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VAR1999-000144 (2)
" 12 /16 /99 23 :24 FAX NclsonL. ~e, M.lll., L.l'. U Family Counseling Profcs~fom11~· Date of Transaction: Nelson L Nag1e .Confidential l)ecernbe( 17 \ Cffi Number of Pages (including cover page): fO: Br'•~e: h"'.hb\, Receiver #: l~t\: ~~ Company Name: (~l bi of Co\\ege ~+loo Comment;;: . ~00 Wmt Main Slroct Roua~ flock Terns 7 8 6 0 4 Tr.lcpbone : al2-218-0fil~ Fat~irnile: 512-218-1821 }IAAN\_f:.s. f,...... '(~ 1.~ -- f I ed-U... rf ~ ...:..._ fy,,,._-}-1 J 1 ~ -J. ~ ~ c~l l YN-_ fi-sf} P 1'" ~ ~ "~~. ~V.L 12 / l 6 / 9 9 2 3 : 24 f "AX W. STEVEN STEELE Board Crrtltlod Civil Trial Law p.,,..,na.1 Injury Tri~I Law Teu.• Boatd of Lccal Specializaci o11 Mr. Bill Payne Payne, Watson, Kling, Miller & Malachek 3000 Briarcrest Drive, Suite 600 Bryan, Texas 77802 r11 e.1.:;uu L.. l~tsis.u:: ' --- DAVIS & DAVIS RE<~ ~~-. ~ ~. 'ED ... ;· ~~: ~ !·:t ' ATTORNEYS AT LAW 1' Prof ... ionol Corporation DEC 1 5 19 99 POST OFFlCE BOX 3610 Bi;tYAN . TEXAS 771105-3610 PA'r"N ~ ... ~.-•···"-'!.:, r.:L:Nc MILLEfi i'i ~,1 :4l5CH E:< P.C . ............. _. __ .. -..... Telephone (409) 776-9551 t Trlcfu (409) 776-2712 3lOl Briarcrcst Drive . Suire 602 Bryan. Tcus n802 December 15, 1999 HAND DELIVERED Re: Cause No. 50,081-85; College Station Homeowners, et al v . Nelson Nagle & Stylecraft Dear Billy: My clients have researched the deed restrictions recorded for College Park Subdivision . It appears that the only deed restriction applicable to Mr. Nagle's lot is found in Volume 111 , Page 197 . The only restriction that would prevent your client's proposed construction is a 75 foot frontage requirement for each individual building site. Thus, your client has proposed to "gerrymander" his frontage so that the two individual building sites would have frontage of 75' and 79' respectively. The new construction would be on lot 12 , There are no side setback requirements in any current deed restriction that would impact the proposed construction under this settlement proposal. My clients have expressed concern if this settlement proposal is accepted to resolve this lawsuit whether the City of College Station would "revisit the issue". In other words, if Mr. Nagle reconfigures lot 12 to add the necessary frontage, will he have to seek approval from the Planning and Zoning Board or the Board of Adjustment for the new proposed construction site? If it is necessary for him to file a replat or to present the new plans to the City for approval the change in lot 12, it would be prudent for him to review this proposed settlement with the city staff before we enter into any agreement. There may be unknown administrative impediments that prevent the settlement from being completed as proposed by your client. Please have your client discuss this matter with city staff and advise me of their position . "f!:.I v-. t I i ... • 12 /16 /99 23 :24 FAX December 15, 1999 Page 2 Nelson L Nag1e The other concern of my clients is the attorney's fees and filing fees which they have incurred in this matter to prevent construction that would in the absence of a settlement be a violation of the deed restrictions . In other words, it is my opinion that the Court properly enjoined your client from constructing the two buildings as proposed as they would have been in violation of the 751 frontage requirement under the applicable deed restrictions . Therefore, I would request that your client consider reimbursement of attorney's fees and court costs as part of our settlement negotiatio11s . To date. the attorney's fees and court costs are approximately $3,800. Please review these matters with your client and advise me of the City's position regarding filing a replat to lot 12 and your client's position on reimbursing attorney's fees and expenses as part of the settlement agreement. I look forward to hearing from you on these matters. WSS :lr cc: Mike Luther (via e-mail) Mrs. Helen Pugh Mr. Bobby Mirza Mrs. Norma Miiler Sincerely yours , William Steven Steele . ' 1 2 /16 /99 23:2 4 FA X · . •• ," I•' ·} ;::~;i1j; .!.~:: Y'' f -·--_---: -:-... ~-.-,, ~:·.: ['}}'.> .:·;~. " . , .... · ... :· .. . . ( ~~:. . . ~ ... ; . ·-:-----r . ... · .JONCS .ST. COl.1Z.GJ P~ COlllCI SUTION n:v..:J l 'll;C• 19~ 'Z •....... \ ~ a C o n~rol MQn'lmlDDt 1Ef ~ . ,µ G--~~-""L--.,,..,.,.;._.:J ~-~_;. .. ,.,.,,~T.'""S,_.., r----.'T?..--€):,.. .. ~-~·~·- ' . ~) ·.·· \ '.;_.·:, ~ · .. ·· ... . • r ..... ~.:, .~ PARJr .. Pt..At;"f; :. \ ~ . " . .. " .... " . ... -.. ~ ~-... -w .. ' ~ ' .... . .. ' $:! . ·i .; r .... ~ L:., ,... ~ . r, ' ~ ---. ,,,,,.. .... ·---. -'f ~ .. :..-: .... "' ~ i... ~ · . ., ~ ~ t t D sr.· .... N ' .. '·. -Ill ·. s ' ·. • ... ~-.. " ...I \~ .. I; l'I I ~ "> ~~-, . u.I ': · .. =: -.. •' .,-, . -.. " ... • . :·~ . . . .. .. . .... · "!' .. •.' .... . · ~ .... ~ ' 'II .. ,: IQ ~ '> . ~ ~ .... /· ~ .... ' -~ --~ .j ~f)-~ l ,. I ~ ~ ~ ~ ,. ~ -·: ~ . "1 l ~ 0 . "> .... ___ ~ ... ~ ~ .. ~ ~ ~' ~ ~ ~-.. = ~ .... l ., . ~ J ! .... ~ .... Cl ~ -~· ... \ ' ... . . I: . ~ Lo "- 0) /~ , ~ ~ '> ....... •1 P..I -, .... ·-- FIDliLJTT .ST. · .. : . .-·<!VCRNSCT .$T. . (Onr) J.pp.ron~ lul:r 2. 19"1 01'b'b Oil~ Czi.ra. C:oll•c• &~au.a, Tua.• J'.,, .lleDI •1 ***· .. . ~ ' ~ . . .. l · i ·I e ~ ~ c ~ -· . I I 'I ·f l . I i I ... ·-I : '\.J EXHlllf. fl • PAGE "..J_ OF _!L PACES 12 /16 /99 23 :24 FAX ..... 10 • 8 .. . . . OJ' IJll.UIS . l _ ~· 11r 4u4. 4ate4 ..l.Jir1l 4tll. 1941, &A4 :reooi-Oed 1.n •oiuu l06, past · r th• De ... Reeo:rda or IJ'uo1 COWl\J 1 Te::u.1, !!lo11tl:1"141 ll6nloJ:ID8.ll\ CallJl&.117 o OllTe7e4. \o QakWgo4 n . .· I c~ or Coll.es• StaUoD oe~&l• 1ro:11enr 111 tll• Pl1111 or Col.le«• h:rlc 11l 1"1e' Co\l.lltr.. · r·~•1'.llU 'boi~ h•n .~4• to &14 4u4 .&114 1u . ni::o:r4 ni:r h•o:ripl.101:1 ot u.14 propen71 I ll!ll:!.L!, 1&.14 CaPoo4 l1alt7 CCll:l;pe.u;r or Coll•a• Sta t1oa 11 &eaircua or :re111b41"'14111« a . . • ot n14 proper't7 11:1 &ooo:r~&AH 11ltll Ult aon\o a\~oll04 pl4t 1 ~· porUoza r-uuW.hid.14, all ~!lat paJ"t. O: •a.id. prcpntr ao . ec:1He714 &D4 i,.111& Oil th• •ollth•a•t 1141 ot CllerliteJ' ! , P4 'bCIWl414 oa. tl:le 11art2nren. 'II,. n14 C'llenur S\:rut, 'llQIUM!._e4 oa U• 111011tl:l•ut 'llT Mo11t-; ~'foaue,' 'llC~ed. ·on tb~ \_~lltllt~U· lit the propert7 O'lflll~ '117 l.,C.1011n 11..1:14 011· th• ~ort)i.eu~· 1t~ lerers ... Str·~~ Wit~ 1t1 11or'thw11i oo~'1Auat1ca to·ou,ra••1 St!'••t.; ·· IOI l'la!R?!'Cll! O&kv~ Jte<f CClllp&llJ' o.t Colle I• .s~i1oa, 1 to~porat1011, a~tl.!14 har•i.ll • ! I ~oldei::ii, 0 ·U.%.ll1U"1eu,; '"l~ alltt'~rhod by .. :ruol11ttoa td.o:pt.14 l17 1tl l:lo&i-4 ot Di:roo~r· . . . ·-· : ui1'br bela:re tll• llo:r.io attnh14 plu \.a 'b• a t:r111 U4 oonec\ Jill\ or 1\~ :ru11W1'f1ilo~;. ; ; I r ...... , I ··l ·-~ -·1 1 ; _jn · 1 · c -~ .~t~"t• ...-. -•T• &I eh~ \ljlOD n14 :plat, j 1 lll'n~.!IS ~•'•iSDnure u4 en.l or 11.14 Oakwo4 Rnlt7 C111pe.ri7·or Coll.~&• ::lt~~io.1t," th11 tbe ~ .. , • .• .. . a.a,. o: 1 ~ .A_,J>. l~u.h. CAD~OD :RW.TY ·ca.11~ or coun;:t 0S~J.%'Io>r ~1'{{. .1 I portion QZ ~!19 ptOp1rt7 a~O'fl 4oa;rille4 1 aid 40.t ~ercllt 4e41cate to 'tht ll~t pf \~O ·. ~~ l:,:Z:,lllZ'5eH·, lta l':-ed4en.t, • ~-· . .::_ .. ~ •. : .(\ . . ~ u~ o~ ~1 · r .:' ."• ,; ··~ l · T. 01 Jl11,ZOS I ~ ii?, the ;md1:rdf:ll1d 'autbo:rltT, 0°D U11 ·4oT :par1oiidli a~n.rd ·;fl > bll:'gcu, 1=~ to~ to.•• tlu :pe:rau Y!loa1 i::ia111e 1s 1@sor1be~ to tU ro:reaol.:lg i~etr11-·; a.111!. h• aalalcnrled.ge4 to Iii.II tllat b.o ·e::u~llUcl. th• 11.1u tor "UI• pllr:poau and. c~11dbr11tion . ·:\I i, -··· · 11.D. .z:puud .ad 1A ll1.li upacU7 1.1 :p:ru14eD& or Ot.ic.oo4· J!~alt)' C~q:r .ar CoUcs• St..7· a :. ·! I I , 1. oor,cirauoa., _a:i4. ... tll• aot I.lid 4114 or aa.14 ~or}'OtaUoa. ~ :·1 >' GIVD 'Uoiu: .. ~.ba.U. 11.d Hal ot: o:rlce, t!i1~ 28tll d.a7 or J°'ll)J, l.9U. . ' .-·~: . • . .• -I . -..• :a , V, J.n.atrous;, & llOh.J"T l\i.'blio 1A all4 tor \ · IJ'HH Cc:1\lAt7,'h:Y.1, • . . • 1 : faregoll.g b. a ·tNI . OOpf ~ th~ a:rig1Do\l .1A&t~.llt 'Wtlio!I -.1 t1lo4 tor Hool'( 011 \hi 29i!I ~ nl . . . . -'• .. -.. . . Ot}\117 J.;D, .l.941 .. , 2-~'llook .:p.a. ·_u4 cl.lll.J" r-nor4e4 oa· u. 29th 41.7 ot ,hlt A.J>. 191.l · ·! · . . . : •'clock .JIJ!ae \o •loh I 11r&U7 ·.· . .. ... ... .. . : :- . . .. ~. .. . ... .:·:· ... .- .. . '• . •, ~. .. . ... : :· ·.' • ~. ::·~: ... .! • ·:..· .... : . .. -.~ . ' .·-: I: ' . ' ' ," ·' . • • • 1 i .. ' . 0 • ·: -I • • •• ', EXHIBIT. A PAGE~ OF .!L. PAGES • 12116 /99 23 :24 FAX '1:11! r..1.Ts er n:l.\91 co\111rr or mu.z.os I ~e.lSOil L l~!:ilS.L~ DEED 111 187 ot Collee• S~a\1011 ·,· Tn.u, • oarJorr.Ua11 or 0 \ll• C:o.at.:r or ll::'a:oa, .:!~t· or :o:iu, llaTlng llu·eto!oro 4•~1catell t.11.o o\rnt•, oll•7t 1 1111 Jal.lat;••o7•, •IWI •1a'llUYl~e4 a po:rt10D. or Collage 1iotlr. 911 .l441Uo~ \O Ut C:1t7 or Collego 9u\!.oD, 00111u7 .. U Oa1ncoti. Retlt7 C:O..- Jlt.llr Of fo,llege St.eU011, '117 Solltlldd• ~"•lopaeuL CuaJll\1, 011. .._p.!'11 4, il94l., 'llT CllOI rtoo~•~ 111 Yoluae l.06, i-t• 2J4, or tllo D .. 4 a..,ozoa1 ot B:r.:r.,,. COIU)tT, ':u1~, ~ ~~. tll• Clatr.ood R•1lty Caopan7 ot Coll•8• a1'a\1oa, T•.zat, • oorpera\1oo, ao,_t1•& lll?'tlll b7 lU Yi~• ~u1h11t., )Ora, J:Ui1l ll'alt.OA llY:l'geU, u.C 1'11-.• Eo.o,r:r i'o:rnl.l UICI·. •ire UJ-a, J:ata..:rl.a• l;oK.o~ t.r:ral.l, 4a llou:·aaw Ml,poa• a!WI Jla•• I.la• rol.lowl.11& :rut:r1o• \1011.1 a1011 1.ot.a ~os, Oat a114 T..d or lllaok Mo, T&D ~i Lott ~o~, S•'•• 17) t.o ~1.,.11. (11), 1t1c1111h1, 111 l,l~lr. )lo. >i1•• <'.'?) 1.ou Mot. 011.e (ll \0 '£1Cllt.Hll (111), lnda.a1T•, 111 llloc"<!) X.:.h Oae Ill 'l.O 'Eleni IHI lnolu.iu, 111 "1oc.('i)i.ou llo~, One (l), to Kl1:1et.n11 (l9J, hcl.~he, 111 Dloc'@ e114 I.ou o;..· ll.I, t.o '2~11 (l.O) bclua1u ·, la 31oc~r th• 5ub41Tlt1oa l:JIOW!I •~ ; Rc;u'o41T1a1011 or 1 p~\1011 of Collec:• Pl.rk, \O t)I Cit.7 or Coll•!• S\atloo,T111•, to-~1t.: ..i,.. ol.ll or tll• Su· .. , •• :roa6-v1y1, 4114 walu .. •ho•• Cll plat ot ~au'bdi'f1Uon ot • Pcrt1011 ot Celle'• Park or ~eoor4 111 YolWDo 107 , Dlt• lSl, or t.be %1.e4 Reeordt o: are1oa Co'l!ZltJ,feJet, er• h1reb1 4•61co~•4 tor p~'llli• \Cl• aot milll\c&1111ae to:r•"•r. 2. ..i.U lot • 11l tho tnot. ·aholl 'oe DO'f.11 1D6 ~eaor1'bet a~ ru14ent1tl lots, a04 :io . ' •:ruotu:te •hill be :toe\c<I 011 uy ro1l4e11tbl 'bu.lld.la& :plot, other t.bal!. one c!et••h4 •1~lo taa1l14••ll1Qt: 11ct. to axoeed two ~tori•~ 111 ll•1CJlt 1 t.:14 a 011e, \WO, or tll:'oe cer 111W.1'rilio1:1 ~tU 'I.be e:ne:tDAl 4n1in l.ra4 loutio.11 thouot ~.,., bu11 ap)Z'onl 1..11 '111'1 U.Dg ~1 tile Jlei~borllood CClll!Unu W.icb ;II.Ill 'be t.P:!"'111te4 v •leote4 'by \he -tr or ocna.rt or e "4Jorit7 or tho lou ,,;hich ue 11a,'Ject tc tht oCTu1a11u h:re111 ut forth; prnidt4, l!011ner, tbo\ 1t 1wll c-ittee tall• to 111.:pSJ:ro"• G: lllaap;proH Hob Au1,p alli : :j ; . ,; ,, :1 ' r ' I ; ' I 1 i ' ' : ' anod pr1o: \D t.b• co~ln!oa tbnaot, 111&11 app:to'lt.l will DC>t M ·a.,uizeod.. · -a;. -'nlet• h "'9111'7 uhbUt.11•4 a rroat 'b~lll.1114 11.a• t.'MlltJ' t1•• l2S) tui nee> e.ll •':t••tl, a114 111 """1141~ 1201~t '•r•&•• 10111\14 011 r••l , .. ,~ or lot &It.ill lilt f1J• ; (Sl .t••t f:tOQ 114• lot 1.lliet, C%Ct)i OA ~or11•:r lot• IU~k ~·· ..... ll be,.~ (lOJ te•t , n• ~· 11ch •tr.~t. l~•· 5 . Jig U'dl.l:r, 'bumaeoi, tent, 1!1.ulr., can.g•, ll&ra or oU.•I' Ollt'llullUllS a.reot•4 la 'ZI• tr1ot •lwal.l at 1111 tiaa ..._ tuio4 11 a t•ll~•aot t1~1l:r or 11r=anent.l1, llCr At.all au •~ot.QJ'p ot • .tCJIOnrf ohr.oter b• u•4 11 • rn.14.aoe, ~. 6, Zan. U.U•1cl1a1l -.~UJ.nc d .h aun Ila~• • r:ra.11.t.a11 •r '' lH•t HH.11tr tlT• 17Sl fut. 7, OC1111•01lt or U.• •U• nu 111111 '"e.:r be :Jt:raHte4 se an J!'OSl9MJ •lt.111& Hil A.641t1on; 1114 ao prop•n1 Dr •111 pa't \ber.,f t.ht.11 e·ur 'Ill lea1e4, :ra11t.el, o:r oe- 0~1114 'b7 ·~ J•r1oe1a or aQy o~e:r r•o• U>NI \ti• •h1t.1, 1zo•1' ~' ,..,.,Dt• or ~·r r•••• aor OC1oup7 ,1a~rt•r1 rtC\alarl:r oDll 41al7 pro•1414 tor aerTaa~. II, JfoM ot Q• :Jl'CIPlnJ' 111.e:rlla coa.,.r16 1111&11 •"H .. ue4 tw ta• ~oH a:r e. plu• tor ~· nl• or ottu..o ... , T1aau• ~ .-11' l.1"1;ilo:r1 or "•'-'~te• ;·~ ·~ ll:1M tor. a ,.rlGl ~ 111.11n1-&U• r~r• rroa ltui•, l., 191.l·; J1o llllJ.1'eq;. ~ att•.,..l"'• tnh J : ... -· .. • .. • .. I I _ __,,,,._.._,.._ .... __ ... __ -.......--:r.i.c.iiio~"'2kCr" roe x· .... "=+1.• -" .. l .: ... ... \ . ! i \ i . I l . i 1 .. .. ..... ~vv ·--. EXHIBIT ·-.A __ PAGE ~Of J:L PAGES f. r . \ I ~. I ~ .. 12 /16 /99 • J 23 :24 : DEED l FAX ll1 ) . > --·-----·---·----·-··-----------_//./. ~.?..? __ ------··---·-----··--· .... ----· ----·!'-------------··---.. b• oU"rl...t oa u_poa. •14 lo\ or propo:-t1, or allclll a117UIU.~ b•~ &oDO Ulorull W111oll or 'llH:.O ~·.r ellllo.ranu or 11.ulaa11u ;.o u • oo1t)l'bor'lloo4. , nua COYUallt.B &l'I to Z"\lJI •ltb C1 lla.4 an& aball. bo U.D..41"' OD ell tll• par\h• t L peruu ch1#111ll: 11D41r tllaa 1U1t.il ~l.lllllll'J' l, l.964, u •111011 u .. .., 1114 oOTaAADU ~I 111\\0MUnllJ o.1\an4a4 tor s111eu1!'to JOl'lOlh of UA )'Oar• 'll&l.UI "117 a 'tote ot t..he. 17 or U.a t~on 011n•r3 ot tbe lot.t 1t !a o~oc4 t.o cb•D£• '-!lo so14 c.o'Lll\fttl 111 ..tlol• ~J'\o g, lt t.ll. .. parUes aarot.o ,.or an.r or ~II.ca., or l..k•l.J' Ju.I.rs or •salt.DJ, •"ol.l 'Yiol~t.• OllJlf. to Ylola\• •ll1 ot tll• oo'taALllU ~ero1ri. l't .11. .. u 'be lawrlll tor uy o\ll.e:r :panoa HD.I OWD.1.llC •11)' real ]lrO]lert1 s1t11at.1t 111. uU 4eY&la~11t o:r .t11Wl•h1o11 \o ):t'i>- •111 prooH41Ae• 1 \\ laY 0: 111 a~ult..r ~lut tt.e po:rsou Tlal& tl~ or ul.ea:pt.h& to 1 all.r suoll. co,e111ant.t an4 alt.lier to p~··~nt· bl.a or U.l!Jll fl'.,. so 401114 or to :r•CO't•r a or ot.1l1r ,,1.10; for •1.1cll TlOlatio~ • .l, lllTaUO.at1oa ot &.DT °"' or IJ>eH cooo11&11u t.7 11.10.~ct. o:o ca1at or4er •ball 111 ·I lffUt al!T Qt the Otller Jl:l'OYhiou ..Cic'tl ~ht.l.l l'<=.111n b Nl.l fa;rc1 &DO. cft•·Ct, rit.119'1 our-~n41 t)h \lie 29tll 4!l7 ar l'ul.r, .&..ll . l 9U. ,._ :.i.no1~1 ro1~ C.i.!:l:OOt> l\UU'! co:a>""1 or CO:LUXJ"t !'t.f.flOM, lly M?-a. :r:u11l Walto& lllll',•U V1ee i'rullent Thoi>;i Joi, Tu-:rel.l. ~a . ta lJIUlll• j,;o:!Con1111 'tnroll l ~;. %t:>tl 'l111lt~ !l~g1u , Viee PreA~~111t or Oo.l::>oQod Itoolt7 Cco)Oll.I' or Coll•i• ~a, klloma to l!ll to •• tho JI01'IOQ •bo11 ~• 11 1~b~arib14 to tll.• 1baT1 ~4 toro£o1A4 iiMei e4 u!mowled£91l to .111 Ul&t alu cucuto4 'll• aa.cu tor tll• plU'pasoo ano. 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" I I ~ r . • ~ I r EXHIBIT • A . l PAGE~ OF .!f_ PAGES 1 FACSIMILE COVER -SHEET DATE: I \ ~1 0 0 CITY OF COLLEGE STATION DEVELOPMENT SERVICES 1101 South Texas Avenue, P.O . Box 9960 College Station, Texas 77842 Phone (409) 764-3570 Fax (409) 764-349 6 #PAGE S INCLUDING COVER cY If y ou did not re ceive a complete fax, please call our office immediately for a new transm ittal. TO: \../Y"\ USOv\. ~AA~ --+---\ ( C OMPANY: --------------------- DEPARTMENT : PHONE: __ -_-_~ _--~~-_-_-_-_--FAX-: -~--=----2;5-::J.-) 8----, 8-d.--~--- PHONE: FAX: ------------------ REMARKS : D Urgent D For your review D Reply ASAP D Please Comment Dll~~~JJ ~ /jaL1£ki2 ~ \fh.,g_ ~"JJ . 01 /05/00 lU:i.7 "Q"4U~ ·104 ;,11:10 JJC V CLUrlll.CJ1 .l ,;:i Y v<> TRANSMISSION OK TX /RX NO. CONNECTION TEL CONNECTION ID START TIME USAGE TIME PAGES RESULT *************************** *** ACTIVITY REPORT *** *************************** 0322 pl512218182lppl70 Nelson L Nagle 01 /05 10:26 00 '42 2 OK "c:J VV..L Mr. Nelson Nagle 400 West Main Street Round Rock, Texas 78664 December 31 , 1999 Dear Mr. Nagle This Jetter is offered in response to your question regarding future review of your proposal to build two single family homes rather than three on the property at 600 Welsh . If, in this effort you divide the property for sale, thus requiring a replat, or simply choose to replat the property and file this plat for record , this rep lat will be reviewed by the staff and possibly the Planning & Zoning Commission. As the property is configured now and according to the City 's codes and ordinances, you may continue with the construction of the 2 additional homes or may build onl y one additional home on one of the lots as presently platted . If you have additional questions please do not hesitate to call me at 764-3570. Sincerely, Jane R. Kee City Planner ZONING-BOARD OF ADJUSTMENT OCTOBER 20, 1999 -----1' 3 SECTION 9 -PARKING "In all districts for all uses at the time any building or structure is erected, enlarged or increased in capacity, or at any time any other use is established, there shall be provided off-street parking spaces for motor vehicles in accordance with the requirements specified herein." ZONING.BOARD OF ADJUSTMENT APPEAL OF INTERPRETATION AND APPLICATION OF SECTION 9 AND_SEC.TION._7.2.D. ---· ---z:---"'- SECTION 9 -PARKING • PROVIDES FOR l'dlNIMUM STANDARDS FOR: -DIMENSIONS -ACCESS -ISLANDS -MAINTENANCE -LANDSCAPE RESERVES -SURFACING -PARKING LOT LIGHTING SECTION 9A -DIMENSIONS AND ACCESS • ILLUSTRATION EXAMPLES -APRON DIMENSION -SURFACING -DRIVEWAY RADIUS • REFERENCES CHAPTER 3 - CITY CODE OF ORDINANCES 1 --,------- SECTION 9.2.A.2 • REFERS TO OFF-STREET PARKING FOR TRUCK UNLOADING • THIS IS NOT USED FOR S:,F. SITE PLAN REVIEWS q SECTION 9.2.A.4 • REFERS TO CIRCULATION AISLES AND BACKING ONTO CERTAIN STREETS • THIS IS APPLIED WHENEVER S.F. DRIVEWAYS ARE ON 'IHOSE CERTAIN STREETS SECTION 9~2.A.1 • REQUIRES A9' BY20' PARKING SPACE FOR ALL USES 'IHAT REQUIRE PARKING • THIS IS USED IN SINGLE FAMILY (S.F.) SITE PLAN REVIEWS -----_ 8 ·SECTION 9.2.A.3 • REQUIRES ALL PARKING AREAS. TO BE ON 'IHE PROPERTY EXCEPT AS PER CHAPTER 3 WmCHREFERS TO SHARED ACCESS-. -~-·-. ..:... - • THIS IS APPLIED TO S.F. USES lD SECTION 9.2.A.5 • REFERS TO A LANDSCAPE RESERVE AREA • APPLIES TO PARKING LOTS • INDIVIDUALDRIVEWAYSARE EXCLUDED • THIS IS NOT APPLIED TO S.F. USES \ 1-. 2 SECTION 9.2.A.6,7,8 • REFERSTOPARKINGLOT-ISLANDS • 'IHIS IS NOT APPLIED TO S.F. USES \3 SECTION 9.2.C • REFERENCES PUBLIC PARKING LOTS AN!> ISJ'.{Q_T_APPLICABLE SECTION 9.2.E • REFERS TO LIGHTING FOR OFF- STREET PARKING AREAS • THIS IS NOT APPLIED TO S.F. USES l7 SECTION 9.2.B • REFERS.!fOOFF-PREMISE PARKING LOCATIONS • THIS IS NOT APPLIED TO S.F. USES SECTION 9.2.D • REFERS TO SURFACING REQUIREMENTS AND sf ATES: -"EXCEPT AS OTHERWISE PROVIDED, AIL OFF-STREET PARKING"AREAS SHALL BE CONSTRUCTED: •• "- -SECTION 6 OF CH."10 ADDRESSES DRIVEWAYSURFACESFORPARKING VEIDCLES IN RESIDENTIAL AREAS -THIS IS APPUED TO s.F. DRIVEWAY SURFACES SECTION 9.2.F • REFERS TO DRIVE SURFACES FOR TEMPORARY AND/OR PERMANENT DRIVES REQUIRED FOR EMERGENCY ACCESS • THIS IS APPLIED BY THE CITY ENGINEER AND IS NOT INTENDED FOR S.F. USES lB 3 SECTION 9.2.G • REFERSTOTEMPORARYPARKING LOTS • 1HIS IS NOT APPLIED TO S.F. USES .......... _ c_ • ......,.,..._ .... , . ........... •'""'• Utl,. ··--.,.... . .. ~~0-~":.!.-~~., Or~-••· H,,, .. ~ Alipaf 1', IH#J ··--<"r•••_....,......,, . _ _.,._.._ ..... ............. . .....,.,_., .... _ ~~:sr.i~~ 1....-.c_.• (Ill_ ... ,, ..... ,.) ...... IHI.I. •••••n••••,1••<=-•""'• Mtl.f . IA fA.t _,_., 1J7 O•''-""' "'· JMJ, ,-4 ,_.,,__, JJ, IHI) •OTl:DI ......... l.k;ll .• ICM1t ,, .. fllftt• .... , .• _ ..... ,_,"oft5• ••'"'"'*' tllt•t .. II• ~-.u,.!"'~c-•""'-: . • ·~ .. -·•·---••••r•..at \•••4iW ... .,,..._, .. ,...._.,., ... __ -;;.:::-:-:;.;$~::;;>~~:;::.~·~!.1.~~=~:-:~~·:.;~~~· ~: ~.:.:::: 13' SECTION9.3 • REFERS TO THE NUMBER OF PARKING SPACES REQUIRED FOR EACH USE • 1HIS IS APPLIED TO S.F. USES • 1WO.SPACESAREREQUIRED APPLICATION OF THE PREVIOUS SECTIONS • RADIUS OFDRIVE'\YAY • SURFACE.AND wmm OF APRONS • SURFACE-OFDRIVEWAY • NUMBER OF SPACES • DIMENSION OF SPACES SECTION 7.2.D -AREA REQUIREMENTS • SIDE SETBACK REQUIREMENTS -R-1 SINGLE FAMILY ZONE • 7.5FEET • NOTE C -"ZERO LOT LINE CONSTRUCTION 4 TABLE A -NOTE C "ZERO LOT LINE CONSTRUCTION OF RF.SIDENCESIS ALLOWED WHERE PROPERTY.ON BOTH SIDES OF LOT LINE IS OWNED -AND/OR DEVELOPED SIMULTANEOUSLY BY SINGLE PART. DEVELOPMENT UNDER LOT LINE CONSTRUCTION REQUIRES PRIOR APPROVAL OF THE ZONING OFFICIAL. ------IN -NO-CASESHALLASINGLEFAMILY --RESIDENCE-BE BUILT-WITHIN 15 FEET OF ANOTHER BUILDING." ----·----;__ s--m -·-· l7 PROPERTIES ON WELSH • LOT LINE CONSTRUCTION -0' AND 15' ON ONE SIDE -3.5 ' AND 11 .5' ON OPPOSITE SIDE INTERPRETATION • LESS THAN 7.5' AND AS LITfLE AS 0 • IMPORTANT HEALTH & SAFETY CONSIDERATION):S 15' SEPARATION 5 EXAMPLES OF LOT LINE CONSTRUCTION • EASTMARK Variable • PEBBLE CREEK O' / 15' • GRAND OAKS 0' / 15' • 'IWO LINCOLN PLACE O' / 15' • PLEASANT FOREST Variable SIMILAR APPEALS STAFF FOUND NO PREVIOUS APPEALS OF LOT LINE CONSTRUCTION OR SINGLE FAMILY PARKING REQUIREMENTS ZONING BOARD DECISION SECTION 15.7 REQUIRES THE CONCURRING VOTE OF FOUR (4) MEMBERS OF THE BOARD TO REVERSE ANY ORDER, REQUIREMENT, DECISION, OR DETERMINATION OF THE ZONING OFFICIAL, TO DECIDE IN FAVOR OF THE APPUCANT OR ANY VARIATION IN THIS ORDINANCE. LOT LINE CONSTRUCTION • 0' / 15' -MAXIMIZE USEABLE SIDE YARD AREA •VARIABLE -WORK WI SITE FEATURES -WALL MAINTENANCE -ROOF OVERHANG I WATER RUN-OFF -FLEXIBILITY IN DESIGN AND LAYOUT • BLDG. CODE UMITS OPENINGS • FIREWALL & EXIT REQUIREMENTS ZONING BOARD AUTHORITY • SECTION 15.6 STATES: THE BOARD MAY REVERSE OR AFFIRM, WHOLLY OR PARTLY, OR MAY MODIFY THE ORDER, REQUIREMENT, DECISION OR DETERMINATION APPEALED FROM AND MAY MAKE SUCH ORDER, REQUIREMENT, DECISION OR DETERMINATION AS OUGHT TO BE MADE, AND TO THAT END SHALL HA VE THE POWER OF THE ZONING OFFICIAL FROM WHOM THE APPEAL IS TAKEN. ZONING BOARD DECISION THE BOARD'S DECISION WHETHER TO UPHOLD OR OVERTURN, WILL FORM BASIS FOR ALL FUTURE DECISIONS RELATING TO THE APPLICATION OF THESE 'IWO SECTIONS FOR ALL SINGLE FAMILY ZONING DISTRICTS. 6 IMPACT ON BUILDING PERMITS ALREADY ISSUED • l'HESE PERMITS WERE ISSUED BY APPL YING THE RULES IN EFFECf AS THEY HA VE BEEN APPLIED TO OTHER PROPERTIES WimIN THE CITY. • IF THE ZBA OVERTURNS THESE APPLICATIONS, A RETROACTIVE APPLICATION OF AN ORDINANCE DUE TO A CHANGED INTERPRETATION IS A LEGAL ISSUE. 7 ., ~ .~ .... • .... M. EFFECT OF ARTICLE This article does not affect the law authorizing the immediate removal, as an obstruction to traffic, of a vehicle left on public property. (Ordinance No. 1636 of February 27, 1986) SECTION 6: PARKING, STANDING, OR STORING OF RECREATIONAL VEHICLES, TRAILERS OR TRUCKS IN RESIDENTIAL AREAS A. DEFINITIONS (1) (2) (3) (4) (5) (6) (l) (8) (9) Camper - A separate vehicle designed for human habitation which can be attached and detached to or towed by a motor vehicle. Driveway -Any paved concrete, asphalt, gravel and/or other impervious surface area on a lot designed and required to provide direct access for vehicles between a street and private garage, carport, or other permitted parking space, or parking area or loading area, garage and attached or detached accessory building located on a lot developed with a residential dwelling used by the occupant of the premises principally for, but not limited to, the storage of passenger vehicles or other vehicles and equipment. Driveways or paved parking areas must be substantially free from grass, weeds, or other vegetation and must be adequately maintained. Motor Home -A self-contained vehicle designed for human habitation with its own motive power and with a passageway from the body of the home to the driver and front passenger seats. Motor Vehicle - A self-propelled device in, upon or by which any person or property is or may be transported. Recreational Vehicle -Any motor vehicle or trailer designed or used as a travel trailer, camper, motor home, tent trailer, boat, boat trailer, camping trailer, or other similar purposes. Residential area or residential lot -shall mean any area or lot occupied by residential dwellings though the area may be zoned for use other than residential. Trailer - A vehicle without motive power designed for canying persons, animals, or property on its own structure and to be drawn by a vehicle with motive power. The term shall include, but not be limited to, semi-trailer, utility trailer, and travel trailer. Truck -means any motor vehicle designed, used or maintained primarily for the transportation of property, with a manufacture(s rated canying capacity exceeding two thousand (2,000) pounds. Truck-tractor -means any motor vehicle designed or used primarily for drawing other vehicles. It is intended that the tenTI includes a motor vehicle that is otherwise a truck-tractor that may be engaged with a semi-trailer. B. REGULATIONS (1) Rev. 9197 It shall be unlawful for the owner, occupant or person in charge of property used for residential purposes to penTiit the parking, standing or storing of trucks, trailers, or truck-tractors as defined herein in residential areas for other than actual supervised loading or unloading of goods and passengers. It shall be unlawful for the owner, occupant or person in charge of property used for residential purposes to permit the parking, standing or storing of trailers, trucks, or truck-tractors in residential ya~s or lawns, including driveways, for other than actual supervised loading or unloading of goods or passengers. · 10-21 (2) It shall be unlawful for the owner, occupant or person in charge of property used for residential purposes to permit the parking, standing or storing of recreational vehicles on residential streets for a period of time in excess of seventy-two (72) hours within any thirty (30) day period . (3) It shall be unlawful for the owner, occupant or person in charge of property used for residential purposes, single family and duplex, to permit the parking, standing or storing of motor vehicles, excluding .recreational vehicles, or trucks on yards or lawns excluding driveways, paved parking areas, or areas screened from public view by fencing." (4) It shall be unlawful for the owner or occupant of a vehicle, other than recreational vehicles , to park or permit the parking, standing or storing of such. vehicle on the yards or lawns of property used for residential purposes. Parking on driveways or paved parking areas or areas screened from public view by fencing is permitted . (Ordinance No. 2250 of July 24, 1997) C. SPECIAL EXCEPTIONS (1) A speciaJ exception may be granted to any person identified in Subsection B above, upon application to and approval by the Zoning Board of Adjustment. The Zoning Board of Adjustment shall have the authority to accept applications for special ex- ceptions for the parking of vehicles on front yard lawns in residential areas. (2) The Zoning Board of Adjustment shall hear and consider applications for special exceptions for the parking of vehicles on residential lots, single family and duplex. The Board may issue special exceptions where it determines that the issuance will not be contrary to the public interest, where owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done. In the event that the Board determines that a special exception shall be issued, then it may impose such restrictions as it deems necessary to protect the character of the neighborhood. Such restrictions may include, but are not limited to, screening and landscaping. (3) The Zoning Board of Adjustment shall have the authority, upon ten days written notice, to set a hearing date to consider whether or not the terms of the special ex- ception have been complied with upon presentation of evidence by the City staff and permittee. Upon a finding that the terms of the special exception have been violated, the Zoning Board of Adjustment shall have the authority to revoke , sus- pend, maintain or alter the terms of the special exception issued." (Ordinance No. 1873 of December 13, 1990) D. EXEMPTIONS Residential properties zoned A-0, A-OX, or A-OR shall be exempt from the regulations contained in Subsection B of this Section. E. PENALTY A violation of this section shall constitute a misdemeanor and upon conviction thereof shall b~ punishable by a fine pursuant to the General Penalty set out in Chapter 1, Section 5, of this Code of Ordinances. (Ordinance No. 2164 of January 25, 1996) 10-22 Rev. 9197 0 : ' . ~ j Excerpts from: Local Government Code Sec . 211.008 . Board of Adjustment. (a) The governing body of a municipality may provide for the appointment of a board of adjustment. In the regulations adopted under this subchapter, the governing body may authorize the board of adjustment, in appropriate cases and subject to appropriate conditions and safeguards, to make special exceptions to the terms of the zoning ordinance that are consistent with the general purpose and intent of the ordinance and in accordance with any applicable rules contained in the ordinance. (b) A board of adjustment must consist of at least five members to be appointed for terms of two years . The governing body must provide the procedure for appointment. The governing body may authorize each member of the governing body, including the mayor, to appoint one member to the board . The appointing authority may remove a board member for cause, as found by the appointing authority, on a written charge after a public hearing . A vacancy on the board shall be filled for the unexpired term . (c) The governing body, by charter or ordinance, may provide for the appointment of alternate board members to serve in the absence of one or more regular members when requested to do so by the mayor or city manager. An alternate member serves for the same period as a regular member and is subject to removal in the same manner as a regular member. A vacancy among the alternate members is filled in the same manner as a vacancy among the regular members . ( d) Each case before the board of adjustment must be heard by at least 75 percent of the members . ( e) The board by majority vote shall adopt rules in accordance with any ordinance adopted under this subchapter. Meetings of the board are held at the call of the presiding officer and at other times as determined by the board . The presiding officer or acting presiding officer may administer oaths and compel the attendance of witnesses . All meetings of the board shall be open to the public . (f) The board shall keep minutes of its proceedings that indicate the vote of each member on each question or the fact that a member is absent or fails to vote. The board shall keep records of its examinations and other official actions . The minutes and records shall be filed immediately in the board's office and are public records . (g) The governing body of a Type A general-law municipality by ordinance may grant the members of the governing body the authority to act as a board of adjustment under this chapter. Acts 1987, 70th Leg ., ch . 149 , Sec . 1, eff. Sept. 1, 1987 . Amended by Acts 1993 , 73rd Leg., ch . 126, Sec . 1, eff. Sept. 1, 1993 ; Acts 1995 , 74th Leg ., ch . 724 , Sec . 1, eff. Aug . 28 , 1995 ; Acts 1997, 75th Leg ., ch . 363 , Sec . 1, eff. Sept. 1, 1997 . Sec . 211.009. Authority ofBoard. (a) The board of adjustment may : (1) hear and decide an appeal that alleges error in an order, requirement, decision, or determination made by an administrative official in the enforcement of this subchapter or an ordinance adopted under this subchapter; (2) hear and decide special exceptions to the terms of a zoning ordinance when the ordinance requires the board to do so ; (3) authorize in specific cases a variance from the terms of a zoning ordinance if the variance is not contrary to the public interest and , due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship , and so that the spirit of the ordinance is observed and substantial justice is done ; and ( 4) hear and decide other matters authorized by an ordinance adopted under this subchapter. (b) In exercising its authority under Subsection (a)(l), the board may reverse or affirm, in whole or in part, or modify the administrative official's order, requirement, decision, or determination from which an appeal is taken and make the correct order, requirement, decision, or determination, and for that purpose the board has the same authority as the administrative official. (c) The concurring vote of 75 percent of the members of the board is necessary to : (1) reverse an order, requirement , decision, or determination of an administrative official; (2) decide in favor of an applicant on a matter on which the board is required to pass under a zoning ordinance; or (3) authorize a variation from the terms of a zoning ordinance. Acts 1987, 70th Leg., ch . 149, Sec . 1, eff. Sept. 1, 1987 . Amended by Acts 1993 , 73rd Leg ., ch . 126, Sec. 2 , eff. Sept. 1, 1993 ; Acts 1995 , 74th Leg ., ch . 724, Sec . 2 , eff. Aug . 28 , 1995 . Sec . 