Case Information
*1 The Attorney General of Texas May 19. 1986 JIM MATTOX
Attorney General Supreme Court Building Opinion No. JM-493 Rouorable Kent A. C,aperton P. 0. Box 12548 Chairman Auslln. TX. 78711. 2548 Re: Whether a city council, Committee ou Criminal Justice 5121475-2501 Texas State Senate planning conmission, or a zoning Telex 910/874.1367 board of adjuscmenr is author- Telecopier 51214750266 P. 0. Box 12068
Austin, Texas 78711 ized grant specific “Se permits In a hone-rule city 714 Jackson. Suite 706 Dallas, TX. 75202.45OS Dear Senator Caperton: 2141742.8944
You inquire z,bout the zoning functions and powers of the city 4624 Alberta Ave.. Suite 160 councI1, the plaaning aad soaiug commission. and the zoning board of El Paso. TX. 79905.2793 adjustment in hone.-rule cities and which entity may approve and 9151533~3484 disapprove applicatioasKfor exceptions, variances, and “specific use 1001 Texas. Suite 700 Houston. TX. 77002.3111 [71312235886] by which special adjustment, permits.” “specific use perxits.” Which entity nay issue “specific use permits” The state’s general zoning statute provides but exceptions statute aad variances are granted by boards of does not speak the procedures issuaace
depends on whether the permits coastltute amendments 806 Broadway. Suite 312 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, conf ort , and welfare of the public. The authority of a city to zons 4309 N. Tenth. Suite S is governed by ar.ticles lOlla-IOllj, enacted by chapter 283. Acts McAllen. TX. iSSOl. 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 San Antonio. TX. 78205.2797 [51212254191] bodies of all ref’d n.r.e.). act of this statu and authorize cj.ties, Those statutes Including homerrule cities. constitute zoaine ordinances bv the general zoning enabling - See Beilaire leaislative v.
Lamkia. 317 S.W.Z 43. 44 (Tex. 1958); Porter v. Southwestern Public Service Co., 489 S.W.2d 361, 364 (Tex. Civ. App. - Amarillo 1972. writ An Equal Opportunity/ cf. V.T.C.S. art. 1175, subdivision 26. ref’d a.r.e.); --. Affirmative Action Employer
Article lOlla grants the power of zoning to the Article 1Ollb authorizes body bodies of the cities. 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 Article 1Olld provides for public heariags a compreheasive plan. *2 Ronorable Kent A. Caperton - Page 2
prior to enactment of zonilg regulations. Article 1Olle authorizes amendments to zoning ordinar,cee by e city’s legislative body. Article 1Ollf directs body of a home-rule city to appoint a zoning commission which reports its zoning recommendations to the Article 1Ollg legislative body efter conducting public hearings. 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) 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 --- 204 S.W.2d 396. 398 (Tex. Civ. Coneol. Theatres, Inc. v. J?ittillo, 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 special conditions, literal enforcement 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 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). *3 Ronorable Kent A. Ceperton - Page 3
,
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 advisory commission acts in a* capacity In making recommendations to the city council. As the legisletive body of the only the city council has authority enact or emend an city. ordinance prescribing the ‘:Lty's zoning regulations. An amendment to a zoning ordinance approred by 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 (Tex. (Xv. App. - Dallas 1953, writ ref'd n.r.e.). 820. 829
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 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 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, 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 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 type permit here under consideration; 1.e.. a Specific Use Permit, 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..
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 the express powers of the board of adjustment. If such a permit amounts to the adoption or amendment of zoning regulations which only body has the: power adopt or amend, a basic zoning ordinance that undertakes to confer that power on the board of adjustment would constitute an invalid delegation
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. Urban Planning and Land See Hagman. 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 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 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 Ronorsble Kent A. Caperton -’ Page 5
authorization of a special permit by ordinance that amends the city’s general zoning ordinance is the exercise of legislative power). c,!i which we are aware that provide for
The city ordinances “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 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 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 a zoning ordinance. The r;tete statute expressly grants power to enact and amend zoning ordinances to city’s legislatiw body, which usually is the city A boa1:d. of adjustment has no power council. grant exceptions or variances that amount to an ordinance amandnent. Where the approval of a use ~perndt" constitutes “specific zoning ordinance amendwnt, only the city council may approve or disapprove such a permit. Where a “specific use permit” is fact a special exception authorized by article 1011g. V.T.C.S.. a board adjustment may grant exception. The zoning commission acts in an *6 Honorable Kent A. Caperton .. Page 6 (m-493)
advisory capaciry to making zoning recommendations to the city council..
J k Very truly yours A. UATTOX
JIM 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