JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Auslln. TX. 78711. 2548 

5121475-2501 

Telex 910/874.1367 

Telecopier 51214750266 

714 Jackson. Suite 706 

Dallas, TX. 75202.45OS 

2141742.8944 

4624 Alberta Ave.. Suite 160 

El Paso. TX. 79905.2793 

9151533~3484 

1001 Texas. Suite 700 

Houston. TX. 77002.3111 

71312235886 

806 Broadway. Suite 312 

Lubbock, TX: 79401.3479 

Mw747.5238 

4309 N. Tenth. Suite S 

McAllen. TX. iSSOl. 

5121882.4547 

200 Maln Plaza. Suite 400 

San Antonio. TX. 78205.2797 

51212254191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

May 19. 1986 

Rouorable Kent A. C,aperton 

Chairman 

Committee ou Criminal Justice 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Opinion No. JM-493 

Re: Whether a city council, a 

planning conmission, or a zoning 

board of adjuscmenr is authorized to grant specific “Se 

permits In a hone-rule city 

Dear Senator Caperton: 

You inquire z,bout the zoning functions and powers of the city 

councI1, the plaaning aad soaiug commission. and the zoning board of 

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 

by which special exceptions aad variances are granted by boards of 

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 

ordinance. 

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 

is governed by ar.ticles lOlla-IOllj, enacted by chapter 283. Acts 

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 

ref’d n.r.e.). Those statutes constitute the general zoning enabling 

act of this statu and authorize zoaine ordinances bv the leaislative 

bodies of all cj.ties, Including homerrule cities. - See Beilaire 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 

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, 

Development Control Law 117, 4551975). 

Urban Planning and Land 

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. 

Development Control Law 460 (1975). 

Urban Planning and Land 

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. 

authorizing issuanceofm 

City of Dallas, supra, the ordinence 

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.. 

Very truly yours J A. k 

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