Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
JIM MATTOX May 19. 1986
Attorney General
Supreme Court Building
Rouorable Kent A. C,aperton Opinion No. JM-493
P. 0. Box 12548
Auslln. TX. 78711. 2548 Chairman
5121475-2501 Committee ou Criminal Justice Re: Whether a city council, a
Telex 910/874.1367 Texas State Senate planning conmission, or a zoning
Telecopier 51214750266 P. 0. Box 12068 board of adjuscmenr is author-
Austin, Texas 78711 ized to grant specific “Se
714 Jackson. Suite 706
permits In a hone-rule city
Dallas, TX. 75202.45OS
2141742.8944 Dear Senator Caperton:
4624 Alberta Ave.. Suite 160
You inquire z,bout the zoning functions and powers of the city
El Paso. TX. 79905.2793 councI1, the plaaning aad soaiug commission. and the zoning board of
9151533~3484 adjustment in hone.-rule cities and which entity may approve and
disapprove applicatioasKfor exceptions, variances, and “specific use
permits.” The state’s general zoning statute provides the procedures
1001 Texas. Suite 700
by which special exceptions aad variances are granted by boards of
Houston. TX. 77002.3111
71312235886
adjustment, but the statute does not speak to the issuaace of
“specific use perxits.” Which entity nay issue “specific use permits”
depends on whether the permits coastltute amendments to the zoning
806 Broadway. Suite 312 ordinance.
Lubbock, TX: 79401.3479
Mw747.5238
The zoning ocdiaances of cities are aa exercise of police power
delegated to cities by the state for protection of health, safety,
4309 N. Tenth. Suite S conf ort , and welfare of the public. The authority of a city to zons
McAllen. TX. iSSOl. is governed by ar.ticles lOlla-IOllj, enacted by chapter 283. Acts
5121882.4547
1927, 40th Leg., c-h. 283, at 424. Fort Worth & D.C. Railway Co. v.
Amuons. 215 S.W.:!d 407, 409 (Tex. Civ. App. - Amarillo 1948, writ
200 Maln Plaza. Suite 400 ref’d n.r.e.). Those statutes constitute the general zoning enabling
San Antonio. TX. 78205.2797 act of this statu and authorize zoaine ordinances bv the leaislative
51212254191 bodies of all cj.ties, Including homerrule cities. - See Beilaire v.
Lamkia. 317 S.W.Z 43. 44 (Tex. 1958); Porter v. Southwestern Public
An Equal Opportunity/
Service Co., 489 S.W.2d 361, 364 (Tex. Civ. App. - Amarillo 1972. writ
Affirmative Action Employer ref’d a.r.e.); cf. V.T.C.S.
--. art. 1175, subdivision 26.
Article lOlla grants the power of zoning to the legislative
bodies of the cities. Article 1Ollb authorizes the legislative body
to divide nunici?alities into zoning districts of such number, shape,
and area as the Legislative body deems best suited to carry out the
purposes of zoning. Article 1011~ sets forth the purposes of zoning
and provides that zoaing regulations shall be made ia accordauca with
a compreheasive plan. Article 1Olld provides for public heariags
p. 2245
Ronorable Kent A. Caperton - Page 2 (JM-493)
prior to enactment of zonilg regulations. Article 1Olle authorizes
amendments to zoning ordinar,cee by e city’s legislative body. Article
1Ollf directs the legislative body of a home-rule city to appoint a
zoning commission which reports its zoning recommendations to the
legislative body efter conducting public hearings. Article 1Ollg
provides for the appo1ntmer.t of a board of adjustment by the city’s
legislative body to grant variances from and special exceptions to
zoning ordinances vhich the legislative body adopted.
A board of adjustment f-8 an administrative body created for the
administration of the zoning ordinance within standards set by the
state statute and the ordj.nance. Article 1Ollg confers three major
powers on the board: (1) to pass on special exceptions; (2) to
authorize variances; and (3) to hear appeals from decisions of a
building inspector or ottler official. The board’s functions are
administrative, fact-finding, and quasi-judicial In nature. See Texas
---
Coneol. Theatres, Inc. v. J?ittillo, 204 S.W.2d 396. 398 (Tex. Civ.
APP. - Waco. 1947 no writ).
The power to author&c! a variance authorizes the board to suspend
the operation of the zoning ordinance under certain conditions. It
allows the board to relieve the rigidity of an ordtiance where, owing
to special conditions, a literal enforcement of the provisions
contained in the ordlnencc: will result in unnecessary hardship. The
spirit of the ordinanca must be observed and the public interest must
be served by the variance. See Shelton v. City of College Station,
754 F.2d 1251, 1257 (5th s::Lr.85); Board of Adjustment of the City
of San Antonio v. Willie, ‘511 S.W.2d 591, 593 (Tex. Civ. App. - San
Antonio 1974, writ ref’d n.r.e.1; Barrington v. Board of Adjustment of
the City of Alamo Eelghts, 124 S.W.Zd 401 (Tax. Civ. App. - Amarillo
1939, writ ref’d).
