1982-10-11
CITY OF SOUTHLAKF. TEXAS
W v, C '
MINUTES OF T'HE Regular ZONING
40 BOARD OF . ,ADJUSTMENTS-MEET-ING
x M tz~
v DATE: October 11,1982
M d z TIME: 7:30 p.m.
x' z PLACE: CITY OF SOUTHI.AKE, COUNCIL CHAMBERS
667 NORTH CARROLL AVENUE., SOUTHLAKF.,
0 0 TEXAS.
' NAML OF
WCOMMISS I(A1:R PACE: INDEX
1
W
BOARD MEMBERS: Wade Booker, Eleanor
Kasper, Fred Merrill, R.G. Lyford,
Bill Peck. Alternate: Carolyn Poe.
The meeting was called to order at
7:30 p.m. by Wade Booker, chairman.
CASE # 26. Request for variance made
by Clark East,.General Partner of the
Great Texas Development Company.
Property being in the Samuel Freeman
Survey, Abstract 525, better known as
Southlake Plaza Shopping Center.
Request is for zoning change to
Heavy Commercial Zoning District or
in the alternate to issue a Special
Use Permit for the Sale of Mixed
Beverages containing Alcohol for On-
Premises consumption. Public Hearing.
Chairman Booker refered to an opinion
from City Attorney, Bill Smith, which
Wig stated that in his opinion, the
action requested cannot be acted upon
by the Zoning Board of Adjustments.
The opinion is hereby attached to the
' minutes of this meeting.
Booker, agreeing with the opinion,
stated that their being no further
business, the me ting was adjourned.
W
City Secretary
M
w
/i
id
1
4
&t7
LEGAL OPINION
' SUBJECT: Power and Authority of Zoning Board of Adjustment to hear
an appeal of a rezoning denial and/or to grant a special use
exception permit for Aicholic Beverage sales in a District not zoned
for permits of that nature.
CONCLUSION: (1) The Zoning Board of Adjustment has no authority to
hear any appeal of a zoning decision of the City Council as no
authority by statute or Ordinance 261 is given to the Board of
Adjustment for such an appeal.
(2) The Zoning Board of Adjustment has no authority to
issue any special exception use permit under Ordinance 261. Further,
if a request for variance were filed, no variance or other permission
to sell Alcoholic Beverages in any district other than Heavy
Commercial.
OPINION: An Appeal has been taken by Great Texas Development -
Southlake from a decision of the City Council of the City of
Southlake denying a request of rezoning for a certain tract of land
from Light Commercial to Heavy Commercial. The attempted Appeal has
been made to the Zoning Board of Adjustment and a request has been
made that such Board either rezone the subject property to Heavy
Commercial or that a special use permit be issued for the sale of
Mixed Beverages for on premises comsumption at such location. The
first portion of the appeal, which is a direct appeal from a decision
of the City Council the City of Southlake, can be answered
~N... unequivocabiy that the Board of Adjustment has no authority to hear
an Appeal of any matter that is within the decision making and
legislative function of the City Council. The City Council of any
city is the legislative body for that city and is given the primary
authority for any action within the city. The various boards and
commissions that are created by statute and ordinance are created
40 for the purpose of having those boards and commissions review matters
either preliminarily to the hearing of such matter by the City
Council or they are to provide a means of Appeal from administrative
decisions which could otherwise both usurp the time of the City
Council and place the City Council in a position of having to
overturn a decision of an administrative officer who functions for
the City Council. All Appeals from City Council action are to
District Courts of the particular counties where the city is located.-
There can be no question of any possible power or authority of the
Zoning Board of Adjustment to hear any Appeal of a zoning matter that
■r has been ruled upon by the City Council as this type of process would
simply substitute the Zoning Board of Adjustment for the legislative
making function of the City'Council. The law cannot and does not
allow such to occur.
All power and authority of any Zoning Board of Adjustment comes
solely from two sources:"
(1) Article 1011g of the Texas Revised Civil Statutes
establishes the.right or power of the local legisla-
tive body (City Council) to provide for a Board of
Adjustment to operate for said city. A copy of Article
1011g has been attached to this Opinion for your re-
view as this is one of the only two sources of powers
and duties of any Board of Adjustment.
(2) All other powers of any Board of Adjustment must be
derived from the particular Zoning Ordinance which
establishes the.Board of Adjustment.
Article 1011g provides for Boards of Adjustment and specifically
provides that their decisions are to be in harmony with the general
purpose and intent of the particular Zoning ordinance that they are
to interpret and rule on and in accordance with any general or
specific rules contained in such Ordinance. A Zoning Board of
Adjustment is a governmental agency of the city. It is not a
legislative body, nor may it be legally authorized to exercise the
legislative powers on behalf of a city. Its functions are
administrative, factfinding and quasi-judicial in nature. (Quoting
63 Tex. Jur. 2d - Zoning Section 75).
rr
The statutes of the State of Texas (Article 10118) provide three
powers and or duties of a Zoning Bord of Adjustment. Those powers
and duties are:
(1) They hear and decide Appeals from administrative
decisions, rquirements, etc. Administrative re-
fers to particular city officials who are called
upon through the Zoning Ordinance to make decisions
or are given the power to make decisions under that
Ordinance. An aggrieved party who feels that such
official has wrongly decided their case may appeal
to the Zoning Board of Adjustment a review of that
decision. This does not involve any City Council
decisions.
(2) Such Board may hear and decide special exceptions
to the terms of the Ordinance upon which the Board
is required to pass under such Ordinance. This would
normally be true except that Ordinance 261 of the
City of Southlake does not provide any authority for
the Zoning Board of Adjustment to grant a special
• exception to such Ordinance for any use but rather,
reserves such decision making to the City Council.
