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HomeMy WebLinkAboutMinutes.a MINUTES Planning & Zoning Commission CITY OF COLLEGE STATION, TEXAS August 15, 1996 7:00 P.M. COMMISSIONERS PRESENT: .Chairman Hawthorne and Commissioners Smith, Lightfoot, Massey, Gribou and Parker. COMMISSIONERS ABSENT: Commissioner Garner. STAFF PRESENT: Acting Director of Economic and Development Services Callaway, City Planner Kee,. City Engineer Laza, Planning Technician Thomas, Graduate Civil Engineer Homeyer, Assistant City Engineer Morgan, Development Coordinator Volk, Planning Intern Evans, Senior Planner McCully,. Staff Planner Dunn, Energy Auditor Battle, Assistant City Attorney Robinson and Assistant City Attorney Reynolds. (Council Liaison Bill Fox: was in the audience.) AGENDA ITEM NO. 1: Approval of minutes from the Commission meeting of August 1, 1996. Commissioner Parker moved to approve the minutes from the meeting of August 1, 1996 as written. Commissioner Massey seconded the .motion which passed unopposed (5 - 0). AGENDA ITEM NO. 2: Public hearing to consider a final plat of the Grand Oaks Subdivision totaling. 5.7 acres .located along Lincoln Avenue northwest of the Sweetbriar Addition. (96-220) City Engineer Laza presented the staff report and recommended approval of the final replat with the comments outlined in the Presubmission Conference report. The proposed.. development has a large square cul-de-sac located adjacent to lotsl8, 19 and 20. The developer is proposing to create a green space within this right-of--way which will require compliance with the private improvements on public property ordinance. Chairman Hawthorne opened the public hearing. Tom Auginbaugh informed the Commission that at the last meeting he was in opposition to the final plat. However, he has .since met with the developer and is now in favor of the development. He still recommended that the neighborhood receive notice when new development occurs so that they have input. Stephen Miller of 905 Munson. stated that he is not completely opposed to the request but is concerned about the difference. in lot sizes between what is proposed .and what is existing. He stated that he would like to know what changed the minds of the residents on Rose Circle to support the replat: ,. ~- Chairman Hawthorne closed the public hearing. ~. Commissioner Lightfoot moved to approve the final plat of the Grand Oaks Subdivision with staff recommendations. Commissioner Gribou seconded the motion which passed unopposed (6 - 0). AGENDA ITEM NO. 3: Consideration of a final plat of the Edelweiss Estates Phase 6-A Subdivision totaling 7.786 acres located northwest of Monier Drive and south of Edelweiss Estates Phase 4-A. (96-225) Graduate Civil Engineer Homeyer presented the staff report and informed the .Commission that the plat complies with all subdivision requirements. Staff recommended approval of the final plat with the conditionthat Streetscape requirements are met along Monier Drive. Commissioner Gribou moved to approve. the final plat of Edelweiss Estates Phase 6-A .Subdivision with staff recommendations. Commissioner Smith seconded the motion which passed unopposed (6 - 0). AGENDA ITEM NO. 4: Consideration of a final plat of the Melrose Subdivision totaling 56.6 acres located on the southwest corner of Luther Street and Jones-Butler Road. (96-226) Graduate Civil Engineer Homeyer presented the staff report and recommended approval of the final plat with the condition that the development agreement be approved by the City Council prior to the filing of the final plat for record at the Brazos County Court House. The development agreement also .establishes the multi-family zoning of the property. The Thoroughfare. Plan designates Jones-Butler as a Collector and'.. Southwest Parkway West as a Minor Arterial. The developer has requested to change these two designations which concurs with the proposed Thoroughfare Plan currently .under consideration. This change of designation would not require Southwest Parkway to be extended to Luther Street. Luther Street is classified as a Collector and will be the primary point of access for the proposed development. Park land dedication for this development will be based upon the total number of proposed units. The developer is proposing to purchase property off-site in order to satisfy his requirements.. If the developer is unable to make this purchase, a .monetary dedication at the rate of $225.00 per unit will be made. This payment will be required at the time of building permits. The developer will be required to construct a 16 inch water line from Holleman through his property to Luther. At Luther, he will be responsible for constructing a 16 inch line along the entire Luther right- of-way to the existing 12 inch water line at Jones-Butler. There is potential over-sized cost participation if approved by the Council. There is the potential to make sewer connections to both a 15 and 8 inch sewer line. The 15 inch sewer line is located within the right-of--way of FM 2818 and the 8 inch line is located adjacent