HomeMy WebLinkAbout182 Zoning Board of Adjustments Legal Workshop January 11, 1983•
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MEMBERS PRESENT:
MEMBERS ABSENT:
STAFF PRESENT:
MINUTES
CITY OF COLLEGE STATION, TEXAS
Zoning Board of Adjustment
January 11 , 1983
7:00 P.M.
Chairman Cook, Members Wagner, MacGilvray and Council
Liaison Boughton
Donahue; Upham and Alternate Member Lindsay
Zoning Official Kee, Assistant to Zoning Official Dupies,
Director of Planning Mayo, Assistant Director of Planning
Callaway and Planning , Technician Volk
City Attorney presented a Legal Workshop covering the attached article
11 The Authority and Responsibility of the Zoning Board of Adjustment in Texas 11
by John C. Ross, Jr. and Susan M. Horton.
He then advised Board members to help adopt rules for the Board and Staff
to follow, and further suggested that one of the new rules be that if no action
is taken on a variance during a public hearing, the variance will automatically
be denied by adjournment .
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THE AUTHORITY AND RESPO NSI5ILITY OF THE
ZONI NG BOARD OF ADJUSTMENT IN TEXAS
by John C. Ross ., Jr. and Susan M. Horton
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Tf..E AUTHOKIIT .A_~il RESPONSIBILITY OF TilE
ZONING BOA.RD .or 1'..DJUSTI'!El\TT IN TEXP.S
by John · C. Ross; Jr. and Susc..n M. Horton
The Zoning Board of Adjustment is one of the most powerful of
City Eoc..rds and at the same time is 2. Eoc.::-d that is often mis-
u..~derstood by those citizens of the co!!Elu:-1ity who seek relief from
the Board of Adjustment. Much of the confusion surrounding the
Zo~ing Board of Adjustment stems from a lack of w.iderstandi~g cf
t~e Authority and Responsibility of the Board and a :endency to
coniuse its ftL~ctions with those of the City Pla~niLg Col:L2ission.
The purpose of this p2per therefore will be to outline the • .i:.
SDec:....1..J..C
2uthority of the Zoning Board of Adjust~ent c.s it cperates ~~der
Texas law and to comment on the respcnsibilities of tbe 3oc.rd.
AUTHORITY OF TE..t. BOA.RD .
The authority for the ~creation of the Boe.rd of Adjustment is
purely statutory. The Legi~lature by the enc.ctment of Art. 10llg1 ...
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of tne Texas statutes has provided the vehicle for the creation of
the Board by the governing body of the City. The specific au-
thority for the Boards creation reads as follows:
Such locc.l legislative body wzy provide for the ap-
pointment of a Board of Adjustment, and in the regulations
~nd restrictions adopted pursuc.nt to the authority of this
Act lliE.Y provide that the said Board of Adjustment -p:ia.y, in
appropriate cases and subject to c..ppropriate conditions c..nd
safeguards, make special exceptions to the ten::J.s of the
ordinance in harmony with its general purpose and intent and
in acco2dance with general or specific rules therein con-
tc.ined.
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It: is iwJortant to note that this statute is permissive and
no: mandat:ory i.e.: it is up to the gove:::-ning body of the City
·wnether or not to create the Board and if the Board is created
.,_~:-,,2.t special exceptions that the Board will be 2u:horized to
grant. Although the grant of power t~ create the Board is per-
=issive I kno~u. of no city which operates without a duly con-
stituted Board of Adjustment. In fact failure of a city to estab-
]_ish
City
a Board of Adjustment IIl.2.Y well endanger the integrity of the
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Zor~:.ng ·plan.
".,.--::-._ L. lOllg sets fo::-th thr~e speci::ic powers thc.t the :Board of
Acijustment sha~l hc.ve:
1. To hear 2.Dd decide appeals where it is alleged
there is error in any order, requirement, decision, or deter-. . ' b ' . . . r-.c• • 1 . h . ,... uinc.:ion maoe y an a0ninis:rat:ive o=~icia_ in t e en=orce-
ment o= this Act or of any ordinance adopt:ec ?ursuant thereto.