(3) The Board may authorize upon Appeal in specific cases
such variance from the terms of the Ordinance as will
not be contrary to the public interest, where, owing to
NNW special conditions, a literal enforcement of the pro-
visions of the Ordinance will result in unnecessary
di hardship, and so that the spirit of the Ordinance shall
be observed and substantial justice done.
w
In discussing the powers of a Zoning Board of Adjustment, Texas
Jurisprudence 2d, which is like an encyclopedia for Texas attorneys
and a general legal reference work, provides in Section 77 under the
topic of Zoning in discussing the powers and duties of Zoning Boards
of Adjustment,
"The Board's powers are limited to those conferred on
it by statute. It has no legislative power. Thus,
though the Board has the power to grant special ex-
ceptions and to authorize variances from the zoning
regulations, it does not have the power to enact or
ammend Zoning Ordinances. That is `a legislative
function, and the Board is not and cannot legally be
vested with legislative power. Nor does the Board
have the power to materially alter the specific
intent and extent of the ordinance, except within
40 legal standards set up by the statute and Ordinance.
0 Such power would constitute an invalid delegation of
legislative authority. Similarly, the power to create
zoning districts and to prescribe regulations and uses
to be enforced therein is expressly conferred on the
local legislative body. That power cannot be exercised
by a Board of Adjustment under the guise of decisions
on apeal, exceptions, or variances."
~r.
Further, in speaking to the powers of the Boards of Adjustment
regarding variances and special exceptions, Tex. Jur. 2d states as
follows:
Boards' variance power is subject, however, to several "
statutory limitations. For example, under the terms of the
statute (Article 1011g) the Board may authorize only such
variances as will not be contrary to the public interest so
U that the spirit of the Zoning Ordinance will be observed and
substantial justice done. ..In addition, the variance must
be necessitated because of the existence of special condi-
tions that would make the literal enforcement of the ordinance
result in unnecessary hardship.
The general zoning statute empowers the Board of Adjustment
to make special exceptions to the terms of the Zoning Ordi-
nance, and to hear and decide special exceptions to the terms b
of the Ordinance on which the Board is required to pass under
that Ordinance. The power of the Board of Adjustment to make
special exceptions to the Zoning Ordinance is limited by the
ar statute to special exceptions that are in harmony with the
general purpose and intent of the Ordinance and that are in
accordance with the general and specific rules therein con-
tained. Thus, the power to permit special exceptions is
applicable only where the exception is specifically author-
ized by the terms of the Zoning Ordinance under considera-
tion. And any attempt on the part of the Board to grant
exceptions generally, without reference to authorization by
the Ordinance, is void.
w
The Zoning Ordinance of the City of Southlake, Ordinance 261,
does not anywhere provide any authority for the Zoning Board of
„ Adjustment to grant any special exceptions under such Ordinance.
Further, Section 13 of such Ordinance, which provides for the Board
' of Adjustment, specifically provides under Section 13.2 (1) as
follows:
"Under no circumstances shall the Board of Adjustment
grant a variance to allow a use not permissable under
the terms of this Ordinance in the district involved
or any use expressly or by implication prohibited by
the terms of this Ordinance"in the said district."
This provision of the Zoning Ordinance which must be obeyed by
4W the Zoning Board of Adjustment would prohibit granting of any
variance, or special use exception permit if such power existed, for
" the sale of Mixed Alcoholic Beverages for the consumption on premises
.r in any district other than Heavy Commercial since the zoning
Ordinance specifically limits such use to that particular district.
Am All uses allowed by any variance by the Board of Adjustment may be
do granted only in the district for which such use is allowed. The
Ordinance either expressly or by implication prohibits the sale of
Mixed Alcoholic Beverages for comsumption on premises in any district
other than Heavy Commercial. Further, a review of Section 13 of
Ordinance 261 definitely establishes that such Ordinance sets up only
two powers and duties of the Board of Adjustment for the City of
Southlake.such powers and duties being contained in Sections 13.2 (a)
and 13.24 (b). These are the administrative review and variance
granting authority referred to previously.
44 In addition to the above material, including the article
setting forth the establishment of Boards of Adjustment, Ordinance
261, and the references in Tex. Jur. 2d discussing the powers and
authority of Boards of Adjustment and their lack of any legislative
authority, there have been numerous cases decided by the Texas Courts
r of Appeal limiting the powers of Boards of Adjustment in matters
where there was an attempt to usur legislative authority. In these
cases there have been various guiselines established and decisions
made regarding exceptions, variances, etc. which were attempts at
rezoning in cities. The courts have consistently held that any
attempt, under the guise of a variance or exception by a Board of
Adjustment, to rezone a particular piece of property by allowing a
use totally different than could otherwise be allowed in that
particuilar district is void as an attempt to legislate. In the case
on Boehme Bakery v. City of San Angelo, 185 S.W. 2d 601 (1945) the
Austin our o Civil Appeals s a e as follows:
"It may be conceded that such Board (Adjustment) has no
dr power under the guise of an exception, to reclassify
property; nor to authorize initially a use thereof
contrary to the terms of a Zoning Ordinance. Such action
would not be an 'exception' within the meaning of the
statute nor of the Ordinance; but could be exercised
only by the legislative body of the city to which is
granted that exclusive power. "
Also, in the case of Gartner v. Board of Adjustment of the City
of San Antonio, 324 S.W. 2d 454__~1759TF a copy o which is attached
hereto for your reading, the Court of Civil Appeals for San Antonio,
in ruling that a Board of Adjustment did not have the authority to
grant the right for a business to kill chickens on the premises of a
kosher butcher shop located in a local retail zone, stated at page
455:
Article 1011g, Vernons Ann. Civ. Stats., grants to the
Board of Adjustment of a city its powers. Such Boards can
-grant 'special exceptions' and 'variances,' but here the
Board did neither, it simply permitted the carrying on of
40 a business in an "H" local retail district that could only
be permitted in an "I", "J", "k", or "L" district.