211.010 . Appeal to Board. (a) Except as provided by Subsection (e), any of the following persons may appeal to the board of adjustment a decision made by an administrative official: (1) a person aggrieved by the decision ; or (2) any officer, department, board, or bureau of the municipality affected by the decision . (b) The appellant must file with the board and the official from whom the appeal is taken a notice of appeal specifying the grounds for the appeal. The appeal must be filed within a reasonable time as determined by the rules of the board . On receiving the notice, the official from whom the appeal is taken shall immediately transmit to the board all the papers constituting the record of the action that is appealed. ( c) An appeal stays all proceedings in furtherance of the action that is appealed unless the official from whom the appeal is taken certifies in writing to the board facts supporting the official's opinion that a stay would cause imminent peril to life or property . In that case, the proceedings may be stayed only by a restraining order granted by the board or a court of record on application, after notice to the official, if due cause is shown. ( d) The board shall set a reasonable time for the appeal hearing and shall give public notice of the hearing and due notice to the parties in interest. A party may appear at the appeal hearing in person or by agent or attorney . The board shall decide the appeal within a reasonable time . (e) A member of the governing body of the municipality who serves on the board of adjustment under Section 211. 008(g) may not bring an appeal under this section . Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987 . Amended by Acts 1997, 75th Leg., ch . 363 , Sec. 2 , eff. Sept. 1, 1997 . Sec . 211.011. Judicial Review ofBoard Decision. (a) Any of the following persons may present to a court of record a verified petition stating that the decision of the board of adjustment is illegal in whole or in part and specifying the grounds of the illegality : (1) a person aggrieved by a decision of the board; (2) a taxpayer ; or (3) an officer, department, board, or bureau of the municipality . (b) The petition must be presented within 10 days after the date the decision is filed in the board's office . ( c) On the presentation of the petition, the court may grant a writ of certiorari directed to the board to review the board's decision. The writ must indicate the time by which the board's return must be made and served on the petitioner's attorney, which must be after 10 days and may be extended by the court . Granting of the writ does not stay the proceedings on the decision under appeal, but on application and after notice to the board the court may grant a restraining order if due cause is shown . (d) The board's return must be verified and must concisely state any pertinent and material facts that show the grounds of the decision under appeal. The board is not required to return the original documents on which the board acted but may return certified or sworn copies of the documents or parts of the documents as required by the writ. ( e) If at the hearing the court determines that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take evidence as directed . The referee shall report the evidence to the court with the referee's findings of fact and conclusions of law . The referee's report constitutes a part of the proceedings on which the court shall make its decision . (f) The court may reverse or affirm, in whole or in part, or modify the decision that is appealed . Costs may not be assessed against the board unless the court determines that the board acted with gross negligence, in bad faith , or with malice in making its decision . (g) The court may not apply a different standard of review to a decision of a board of adjustment that is composed of members of the governing body of the municipality under Section 211 . 008(g) than is applied to a decision of a board of adjustment that does not contain members of the governing body of a municipality . Acts 1987, 70th Leg ., ch . 149, Sec . 1, eff Sept. 1, 1987 . Amended by Acts 1997 , 75th Leg., ch . 363 , Sec . 3, eff Sept. 1, 1997 . Sec . 211 .012 . Enforcement; Penalty; Remedies . (a) The governing body of a municipality may adopt ordinances to enforce this subchapter or any ordinance or regulation adopted under this subchapter. (b) A person commits an offense if the person violates this subchapter or an ordinance or regulation adopted under this subchapter. An offense under this subsection is a misdemeanor, punishable by fine , imprisonment, or both, as provided by the governing body. The governing body may also provide civil penalties for a v iolation . ( c) If a building or other structure is erected, constructed, reconstructed , altered, repaired , converted, or maintained or if a building, other structure, or land is used in violation of this subchapter or an ordinance or regulation adopted under this subchapter, the appropriate municipal authority, in addition to other remedies , may institute appropriate action to : (1) prevent the unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, or use; (2) restrain, correct, or abate the violation ; (3) prevent the occupancy of the build ing , structure, or land ; or ( 4) prevent any illegal act, conduct, business, or use on or about the premises . Acts 1987, 70th Leg., ch . 149 , Sec . 1, eff. Sept. 1, 1987 . Sec . 211 . 013 . Conflict With Other Laws; Ex ceptions . (a) If a zoning regulation adopted under this subchapter requires a greater width or size of a yard , court, or other open space, requires a lower building height or fewer number of stories for a building, requires a greater percentage of lot to be left unoccupied , or otherwise imposes higher standards than those required under another statute or local ordinance or regulation, the regulation adopted under this subchapter controls . If the other statute or local ordinance or regulation imposes higher standards, that statute, ordinance, or regulation controls . (b) This subchapter does not authorize the governing body of a municipality to require the removal or destruction of property that exists at the time the governing body implements this subchapter and that is actually and necessarily used in a public service business . ( c) This subchapter does not apply to a building, other structure, or land under the control , administration, or jurisdiction of a state or federal agency . Acts 1987, 70th Leg., ch . 149, Sec . 1, eff. Sept. 1, 1987 . Sec . 212 .0115 . Certification Regarding Compliance With Plat Requirements . (a) For the purposes of this section, land is considered to be within the jurisdiction of a municipality if the land is located within the limits or in the extraterritorial jurisdiction of the municipality. (b) On the approval of a plat by the municipal authority responsible for approving plats, the authority shall issue to the person applying for the approval a certificate stating that the plat has been reviewed and approved by the authority . ( c) On the written request of an owner of land , an entity that provides utility service, or the governing body of the municipality, the municipal authority responsible for approving plats shall make the following determinations regarding the owner's land or the land in which the entity or governing body is interested that is located within the jurisdiction of the municipality : (1) whether a plat is required under this subchapter for the land ; and (2) if a plat is required, whether it has been prepared and whether it has been reviewed and approved by the authority . ( d) The request made under Subsection ( c) must identify the land that is the subject of the request. (e) If the municipal authority responsible for approving plats determines under Subsection ( c) that a plat is not required, the authority shall issue to the requesting party a written certification of that determination . If the authority determines that a plat is required and that the plat has been prepared and has been reviewed and approved by the authority, the authority shall issue to the requesting party a written certification of that determination . (f) The municipal authority responsible for approving plats shall make its determination within 20 days after the date it receives the request under Subsection (c) and shall issue the certificate, if appropriate, within 10 days after the date the determination is made. (g) If both the municipal planning commission and the governing body of the municipality have authority to approve plats, only one of those entities need make the determinations and issue the certificates required by this section. (h) The municipal authority responsible for approving plats may adopt rules it considers necessary to administer its functions under this section. (i) The governing body of a municipality may delegate, in writing , the ability to perform any of the responsibilities under this section to one or more persons. A binding decision of the person or persons under this subsection is appealable to the municipal authority responsible for approving plats . Added by Acts 1989, 71st Leg., ch . 1, Sec . 46(b), eff. Aug . 28 , 1989 . Amended by Acts 1989, 71st Leg., ch . 624 , Sec . 3 .03 , eff. Sept. 1, 1989 ; Acts 1997, 75th Leg ., ch. 567 , Sec . 1, eff. June 2, 1997 . Sec . 212 .013 . Vacating Plat. (a) The proprietors of the tract covered by a plat may vacate the plat at any time before any lot in the plat is sold . The plat is vacated when a signed , acknowledged instrument declaring the plat vacated is approved and recorded in the manner prescribed for the original plat. (b) If lots in the plat have been sold , the plat, or any part of the plat, may be vacated on the application of all the owners of lots in the plat with approval obtained in the manner prescribed for the original plat. (c) The county clerk shall write legibly on the vacated plat the w ord "Vacated" and shall enter on the plat a reference to the volume and page at which the vacating instrument is recorded . ( d) On the execution and recording of the vacating instrument, the vacated plat has no effect. Acts 1987, 70th Leg ., ch . 149, Sec. 1, eff. Sept. 1, 1987 . Sec . 212 .014 . Replatting Without Vacating Preceding Plat. A replat of a subdivision or part of a subdivision may be recorded and is controlling over the preceding plat without vacation of that plat if the rep lat: (1) is signed and acknowledged by only the owners of the property being replatted ; (2) is approved , after a public hearing on the matter at which parties in interest and citizens have an opportunity to be heard , by the municipal authority responsible for approv ing plats; and (3) does not attempt to amend or remove any covenants or restrictions . Acts 1987 , 70th Leg ., ch . 149 , Sec . 1, eff. Sept. 1, 1987 . Sec. 212 .015 . Additional Requirements for Certain Replats . (a) In addition to compliance with Section 21 2.014 , a replat without vacation of the preceding plat must conform to the requirements of this section if: (1) during the preceding five years, any of the area to be replatted was limited by an interim or permanent zoning classification to residential use for not more than two residential units per lot; or (2) any lot in the preceding plat was limited by deed restrictions to residential use for not more than two residential units per lot. (b) Notice of the hearing required under Section 212 .014 shall be gi v en before the 15th day before the date of the hearing by : (1) publication in an official newspaper or a newspaper of general circulation in the county in which the municipality is located ; and (2) by written notice , with a copy of Subsection ( c) attached , forwarded by the municipal authority responsible for approving plats to the owners of lots that are in the original subdiv ision and that are within 200 feet of the lots to be replatted , as indicated on the most recently approved municipal tax roll or in the case of a subdivision within the extraterritorial jurisdiction, the most recently approved county tax roll of the property upon which the rep lat is requested . The written notice may be delivered by depositing the notice, properly addressed with postage prepaid , in a post office or postal depository within the boundaries of the municipality . ( c) If the proposed rep lat requires a variance and is protested in accordance with this subsection, the proposed replat must receive, in order to be approved, the affirmative vote of at least three-fourths of the members present of the municipal planning commission or governing body, or both . For a legal protest, written instruments signed by the owners of at least 20 percent of the area of the lots or land immediately adjoining the area covered by the proposed replat and extending 200 feet from that area, but within the original subdivision, must be filed with the municipal planning commission or governing body, or both, prior to the close of the public hearing . ( d) In computing the percentage of land area under Subsection ( c ), the area of streets and alleys shall be included . (e) Compliance with Subsections (c) and (d) is not required for approval of a replat of part of a preceding plat ifthe area to be replatted was designated or reserved for other than single or duplex family residential use by notation on the last legally recorded plat or in the legally recorded restrictions applicable to the plat. Acts 1987, 70th Leg ., ch . 149, Sec . 1, eff. Sept. 1, 1987 . Amended by Acts 1989, 7lst Leg ., ch . 345 , Secs . 2 to 5, eff. Aug . 28 , 1989; Acts 1993 , 73rd Leg., ch . 1046, Sec . 3, eff. Aug. 30 , 1993 . Sec . 212 .016 . Amending Plat. (a) The municipal authority responsible for approving plats may approve and issue an amending plat, which may be recorded and is controlling over the preceding plat without vacation of that plat, if the amending plat is signed by the applicants only and is solely for one or more of the following purposes : (1) to correct an error in a course or distance shown on the preceding plat; (2) to add a course or distance that was omitted on the preceding plat; (3) to correct an error in a real property description shown on the preceding plat ; ( 4) to indicate monuments set after the death, disability, or retirement from practice of the engineer or surveyor responsible for setting monuments ; (5) to show the location or character of a monument that has been changed in location or character or that is shown incorrectly as to location or character on the preceding plat; ( 6) to correct any other type of scrivener or clerical error or omission previously approved by the municipal authority responsible for approving plats, including lot numbers, acreage, street names, and identification of adjacent recorded plats; (7) to correct an error in courses and distances of lot lines between two adjacent lots if (A) both lot owners join in the application for amending the plat; (B) neither lot is abolished ; (C) the amendment does not attempt to remove recorded covenants or restrictions ; and (D) the amendment does not have a material adverse effect on the property rights of the other owners in the plat; (8) to relocate a lot line to eliminate an inadvertent encroachment of a building or other improvement on a lot line or easement; (9) to relocate one or more lot lines between one or more adjacent lots if (A) the owners of all those lots join in the application for amending the plat ; (B) the amendment does not attempt to remove recorded covenants or restrictions ; and (C) the amendment does not increase the number of lots; (10) to make necessary changes to the preceding plat to create six or fewer lots in the subdivision or a part of the subdivision covered by the preceding plat if: (A) the changes do not affect applicable zoning and other regulations of the municipality ; (B) the changes do not attempt to amend or remove any covenants or restrictions ; and (C) the area covered by the changes is located in an area that the municipal planning commission or other appropriate governing body of the municipality has approved, after a public hearing, as a residential improvement area; or (11) to replat one or more lots fronting on an existing street if: (A) the owners of all those lots join in the application for amending the plat; (B) the amendment does not attempt to remove recorded covenants or restrictions ; (C) the amendment does not increase the number of lots ; and (D) the amendment does not create or require the creation of a new street or make necessary the extension of municipal facilities . (b) Notice, a hearing, and the approval of other lot owners are not required for the approval and issuance of an amending plat. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987 . Amended by Acts 1989, 7lst Leg., ch . 1, Sec . 46(b), eff. Aug . 28 , 1989; Acts 1995 , 74th Leg., ch . 92, Sec . 2 , eff. Aug. 28 , 1995 . CITY OF COLLEGE STATION Tuesday, April 25, 1995 Po s t Office Box 9960 1101 Texas Avenue College Station , Texas 77842-9960 (409) 764-3500 RE: Setback requirements as applied to Lots 54-66, Block F, Eastmark Phase II To whom it may concern : This letter is to serve as confirmation of the setback lines on the subject lots described above. Due to the fact that a master site plan was approved in compliance with the City's Zoning Ordinance, from the City's point of view the side setbacks have been changed to 3.6' on the north side and 11.4' on the south side for Lots 55-65 (Lots 54 and 66 have different restrictions due to easements and treatment of periphery lots in zero lot-line developments). The lots have been approved for "zero lot-line construction" and as such may encroach over the 7.5' side setback line on one side as long as the total building separation remains 15'. If you have any questions please do not hesitate to give me a call. Thank you. Sincerely, Sabine Kuenzel, Senior Planner H ome of T exas A f,M Unive rsity u' ~TMOUTH DRIVEN 80' R. 0. w N 23"JJ"4rW---630_95' --(-50"_0: ~) ~ ~o. --1 ~ -----~---..-0-....._ ----<~---_._ ____ _._ ____ ___,..__ _________ __,___ --,--_.. ___ _,,...c.-_._ ___ '·. ---"--+----~-----}-------t . . .. .. . . .. I I I --------------1 I 1___, r - _.L--1 ---0--;' ~ ..: ~ I' ~l--~::::::::~~::"":::====::=:!-_ ~ . ·• . ~ Oi' • ...... • . ~ .. . <;) "·. 4.• .. . • s:'C"O 4 ' .... ' •. 0 \ ~ C? 0 ~ f> ~ (~~\ < c,'b CITY OF COLLEGE STATION . J0ttV> .. -0> (llt. p. JBUILDINGINSPECTIONS /( ''·""J f. qq arJ DEPARTMENT /.' I°'~· , ~ · ,A~ 1101 Texas Avenue }-\ Vb J • ~ (.£ vJ" ul. 0 Collqe Station, Tx '17840 o"' (J./f , L lJ"' .lt1 (409) 764-3741 ,.P / J ~I t1'1 d-{ "-tT "' (409) 764-3814 (fax) v.~ t ("\ di,to.il . ur TO: FROM: DATE: COI\fMENTS: ..frl FACSIMILE COVER SHEET NUMBER OF PAGES INCLUDING COVER SHEET nus MESSAGE IS INIENDED ONLY FOR nm USE Of nm INDMDUAL OR INilTY TO WlllCH II IS ADPRESSFn AND MAY CONTAIN INFORMATION lliAI IS PRMLEOED CONFIDENIW. AND EXEMPT FROM DISCLOSURE UNDER. APPLICABIB LAW. if nm REAPER Of IliIS MESSAGE IS NOT nm INIBNDED RECIPIENT OR nm EMPLOYEE OR AGENT RESPONSIBLE FOR DEI.JVERING nm MESSAGE TO nm INIENDED RECIPIENT YOU ARE HEREBY NOJJFIED UIAI ANY DISSEMINATION PISIRJBtITIQN OR CQPYJNO OF nus CQMMUNICATION IS SIRICILY PROHIBIIEP IF YOU HM1j RECEMD nns COMMUNICATION IN ERROR. PLEASE NOTIFY us JMMEDIAn:LY BY TELEPHONE AND RElURN IBE QRIOINAI. MESSAGE IO us AT nm ABOVE ADDRESS VIA nm UNITED STATES fQSTAI. SERVICE lJiAN!( YOU I I I • • • • (c) The curt> return radii for driveways intersecting at right angles with the roadway and without a deceleration lane shall be as follows : (i) (iQ Curt> return radii for Residential_ (Single Family and Duplex) Driveway located on local or collector streets shall be between 2.5 feet and 10.0 feet as shown in Figure 3. Flare type residential driveways must also adhere to these dimensional criteria. Residential Driveways located on arterial streets must adhere to the specifications set forth in 6(c)(iQ. Curt> return radii for Commercial and Mufti-family Driveways shall vary between fifteen feet (151 and thirty feet (301 as shown in Figure 4. (iiQ Curt> return radii for driveway types not included in (i) or (iQ above shall be determined by the City Engineer or his designee. (d) The maximum width of residential driveway approach, shown in Figure 3 and measured at the property tine, shall not exceed twenty-eight feet (281 in width, while the minimum width shall not be less than ten feet (101 in width. Figure 3 RESIDENTIAL DRIVEWAY sfro of Straight flare lo connocl tangency point s of c urb re furn . '-pprooch Width L<o.r:. 28' Curb Return Radiu s (R ) for Collector and Local Streets Is ~o x lmum o f 10 feel and Minimum .of 2 .5 feel. L<i n . 1 o· drf"o 3-6 R ev. 1019 7 IV\.IJ..'-j&~ &•V • -~--·--•------- I of 4 1 -1 1-2 1 -3 1-4 1-5 1-6 1 -7 1 -8 1 -9 1 -10 1 -11 1 -12 1-13 1 -14 1-15 1 -16 1 -17 1-18 1 -19 1 -20 1-2 1 1-22 1 -23 1 -24 2-1 2 -2 2 -3 2-4 2 -5 2-6 2-7 2 -8 2 -9 2-10 2-11 2 -12 2 -13 2-14 2 -15 2-16 2-17 2-18 2-19 2 -20 2 -2 1 2 -22 2-23 2-24 2-2 5 2 -26 2-2 7 3-1 3-2 3-3 3-4 3-5 3 -6 3 -7 3-8 3 -9 3-10 3 -11 3-12 3-13 AN ACT relating to the approval of certain permit applications by local governments . BE IT ENACTED BY THE LEGISLATU RE OF THE STATE OF TEXAS : SECTION 1. FINDINGS ; INTENT. (a) The legislature finds that the former Subchapter I , Chapter 481 , Government Code , relating to state and local permits , originally enacted by Section 1, Chapter 374 , Acts of the 70th Legislature , Regular Session , 1 9 87 , and subsequentl y amended by Section 3.01 , Chapter 4, Act s of the 7lst Legislature , Regular Session , 1989 , Section 2 , Chapter 118 , Acts of the 71st Legislature , Regular Session , 1989, and Section 1, Chapter 794 , Acts of the 74th Legislature , Regular Session , 1 9 95 , was inadvertently repealed by Section 51(b), Chapter 1041 , Acts of the 75th Legislature , Regular Session , 1997 . (b ) The legislature finds that the repeal of former Subch apter I , Chapter 481 , Governmen t Code, wh ich became effective September 1 , 1997, resulted in the reestablishment of admi n istrative and legislative practices that often result in unnecessary governmental regulatory u ncertainty that inhibits the e conomic development of the state and increases the cost of housing and other forms of land dev elopment and often resulted in the repeal of previously approved permits causing decreased property and related values , bankruptcies , a n d failed projects . (c) The legislature finds that the restoration of requ irements relating to the processing and i ssuance of permits and approvals by local governmental regulatory agencies is necessary to minimize to the e x tent poss i ble the effec t of the inadvertent repeal of the former Subchapter I , Chapter 481 , Government Code, and to safeguard the general economy and we l fare of the state a nd to protect property rights. (d) It is the intent of the legislature that no project , permit , or series of permits that was protected by former Subchapter I , Chapter 481 , Government Code , be prejudiced b y o r requ ired or al l owed to expire because of the repeal of former Subchapte r I or an action taken by a regulatory agency after the repeal . SECTION 2 . AMENDMENT . Subtitle C , Ti tle 7, Local Government Code , is amended by adding Chapter 245 to read as follows : CHAPTER 245 . ISSUANCE OF LOCAL PERMITS Sec . 245.001. DEFINITIONS . In this chapter: ( 1) "Permit " means a l icense , certificate , approval , registration , consent , permit , or other form of aut h orization requ ired by law , rule , regulation , order , or ordinance that a person must obtain to perform an action or i nitiate , continue , or complete a project for which the permit is sought. (2 ) "Political subdivision " means a political subdivision of the state , including a county , a school district , or a mun icipality . (3) "Project" means an endeavor over which a regulatory agency e x erts its jurisdiction a nd for which one or more permits are required to initiate , continue , or comple t e the endeavor. (4) "Regulatory agency " means t h e governing body of , or a bureau , department , division , board , commission , or other agen cy of , a political s u bdivision acting i n its capacity of processing , approving , or issuing a permit . Sec. 2 45.0 02 . UNIFORMITY OF REQUIREMENTS. (a) Each regulatory agency shall consider the approval , disapproval , or conditional approval of an application for a permit solely on the bas i s of a n y orders , regulations , o rdinances , rules , e x piration dates , or other properly adopted requirements in effect at the time the original application for the p ermit is f iled . (b ) If a series of permits is required for a project , the orders , regulations , ordinances , rul es , expiration d ates , or other 10/18/99 10 :07 AM OlJ'<.) no 11V't .r:.1.uvut.;;U v'"'1..,1vu -.._,.LI. ......... .,.,,. .. 2 of4 3 -14 3 -15 3 -16 3-17 3-18 3-19 3 -20 3 -21 3 -2 2 3 -23 3-24 3 -25 3 -2 6 3-2 7 4-1 4-2 4-3 4-4 4-5 4-6 4-7 4-8 4-9 4-10 4-11 4-12 4-13 4-14 4-15 4-16 4-17 4-18 4-19 4-2 0 4-21 4-22 4-23 4-24 4-25 4-26 4-27 5-1 5-2 5-3 5-4 5-5 5-6 5-7 5-8 5 -9 5-10 5-11 5-12 5-13 5-14 5-15 5 -16 5-17 5-18 5-19 5-20 5-21 5-22 5-23 properly adopted requirements in effect at the time the original application for the first permit in that series is filed shall be the sole basis for consideration of all subsequent permits required for the completion of the project. All permits required for the project are considered to be a single series of permits . Preliminary plans and related subdivision plats , site plans , and all other development permits for land covered by the preliminary plans or subdivision plats are considered collectively to be one series of permits for a project . (c) After an application for a project is filed , a regulatory agency may not shorten the duration of any permit required for the project. (d) Notwithstanding any provision of this chapter to the contrary, a permit holder may take advantage of recorded subdivision plat notes, recorded restrictive covenants required by a regulatory agency , or a change to the laws, rules , regulations, or ordinances of a regulatory agency that enhance or protect the project, including changes that lengthen the effective life of the permit after the date the application for the permit was made, without forfeiting any rights under this chapter. Sec. 245.003. APPLICABILITY OF CHAPTER. This chapter applies only to a project in progress on or commenced after September 1 , 1997. For purposes of this chapter a project was in progress on September 1, 1997, if: (1) before September 1, 1997: (A) a regulatory agency approved or issued one or more permits for the project ; or (B) an application for a permit for the project was filed with a regulatory agency ; and (2) on or after September 1, 1997, a regulatory agency enacts, enforces, or otherwise imposes: (A) an order, regulation , ordinance, or rule that in effect retroactively changes the duration of a permit for the project; (B) a deadline for obtaining a permit required to continue or complete the project that was not enforced or did not apply to the project before September 1, 1997; or (C) any requirement for the project that was not applicable to or enforced on the project before September 1 , 1997 . Sec. 245 .004 . EXEMPTIONS. This chapter does not apply to: (1) a permit that is at least two years old, is issued for the construction of a building or structure intended for human occupancy or habitation, and is issued under laws, ordinances, procedures , rules, or regulations adopting only: (A) uniform building, fire, electrical , plumbing , or mechanical codes adopted by a recognized national code organization ; or (B) local amendments to those codes enacted solely to address imminent threats of destruction of property or injury to persons; (2) municipal zoning regulations that do not affect lot size, lot dimensions, lot coverage , or building size or that do not change development permitted by a restrictive covenant required by a municipality ; (3) regulations that specifically control only the use of land in a municipality that does not have zoning and that do not affect lot size, lot dimensions, lot coverage , or building size; (4) regulations for sexually oriented businesses; (5) municipal or county ordinances , rules, regulations, or other requirements affecting colonias ; (6) fees imposed in conjunction with development permits; (7) regulations for annex ation; (8) regulations for utility connections ; 10/18/99 10:07 AM DtKJ MO l /VLf IJIUUllt;;;U V'VJ<')IVU -J.JUl ........ "" .. 3 of4 5-2 4 5-25 5-26 6-3 6-4 6-5 6-6 6-7 6-8 6 -9 6-10 6-11 6-12 6-13 6-14 6-15 6-16 6-17 6-18 6-19 6-20 6-21 6 -22 6-23 6-24 6-25 6-26 6 -27 7-1 7-2 7-3 7-4 7-5 7-6 7-7 7-8 7 -9 7-10 7-11 7 -12 7-13 7-14 7-15 7-16 7-17 7-18 7-19 7-20 7-21 7-22 7-23 7-24 7-25 7-26 7 -27 8-1 8-2 8-3 8 -4 8 -5 8-6 (9) regulations to prevent imminent destruction of property or injury to persons , incl u ding regul ations effective only within a flood plain established by a federal flood control program and enacted to prevent the flooding of buildings intended for public occupancy; or (10) construction standards for public works located on public lands or easements. Sec. 245.005. DORMANT PROJECTS . Notwithstanding any other provision of this chapter , after the first anniversary of the effective date of this chapter , a regulatory agency may enact an ordinan ce , rule , or regulation that places an expiration date on a permit if as of the first anniversary of the effective date of this chapter : (i) the permit does not have an expiration date ; and (ii) no progress has been made towards completion of the project. Any ordinance , rule , or regulation enacted pursuant to this section shall place an expiration date of no earlier than the fifth anniversary of the effective date of this chapter. Progress towards completion of the project shall include any one or more of the following: (1) an application for a final plat or plan is submitted to a regulatory agency; (2) a good-faith attempt is made to file with a regulatory agency an application for a permit necessary to begin or continue towards completion of the project ; (3) costs have been incurred for developing the project including , without limitation , costs associated with roadway, utility, and other infrastructure facilities designed to serve , in whole or in part, the project (but exclusive of land acquisition) in the aggregate amount of five percent of the most recent appraised market value of the real property on which the project is located ; (4) fiscal secu rity is posted wi th a regulatory agency to ensure performance of an obligation required by the regulatory agency; or (5) utility connection fees or impact fees for the project have been paid to a regulatory agency. Sec . 245 .006 . ENFORCEMENT OF CHAPTER. This chapter may be enforced only through mandamus or declaratory or injunctive relief. SECTION 3. EFFECT OF PRIOR LAW . (a) The repeal of Subchapter I , Chapter 481 , Government Code , by Section 51(b), Chapter 1041 , Acts of the 75th Legislature , Regular Session, 1997 , and any actions taken by a regulatory agency for the issuance of a permit , as those terms are defined by Section 245 .001 , Local Government Code , as added by Section 2 of this Act, after that repeal and before the effective date of this Act, shall not cause or require the expiration or termination of a project , permit, or series of permits to which Section 2 of this Act applies. An action by a regulatory agency that violates this section is void to the extent necessary to give effect to this section. (b) This Act does not affect the rights or remedies of any person or entity under a final judgment rendered by a court before the effective date of this Act , or in any litigation pending in a court on the effective date of this Act , involving an interpretation of Subchapter I , Chapter 481 , Government Code , as it e x isted before its repeal by the 75th Legislature. SECTION 4. CONSTRUCTION OF ACT . Nothing in this Act shall be construed to apply to a condition or provision of an ordinance , rule , or regulation that is enacted by a regulatory agency , as that term is defined by Section 245.001 , Local Government Code , as added by section 2 of this Act, which is specifically required by uniformly applicable regulations adopted by a state agency after the effective date of this Act. SECTION 5. EFFECT ON COASTAL ZONE MANAGEMENT ACT. Nothing in this Act shall be construed to: 10/18/99 10 :07 AM '0tf\.) no 1 /V'-t .C.IUUUIVU V..,IO:)IVU -.l.J.11.1. ....... .n. .. 