2. To near and decicie special exceptions to the terw.s
of the ordinance upon which such Board is required to pass ·
under such ordinance.
3. To authorize upon appeal in specific cases such
variance from the terw.s -of . the ordinance as ~ill not be con-
trary to . the public interest·, where, ov.~ing to special con-
ditions, a literal enforcement of the p::-ovisions of the
·ordinance will result iri ~U...'l.i."1ecessary hardsr.ip, and so that
the spirit of 4 the ordinance shall be observed· and substantial
justice done.. · ··' ·
It is important to note that once the Boe.rd has been created
that it is the state statute itself that spells out and authorizes
the powers that the Board shall have. It should also be noted
th2~ the Board has no other power that is no~ specifically dele-
5 gate~ to it by this statute.
Let us examine each of the aforementioned powers individually
for clarification.
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In Lhe enforce~ent of any Zoning Ordinance it is often
necessary for 2 zc~ing offici2l or some other ciesig::-.ated officer
of the City to review and make determinations in reg2rd to the
compliance of an individual under the ordinance. By way of ex-
aw?le, the zoning official may h2ve to make a f2ctu2l dete=-r:.ina-
tion a~d render a decision in 21y one of · the
1. Does the individual property o~-:ner qualify for a non-
conforu:i.ing use under the zoning ordinance?
(c) V.,7"'nen did -:he non-confo:::L.ing use co:ne into existe:;.ce?
(b) Has it been abandoned?
2. I~ the individual's proposed use of Lhe property authorized
~ithin the zoning classification for such property?
3. Is the use of an auxiliary building properly classified
as an accessory use u..1der the zoning ord:i.nance or is it
a new independent use?
4. Does the individual meet off-street p2rking and set back
requirements as established by the zoning ordinance?
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If the individual disagrees w-:Lth the ruling, order or deter-...
mination of the Zoning official, then he is entitled to appeal
such ruling to the Board.
In this type of appeal the Board is faced ~ith two respon-
sibilities, to make a determination of the facts surrounding the
ap?eal and to exercise its administrative jucigment or discretion
in interpreting the applicable law.6 In discharging this _ du~y it .. -. ~ --· --..
-~ is i:nportant for the Board to accept the law as it finds it and
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!'lo: a-ctespt by its decision t.o promulgate new ex post facto legis -
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_2 ::.ion. Although the Board of Adjust:2ent when c.cting within its
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ju=isdiction act.s as a quasi-judicial body, the Board is given
they are not given the power to rew'Ti te the ord.inc:..nce to their
l .k. 9 :::.... :i..ng.
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The rec:..l issue in a case cf this nature is whether or not the
Zoni~~g official has properly and correctly applied L:he 2.pplicable
law as set forth in the zoning ordinance to the individual who is
In handling L:his ty~ of hear-
~ng the Board must do the following:
1. Y.i.2-ke a careful determ_inaL:ion of the facts brought before
3.
the 3oard at the hearing.
Review the facts as actually fou...""ld by the Board and ·.
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reduce these to v.rriti~g_in the Board's O'!"cier or be sure
they are carefully set forth in the record of the hearing.
Review and determine the applicable law as set forth in
the zoning ordinari~e.
4·_ Apply the facts found by' the Board to the lc~w and render
a decision.
If this procedure is followed it will be of great assistance
to the Board in determining whether the zoning official has erred
or was correct in his ruling or decision.
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?o"W er To Grc.n-c SDecial Exceptions
The second specified power co~ferred u p on the Board by P.~t.
lO llg 2.S t h e power to heir and .decide spec i al exce p tions to the
of the zoning ordinance _ 10 Al-c h ough it is t h e te~s sta-ce statute
thc.t grc.nts the power to the Boe.rd to hear a n d decide special
exceptions to the zoning ordinan ce, t h e 3oc.rd mu.st look to the
zoning ordinance itself to determine wh c.t s p ecial exceptions the
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local go v erning body has incorpor2ted in-co the ordinc.nce.