The power to ..grant opeciel exceptions allows the board to hear
and decide exceptions to an ordinance in accordance with specific
provisions contained in the ordinance. The ordinance itself must
authorize the snecial ex:aotions and epeciallv named uses and must
provide rules and standardrr’to guide the’board.. See Moody v. City of
University Park, 278 S.W, 2,d 912. 921 (Tax. Civ. Fp. - Dallas 1955,
writ ref’d n.r.e.).
A board of adjuscmatit has no legislative powers, for that power
is conferred by the general zoning statute on the city council aa the
city’s legislative body. The board has no power to enact or amend
zoning ordinances or to grant special exceptions or variances that
amount to an ordinance amendment. See Nichols v. City of Dallas, 347
S.W.Zd 326, 333 (Tax. Civ. App. -Dallas 1961, writ ref’d n.r.e.).
See generally, McSwain, The Zoning Board of Adjustment, 13 Raylor
L.Rev. 21. 28-31 (1961).
p. 2246
, Ronorable Kent A. Ceperton - Page 3 (JM-493)
A planning and zoning commission appointed by the city council of
a home-rule city is manda,:ed by article 1011f. See Coffee City v.
Thorn eon, 535 S.W.2d 758, 764 (Tex. Civ. App. - 51x1976. writ ref'd
& The zoning coxa~ission recommends the boundaries of the
various districts and appropriate uses and regulations to be enforced
in the districts after the commission conducts public hearings. The
zoning commission acts in a* advisory capacity In making
recommendations to the city council. As the legisletive body of the
city. only the city council has authority to enact or emend an
ordinance prescribing the ‘:Lty's zoning regulations. An amendment to
a zoning ordinance approred by the zoning commission is only a
recommendation of the ronins: commission unless the citv council adoots
it. See V.T.C.S., art. lOl?e; Clesi v. Northwest Dalias Imp. Ass'b..
263 Sxd 820. 829 (Tex. (Xv. App. - Dallas 1953, writ ref'd n.r.e.).
As a result of the ne?ed of the cities for flexibility in rheir
zoning powers to avoid problems that result from rlgld boundaries and
use8 in zoning ordinences, new concepts for zoning have developed in
recent years which recognize that planning and zoning are a continuing
process. Cities discovered that they cannot always anticipate
development and plan for all areas and all uses. Under new zoning
procedures, which may be re.ferred to as "specific use permits" end as
"planned unit developmenta," a city may leave certain areas free of
rigid zoning conditions and regulations. A landowner wishing to
develop such an area usuaY.1.y works with the city's plunning staff to
prepare a site plan that ,!rovides the specific usee. conditions, and
regulaticns for that tract. These may include, among other things,
the type of use, required ,acreage, design of improvements, open space,
and traffic accessibility If the site plan and application for a
permit for the specific d.evelopment are approved and granred, the
development must conform to the specific plans on which the approval
is granted. A building ptrrmit will be limited to the plans approved
for the specific projecl:.. See Ragman, Urban Planning and Land
Development Control Law 117, 4551975).
Although the state's general zoning statute does not expressly
provide for such zoning p,cocedures, the Texas courts have upheld the
olanned unit orocedures end the "soecific use oermit" method of
amending a zoning ordinance. In C&y of Lubbock v. Whitacre. 414
S.W.2d 497, 499 (Tex. Civ. App. - Amarillo 1967, writ ref'd n.r.e.),
the court stated that
The use of the type permit here under
consideration; 1.e.. a Specific Use Permit, to
amend a comprehensive zoning ordinance has been
recognized and approved by the courts of Texas.
Stearman v. City of Farmers Branch, 355 S.W.2d 541
(Tex. Civ. ADI; - Dallas, 1962. writ ref'd
o.r.e.); Clesi‘v. Northwest Dallas Imp. Ass'n..
p. 2247
Honorable Kent A. Caperton - 'Page 4 (J'M-493)
263 S.W.2d 820 ('Iex. Civ. App. - Dallas, 1953.
writ ref'd n.r.e.1.
If a "specific use pr;rmit" is in fact a special exception as
authorized by article lOllg, its approval end issuance is included in
the express powers of the board of adjustment. If such a permit
amounts to the adoption or amendment of zoning regulations which only
the legislative body has the: power to adopt or amend, a basic zoning
ordinance that undertakes to confer that power on the board of
adjustment would constitute an invalid delegation of the legislative
power. Tex. Const. art. 11, 51; see Swain v. Board of Adjustment of
City of Univ. Perk, 433 S.W.:!d 727,731 (Tex. Civ. App. - Dallas 1968,
writ ref'd n.r.e.); Board OE Adjustment v. Stovall, 218 S.W.2d 286,
288 (Tex. Cl". App. - Fort 'dorth 1949, no writ).