4 of4 8-7 8-8 8-9 8-10 8-11 8-12 8-13 8-14 8 -15 8 -16 8-17 8 -18 8 -19 8-20 8-21 8-22 8-23 8 -24 8-25 8-26 8 -27 (1) limit or otherwise affect the authority of a munic ipality , a count y , another pol itical s ubdivision , the state , or an agency of the state, with respect to the implement ation or enforcement of an ordinance , a rule , or a statu tory standard of a program, plan , or ordinance that was adopted under the federal Coastal Zone Management Act of 1972 (16 U.S.C . Section 1451 et seq .) or its subsequent a mendments or Subtitl e E , Title 2 , Natural Resources Code ; or (2) apply to a permit , order , r u le , regulation , or other action issued , adopted , or undertaken by a municipality , a county , another political subdivision , the state , or an agency of the s t ate in connection with t he fe d eral Coas t al Zone Management Act of 1972 (16 U.S .C. Section 1451 et seq.) or its subsequent amendments or Subtitle E , Titl e 2, Natural Resources Code. SECTION 6. EMERGENCY . The importance of this legislation and the crowded condition of the ca l endars in both houses create an emergency and an imperative public n ecessity that the constitutional rule requiring bills to be read on three several days in each house be suspended , and this r u le is hereby suspended , and that this Act take effect and be in force from and after its passage , and i t is so enacted . President of the Senate Speaker of the House I certify that H .B . No. 1704 was passed by the House on April 21 , 1999 , by t h e following vote: Yeas 140 , Nays 5 , 3 present , not voting. Chief Clerk of the House I certify that H.B . No . 1704 was passed by the Senate on April 29 , 1999 , by the following vote : Yeas 26 , Nays 3 . Secretary of the Senate APPROVED: Date Governor 10/18/99 10 :07 AM ... 10 /18 /99 MON 12 :12 FAX 6948000 ~ICWBrolNn Stoven E. Esmond, P .E. , R.P .L.S. Senior Engineer sesmond@lcwbes.com October 8, 1999 Wayne Rife West, Webb, Allbritton & Gentry 1 S l S Emerald Plaza College Station, TX 77845-1515 Re: Planning & Zoning Commission WEST WEBB et al Replat of Lots 10, 11, & 12, College Park Subdivision Dear Mr. Rife: KW Brawn & Associates, Inc. 50 t Graham Road College Station, Texas 77845 409. 690-9280 • 888 • 87 5. 0063 Fax: 409•690•7310 www.kwbes.com I have been retained by Ms. Norma Miller, in my capacity as a land surveyor, to assess the technical issues with regard to the plat and zoning issues in the above matter. The ZBA granted her a Special Meeting on Tuesday, October 5, and during the meeting agreed to consider the merits of her appeal at a second Special Meeting, set for October 20, 1999. We urged the ZBA to go ahead and call an Emergency Meeting in order to deal with the issues speedily in light of construction activity currently underway. We also requested that the City authorize the Building Official to suspend further construction work until the issues in this matter have been resolved . City staff advised ZBA members that they did not have that authority, thus no action was taken on that request. Staff also advised ZBA that s~me of the issues were not within their purview and perhaps should be referred to the Planning & Zoning Commission (P&Z). In follow.up to staff direction, Mrs. Miller is requesting a special or emergency meeting of the P&Z. I would recommend you check with the College Station Legal Department and the Attorney General's office to determine if you can invoke an emergency meeting. The two reasons would be: 1) Public Necessity -the eminent construction of the buildings (and destruction the neighborhood). If this seems far fetched, know that the City invoked the emergency meeting when they announced the resignation of Skip Noe and the hiring of Tom Brymer to replace him. Surely, since they were to retain Noe as an advisor for six months, could they not have used the 72 hour notice for a special meeting? Since that meeting was deemed acceptable as an emergency meeting, I think we can agree that Norma Miller's plight (and the neighbor's, too) qualify. 2) Health and Safety -during last Tuesday night's ZBA meeting, Norma sat through the meeting, clutching her nitroglycerin pills. Why? Because the stress of this construction going on from now until Oct 20th could have started another. Nobody wants to think that this construction could kill her -but it could. I became obvious that the ZBA was keen and quite interested in. doing the right thing . I feel that they were open to any legal avenue to proceed, and could have invoked the Scientists • Engineers • Planners Burbank • College Stat ion • Houston • Victoria • Phoenix • Logan • Mexico City ~002 iY 10 /!8/99 MON 12 :1J FAX 6948000 ~ICWB WEST WEBB et al Wayne Rife, Chmn. P&Z Commission Re: College Park Subdivision Page 2 Occober 8, 1999 emergency meeting (with its more lenient notification requirements), had the city Staff been forthcoming and not confused the issue. Wayne, feel free to ask the Legal Department, but I think the mechanism is the Chainnan of a government body calls the Emergency Meeting. You could confirm with Legal how Council does it, and then ask how your Commission would do it. I suggest that you then check-out their answers with the AG's office. I have enclosed some guidelines from the Texas Local Government Code, along wi~ some additional infonnation for your 'Consideration. What are we asking for? Did you know that the P&Z commission can hear an appeal against the plats? The same State Law that permits the delegation of approval of plats to staff, in that very same paragraph, states: Sec. 212. 0115 {i) 'The governing body of a municipality may delegate, in writing, the ability to perform any of the responsibilities under this sec~ion to one or more persons. A binding decision of the person or persons under this subsection is appealable to the municipal authority responsible for approving plats." More specifically, some of the problems leading to this appeal to the P&Z arise from the following deficiencies in the staff-approved amending plat: 1. Lot widths of SO feet on the plat violate the deed restrictions, which specify a minimum lot width of 75 feet, as contained in Vol 111, P 197, Deed Records of Brazos County, Texas. 2. Side setback lines on the plat violate the deed restrictions, which specify a minimum setback of 20 feet, as contained in Vol 124, page 522, Deed Records of Brazos County, Texas. 3. The subject plat, titled, "Amending Plat," fails to qualify as an amending plat under the definition proscribed by State Law, Sec 212 .016 of the Local Government Code. 4 . The subject plat contains encroachments on Lot l 2R including the eave of an existing roof, and an air conditioner, for which there is no easement either of plat or of record --which fails to comply with current surveying standards and is a violation of Section 8.7 of the City of College Station's zoning ordinance. S. The subject plat violates Section 8-H.4 of the City of College Station's Subdivision Regulations by closing off an alley, and in addition failing to comply with the City's own Ordinance No. 357 in regard to utility access. 6. Proposed driveways shown on the existing application for building permit for Lots 1 OR and 12R indicate encroachments onto adjacent properties for which there is no easement either of plat or of record. We further contend that Staff did not have proper legal authority to approve the plat. Consequently, a public hearing should have, but did not, occur. I would urge the P&Z to think seriously about estoppel. The City has the power to overturn a building permit even after it has been approved and construction is under way . P&Z has the power to overturn! Please check with the Legal Department and read section XII of the Bickerstaff Primer on Zoning. It even mention·s a case where another City approved a permit for construction and 80% into the job, the permit was pulled and that was upheld in Court. ~OOJ 10 /18 /99 MON 12 :13 FAX 6948000 ~ICWB WEST WEBB et al Wayne Rife, Chairman Request for Emergency P&Z Meeting Page3 October 8, 1999 Basically what we are asking P&Z for is to correct the technical deficiencies in the plat, and allow for a public hearing on the revised plat -which should have been held anyway under our own Subdivision Regulations and in compliance with State Law. Then, even if the new and revised replat were to be ultimately approved, at least the citizens would have "had their day in court," to which our laws and ordinances entitle them. Finally, what more do you want or need from me before calling either a Special Meeting or an Emergency Meeting? Please call me if you have any questions. I look forward to receiving notification from you of the upcoming P&Z meeting. Thank you very much. Very truly yours, Steven E. smond, P.E., R.P.L.S. Office Manager Enc. c: Planning and Zoning Commissioners Norma Miller d L! \,.. I -(j--~.f-\l ... / ~~ l'!"(e.G-+\.4:C~ ~·~..&;!.&-C•JA. ~\:: ~ ~C1C4·'1<~•<A • "'"'l.:J' ,_;\ ::ii I:- • '-No A.a...~.,. ~ o-€:>~~ \)~~ c~0 e,~$.) ~004 Part 2. Basic Ordinance Provisions for Zero Lot Line Housing ZLL provisions from four communities are examined in this section. Two of the communities, Dade County, Florida , and Huntington Beach, Californfa, permit ZLL housing as an exception in existing residential districts. Dade County permits ZLL housing in five of its residen- tial districts, including its most restrictive single-family district (RU-1) which has a 7,500-square-foot minimum lot size . ZLL lots may be reduced to 4,500 square feet in the RU-1 district, and, in the other four districts, ZLL lots may be reduced to 4,000 square feet. Huntington Beach permits ZLL housing in its two small lot districts where minimum lot size for all single-family housing is 2 ,500 square feet. The other two communities discussed in this report- Jackson, Mississippi, and Culver City, California-have established separate residential districts for ZLL developments ." Jackson, which also allows townhouses in its ZLL district, permits ZLL lots as small as 2,400 square feet when they are part of a tract development and 3,200 square feet when they are not. ZLL lots in Culver City's one-family/zero lot line zone can be as small as 4,000 square feet. These and other provisions regulating setback, frontage, lot coverage, building dimensions, special treatment of lot line walls (the wall area sited on the side lot line), and minimum size of ZLL developments are presented in Table 1 and discussed below. (The text of ZLL provisions for these four com- munities can be found in Appendix A.) SETBACK REQUIREMENTS Varying conventional setback requirements is , of course, what the ZLL concept is all about. At least one s ide yard setback from the property line must be zero.* The ordinances in Table 1, except for the Huntington Beach ordinance, require a minimum of 10 feet for the other side yard . The Huntington Beach ordinance per- -~-i ts side yards as small as six feet. The Jackson and Hun- For legal purposes , ZLL houses should be sited at least one inch from the property line . 2 tington Beach ordinances also allow ZLL units to be sited on common side lot lines, but the Dade County and Culver City ordinances prohibit common lot line siting and require at least a 10-foot separation between ZLL units on adjacent lots . Front and rear yard setback requirements are not a s uniform among these ordinances. They range from a minimum five-foot front yard setback and no minimum rear yard setback requirement in the Dade County or- dinance , up to a 15-foot minimum front yard setback in the Huntington Beach ordinance, and a 20-foot rear yard minimum in the Jackson ordinance . In each ordinance, however, these setback re - quirements apply only to interior lots and must be in - creased when the side yard abuts a public street or when the ZLL lot is a corner lot. For example, the Dade Coun- ty ordinance requires that when a side yard abuts a street it must be at least 15-feet wide, rather than the 10 feet permitted in interior lots . Similarly, the Jackson or- dinance requires front yard setbacks to be increased from 10 feet to 25 feet when the ZLL house fronts on a dedicated public street or when it is adjacent to a more restrictive residential district. FRONT AGE AND LOT COVERAGE REQUIREMENTS As setback requirements are modified to accommodate conventional-sized housing on smaller lots , lot frontage and coverage requirements must also be adjusted . Of th e four ordinances reviewed, the most flexible frontage r e- quirements are contained in the Dade County ordinance . Dade County does not establish a quantitative standard for frontage but requires that "each lot shall have a clea r , direct frontage on public streets or to accessways com- plying with private street requirements." The policy o f the county, however, is to require that minimum fron - tage on ZLL lots in the RU-1 district should be 45 feet , and frontage on lots on the periphery of a ZLL develop- ment should be at least 50 feet. These requirements are designed to make ZLL developments compatible with ex- TABLE 1. SELECTED ZERO LOT LINE PROVISIONS FROM ZONING ORDINANCES Where Permitted Minimum Lot Size Setback Requireme nts : Side yard Front yard Rear yard Frontage Maximum Lot Coverage Building Dimerisions Minimum Size of Development Special Features Metropolitan Dade County, Florida Existing single-fami ly and multifamil y dis- tricts 4,500 sq. ft. in most restrictive district; 4,000 sq . ft. in other districts. One must be zero and the other at least 10 ft. Minimum of five ft. No minimum No minimum 50% Maximum of .stories of 35 ft. No minimum two ZLL allowed in most re- strictive single-family districts; allows for re- duction in lot size ; has provisions for better in- tegration of indoor and outdoor spaces; three trees required per lot; site plan review re- quired . Huntington Beach, California Existing si ngle-family di s trict s 2 ,500 sq . ft. When one si de yard is reduced to zero , the other must equal 20 % of site's frontage. Minimum of 15 ft. Minimum of 10 ft. Mjnimum of 30 ft. 50% Jackson, Mississippi_ Special ZLL and Town- house district 3,200 sq. ft. when ZLL unit is not part of a tract development ; 2,400 sq. ft. when ZLL is part of tract devel opment. No minimum on one side ; the other must be a t lea st 10 ft. Minimum of 10 ft. Minimum of 20 fi. When ZLL units are 11ot part of ~ tract develop- merit, minimum l9t width must ~!'! 40 ft. and SQ ft. when !'o rn~r lq~ is inyolved. When ZLL unit is part of a tract development, minimum lot width is 30 ft. 60% when not part of a tract developme11t ; 75 % when part of~ tract de- velopment. 30 ft. maximum heig ht Maximum of 2112 stories or 35 ft. in height. No minimum ZLL units can be sited on common lot line Five acres Has less restrictive reg- ulations for ZLL when part of tract develop- ment ; units can be sited on common lot line; townhouses are allowed in ZLL district. Culver City, California Specia l ZLL district 4,000 sq . ft. One s ide ya rd must be at lea st 10 ft. Minimum of 13 ft. Minimum of 10 ft. Minimum of 35 ft . Lot coverage regulated by on-sit~ ·open space requirements . (See spe- cial feature sec tion be- low .) . Two stories or 30-foot maximum height ; floor area at ground level must be at least 900 sq. ft.; total floor area must be at least 1,400 sq . ft. Five acres There must be at least 600 sq . ft. of open space on each lot-in addition to required front and street-abutting side yards and driveway areas-with no dimen- sion less than 10 ft. 3 1 ~.z.-10 Figure 2. Maintenance easement. (From Zero Lot Line H o u s - ing , page 18 .) isting conventional development. Frontage requirements of the other three communities range from a minimum of 50 feet on corner lots that are not part of a tract development in the Jackson ordinance to a minimum of 30 feet in the Hun tington Beach ordinance for all ZLL lots. As lot dimensions are reduced, lot coverage increases . The Dade Coun ty ordinance permits lot coverage to be increased from 35 percent to 50 percent in ZLL developments . The other ordinances allow for even greater lot coverage -up to 75 percent in the Jackson or- dinance . Of course, these higher coverage levels merely reflect Jackson 's smaller minimum lot requirements, which are almost h alf the 4,500-square-foot minimum of Dade County . If lot coverage were not increased, only houses considerably smaller than conventional-sized houses could be built in ZLL developments. BUILDING DIMENSIONS Only the Culver City ordinance contains provisions pertaining to the floor area of dwelling units in ZLL developments . The other three ordinances regulate only building height or number of stories . The Culver City or- dinance requires the ground floor area to be not less than 900 square feet and the total floor area not less than 1 ,400 square feet. These provisions permit a reduction in ground floor area, which is otherwise required to be 1,300 square feet. The Dade County ordinance does not establish a quantitative minimum floor area, but the of- ficial policy of the county is to encourage housing in ZLL developments to be comparable in size to conventional, 4 single-family, detached houses in the districts in which the ZLL houses are located . SPECIAL TREATMENT OF LOT LINE WALLS Each of the four ordinances discussed contain provi- sions that allow access to side yards and walls that abut property lines in ZLL developments . These provisions re- quire that an agreement or deed restriction be entered into by adjacent property owners, allowing access, usually for maintenance or improvement of the lot line wall. (See Appendix B.) The Dade County and Jackson ordinances also contain more specific language , requiring easements for maintenance of the lot line wall to be of a given size . (See Figure 2.) The Dade County ordinance requires : A perpetual four (4) foot wall-maintenance ease - ment shall be provided on the lot adjacent to the zero lot line property line , which, with the excep- tion of [free-standing] walls and I or fences, shall be kept clear of structures . This easement shall be shown on the plat and incorporated into each deed transferring title to the property . The wall shall be maintained in its original color and treatment unless otherwise agreed to in writing by the two affected lot owners. The Dade County ordinance also includes provisions that allow for water runoff in this easement area: Roof overh angs may penetrate the easement on the adjacent lot a maximum of twenty-four (24) inches, but the roof shall be so designed that water runoff from the dwelling placed on the lot line is limited to the easement area . To ensure privacy , ordinance provisions in both Dade County and Jackson prohibit any openings in the wall that abuts the side lot line . The Jackson ordinance con- tains the fo ll owing provision: Zero lot l ine dwellings shall be constructed against the lot line on one side of a lot, and no windows , doors, or other openings s hall be permitted on this side . MINIMUM SI Z E OF DEVELOPMENT Two of th e four ordinances examined in this report have established a minimum size requirement for ZLL de- velopments; ordinances for Culver City and Jackson both require that such developments be at least five acres , although no minimum size requirement is contained in the Huntington Beach or Dade County ordinances . Dade County, however, established a policy, after enacting the ordinance, that limits ZLL developments to 10 acres or less. Part 3. Location and Design of Zero Lot Line Housing Beyond the ba sic ordinance provisions, which allow small lots to accommodate housing that is typically sited on more conventionally sized lots, there are other con- sideratio ns that directly affect the cost, quality, and subsequent public acceptance of ZLL housing. Whether ZLL housing can serve as a more affordable, yet attrac- tive alternative to conventional single-family housing will depend on where the development is located, how it is laid out , the design of the units, the treatment of out- door area s and open space, street design, parking, and other important design elements. This section considers how each of these concerns can be handled so that the community can benefit most from the ZLL concept. ALLOWING ZLL HOUSING IN EXISTING RESIDENTIAL DISTRICTS Onl y wh en ZLL h o usin g is permitted in the same res id enti a l district s th a t a llow conventional, single-famil y, d e tac hed ho usin g ca n the full p o tential of this devel o p - ment concep t be r ea lized. In suc h circum stances , ZLL ca n b e u sed in pa rti a ll y bu ilt -up re sid ential a reas containing b y p assed and va ca nt la nd s to develop lots that would b e consid e red too sm a ll fo r co nventi o na l development. Fur- therm o re, pe rmittin g Z LL housin g in areas zoned ex- clusively for single -family , detached housing allows this type of development to serve as a transitional use between more restrictive zones and areas zoned for single-family attached housing . ZLL housing can serve as both a buf- fer and a smooth transition from one level of density and housing styles to the next. A frequent argument against allowing ZLL housing in conventionally platted residential districts is that small lots can lower property values. However, the experience of a number of communities contacted in the course of this s tudy has been that ZLL housing has not had an adverse affect on property values when it is permitted in single-family neighborhoods . These communities report that new ZLL housing has been comparable in value to existi ng housing . The total costs of ZLL units, of course , are usually less than the same unit on a larger lot. It would also seem that when ZLL units serve as a transitional use between detached and attached housing the value of the single-family housing would be less af- fected by a well-planned ZLL development than by higher density attached housing . Another concern sometimes expressed is that the ap- pearance of ZLL housing might not be compatible with conventional, single-family , detached housing. Critics point out that the closeness of ZLL units will make them resemble rowhouses rather than single-family detached units . But ZLL housing does not-and should not-look lik e rowhouses , even when very small lots (2,500 to 3,000 square feet) are involved . When properly designed , ZLL housing can look very much like conventional, single- family housing. In refining its new ordinance, Dade County took into account local fears that ZLL housing would destroy single-family neighborhoods and established special review cri teria for all ZLL housing . These criteria try to ensure that the character of single-family neighborhoods are not adversely affected by making ZLL housing as compatible as possible with the existing housing . In ad- dition to making sure that ZLL developments are consis- tent with the provisions of the ZLL ordinance, Dade County requires that the following criteria be considered : 1. When reviewing and recommending a development of this nature, staff should consider both the specific site plan and the development's impact on the sur- rounding community. 2 . The size of ZLL units should be comparable to that of conventional-sized houses. 3 . To minimize the impact of ZLL housing on the sur- rounding community, such developments should be limited to 10 acres or less, and sites contiguous to other ZLL developments should not be approved for ZLL. 4 . Mini mum frontage on each lot in an RU-1 zero lot 5 line development should equal 45 feet. 5 . Min imum frontage of perimeter lots of ZLL developments should be 50 feet. 6 . Max imum density of ZLL developments should b e 5 .6 units per gross acre . [This density is compati- ble with typical single-family densities, which range from 3.8 to 4.1 units per gross acre .] 7 . ZLL housing should be encouraged as a transition a l use [e.g ., between townhouses and typical sin gle - family residential], but should not be encouraged for large developments in fringe areas. 8 . ZLL developments should not be exempted from re - qui red tree and parking requirements. THE IMPORTANCE OF GOOD SITE DESIGN Besides including review criteria to ensure that ZLL developments are compatible with existing housing , it is also important for provisions that foster good design to be included in the ordinance . When small lots must a c- commodate conventional-sized housing, their layout and how the units are sited 0:1 lots must receive special at- tention or these lots will usually appear crowded . Some important lot layout and building siting principles for ZLL housing are : 1. A v oid cookie cutter design . A monotonous con- fi guration of lots is especially ill-suited to developments like ZLL where small lots are in - Figure 4. Siting Zero Lot Line housing for good solar access . (From Z e ro Lo t Lin e Housing, page 49 .) I ?OLID HO!f:rH WAl.-L.~ volved . A ri gid layout makes it hard to create private areas and does not allow for common open space. Clustering is a more appropriate site design fo: ZLL development. The clustered site design per- mits a level of design flexibility that is a must when small lots are involved . Clustering can also minimize some of the negative effects of sm a ll lots b y opening up areas of the development to co m- mon open sp a ce . 2.. A vo id uniform setbacks . When setbacks are not va ried , ZLL housing can look lik e rowhouses, espec iall y when very small lots are use d. Varying se tback , a long w ith un it height and roof lines , g ives ZLL uni ts a more interesting appearan ce . 3 . Allow houses to be sited on two lot lines. This siting arrangement is particularly useful when very small lots are involved, and it is difficult to create useful outdoor areas when the ZLL unit is sited only on one side lot line. Siting the unit on both the side lot line and either the front or rear lot line in the corner of the lot allows a larger expanse of con- tiguous yard space . 4 . Use cul-de-sacs , and avoid long streets . Cul-de-sacs work well with ZLL housing. They are also a basic ingredient in the clustered site design approach that has been recommended for ZLL developments . Long streets can create the monotonous site design that should be avoided . Street width , driveways , and garages should also receive special attention in ZLL developments. Conventional-sized streets and on-site parking areas can become overbearing in a development with small lots and minimal set- backs. (See Figure 3.) 5 . ZLL housing s hould be sited in relation to climatic conditions. When possible, the lot line or blank wall side of the ZLL house should be sited to the north and the area of the site that will be used for outdoor activities to the south. This siting arrange- ment allows maximum use of outdoor areas . In mild climates, outdoor areas with a southern ex- posure can be used year round, and in cooler climates this exposure makes it possible to use the outdoor spaces in spring and fall. (See Figure 4 .) Open Space in ZLL Developments As lots become smaller, usable, common open space becomes more essential. Of course, when ZLL develop- ment is used in built-up areas on infill lots, it may be im- possible or impractical to require large amounts of com- mon ~pen space. Available land may be too costly to put to this use. It may be more practical to make sure that such new units are located near public parks. What also car:i be do1:1e to p:ovide a. sense of openness is to encourage umt and si te design that integrates limited indoor and out- door areas, so that one becomes an extension of the other and the most creative use of space can be realized. Dade County attempts to accomplish this by requiring that 15 percent of the lineal length of the perimeter of ZLL units 7 REPORT NO. 322 Plan . Advisory Service n1ng .· •.' .• ~-- A Glossary -of Word~ and Phrases Michael J. Meshenberg .. : , ., seem to have little relationship to these purposes. More flexible requirements, related to these functions, would seem to be in order to avoid the monotony and uselessness of many present requirements. This is particularly the case with front yards; requirements for large front yards create large unused spaces while allowing narrow side or rear yards having more privacy. (See also building line; setback; window exposure.) [PAS 248] yard, corner side street. A side yard which faces a public yard, front A yard extending the full width of the lot on which a building is located and situated between the front lot line and a line parallel thereto and passing through the nearest point of the building. yard, interior side A side yard located immediately adjacent to another zoning lot or to an alley separating such side yard from another zoning lot. yard, rear A yard extending the full width of the lot on which a building is located and situated between the rear lot line and a line parallel thereto and passing through the nearest point of the building. Accessory buildings are permitted in rear yards in many ordinances. There is now some tendency to make the minimum dimension of the re- quired rear yard the same as that for the minimum side yard, to exclude accessory buildings, insert limitations on lot coverage, and enlarge the buildable area, allowing more flexibility in the shape and orientation of the principal structure . yard, side A yard on the same lot as a building situated between the side lot line and a line parallel thereto and passing through the nearest point of a building, and extending from the front yard to the rear. FIGURE 25. ZERO LOT LINE The site plan for a small zero lot line development shows how staggered siting, fencing, and detached garages can help preserve privacy and produce an in- teresting arrangement. 38 yard, transitional A yard that must be provided on a lot where a more intensive land use is located adjacent to either an existing or planned use of a less intensive nature, in accordance with specific ordinance provisions. A transitional yard is provided in lieu of the minimum required front, rear, or side yard specified for the district in which it is located. Its intent is to act as a buffer zone, enabling adjacent uses to be developed so that they are compatible with one another. (See also transitional uses and structures .) zero lot line A development approach in which a building is s ited on one or more lot lines with no yard. Co nceivably, three of the four sides of t he building could be on the lot lin es. The intent is to allow more flexibility in site design and to increase the amount of usable open space on t he lot . Virtually all zoning ordinances retain yard requirements ; where zero lot line developments have been permitted, they have been hand.led through variances or planned unit development procedures, or other devices which allow for site plan review. The few ordinances which specifically authorize the zero lot line approach do so as an exception to prevailing regulations and under clearly defined circumstances. zoning A police power measure, enacted primarily by general purpose units of local government, in which the community is divided into districts or zones within which permitted and special uses are established as are regulations governing lot size, building bulk, placement, and other development standards. Requirements vary from district to district, but they must be uniform within districts. The zoning ordinance consists of two parts: a text and a map . For the most part, this conventional definition of zoning still applies, but recent innovations in flexible zoning, e.g., floating zones and expansion of special use permit controls, have begun to blur some of the ordinance's neatness and clarity. zoning administrator Generally, the local official responsible for granting zoning permits and, following a determination by the zoning board adjustment, for special ' permits and variances . Decisions of the official usually are appealable to the board of adjustment. In some places, the term zoning administrator is used to mean the hearing examiner, an official whose functions replace some or all of those of the board of adjustment . zoning amendment See rezoning. zoning board of adjustment See board of adjustment. zoning certificate See certificate of compliance; certifi- cate of oc c upancy; zoning permit. zoning district A section of a city or county designated in the zoning ordinance text and (usually) delineated on the zoning map, in which requirements for the use of land and building and development standards are prescribed . Within each district, all requirements must be uniform . A jurisdiction may have as few as two or three or as many as 50 districts, depending on circumstances and needs. Too \ \ -· ·, One and Two Family Dwelling Code R-201.5 Partition load: Interior walls and partitions shall be designed to resist a minimum lateral load of 5 psf. Table No. R-201.4 MINIMUM UNIFORMLY DISTRIBUTED LIVE LOADS USE LIVE LOAD Balconies (exterior) 60 Decks 40 Fire escapes 40 Garages (passenger cars only) 50 Attics (no storage with roof slope not steeper than 3 in 12) 10 Attics (limited attic storage) 20 Dwelling units (except sleeping rooms) 40 Sleeping rooms 30 Stairs 40 R-201.6 Deflection: The allowable deflection of any structural member under the approved live load listed in Sections R-201.4 and R-201.5 shall not exceed the values in Table No. R-201.6 . Table No. R-201 .6 ALLOWABLE DEFLECTION OF STRUCTURAL MEMBERS STRUCTURAL MEMBER ALLOWABLE DEFLECTION Rafters having slopes >3112 with no U180 ceiling load Interior Walls and Partitions L .. /180 Floors and plastered Ceilings U360 All Other Structural Members U240 Notes : L = span length L •• = vertical span SECTION R-202-LOCATION ON LOT R-202.1 Exterior walls: Exterior walls located less than 3 feet from property lines shall have not less than a 1-hour fire-resistive rating. The fire-resistive rating of exterior walls located less than 3 feet from property * line shall be rated for exposure from both sides. * R-202.2 Openings: Openings shall not be permitted in exterior walls of dwellings located le ss than 3 feet from the property line . 