A specic.l except i on is a nart of t h e zo n i Ti g ord in2nce itse l f,
it is en2ct.ed b y the local .go ~erri.ing bo dy and b eing a. .. ~rt of -:h e
zoning ordin&nce itself it cann ot be altered b y ~h e Board .
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spec i 2 l exception allows an c.p p licc.mt to p t:t h is p :-o per::y to 2
-----· --------1 1 use wh ich t h e zoning ordin 2nce e xp res sly Der:Ti2.ts. It is im-
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portan t to distinguish a special excep tion f::-om a vari2.Dce as
these terms are often used interchangeab l y by tho~e who have
12 dealings with the Board, and the terlns are not synonymons .
A::,1ari2nce is c.uthority·· e'x ercised by the Boe.rd c.nd extended
to the 2pplicant to use· his ~r?pert:y in 2 ID2.D..J."'1er forbidden by the ··
zoning ordinance.13 A variance ,g:r-c.nted by the :Board alw2ys
requires the applicant to show that he will sustain an unnecessary
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(~har~~_p __ if. the ordinance is given its l • 1 L 14 itera en~orcement. A
special exception does not require the ap p licant to demonstrate
haTdship in order to qualify for the exception.
The Boa.rd must alw2ys keep in mind that when it is hearing a
request for a special exception to the ordinance, it must look to
-che ordinance itself ·to determine what conditions must be met in
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orcier h . . . f 15 to grc.nt t~e requestec relie . It is the burden ----
0£ the c.pplicc.nt to show that ?e meets c.1 1 the conditiolls requi:-ed
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o= der to be grc.nted the special exce p tion. -----------------------· ---------------------. -----
Tne Boa.rd must accept the special e x ception 2nd its attendant
conditions as they are found in the zoning ordinc.nce and gra.nt the
exceptio~ only when the applicant demonst:-c.tes th2t he meets a.11
of :he reauirements a.nd conditions of t h e e x cept i on . The Boa.rd
ca.~not go beyond the scope of the zonin g ordinc.nce bec2use does l -····· --------17
n o:--~a v e -che powe'.::-to _ li:_g_~-~~2--~_e;._. __
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......,_, ~e s--. ec i_· _f-_; c ..-Lvpe of speci· ~1 exce "'"'-~ o ....., -h--~--)-be co .,..,s.; o'e,..e ' ~l ,_, .l -~ • i:" L ..:.. u L...~ c ~ ;..,,;c ' l • .._ -Q .
b y Lhe Eo a.rd will v c.r y depending on th e e x ce p t io ~s c.uthorized by
t h e locc.l gove-=ning bod y . The Bo e.rd must look to the ord i na.nce
fo:: the enu.::iera.ted e x ception , however, i l l"C.strat i ons of the type
( o= except i ons that ma y be authorized a.re as fo llows :
1. ?erwit the reconstruction, extension or enlargement of
a non-conforming .building.
2. Fermi t the use of . property o-w-ned Dy a c h -..:rch for the
parking of passenger cars in c.r,y district under such
sa.feguards and conditions as c.re necessary to protect
-----~-~t<::c€:~t=---.!p~r:.:_o_E:p_::e~r:_:t:.::Y~· -----------------------, ---·-.
/ "tents", sc.les" l
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3. Pe~t in certain zoning districts,
c.nd "siciewalk sc.les" where 2cecuc.te previsions are ~ade
-------__ fo_r -sc.fety and pc.rking.
4. Per.:ui t appropric.te mod.i::ica tions of setbc.ck l"ines when
because of special topographic conditions the purposes
c.nd intent of the ordinance can be met, a.nd adequate
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open space, light, air and pri v ac y pro v ided, ~ithout
conplying with the no:::-mal setback requirewents; but not
more than thirty-five percent (35 %) of the lot area
shall be covered by structures.
The above listed examples are by no means exhausti~e of all
of the possible types of special exceptions the 3oard Iil2Y be
au:.horized to hear but they do ilh.::.st:rate 'this £-..:.:.-i.ction of 'the
Board.