to the subject property in the alley that runs parallel. to Woodsman Drive Luther Street is located on the north side of the subject property in its entirety. This street, as well as Jones-Butler which is located on the east side of the property, is not constructed to City standards. The developer must upgrade these two streets in order to take access to either one. These upgrades.will be addressed in the proposed development agreement. The developer proposes to construct three detention facilities at various locations within his property. Since this property is not located adjacent to a primary drainage system, the developer will be required to obtain the necessary off-site drainage easements. There are several utility and drainage easement dedications as indicated on this plat. In addition to these on-site easements, the developer must acquire the necessary off-site easements in order to convey broth sanitary and storm flows. The applicant is requesting the opportunity to file an as-built plat showing the actual location of all utilities. P & Z Minutes August IS, 1996 Page 2 of 5 .. ,~ PRESUBMISSION CONFERENCE REPORT June 28, 1996 TO: David Scarmardo and Sam Campise P. O. Box 4508, Bryan, TX 77805 Michael McClure, McClure Engineering 1722Broadmoor, Suite 210, Bryan, TX 77802 FROM: Presubmission Conference Jane Kee, City Planner. Kent Laza, Gity Engineer Winnie Garner, P&Z Representative James Massey, P&Z Representative Others Attending Natalie Thomas, Planning.Technician Shirley Volk, Development Coordinator Tony Michalsky, Electrical Operations Coordinator George McLean, CSISD Representative SUBJECT: Final Plat..- Grand Oaks Subdivision; proposed subdivision totaling 5.7 acres divided into twenty-three R-1 Single Family Residential lots located along Lincoln Drive East to the northwest of the Sweetbnar Addition. (96-220) A Presubmission Conference meeting was held Wednesday, June 26, 1996 to discuss the above mentioned final plat.. The following is a list of ordinance requirements identified by the Presubmission Conference. This list'does not relieve the applicant of total compliance with all current ordinance requirements. Ordinance Requirements: A sidewalk is required along the Lincoln. Avenue frontage. _ Remove the City Council signature block.. (The final plat will not go, on to City Council unless the applicant decides to appeal the Planning & Zoning Commi sion's decision.) Label the. 15' drainage easement along lot 20 as a "public utility and drainage easement". Designate the "Common Area & Storm Water Detention Facility" as a public utility easement so that the City. can maintain the concrete structures. Streetscape is required along Lincoln Avenue. to minor arterial standards. _ Change the. verbiage on the "~3~igin I'~t" section to include a reference to the current ownership configuration. _~ PRC Report Grand Oaks Case #96-220 Page 2 of 2 Comments/Concerns: Underground electrical service is required. Additional easements for street lights and electrical layout may be ;necessary. Coordinate electrical service details and associated costs with. Electrical Operations Coordinator Tony Michalsky at (409) 764-3660. _ Coordinate the opening and .closing of the secured gates for garbage pick-up with Sanitation .Superintendent Jim Smith at (409} 764-3.690. The Sanitation department suggested leaving the gates open ontrash days which as Tuesday, Thursday and Friday. _ Additional easements are necessary to provide telephone service throughout the subdivision. G.T.E. will work with the Electrical Department to see where easements will be required. Coordinate telephone service requirements with G.T.E. Representative Laverne Akin at (409) 821-4723. SUBMIT THE MYLAR ORIGINAL AND 10 COPIES OF THE REVISED PLAT BY WEDNESDAY, JULY` 10, 1996 TO BE INCLUDED IN THE PLANNING AND ZONING COMNIISSION PACKETS FOR THE MEETING OF THURSDAY, JULY 18, 1996 AT 7:00 P.M. Memo Re Grand Oaks July 24, 1996 Page 2 based on other reasons may .expose the City to a claim .that the decision was arbitrary and capricious. Under a recent. ruling in Cinemark, the City and individual Commission members may not be immune to liability under such a claim.. In this case, .the decision may be valid... However, no reason for the denial was provided. by the Commission. Mr. Scamardo can either petition the Commission for reconsideration or appeal the decision to the City Council. Discussion Generally,. a planning .commission :develops and adopts master .plans for the municipality and performs the administrative task of approving subdivision plats that conform to the plan. JoxN MIxoN, TExAS MUNICIPAL ZONING LAw (2nd Edition) § 1.11 (Parker Publications 1995). Authority to approve or disapprove of a plat is defined by the state enabling statute. Plats.. should. be approved if they meet the requirements set' out in the subdivision regulations and reasons must. be given when approval is denied. If no reasons. are .given, approval may be acquired through a mandamus action in-the courts. Difficulties have arisen when reasons given for denial