The Zoning Ordinance of the City of San Antonio did` not allow
the killing of chickens in the particular district where the
applicant's business was located and there was no procedure under the
Zoning Ordinance allowing a special exception for that particular use
in any other district other than certain other districts other than
the district involved. That case is very analogous to the case at
hand as applicant's business is located in a district where the use
air sought is not allowed and there is no provision whatsoever for either
the City Council, Zoning Board'of Adjustment or any other board or
commission to allow the requested use in a light Commercial District.
r The spirit and intent of the Zoning Ordinance is very clear that,
Mixed Alcoholic Beverages for on premises comsumption shall be
• allowed only,in Heavy Commercial districts. Although the above cases
set forth the point that I am making that the attempted Appeal in
this case is no more than a request for the Board of Adjustment to
legislate by either rezoning the tract in question or allowing a use
in the presently zoned district which is not permitted, and although
there are many other cases that have been decided on the question of
Zoning Boards of, Adjustment attempting to exercise legislative
powers, there are two other cases that have been quoted many times
and that very succinctly set forth the feelings of the courts in this
area. In the case of Texas Consol. Theatres, Inc., v. Pittillo, 204
S.W. 2d 396 (Waco - the court established somewhat of a
definition that has been quoted and cited by most subsequent cases.
In that particular case a movie theater operator desired to operate a
free automobile parking lot to the rear of its theater on a portion
of its premises which was zoned in a "first residential district"
,rr (which would be analogous to our "A-1" or "A-6" district, depending
on which way the scale operated in Waco) and the application for such
reguest was refused. The theater owner applied or appealed to the
Zoning Board of Adjustment and the application for such use was
granted. The particular zoning statute involved allowed "community
store use" for properties lying on a particular roadway to a depth of
100 feet. The theater owner owned a tract which was in excess of 100
feet deep and was simply attempting to use the rear portion of the
particular tract that it owned for the parking lot. The Board of
Adjustment had found that a variance was in order as the denial to
the theater owner of the right to use the land for a parking lot
would create an unnecessary hardship and was not contrary to the
general spirit and intent of the Zoning Ordinance. The Court in
holding that the Board of Adjustment had no authority to issue this
type of variance stated:
"If the Board, in the exercise of its discretionary powers
either to grant a special exception or to authorize a vari-
ance, was legally empowered to permit, as an entering wedge,
the use of more than one half of a city block in its first
residential district for a purpose prohibited in first,
second, and third residential districts, then we see no
valid reason why it would not also be empowered upon suc-
cessive applications to permit the use of one or more
blocks in any zoned districts for any lawful purpose,
provided only that it be satisfied from the evidence
presented at each successive hearing that the refusal
of such application would result in "unnecessary hard
ship" and the granting thereof would not in fact be
contrary to the "public interest Manifestly, the
continued exercise of such powers would eventually
enable the Board, like the slow but certain passing
of the particles of sand from one end of an hour-glass
err
r
i
n
to the other, to override and reverse completely both
the spirit and the letter of the entire Ordinance other
than the provisions thereof under which the Board was
created and its powers defined. We cannot assume such
adsurd result with the intention of the Legislature
passing the Zoning Statute, or the legislative body of
the City of Waco in adopting its ordinance.
If the Zoning Board. of Adjustment of the City of Southlake had
the power to grant an exception in the present case for the sale of
Mixed Alcoholic Beverages on premises in a district other than the
district in which such use is allowed, then such Board could
eventually allow such sales in any district in the city including
residential districts. As extreme as the example may be of allowing
Alcoholic Beverage sales in residential districts, the extremes must
be viewed in deciding what legal authority and powers any board or
commission has in any city. This is part of the primary reason that
the courts of this state have consistently decided that Boards of
Adjustment may not create the right for uses to exist in districts
where those uses are otherwise prohibited by the zoning ordinance in
40 question. Very clearly, Ordinance No. 261 restricts sales of mixed
alcoholic beveragess for consumption on premises to "Heavey
Commercial" Districts. There can be no other interpretation of the
spirit and intent of the specific Zoning Ordinance. Further, there
can be no question regarding any right of a Board of Adjustment to
rezone any district when a rezoning request has been denied by the
City Council. The Board of Adjustment has no authority at all to
rezone any district as this is a legislative function reserved to the
City Council.
One further case in which language is contained that is worthy
of consideration is the case of Board of Adjustment of City of San
A
ntonio v. Levinson 244 S.W. 2d 281 an Antonio our ppea s,
in is par icular case, in discussing the general powers of
a Board-of Adjustment the Court stated at page 283 as follows:
"The Board of Adjustment was delegated the power to grant
" a variance so long as it 'will not be contrary to the
public interest where, owing to special conditions a
literal enforcement of the provisions of this ordinance
s will result in unnecessary hardships, and so that the
spirit of this ordinance shall be observed and substan-
10 tial justice done.' In the exercise of that power to
40 enlarge upon permitted land uses, the Board possesses some
discretion which unless abused will prevail. We are not
40 here concerned with discretion, but power of the Board.
Appellee concedes that the Board did not abuse its discretion,
if this is such a case as called for its exercise.
Appellee urges that the Board exercised an undelegated
power in permitting a use which is prohibited. The Board
rrr admittedly has granted some discretion to aleviate land use
hardships, while at the other extreme we know that the Board
is powerless,to go so far as to legislate. Somewhere be-
tween these opposites, the Board's delegated administra-
tive powers cease and the municipality's legislative
powers commence That point of separation of powers means'
the difference between a valid and a void order. Discretion
to vary is not power to legislate. While the language
which grants discretion cannot be expressed in decimal
points, we do have some'guides that indicate the areas
which the Board of Adjustment may not transgress in the
absence of a clear delegation of powers, a Board's
efforts to change the nature of permitted land uses have
been held void. Under ordinances expressly prohibiting
certain uses, as in this case, courts have on many occasions
held void a Board's attempt to grant a variance permitting
such use."
