JIM MATTOX

Attorney General

Supreme Court Building P.0. Box 12548 Auslln. TX. 78711. 2548 5121475-2501 Telex 910/874.1367 Telecopier 51214750266

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# TheAttorney General ofTexas

May19. 1986

Rouorable KentA. C,aperton Chairman CommitteeouCriminal 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 ahone-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.” Whichentity nay issue “specific use permits” depends on whether the permits coastltute amendments **to** the zoning ordinance.
Thezoning ocdiaances of cities are aa exercise of police power delegated to cities by the state for protection of health, safety, confort, andwelfare of the public. Theauthority 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 deemsbest suited to carry out the purposes of zoning. Article 1011~ sets forth the purposes of zoning andprovides that zoaing regulations shall be madeia accordauca with
a compreheasive plan. Article 1Olld provides for public heariags

p. 2245Ronorable Kent A. Caperton - Page 2 (JM-493)

prior to enactment of zonilg regulations. Article 1Olle authorizes amendmentsto 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.

Aboard of adjustment f-8an 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, andquasi-judicial In nature. SeeTexas
--- Coneol. Theatres, Inc. v. J?ittillo, 204 S.W.2d 396. 398 (Tex. Civ. APP. - Waco. 1947nowrit).

Thepower to author&c! avariance 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 mustbe observed andthe 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 SanAntonio v. Willie, ‘511S.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 AlamoEelghts, 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 nameduses and must provide rules and standardrr’to guide the’board.. SeeMoodyv. City of University Park, 278 S.W,2,d912. 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 amountto 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)

Aplanning andzoning commission appointed by the city council of
a home-rule city is manda,:edby article 1011f. See Coffee City v. Thorneon, 535S.W.2d 758, 764 (Tex. Civ. App. - 51x1976. writ ref'd & The zoning coxa~ission recommends the boundaries of the various districts andappropriate 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. Anamendmentto 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?edof the cities for flexibility in rheir zoning powers to avoid problems that result from rlgld boundaries and use8 in zoning ordinences, newconcepts for zoning have developed in recent years which recognize that planning andzoning are a continuing process. Cities discovered that they cannot always anticipate development and plan for all areas and all uses. Under newzoning procedures, which maybe 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, amongother 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 onwhich the approval is granted. Abuilding ptrrmitwill be limited to the plans approved for the specific projecl:.. See Ragman, Development Control Law117, 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 amenda comprehensive zoning ordinance has been recognized and approved by the courts of Texas. Stearmanv. City of Farmers Branch, 355S.W.2d 541 (Tex. Civ. ADI; - Dallas, 1962. writ ref'd o.r.e.); Clesi‘v. Northwest Dallas Imp. Ass'n..

p. 2247Honorable Kent A. Caperton - 'Page4 (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 amendmentof zoning regulations which only the legislative body has the:power to adopt or amend, abasic 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 Swainv. 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 OEAdjustment v. Stovall, 218 S.W.2d 286, 288 (Tex. Cl". App. - Fort 'dorth 1949, nowrit).

Themethodof zoning in question has been described as atwo-step ordinence. Thefirst step is anordinance adopting ageneralized plan for development. The second step occurs when a developer submits a precise and detailed development plan
, which is approved andadopted by a second ordinance. See Hagman. Development Control Law460 (1975). Urban Planning and Land

Several Texas courts 'havefound, under the situations that each addressed, that the approy.a.1and 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 amendmentto the zoning ordinance. Thecourt poinl:t:d out, et page 331, that the name"special oermit" wasnot well choseb. for the lenal effect of the action taken
was unquestionably anamendmentto 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 amendingthe sor.ing ordinance to authorize development of a medical center. Theeppli.cation for a "special permit" was submitted to the planning andzoning ,commission end granted by the city council, In City of Lubbock v. Whitacre, supra. the court upheld an ordinance amendmentby 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 anamendmentof the zoning ordinance. Cf.. SherwoodLanes. Inc. J. City of SanAngelo, 511 S.W.2d 597 (Tex. Civ. App. - Austin 1974, writ ref'd n.r.e.) (governing body's

p. 2248Ronorsble KentA. Caperton

-’Page 5 (JM-493)

authorization of a special permit by ordinance that amendsthe 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 maybe authorized by the clrdinance itself. article 1Ollg allow the board of adjustment tohear .anddecide 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- SanAntonio 1976, writ ref

’d n.r.e.). Anamendmentto 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 amendingordinhnws 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. Ther;tete statute expressly grants the power to enact and amendzoning ordinances to the city’s legislatiw body, which usually is the city council. Aboa1: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. 2249HonorableKentA.Caperton

..Page 6 (m-493)

advisorycapacirytomaking zoningrecommendations tothe citycouncil..

Very trulyyours 

# J k

A. JIM UATTOX AttorneyGeneralofTexas

JACKEIGETOWER FirstAssistantAttorneyGewral

MARYKELLER ExecutiveAssistantAttorneyGeneral

ROBERTGRAY SpecialAssistantAttorney 3eneral

RICKGILPIN Chairman,OpinionCommittee
PreparedbyNancySutton AssistantAttorneyGeneral

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