The third and :final po·wer con£ erred on the 3oar6 by .AIL:.
lOllg is the power to grant a variance fro~ the terms of the
18 ordi~ance. A variance .is L:he authorit y extended to the Board·
( ~v:hereby the Board mc.y 2llow an 2pplicc.nt to use h is p::-oper~y l.n a
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.r: • • ., b h · . a· 19 manner ~oroiooen y t e zonJ...ng or l.nance. The Board is c.uthorized
to grc.nt a vari2nce from the ordinc_nce provicieci such action is not
co~L:rary to the. public interest .and due to special conditions, a
l:.teral enforcement of \:he prov":Lsiohs of -che ordinc_nce \.."ill result
h 'h. hi:,!~,. 20 in unnecessary arGs 1.p on t e app_icant.
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Case law of this State has est2blished -che following con-
ditions which must be met before an applicant is entitled to a
variance :
1. When seeking a variance, an applicant s~st show an un-
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h d . . 21 necessary 2r snip . . .
The hardship must not be self imposed, nor financia1
only, and must relate to the various property for which
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the vcS..Yiance . . 22 is sougnt.
3. ·The ha.rdship must be unique, opp:res s i ve a.nd not com::Don
to other property.2 3
4. It must be shown that the granting of a vari2.Dce by the
Board would not be against the public interest.24
S. The granting of the variance will be in accord with the
spirit of the zoning ordinance and substantial justice
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Th e burden is ·always upon tbe a.pplicc.nt to .show that he has
met all of the above conditions before the Board grants relief to
. . 26 the applicant in the form of a varia.nce from the or c.i.nance.
7.1e Board should always reme::i.per tha-.: .:h e power -r::o vary the con-
d . . & h . '. h 1 ' . . 1 . . d 27 i.-.:ions o~ t e zoning orainance s ou o b e sparing_y exercise ,
and it is onl y when the .Board has sa-.:isfied itself that the con-
C.itions necessary for the granting of · the varia:lce have been met ···
. 28·· by the applicant that the variance should issue.
Although the Board is ,given the discretion -r::o va;:y the con-
ditions of the zoning ordinance, the Board must :remember that: the ...
. h "' 1 . 1 29 power to va.ry is not t e power to egis_ate . The Board may not
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under ~he guise of a variance re~-rite the zoning regulation ~p
plicable to the case in question, but may vary the literal enforce-
ment of those regulations on a case by case bas~s. The Amarillo
C f 1 . h f H . B d c A • . . 3 o ourt o_ Appea s in t e case o arrington v. oa.r o~ .c1ustment
stated :
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The latter (variance) means that substa.ntially the same thing ._
shall be done by the board as that which is provided by the
ordinance but relieves the enacted provision of its rigidity
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ma.::-k interpretation would work unDecess2ry hard.ship.3 .l.
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The purpose of a variance .is really that of a safety valve,
ex.is-cs to allo-w the Board, in a.ppropria"te cases, to vary the
stiict requirements of the ordinance. The Board may for ex~ple,
allow variances in the off street parking requirements, the set
back requirements, the side yard or rear yard :requirements, the
height requirements, or the landscaping requirements. A variance
shoul c5. not however be used to allow a use £!_9-_[lib_~_t ~_d by the zoning _ _,
o::-di~.ance for to do so would amount to ·a.mending the zoning ordi-
h . b ,, f32l-Ti B d nance, a power t e zoning oaror ooes not possess~ ne oar
sho·..ild grant a variance only upon their finding that the applicant
has met the test prescribed by statute and case law and should
grant a variance solely on the basis of its legal merit.
The Board of Adjustment is authorized by State Law and created
by legislation of the local governing body. Once created the
Board derives its powers directly fro~ the State Statutes and may
not enlarge upon the powers con·f.erred upon it . Broadly speaking
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the Board acts as a body to hear appeals concerning the enforce-
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ment and intrepretation of the zoning ordinance, to hear the merit
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of a case for a special exception, and to act as a safety valve in
granting relief to the strict enforcement of the zoning ordinance.