One further case is worthy of mention herein. The case is Board
of Adjustment, City of San Antonio v. Willie, 511 S.W. 2d, -3TI
7 , in which the court e that a variance is authorized where a
zoning ordinance does not permit any reasonable use of the lot, and
is not authorized simply where the lot or
property in question needs
r
a variance to accommodate the highest and best use of the property.
In the present case the land in question define'Eely can and is being
used. The owner, or in reality the lessee, desires what it considers
to be a higher and better use for the property. Its definition of
`p higher and better use is that more money can be made in the operation
of a restaurant at that location that,can sell Alcoholic Beverages
than can be made from a restaurant that must survive without those
sales. The lessee leased this property knowing the zoning status
that existed. If there is any hardship, it was surely created by the
lessee and not by the land itself. If the lessee desires to operate
a restaurant that can sell Mixed Alcoholic Beverages for consumption
on premises it should seek out and select a Heavy Commercial zoning
area for such purpose or it should request the rezoning of any other
land for such use through the appropriate legislative authority
which is the City Council.
The appropriate action of the Zoning Board of Adjustment in this
matter is to render a decision immediately prior to the start of its
Hearing or immediately thereafter that it has no power or authority
to rezone land or to permit a use in a district where such use is not
permitted in Ordinance 261. If these are the only matters to be
submitted to the Zoning Board of Adjustment then no decision should
be rendered other than a decision of no authority to act. Also, in
the event that the Zoning Board of Adjustment should decide that it
does have the authority and power to act in this matter, the City
Council has the authority to appeal any such decision as being void.
Such appeal would be to a District Court of Tarrant County, Texas.
x If the Zoning Board of Adjustment desires any further
, information such will be provided, including copies of any of the
cases quoted from above or any other cases on powers of Zoning Boards
of Adjustment.
WILLIAM H. SMITH
City Attorney
tow
..r
r~r
f= T
~ Tcz. 324 SOUTH WESTERN REPORTER, 2d SERIES
'i_ t
reference to the understanding of the thorized, either by provisions of statute or
parties, even though entered killing and
pursuant by zoning ordinance of City of San Antonio. l seed 125 cl
to stipulation. It must be read as an Vernon's Ann.Civ.St, art. 1011g. taken b L
entirety, and if, taken as a whole and by
construed according to well-known 2• Municipal Corporations 0=621.17 order to tl
~ rules, it is unambiguous, no room is County. TI
left for interpretation." That prohibiting killing of chickens on cision of tl
premises of kosher butcher shop would of City of
The judgment of the trial court is re- work hardship not only upon operator of merit Leo
versed and here rendered that appellees such butcher shop but also upon persons of peal.
take nothing. Jewish faith, who were required to eat only '
kosher meats, was matter that might be - the act the act o
f
s presented to proper legislative body of of
w City of San Antonio but granting t]
o S YET tlYMeE1t SYSTEM Adjustment, , nit to Board of dressing o
6 r which could only carry out chickens a
provisions of city zoning ordinance and
exercise such powers as were Zone was
given to it
by statute. Vernon's Ann.Civ.St. art. 1011g, Jack Zr
Leo GARTNER - ? butcher sh(
Appellant, 3. Municipal Corporations 0-601(23) Main Ave.
V. Neither continuance of nonconforming sued to ktl
BOARD OF ADJUSTMENT OF CITY OF use after zoning ordinance became effective to exceed
SAN ANTONIO, Texas, Appellee. nor use in defiance of ordinance could re- kens per
No. 13457. peal zoning ordinance. chickens u
Jewish die
Court of Civil Appeals of Texas s ahem as kc
J
San Antonio. 1 that the cl
Maverick & Tynan, Arthur Al. Gochman, under the
Rlay 6, 1957. San Antonio, for appellant.
Rehearing Denied June 3, 1953. r
• 3 and then t.
