1. Can the area of land subject to a zone change be increased?
No, the reason a zone change area cannot be increased is that there would not be proper notice for the increased area. For a zone change to occur, all the land subject to the zone change must have been set out in the notice; a notice is required by State statute and City Ordinance.
2. Can the area of land subject to a zone change be reduced?
Yes, in this case the people who would be affected by a zone change have been notified. The fact that a change has been made only on a portion of the area is in no way injurious to the neighbors. The neighbors have been notified of the most amount of land subject to a zone change.
3. Can the area of land subject to a zone change be zoned to a more intense (less restrictive) use than it was advertised?
No, the neighbors would not have proper notice that a more intense use of the property was proposed. The notice would be inadequate.
4. Can the area of land subject to a zone change be zoned to a less intense (more restrictive) use than it was advertised?
Yes, the notice provides the most intense use contemplated and sets a ceiling. Any use below that ceiling is allowable.
THE DECISIONS ON THE ABOVE SITUATIONS ARE BASED ON NOTICE. PROPER NOTICE SHOWING THE MOST INTENSE CHANGE TO BE CONSIDERED IS A PRE-REQUISITE TO A VALID ZONE CHANGE.
5. Can the Planning and Zoning Board, on its own motion, reduce the area of land or reduce the intensity of zone change even if the proponent doesn't want either or both changes?
Yes, the Planning and Zoning Board has the power to recommend zone changes up to the original request and the power to reduce the area to be changed even if the applicant is opposed to the changes.
6. Can the City Council reduce the area of land subject to zone change?
Yes, the City Council can exercise its power to reduce the land subject to a zone change.
7. Can the Planning and Zoning Board initiate a zone change?
Yes, the Planning and Zoning Board may initiate a study to see if land should be rezoned. This study and rezoning may take place even if the owner is opposed to the change.
The City Council can also initiate studies by appropriate resolution directing the Planning and Zoning Board to study areas for rezoning.
8. Does the City Council zone property to a less intense (more restrictive) use than it was considered by the Planning and Zoning Board?
No, it should not, the basis of this answer is three principles. At this time the law in Texas is unclear because there are two Court of Civil Appeals decisions. One line provides that a report on the zone change must have been considered by the Planning and Zoning Board. The second line provides that any kind of report on the property is adequate, so long as the change is to a more restrictive zoning district.
The applicable principles are as follows:
1. The uncertainty that exists in Texas law.
2. The belief that it was desirable for Planning and Zoning to consider all proposed districts before Council acts.
3. The confidence the City Council has in the Planning and Zoning Board's decisions.
Therefore, an applicant, if he wishes or believes a lesser district would suffice, should do any down-zoning at the Planning and Zoning Board. If a proponent tries to down-zone at the Council level, he should be sent back to the Planning and Zoning Board for reconsideration.
9. If a zone change is denied by the City Council or denied by the Planning and Zoning Board and not appealed, can the proponent request the same zone change at its next meeting?
No, when a zone change request is denied, a similar request for that piece of property cannot be reconsidered for six (6) months.
10. What is a quorum and what is the 20% protest?
The vote for a zoning change is a simple majority unless there is a 20 percent protest.
Section 211.006(d) of the Local Government Code states that when owners of 20% of the area of land adjoining a proposed zone change protest the change, the change does not go into effect unless it receives an affirmative vote of 3/4 of all the members of the governing body. Court decisions say that this means 3/4 of the members present and voting. In City of Alamo Heights v. Gerety, 264 S.W.2d 778 (Tex. Civ. App.--San Antonio 1954, writ ref=d n.r.e.), five aldermen were present, but one disqualified himself. A 3-1 vote was held sufficient, requiring 3/4 of four (the number of aldermen voting), not 3/4 of five (the total number of aldermen). In the case of Hannan v. City of Coppell, 583 S.W.2d 817 (Tex. Civ. App.--Dallas 1979, writ ref'd n.r.e.), it was held that a 3-1 vote was sufficient when only four out of the five councilmembers were present at the meeting.
11. If a similar zone request cannot be made for six (6) months, or six (6) months if for Planned Development District, does that mean no zone changes can be considered on the property?
No, it just means a similar change cannot be made. The original request might be for R-1D and be denied. A later request for R-MF might be found by the Planning and Zoning Board to not be a similar request. The applicant might also add to or delete land that is subject to his rezoning request. These factors would also be considered. Therefore, zone changes on the property can be made. Whether the zone request is similar or not is a question of fact to be determined by the Planning and Zoning Board.