aren't authorized under state law. For instance, that a subdivision would be "out of character" with the area, local': governmentdid not want an urban area isolated, .developer had done. a poor job in the past, and a new subdivision might lower property values in another subdivision. In these cases, courts have held the denial invalid. Also, courts have refused to uphold' denials of subdivision plats where. the reasons for the denials were not supported by evidence. PATIUCK J. ROxAN, ZONING & LAND USE CONTROLS §45.04(1)(x) (Matthew Bender & Associates 1995). Without knowi~ the reasons for the Commission's denial, we don't know i decision was valid. The Commission must approve a plat that is required to be prepared under the TEx. LocAL Gov'T CODE §212.004 as long as it satisfies all applicable regulations. TEx. LocAL Gov'T .CODE §212.005 (Vernon 1988). Section 212.010 provides that the, municipal authority responsible for approving plats shall approve a plat if .the plat conforms to the general plan of the municipality and its current and future streets, alleys, parks, playgrounds, and public utility facilities; the `plat conforms to the general plan for the extension of the municipality and its roads, streets and public highways within the municipality; any applicable bonds are filed; and the plat conforms to any rules adopted to Memo Re Grand Oaks July 24, 1996 Page 3 promote the health,. safety, morals, or general welfare of the municipality and the safe, orderly, and healthful development of the municipality. Chapter 9 of the City of College Station's Code of Ordinances regulates subdivisions. City Ordinance No. 2179 enacted. only this year amends Chapter 9, Section 1 of the City's Code of Ordinances. Specifically, Section lA states "... If a plat conforms to this article, state law, and all other rules and regulations pertaining to the platting of land, the Commission shall endorse its approval upon the plat." (Emphasis added.) "Shall" is a mandatory term. All of the statutory language above indicates that the Commission. can deny plat approval but only for certain reasons. If the reasons articulated are not related to a failure to fulfill. requirements set out in the subdivision regulations, or, as in .this case, if no reason is articulated by the: Commission, the City is subject to a claim that.. the decision was "arbitrary .and .capricious." Whether the Commission is liable for an .arbitrary and capricious decision is based on whether the Commission's function in approving plats is judicial, legislative or administrative. If the function is judicial or legislative the Commission is immune. from iability. If it's an administrative function, the Commission is only immune if the act is determined to be discretionary rather than ministerial. Until recently, a planning commission's function approving or disapproving plats was considered judicial or legislative. In City of Round Rock v. Smith, homeowners sued the City of Round Rock alleging: the city negligently approved a subdivision plat applied for by a developer who filled in natural watercourses on the land that provided drainage.. As a result the homes subsequently built on the property flooded. 687 S.W.2d 300 (Tex. 1985). The Texas. Supreme Court found the city immune, because the function of approving the plats was a quasi judicial exercise of police power.. The court held: .Governmental .immunity .applies when a city exercises .discretionary powers of a .public nature embracing judicial or legislative functions ..Judicial power. is the power conferred upon a public officer to adjudicate the rights of individual. citizens by construing and applying the law ... A subdivision plat cannot be recorded without the approval of the planning commission ... In deciding whether to Memo Re Grand oaks July 24, 1996: Page 4 approve or disapprove a proposed plat the planning commission must interpret and construe the city plan, applicable ordinances and state statutes to determine whether the proposed plat complies with these laws ..Thus, plat approval is aquasi-judicial exercise of the. police power. Id. at 301. In Woodson Lumber v. City of College Station, Woodson sued the City based on the Commission's several denials of a plat, alleging that the decision was arbitrary and capricious and not a valid exercise of its police power. 752 S.W.2d 744 (Tex.App. -- Houston 1988). The court. of appeals, relying on the Round Rock decision, determined that College Station was immune based on its use of discretionary powersembracing both judicial and legislative functions. A more recent 1995 decision, however, found a planning commission's approval authority purely administrative.. Bartlett v. Cinemark USA, Inc., 908 S.W.2d 229 (Tex.App. -- Dallas 1995) reh g overruled. In Cinemark, a development plan was submitted to the Dallas. City .Council..