The method of zoning in question has been described as a two-step
ordinence. The first step is an ordinance adopting a generalized plan
for development. The second step occurs when a developer submits a
precise and detailed development plan , which is approved and adopted
by a second ordinance. See Hagman. Urban Planning and Land
Development Control Law 460 (1975).
Several Texas courts 'have found, under the situations that each
addressed, that the approy.a.1 and issuance of "specific use permits"
constituted ordinauce amendments. In Clesi v. Northwest Dallas Imp.
;rG;,m, the basic zoning ordinance provided that a "special
' for apartment uee would be an amendment to the zoning
ordinance with;he property to be improved according to the plans and
specifications. In Nichols v. City of Dallas, supra, the ordinence
authorizing issuanceofm special permit" for multiple residence and
commercial uses in residential zones was an amendment to the zoning
ordinance. The court poinl:t:d out, et page 331, that the name "special
oermit" was not well choseb. for the lenal effect of the action taken
was unquestionably an amendment to the 'Zoning ordinance. In Strarman
v. City of Fanners Branch, 355 S.W.2d 541 (Tsx. Civ. App. - Dallas
1962, writ ref'd n.r.e.), the court upheld use of the "special permit"
method of amending the sor.ing ordinance to authorize development of a
medical center. The eppli.cation for a "special permit" was submitted
to the planning and zoning ,commission end granted by the city council,
In City of Lubbock v. Whitacre, supra. the court upheld an ordinance
amendment by the city co&~granting a "specific use permic" for a
private apartment project. In T & R Associates, Inc. v. City of
Amarillo, 688 S.W.2d 622. 626 (Tex. App. - Amarillo 1985 wrir ref'd
.m the court found t'oat issuance of a "specific use permit" to
allow a lounge in a retail district to serve alcoholic beverages
without serving food constituted an amendment of the zoning ordinance.
Cf.. Sherwood Lanes. Inc. J. City of San Angelo, 511 S.W.2d 597 (Tex.
Civ. App. - Austin 1974, writ ref'd n.r.e.) (governing body's
p. 2248
Ronorsble Kent A. Caperton -’ Page 5 (JM-493)
authorization of a special permit by ordinance that amends the city’s
general zoning ordinance is the exercise of legislative power).
The city ordinances c,!i which we are aware that provide for
“planned unit developmentr?’ and “specific use permits” based on
specific site plans contwplate approval by the city’s legislative
body after review and recoormendations by the zoning commission. We
are not awere of a case dec;ling with a “specific use permit” that was
granted by a board of adjurltment or a case in which it was suggested
that a “specific uee permit’” or a “planned unit development” was in
fact a special exception anthorized by article 1011s and was not a
zoning ordlnauce amendment,. If. however, a landowner requests a
permit which conscicutes a s!pecial exception which is of the type that
may be authorized by the clrdinance itself. article 1Ollg allow the
board of adjustment to hear .and decide the exception.
In addition, there is no statutory authority for the governing
body of e city to delegate ‘to the planning end zoning conxaission its
legislative power to amend a zoning ordinance. See City of San
Antonio v. Lanier, 542 S.W.:!d 232, 235 (Tex. Civ. APT- San Antonio
1976, writ ref’d n.r.e.). An amendment to a zoning ordinance must be
proposed and adopted wir:h the same formality as the original
ordinance. See Clesiv. Northwest Dallas Imp. Ass’n.. m, at 830.
Hence, the z%&g commissi``‘s function $0 the “specific use permit”
method of amending ordinhnws is not to decide and grant such permics
but to review specific use site plans, conduct public hearings, and
submit its recommendations to the legislative body which, in turn,
will approve or disapprove the applications for “specific use
permits.”
SC’HMARY
The state’s geueral zoning statute expres’sly
authorizes a city’s board of adjustment to grant
variances from and exceptions to a zoning
ordinance. The r;tete statute expressly grants the
power to enact and amend zoning ordinances to the
city’s legislatiw body, which usually is the city
council. A boa1:d. of adjustment has no power to
grant exceptions or variances that amount to an
ordinance amandnent. Where the approval of a
“specific use ~perndt" constitutes a zoning
ordinance amendwnt, only the city council may
approve or disapprove such a permit. Where a
“specific use permit” is in fact a special
exception authorized by article 1011g. V.T.C.S.. a
zoning board of adjustment may grant the
exception. The zoning commission acts in an
p. 2249
Honorable Kent A. Caperton ..Page 6 (m-493)
advisory capaciry to making zoning recommendations
to the city council..
J k
Very truly yours
A.
JIM UATTOX
Attorney General of Texas
JACK EIGETOWER
First Assistant Attorney Gewral
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney 3eneral
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
p. 2250