- : Carlos C. Cadena, Fred 11. Sullivan, J. ed by the
Sam Levey, San Antonio, for appellee. a these laws
Zoning case. The 37th. District Court, cannot sell
Bexar County, Eugene C. Williams, J., af- W. O. MURRAY, Chief Justice. People of
firmed decision of Zoning Board of Ad- their religi
' justment, and an appeal was taken. The This suit involves the validity of an
` order of the Zonin Board of Ad a is readily
rr Court of Civil Appeals, W. O. Murray C. g j stment great cone
J., held that action of Board in granting of the City of San Antonio. On July 22, have the cl
( permit for killing of chickens on premises 1958' Jack 7nilek applied to the City of
San Antonio for a permit to guild a com- where they
of kosher botcher shop located in local re- to see they
tail zone was illegal and not authorized, ei- mercial building to be used as a butcher
shop, with the incidental use of killing for thems(
ther by provisions of statute or by zoning a ap- been com '
ordinance of City of San Antonio. Proximately fifty to seventy-five chickens
+r per week, on Lot 12, Block 18, New City The zoni
Jud;ment reversed and order of Board Block 1747, bearing the post office address p
set aside and declared void. Antonio (
of 1716 North Blain Avenue. The City rf an "H" zot
Engineer denied the permit on the ground = provided it
that such property was zoned as "H" Lo-
cal Retail District in which the killin- ' . 3
•r Action of San Antonio zoning board storing and dressing "Seca t
in granting permit for killing of chickens on allowed. An appeal ' of chickens was not tail distr:
premises of kosher butcher shoP a located in in- Board of Adj dj wasustment, taken-to which the Board
oard "In th(
local retail zone was illegal and not au- after a hearing granted a permit "for the
tricts, n(
1
ff
GARTNER v. BOARD OF ADJUSTMENT OF SAN ANTONIO Tea. 455
Cite as 324 S.w.24 454
>fmatnte or killing and dressing of chickens not to ex- be used, and no building shall beerect-
aAntonio, ceed 125 chickens a week." An appeal was ed or structurally altered which is
taken by Leo Gartner and others from this arranged or- designed to be used for
order to the 37th District Court of Bexar other than one or more of the follow-
A',
County. The District Court affirmed the de- ing uses:
clfl~kens on cision of the Zoning Board of Adjustment
.hop would of City of San Antonio, and from that judg-
,ol' ator of went Leo Gartner has prosecuted this ap- ,~(8) Retail store, * *
Wsons of peal. * * (10) Any use not included
to eat only Appellant presents the contention that in any other class, provided such use
yt Might be the act of the Board of Adjustment in is not noxious or offensive by reason
le ody of granting the permit "for the killing and of the emission of odor, dust, smoke,
~loard of dressing of chickens not to exceed 125 gas, fumes, noise or vibration, provid-
' carry out chickens a week" in an "H" Local Retail ed further, that no kind of manufac-
,n "ice and Zone was illegal. ture or treatment shall be permitted in
;inn to it the F, G and H local retail districts,
• art. 1011g. Jack Znilek desired to run a kosher other than the manufacture or treat-
butcher shop or meat market at 1716 North ment of products clearly incidental to
{2 Alain Ave., and in that connection he de- the conduct of a retail business con-
I Atforming sired to kill and dress on the premises not ducted on the premises."
ie effective to exceed from fifty to seventy-five chic-
~uld re- kens per week. He wanted to kill these Under the provisions of Sec. 64-35(9.1),
chickens under strict compliance with the "Poultry killing and dressing, and storage -
Jewish dietary law so that he could sell of live poultry, where completely enclosed
+ them as kosher meat. This would require within a building," is permitted in an "I"
that the chickens be killed by a "shochet" business district, and in "J" and "K" com-
Grrrchman, under the supervision of a Jewish Rabbi, mercial districts, and also in "L" first
and then taken care in the manner provid manufacturing district, under the provi-
' u van, J. ed by the Jewish dietary laws. Unless sions of Sec. 64-36(33).
e. these laws are strictly complied with he
cannot sell such chickens as kosher meat. (1J Art. 1011g, Vernon's Ann.Civ.
e*~ People of the Jewish faith are required by Stats., grants to the Board of Adjustment
their religion to eat only kosher meat. It of a Home Rule City its powers. Such
itllwof an + is readily understood why it would be a Boards can grant "special exceptions" and
-Ijustment great convenience and very desirable to "variances," but here the Board did nei-
_i' ly 22, have the chickens killed upon the premises ther, it simply permitted the carrying on
'ity of 1 ` where they are sold. Some customers want of a business in an "H" local retail district i
d a com- to see them killed so that they may know that could only be permitted in an "I", "J"
iAutcher for themselves that the Jewish law has "K" or "L" district. Sec. 64-34(10) au-
'i °g ap- been complied with. thorizes the Board to permit a retail store `
Mickens to carry on the manufacture or treatment
ew City The zoning ordinance of the City of San of products clearly incidental to the con- o"
ddress Antonio prohibits the use of buildings to duct of a retail business, provided such use a
row City an "H" zone for all purposes not expressly is not included in any other class. The
ground provided in the ordinance, which reads in killing and dressing and storage of live
Lo- part as follows: poultry is included in other classes, under
illing, the provisions of Section 64-35(9.1) and
dill Sec. 64-34. F, G and II local re
was not 64-36(33). The action of the Board in
:he Zon- tail districts.
permitting the killing of chickens in an
i"board "In the F, G and H local retail dis- "H" district, which is not permitted in
'AWr the tricts, no building or premises shall such district but required to be conducted
T :
- Fem. -v.{F. -
r 4 60
A
456 Tea. 324 SOUTH WESTERN REPORTER, 2d SERIES
in other districts of lower classes, was Shop or market is the usual method
clearly illegal and not authorized either by of conducting a poultry market. To w
the provisions of Art. 10118, supra, or the allow such a practice would run con- - i
' zoning ordinance of the City of San An- trary to the intent and purpose of the
c tonio. Board of Adjustment v. Levinson, ordinance. In our opinion the ord'- x
Tex.Civ.App., 244 S.W.2d 281; Board of 1
nance was designed to prevent such a
Adjustment v. Stovall, Tex.Civ.App., 218 practice. We therefore, hold the ordi
t ,t S.W.2d 286; Harrington v. Board of Ad- nance constitutional. We also hold
e justment, Tex.Civ.App., 124 S.W.2d 401. that the killing and defeathering is not
- In Fass v. City of Highland Park, 321 an incidental and integral part of the
Mich. 156, 32 1N'.W.2d 375, 377, the Court operation of a poultry market, espe-
1 said: cially where the ordinance provides ta:K.
that this activity should be confined
"There can be little doubt that the to another zone."
killing, dressing and sale of live poul-,;
t try is a subject upon which a 1 ~2j Appellees conten
s egisla- d that to pro-
c tive body has authority to legislate, hibit the killing of chickens on the prem-
It is not unreasonable or arbitrary to ises of a kosher butcher shop will work
confine this activity to a certain zone a hardship not only upon the operator of
within the corporate limits of a city. such a butcher shop but also upon persons z
Such an ordinance has a distinct rela- of the Jewish faith, who are required to
tion to public health and in our opin- eat only kosher meats. This is a matter;
ion it valid and health an ea that might be resented
ble. P to the proper
legislative body of the City, but not to
"Plaintiffs also urge that the killing the Board of Adjustment, which can only
u e -
and defeathering of poultry is an in- carry out the provisions of th
City Zon
tegral part of the operation of a small ing ordinance and exercise such powers `
ei retail live poultry market and, there- as are given to it by Art. 10118, supra.