10 en STRUCTURAL ELEMENT ROOFS & ROOF/CEILING CONSTRUCTIONS (g) ~ EXTERIOR BEARING WAllS and gable en iii :> a. Ill a. CD !:. a: :r <O () 8. ends ol rool (g, i, j) Horizontal separation (distance lrom common property line or assumed property line). O It to 3 It (c ) over 3 It to to It (c) over101tto20ft(c) ove<20ftto30 ft over 30 It EXTERIOR NONBEARING WAllS and gable ends ol rool (g, i, j) Horizontal separation (distance lrom common property line or assumed property line). Oftto3ft (c) over31tto10ft(c) over 10ft to20 It (c) over20ftto30ft over 30 It (k) (!) Ji> 1 ft = 0.305 m Type I 11/2(e,p) 4(0%) 4{10%) 4{20%) 4(40%) 4{NL) 3(0%) 2(10%) 2(20%) 1(40%) NC(NL) Table 600 Fire Resistance Ratings (continued) Type IV TypeV Type II Type Ill 1-Hour 1-Hour Protected Unprotected Protected Unprotected 1-Hour Protected See605 1 (e,f,p) H(d) l(e,p) NC(e) (%indicates percent ol protected and unprotected wall openings permit1ed . See 705 .1.1 lor protection requiremen ts.) 3(0%) 3(10%) 3(20%) 3(40%) 3(NL) 3(0%)(b) 2(10%)(b) 2(20%)(b) 1(40%) 1(NL ) 2(0%) 1(10%) 1(20%) 1(40%) l (NL) 1(0%) 1(10%) NC(20%) NC(40%) NC(NL) 3(0%)(b) 2(10%)(b) 2(20%)(b) 1(40%) 1(NL) 3(0%)(b) 2(10%)(b) 2(20%)(b) 1(40%) l (NL) (%indicates percent ol protected and unprotected wall openings permitted . See 705 . t . t lor protection requ iremen ts.) 3(0%) 3(0%)(b) 2(0%) 1(0%) 3(0%)(b) 3(0%)(b) 2(10%) 2(10%)(b) 1(10%) 1(10%) 2(10%)(b) 2(10%)(b) 2(20%) 2(20%)(b) 1(20%) NC(20%) 2(20%)(b) 2(20%)(b) 1(40%) 1(40%) NC(40%) NC(40%) 1(40%) 1(40%) NC(NL) NC(NL) NC(NL) NC(NL) NC(NL) NC(NL) 1(0%) 1(20%) 1(40%) 1(60%) 1(NL) 1(0%) 1(20%) 1(40%) 0(60%) O(NL) NC = Noncombustibl e NL = No Limits H = Heavy Timber Sizes t CO%)~ 0(20%) 0(40%) 0(60%) O(NL) 1(0%) 0(20%) 0(40%) 0(60%) O(NL) ~ Notes: @" a. See 704 .5 for extension of party walls and fire walls . a. b. See 704 .5 for parapets . g> c . See 705 for protection of wall openings. ~ d. Where horizontal separation of 20 ft or more is provided , wood columns , arches , beams , and roof deck conforming to heavy timber sizes may be c5 used externally. · o e. In buildings not over two stories approved fire retardant treated wood may be used . 8. f. In one story buildings , structural members of heavy timber sizes may be used as an alternate to unprotected structural roof members . Stadiums , field °@ houses and arenas with heavy timber wood dome roofs are permitted. An approved automatic sprinkler system shall be installed in those areas <O where 20 ft clearance to the floor or balcony below is not provided . 'f g . See 1503 for penthouses and roof structures . h. The use of combustible construction for interior bearing partitions shall be limited to the support of not more than two floors and a roof . i. Exterior walls shall be fire tested in accordance with 601 .3 . The fire resistance requirements for exterior walls with 5 ft or less horizontal separation shall be based upon both interior and exterior fire exposure . The fire resistance requirements for exterior walls with more than 5 ft horizontal separation shall be based upon interior fire exposure only . j . Where Appendix F is specifically included in the adopting ordinance , see F102 .2 .6 for fire resistance requirements for exterior walls of Type IV buildings in Fire District. k. Walls or panels shall be of noncombustible material or fire retardant treated wood , except for Type VI construction . I. For Group A -Large Assembly, Group A -Small Assembly , Group B , Group E, Group F, Group R occupancies and Automobile Parking Structures , occupancies of Type I construction , partitions , columns , trusses, girders , beams , and floors may be reduced by 1 hour if the building is equipped with an automatic sprinkler sysiem throughout, but no component or assembly may be less than 1 hour. m .Group A -Large Assembly (no stage requiring proscenium opening protection) and Group A -Small Assembly occupancies of Type V Unprotected construction shall have 1 hour fire resistant floors over any crawl space or basement. n. For Group B and Group M occupancies of Type IV or Type V construction , when five or more stories in height a 2 hour fire resistant floor shall be required over the basement. o . For unsprinklered Group E occupancies of Type Ill , Type IV Unprotec ted , Type V Unprotected or Type VI Unprotected, floors located immediately ve useable space in basements shall have a fire resistant rating of not less than 1 hour. ildings of Group A , B, E, and R occupancies , fire resistance may be omitted wh ere structural members support a roof only and are 20 ft or more above any floor or balcony . i Harvey Cargill -legal issue ' From: To: Date: Subject: Anne Hazen Harvey Cargill 10/4/99 10:25AM legal issue Harvey , is there anything that can be done to stop the building of those houses behind Norma Miller's house? Do the developers meet every known ordinance we have? Did this development have to receive any type of variance? Is there no checks and balances that would have brought this to the attention of any citizens committee, ie Historical preservation , neighborhood notification , city council , etc .? I feel we have dropped the ball somewhere to allow this to occur. Could the ZBA legally deny this approval if they were called into emergency session. Want to have my ducks in a row when someone asks me the questions . Thanks, Anne P.S . the car looks great, thanks again . Page 1 Sec . 212 .002 . Rules . After a public hearing on the matter, the governing body of a municipality may adopt rules governing plats and subdivisions of land within the municipality's jurisdiction to promote the health, safety, morals, or general welfare of the municipality and the safe, orderly, and healthful development of the municipality . Acts 1987, 70th Leg., ch. 149, Sec . 1, eff Sept. 1, 1987 . Sec . 212 . 003 . Extension of Rules to Extraterritorial Jurisdiction . (a) The governing body of a municipality by ordinance may extend to the extraterritorial jurisdiction of the municipality the application of municipal ordinances adopted under Section 212 .002 and other municipal ordinances relating to access to public roads . However, unless otherwise authorized by state law, in its extraterritorial jurisdiction a municipality shall not regulate : ( 1) the use of any building or property for business , industrial , residential, or other purposes; (2) the bulk, height, or number of buildings constructed on a particular tract of land ; (3) the size of a building that can be constructed on a particular tract of land , including without limitation any restriction on the ratio of building floor space to the land square footage ; or ( 4) the number of residential units that can be built per acre ofland. (b) A fine or criminal penalty prescribed by the ordinance does not apply to a violation in the extraterritorial jurisdiction. ( c) The municipality is entitled to appropriate injunctive relief in district court to enjoin a violation of municipal ordinances or codes applicable in the extraterritorial jurisdiction. Acts 1987, 70th Leg., ch . 149, Sec . 1, eff Sept. 1, 1987 . Amended by Acts 1989, 7lst Leg., ch . 1, Sec . 46(b), eff. Aug. 28 , 1989; Acts 1989, 7lst Leg., ch . 822, Sec . 6, eff. Sept. 1, 1989 . Sec . 212.004. Plat Required . (a) The owner of a tract ofland located within the limits or in the extraterritorial jurisdiction of a municipality who divides the tract in two or more parts to lay out a subdivision of the tract, including an addition to a municipality , to lay out suburban, building, or other lots, or to lay out streets, alleys, squares , parks, or other parts of the tract intended to be dedicated to public use or for the use of purchasers or owners of lots fronting on or adjacent to the streets, alleys, squares, parks, or other parts must have a plat of the subdivision prepared . A division of a tract under this subsection includes a division regardless of whether it is made by using a metes and bounds description in a deed of conveyance or in a contract for a deed , by using a contract of sale or other executory contract to convey , or by using any other method . A division ofland under this subsection does not include a division of land into parts greater than five acres, where each part has access and no public improvement is being dedicated . (b) To be recorded, the plat must: (1) describe the subdivision by metes and bounds; (2) locate the subdivision with respect to a comer of the survey or tract or an original comer of the original survey of which it is a part; and (3) state the dimensions of the subdivision and of each street, alley , square, park, or other part of the tract intended to be dedicated to public use or for the use of purchasers or owners of lots fronting on or adjacent to the street, alley, square, park, or other part. ( c) The owner or proprietor of the tract or the owner's or proprietor's agent must acknowledge the plat in the manner required for the acknowledgment of deeds . ( d) The plat must be filed and recorded with the county clerk of the county in which the tract is located . ( e) The plat is subject to the filing and recording provisions of Section 12 .002 , Property Code . Acts 1987, 70th L eg ., ch . 149 , Sec. 1, eff Sept. 1, 1987 . Amended by Acts 1989, 7lst Leg., ch . 1, Sec . 46(b), eff Aug . 28 , 1989; Acts 1989, 7lst Leg., ch . 624, Sec. 3.02 , eff Sept. 1, 1989; Acts 1993 , 73rd Leg., ch. 1046, Sec . 1, eff Aug . 30, 1993 . Sec . 212 .0045 . Exception to Plat Requirement: Municipal Determination. (a) To determine whether specific divisions ofland are required to be platted, a municipality may define and classify the divisions . A municipality need not require platting for every division of land otherwise within the scope of this sub chapter. (b) In lieu of a plat contemplated by this subchapter, a municipality may require the filing of a development plat under Subchapter B if that subchapter applies to the municipality. Added by Acts 1989, 7lst Leg., ch. 1, Sec . 46(b), eff Aug . 28 , 1989 . Sec . 212.0046. Exception to Plat Requirement: Certain Property Abutting Aircraft Runway . An owner of a tract of land is not required to prepare a plat ifthe land: (1) is located wholly within a municipality with a population of 5,000 or less ; (2) is divided into parts larger than 2 1/2 acres; and (3) abuts any part of an aircraft runway . Added by Acts 1989, 7lst Leg ., ch . 1, Sec . 46(b), eff Aug . 28 , 1989 . Sec . 212 .005 . Approval by Municipality Required . The municipal authority responsible for approving plats must approve a plat or replat that is required to be prepared under this subchapter and that satisfies all applicable regulations . Acts 1987, 70th Leg., ch . 149, Sec . 1, eff Sept. 1, 1987 . Amended by Acts 1989, 7lst Leg ., ch . 1, Sec . 46(b), eff. Aug . 28 , 1989; Acts 1993 , 73rd Leg., ch. 1046, Sec. 2, eff. Aug. 30, 1993 . Sec . 212 .006 . Authority Responsible for Approval Generally . (a) The municipal authority responsible for approving plats under this subchapter is the municipal planning commission or, if the municipality has no planning commission, the governing body of the municipality. The governing body by ordinance may require the approval of the governing body in addition to that of the municipal planning commission . (b) In a municipality with a population of more than 1.5 million, at least two members of the municipal planning commission, but not more than 25 percent of the membership of the commission, must be residents of the area outside the limits of the municipality and in which the municipality exercises its authority to approve subdivision plats . Acts 1987 , 70th Leg., ch . 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 7lst Leg., ch. 1, Sec . 46(b), eff. Aug . 28 , 1989. Sec. 212.0065 . Delegation of Approval Responsibility . (a) The governing body of a municipality may delegate to one or more persons of the municipality or of a utility owned or operated by the municipality the ability to approve: (1) amending plats described by Section 212 .016 ; or~ (2) minor plats involving four or fewer lots fronting on an existing street and not requiring the creation of any new street or the extension of municipal facilities . (b) The designated person or persons may, for any reason, elect to present the plat for approval to the municipal authority responsible for approving plats . ( c) The person or persons shall not disapprove the plat and shall be required to refer any plat which the person or persons refuse to approve to the municipal authority responsible for approving plats within the time period specified in Section 212 .009. Added by Acts 1989, 7lst Leg., ch . 345 , Sec . 1, etf Aug . 28, 1989 . Amended by Acts 1995 , 74th Leg ., ch . 92, Sec. 1, etf Aug . 28 , 1995; Acts 1997 , 75th Leg., ch . 566 , Sec . 1, etf June 2, 1997 . Sec . 212.007. Authority Responsible for Approval: Tract in Extraterritorial Jurisdiction of More Than One Municipality . (a) For a tract located in the extraterritorial jurisdiction of more than one municipality, the authority responsible for approving a plat under this subchapter is the authority in the municipality with the largest population that under Section 212 .006 has approval responsibility. The governing body of that municipality may enter into an agreement with any other affected municipality or with any other municipality having area that, if unincorporated, would be in the extraterritorial jurisdiction of the governing body's municipality delegating to the other municipality the responsibility for plat approval within specified parts of the affected area. (b) Either party to an agreement under Subsection (a) may revoke the agreement after 20 years have elapsed after the date of the agreement unless the parties agree to a shorter period . (c) A copy of the agreement shall be filed with the county clerk. Acts 1987, 70th Leg., ch . 149, Sec . 1, etf Sept. 1, 1987 . Sec . 212 .008 . Application for Approval. A person desiring approval of a plat must apply to and file a copy of the plat with the municipal planning commission or, if the municipality has no planning commission, the governing body of the municipality . Acts 1987, 70th Leg ., ch . 149, Sec . 1, etf Sept. 1, 1987 . Sec . 212.009. Approval Procedure. (a) The municipal authority responsible for approving plats shall act on a plat within 30 days after the date the plat is filed . A plat is considered approved by the municipal authority unless it is disapproved within that period . (b) If an ordinance requires that a plat be approved by the governing body of the municipality in addition to the planning commission, the governing body shall act on the plat within 30 days after the date the plat is approved by the planning commission or is considered approved by the inaction of the commission. A plat is considered approved by the governing body unless it is disapproved within that period . ( c) If a plat is approved , the municipal authority giving the approval shall endorse the plat with a certificate indicating the approval. The certificate must be signed by : (1) the authority's presiding officer and attested by the authority's secretary ; or (2) a majority of the members of the authority . (d) If the municipal authority responsible for approving plats fails to act on a plat within the prescribed period, the authority on request shall issue a certificate stating the date the plat was filed and that the authority failed to act on the plat within the period. The certificate is effective in place of the endorsement required by Subsection (c). (e) The municipal authority responsible for approving plats shall maintain a record of each application made to the authority and the authority's action taken on it. On request of an owner of an affected tract, the authority shall certify the reasons for the action taken on an application. Acts 1987 , 70th Leg ., ch . 149, Sec . 1, eff. Sept. 1, 1987. Sec . 212 .010. Standards for Approval. (a) The municipal authority responsible for approving plats shall approve a plat if: (1) it conforms to the general plan of the municipality and its current and future streets, alleys, parks, playgrounds, and public utility facilities ; (2) it conforms to the general plan for the extension of the municipality and its roads, streets, and public highways within the municipality and in its extraterritorial jurisdiction, taking into account access to and extension of sewer and water mains and the instrumentalities of public utilities ; (3) a bond required under Section 212 .0106 , if applicable , is filed with the municipality ; and (4) it conforms to any rules adopted under Section 212 .002 . (b) However, the municipal authority responsible for approving plats may not approve a plat unless the plat and other documents have been prepared as required by Section 212 .0105 , if applicable . Acts 1987, 70th Leg., ch . 149, Sec . 1, etf Sept. 1, 1987 . Amended by Acts 1989, 7 l st Leg ., ch . 624, Sec . 3.01 , eff. Sept. 1, 1989 . Sec . 212 .013 . Vacating Plat. (a) The proprietors of the tract covered by a plat may vacate the plat at any time before any lot in the plat is sold . The plat is vacated when a signed , acknowledged instrument declaring the plat vacated is approved and recorded in the manner prescribed for the original plat. (b) If lots in the plat have been sold , the plat, or any part of the plat, may be vacated on the application of all the owners of lots in the plat with approval obtained in the manner prescribed for the original plat. (c) The county clerk shall write legibly on the vacated plat the word "Vacated" and shall enter on the plat a reference to the volume and page at which the vacating instrument is recorded . ( d) On the execution and recording of the vacating instrument, the vacated plat has no effect. Acts 1987, 70th Leg., ch . 149, Sec . 1, eff Sept. 1, 1987 . Sec . 212 .014 . Replatting Without Vacating Preceding Plat . A replat of a subdivision or part of a subdivision may be recorded and is controlling over the preceding plat without vacation of that plat if the rep lat: (1) is signed and acknowledged by only the owners of the property being replatted; (2) is approved , after a public hearing on the matter at which parties in interest and citizens have an opportunity to be heard, by the municipal authority responsible for approving plats; and (3) does not attempt to amend or remove any covenants or restrictions . Acts 1987, 70th Leg., ch . 149, Sec . 1, eff Sept. 1, 1987 . Sec . 212 .015 . Additional Requirements for Certain Replats. (a) In addition to compliance with Section 212 .014 , a replat without vacation of the preceding plat must conform to the requirements of this section if: (1) during the preceding five years, any of the area to be replatted was limited by an interim or permanent zoning classification to residential use for not more than two residential units per lot; or (2) any lot in the preceding plat was limited by deed restrictions to residential use for not more than two residential units per lot. (b) Notice of the hearing required under Section 212 .014 shall be given before the 15th day before the date of the hearing by: (1) publication in an official newspaper or a newspaper of general circulation in the county in which the municipality is located; and (2) by written notice, with a copy of Subsection ( c) attached, forwarded by the municipal authority responsible for approving plats to the owners oflots that are in the original subdivision and that are within 200 feet of the lots to be replatted, as indicated on the most recently approved municipal tax roll or in the case of a subdivision within the extraterritorial jurisdiction, the most recently approved county tax roll of the property upon which the rep lat is requested . The written notice may be delivered by depositing the notice, properly addressed with postage prepaid, in a post office or postal depository within the boundaries of the municipality. ( c) If the proposed rep lat requires a variance and is protested in accordance with this subsection, the proposed replat must receive, in order to be approved, the affirmative vote of at least three-fourths of the members present of the municipal planning commission or governing body, or both . For a legal protest, written instruments signed by the owners of at least 20 percent of the area of the lots or land immediately adjoining the area covered by the proposed replat and extending 200 feet from that area, but within the original subdivision, must be filed with the municipal planning commission or governing body, or both, prior to the close of the public hearing . ( d) In computing the percentage of land area under Subsection ( c ), the area of streets and alleys shall be included . ( e) Compliance with Subsections ( c) and ( d) is not required for approval of a rep lat of part of a preceding plat if the area to be replatted was designated or reserved for other than single or duplex family residential use by notation on the last legally recorded plat or in the legally recorded restrictions applicable to the plat. Acts 1987, 70th Leg., ch. 149, Sec . 1, eff. Sept. 1, 1987 . Amended by Acts 1989, 7lst Leg., ch. 345 , Secs . 2 to 5, eff. Aug . 28 , 1989 ; Acts 1993 , 73rd Leg ., ch. 1046, Sec . 3, eff. Aug . 30, 1993. Sec . 212 .016 . Amending Plat. (a) The municipal authority responsible for approving plats may approve and issue an amending plat, which may be recorded and is controlling over the preceding plat without vacation of that plat, if the amending plat is signed by the applicants only and is solely for one or more of the following purposes: ( 1) to correct an error in a course or distance shown on the preceding plat; (2) to add a course or distance that was omitted on the preceding plat; (3) to correct an error in a real property description shown on the preceding plat; ( 4) to indicate monuments set after the death, disability, or retirement from practice of the engineer or surveyor responsible for setting monuments ; (5) to show the location or character of a monument that has been changed in location or character or that is shown incorrectly as to location or character on the preceding plat; (6) to correct any other type of scrivener or clerical error or omission previously approved by the municipal authority responsible for approving plats, including lot numbers, acreage, street names, and identification of adjacent recorded plats; (7) to correct an error in courses and distances of lot lines between two adjacent lots if (A) both lot owners join in the application for amending the plat ; (B) neither lot is abolished ; (C) the amendment does not attempt to remove recorded covenants or restrictions ; and (D) the amendment does not have a material adverse effect on the property rights of the other owners in the plat; (8) to relocate a lot line to eliminate an inadvertent encroachment of a building or other improvement on a lot line or easement ; (9) to relocate one or more lot lines between one or more ~ adjacent lots if: (A) the owners of all those lots join in the application for amending the plat; (B) the amendment does not attempt to remove recorded covenants or restrictions ; and (C) the amendment does not increase the number of lots ; (10) to make necessary changes to the preceding plat to create si x or fewer lots in the subdivision or a part of the subdivision covered by the preceding plat if: (A) the changes do not affect applicable zoning and other regulations of the municipality ; (B) the changes do not attempt to amend or remove any covenants or restrictions ; and (C) the area covered by the changes is located in an area that the municipal planning commission or other appropriate governing body of the municipality has approved, after a public hearing , as a residential improvement area; or (11) to replat one or more lots fronting on an existing street if: (A) the owners of all those lots join in the application for amending the plat ; (B) the amendment does not attempt to remove recorded covenants or restrictions ; (C) the amendment does not increase the number of lots ; and (D) the amendment does not create or require the creation of a new street or make necessary the extension of municipal facilities . (b) Notice, a hearing, and the approval of other lot owners are not required for the approval and issuance of an amending plat. Acts 1987, 70th Leg., ch . 149 , Sec. 1, eff. Sept. 1, 1987 . Amended by Acts 1989, 7lst Leg., ch . 1, Sec . 46(b), eff. Aug . 28 , 1989 ; Acts 1995 , 74th Leg ., ch. 92 , Sec. 2 , eff. Aug. 28 , 1995 . ' -J -----...,.----------- ... . ---~-------!-+---------·~-"------------~-------------------------------------------- --------------------------- -,----- •:'r) ----..-----~--~- .. ' f \ { 1, -~ ! • t -_J _ •• I ~- 2. a,ol "''."'(~*'/q_rc_fl-S. -~~.~J··V'·\~o-rJ5 ~ -f , . .. I .. 'I. .. ,. • ( ,. ~. Q~, J ~-~'-; ~' J._J.,. /. ~ Y'<a ..J \...._'i q,' ~;...,: vt--.u.d--.s +. ~ N"l ~Q ~ -' w ( V\.H . I . h .~ ~~ ~ j ~ Al~ .I" I" t I ~ --~5 S k -~ \ · w~\1 ... .,.:. · -A..,k,_,'1 VQ -J;. "'..)-f G ~ S\..-~ ~1 "'"\-~ ~ ___.~ • J . I -h-I .. . ' .. ·~--· ~ ~+ \ t 0 . t : i •I APPLICABLE ORDINANCE RESRICTIONS Information specific to the Nelson Nagle properties is italicized Ownership of abandoned RO W's ~ City does not make ownership determinations. ~ Ownership may be divided and clarified through platting. ~ Applicants are responsible for researching ownership and certify such when signing plat. ~ Ownership disputes are considered solely private matters (they do not involve public interest issues). ~ Mr. Nagle claimed ownership of half of the abandoned Fidelity ROW and certified such upon signing ownership block on the plat. Staff approval of minor plats ~ Delegation of approval to staff member permitted by statute ~ Local ordinance changed to streamline dev't process (Council Strategic Issue several years) ~ Staff-level plat if the plat involves 4 or fewer lots fronting on an existing street and no infrastructure is required. ~ Staff reviews for general compliance with requirements such as lot size/dimensions, access , public utility availability, etc . ~ The replatting proposal met minor plat definition and requirements and was thus reviewed and ultimately approved solely by staff per statute and case law requirements. Lot/house sizes ~ No minimum floor area requirement for house size in any of the City's ordinances as long as setbacks are met. ~ Lot size and dimension minimum in R-1 -5000 sf; 50 ' X 100' ~ Lots created prior to 1970 (year Subdivision Regulations were adopted) exempt by ordinance (and perhaps case law) regardless of size ~ College Park Subdivision was created in 1923, prior to lot size restrictions. Lots JO and 11 were therefore exempt from meeting current codes. ~ Lot 12 was divided into two parts prior to 1970 and was therefore also exempt. ~ Mr. Nagle purchased 3 separate lots and had the right to a viable use for each of them under current case law. ~ The Zoning Ordinance allows multiple lots to be combined into a single "building plot", and it further provides that more than one principle structure may be built on that building plot as long as lot size and setback requirements are met. ~ Mr. Nagle would also have had the option to define his 3 lots as a single building plot, and to have up to 3 homes as long as the 5000 sf minimum was met for each unit and all new structures met R-1 setbacks. This provision would not have included a platting requirement. Revocation of building permits ~· The Building Official is authorized under the local Building Code to revoke permits if there was false information provided on the application or if the construction is in violation of the Building Code. ~ Issuance of a building permit grants substantial rights to an applicant that are legally difficult to retract. In order to be as legally sound as possible, revocation of a building permit should be based on serious and imminent health or safety concerns. );;:>-To date, the Building Official has found no compelling grounds for revocation of the building permits. Tree preservation );;:>-The City of College Station currently has no tree preservation requirements in single family areas. );;:>-Staff had no authority to prevent removal of trees. Drainage/impervious cover ~ Compliance with the Drainage Ordinance is triggered on a residential resubdivision only when the replat would result in a significant increase in the potential for impervious cover. );;:>-In this particular case, the amending plat did not result in an increase in the potential number of buildings. Replats involving building encroachments );;:>-Staff requires an applicant to show the location of all existing improvements );;:>-When a building encroaches either a setback line or a property line , the applicant is required to address the matter (through a variance or lot line shift in the case of a setback encroachment; through a lot line shift, building removal, or easement dedication in the case of a property line encroachment). * This requirment applies to replats but not to the "more than one principle building" provision. ~ During the review of the amending plat, Staff requested that the applicant show all improvements. The applicant complied with the request, except that he did not show a carport that allegedly crosses a new property line. If the carport is to remain, Staff will request that the applicant address the encroachment using one of the options listed above . Driveways/parking );;:>-The Zoning Ordinance requires two parking spaces for each single family dwelling. The City's "parking in the yard" (PITY) restrictions require these two spaces to be paved. In the particular case of single family and duplex development, "paving" is interpreted to be gravel or crushed rock. );;:>-Residential driveways must meet Driveway Access and Location Ordinance provisions relating to residential drives (including maximum and minimum widths). The apron must be either asphalt or concrete under the Zoning Ordinance . )> All legally recognized lots are permitted reasonable access to public rights-of-way. )> The applicant met all applicable minimum requirements relating to driveways/parking. Density )> The City's Comprehensive Plan Objectives discourage increasing density in existing residential areas. Currently, this policy would be used in rezoning decisions (for instance, staff would recommend denial of a request for higher density zoning in existing neighborhoods). )> The Objectives also recommend a study of the Southside area for purposes of preservation and enhancement. The Neighborhood Planning Program is a mechanism for accomplishing the preservation of the Southside and all other neighborhoods. )> The Zoning Ordinance allows lots at a minimum of 5000 square feet. Any person owning R-1 zoned property in the City of College Station has the right to resubdivide the property into smaller lots as long as they are not smaller than 5000 square feet. )> While the City's general guidelines may indicate that smaller lot sizes should not be permitted, there is currently no authority to prevent 5000 square foot lots in an area zoned R-1. )> Staff did not have the authority to deny the amending plat because it met minimum R-1 densities and dimensions . Zero-lot line construction )> The Zoning Ordinance permits side setbacks to be reduced in an R-1 district as long as the property is under single ownership , and a master plan is submitted for approval. The master plan may be included in the plat. )> Staff checks the master plan to assure that all buildings include a minimum building separation of 15' and that the first and last lots include the standard side setback adjacent to non-zero setback areas . The actual side setback in relation to respective property lines is allowed to vary as long as each set of two adjoining side yards total 15' )> The amending plat included the zero-setback information and complied with all restrictions for this type of construction. The actual side setbacks were varied but met the building distance requirement. Texas Vesting Statute )> Provides protection for developers so that they may rely on a given set of development regulations . )> Calls for a "freezing" of certain codes, restrictions, and regulations from the time an area is first platted . )> Before lot size and lot coverage requirements are changed, staff would need to investigate the applicability of the Texas Vesting Statute. . . • I MEMBERS PRESENT: MEMBERS ABSENT: STAFF PRESENT: AGENDA ITEM NO. 1: MINUTES Zoning Board of Adjustment CI TY OF COLLEGE STATION, TEXAS October 20 , 1999 6:00 P .M . Chairman Alexander, Murphy , Happ , Hill, & Bond . Alternate Members Lewis , Searcy, Dr. Bailey & Ellis . Senior Planner McCully , Staff Assistant Grace , Staff Planner Anderson , Senior Assistant City Attorney Nemcik, Assistant City Attorney 's Ladd & Decluitt, Transportation Analyst Hester, City Planner Kee, Staff Planner Battle, Director of Development Services Callaway, Development Coordinator Ruiz, Assistant Development Coordinator George , Staff Assistant Charazna, Staff Planner Jimmerson , Transportation Planner Hard & Mapping Specialist Manhart . Call to order -Explanation of functions of the Board. Chairman Alexander called the meeting to order and explained the functions of the Board . AGENDA ITEM NO. 2: Approval of minutes from October 5, 1999 meeting of the Board . Mr . Happ made the motion to approve the minutes as written. Mr. Murphy seconded the motion , which passed unopposed (5-0). AGENDA ITEM NO. 3: Consideration of an appeal of the Zoning Official's application of Section 7.2 D relative to setbacks and to Section 9 relative to parking and driveways at 600 & 604 Welsh . Applicant is Norma Miller. City Planner Kee stepped before the Board and summarized the October 5, 1999 meeting of the Board concerning this case. Ms . Kee told the Board that the questions before the Board are whether or not the Zoning Official applied the parking regulations and the side setbacks requirements properly in the review of building permits that were issued for homes at 600 & 604 Welsh. Ms. Kee continued her report as follows: The Zoning Ordinance authorizes the Zoning Official to make interpretations of any provision of the Ordinance if the need arises . The Zoning Official is not one particular person but may be any staff member given responsibility for acting in that capacity in a given situation. In making such determinations , the Planning Staff takes into consid eration the intent of the ordinance, consistency , and the public interest. Staff members constantly communicate to ensure that each person, when acting in the capacity of the Zoning Official , is bein g consistent with past applications and interpretations. The staffs discussions that led to the approval of this building permit were consistent with prior applications of these Zoning Ordinance provisions . ZBA Minutes October 20, 1999 Page I of 15 Item Background This property involves lots 10, 11, and 29 feet of 12, Block C, College Park with a total frontage of 129 .03 feet. In 1962 the portion of Fidelity Street running parallel and adjacent to this property was abandoned. These properties are zoned R-1 Single Family. One home has existed on the property for many years . Single family zoning and development surround the property. This year an amending plat was presented to clarify the property boundaries to reflect the Fidelity abandonment which added 25 feet to the property for a total of 154 .03 feet of frontage. An interior lot line was also adjusted with this amending plat. With 154.03 feet of frontage and an interior lot line adjustment, the property is reflected as three 50-foot wide lots each meeting the lot dimensions for an individual home . Two new houses were permitted under the lot line construction alternative found in Table A , Note C of the Zoning Ordinance. Without the amending plat the property could still have three homes under Section 8. 