RESPONSIBILITY OF THE BOARD
In the writers opinion there are six major responsibilities
of the Board of Adjustment, these are as follows:
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1. Responsibility 'CO c.cop-c rules.
. 2. Responsibility to p::-ovide. a fair hearing.
3. Responsibility to cc:up ly with Open Meeting Law.
4. Respo:isibility to cc:nply with Open Records Law.
5. Responsibility to c.void -conflicts of interest.
6 . Responsibility to prepare findings and decisions.
Ee.ch of the aforementioned responsibilities is important and
sh~ll be discussed separately.
ResDonsibilitv To Adopt Rules
Art. lOllg states, "The Bo2rd shall adopt rules in acco'!"d-
ance ~ith t:he provisions of 22y ordinance adopted p~rsuant to this
Act.1133 The Legislature used the word shall in this statute and
he:ice, this is a lli.2..nd.c.ted responsibility of the Board. The rules
adopted by the Board shall be in accordance with the zoning ordi-
nance, therefore the rules adopted by t~e Board shc.11 not conflict
~ith any requirement set forth i.n the zoning ordinance.
Rules pror::rulgated by the Board cr..:s: be in keeping with the
requirements in the statute. ,Specific requirements include the
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followi~g as outlined in §504 of Te.~as Practice:
1.. Meetings of the boc.rd shc.11 be ·held:
2.
3.
4.
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6.
(a)
(b)
All
The
r;;c. y
The
the
The
At the call of the . Cha.irman. · · · c) >v b;eer tV ~-zf2, 17
At such times c.s the boc.rd determines. ;;;5 ro n~~e
meetings of the board shall be ~-~o the public.
Chairman or, in his absence, tlie acting chairman,
aciwinister oaths a...1d com~el at:tendance of witnesses.
board shall kee? cinutes-cf its proceedings, showing
vote of each me=.ber upon each question.
minutes shall ·-sl::.o";.r ·-ab s ertce ·--of board members or
fc:..ilure -co vote.
Appeals to the boarc 'i::ZY be taken by any person ag-
grieved or by an of=ier, department:, board, or bureau of
the municipali-cy af:ected by any decision of the adnin-
is-crative officer.
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Appe2ls sh~l .. L_be taken within a_ r~_?._son?-.f>)_§_ time py
filing ~_i.<?-.ticej of, ap1;>eal with tne ,_c?_}"fi~.~k~cSID whc:;II1 ~ . .;.,vce...
appeal is taken ana ·,.n_ L:h the board of adJ us tment. ~'i
The notice of appe2.l shall specify -cne grow-ids o= a?pec..l.
Tn e aciministraL:ive officer from whom appeal is taken
shall forthwith transwit all the _p_c.p .e:r_~ constitu.ting the
record upon which the action appealed from was taken.
10. P.n appeal stays 211 proceedings in furtherance of the
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15.
16.
17.
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action appealed from unless item 11 is followed. ·
Tne officer from whom appe2l is taken shall certify by
the reasons stated in the cerL:ificc.te th2t c. stay, in
his opinion, would cause irEJ..i.nent peril to life or
property,· ,/.//~ ..-4c); :'.,'ii 2--~:,.~~lz,;,J..U~-_,,ulU;j_.-;,,vvJ ·
If such hertifitate is filed as mentioned in item 11,
proceedings may be stayed, on due cause shown, by a
restraining order of the bo2rd of adjustment or by a
court of record on application and notice to the officer
from whom 2ppe2l is taken.
The time of the hea~ing of the appeal shc.11 be fixed by
the boa.rd of adju.stment, whi ch shc.11 be a re2."Sonable
tiu::.e.. (,,,_,./~_,,~ d:/;7 _-;1..;, -
Due notice to the public c.nd to the parties in inte~est _
shall be given by the boa:rd of c.djustment. ~/ .--..c ;~>~;,/ V) ,_
Tne apDeal shall be decided bv the boc.rd of 2.CJ. us t:ment /""c.>u .:.?_::,.f • _, v...-<71":. .