fore, a permitted use in a B-2 district. fir*, It
e 3
"It should be noted that the killing, ] Appellee Jack Znilek contends that
ty defeathering and dressin of there are places in Zone H
g poultry "where chick-
I is permitted in a `C' or commercial ens are being killed and dressed. These
district. It clearl are either non-conforming businesses which
y appears that it was
the purpose and intent of the framers were operating before the zoning ordinance
d of the ordinance to confine such activi- was enacted, or they are being carried on
ty to a district other than where plain- in defiance of such ordinace, but these~*,
i1 tiffs' poultry market is now located, facts do not repeal the city zoning ordi-
c nance. Hill v. Board of Ad
It appears that between May 1, 1946, justment of
and Alay 1, 1947, there were 104 places City of Castle Hills, Tex.Civ.App., 301 S,
in the city of Highland Park licensed W.2d 490, error refused.
to sell meat all of which sold meat and The judgment of the trial court is re h~
wr dressed poultry that was killed in an- versed and the order of the Board of Ad-
other place. Under the record in this justment of the City of San Antonio here
Rim
case it cannot be said the killing of involved is set aside and declared void as
poultry and sale of same in the same being illegal. * t
k
{
r
4`H v
$kl
WIN!
VMS Title 28 Title 28 CITIES, TOWNS AND VILLAGES Art. 1011g
~3"",risdictlon be- or make alterations or repairs to existing Where city Imposed temporary zoning in
r without re- structures. Town of Renner v. Wiley newly annexed area but did not comply
rom planning (CIv.App•1970) 468 s.W.24 616. with statutory zoning notice and hearing
it public notice and City zoning ordinance was invalid be. requirement, and for nine years thereafter
; center would be cause of Its failure to provide for zoning did not initiate proceedings to ,enact per-
;e*cking ordinance commission, and such defeat was not cured manent zoning plans for annexed area,
u prejudiced by by validating act (art. 874d-18). Coffee temporary zoning classification imposed on
of notice or of City V. Thompson (CIv.App.1978) 636 S.W. property annexed was Invalid. Haynes v.
sport of city plan- 2d 758, ref. n. r. e. City of Quanah (Civ.ADp•1980) 610 S.W.2d
Odway Protective Requirement is not that amendment by 942, rot. n. r. e.
aqWIv.ADp-1977) 662 city council to zoning ordinance have se-
ts 26, rot. n. r. e. tually been discussed before ei Y. Zoning changes
s d b y o to an agency
sing and zoutng commission, but that opportunity planning eThe City Plan Commission
O1diAaACe was not Mty was at- Invested by law with th duty of hearing ap-
forded for it to have been. Midway Pro- pllcatlons for zoning changes and of making
nee was Identical to tectivO League v. City of Dallas (CIv.ADp. recommendations thereon to the city coun-
holssion in a pre- 1977) 662 s.W.3d 170. 7 A.L.B. 4th 786. cil. and an objection filed with the City
)1 Wtants. Conway ref. n. r. e.
e (CIv.ADD.1979) Generally speaking, zoning ordinances, the city which cis the bgoverning
:.e., appeal dls- both original and amendatory, are pre-
d U.S. body. M. 63 U10d• sumed to be valid; consequently, extraor- App. 1963) 3 848 88 Dtl s v. .W.td Bill G 804. . yet. rat. Inc. (Civ.
n. r. e.
dinary burden rests on party attacking the Trial court had no authority to restrain
ordinance to show that, no conclusive or home rule city's planning and zoning corn-
even controversial or issuable facts or con- mission from exercising its legislative func-
It Id recorded on ditions exist which would authorise city to tlon of holding public hearings on advisa-
be in office of, exercise Its discretion. Ttppett v. City of blllty of zonl%g change. City of Farmers
',Wed Village of Hil- Pharr (Civ.App.1880) 600 '$•Wfd 961, re- Branch v. Hawnco, Inc. (C1v.App.1888) 436
Village at 888, versed on other grounds 818 6.W.2d 173. S.W.2d 288, rot. n. r. e.
L I A) s 403 S.W.2d
which was grade- Art. 1011g. Board of adjustment
mung ict ~ Ce sin (a) Such local legislative body may provide for the appointment of a
r
was euttlelenur Board of Adjustment, and in the regulations and restrictions adopted pur-
atied in evidence suant to the authority of this Act may provide that the said Board of Ad-
ty of 1994 ordinance. justment may, in appropriate cases and subject to appropriate conditions
a '"al , which was corn- and safeguards, make Special exceptions to the terms of the ordinance in sting or 96 page. harmony with its general purpose and intent and in accordance with gen-
3r 'thereto. Which eral or specific rules therein contained.
r14;_,Wprovided rules (b) The Board of Adjustment shall consist of five (5) members each
ryt DOLrd of adjust- to be appointed for a term of two (2) years and removable for cause by
e , which provided the a~r►Ces previously appointing authority upon written charges and after public hearing.
tW with ordinance Vacancies shall be filled for the unexpired term of any member whose term
at of such conflict becomes vacant. Provided, however, that the governing body of any city
N portion of s
should continue may, by charter provision or ordinance, provide for the a
four (4) alternate members of the Board of Adjustment whooshalle serve
defined noncom- in the absence of one or more regular members when requested to do so
ad certain pre-exist- by the mayor or city manager, as the case may be. All cases to be heard
4% lot requirements by the Board of Adjustment will always be heard by a minimum number
/cientkr complete of four (4) members. These alternate members, when appointed, shall
,,ning ordinance did serve for the same period as the regular members and any vacancies shall
m or by whom plan be filled in the same manner and shall be subject to removal as the regu
,fig proposed son- lar members.