4 of the Zoning Ordinance which allows more than one structure housing a principle use to be built on a lot or building plot as long as all other requirements of the zoning ordinance are met as though each were on an individual lot. Parking Appeal In the case at hand, the applicant states "Off-street parking requirements not met." It is unclear what the applicant is referencing by this statement. Howev er, the following will explain each area of the parking section and how it is applied. Section 9 provides for minimum standards for parking space dimensions , access, islands, parking lot maintenance, landscape reserve area, surfacing requirements, parking lot lighting and temporary parking lot requirements. Section 9 references "In all districts for all uses ... ". The majority of the regulations are intended for uses that require parking lots, such as multi-family or commercial uses, referencing islands , parking lot setbacks, etc . The portions of Section 9 dealing with islands, parking lot maintenance, the landscape reserve , parking lot lighting and temporary parking requirements are not applicable to this case as these provisions are for multi-family/commercial uses and not for single family uses. Ms. Kee addressed the parts of Section 9 that are applicable to single family site plan review. Section 9 .A -Dimensions and Access references illustrations at the end of the section. In those illustrations there are graphs depicting concrete driveway aprons in the right-of-way for residential applications. It shows the maximum driveway radius of I 0 feet as established in Chapter 3 of the City's Code of Ordinances. (The City's Code of Ordinances is a codified version of all codes and ordinances. The Zoning Ordinance is included by reference.) Chapter 3 of the City's Code of Ordinances establishes curb return radius for residential driveways on local streets to be a maximum of I 0 feet and a minimum of 2. 5 feet. Typically single family drives have a radius of 2. 5 to 5 f eet when located on local streets. Chapter 3 also provides for a maximum width for a residential dri ve approach to be 28 f eet m easured at the property line with a minimum width of I 0 feet. The graphics of Section 9 of the Zoning Ordinance include the Chapter 3 requirements relative to driveway width. 9.2.A.l requires a 9' by 20' parking space and this is required for all uses that require parking including single family uses . 9 .2 .A.2 refers to off-street parking for truck unloading and is not applicable to single family. ZBA Minutes October 20. 1999 Page 2of15 9.2.A.3 intends for all parking and maneuvering areas to be located entirely within the boundaries of the building plot except as set forth in Chapter 3 of the City's Code of Ordinances (this refers to _shared access drives.). All single family driveways and parking areas are required to meet this. 9.2.A.4 is not applicable to single family residences unless located on a major arterial or collector street. 9 .2.A.5 refers to a 24-foot landscape reserve. This is intended for parking lots, not individual residential driveways as driveways are specifically excluded in this section. Exceptions are made for 7 parking spaces to be allowed in this reserve. (These are clearly references to uses that require parking lots as opposed to single family uses .) It is not applied to single family permits. 9 .2.A.6 , 7 and 8 address parking lot islands and are not applicable to single family permits. 9.2 .B references off-premise parking locations and the requirements for such. This is intended for facilities that require parking lots and multiple spaces and allows for some to be located .off-premise under certain circumstances. It has never been applied to a single-family residence. 9.2.C references public parking areas and is not applicable. 9.2.D references surfacing requirements and states; "Except as otherwise provided ... ". Section 6 of Chapter 10 of the City's Code of Ordinances addresses surfacing for single family driveways and this section is applied. 9 .2.E references lighting for off-street parking areas and is not applicable to single family reviews . 9.2.F references drive surfaces for temporary and/or permanent drives required for emergency access and is applied by the City Engineer. This is not applicable to single family site reviews. 9.2.G references temporary parking lots and is not applicable. 9 .3 references off-street spaces required and specifically requires a minimum of two parking spaces for single family uses. This regulation is applied to single family permits. Both new permits issued for 600 and 604 Welsh were interpreted as meeting the above applicable requirements because: 1. The location and radius of the curb return was not shown on the site plan presented for building permit. The contractor was advised of radius requirements. Staff will inspect for a proper radius of 2.5 to 5 feet and this it is contained on Mr. Nagle's property. No certificate of occupancy will be issued without an inspection to ensure compliance. 2. The driveway aprons are shown to be approved all weather surfaces for that portion in the right-of- way as provided for in the Zoning ordinance and Chapter 3 of the City's Code of Ordinances. ' 3. The portion of the driveway on private property is shown to be crushed limestone , which is a private drive standard previously approved by the City Engineer . This standard has been allowed for years . 4. Two parking spaces are required by the Zoning Ordinance. The dimensions of the driveways have the minimum width and depth for two parking spaces. It is customary that the two spaces required for a single family use may be side by side or end to end as the spaces and vehicles are under control of the property owner. This has been a long-standing interpretation for single family residential uses. ZBA Minutes Octobu 20, 1999 Page 3of15 Setback Appeal Section 7 .2.D refers to Table A that sets out the setback, lot size and height restrictions based on the applicable zoning district. The portion being appealed is the application of the side setback requirement for the R-1 zone. For a single family zone Table A requires either an absolute 7.5 foot side setback or allows for lot line construction under certain circumstances. Note C of Table A states: "Zero lot line construction of residences is allowed where property on both sides of lot line is owned and/or developed simultaneously by single party. Development under lot line construction requires prior approval by the Zoning Official. In no case shall a single family residence be built within 15 feet of another building. " This section has been interpreted over the years by many different people but has consistently been interpreted to allow less than the 7.5 foot setback and as little as a 0 foot setback. The important health and safety consideration is that no residence is closer than 15 feet to another. This is why it is imperative that property on both sides of the lot line in question be under one person's control when the decision is made to apply lot line construction . This provision is a critical factor in the interpretations as made to date. In this case there is an existing house in the center of the property. When Mr. Nagle amended the plat of his property, he did so in order to clarify the boundaries of his property. The right-of-way of Fidelity Street running adjacent and parallel to his property had been abandoned 37 years before. To clarify this and to relocate an interior lot line Mr. Nagle decided to amend the plat of his property. He actually owns 154.03 feet of frontage. Under the Zoning Ordinance the minimum lot width in R-1 is 50 feet measured at the front setback line. With this amount of frontage Mr. Nagle chose to build two additional houses . In this case Mr. Nagle opted to use Note C of Table A to provide 0 foot and 15 foot setbacks for one side of the existing house and 3.5 foot and 11.5 foot setbacks for the opposite side. This application is consistent with stafrs interpretation of this note. 1990s Recent Examples of lot line construction Eastmark Subdivision -variable Pebble Creek-0115 feet Grand Oaks -0115 feet Two Lincoln Place -0115 feet Pleasant Forest -variable It is more common for builders/developers to use the 0115 foot combination under lot line construction because this maximizes the amount of useable side yard area by containing it all on one side. However, there are builders/developers who choose to use a variable setback because of roof overhangs and sidewall maintenance concerns as well as Building Code limitations on the number of openings and firewall requirements. When building on a 0-foot setback one would have to be on the adjacent neighbor's property to perform any maintenance on the sidewall. Also, roof overhangs would allow water to run off onto the rreighboring property and some builders want to avoid this situation for future homeowne'rs. The alternqtive is to grant maintenance and overhang easements. The Building Code limits the amount of openings that can be in a wall based on construction type and distance from the property lin e. The Building Code also requires a one hour rated firewall when wood construction is 3 feet or closer to the property line. In Mr. Nagle 's case the relocated interior lot line enabled him to meet the minimum lot width requirement and the variable setback enabled him to meet the setback requirements If, over the years, the City had not interpreted lot line construction to include a variable setback, Mr. Nagle 's (or anyone else's) possible alternatives would be to use Section 8.4 which allows more than one structure housing a principle use to be built or to seek a variance from the ZBA to the side setback requirement. ZBA Minutes October 20, 1999 Page 4of15 Mr. Bond referenced the statement "Development under lot line construction requires prior approval by the Zoning Official." Is this to make sure the 15 feet between the houses existed before the construction begins. Ms. Kee replied that was correct and also to understand all the implications that go with either building on the property line or choosing a variable setback. Mr. Bond asked if this case was a variable setback or zero lot line. Ms. Kee answered that it was a combination of both. The house existing on one side opted to use zero and 15 feet and the other used 3 Yi feet and 11 Y2 feet. Mr. Bond asked if there were any other considerations made in deciding to approve the construction of the two houses. Ms. Kee asked relative to setbacks or in general. Mr . Bond answered relative to setbacks. Ms. Kee replied that when a building permit is reviewed, staff makes sure that setbacks meet the minimum. Mr. Bond asked Ms. Kee what is the benefit of lot line construction and these 3 homes being under one person's control. Ms. Kee stated that the advantage of the common ownership initially is to use the zero lot construction. Mr. Bond asked Ms. Kee if she was the staff member who approved the zero lot line construction in this case. Ms. Kee replied that she was not. Mr. Happ asked Ms. Kee to explain the subdividing requirements if the houses were sold after construction. Ms. Kee replied that if it were decided to sell one of the homes, it would then have to be replatted. One of the requirements for the R-1 zone is that the lot is a minimum 50 x 100-ft lot. The replat would show the new requirements on that plat. Mr. Hill asked Ms. Kee if the 15-foot separation is from wall to wall. Ms. Kee replied that it is measured from slab to slab . Mr. Hill asked about the roof over hang. Ms. Kee stated that typical roof over hang can be from 18 inches to 2 feet and they usually do not cause a problem. Mr. Murphy asked if it is normal procedure for the location and radius of the curb not to be shown on the site plan when it is presented for a building permit. Ms. Kee stated that is fairly common for a site plan to not have every detail. Rather than have the site plan redrawn , the Building Official will inform the builder of those things that will have to be taken care of before a certificate of occupancy is given. Chairman Alexander opened the public hearing. Mr. Esmond stepped before the Board and was sworn in by Chairman Alexander. Mr. Esmond stated that he was representing Mrs . Miller. Mr. Esmond read Section 2.12 of the Local Government Code. Mr. Esmond told the Board that they do have the power to reverse the action of the Zoning Official and the Zoning Official does not have the power to make exceptions that the members of the Zoning Board of Adjustment does. Mr. Esmond encouraged the Board to use their authority . Mr. Esmond handed the Board Members copies of " The Compleat Primer on the Law of Zoning: From Regulation to Litigation. Mr. Esmond read excerpts from the publication. Mr. Esmond reminded the Board of the other issues that were brought before the Board at the October 5 meeting. Mr. Esmond told the Board that these items would not be considered at this meeting. Mr. Esmond told the Board of his attempts to have the items brought before Planning & Zoning. Mr. Esmond stated the issues: 1) the plat is not an amending plat, 2) the closing of the alley is in violation of the subdivision regulations, and 3) the RV hook up is illegal. Mr. Esmond asked the Board to refer these matters to Planning and Zoning. ZBA Minutes October 20, I 999 Page 5of15 Mr. Esmond told the Board that he would talk a bout the comments Ms . Kee made in her staff report. Mr. Esmond also told the Board he would hand them exhibits as he addressed Ms . Kee's comments. Mr. Esmond stated that Ms. Kee can delegate authority , she is the city's designated Zonin g Official. Mr. Esmond handed the Board a copy of Ms . Kee 'sjob description . Mr. Esmond discussed Section 9 that Ms . Kee spoke about in her staff report . Mr. Es mond st ated that he thinks all of the sections are applicable to single family residential. 9 .2.A.2 off street parking for truck unloading -if you build a large house you might have this situation and this section would apply. 9 .2.A.3 parking and maneuvering areas -if you had off street parking this section would apply . 9 .2.A.4. ingress and egress for residences on major arterial or collector street -off street parking, this section would apply . 9.2 .A .5 -24-foot landscape reserve -the way this is worded you can go through the landscape reserve with a driveway. But if you chose to park in the reserve it is a different matter. Mr. Esmond referred to Section 13 of the Zoning Ordinance. Mr. Esmond stated that this section explains the procedure the Zoning Official is to use when a provision is unclear. Mr. Esmond stated that this has not been done. 9.2.D -surfacing requirements -of either asphalt or concrete, this does require a variance. Mr. Esmond stated that Mrs. Miller would like for this to go before the Planning & Zoning Commission. There is no provision for the gravel driveway and no variance has been sought or granted . Mr. Esmond told the Board that Mrs. Miller's property borders where the gravel driveway is proposed. Mr . Esmond stated that the gravel driveway is recognized as a temporary surface in the Zoning Ord inance . Setback Appeal: Mr. Esmond spoke about Table A of Section 7.2D. Mr. Esmond pointed out to the Board where it states "zero lot line construction of a residence is allowed where property on both sides of the lot line is owned and/or developed simultaneously by a single party. Development under lot line construction requires prior approval by the Zoning Official. In no case shall a single family residence or duplex be built within 15 feet of another building. " Mr. Esmond stated that the interpretation of where the line is you have to refer to Section 8.7 of the Zoning Ordinance. This section states "yards as required in this ordinance are open spaces on the lot or building plot on which a building is situated and which are open and unobstructed to the sky by any structure except as herein provided ." Mr. Esmond stated that means an eave. Mr. Esmond stated this is a problem with the ordinance and how it reads . Mr. Esmond spoke about the staff report where it stated that Mr. Nagle opted to use Note C of Table A. Mr. Esmond told the Board that he does not see any license for the developer to opt for anything. Mr. Esmond stated that this is something the Zoning Official should determine and grant. ZBA Minutes Octo ber 20, 19 99 Page 6 of15 .. Mr. Esmond told the Board that the air conditioner is not mentioned in the staff report . Mr. Esmond stated this is very significant and it does not show up on the plat. Mr. Esmond explained that a plat is developed from structures and improvements on the ground and that becomes the underlying layer for the replat. Mr. Esmond stated that someone had to decide to remove the air conditioner and not show it on the final plat, but there is a note to address the air conditioner. Mr. Esmond read the note, as it appears on the plat "the existing air conditioner for the house on lot 11 R will be allowed to remain on 12 R ". Mr. Esmond stated the only way to interpret this is as meaning the existing air conditioner. What does it say about access to the air conditioner or getting to the air conditioner. Mr. Esmond added that it is also a fire hazard and safety issue as well since it is a electrical mechanical device. Mr. Esmond referenced the staff report dated July 13, 1999 as stating "the air conditioning unit located on lot J 2R, which is for the building on lot 11 R ", needs to either be covered by an easement or there needs to be a note stating that the unit will be moved. Mr. Esmond stated that the plat was signed anyway. Mr. Esmond spoke to the Board again about one of the requirements of zero lot line construction. Specifically " zero lot line construction of residences is allowed where property on both sides of lot line is owned and/or developed simultaneously by single party". Mr . Esmond handed the Board copies of warranty deeds and other legal documents. Mr. Esmond explained these documents and stated that these properties are not owned by a single party, but rather by two. Mr. Nagle and Allison Nagle own these properties. Mr. Esmond told the Board that they have no choice but to overturn the decision that was made and reverse it. Mr. Happ asked Mr. Esmond what is the relationship of Nelson and Allison Nagle. Mr. Esmond answered that he understands they are father and daughter. Mr. Bond asked Mr. Esmond what is his contention that different parties are developing the properties. As it is stated under Section C of Table A -"zero lot line is allowed where properties on both sides of lot line is either owned and/or developed simultaneously by a single party. " Mr. Bond asked if there are different developers in this case also. If so, that would give the Zoning Official the approval of either one. Mr. Esmond answered that if you follow that statement you have to realize that the house in the middle has been developed already. The house is just a few years away from getting its historical plaque. Mr. Esmond stated that the analysis fails this case. Mr. Murphy referenced the staff report concerning Section 9.2 .D. -surfacing requirements as written "except as otherwise provided. " Section 6 of Chapter 10 of the Code of Ordinances is also referenced. Mr. Murphy referred to Mr. Esmond's statement that the surface should be asphalt or concrete. Mr. Esmond replied that this statement is not in the Zoning Ordinance and therefore it is outside this scope. There is a variance provision and it states that the Planning and Zoning Commission will approve the variance of this standard. Mr. Esmond stated that it did not go the P&Z and Mrs. Miller would like to have the plat go to the P&Z. The plat did not qualify, as an amending plat. Mr. Esmond ended by telling the Board that these matters are not in the scope of the ZBA. ZBA Minutes October 20, 1999 Page 7 of15 . . Benito Flores-Meath, 901 Val Verde, stepped before the Board and was sworn in by Chairman Alexander. Mr. Flores-Meath handed the Board copies of warranty deeds for the properties that date back to May. Mr. Flores-Meath explained to the Board that it shows ownership as Allison Nagle, a single woman and Nelson Lee Nagle , a single man. Mr. Flores-Meath stated that whether there is an affiliation or not, they are separately listed as two individual persons . Mr. Flores-Meath stated that was for the purchase of tract B (the middle lot). Mr. Flores-Meath explained the warranty deed for tract A & C listing Nelson Lee Nagle only. Mr. Flores-Meath explained the special warranty deed signed in September after the plat was recorded at the courthouse . It is shown the grantor as Allison Nagle and a grantee as Nelson Lee Nagle. It states that Allison is granting control of some of the land to Nelson Lee Nagle. Mr. Flores-Meath stated that this acknowledges that they are two separate adults and there is separate ownership for the land. Mr. Flores-Meath asked does that not show a distinction between two people owning one lot and one person owning two other lots . Mr. Flores-Meath stated that the zero lot line exception should not have been allowed on either side . Mr. Flores made reference to a comment made at the October 5 meeting of the Board concerning deed restrictions not being enforceable. Mr. Flores-Meath stated that the city's web page states Brison Park formerly known as Dexter Park was renamed in 1980 in honor of Fred Brison. The page describes the park as a beautifully wooded green space protected from development by deed restrictions. Mr. Flores- Meath stated that the city can not enforce the deed restrictions but they do honor them . Mr. Nelson Nagle stepped before the Board and was sworn in by Chairman Alexander. Mr. Nagle introduced his daughter Allison Nagle to the Board. Mr. Nagle told the Board it was when his daughter decided to attend Texas A & M the decision was made to help her enjoy the rights of property ownership. After the purchase of the property in question, Mr. Nagle stated that he met immediately with the Planning Department. Mr. Nagle stated that the development has been described as 3 houses being constructed on one lot. Mr. Nagle told the Board that when he purchased the property it was 2- 50 foot lots as per the original plat and 29 feet of another lot. Mr. Nagle stated that in talking with the Planning Department he learned that Fidelity Street was closed in 1961. Mr. Nagle asked the city if he had rights to use this land. Mr. Nagle was told there is no official process to go through he just needs to claim it. He was told that other neighbors are already encroaching on to Fidelity Street and have fenced it in and have claimed it with buildings. Mr. Nagle stated that he began what he felt as the process of development. He hired an architect and planned houses that he felt fit into the neighborhood and were similar to houses directly across the street. Mr. Nagle stated that he is very sensitive to the neighborhood and along with the builder, the homes were planned to be historically sensitive. Mr. Nagle explained that similar architecture exists throughout the area. Mr. Nagle addressed the surfaces used in parking lots. Mr. Nagle stated that gravel was actually planned not for economics as much as to be in the characteristic of the neighborhood because he believed that there are a great number of driveways that are constructed out of gravel. Mr. Nagle described Mrs. Miller's driveway as being constructed out of gravel, pea gravel or dirt. Mr. Nagle stated that he is willing to look at any recommendations . ZBA Minutes October 20, 1999 Page 8of15 Mr. Bond stated that he himself might have referred to this as a single lot situation with 3 houses . Mr. Bond told Mr. Nagle that he was trying to get the state of common ownership . Mr. Bond stated that it was discussed extensively and he wanted to understand the argument which is essentially there is not a single ownership. Mr. Bond asked Mr. Nagle if there was anything about the information presented that he needed to clarify. Mr. Nagle stated that he understood that he was not required by city ordinance to redo lot lines or replat the lots . Mr. Nagle stated that in his discussions with city staff when he purchased the property, he addressed this issue and he was told that it did not make a difference because they are considered a family and that was the city's interpretation. Mr. Nagle stated that he worked with Kerr Surveying and the city to meet city codes and the intent was to abide by the rules. Mr. Nagle stated that he is an owner on all three deeds but that is a matter of semantics and how that is interpreted. Mr. Murphy asked Mr. Nagle if he does view this as one development and is he planning on giving a house to each of his children. Mr. Nagle stated that intentionally that was the plan. He is a vested owner in all three lots and he believes the terms with Allison are very friendly . Mr. Nagle added that the deeds could be reconstructed as necessary to satisfy the requirements . Mr. Nagle ended by saying that the deeds were done the way they were because they understood that to be the best way to accomplish the goal. Peter Mcintire, 611 Montclair, stepped before the Board and was sworn in by Chairman Alexander. Mr. Mcintire stated that the internal floor plan of the existing house has not been shown. Mr. Mcintire asked if there are any bedrooms that abut the zero lot line side of the house. It was his understanding from what the Zoning Official stated, that there is a specific exclusion from zero lot line clearance being granted where bedrooms abut the zero lot line side of the house. Mr. Mcintire stated that there is no relief from that and it is a safety issue for a second exit. Mr. Kee answered it was reviewed by the Building Official and she believed the code states that if it is on the zero lot line, there could not be any openings. The exits could not be on that wall. Chairman Alexander asked if windows could be along the wall on the zero lot line construction. Mr. Kee replied not at the zero lot line, but windows could be on the wall for construction setback of 3 112 feet. Mr. Mcintire stated that the house is on the zero line and unless the bedrooms have two doors that would be in violation of zoning as far as he could understand. Mr. Mcintire stated that he could not see that the Zoning Official addressed that in granting the replat. Again Ms . Kee replied that this is a building code issue. David White, Fire Protection Consultant, stepped before the Board and was sworn in by Chairman Alexander. Mr. White stated that he has been in the fire service for 3 7 years. Mr. White told the Board that there was a statement made by the city official that if a house had siding on it, it would not be acceptable on a zero lot line without a one hour firewall. Mr. White referred to a drawing of the design of the houses to be built and the exterior appears to be siding. Mr. White stated that if it is siding, the city official stated that a one-hour firewall would be required which he does not think exists . Mr. White referred to this as being a monumental problem for fire fighters. If one house is fully involved, it becomes a rescue problem. Mr. White spoke about overhangs not being on the property line. Mr. White told the Board that he has seen fire jump from one building to another. Mr. White ended by saying that he can not believe the overhang is allowed to overhang the property line. Chairman Alexander asked Mr. Nagle what is the siding. Mr. Nagle replied that it is plank siding. ZBA Minutes October 20, 1999 Page 9of15 Stella Wilkes, 9552 River Road, stepped before the Board and was sworn in by Chairman Alexander. Ms . Wilkes told the Board that she lived in this neighborhood for 35 years. Ms. Wilkes stated that her and her husband revitalized 6-8 houses because it is a good neighborhood. In every case , any contact with the City of College Station, they were really held to the line for zoning. She told the Board that they had heard for years how good zoning was. Ms . Wilkes stated she is appalled that these lots have already been subdivided to allow that many houses. It does destroy neighborhood integrity . Ms . Wilkes stated that the lots have a 75 foot deed restriction . Ms. Wilkes spoke about being held to the line when building a carport. Ms. Wilkes stated that at one time the regulations were strict and evidently something has changed. Ms. Wilkes ending by saying that it would be a detriment to College Station and Texas A & M University to allow the total crowding that would happen. This will be repeated if this is approved. Pat Cleere, 601 Guernsey , stepped before the Board and was sworn in by Chairman Alexander. Ms. Cleere told the Board that she came to a meeting last year, not with the Zoning Commission, but