·v.·l. ~h::!...n a reasonable time. :~·
Upon the bee.ring, any pc.rty may c.pp ear in person, CT by -~ ·
agent or by attorney.
The board may reverse, or affi:::-m, wholly or partly or .
may modify the decision appec.led from.
To effect any reversal or varic.tion of the decision
appealed from, the board :rµ-ust have a vote of at least
four (4) concurring .vo-ces ' of its members.
UDon service of a .. -w--::r.·it of ce::-tiorc.'i-i directed to the
board of adj us tmen t ,,, .. the boc.rci shc.11 re<:urn cert: if ied or
sworn copies of the original papers, OT the original
papers, upon which: the decision wc.s rendered) and con-
cisely set forth such other verified fac·ts, pertinent
and material, to show ;·the gro.uncis of the . decision.
u. /lp.r/i'i:.. j 51::-d'~t/?. ~'d,-~//~~
Experience has shown that the board .of .adjustment
shouid include in its ·rules the ·ma.tters hereinabove set out
but eliminate such uncertainties as meeting time, by fixing_
~g~~ar meeting dates, nc.ming a secretary to keep records and
prepare notices-:-i<eep forms for appeals so as to assist
aggrieved persons to get matters before the board, have a
regular meeting place, and arrange for posting of notice of
agenda for mee-cings as required by Article 6252-17. (Open L---
_}1eeting Law) .. 34
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The above quoted section of the Texas Practice series, set-
t~ng forth rules of the Board is by no means exhaustive of the
=ules the Boa:::-d may adopt, how_ever the Board is limited by the
·require:i!lents of the statute and their zoning ordinc..nce. It is
submitted that adoption by the Board of appropriate rules will
serve as a road mc.p to assist the Board in the discharge of its
duties.
ResDonsibility To .Provide A Fair Rec.ring
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Tne Boe.rd of Adjustment in discharging their duties acts as
ad-::i~nistrative body with quasi-judicial functions.35
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In discharging its flli~ctions as a quasi-judicial body, the
Board has a responsibility to _assure a fc..i:::-c..nd i~?artial hearing
. 36 c;J the w.atters under revi.e-w. In discharging this obligation,
the Board should pay particular attention to the following:
1. Be sure to give adequate notice of the bearing before
the Board both to the in te::-es ted .parties .. and to the
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pub-l'ic. Failure of .the Boe.rd to give such required
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notice will nullify the hearing held by the Board.
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Nothing is more basic to a fair hearing before the Board
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·-:.-...-....~ than fulfilling .the· requirement of giving notice as ·· .,,,..
'~equired by the statut~~ In the -eyes of the law there
is not a fair hearing unless an opportu:-1ity is afforded .
the parties to prove their case before c..n ad~;nistrative
38 agency ..
·2. Render a decision within a reasonable time~· Art. lOllg
itself imposes an obligation to render a decision within
. 39 a reasonable time. The Board should remember that
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4.
justice delayed is justice denied.
Cowpel attendance of witnesses. A-::t. lOllg gives the
chairman of the Board the power to conpel the attendance
~ . 40 1 h h h . . 1 h OI witnesses a_t oug t e statute is si ent as to ow
this may be accomplished and what sanctions are available
in the event c. witness fails to comply. It is suggested
that the procedure for issuance -and serving 2-subpoena
to compel the attendance of a witness be set .forth in
either the zoning o:.-dinance itself or the rules adopted
·oy the Boe.rd. It i _s ;;ery iI::po!:'tant for the Boe.rd to
hc.ve .and exercise this po\.Jer, f C!:' adverse pa:r-ties before
the -Board hc.ve a.n absolute :.-ight to cross-examination of
all adve:.-se witnesses, therefore the power to compel
such witnesses to attend is necessary to o fair
Provide for the cross-examination of ~rj_r.nesses.
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hea.:.-ing.
The
Supreme Court addressed the,; issue of cross-examination
in the case of Richarcis on v. Ci tv of "D • 42 .... asacena. ''The
right to cross-examin.s_tion is a vital element in a fair
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adjudication of disputed facts. The right to cross-
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exa~ine a.n adverse witness and examine and rebut all
evidence is not -confined to court-trials but applies .