- {acting as the planning commission) providing for the construction of an 18-screen.theater. Thee Council ..voted to reject the plan ' concluding that a theater was not a permitted use of the property. Cinemark filed. suit alleging the ,rejection was arbitrary and .capricious. Because Cinemark's cause of action was brought under § 1.983, federal law controlled. The court of appeals determined that the ..council's decision was administrative in nature and that neither the city nor individual council members_were immune from liability. The court. reasoned that-the facts on which the decision was based were specific to that case. and affected only ,those individuals rather than affecting the public. The court further determined that the. planning commission had no authority to enact legislation under Dallas''city code and`their function was. purely administrative. The court went on to determine that commission members would be entitled to qualified immunity only;if they were performing a discretionary function, defining discretionary to mean "a function -that requires personal deliberation, decision and judgment on the part of the official." Id. at 237. Based on these decisions, I would say that the Commission's position on this particular decision is precarious. The Commission gave no reason on record for rejecting the plat. The City Planner's Office determined that all zoning Memo Re Grand Oaks July 24,...1996 Page 5 requirements and subdivision regulations had been. met and informed. the Commission. of such. I reviewed .the staff report, the developer's application for approval, .and the subdivision .regulations. and could not find any surface discrepancies supporting the decision. .This is not. to say that the Commission's decision was invalid or .arbitrary and capricious, only-that the Commission failed to articulate a reason. The City, as a result, is potentially subject to a claim that the decision .was arbitrary. and capricious. Given .the .decision in Cinemark, the City and individual Commission members may not be immune to liability for such a decision. There are three di ferent options available to Mr Scamardo at this time of which the City should be aware: 1) Mr. Scamardo can request. that the municipality certify its .reasons for the. .plat denial. If the reasons provided are related to a .failure to meet the subdivision regulations, Mr. Scamardo can appeal the decision. or modify the plat and reapply. for approval.. If other reasons are. given, Mr. Scamardo may. choose to pursue civil action. However, because he has not yet exhausted all administrative remedies (i.e. appeal to .City .Council) his cause of action probably is not ripe. See City of Sunnyvale v. Mahew, 774 S.W.2d 284 (Tex.App. -- Dallas 1994) cert. denied 111 S.Ct. 963.. 2) Mr. Scamardo can reapply for consideration by the Commission. Jane, you questioned whether or not the City could waive the 15-day notice required as long as those persons received personal notice. .The property owners adjacent to this property (who were at the .meeting last week) could be personally notified since the City is under no obligation to give them legal notice. Those neighbors that are entitled to notice under §212.015(a)(2) should have the 15-day notice as required. 3) Mr. Scamardo. can appeal the Commission's decision to City Council pursuant o §5-C.2 of City Ordinance No. 2179', This section provides "An applicant. may appeal a decision. of the .Planning & Zoning .Commission with regard to planning issues such as street locations and sizes, public facilities locations, .lot layout. and orientation, park and/or greenbelt locationsor concerning any other matter within the authority of the a k _/ Memo Re Grand Oaks July 24, 1996 Page 6 Planning & Zoning Commission .acting within .the scope of its planning authority.. The appeal. must be submitted within ten calendar (10) days from the date of the Commission's decision. The appeal shall be placed on a Council agenda within thirty (30) days of receipt of the written appeal. The applicant must how how the Commission's: decision was unjust or in error in whole or in part in its decision.. The applicant shall specify in writing the basis :for the filing of anappeal of a Commission decision. The appeal will not be processed without this information in writing.." Whether Mr. Scamardo chooses to reapply to the' Commission or appeal is entirely up to him. It is not the City's position to advise. that he do one or the other. Conclusion The language: in the TEx. LOCAL Gov'T CODE §212.010 supports a conclusion that the Commission's approval authority is administrative. Discretion to deny approval .for any reason. other than those. permitted in §21.2.010 is prohibited. Since, in this .case, the Commission did not state a reason for the disapproval, the City... may be ubject. to liability. Mr. Scamardo must, 'however,. exhaust his administrative `relief before a cause of action against the City 'is ripe. Upon reconsideration.. by the Commission or' appeal to' City Council the right decision should be reached whether it is .approval or a rejection for appropriate .reasons supported by the evidence. In the future, Commission members should be counseled' to articulate .viable reasons for rejection. `based on the evidence presented..