12. What is a spot zone and is a spot zone legal?
No, a spot zone is not legal. The zoning laws require that zoning be in accordance with its Comprehensive Plan. Normally, in order to amend its ordinances to rezone an area, a change of conditions must be shown. A spot zone is defined as an arbitrary departure from the Comprehensive Plan. The power to amend cannot be arbitrarily exercised. It cannot be exercised merely because someone wants it done. Amendments can be exercised when the public good demands and requires it be done. When the adjoining landowners buy their land, they have a right to rely upon the classification which existed at the time the purchase was made.
Some possible questions to consider are the following:
a. Respect for maintaining comprehensive zoning ordinance, plan and map; Will this change conform to the Comprehensive Plan?
b. Nature and degree of adverse impact upon neighboring land; Will the change be in accordance with property uses in the area?
c. Suitability of the tract for use as presently zoned;
d. Does the change bear a substantial relationship to the public health, safety, morals, or general welfare or protect and preserve historical and cultural places and areas;
e. Have the structures in the area declined or changed?
f. Has the neighborhood or area changed from one use to another?
g. Has there been a traffic flow change?
h. Will the change increase traffic in the area?
i. Are there any other pieces of property available for this use?
In relation to the surrounding area, will the zone change be a zone change not conforming to adjacent uses or would it fit in with the Comprehensive Zoning Plan?
The power to vary conditions should be sparingly exercised and such powers by law may be exercised only for the benefit of the pubic with due regard to for the preservation of the rights of others acquired under the original Zoning Ordinances. The City has the power to amend the basic Zoning Ordinance if the public necessity demands it, but any amendment must bear a substantial relationship to the public health, safety, morals, or general welfare.
13. Can the Planning and Zoning Board restrict the appliciant's zone change to particular kind of activity?
No, if you mean - can I restrict a zone change request for C-2 (General Commercial District) for an aquarium shop, to just an aquarium shop use. Once the property is zoned for a particular use, all uses that are allowed in that district may be placed on the property. This should be considered when property is rezoned. Sometimes an applicant is unable to complete a sale, due to no fault of the applicant. The property would be rezoned and could be bought and used for anything allowed in a C-2 zone.
There is of course one exception to the prior discussion, the Planned Development District. A Planned Development District entitles the City to tailor-fit the zoning ordinance to the property and its surroundings. In a Planned Development District the uses are restricted.
14. Can conditions be placed on the zone change?
Not unless a planned district is used.
15. Can we bargain with or enter into an agreement with the proponent to get safeguards we desire before zoning the property?
No, contract zoning is not allowed. Contract zoning, according to the Court, quoting from a land-use treatise is, “the process by which local government enters into an agreement with a developer whereby the government extracts a performance or promise from the developer in exchange for the agreement to rezone the property . . .” This can be as blatant as a promise to zone property if a developer contracts to bring in jobs with a set minimum salary. This is unlawful and different than conditional zoning where conditions are placed on land that make the zone change suitable (greater setbacks, walls, buffers, limited height).
A way to avoid a contract condition situation is the Planned Development District.
16. What is the relationship of planning to zoning?
The zoning regulations must be made in accordance with a comprehensive plan. Remember the discussion of changed conditions and other questions in the discussion of a spot zone must be shown to justify a zone change. The logical way to show that the public health and welfare necessitates a change is through a plan or study. Planning and Zoning must therefore go together.
17. What is the City's ability to regulate private and public educational facilities via the Zoning Ordinance?
Schools operated by an independent school district in connection with the Central Education Agency in the State of Texas have powers superseding any local regulation with regard to the site selection and acquisition of property for school construction. Zoning ordinances are not a valid vehicle for regulating such institutions. However, the construction and safety matters with regard to compliance to local building codes can be demanded even of a school district funded project. Private schools are not regulated in the same manner as the public school system and are therefore more subject to the local municipality's rules and regulations, including zoning matters. The Sunset Valley case briefly addresses the differences between private schools and the level of municipal regulation allowed as compared to the constitutional and statutory restriction on municipal authority over public school systems.
The Texas Const. sec 1, art. VII directs the state legislature to "establish ... an efficient system of public free schools." The legislature has delegated the duty to establish public schools to the independent school districts. The Texas Education Code grants school districts in this regard with the right of eminent domain. See Tex. Educ. Code Ann. sec.11.155 (Vernon 1996). Further, in 1973, the Texas Supreme Court in the case of Austin Independent School District v. City of Sunset Valley, 488 S.W.2d 519, rev'd . 502 S.W.2d 670 (Tex. 1973), stated that the City of Sunset Valley improperly attempted to create a purely residential community, zoning out any schools, because of the school district's authority to supersede local zoning regulations. That court stated that the zoning authority of a municipality is subservient to the reasonable exercise of school district authority. The Sunset Valley case is still the governing law in Texas and gives school districts the authority to locate or select sites and to acquire property for school buildings within the State of Texas. This power overrides the police power of municipalities to zone schools out of residential or other types of districts.