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also to administrative bee.rings." Fc.ilure of the
Board to structure its hearing in such a way as to
afford the rights mentioned above to adverse parties
will more than likely be grounds for the courts to ·set
aside the action of the Board.
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Ii the 3oard will give paiticular atLention to the above, it
[ ,,-ill go a long way to negate any allegc.tion of lack of due process -...... f
! or lack of a fair hearing before the Board.
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Resnonsibility To Comnly With The Or>en ~eeLing Law
To insure that the public has a right of access to goverri..mental
~4 weeLings the Texas Legislature passed -che _ Open Mee.ting Law. ·
'I2is statute is ma:ndatory and provides that every regular, special,
or called meeting or session of every gove'!:TIITlental body shall be
O?en to the public.45 By definiLion this statute applies to the
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Zoning Board of Adjustment. Compliance with the Open Meeting
Law is essential in thc.t violation of the law may result in the
invc..lida-cion 47 of the action taken by the Board. ?urther, if the
violation is wilful on the part of the Board members a criminal
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penalty may be imposed.
Tne Open Meeting Law requires thc.t ·written notice of the
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date, hou:::-, place, and subj_ec .~ .C:f each Zoning Board of Adjustment:
mee'Cing be given before the 'me~tihg at a place convenient to the
publ~~-in the City Hall.
49 T~e :: notice :nus t be posted for at least
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72 hours"" preceding. the schedu~ed time or the meeting unless the .
meeting is called for an emergency or urgent public necessity in
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which case two hours is sufficient. In that case however, and
if a request has been filed by any news media, notice must also be
1 . 51 given to them by telephone or te egrapn. Additional notice
~ requi_rements may be adopted in a City 1 s Charter in which case ·
l_ these must also be met even though they are not addressed and are
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52 ~ore SLTi~gent th2.D the State legislation.
The notice required by the Open Meeting Law must be specific
enough to inform the public of the matters to be considered. For
·i~sLance, notice that a meeting is to be a regula:r meeting or that
it. is to ratify action taken at anothe:r meeting, without listing
specific matters to .be considered is not sufficient notice.53
Notice must be sufficiently specific to apprise the public of the
subjects th2t will be discussed and gene::-21 phrases such as "new
bi.!siness," "old business," "regular business," "routine business"
and "other b·llsiness which In.2.Y ·come before the board" -will not
1 . h h" . 1 54 comp_y wit t is artic e.
Although the requirements of w-ritten notice a:re mandatory,
coi.lrts have held that col!lpliance with its provisions are subject
to the substc.ntial 1 . 1 55 cor;:ip_iance ru_e. In some specific cases the
courts have held that notice wc.s given in "substail'cial compli2.Dce"
with the requirement even though the le~ter of the statute was not
56 met, however it is a far better prattice to provide the public
effective notice with specif.icft'y ·for the full st2tutory period -co .,
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avoid unnecessary li tiga.tion.p: t ~
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Responsibility .To Comply .with 0Pen Records Law
The stated public policy of the Texas Legislature is that all
persons are entitled to full and complete infoTillation regarding
the affairs of the government and the official acts of public
58 officials and employees. The Open Recorcis Law therefore states
that "all information collected, assembled, or maintained by
~ governmental bodies pursuant to law or ordinance or in connection
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~ith the transaction of official business is public inforwation
2-.Lid available to the public during no:::l:Ilal business hours of any
go·vernment2l body" subject to certain exceptions. 59 If a written
request for information is received, the gover!'.mental body must
provide the info~tion unless it falls within one of the stated
exceptions. If there is doubt as to whether the information is
. 60 excepted, a decision of the Attorney General must be requested.
An individual can seek a Writ of M2..L1damus to compel the govern-
1 b . k . h . .t: • .· • 1 . 1 61 me:n:a_ ocy to ma e t e J..n..:..ormation avai ab e.