it was about the parking in this area and how dangerous it is. Ms. Cleere stated that if each of these two new homes has four bedrooms and the city only requires two parking spaces, which means either there will be parking on the streets or there will two students without automobiles. Ms. Cleere ended by saying that it has to be the property owner's responsibility to provide off street parking for the number of people that will occupy the houses. Norma Miller, the applicant, stepped before the Board and was sworn in by Chairman Alexander. Mrs. Miller spoke about the historic homes in the neighborhood and how proud she is of the neighborhood and its integrity . Ms. Miller told the Board about the first time that she met Mr. Nagle and his daughter. Mrs . Miller was told how they loved yards, flowers , trees, etc . Mrs. Miller stated she remembered Mr. Nagle telling her that he had one or two more children that would come to T AMU and he would be in the neighborhood for about 10 years. Mrs . Miller spoke about how she felt knowing that she would have good neighbors. Mrs. Miller stated that nothing was mentioned about the addition of two homes. Mrs. Miller made reference to the Steeplechase Subdivision. When this addition came before Planning and Zoning and Council, Mrs. Miller referred to it as an "almost done deal" before citizens knew about it. When it was discovered it was too late . Mrs. Miller stated that she did not know anything about the construction of the two homes on Welsh until the city electrical crew arrived one day to hook up the temp pole. Mrs. Miller asked the Board to defer this matter to the Planning & Zoning and give them the chance to be heard . Kathleen Naylor, 101 Fidelity Street, stepped before the Board and was sworn in by Chairman Alexander. Ms. Naylor told the Board that she has worked in the city as well as owned several rental properties. Ms . Naylor spoke about the times she worked work with Ms. Kee and Ms . McCully in the Planning Department and how well they worked with her. Ms. Naylor ended by saying that it is new that all of a sudden things are changing and it is a travesty to change in mid stream for those who wanted to do things . The developers who wanted to build and do a variety of things with the property available. If things continue like this she can only say thank you to Mr. Nagle and Ms. Kee for allowing people to now do more, in building rental properties on the land that is capable of holding more than the property is holding at this point. ZBA Minu tes October 20 , 1999 Page JO of 15 Joan Perry, 513 Kyle, stepped before the Board and was sworn in by Chairman Alexander. Ms. Perry stated that she is a native of College Station and she has seen a lot of changes over the 40 plus years that she has lived here. Ms. Perry stated that she wanted to express her concern over where the air conditioner pad is. Ms . Perry continued by saying that living next to a rental house with supposedly 4 students living there with 8 cars, in ten years the ordinance is not going to be adhered to or maintained and this neighborhood is going to continue to decline with the changes . Ms. Perry ended by saying that she does not live in this particular neighborhood but she has a vested interest in seeing that the historic area maintained and protected. We need to look ahead. Margaret Griffith, 1102 San Saba, stepped before the Board and was sworn in by Chairman Alexander. Ms. Griffith stated that she grew up in the Southside area. Ms. Griffith stated that she does not think that the proposed buildings are for single-family uses. Ms. Griffith asked how does single-family uses comply with single-family construction. Mike Luther, 614 Welsh, stepped before the Board and was sworn in by Chairman Alexander. Mr. Luther stated that his comments are to address the issue that is focused to Section 5.11 of the Texas Local Government Code. The items that have been put into place in this area, affect how you might look at the two issues. Mr. Luther stated that State Law in the Local Government Code mandates cities may note historic areas. The City of College Station has acted, wisely, in designating the College Station Southside Historic Area. The area is fully marked by signage. At the property site of this appeal, there is actually such a sign. Mr. Luther continued by saying that sign has been in front of this property during the entire pre-construction process for this project and before the property was ever purchased by the developer. Mr. Luther stated that State Law Local Government Code provides for this in Section 211.003. Mr. Luther read the section~ Mr. Luther spoke about other homes in the designated Historic Area as well as his family homestead that will soon qualify for registry as a Historic home. Mr. Luther told the Board of the Neighborhood Preservation Committee and the time they have devoted to the issues and guidelines to be used in making decisions in this neighborhood. Mr. Luther stated that the City of College Station and the people of College Station have invested thousands of dollars developing the guidelines and principals which should have been used to refuse the issuance of the plat and which should have resulted in a request to act on it by the Planning & Zoning Commission. Mr. Luther concluded his address to the Board by reading a letter on behalf of his mother. Mr. Luther asked the Board to please act, as the majority of people in this City, have for years now, wanted done to preserve the priceless heritage of the Southside Historic Area of the City of College Station. ZBA Minutes October 20, 1999 Page 11of15 Mr. Bond asked Ms. Nemcik what is the city's position in regarding whether zero lot line construction of residences is allowed where property on both sides being owned and/or developed simultaneously by single party. Ms. Nemcik read the definition of person from the Zoning Ordinance as; "e very natural person, firm , partnership, joint venture , association, corporation , or other group which conducts activities regulated hereunder as a single entity, whether same be a le g al entity or not, venture, or trust. " Ms . Nemcik stated that her standpoint as a single party that would be someone who would have an ownership in the property or control in developing the property . Ms. Nemcik stated that she thinks that there is an alternative language that says either owns or develops. Mr. Nemcik stated that there is one, if not both, of those criteria's, based on Mr. Nagle 's presentation that he has at least a partial interest in each of the lots. Ms. Nemcik added that she has not reviewed the deeds and she can not render an opinion as to how the title is held . Mr. Bond asked Ms . Nemcik based on her position, is partial ownership by a single party of all the tracts concerned adequate . Mr. N emcik stated that if there were an ownership interest, whether full or partial, ownership would be sufficient, provided that the other joint owners have given their consent to develop the property. Mr. Bond asked Ms. Nemcik what are the Boards options regarding a ruling . Ms. Nemcik replied that Ms . Kee stated in her presentation; "the Board may reverse or affirm wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made and that end shall have the power of the Zoning Official from whom appeal is taken." Ms. Nemcik stated that in addition the Board could also render a reinterpretation of the items that are appealed and they are within the Boards ability to render a decision. That is specifically only zoning matters and the items the Board agreed to hear as stated on the agenda. Mr. Bond asked if the Board had to ability to direct any of the two items to the Planning & Zoning Commission. Ms. Nemcik stated that ZBA has no jurisdiction over the Planning & Zoning Commission. However, Mrs . Miller and Mr. Esmond have submitted a request to the Chairman of the P&Z to hear the matters concerning the platting and several other issues that are in their jurisdiction. Mr. Esmond approached the Board and stated that most of the City Staff and City Council he talked to shared thoughts that this should have not been allowed. Mr. Esmond told the Board that he and Mrs. Miller have tried to get on the agenda of the Planning & Zoning . Mr. Happ asked where do the appeals from ZBA go. Ms . Nemcik stated that they go to District Court. There were continued discussions concerning the ZBA role in appeals and the platting issues. Mr. Bond asked what is the remedy assuming the plat is invalid. Ms . Nemcik stated that if that were the case the remedy would be for the City to revoke the plat before it was approved which would be at staff level. Staff would have to admit the mistake and that would have to be done within 30 days of approval. That was not done. The only thing to do at this point is to go to court and ask for a declaration that the plat was invalid and void the plat. ZBA Minutes Octob er 20, 19 99 Pa ge 12 of15 Steven Steele, Attorney with David & Davis, stepped before the Board and was sworn in by Chairman Alexander. Mr. Steele told the Board several homeowners in the College Park Subdivision retained him and a lawsuit has been filed. Mr. Steele stated that the ordinance clearly reads: "that an appeal is in any decision of the Zoning Official and that this Board has the right to modify any order, requirement, decision or determination." Mr. Steele stated one of the decisions and determinations made by the Zoning Official is this was an amended plat that was filed and the Zoning Official had the authority to approve the plat as an amended plat. Mr. Steele stated that he has also heard alternatively that it is a minor plat. The decision was made by the Zoning Official which ZBA has the right and the power if it so votes by 75% of the members to overturn . Mr . Murphy stated that in Section 211.009 A 1 it reads; "The Board of Adjustment may hear and decide an appeal that alleges error in order, requirement, decision or determination made by an Administrative Official in the enforcement of this subchapter or an ordinance adopted under this subchapter." Mr. Murphy asked what is the subchapter and what is the ordinance under the subchapter and does a plat fall under that. Mr. Steele answered what it is referring to is the subchapter of 211. Mr. Murphy asked does that chapter cover plats and Planning of Zoning . Mr. Steele stated that he thinks under the city's provision it covers any decision made by the Zoning Official. Mr. Murphy asked if city staff had a different opinion. Ms. Nemcik stated that in Chapter 211 under Subchapter A reads; "General Zoning Regulations." Ms. Nemcik told the Board that they are a Zoning Board of Adjustment and there is no planning reference. The enabling statue that creates the authority for this Board is under the Zoning Enabling Legislation. There were discussions among the Board concerning their role in the matter. Mr. Nemcik stated that the matters before them to decide , as she understands , are the issues and the challenge to the interpretation of the zero lot line. Mr. Happ asked what would this do now to the other developments that have been mentioned. If the Board decides the way to measure the zero lot line should be changed , then those things that are already in existence will have a non-conforming status. If the Board decided to change the standard , that would become the new standard. The other alternative would be that the City Council or the Planning & Zoning Commission would make a· change to the ordinance. Mr. Hill asked Ms. Nemcik if the Board could act upon things other than the two questions the Board agreed to hear. Ms. Nemcik stated that the agenda states very clearly the issues that the Board is to decide . Mr. Flores-Meath stated that there is one item that has not been brought up concerning the driveway . Mr. Flores-Meath stated that the city has a plat that shows Ms . Miller's existing driveway as being against her property line adjacent to the north lot. It was agreed that the ZBA has the ability to address the driveway issue. Mr. Flores-Meath told the Board that Ms. Miller has been questioned about her driveway because it is not a traditional driveway, but it has been grandfathered for 30 some years. Mr. Flores-Meath passed the plat around to the Board members. ZBA Minutes October 20, 1999 Page 13of15 Mr. Flores -Meath told the Board that Mrs. Miller's driveway would be right next to the north lot's driveway . Mr. Flores stated that as a zoning issue there are certain requirements of having two driveways next to each other. Mr. Murphy asked for city staff to address this issue. Ms . Kee replied that the driveway access ordinance and the cases that the P&Z have heard deal with platting of commercial and multi-family driveway access. There is an ordinance that regulates distances and separations. Specifically on a single-family lot what is required is that the radius h as to be over far enough so that it does not cross on to someone else's property . Ms . Kee added that her understanding from Mr. Nagle, the reason the north driveway is where it is, is to preserve a large tree in front of the house. Mr. Nagle stated that he visited with the City Code Enforcement Officer and had a map drawn showing exactly where it is legal to park. The officer made it very clear that there was ' no driveway there on Mrs . Miller's property but rather a lawn. Mrs . Miller explained to the Board the history of the driveway and that she had a letter from Tom Brymer stating that the driveway is grandfathered . Dorcus Moore , 1118 Detro it Street, stepped before the Board and was sworn in by Chairman Alexander. Ms. Moore stated that her job is to take plats such as this one and make them right. Ms. Moore stated that the plat is the most inconsistent survey done by a surveyor/engineer. Ms. Moore stated her concerns and how the decisions by the Board will set a precedent. If it is not the right decision this can be expected to happen all over the city . Brandon Nagle, stepped before the Board and was sworn in by Chairman Alexander. Brandon stated that he wanted to make testament to Mr. Nagle's character and his past. Brandon told the Board thHt it was just last year that Mr. Nagle had begun a project in the historic area of downtown Round Rock. There were many of the same concerns with neighbors , but last year it was voted the most beautiful area in Round Rock. Brandon stated that the intent is to better this historic neighborhood as well. Brandon reminded the Board to also think about the future of the neighborhood. Mr. Esmond stated that he feels the Board had received a lot of contrary advice and in his opinion some of it not so good. Mr. Esmond stated that he is proud to live in Texas where our courts have upheld there is no liability to a city for damages if a decision is reversed by a Zoning Official in order to comply with their own zoning ordinance. Mr. Esmond told the Board that he feels the Board is on safe ground on that matter. Mr. Esmond encouraged the Board to take the two issues at hand and deal with them and reverse the decision for the sake of the community. Ms. Nemcik stepped to the podium to respond to Mr. Esmonds admonishment to the Board . Ms. Nemcik stated that this Board and the City has governmentally immunity when acting in its capacity and exercising its governmental functions. But even within that realm there can be liability for the city in certain circumstances. Ms. Nemcik ended by cautioning the Board that it can not act indiscriminately and think that it is totally immune and there will not consequences for the city . Helen McDermott, 500 Fairview , stepped before the Board and was sworn in by Chairman Alexander. Mrs. McDermott told the Board that she does not see how Mr. Nagle's development is going to better the neighborhood. It is true there is a lot of student housing and rental property in th e area but she and her husband hope that there will be other young couples that will buy homes in the ar ea and make them homes. Mrs. McDermott stated that they plan on living in their house a long time. Z BA Minutes October 20, 1999 Pa ge 14 of15 Mike McMicken, 1405 Bayou Woods , stepped before the Board and was sworn in by Chairman Alexander. Mr. McMicken stated that when this plat was approved, it created the potential for 3 single-family homes, which could not exist on their own as separate entities. Chairman Alexander closed the public hearing. Mr. Happ made the motion to uphold the decision or interpretation made by the Zoning Official in the enforcement of Section 7.2D of this ordinance, as the decision or interpretation meets the spirit of this ordinance and substantial justice was done . Mr. Bond seconded the motion, which passed unopposed (5-0). Mr. Bond made the motion to uphold the decision or interpretation made by the Zoning Official in the enforcement of Section 9 of this ordinance, as the decision or interpretation meets the spirit of this ordinance and substantial justice was done. Mr. Happ seconded the motion, which passed unopposed (5-0) AGENDA ITEM NO. 4: Adjourn. The meeting was adjourned. ZBA Minutes October 20, I 999 Page 15of15 Harvey Cargill -Background on Nagel Subdivision From: To: Date: Subject: Tom Brymer COUNCIL 10/7/99 6:18PM Background on Nagel Subdivision In my Council update last Friday I gave you a very brief status report on this situation, the Nagel Subdivision, more commonly known as the two houses being built in the 600 block of Welsh. For those on the Council that would like more detailed information about the sequence of events involved in this as well as some background on the applicable ordiinances involved , I have the attached 2 documents for your information . I will also put a hard copy of this in your Council office mail for those of you that prefer to read paper copies . The sequence of events document goes through 9-30-99. Since then the ZBA met on 10-4-99 and determined that certain areas of Norma Miller's appeal were within their purview and will hear them in a special meeting on 10-20-99. CC: Harvey Cargill; Jane Kee; Jim Callaway; Roxanne Nemcik Page 1 \ APPLICABLE ORDINANCE RESRICTIONS Information specific to the Nelson Nagle properties is italicized Ownership of abandoned RO W's );;>-City does not make ownership determinations. );;>-Ownership may be divided and clarified through platting. );;>-Applicants are responsible for researching ownership and certify such when signing plat. );;>-Ownership disputes are considered solely private matters (they do not involve public interest issues). );;>-Mr. Nagle claimed ownership of half of the abandoned Fidelity ROW and certified such upon signing ownership block on the plat. Staff approval of minor plats );;>-Delegation of approval to staff member permitted by statute );;>-Local ordinance changed to streamline dev't process (Council Strategic Issue several years) );;>-Staff-level plat if the plat involves 4 or fewer lots fronting on an existing street and no infrastructure is required. );;>-Staff reviews for general compliance with requirements such as lot size/dimensions, access, public utility availability, etc . );;>-The replatting proposal met minor plat definition and requirements and was thus reviewed and ultimately approved solely by staff per statute and case law requirements. Lot/house sizes );;>-No minimum floor area requirement for house size in any of the City's ordinances as long as setbacks are met. );;>-Lot size and dimension minimum in R-1 -5000 sf; 50' X 100' );;>-Lots created prior to 1970 (year Subdivision Regulations were adopted) exempt by ordinance (and perhaps case law) regardless of size );;>-College Park Subdivision was created in 1923, prior to lot size restrictions. Lots JO and 11 were therefore exempt from meeting current codes. );;>-Lot 12 was divided into two parts prior to 1970 and was therefore also exempt. );;>-Mr. Nagle purchased 3 separate lots and had the right to a viable use for each of them under current case law. );;>-The Zoning Ordinance allows multiple lots to be combined into a single "building plot'', and it further provides that more than one principle structure may be built on that building plot as long as lot size and setback requirements are met. );;>-Mr. Nagle would also have had the option to define his 3 lots as a single building plot, and to have up to 3 homes as long as the 5000 sf minimum was met for each unit and all new structures met R-1 setbacks. This provision would not have included a platting requirement. Revocation of building permits );>-The Building Official is authorized under the local Building Code to revoke permits if there was false information provided on the application or if the construction is in violation of the Building Code. );>-Issuance of a building permit grants substantial rights to an applicant that are legally difficult to retract. In order to be as legally sound as possible, revocation of a building permit should be based on serious and imminent health or safety concerns . );>-To date, th e Building Official has found no comp elling grounds for revocation of the building p ermits. Tree preservation );>-The City of College Station currently has no tree preservation requirements in single family areas. );>-Staff had no authority to prevent removal of trees . Drainage/impervious cover );>-Compliance with the Drainage Ordinance is triggered on a residential resubdivision only when the replat would result in a significant increase in the potential for impervious cover. );>-In this particular case, the amending plat did not result in an increase in the potential number of buildings. Replats involving building encroachments );>-Staff requires an applicant to show the location of all existing improvements );>-When a building encroaches either a setback line or a property line , the applicant is required to address the matter (through a variance or lot line shift in the case of a setback encroachment; through a lot line shift, building removal, or easement dedication in the case of a property line encroachment). * This requirment applies to replats but not to the "more than one principle building" provision. );>-During the review of the amending plat, Staff requested that the applicant show all improvements . The applicant complied with the request, except that he did not show a carport that allegedly crosses a new property line . If the carport is to remain, Staff will request that the applicant address the encroachment using one of the options listed above. Driveways/parking );>-The Zoning Ordinance requires two parking spaces for each single family dwelling. The City's "parking in the yard" (PITY) restrictions require these two spaces to be paved. In the particular case of single family and duplex development , "paving" is interpreted to be gravel or crushed rock. );>-Residential driveways must meet Driveway Access and Location Ordinance provisions relating to residential drives (including maximum and minimum widths). The apron must be either asphalt or concrete under the Zoning Ordinance. );>-All legally recognized lots are permitted reasonable access to public rights-of-way. );>-The applicant met all applicable minimum requirements relating to driveway s/parking. Density );:> The City's Comprehensive Plan Objectives discourage increasing density in existing residential areas. Currently, this policy would be used in rezoning decisions (for instance, staff would recommend denial of a request for higher density zoning in existing neighborhoods). );:> The Objectives also recommend a study of the Southside area for purposes of preservation and enhancement. The Neighborhood Planning Program is a mechanism for accomplishing the preservation of the Southside and all other neighborhoods . );:> The Zoning Ordinance allows lots at a minimum of 5000 square feet. Any person owning R-1 zoned property in the City of College Station has the right to resubdivide the property into smaller lots as long as they are not smaller than 5000 square feet. );:> While the City's general guidelines may indicate that smaller lot sizes should not be permitted, there is currently no authority to prevent 5000 square foot lots in an area zoned R-1. );:> Staff did not have the authority to deny the amending plat because it met minimum R-1 densities and dimensions. Zero-lot line construction );:> The Zoning Ordinance permits side setbacks to be reduced in an R-1 district as long as the property is under single ownership, and a master plan is submitted for approval. The master plan may be included in the plat. );:> Staff checks the master plan to assure that all buildings include a minimum building separation of 15' and that the first and last lots include the standard side setback adjacent to non-zero setback areas. The actual side setback in relation to respective property lines is allowed to vary as long as each set of two adjoining side yards total 15' );:> The amending plat included the zero-setback information and complied with all restrictions for this type of construction . The actual side setbacks were varied but met the building distance requirement. Texas Vestin~ Statute );:> Provides protection for developers so that they may rely on a given set of development regulations . );:> Calls for a "freezing" of certain codes, restrictions, and regulations from the time an area is first platted. );:> Before lot size and lot coverage requirements are changed, staff would need to investigate the applicability of the Texas Vesting Statute. Harvey Cargill -Nagle sequence of events .doc 600-604 Welsh Late May-June Prior to purchasing the property Nelson Nagle made several phone inquiries of the possibility of adding one or two homes to it. Staff informed Nagle of the minimum requirements. Apparently Mr. Nagle sought additional land opportunities including the possible abandonment of Fidelity and land purchase from George Dresser. Upon request , staff researched and located information regarding the Fidelity abandonment. June 2, 1999 City staff held a predevelopment meeting with Nelson Nagle, George Dresser, and Brandon Nagle to discuss the shifting of interior lot lines of 3 lots on Welsh Street. Mr. Nagle provided a conceptual plan for staff to review. Mr. Nagle was informed of the applicable ordinance requirements for an amending plat. He inquired about the ownership of Fidelity Street and whether it could be platted with Lot 10 . June (the following weeks) Jane Kee instructed staff to inform Mrs. Miller about Mr. Nagle 's replatting. Mrs. Norma Miller came into Development Services and met with Bridgette George inquiring about the final plat. She requested, and was given, copies of the drawings from the predevelopment meeting, portions of the proposed final plat, as well as the minutes from the Council meeting abandoning Fidelity Street. She inquired about taking the other half of Fidelity Street via the replatting process . Bridgette informed her that she could replat her property and include Fidelity if she desired. Mrs. Miller was unhappy regarding the associated fees to replat. June 17 Mr. Nagle submitted a Final (amending) Plat application with the appropriate documents required to process the plat. June 17-27 Staff processed the plat. Reviews resulted in a few required revisions, which were addressed by the appl icant. Staff then approved the plat. July 29 The final plat was filed for record and the Brazos County courthouse . August 16 Upon request Scott Hester went out to the property and met with Nelson Nagle to discuss parking and driveway access . Mr. Nagle was informed of what he would and would not be allowed to do. Scott gave him the minimum zoning requirements. September 15 Stylcecraft Homes applied for the building permits. Norma Miller called Bridgette George saying she was informed that Mr . Nagle was going to build a home on the lot adjacent to hers. She inquired about various ordinance and subdivision regulation Page 1 \ Harvey Cargill -Nagle sequence of events .doc requirements . She stated that she was not aware that he was going to build a home there until now. September 16 Building permits were issued for 600 and 604 Welsh. Mrs. Miller came in to see Bridgette George about Mr. Nagle building on the lots he just platted . She stated that she wasn't aware that he was going to build homes on those lots. Bridgette informed her that Mr. Nagle had met all the zoning and subdivision regulations when replatting and could build homes on the two vacant lots . Mrs. Miller also stated that she received a letter in 1967 (she thought that was the date) giving her Fidelity Street. Bridgette asked if she had a copy of the letter and Mrs. Miller stated she wasn 't sure where it was and whether or not she could find it. Bridgette offered to have the Council Office and Legal check to see if they had records of the letter. Mrs. Miller was given another copy of the Council minutes from 1962 because she misplaced her previous copy. Bridgette checked with Connie Hooks and Jan Schwartz and neither found any reference to the letter Mrs. Miller said she received giving her Fidelity Street. Connie stated that records for that year have already been destroyed . Mrs. Helen Pugh contacted Sabine and was informed that building permits for two additional homes on the property were pending or may have already been issued . Mrs. Pugh expressed her concern regarding the relatively small lot sizes and the potential for student rental housing. Mike Luther came in to meet with Jeff Tondre regarding drainage ordinance compliance. Mr. Luther requested that Mr. Tondre revoke the building permit and he was informed that Mr. Tondre could not do that. Nelson Nagle called Bridgette asking why the City stopped construction. She stated that she was not aware that construction had been stopped. September 17 Mrs. Miller came to see Bridgette and voiced her concern about drainage and parking issues regarding the property . Bridgette made a copy of the conceptual layout for the parking and driveways, and informed Mrs . Miller that Scott Hester went out to the property and met with Mr. Nagle to discuss parking issues. September 20 Scott Hester called Norma Miller regarding cement trucks destroying Page 2 \ Harvey Cargill -Nagle sequence of events .doc the tree limbs in her yard and also discussed driveway and parking zoning requirements. Mrs. Helen Pugh and Mr. Benito Flores-Meath met with staff to voice their concern regarding the City allowing homes to be built on the lots , stating that we were allowing an increase in density. September 28 Norma Miller , Helen Pugh, and Steve Esmond visited with Carl Warren, Plans Examiner and Lance Simms, Building Official expressing concerns regarding possible encroachment of a carport , driveway radii , and other more zoning-related concerns. They requested revocation of the building permits and were informed though revocable , there were no compelling grounds. The three also met with Jeff Tondre regarding drainage and other issues . September 29 Steve Esmond visited with Jane Kee and Natalie Ruiz and discussed the aforementioned and other related issues, including "O" lot line construction . He also requested a special emergency ZBA meeting . Jane indicated that staff would look into the question . Mr. Flores-Meath hand-delivered a letter regarding his concerns regarding the aforementioned issues . September 30 Mrs . Miller submitted a ZBA application. She visited with Bridgette informing her that several large trees and crepe myrtles had been cut down several days before. Mr. Flores-Meath hand-delivered a second letter regarding additional concerns. Steve Whitten, who lives in the vicinity, visited with Scott Hester regard ing driveway access issues. Page 3 J . - COLLEGE STATION P. 0 . Bo x 99 60 • 1101 Te xas Ave nu e College Stat io n, TX 77842 Tet. 409 764 3500 MEMORANDUM July 23, 1999 TO : Brad Kerr, Via Fax (409) 691-8904 FROM : Bridgette George, Assistant Development Coordinator~ SUBJECT: College Park Lots 10, 11, and 12, Block C-Final Plat Staff reviewed the above-mentioned final plat as requested and has the following two comments : a e the private shared access easement to include shared p in , or, be advised that no parking will be allowed in that ' /ease ent. ~ A a 1 O' PUE to the rear property line to cover the existing overhead electrical line. (This comment was inadvertently left off the previous staff comments) Please make the above changes and submit the following to be filed at the courthouse . One (1) revised Mylar original of the final plat with the owner's signature. If you have any questions or need additional information, please call me At 764 - 3570. Home of Texas A&M Uni ve rsity ·'" . ;... ; July 26, 1999 TO: FROM: SUBJECT: COLLEGE STATION P. 0 . Box 9960 • 1101 Texas Ave nue College Stat io n , TX 77842 Tet. 409 764 3500 MEMORANDUM Brad Kerr, Via Fax (409) 691-8904 Bridgette George, Assistant Development Coordinato~t College Park Lots 10, 11, and 12, Block C-Final Plat Staff reviewed the above-mention&d final plat as requested and has the following two comments : Change the private shared access easement to include shared parking, or, be advised that no parking will be allowed in that easement. Add a 1 O' PUE to the rear property line to cover the existing overhead electrical line. (This comment was inadvertently left off the previous staff comments) Please make the above changes and submit the following to be filed at the courthouse. One (1) revised Mylar original of the final plat with the owner's signature. If you have any questions or need ad ~iitional information, please call me at 764 - 3570. cc : Nelson Nagle, Via fax (512) 218-1821 Case File No. 99-225 Home of Texas A&M University ., c/ f .LO; V.L "0"4Ul:I I 04 JHlti UEVELOPllENT SVCS TRANSMISSION OK TX/RX NO. CONNECTION TEL CONNECTION ID START TIME USAGE TIME PAGES RESULT *************************** *** ACTIVITY REPORT *** *************************** 8471 07/23 16:00 00'26 1 OK 96918904 141001 Nelson L Na gJ.e "1J UJ. FROM : Md.rgie@ Ashford Square R~~lt..':i PHONE NO. : 846 8712 Mar. 31 1999 09:47PM P2 ' I ,.;el.s0v... tJ~1 1 e. Sl'--~'C6-00<.