xn
igmumd iubmi tt"mt~~ (c) The Board shall adopt rules in accordance with the provisions of
anna signed by chal,- any ordinance adopted pursuant to this Act. Meetings of the Board shall
'amission was valid. be held at the cap of the chairman and at such other times as the Board
t14Wp•1988) 409 B.W. may determine. Such chairmen, or in his absence the acting chairman,
may administer oaths and compel the attendance of witnesses. All meet-
gftdinance of town ings of the Board shall be open to the public. The Board shall keep min-
failed to lay down a utes of its proceedings, showing the vote of each q
to follow in granting member upon each lies-
Ia*Rfor Minding per- tion, or, if absent or failing to vote, indicating such fact, and shall keep
y _vided that town records of its examillations and other official actions, all of which shall be
hW grant or reject immediately filed in the office of the Board and shall be a public record.
4f permit within 16
provided that appit- (d) Appeals to the Board 'of Adjustment may be taken by any person
I LJWwn secretary for aggrieved or by any officer, department, board, or bureau of the munici-
t ct a new building pality affected by any decision of the administrative officer. Such &p-
187
e>rr
1 .
Arta 1 0 11 g CITIES, TOWNS AND VILLAGES Title 28 Title 28
• ate. ! peal shall be taken within a reasonable time, as provided by the rules of
! the Board, by filing with the officer from whom the appeal is taken and (l) The Bo
original papers.
with the Board of Adjustment a notice of appeal specifying the grounds tified or sworn
- thereof. The officer from whom the appeal is taken shall forthwith trans-
9w called for by st
mit to the Board all the papers constituting the record upon which the
~ facts as may b
} action appealed from was taken. cision appealed
(e) An appeal stays all proceedings in furtherance of the action ap- (m) If, upi
pealed from, unless the officer from whom the appeal is taken certifies is necessary fox
to the Board of Adjustment after the notice of appeal shall have been filed
u
rr - with him that by reason of facts stated in the certificate a stay would, or appoint a same to the ut orel
in his opinion, cause imminent peril to life or,property. In such case pro-
ceedings shall not be stayed otherwise than by a restraining order which shall constitute
may be granted by the Board of Adjustment or by a court of record on the court shall
40 application on notice to the officer from whom the appeal is taken and lY, or may tnodii
on due cause shown. (n) Costa
ae (f) The Board of Adjustment shall fix a reasonable time for the hear- pear to the cou
ing of the appeal, give public notice thereof, as well as due notice to the with malice in n
parties in interest, and decide the same within a reasonable time. Upon (o) Repealer .
the hearing any party may appear in person or by agent or by attorney. Aug. 81,, 1981.
(g) The Board of,Adjuatment shall have the following. powers: Amended by At;
L To hear and decide appeals where it is alleged there is error in Law Review Comm
any order, requirement, decision, or determination made by an administra- Judiotai review
tive official in the enforcement of this Act or of any ordinance adopted in Tex". David ii
pursuant thereto. Rev. t{ (1901), ,
Rezoning: shout i'
2. To hear and decide special exceptions to the terms of the ordi- dices functions it,
M nance upon: which such Board is required to pass under such ordinance. for 1..9ev. 409 (1970
3. To authorize upon appeal in specific cases such variance from standing to app i
the terms of the ordinance as will not be contrary to the public interest, atone in Tax"
' Job C. santord, al
where, owing to special conditions, a literal enforcement of the provisions substantial avid
of the ordinance will result in unnecessary hardship, and so that the Thotnas M. 1Rea io,
spirit of the ordinance shall be observed and substantial justice done. 999 (1969)• =1
(h) In exercising the above-mentioned powers such Board may, in
i conformity with the provisions of this Act, reverse or affirm, wholly •ayylegeata,
irr ` or partly, or may modify the order, requirement, decision or determination costs 92
} appealed from and make such order, requirement, decision or determina- Discretion of court ;
tion as ought to be made, and to that end shall have all the powers of Findings of board
,
the officer from whom the a Injunction 131
Ppeal in taken. Mwang• 29
,.a (i) The concurring vote of four members of the Board shall be Remedios generalyI
necessary to reverse any order, requirement, decision or determination
*m - of any such administrative official, or to decide in favor of the applicant L in general
on any matter upon which it is required to pass under any such ordinance, Legislature may r
Ass or to effect any variation in such ordinance. ndyprovi nei
M exercise doles:
(j) Any person or persons, jointly or severally, aggrieved by any as it sae. nL' 1,,, f, • decision of the Board of Adjustment, or any taxpayer, or any officer, (Civ.App.1966) 606 i,
department, board or bureau of the municipality, may present to a court This arttot* wm
" of record a petition duly verified, setting forth that such decision is of aalu■tumt of
illegal, in whole or in part, specifying the grounds of the illegality. Such authority h
on petition shall be presented to the court- within ten (10) days after the hibit boards fu.
filing of the decision in the office of the Board. matter. Initially i i
city councu. wbt Of
j (k) Upon presentation of such petition the court may allow a writ ngP.i9rt) Rio sees,'
of certiorari directed to the Board of Adjustment to review such decision Delegation of &I'.
•a of the Board of Adjustment and shall prescribe therein the time within air to its board ,
which a return" thereto must be made aud'served upon the relator's at- non's and a t•etn$ oo0w torney, which shall not be less than ten"(10) days and may be extended ex•i..~ tpsyap
by the court. The allowance of the writ shall not stay proceedings upon to awt in which;
the decision appealed from, but the court may, on application, on notice live relief and wrt
city engineer to t
aw to the Board and on due cause shown, grant &-restraining order. par oi a bmwtng It
i
t .