The records of the Zoning ~Eoard of Adjust:i:Ilent are subject to
t~e pur;iew of the Open Records Law. 62 Therefore all of the
Board's records are subject to disclosure unless they are specifically
' . ' 1 . d . . 63 Th B ' I ' , 1 ~ exe.~ptec in tne _J..ste exceptJ..ons. _ e oarcs agena.a anc. a_l
(. materiai supporting the agenda is public information. 64 The
~inutes of the Board are also public and must be disclosed even
65 though they have not been officially ,.approved. In::Eornation
collected from individuals Cdn~erning matters to be considered are
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also public. The Zoning Board has a responsibility to comply
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with the requirements of the Open Records Law and must also comply
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with a~y additional requirements that may be set out in the City 1 s
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Charter.
In meeting the requirements and in acco~plishing the purpose
of the· Open Records Law, the Zoning Boe.rd of Adjustment should
caref'.llly preserve the proceedings of the Board and accurately
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record them.
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Boe.rd members should rec.lize thc.t in the discharge of their
~ d~=ies they perfo::1!1 a sovereign function of government and thc..t
they pe::-£0::1!1 this function for ~he benefit of the public largely
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independent of the control of others and as such Board members are
'" '" · f the C · 6 9 oIIicers o ity.
In the case of Delta Electric Const. Co. v. Citv of S2n
.Antonio, 70 the cou-::-t stated t.hat "It is the general rule that
~i.:nicipal contracts in which of £icers or ew?loyees of the City
hc.ve c. personal pecu.i.'"1.iary interest a.re void . . The for _egoing
rule rests upon sound public policy. Its object is t.o insure to
the City strict fidelity upon · t ·he pc.rt of those "'ho represent it
,...~ ----ge ,·-s -+~a,·~s 2.~L~ u.c.uc.. -L · c...:.. .!.. --• The rule prohibiti~g public officers from
being interested in public contrc.cts shoulc be scrupulously en-
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Boc..rd me!il.bers should always be on their guard to see that
this responsibility is adhe~red to.
Re sDons i·oi. 1 i tv To ?::eDa!'e Fin.d{ngs .F .... "1d Decisions
The Zoning Boe.rd of Adj-q~t_IDent must n;ake specific .. finding-£.,
once a decision has been made by ~~.e Board setting forth the be.sis
and reasons for the Board 1 s decision. 72 This is to provide the
court in the case of an appeal the ability to review and evaluc..te
73 the action of the board. Article lOllg provides thc.t an . c..ppeal
from c. board's decision is to be done by a "'Tit of certiorari
which requires the. boc.rd to return the pape-.::-s ac-ced upon and
' -further stc.tes that the return "shall concisely set forth such
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other facts as may be pertinent .and m2Lerial to show the grou:lds
.c • • • • 1 d .c ·.c· d 1174 o~ tne oec:i..sion app ea e ~rom. ind shall be veri~ie . Yne
. generc..l rule is that in the event there is f c..ilure to make such
findings the tric..l court must set aside the decision or remand the
75 case to the Board for further action. However, in the event a
request for a speci a l exception is denied and there is no manda-
to:ry city ordinc..nce which requires findings Lhen the Board's
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decision may be upheld. A careful review of the requirements
set out in each particul ar city ordinc..nce should be examined and
at 2 winimum the requ irements in the state statute should be met ... . . 77
when a var:i..c.nce is granted. Findings in accordance with the
requi:re!!ients -of-2 city's ordinance when mandated and the require-
Dents of the state stc..tute must be set out accordingly or the
78 Board's decision may be found · by a rEviewing cou~t to be void.
To avoid the possibility of rendering a decision that is
challenged because findings are not made the Board should make a
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practice of setting forth findings in their decision whether it be
granting or denying a request so that a court caTI properly review
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thc..t decision in the event it is appealed.
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Yne Zoning Board of Adjustment is a power:ul Board of the
city, the me~bers should al~ays be co nsc~ous of the authorities
that they possess and of the lirri.-ati o~s . 3y adhering to the
responsibilities outlined the Boe.rd \.;ill p ::-ovide a. valu"c?.ble service
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to the cl.tizens of the coc:::iunity.
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