$ !Sil u • . •• .. 11111 .. ... 1'tlET l • ~j_' j ~ty °"~e .PU33 ~d it.st. l 1 lll'7 a-.c~u~ U\"l'icfsi.tt Title Co. 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R .::~·: ..... \ ... !),_,_ i 6' CURB s 4s·o2·25" E • j I ' I I I • ! ..--.. . !6.5°1C19.5" ---..+-T""I •• CONC. PATIO • L--~----ll----i-i . • • • ·L---~-----t--- I. I • . ~ 1 I uJ '• I"/ !i f"'-- .-- .-- I I 3 I : .-- I 0 I p 0 I''} .-- 'tj" IJ) 25.0'0 N 48"01 '24" W N 48"01 '24" W 15' ALLEY I n1 "~' I (/) . ,. t. .... 111 /-> _, h-Zt -boh ~~ s M T w T F s s M T w T F s 1 L!J 3 4 5 1 2 3 6 7 8 9 10 11 12 4 5 6 7 8 9 10 13 14 15 16 17 18 19 11 12 13 14 15 16 17 20 21 22 23 24 25 26 18 19 20 21 22 23 24 27 28 29 30 Wednesday, June 02, 1999 25 26 27 28 29 30 31 - 8 ----------------------------------------------- - - 9 -~--------------------------------------------- 11 - 12 -~--------------------------------------------- - (1 :00 PM -2:00 PM) Predev't -House@ Renee Ln. & Barron Rd . 1 - (2:00 PM -3 :00 PM) Predev't -Replat and bldg . issues at 600-604 Welsh and Fidelity Street issues 2 - - 3 -~--------------------------------------------- 4 ----------------------------------------------- - Early I Late : Sabine McCullv 10/7/99 -3 :15 PM MEMORANDUM ~1999 Nelson Nagle, Via fax (512) 218-1821 Mio Bridgette George, Assistant Development Coordinator--pr ·~ TO: FROM: SUBJECT: Numbers for New Houses Carl Warren has informed me that the addresses for the existing and new houses being built on Block C of the College Park Subdivision will be as follows: Lot 10 R Lot 11 R Lot 12 R 600 Welsh Avenue 602 Welsh Avenue 604 Welsh Avenue Please call me if you have any questions regarding this information. (1) General RESIDENTIAL DRIVEWAY ACCESS LOCATION AND DESIGN POLICY (as excerpted from Ordinance #1961) Single family residential driveways must conform to the following requirements. (2) Location of Driveway Access (a) One curb cut shall be allowed for access to single family and duplex residential tracts. More than one curb cut may be allowed upon approval by the City Engineer or his designee. (b) For corner tracts, driveway access shall be taken from the lesser of the two streets. Access notes on plats shall supersede this requirement. The determination as to the lesser (or greater) street shall be based on AASHTO criteria for functional street classification. (3) Corner Clearance (a) No residential driveway approach shall be constructed within thirty feet (30') of the corner of a street intersection. This measurement shall be taken from the intersection of property lines at the corner. (4) Geometric Design of Driveway Access (a) All driveways shall meet the City of College Station's Standard Specifications for Street Construction and the construction standards as set forth in Section 9 of the Zoning Ordinance. (b) Curb cuts for driveways shall not be permitted in the radius of an intersection. (c) The curb return radii for driveways intersecting at right angles with the roadway and without a deceleration lane shall be as follows: (i) Curb return radii for residential (single family and duplex) driveways located on local or collector streets shall be between 2.5 feet and 10.0 feet as shown in Figure 1. Flare type residential driveways must also adhere to these dimensional criteria. Residential driveways located on arterial streets shall vary between fifteen feet (15') and thirty feet (30') as shown in Figure 2. (d) The maximum width of a residential driveway approach, shown in Figure 1, measured at the property line, shall not exceed twenty-eight feet (28') in width, while the minimum width shall not be less than ten feet (10') in width. (e) The combination of tw o driveways for re si denti a l circ ular drives shall not e xceed twenty-eight feet (28'). (f) The angle of a driveway approach shall be approximately ninety degrees fo r two (2) way drives and betwee n forty-five degrees and ninety degrees for one way driv es. (5) Street Structures No driveway approach shall interfere with municipal facilities such as street light or traffic signal poles, signs, fire hydrants, cross walks, bus loading zones, utility poles, fire alarm supports, drainage structures, or other necessary street structures. The City Engineer is authorized to order and effect the removal or reconstruction of any driveway approach which is constructed in conflict with street structures. The cost of reconstructing or relocating such driveway approach shall be at the expense of the property owner. (6) Permits (a) Any plans submitted for building approval which include or involve driveway approaches shall be referred to the City Engineer or his designee for approval before a building permit is issued. (b) A written driveway permit for a new development shall not be required. Approval of driveway location and design for new properties and other development on a building plan or site plan shall be considered as the permit for driveway installation. (c) Any property owner desiring a new driveway approach or an improvement to an existing driveway at an existing residence shall make written application for a driveway permit and present it to the City Engineer. The application shall designate the contractor who will do the work, and be accompanied by a sketch or drawing clearly showing the driveway, parking area or doorway to be connected, and the location of the nearest existing driveways on the same and opposite sides of the roadway. The City Engineer will prescribe the construction procedures to be followed. (See the Building Code for contractor's bond and permit requirement, for work on public property.) ( d) A permit or building/site plan approval as per the procedure of either 8(b) or 8( c) shall be required for the location of all driveways which provide access to property. Driveway permits will also be required for any significant structure change, land use change, or property boundary change. ( e) The driveway permit fee shall be set by resolution of the College Station City Council from time to time as deemed appropriate by said council and shall be of an amount to cover the cost of licensing and maintaining records. (f) All permits granted for the use of public property under the terms of this section shall be revocable at the will of the City Council. (7) Appeals (a) An appeal may be made by any person aggrieved by the decision of the City Engineer. Such appeal shall be made within thirty (30) days of the date of notification of the City Engineer's decision. Appeals shall be made by filing with the City Engineer a notice of appeal specifying the applicant's opposition to the decision of the City Engineer. TheCity Engineer shall forward to the Planning and Zoning Commission all the papers constituting the record upon which the action appealed from was taken. (b) The Planning and Zoning Commission may authorize, on appeal, a variance to the Driveway Access Location and Design Ordinance when such variance will not be contrary to the public interest where, owing to unique and special conditions not normally found in like areas, a strict enforcement of the provisions of the ordinance by the City Engineer would result in an unnecessary hardship, and so that the spirit of this ordinance shall be observed and substantial justice done. (8) Circular Driveways The Planning and Zoning Commission, at their meeting of March 17, 1994 stated that circular driveways on single family and duplex lots should be allowed as long as the duplicity of driveways does not create a worsened safety situation over a single driveway. There is not a concern with the separation of the driveways to provide on-street parking unless the spacing creates a safety concern. o :~ _ scrv\v\dri veord.doc RESIDENTIAL street Straight flare to connect _)' tangency points of curb return. Approach Width Max. 28' . Min. 10' drive Figure l DRIVEWAY Tangency l'oktt Curb Return Radius (R) for Collector and Local Streets ls Maximum of 10 feet and Minimum of 2.5 feet. COMMERCIAL AND MULTIFAMILY DRIVEWAY street Approoch Width Max. 56' n. 2•' drive Fi g ure 2 Curb Return Radius (R) Maximum of 30 feet and Minimum of 15 feet. ~rvey ~argill -Re: Minor, amending plat reports to Commission and Council From: To: Date: Subject: Tom Brymer Benito Flores-Meath 10/11 /99 3:04PM Re : Minor, amending plat reports to Commission and Council Just now getting back to you Benito about the 2 issues you raised . First , regarding the reporting issue , in talking with Jane she intends to report to P&Z soon on this. Jane had been trying to do this report periodically through an agenda item to the P&Z. After a while there were so few minor plats that the report became included in a monthly FYI flier to P&Z . During high work load of the last several months this flier went from monthly to quarterly and is due out again . If ordinance requires that I report this to Council, obviously I will do that , no problem. Second , regarding appeals under Sec. 212.0115(i) of the TLGC, that section of the law concerns appeals of a City's decision to require platting of areas in its ET J . It was formulated to deal with areas in the unincorporated ET J of a city that was served by a rural REA or water supply corporation . Sometimes the owners of property in that area would want to develop and had gotten commitments for util ity service from the rural utility and didn't feel they had to plat. The city could require a plat, but the property owner had the right to appeal that decision . It is my understanding that is what this part of the code addresses . On the Nagle Subdivision we required a plat, so the circumstances for desiring an appeal are different than what Sec. 212 .0115 was intended to address unless Mr. Nagle had disagreed with the requirement to plat , which of course he did not. »> "Benito Flores-Meath" <bflores@elitesoft.com> 10/08/99 03:01 PM »> I appreciate your looking into this. The original intent of having the P&Z Commission review the plats within two weeks was probably to prevent just the situation we are in now. What a shame. Please feel free to call me to discuss this , either at work (846-2340) before 5 or at home (696-8295) during the weekend . Thanks . -----Original Message ----- From: Tom Brymer <Tbrymer@ci.college-station .tx .us> To : <bflores@elitesoft.com> Sent: Thursday, October 07 , 1999 6:07 PM Subject: Re : Minor, amending plat reports to Commission and Council Just now have gotten to this Benito. I'll check into it and respond back to you . »> "Benito Flores-Meath" <bflores@elitesoft.com> 10/06/99 12 :59PM »> Below is the final copy of a letter I submitted to the City, requesting the reports that were brought up last night. Connie will get you a copy, as I CC'd it to you and the rest. These reports I requested are , by City Ordinance (and I believe state law too) to be presented to P&Z at the following meeting after a minor or amending plat is approved by City Staff. The Office of the City Manager is to also present these to the City Council. I've checked the minutes and agendas for all the P&Z meetings since June (before the plat), and did not find any such reports mentioned . Last night I checked with Judy Warren , a P&Z Commissioner, asking if when she had first heard of the development behind Norma's , and was told the first information was an email from me! Today I'm told that they are accumulating the reports to do a quarterly report , and that they are three weeks behind . Amber relayed this to me , as she had never heard of such reports, and had to ask about them . Presumably Page 1 \ ~rvey ..C argill -Re : Minor, amending plat reports to Commission and Council Jane was the one who described the quarterly report , as most of the rest of the staff is gone until Monday , and she was the only one in authority that I knew was there. So I go to ask for reports that by city ordinance should be filed with the Commission and I get the impression that the City Planner (Jane) just isn't following the law. The Office of the City Manager is also required to file these with the Council -but if you aren't provided with the reports , how are you to fulfill your legal obligations to the Council? I also asked Jane for the forms to appeal the plat in question and Jane didn't know anything about the permits, forms , code , whatever to file an appeal under Sec. 212 .0115(i) of the TLGC . I don't believe she is that ignorant , especially since Steve brought it up last night , and handed a copy of the regs to the ZBA. After last night's performance, and after the 303 Boyett mess {where the city didn't follow it's own zoning ordinance), and now these nonexistent reports , when is enough? ************************************** [open records request] Connie : In the Subdivision Regulations (rev Jan 1999), item 6-D.5 .3 states: [begin italics] Within twenty (20) days after an amending or minor plat is formally filed , the City Engineer, or his designee, and the City Planner, or his designee , shall approve such plat or notify the applicant that consideration of the plat will be forwarded to the Commission . The Commission shall approve , disapprove or conditionally approve the plat within thirty (30) days of the City Engineer's decision and notification to the applicant. A report shall be made to the Commission at each meeting notifying the Commission of any new minor or amending plats that were approved by the City Engineer since the last Commission meeting . The same report shall be forwarded to the Council through the Office of the City Manager. (end ita li cs] This request is made under the Texas Open Records Act, Tex . Gov't Code Section 552 , which guarantees the public's right of access to information in the custody of governmental agencies . In accordance with section 552.221 of the law , which requires that the officer for public records "sha ll promptly produce such information for inspection , duplication , or both , in the offices of the governmental body ," I respectfully request to review of the following information: I am requesting to review the reports presented to the Planning and Zon ing Commission and to the City Council, concerning the plat approved for 600 Welsh (behind Norma Miller's home), including , but not limited to, any accompanying memos, letters, notes , agendas , minutes, etc. pertaining to these reports . Please communicate with me by telephone as to when would be a convenient Page 2 j f-is rvey .C argill -Re : Minor, amending plat reports to Commission and Council time to review it. My telephone number is 696-8295 after office hours. I shall look forward to hearing from you promptly , as required by the Act. Thank you for your cooperation . Very truly yours , Benito Flores-Meath CC: Mayor, City Council, City Manager, P&Z Commission, ZBA , City Planner, City Engineer (Connie -can you forward these , please? CC: Steve Esmond , Norma Miller CC: Harvey Cargill ; Jane Kee ; Jim Callaway; Roxanne Nemcik Page 3 I . . DRIVEWAY ACCESS LOCATION AND DESIGN POLICY (As excerpted from Ordinance #1971, Section K, Chapter 3, Development of Streets) K. DRIVEWAY ACCESS LOCATION AND DESIGN POLICY (1) General (a) It shall be unlawful for any person to cut , break, or remove any curb along a street except as herein authorized . (b) It shall be unlawful for any person to construct, alter, or extend, or pennit or cause to be constructed, altered, or extended any driveway approach which can be used only as a parking space or area between the curb and private property. (c) This section shall be deemed to be supplemental to other sections regulating the use of public property, and in case of conflict, this section shall govern. (d) Adequate sight distance shall be provided for a passenger motor vehicle making a left or right tum exiting from a driveway. This detennination shall be made by the City Engineer or his designee. (e) The specifications and guidelines set forth in this policy are to be applied to driveways providing access to commercial and multifamily developments. Single family and duplex residential driveways are excluded from this policy unless otherwise indicated. (f) As detennined by the City Engineer, engineering judgment shall override the recommended dimensions set forth in this policy if warranted by specific traffic conditions . (2) Location of Driveway Access Re v 1019 7 (a) In making a determination as to the location of driveway access, the City Engineer shall consider: (i) The characteristics of the proposed use ; (ii) The existing traffic flow conditions and the future traffic demand anticipated on the development and the adjacent street system ; (iii) The location of the property; (iv) The size of the prop e rty ; (v) The orientation of structures on the site; (vi) Th e number of driv eways need ed to accommodate anticipat ed traffic ; (vii) The number and location of driveway s on existin g adja ce nt and opposite prop erties; (viii) The location and carrying capa c ity of intersecti ons; (ix ) The proper g eo m etric design of dri v eway s ; (x) Th e spacing betwe e n oppo sit e a nd ad j acent driv ew ays; (x i) Th e int ernal circulati on betw ee n d riv eways ; and , (x ii) The speed of th e ad j ace nt ro ad w ay . 3-1 (b) Driveway access to arterials shall not be pennitted for parking or loading areas that require backing maneuvers in a public street right-of-way . Driveway access to collector streets for commercial or multifamily developments shall not be pennitted for parking or loading areas that require backing maneuvers in a public street right-of-way. (c) One curb cut shall be allowed for access to single family and duplex resi- dential tracts. More than one curb cut may be allowed upon approval by the City Engineer or his designee. (d) For comer tracts, access to residential tracts shall be taken from the lesser street. Access notes on plats shall supersede this requirement. The deter- mination as to the lesser (or greater) street shall be based on AASHTO criteria for functional street classification . (e) No cuts through a left tum reservoir of a median shall be penn itted in order to provide for left tum movements to driveway approaches. (t) Driveways in right tum lane transition areas shall not be pennitted . (g) When a commercial or multifamily development abuts more than one public street, access to each abutting street may be allowed only if the following criteria are met: (i) It is demonstrated that such access is required to adequately serve driveway volumes and will not be detrimental or unsafe to traffic operations on public streets. The City Engineer or his designee may require the submittal of a traffic study which demonstrates that such access is required . (ii) The minimum requirements for comer clearance for commercial or multifamily driveways are met. (3) Spacing of Driveway Access Rev. 10197 (a) Application of the driveway access location and design policy requires identification of the functional classification of the street on which access is requested and then applying the appropriate spacing requirements . Th e City of College Station Streets are classified as follows : (b) (c ) (i) Major Arterial ; (ii) Minor Arterial; (iii) Collector; and, (iv) Local Street. Major arterial, minor art e rial , and collector streets in th e City of Coll eg e St ation are indicated on the Thorou ghfare and Transportation Improv em ent Pl an. The functional classification of any street in the City not indi ca ted as an art erial or collector street on this plan shall be detennined using th e fun ct ion al street classification defined by th e American As soci ation of St ate Hi g hw ay and Tr ansportation Offi cia ls (AAS HTO) "g ree n bo o k", A Policy on Geo m etri c Des ign of Highways and Str ee ts. Driveway access sp ac in g sha ll be m easured fro m th e cen ter lin e of the propos ed driveway pav em en t to th e nea res t edge of th e road w ay of th e ad j ace nt or oppo sit e driv eway or str ee t as indi ca ted in F ig ure 1 . 3 -2 Figure 1 DRIVE SPACING Opposlt• 1.Afl ( 125') Opposite _ Rlgh_t __ _ °':L c !: -(fl -;;, " .. ... ~ .... 0 __ ·L _ - - -r - -... -d-Jac-.-nt -- - --Adloc.-n-f - -I - .-Left ___ .,..___ Right ----<•Ml l ' ct. ~ _____ _ ~~ ! I ! ~~ :;;~ ( ( :;;~ -;;:. ., I I -;:; ., w~ I I '"'~ a C I a Proposed Ori"C (d) Opposite Right Driveways shall be located no closer than the minimum requirements of Table 1. Table 1 Opposite Right (Downstream) Drive Spacing Street Classification Minimum Spacing (Feet) Desirable Spacing (Feet) Major Arterial Minor Arterial Collector Local Street 300 225 175 125 400 350 300 225 Rev 1019 7 (e) Additional opposite right spacing over and above that set forth in Table 2 may be required if it is determined by the City Engineer or his designee that there is insufficient left tum queue storage or weave maneuver area between the opposite right and proposed driveway . This determination shall be mad e under peak traffic conditions . (f) A minimum of one hundred twenty-five feet (125') shall be required for Opposite Left Drives for all street classifications . (g) If the centerline of an opposite drive is le ss th an fifteen f e et (15') from the centerline of th e proposed drive, the drives form an int e rsection and the minimum spacing requ irem ents shall apply for th e closest drive . (h) Adjacent drives shall be lo cate d no c loser th an the minimum requirements of Tabl e 2 . 3-3 I I I~ 11 Table 2 Adjacent Drive Spacing Street Classification Minimum Spacing {Feet) Desirable Spacing {Feet) Major Arterial Minor Arterial Collector Local Street 275 230 185 150 350 300 235 190 {i) Freeway Frontage Road Access and Location Requirements: {i) Driveways shall not be closer than two hundred fifty feet {2501 from an exit ramp as measured from the striped gore of the exit ramp to the centerline of the drive. {ii) Driveways shall not be closer than one hundred feet (1001 from an entrance ramp as measured from the striped gore of the entrance ramp to the centerline of the drive. {iii) Driveways shall be located in accordance with the 'Operations and Procedures Manual' published by the Texas Department of Trans- portation, Sections 4-601 and 4-602 . (iv) Permits shall be approved by the Resident Engineers Office of the Texas Department of Transportation, in conjunction with approval by the City Engineer. (v) These guidelines apply to existing and planned interchanges. (vi) In addition to ramp spacing, driveways on frontage roads under the jurisdiction of the Texas Department of Transportation shall also meet the other requirements of this chapter as major arterial streets . (4) Comer Clearance {a) (b) Re v. 10~7 No residential driveway approach shall be constructed within thirty feet (301 of the comer of a street intersection . This measurement shall be taken from the intersection of property lines at the comer. At intersections of arterials with channelized right tum lanes with yield control, a comer clearance distance in accordance with those set forth in Figure 2 shall be required for the first downstream driveway when adjacent spacing requirements can 't be met due to lack of frontage and all means to acquire shared access drives or cross access easements have been exhausted . This distan ce shall be measured from the channeliz ed median to the nea rest edge of th e propos ed driv eway as indi ca ted in Figure 2. 3-4 DOWNSTREAM CORNER CLEARANCE Channell.red Ri9ht-Tum Lone Radius Clearance (1 .. 12 (full so 200 75 230 100 275 street ---~ R stre.,r ., L 0 .. c c 0 L L 0 0 u ., u drive (c) When the requirements of Tables 1 and 2 cannot be met due to lack of frontage and all means to acquire shared access driveways or cross access easements have been exhausted, no commercial driveway approach may be located closer to the comer than 75 feet on collector streets, 100 feet on minor arterials and 120 feet for major arterials . This measurement shall be taken from the intersection of property lines at the comer. When these requirements can't be met due to lack of frontage, the driveway may be located such that the radius will begin at the farthest property line . (5) Shared Access (a) A joint private access easement may be required between adjacent lots fronting on arterial and collector streets in order to minimize the total number of access points along those streets and to facilitate traffic flow between lots . The location and dimensions of said easement shall be detennined by the City Engineer. (b) Private cross access easements may be required across any lot fronting on an arterial or collector street in order to minimize the number of access points and facilitate access between and across individual lots . The location and dimension of said easement shall be determined by the City Engineer. (6) G eometric Design of Driveway Acc ess Rev. 10197 (a) All driveways shall meet th e City of College Stations Standard Specifications for Street Construction and the construction standards as set forth in Section 9 of the Zoning Ordinance . (b) Curb cuts for driveways sh all not be permitted in the curb return of an intersection. 3-5 (c) The curb return radii for driveways intersecting at right angles with the roadway and without a deceleration lane shall be as follows : (i) Curb return radi i for Residential_ (Single Family and Duplex) Driveway located on local or collector streets shall be between 2.5 feet and 10.0 feet as shown in Figure 3. Flare type residential driveways must also adhere to these dimensional criteria . Residential Driveways located on arterial streets must adhere to the specifications set forth in 6(c)(ii). (ii) Curb return radii for Commercial and Multi-family Driveways shall vary between fifteen feet (15') and thirty feet (30') as shown in Figure 4. (iii) Curb return radii for driveway types not included in (i) or (ii) above shall be detennined by the City Engineer or his designee . (d) The maximum width of residential driveway approach, shown in Figure 3 and measured at the property line, shall not exceed twenty-eight feet (28') in width , while the minimum width shall not be less than ten feet (10') in width . Figure 3 RESIDENTIAL DRIVEWAY S t raig ht f l are t o connect tange n c y points o f c urb r eturn . t..pprooch Wid t h U oJ(. 28 ' Curb Re t urn Radius ( R) f or Collec t or and Lo co l S tre e t s Is Ma x:lmum o f 10 f ee l a n d Minim um o f 2.5 f eof. U i n . 1 o· drive 3 -G Rev 10;<;17 Rev 10197 (e) The maximum width of commercial and multi-family driveway approach for two-way operation, shown in Figure 4, shall not exceed thirty-six feet (36') except that the City Engineer may issue permits for driveway approaches greater than thirty-six feet (36') in width on major streets to handle special traffic conditions. The minimum width of commercial and multifamily driveway approach for two-way operation shall not be less than twenty-four feet (24). Figure 4 COMMERCIAL AND MULTIFAMILY DRIVEWAY street Tono•ncy _/ Po~n t Approach Width l.(o x. 36" A_ Curb Return Radius (R) Maximum of 30 ..feet and Minimum of 15 f eet. (f) The combination of two driveways for residential circular drives shall not exceed twenty-eight feet (28'). (g) The angle of driveway approach shall be approximately ninety degrees (90 °) for two (2) way drives and between forty-five degrees (45 °) and ninety degrees (90°) degrees for one way drives . (h) A minimum driveway throat length of twenty-five feet (25') for collector streets, forty feet (40 ') for minor arterials, and fifty-five feet (55') for major arterials , as shown in Figure 5 , may be required to allow for traffic entering the site to be stored on site in order to avoid a queue of traffic from the development from being out on the roadway causing delays to the throu gh traffic stream . The driveway throat length shall be defined as the distance from the street to the first point of conflict in the driveway . (i) For the benefit of tr affic sa f et y and flow on collector and arterial streets, access points may be required to be de signed to prohibit certain types of turning movements . Driveways not meeting the spacing guid elin es in Tables 1 and 2 may be d es ign ed f or limited acce ss by the addition of a median to the driveway . Examples of the types of limit ed access driveways recommend ed are shown in th e APPENDI X. 3 -7 Figure 5 DRIVEWAY THROAT LENGTH parldn9 l drl•o ~ parldn9 Street OTL (feet) Collector 25 Minor Arlerial 40 Major Arterial 55 sired Fksl point of / con<llcl Driveway Throat Length (OTL) represents distance from street to first point of conflict. 0) For the benefit of traffic safety and flow on collector and arterial streets, tapered or channelized deceleration lanes for vehicles turning right into high volume or intersection type driveways may be required if warranted as per the criteria set forth in the graph for warrants for right tum lanes shown in the APPENDIX. Design of right-tum deceleration lanes shall be in accordance with the AASHTO Green Book on auxiliary lanes . (i) The spacing requirements for driveways not meeting the specifications in Tables 1 and 2 may be lessened or waived if tapered or channelized deceleration lanes are used . (k) Access points on arterial and collector streets may be required to be signalized in order to provide safe and efficient traffic flow. A development m ay be re sponsible for all or part of any right-of-way , design , hardware, and construction costs of a traffic signal if it is detennined that the signal is necessitated by the traffic generated from the development. The procedures for signal installation and the percent of financial participation required of the d evelopment in the installation of the signal shall be in accordance with criteria set forth in the City's Traffic Signal Policy 3-8 Rev. 10197 (J) Street Structures No driveway approach shall interfere with municipal facilities such as street light or traffic signal poles, signs, fire hydrants, cross walks, bus loading zones, utility poles, fire alarm supports, drainage structures, or other necessary street structures. The City Engineer is authorized to order and effect the removal or reconstruction of any driveway approach which is constructed in conflict with street structures. The cost of reconstructing or relocating such driveway approaches shall be at the expense of the abutting property owner. (8) Permits (a) Any plans submitted for building approval which include or involve driveway approaches shall be referred to the City Engineer or his designee for approval before a building permit is issued . (b) A written driveway permit for a new development shall be not issued or required. Approval of driveway location and design for new properties and other developments on a building plan or site plan shall be considered the permit for driveway installation. (c) Any property owner desiring a new driveway approach or an improvement to an existing driveway at an existing residential or other property shall make application for a driveway permit, in writing, and designating the contractor who will do the work, to the City Engineer or the building supervisor, accom- panied by a sketch or drawing showing clearly the driveway, parking area, or doorway to be connected and the location of the nearest existing driveways on the same and opposite sides of the roadway . The City Engineer will prescribe the construction procedure to be followed . (See the Building Code for contractor's bond and permit requirement, for work on public property .) (d) A permit or building/site plan approval as per the procedure of either 8(b) or 8(c) shall be required for the location of all driveways which provide for access to property . Driveway permits will also be required for any significant structure change, land use change, or property boundary change . (e) The driveway permit fee shall be set by resolution of the College Station City Council from time to time as deemed appropriate by said council and shall be of an amount to cover the cost of licensing and maintaining records . (f) All permits granted for the use of public property under the terms of this section shall be revocabl e at th e will of th e City Coun cil. (Ordinance No. 1971 of August 27, 1992) 3-9 Rev 10197 (9) Appeals (a) Appeals of the tenns of this section or of decisions of the City Engineer shall be heard by the Project Review Committee as defined in Section · 10 , Ordinance 1628, the Zoning Ordinance for the City of College Station, Texas . (b) An appeal shall be made within thirty (30) days of the date of the notification of the decision by filing with the City Engineer a notice of appeal specifying the grounds thereof. The City Engineer shall forthwith transmit to the Project Review Committee all the papers constituting the record upon which the action appealed from was taken . (c) The Project Review Committtee may authorize on appeal a variance to the Driveway Access Location and Design Ordinance when such variance will not to be contrary to the public interest where, owing to unique and special conditions not nonnally found in like areas, a strict enforcement of the provide provisions of the ordinance by the City Engineer would result in unnecessary hardship, and so that the spirit of this ordinance shall be observed and substantial justice done . (Ordinance No. 2263 of September 11, 1997) 3-10 Rev 10197 600 z: 500 0 I-Oil ~z 5j 400 Cl ··~ >o ~c: 300 (/) >-<O: (l::W :i: c.. 200 0 100 00 Rev 10197 APPENDIX WARRANT FOR RIGHT-TURN DECELERATION LANES .. 