granted by the
Zoning Enabling Act and the Municipal Zoning Ordinance. It is
entirely possible for the Board to rule on procedural matters and
routine business by a simple majority vote of it's members. Only
in the three areas set out Chapter 211.009 Subsection C is the
Board required to have a four/fifths concurring vote.
I hope I have adequately answered all of your questions. Your
November 17, 1989 letter was complex enough to make me feel that
I am bound to have missed some specific point or concern that you
might have. Please take a moment to let me know if I have not
adequately addressed any point of concern and I will make every
effort to ensure that your questions is more fully addressed in a
s
.✓ manner that will give you adequate assurance.
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Sincerely,
affle�
E. Allen Taylo , Jr.
City Attorney
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