Later courts echo the Sunset Valley reasoning more specifically stating that where the school district owns property and where the intended use is a reasonable exercise of its legislatively created authority to provide for education or transportation of students within the state, then any use inconsistent with the local zoning ordinance will supersede local regulation. See City of Addison vs. DISD, Dallas Independent School District and the City of Addison Zoning Board, 632 S.W.2d 771 (Tex.App-Dallas 1982, writ ref''d n.r.e.).
Both the Sunset Valley and City of Addison cases discuss that the school district's exercise of authority must be reasonable and that if there is evidence of unreasonableness or nuisance, then the school district can be stopped. The restriction on the applicability of local zoning ordinances does not include a school district's responsibility to abide by any regulations with regard to construction and safety. While there are policy considerations justifying regulation of school construction, the Texas Supreme Court has stated that those same policy considerations do not apply to the selection of a school's site. The Sunset Valley opinion also addresses a school district's authority to locate or select sites for any auxiliary buildings or facilities in connection with the provision of educational services to students in Texas.
Private educational facilities not regulated or otherwise part of the state government hierarchy can be regulated as any other private business. A private school seeking to prevent enforcement of the City's Zoning Ordinance which has been validly adopted would need to first prove that the ordinance is arbitrary or unreasonable or has no substantial relationship to health, safety, morals or general welfare of the population. See Bell vs. City of Waco, 835 S.W.2d 211 (Tex.App.-Waco 1992, writ denied).
18. To what extent can the City regulate sexually oriented businesses (SOBs)?
Percentage Available Reduction
One question is whether or not the City can reduce the percentage of the total land area in which these types of businesses are allowed. Based on the current ordinance, the businesses may be located in industrial zoning districts (M-1 or M-2) which consist of 5.9% of the City's total area. Cities have traditionally set aside 5% for these purposes but the question arises as to whether or not the percentage can be reduced.
According to Tex. Loc. Gov. Code Ann. Sec. 243.006 (Vernon 1988 and Vernon Supp. 1994), the municipality can restrict such businesses to particular areas, set distance requirements from schools, churches, neighborhoods and other specified land uses, and restrict the density. There is no statutory mandate that 5% of the total land area be set aside or provided for the development of these businesses. While the 5% designation may be traditional in Texas cities, there is no statutory mandate to provide that percentage. Without such a state law mandate, the City could provide for further restrictions within the M-1 and M-2 districts as it chooses so long as there is not a total ban on the ability of such businesses to open within those regulations.
Customer Age Restriction
The intent of the state law provisions authorizing municipalities to establish regulations appears to be that such a regulation could be possible. Tex. Loc. Gov. Code Ann. Sec. 243.001(b) (Vernon Supp. 1994) says that the Chapter does not diminish the authority of the local government to regulate sexually oriented businesses with regard to any matter. Further, Sec. 243.003(a) (Vernon Supp. 1994) states that "a municipality by ordinance... may adopt regulations regarding sexually oriented businesses as the municipality ... considers necessary to promote the public health, safety, or welfare." These general statutes seemingly invoke the general police powers of municipalities like Tyler in having the authority to impose stringent regulations on such businesses as long as it is directly related to a compelling governmental interest promoting the health, safety and welfare of the public. The United States and Texas Constitution prohibits discrimination against persons because of age. First Amendment Freedom of Speech and Expression issues are also implicated by passing such an age-based restriction. While there does not seem to be any case law on point, a thorough review of the constitutional issues should be made prior to enacting any type of an age-based regulation.
19. Group Home: To what extent can a City regulate Group Homes in residential areas?
The Fair Housing Act prohibits discrimination based upon handicap and the term discrimination includes a refusal to make reasonable accommodations when such accommodations are necessary to permit a handicapped person to enjoy the use of a dwelling. The Fair Housing Act does allow an exception for maximum occupancy limits, and therefore a City can restrict the number of persons that occupy a dwelling in a residential area if, generally, there is a reasonable basis for the number. As the City is required by federal law to make reasonable accommodations in its zoning laws for handicapped individuals, the City should not, as a condition for locating in a residential zone, require a permit, variance or special exception for persons that are unrelated by blood but which otherwise constitute the functional equivalent of a family. Zoning ordinances that regulate families in residential zones should not be based upon the blood relationships of the persons occupying the residence.