~.'S+ i' ~~.'r'♦a.G1.;,s',0.+h,,.'~rµe{nlw":i:`M~,„~T'. :t.+H.1 ~`4+:pw N.., a.
eel
Title 28 Title 28 CITIES. TOWNS AND VILLAGES Art. 1011g
Note 8
b9wthe rules of (1) The Board of Adjustment shall not be required to return the
al is taken and original papers acted upon by it, but it shall be sufficient to return cer-
aWthe grounds tified or sworn copies thereof or of such portions thereof as may be
o hwith trans- called for by such writ. The return shall concisely set forth such other
lj which the facts as may be pertinent and material to show the grounds of the de-
cision appealed from and shall be verified.
' Oke action ap- (m) If, upon the hearing, it shall appear to the court that testimony
1 en certifies is necessary for the proper disposition of the matter, it may take evidence
Me been filed or appoint a referee to take such evidence as it may direct and report the
a stay would, same to the court with his findings of fact and conclusions of law, which
aRch case pro- shall constitute a part of the proceedings upon which the determination of
'n order which the court shall be made. The court may reverse or affirm wholly or part-
rKf record on ly, or may modify the decision brought up for review.
11 is taken and (n) Costs shall not be allowed against the Board unless it shall ap-
nfor the hear- pear to the court that it acted with gross negligence, or in bad faith, or
lltlotice to the with malice in making the decision appealed from. t
)le time. Upon (o) Repealed by Acts 1981, 67th Leg., p. 2646= ch. 707, § 4(64), eff.
•+w attorney. Aug. 81, 1981.
py~owers• Amended by Acts 1971, 62nd'Leg., p. 2386, ch. 742, § 1, eff. June 8, 1971.
1Cre is error in Low Review Commentaries refusing to dismiss part of suit prematurely
all' administra- Judicial review of administrative ordarp pled was harmless. in that trial court's
imence adopted In Texas. David M. Guinn, 39 Baylor L, Judgment limited to constitutional Issues
Rev. 34 (1911). was valid if supported by the record. Ad-
Rezoning: Should It be lesl"tIV* or Ju- cock v. King (Civ.App.1976) 690 S.W.id 4111.
ltd' of the ordi- dlcial function! Jerry L. Barris. 31 Say- In suit brought by city for mandatory
In- for L.Rev. 409 (1979). Junction compelling removal or lowering of
riordi from Standing to appeal administrative deci advertising sign erected In violation of city
lions In Texas. Franklin S. spears: and airport soning ordinance, trial court did not
blic interest, Job C. Sanford. 88 Baylor .Rev. 916 (1981). 'have power concurrent with that of board
1<. provisions Substantial evidence review In Texas. of adjustment to Issue variances. despite
nip u that the Thomas M. Reavley, 23 Southwestern L. J. fact that, on appeal from board of adjust-
230 done. 989 (1969). ment. court could have determined inde-
pendently whether exception or variance
s lard may, in was appropriate, and thus could not permit
Slfirm, wholly supplementary Index to XateS advertising sign to remain as a variance to
r determination Costs 22 7 airport soning ordinance. City of Dallas v.
nor determina- Discretion of court, review 21.6 G&ochter (CIv.App.1976) 694 S.W.2d 400.
ie powers of Findings of board $4 error dismissed.
Injunction 13.6 where undisputed testimony established
Meetings 23 that building fronted on highway and that
shall be Remedies generally 16.a wall of building which did face eastern
Board
' eter shall be street was solid wall without any doors or
windows, property was subject to 60-foot
)::he applicant 2. In general setback requirement for highway despite
such ordinance, Legislature may put such restrictions on owner's contention that his building
and provide manner in which munlelpalltles "fronted" on eastern street. Reiter v. City
014 may exercise delegation of zoning authority of Keane (CIv.App.1980) 401 S.W.9d 647,
g eved by any as It sees fit. Lawton 'v. City of Austin certiorari denied 101 S.Ct. 8118.
al ll any officer, (CIv.App.1966) 404 S.W.96 649, rat a. n a. a Powers of board In general
;sent to a court Thin article which provide that poardr primary jurisdiction of city board of ad-
of adjustment of home-rule cities Shall justment to act on grant of spacial excep-
uib is have authority "to hear and decide all- tlon was terminated when action wap duly
17gality. Such peal." sranta authority and does act pro- appealed to district court. Metzger v.
Wye after the hibit boards of adjustment trots. hearing City of San Antonio (CIv.App.1966) 884
matters Initially 7t sm4iod. +qoh • right 4y 8.W.3d 901, Wilito L•+flow a writ Appp.ln4u) 51f e Sd 344, 4 Ot Pau" (CIT. ea~r4 of adJwtri»nt, In srantlns aoaing
& VarianiM. slip a■ a 'quasi-Judiclal body,
iv uch decision Delegation of Wtborlty from'pomaatilo sad, having no statutory power to legislate,
time within city to Its board of adjustment to hdtww any provision of municipal ordinance that a
hear and detonalue queotiona' slating to undertake to confer legislative functions
he relater's at- nonconforming use of property was a valid on such board would be invalid as consti
a be extended exercise of city's police' power: Id. Latins unlawful - delegation of legislative
c edings upon In suit In wblch plaintiff sought injure- powers. Swain v. Board of Adjustment of
inn, On AOt1Ce tlve relief and writ of mandamus to owapsl City of IIniver Ity Park (CIv.App.1M) M
city engineer to Issue permit to sibw're- S.W.3d 787. rot. a. r. r.; certiorari denied fo
der. pair of a building damaged by yr, error' in S.Ct. I 890 u s. 977.34 L.F.d.9d 466, re.
. 18Y
ws