5 10 15 20 25 OHV OR AVERAGE PEAK BOUR VtUJl[E OF VEl-UCLES TURNING RIGHT lNTO ~cf.ES S 3-11 R ev. 10197 LIMITED ACCESS DRIVEWA~S Ro.dlus = 30' i1r &, RIGHT IN. RIGHT OUT, LEFT IN __ _so~M1n:-1_tI ____ _ 30' i1t RIGHT IN, RIGHT OUT Ro.dlus = 50' Min . Ro.d I us = 5 0' 18' Min.; 8 18' Min. . @ ------J--40~1 nln. ------------ 3 0' RIGHT IN, RIGHT OUT LEFT OUT 1 8' rii n. ' Min . Ro.d i u s = S 0 ' n; n 1 _J L , _______ ~O_ri_j__Q. __ 3-12 Ha.vey C ·rgill -Re : Minor, amending plat reports to Commission and Council From: To: Date: Subject: Jane Kee Tom Brymer 10/12/99 12 :08PM Re: Minor, amending plat reports to Commission and Council This is all correct except for one detail. Nelson Nagle did not HAVE to plat. He had a predevelopment mtg. and many things were idscussed . I think he chose to plat in order to make it clear what the boundaries of his property are and because he knew if he ever wanted to sell off any of the houses he would HAVE to plat before he could do that. He could have done what he has done without platting. Tom, I'll be sure you're on the FYlflyer list. One will go out next week. Starting in November we'll go back to putting a Minor Plat item on each P&Z agenda . We'll continune with the flyer every quarter but will not include the minor plats on it anymore . >»Tom Brymer 10/11/99 03 :04PM »> Just now getting back to you Benito about the 2 issues you raised . First, regarding the reporting issue, in talking with Jane she intends to report to P&Z soon on this. Jane had been trying to do this report periodically through an agenda item to the P&Z . After a while there were so few minor plats that the report became included in a monthly FYI flier to P&Z . During high work load of the last several months this flier went from monthly to quarterly and is due out again . If ordinance requires that I report this to Council , obviously I will do that, no problem. Second , regarding appeals under Sec. 212.0115(i) of the TLGC, that section of the law concerns appeals of a City's decision to require platting of areas in its ET J . It was formulated to deal with areas in the unincorporated ET J of a city that was served by a rural REA or water supply corporation. Sometimes the owners of property in that area would want to develop and had gotten commitments for utility service from the rural utility and didn't feel they had to plat. The city could require a plat, but the property owner had the right to appeal that decision. It is my understanding that is what this part of the code addresses . On the Nagle Subdivision we required a plat, so the circumstances for desiring an appeal are different than what Sec . 212 .0115 was intended to address unless Mr. Nagle had disagreed with the requirement to plat , which of course he did not. >» "Benito Flores-Meath" <bflores@elitesoft.com> 10/08/99 03 :01 PM »> I appreciate your looking into this. The original intent of having the P&Z Commission review the plats within two weeks was probably to prevent just the situation we are in now. What a shame. Please feel free to call me to discuss this, either at work (846-2340) before 5 or at home (696-8295) during the weekend . Thanks . -----Original Message ----- From : Tom Brymer <Tbrymer@ci.college-station.tx.us> To: <bflores@elitesoft.com> Sent: Thursday, October 07, 1999 6:07 PM Subject: Re: Minor, amending plat reports to Commission and Council Just now have gotten to this Benito. I'll check into it and respond back to you . »> "Benito Flores-Meath" <bflores@elitesoft.com> 10/06/99 12 :59PM »> Below is the final copy of a letter I submitted to the City, requesting the reports that were brought up last night. Connie will get you a copy , as I CC'd it to you and the rest. These reports I requested are, by City Ordinance (and I believe state law too) to be presented to P&Z at the following meeting after a minor or amending plat is approved by City Staff. The Office of the City Manager is Page 1 I Ha.wey C ~rgill -Re : Minor, amending plat reports to Commission and Council to also present these to the City Council. I've checked the minutes and agendas for all the P&Z meetings since June (before the plat), and did not find any such reports mentioned. Last night I checked with Judy Warren, a P&Z Commissioner, asking if when she had first heard of the development behind Norma's, and was told the first information was an email from me! Today I'm told that they are accumulating the reports to do a quarterly report, and that they are three weeks behind . Amber relayed this to me , as she had never heard of such reports, and had to ask about them. Presumably Jane was the one who described the quarterly report , as most of the rest of the staff is gone until Monday , and she was the only one in authority that I knew was there. So I go to ask for reports that by city ordinance should be filed with the Commission and I get the impression that the City Planner (Jane) just isn't following the law. The Office of the City Manager is also required to file these with the Council -but if you aren't provided with the reports , how are you to fulfill your legal obligations to the Council? I also asked Jane for the forms to appeal the plat in question and Jane didn't know anything about the permits , forms , code , whatever to file an appeal under Sec. 212.0115(i) of the TLGC. I don't believe she is that ignorant, especially since Steve brought it up last night, and handed a copy of the regs to the ZBA. After last night's performance, and after the 303 Boyett mess (where the city didn't follow it's own zoning ordinance), and now these nonexistent reports , when is enough? ************************************** [open records request] Connie : In the Subdivision Regulations (rev Jan 1999), item 6-D.5 .3 states : [begin italics] Within twenty (20) days after an amending or minor plat is formally filed, the City Engineer, or his designee, and the City Planner, or his designee, shall approve such plat or notify the applicant that consideration of the plat will be forwarded to the Commission. The Commission shall approve , disapprove or conditionally approve the plat within thirty (30) days of the City Engineer's decision and notification to the applicant. A report shall be made to the Commission at each meeting notifying the Commission of any new minor or amending plats that were approved by the City Engineer since the last Commission meeting . The same report shall be forwarded to the Council through the Office of the City Manager. [end italics] This request is made under the Texas Open Records Act , Tex. Gov't Code Section 552, which guarantees the public's right of access to information in the custody of governmental agencies. In accordance with section 552.221 of the law , which requires that the officer for public records "shall promptly produce such information for inspection, duplication , or both, in the offices of the governmental body," I respectfully request to review of the Page 2 I Hawey Ci rgill -Re : Minor, amending plat reports to Commission and Council following information : I am requesting to review the reports presented to the Planning and Zoning Commission and to the City Council , concerning the plat approved for 600 Welsh (behind Norma Miller's home), including , but not limited to , any accompanying memos, letters , notes , agendas , minutes, etc. pertaining to these reports . Please communicate with me by telephone as to when would be a convenient time to review it. My telephone number is 696-8295 after office hours . I shall look forward to hearing from you promptly , as required by the Act. Thank you for your cooperation . Very tru ly yours, Benito Flores-Meath CC : Mayor, City Council, City Manager, P&Z Commission, ZBA , City Planner, City Eng ineer (Connie -can you forward these , please? CC: Steve Esmond, Norma Miller CC: Harvey Cargill ; Jim Callaway ; Roxanne Nemcik Pag"f3l ..... -··-· ·-· .-·-----;" ··-.--·--·· ___ , __ ········.: 1---............ ..,.~·.-.... - .. ' --------···--·-·-· ---------------------------------~ 0686976 Bill & Return to · University Titl e Company P .O. D ·awer OT College Station, Texas n841 GFl-..,-_q~4~0t{~(p~{)~4y"-- . TIIBSTA'IE OP TEXAS 'coUNTYOP~_ll_JLU_OI ___ _ .oji llll..ZOS Counl)', TCDi, hctclna.1tcr ct!k4 'Granto:' (~ther cnu: or more), for and in consideration of thli roin. Or'TCD . a.a.d DD/'JI1J ($10.00) cub and oth.cr good and va!UAb!c coruid.eruion to .Grwor in h:iid paid by · ALLISON 1"C!Z, A mcu WO!>fA." AND l!El-'ON in: NAc!'.!. A ffl!CYI w.!! he.rcitu!ta c.allc.d 'Gra..a.tu' (whctbez Ol1e a: ciore1 ~ rccdp< of w!:kh ls h::re!?T. ·~ and in further COil!id.cntion of the= of EJc&-rrmwotJW-1l roUll.rrti1ill.~":D mry 'IWO OOUAltS A.'.-0 N0/100 to Granter ulh i.a hand paid by COJL"ll:UTOlllt Mo:m::,..ci co.'ia.UO- :hc:reinAfter e.alled 'Lender', a! the speci&I iiutana .and request of Gnnti:c, u cvidc:ncCd by !lie ui:~ &11d dcliv~ry by Gru.tee to Lcndc:r of a promiuory note of cVcn d.alo hac1"itb payab~ to -Lender 111 the princp&l IUill of ~~ hu GRANTED,-SOµ> and CONYE\'!ID, and by these pre&ents dou GRANT, SELL wl CONVEY 1U1to the uld Grulu, thc follawi.n& 'l!cscn'bcd property i.a l!LUOt · · Cotml)', TW.,-to-'d: . MnI.5 A..'ID I OtOOlS DESC1!1'It0N or AL1; CD:Wl'I nAcr Oil P.uii:EL or lA'C> L'Y!NO AND llll?IC SIIt!AllD IN COLUCI: run oil, u.uot t:pvNTY, rixAs. Mil> 'IllAC'I lltll'iC A l'OlalOl'I on.ors 10, AXD ll, llLOClt -c; ~'I OFCOULG!t PAU. AccollDINC TO Tm: nAT l!ZCOIDID IN YOLVMli 107, 1.1.ClC ul07T!!I PIZI> ~ OF llA%OS COUNI'T, Ti:xui llEINC ll!OU: PUnCVLWl'iWoiuo 11' Nim AXD llOU!l'DS Oii' DlllllT '4 • AT'IACI!!l> m:u:ro AKt> MAPJ 4 Pill' llEREOI' i>oz 4LL rouoaa. 0 3 4 9 .2 0 0 2 1 ~ COUNTY CLERK'S MEMO PORTIONS OF THIS DOCUMENT NOT LEGIBLE AND/OR REPRODUCIBLE WHEN RECEIVED . BUT RECORDED AT CUS· TOMER'S REQUEST. f &.~, fmdfumy The llOte in fuor of Lend er, .above refared to, ii p•}'able ·m the= and be.an lnlc:rw a! the rale therein &pecificd and provide. for coUO<tion feel lltld ac:a!<:r.ati011 o! muu.rity i.a the CYe.11! of default The paymellt of uid a.etc i& ccc:urcd by the rctution henm of a vendor'& li.Cll and &upcrior title to the property far the bcncli! of Lender &11d is addil:ioWly ~by dud o! crust of = date berewith ~cutcd by Gr~cc to II. J. ll.\..'lIEL 1 Tnutec for Lender, to wi:lcli re!crenee ia made for all purpos:i. Ia ~on o! the psymcnt by Lcridu to Gnntor of th4t portion o! the purclWC prla: o! lhc herein d=ribcd pro~, Gnntor hereby assigm. cra.:u!cn &nd Cllllvcys to 1-du, Whout =uno on Gn.ntor, the &aid _v=lor'1 lien togclhu with the &upcriar til1Ai to uid property. Thu convcyanco is given &lid &eeeptcd IUbjcct CO all and aingul.ar the rcstrialotu, CXlYcll&llta, conditic111, limit.atio111, casements and m.inaal ~-if 1111y, applicable to &11d cnfotc.c.ab!a ap.i.tut the above dcsaibed propctty as rcllecwi by the recards of tho =ry ill which It ls loCAted. To have 111d ro hold the :above ~'bed preol!cs, rog-..thct with all and~ the rights and appurtcn.ano:.S thereto in anywise bc!ongills to the uld G~, their .bdrs and ~ forever, and Gnntor dou hereby bi.ad thc.msd~ their hWs, =ton &nd adcinistn!ars to ......m.nr ad Core= d.eUnd, all and lingulu, the uid prc:mlsca 1llllD the uJd Grant:c, th4lr !Wra and us!pu. api.ast cvcrr pc:non v.iiom.socvu lawfully cWm.i.ag o: to claim the Wile a any pat tbereot. Tm:& fDC thc =..u y.u haw beCl1 prorated ind are u.Rmed·by Gr&Dteo. . ·-~· ... ········-· ·--·· ... ~-·~ .. ~· -~· ._ . .,.._. -~··· ... -·----·---.... -----~ ! ' i I l • • ., -1 I I I 1 ,t I '! l ' .... ,; . ,. . ~ · ...... -·~' , · ... . . . • .... . . ·,_.~--\ . :~. ~· ..:· ... .:" .. · ..... 0686976 But It la c.q>rCUly agreed and atlpulated that the &aid vcndor'1 lie.a and 1upcrlor title In and to the · above dcacribed property arc retained against the property, Wltll the abovc dcacribcd note and all Interest thereon are fully paid according to its faoc and tenor, effect and reading thcrco(, 1"hc.a this deed shall become absolute. The u.se of any pronoWI herein used to refer to Grantor or Grantee ahal1 be deemed a proper reference even though Grantor and/or Grantee may be an individual (either male or female), a corporation, a partnership or a group of two or more individuals, corporations, and/or partnenhips, and when the deed is executed by or to a corporation or trustee the words heirs, executor and administrators, or heirs and as.signs shall, with respect to such corporation or trustee be construed to mean successors and as.signs. THE STATE OF TEXAS COUNTY OF Mt211M Before me, the undersigned notary authority, on this day personally appeared NELL FRAZER LINDQUIST A.'iD ERIC LI NDQUIST "" . known to mo(to+ttthc i2r~o:t)·~~:a:,:;C;).tt)::e1 :~b:Cnbed to the f<>Tegoing instrument, and aclcnowlcdged to me that bcfsbc/they executed the same for the purposes and consideration therein expressed and in the capacity therein stated. Given under my hand and seal of office this _Ji_ day of Y2J 4<j , 19 .§:;_. A~c:1uw/· NOTARYPUBLK: ATE OF TEXAS MY COMMISSION EXPIRES 0 3 4 9 2 0 0 2 1 a AFTER RECORDING, RETURN TO GRANI"EE'S ADDRESS: COUKTY ClER!<'S MEMO PORTIONS OF THIS DOCUMENT NOT LEGIBLE AND/OR REPRODUCIBLE WHEN RECEIVED . BUT RECORDED AT CUS· TOMER'S REQUEST. • Ajµ otPUTY AUJSON NAGLE -ll'!!LSllKitli!l'f! '5°/0 ~ /Jiv ~01.1.EGI> RTR0Pl;RI ~~oeJcl a.,c f 8(. (,,. "'f 1_ .. · ~ -----------·------------·--·· ···-------------·-····-·--·-····----.n l l I i 0686976 EXHIBIT "A" TRACT B: i METES AND BOUNDS DESCRIPTION OF ALL THAT CERTAIN TRACT OR PARCEL I OF LAND LYING AND BEING SITUATED IN COLLEGE STATION, BRAZOS COUNTY, ! TEXAS . SAID TRACT BEING A PORTION OF LOTS 10 AND 1 I, BLOCK C, . i RESUBDIVISION OF COLLEGE PARK, ACCORDING TO THE PLAT RECORDED IN I VOLUME 107, PAGE 151 OF THE DEED RECORDS OF BRAZOS COUNTY, TEXAS. i ,; SAID TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS : COMMENCING AT A 518 INCH IRON ROD FOUND IN COfQCRETE AT THE INTERSECTION OF THE SOUTHWEST RIGHT-OF-WAY LINE OF WELSH AVENUE (ALSO KNOWN AS "WELCH AVENUE" -62.5' R.O.W.) AND THE SOUTHEAST RIGHT-OF-WAY LINE OF FIDEL TY STREET (50' R.0. W.) MARK.ING THE NORTH CORNER OF SAID LOT I 0, FOR REFERENCE A 1/2 INCH IRON ROD FOUND ON THE SOUTHWEST LINE OF WELSH A VENUE MARK.ING A POINT IN THE NORTHEAST LINE OF LOT 12, BLOCK C, BEARS: S 48° 02' 26" E FOR A DISTANCE OF 129.03 FEET; THENCE: S 48° 02 ' 26" E ALO NG THE SOUTHWEST LINE OF WELSH AVENUE FOR A DISTANCE OF 20 .53 FEET TO A 518 INCH IRON ROD SET ON THE NORTHEAST LINE OF SAID LOT 10 MARK.ING THE POINT OF BEGINNING OF THIS HEREIN DESCRIBED TRACT; THENCE: S 48° 02' 26" E CONTINUING ALONG THE SOUTHWEST LINE OF WELSH A VENUE FOR A DISTANCE OF 59.55 FEET TO A 518 INCH JRON ROD SET ON THE NORTHEAST LINE OF SAlD LOT 11 MARKING THE EAST CORNER OF tHIS HEREIN DESCRIBED TRACT; THENCE: S 42° 12' 06" W THROUGH SAID LOT 11 AND ALONG THE EXTENSION OF AN EXISTING I STORY BRICK AND WOOD HOUSE FOR A DISTANCE OF 117.33 FEET TO A 518 INCH IRON ROD SET ON THE COMMON LINE OF SAID LOT 11ANDA15 FOOT WIDE ALLEY, FOR REFERENCE A 3/8 INCH IRON ROD FOUND IN A I INCH IRON PIPE ON SAID CO!vtMON LINE BEARS : S 48° 01' 24" E FOR A DISTANCE OF 50.39 FEET; THENCE: N 48° 01' 24 " W ALONG THE CO!vtMON LINE OF SAID LOT 11 AND SAID ALLEY FOR A DISTANCE OF 60 .00 FEET TO A 518 INCH IRON ROD SET ON THE CO!vtMON LINE OF SAID LOT 10 AND SAID ALLEY MARK.ING THE WEST CORNER OF THIS HEREIN DESCRIBED TRACT, FOR REFERENCE A 3/4 INCH IRON ROD FOUND IN CONCRETE ON THE SOUTHEAST LINE OF FIDELTY STREET MARKING THE WEST CORNER OF SAID LOT IO BEARS: N 48° 01' 24" W FOR A DISTANCE OF 18.64 FEET; THENCE: N 42° 25 ' 19" E THROUGH SAID LOT 10 AND ALONG THE EXTENSION OF AN EXISTING CHAIN LINK FENCE FOR A DISTANCE OF 117 .31 FEET TO THE POINT OF BEGINNING CONTAINING 0.161 OF AN ACRE OF LAND MORE OR LESS AS SURVEYED ON THE GROUND APRIL, 1999 . COUNTY CLERK'S &tmo PORTIONS OF THIS DOCUMEHf N{ff LEGIBLE AND/OR R~~fi~l)~C1ai~ rmgH RECEJ_ VEO . BUT R' . '·· ·:· f , Af AIJ~ 1l*fR'S REQUEST.~•-"L _., n " 11: &i< 0 3 4 9 2 0 0 2 1 9 ··.-......:..~~~-·---···· I I !. i r t " !i ., ;: I r ,, .. .. ,;;, J~?;i· :;!k !-f.i ;';:r.;~. ·i .·,. ·', .": ... ·~ ... "·'~~.,,.. .. ... :• '·' *"·.' '"· .... ' \'"'"' ' ... •:,. " 0686977 AFTI:R RECORDING, RETURN TO: CORNERSTONE MORTGAGE COMPANY 1177 WEST LOOP SOUTH, sum; 200 HOUSTON, TEXAS nm ATI'N: FINALIZATION DEPAR'IMENT Bill & Return to· Uraversity Title Company P .O. O·awer OT College Station, Texas 77841 GF# _ __._{ 'l.,..;.0-"q~~ D_.fV:.--- -S-14-t•-of_T_e_U_l ______ ,.._.,_Thlo Une ..... .._...,. DmJ!----------- County of BRAZOS I FHA ea.. No. DEED OF TRUST m:6459646-103 THIS DEED OF TRUST ("Securlly lnstrumenr) Is made on l The Grantor Is AU.ISON NAGLE, A SINGLE WOMAN and NELSON LEE NAGLE, A SINGLE MAN MAY20, 1999 ("Borrower"). The trustee Is R.J. DANIEL 1177 WEST LOOP SOUTH, SUITE 200A HOUSTON, TEXAS 7711l7 ("Trustee1, The beneficiary Is CORNERSTONE MORTGAGE COMPANY 'which Is organized and existing under the laws of the STATE OF TEXAS , and whose address Is 1177 W. LOOP SOUill SUITE 200, HOUSTON, TX 77027 · (Lender"). Borrow0f owes Leod0f the principal sum d EIGHlY SIX IBOUSAND FOUR HUNDRED FIFIY 1WO DOLLARS AND ZERO CENTS Dollar.1 (U.S .$ 86,"52.00 ). Th is debt Is evidenced by Borrower's note dated the same date as this Security Instrument \Note"), which provi d es for monthly payments, with the full d ebt, If not paid ear110f, due and payable on JUNE 1, 2029 • Th is Security Instrument secures to Lender. (a) the repayment of the debt evidenced by the Note, with Interest, and all renewals, extensions and modifications of the Note; (b) the payment of all other sums, with In terest, advanced under paragraph 7 to protect the security of th is fHA Tou1 DMd of Truot. 4/M flF-4R(TlQ l'OO'l ....... 0 3 4 9 2 0 0 2 2 0 ' • . i I •;••--er .. ~--::•;-.•.'' .. '.'""••-_••·•• .......... , ...................... ~---.. ·•· • • r ·~ -.. 'f "":''· -_.":'"' .,...,..,.,. .. . ·,, ------ . .... . .. -.· ~ .... ·, ' . ' . ·;· .. 0686977 . j ; ·:-~· ~. •;I • i • .... " .. ;··:·0 .:. 3 ;, I :.:''' .. ,: : <t· ·. :: Secur!ry lmtrum81'1!j ancf(c) the perfcnnanCe ct ~-C0':'9ci.uu Cid agn.m.nta u:icser this Securtty ~Xm,~~~~~~"'T~!i~"= ~ W '~ 10 the Truatae, n BRAZOS · · . . · . · · · • · County Tau: MEtEs AND BOUNDs DEScRmTON orlfil. c;ntA"IM.i;tAq oatAlu::EL 6r IAND LYING. AND BEING BmJAn:D:IN COIL.EGE ST.~ON, m:~.zos:cotfrnY.~SAII> TRACT BEING A PO!lTION OP' LOIS 10, ANI>"ll;;llLOCK ~;'P..ES~p~O!i OF:COIUG& PARK, ACCO.!lDIN:G ro TH! PLAT RECORD~·INWLmmtQ?;·P.A~Em .o.r:~DPJm ~ORDS OF BltAZOS COUNl"Y, n:x'.AS; BEING MORE;}'~Y;D~~'.Jr(~fEIXS · AND :llOUNDS ON EXHIBIT 'A' A.Tr ACHED HERETO AND J.l.\1JE A PilTBEREOF li'Oll:AU.. PURPOSES: . ' . Ywtllch 114, the addrasa ol . 600 WELSH A VENUE COu..EGE STATION T llXAI 71340 (2lp Cod• r ("Property Addresaj; . (Slrwl, Cll)o), TOGETHER WITH all, tho lmproVements ~now or heindW 6'~. ori the pr_opcrty, and .all eawnenl3, appurtena ncos nnd rlx!u res OON cl t....r2:lftar 'a P!lt! ot.tha propil&;. All rop(ncometl!a and· liddl!lona shall also be covered by thb Sacurtty lns1rumerit. All of the foregoing la inllen'ad to In thla Sac:url!y 11\litrUmGnt as the •property." !IOAAOWER COVENANTS tllaI BorrO'N8! IS lawfUIY se!ztid of the Mat1 herabY coqveyed and has the right to grant and convey the Property and ttiat tl11Property1.9· uiienaJmbored, GXCOpt fur encumbrances of record. Borrower warranta and wlll defend ganara.lly the tJUe' to ttup Propei:ty against all c:lalma and demands, ·subject to any enctJmbroJlC1" of rOc:ord . · .. THIS SECURITY INSTRUMENT comb in es u1ltoml c:ovana'ma for riatlcnsl ~ arG non-uniform covenants with liml!ed varlatfons by juriad lctlon to ConatlM9 a uiilfonn ·l8CUl'lly lNtrumont · COll9rlng raal property. . e'orrowll and Lender cavenant and agree .,, followw: UNIFORM COVENANTS. t . Payment of Pr1nclpal, lnterat1 and Lste Ctwg1. Bolrower eheJI pey wht!l1 du1 the prlnclpel of, and lnt81'8St on. the debt 8\'ldanced by the Neta and lata charges dU. under the Noto. 2. Monthly Payment of Taxea, l~nc:e and 'Other Charges. So1T'OW8r shall lndude In 11ach monthly paymern. together with the prtnclpal and Interest as aet forth In ~·Neta and any lale charg<JS. a sum for {II) ~ and sp..dal uaawnents IQ\l\ed or to be I~ ~ the Propeny, (b) leasehold PBY.ITlElllU or ground rents ' on the Property. ar;il (c) pt8rri~ ~ lnSuranCe requ!re:iundar p&ragraph '4. In al1Y. year Ill Which the l.aridor must pay a mortgage 1ns1Jrarica premium to rt. Sec:ntary cl Houafng and ........ ·4 9 2 0 0 2 2 1 --------------------~r' . tl "'? .• ti-' ......... :,,. ..... . '~ '".' ,., · .. . . ..... · . .. ; .•: ...... ~· .. ; .: . :: ;:··~.;.~··-. . 0686977 BY SIGNING BELOW, Borrower accepts and agrees to the terms contalned In this Sec:urlty Instrument 0 3 4 9 2 and In arry rider(•) executed by Borrower and recorded with ll . Witnesses: 0 ~....,,,.,+ (Seal) AILJSON NAGlE .eon- 11&~k¥ (Seal} NELSON LEE NAGlE ~ .eon- (Seal} (Seal} ~ ~ (Seal) (Seal) .llom>w9f -eonow.< (Seal) (Seal) ~ ·Borrowet STATE OF TEXAS, ..!> lcAAJ c /J CountyM: BEFORE ME, the undersigned, a Notary Public In and f0< aald County and State, on this day personally appeared ALLISON NAGlE and NELSON LEE NAGLE known to m~ 'ie~~(f:;; . ~~~bed to the foregoing lnstnlment, and acknowledged to me that THEY executed the same f0< the purposes and consideration therein expressed . GIVEN UNDER MY HAND ANO SEAL OF OFFICE, this .;1./ day ~-/Jn-'---~-r1------/'19q . - FHA Cue No . o493 :6459646-703 Ell'-4R(llQ peoq r.q.1 °'' ~ dtrmu 0 2 2 8 " ,; .. ,. '• .... -------------~· 0686977 j . EXHIBIT "A" TRACT B: METES AND BOUNDS DESCRIPTION OF ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN COLLEGE STATION, BRAZOS COUNTY, TEXAS. SAID TRACT BEING A PORTION OF LOTS 10 AND 11, BLOCK C, RESUBDIVISION OF COLLEGE PARK, ACCORf)ING TO THE PLAT RECORDED IN VOLUME 107, PAGE 151 OF THE DEED RECORDS OF BRAZOS COUNTY, TEXAS. SAID TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS : COMMENCING AT A 5/8 rNCH IRON ROD FOUND IN CONCRETE AT THE INTERSECTION OF TiiE SOUTHWEST RIGHT-OF-WAY LINE OF WELSH AVENUE (ALSO KNOWN AS "WELCH AVENUE" -62.5 ' R.O.W.) AND THE SOUTHEAST RIGHT-OF-WAY LINE OF FIDEL TY STREET (50' R.O. W.) MARKING THE NORTH CORNER OF SAID LOT 10 , FOR REFERENCE A 112 INCH IRON ROD FOUND ON THE SOUTHWEST LINE OF WELSH A VENUE MARKING A POINT IN THE NORTHEAST LINE OF LOT 12, BLOCK C, BEARS: S 48° 02' 26" E FOR A DISTANCE OF 129.03 FEET; THENCE: S 48° 02' 26" E ALONG THE SOUTHWEST LINE OF WELSH AVENUE FOR A DISTANCE OF 20.53 FEET TO A 518 INCH IRON ROD SET ON THE NORTHEAST LINE OF SAID LOT 10 MARKING THE POINT OF BF.GINNING OF THIS HEREIN DESCRIBED TRACT; THENCE: S 48° 02' 26" E CONTINUI NG ALONG THE SOUl;HWEST LINE OF WELSH AVENUE FOR A DISTANCE OF 59.55 FEET TO A 5/8 INCH IRON ROD SET ON THE NOR THEAST LINE OF SAID LOT 11 MARKING THE EAST CORNER OF tHlS HEREIN DESCRJBED TRACT; THENCE: S 42 ° 12' 06" W THROUGH SAID LOT 11 AND ALONG THE EXTENSION OF AN EXISTING I STORY BRICK AND WOOD HOUSE FOR A DISTANCE OF I 17 .3 3 FEET TO A 5/8 INCH IRON ROD SET ON THE COMMON LINE OF SAID LOT 11 AND A 15 FOOT WIDE ALLEY, FOR REFERENCE A 3/8 INCH IRON ROD FOUND IN A I INCH IRON PIPE ON SAID CO MMON LINE BEARS: S 48° 01' 24" E FOR A DISTANCE OF 50.39 FEET; THENCE: N 48° 01' 24" W ALONG THE COMMON LINE OF SAID LOT 11 AND SAID ALLEY FOR A DISTANCE OF 60.00 FEET TO A 5/8 INCH IRO N ROD SET ON THE COMMON LINE OF SAID LOT I 0 AND SAID ALLEY MARKING THE WEST CORNER OF THIS HEREIN DESCRIBE!) TRACT, FO R REFERENCE A 3/4 INCH IRON ROD FOUND IN CONCRETE ON THE ~OUTHEAST LI NE OF FIDELTY STREET MARKING THE WEST CORNER OF SAID LOT IO BEARS : N 48° 01' 24" W FORA DISTANCE OF 18 .64 FEET; THENCE: N 42° 25' 19" E THROUGH SAID LOT 10 AND ALONG THE EXTENSION OF AN EXISTING CHAIN LINK FENCE FOR A DISTANCE OF 117.31 FEET TO THE POINT OF BEGINNTNG CONTAINING O.I61 OF AN ACRE OF LAND MORE OR LESS AS SURVEYED ON THE GROUND APRIL, 1999. 0 3 4 9 2 0 0 2 2 9 '. I i. I· I i '· J, ,, ,, ~l ij · .. . __ _,,, ,.,.,... •. (4 . <J i ... . • • ·• •' ······~-· r -••••. .., \:,. -~ .. ·-·•·• ·•. •·• .. ~ •.;, .••• • '-· .-~·•-" .'.-.::.!· ------------------~---------------~----'---'--.• ... ~' I ! I I i lll!COllDINO PAm POR BY: l/TC 991711 ; UNDQU!ST. WD (lo) 0686978 BUI & Retum to · University Trt1t-Company P.O . o ·awer OT College StatJOn, Texas 77841 GFI t{q\111 ~. STATE OF TEXAS WARRANTY DEED KNOW ALL MEN BY THESE PRESENTS, THAT: COUNlY OF BRAZOS NELL FRAZER LINDQUIST AND ERIC LINDQUIST, of the County of Brazos, State of TC'lCas, GRANTORS, for and in consideration of the sum of TEN OOLLARS (SI0.00) and other good and valuable considerations, CASH, paid by NELSON LEE NAGLE, whose address GRANTEE, the receipt and sufficiency of whlch are hereby acknowledged HA VE GRANTED, SOLD AND CONVEYED and by these presents do GRANT, SELL AND CONVEY unto the said NELSON LEE NAGLE, all of the following described real property, t ogether wi th all of Grante rs ' improvements thereon , to-wit J:rm.A : Metes and bounds description of all that certain tract or parcel of land lying and being situated in College Station, Brazos County, Texas. Said tract being a portion of Lot 10, Block C , Resubdivis ion of College Park, according to the plat recorded in Volwne 107, Page I 51 of the D eed Records of Brazos County, Texas . Said tract being more parti cularly described by metes and bounds as follows : COMMENCING at a 5/8" iron rod found in concrete at the intersection of the southwest ri ght-of-way line of Welch Avenue (62 .S' RO.W .) and the southeast right-of-way line of Fidelty Street (50 ' R.O .W .) mark ing the n orth comer of said Lot 10 . for reference a 112" iron rod found on the southw est lin e of Welch A venue marking a poin t in the northeast line of Lot 12, Block C, bears: S 48° 02 '26" E for a distan ce of 129.03 feet; THENCE S 48° 02'26" E along the so uthwest line of Welch Avenue for a distance of 20.5 3 feet to a 5/8". iron rod set marking the east corner of this herein described tract; THENCE S 42° 25' 19 " W through sai d Lot I 0 and along the extension of an existing ch ai n iink fence fo r a dis tan ce of 117 .31 feet to a 5/8" iron rod set on the commo n line of said Lot 10 and a 15 foo t w ide alley , for r eference a 3/8" iron rod found in a 1" iron pipe on said common l ine bears : S 48 ° 01 '24" E for a distance of 110.39 feet; T HENCE N 4 8° 01 '24" W al ong the common lin e of said Lot 10 and said alley for a di stance o f 18 .64 feet to a 3/4" iron rod found in concrete on the southeast line of Fidelty Street marking the west corner of sai d Lot 10 ; THENCE N 41° 30'01" E along the southeast line of F idelty Street for a distance of 117 .31 feet to the Point of Begi nning, containin g 0 .053 of an acre of land, m C?re or less, as surveyed on the ground April, 1999. P«r I 0 3 4 g 2 0 0 2 3 0 r -.-.. ;-:-,:.1-··:-.• -.-; -_-.... ; . ·--'-.-.....'""'"--"'"'"....,_.....,~~""-"..:... .... ·..._. ...... ...,_· .;:... ;..:~>..,. . ._..'"'-~_,.........:,;....._, •.. ,• .... -• · __ . --~--~·-· ..... -_ ... _-.: ... 7a .. _:~ .... ·,"_-..~.' 1· ---------.._...... ...:...:..i :.t ···r '>u ;-·*" >J '"M .... ;,.-•,•. ""'t -~~~ , ~ _ ... ... -I .:- ... \~ ~1 ii .... ~-·,...:--.......... -. . •' ------------------------ -' . 0686978 ~: Metes and bounds description of all that certain tract or parcel of land, lying and being situated in College Station, Brazos County, Texas. Said tract being a portion of Lots 11 and 12, Block C, Resubdivision of College Park, according to the plat recorded in Volume 107, Page ISi of the Deed Records of Brazos County, Texas. Said tract being more particularly described by metes and bounds as follows : COMMENCING at a 5/8" iron rod found in concrete at the intersection of the southwest right-of-way line of Welch Avenue (62 .5' R .O . W.) and the southeast right-of-way line of Fidelty Street (50' R.O.W.) marking the north corner of said Lot 10; THENCE S 48° 02'26" E along the southwest line of Welch Avenue for a distance of 80.08 feet to a 5/8" iron rod set on the northeast line of said Lot 11 marking the Point of Beginning of this herein described tract; THENCE S 48° 02'26" E continuing along the southwest line of Welch Avenue for a distance of 48 .95 feet to a 1/2" iron rod found marking the east corner of this herein described tract; THENCE S 41° 30'01" W through said Lot 12 for a distance of 117 .35 feet to a 3/8" iron rod found in a I" iron pipe on the common line of said Lot 12 and a I 5 foot wide alley marking the south corner of this herein described tract; THENCE N 48° 01 '24" W along the common line of said Lot 12 and said alley for a distance of 50.39 feet to a 5/8" iron rod set on the common line of said Lot 11 and said alley marking the west corner of this herein described tract, for reference a 3/4" iron rod found in concrete on the southeast line of Fidelty Street marking the west corner of said Lot 10 bears : N 48° 01 '24" W for a distance of 78 .64 feet; THENCE N 42° 12 '06 " E through said Lot 11 and along the extension of an existing I story brick and w ood house for a distance of 117.33 feet to the Point of Beginning, containing 0 .134 of an acre of land, more or less, as surveyed on the ground April, 1999. This co nveyance is made subject to the following restrictions and exceptions : I. Restrictions recorded in Volume 111, Page 197 and Volume 106, Page 234 of the Deed Records of Brazos County, Texas. 2 . 25' Building Line on the northeast & southwest sides ; 15' Building Line on the northwest side; as set out in restrictions recorded in Volume 111, page 197 of the Deed Records of Brazos County, Texas ; Electric Line in the southeast portion; all as shown on survey prepared on April 26, 19 99, under the supervision of Brad Kerr, RP.L.S. #4502. (Tract A) 3 . 25' Building Line on the northeast & southwest sides; 7 .5' & 5' Building Line on the southeast side; as set out in restrictions recorded in Volume II I, Page 197 of the Deed Records of Brazos County, Texas; all as shown on survey prepared on April 26, 1999, under the supervision of Brad Kerr, RP.L.S. #4502 . (Tract B) 4 . Any cl ai m or right of adj o ining property owner(s) to that strip of land lying and between the fence and the boundary line on the northeast & southwest sides of the property as shown on survey prepared on April 26, 1999, under the supervision of Brad Kerr, R.P.L.s : #4502. (Tract B) 5. Blanket Easement dated January 19, 1928, executed by Southside Development Company to Community Natural Gas Company, recorded in Vo\wne 71, Page 497, of the Deed Records of Brazos County, Texas; as noted on survey prepared on April 26, 1999, under the supervision of Brad Km, RP.L.S . #4502 . p_,. 0 3 4 9 2 0 0 2 3 1 J l i: I f, ., 1: ij 1 -----------------,.. I ,I I,..-••• ._.,_.__.w '1 "• .. ·I .,. t :~ \ .. ... ::.· '· ..... · i> .~-···. ·. 0686978 6. Mineral Reservation in Deed dated June 29, 1984, executed by Charles Lyle Cole and Wife, Ruth Ann Cole, to William V. Milberger and wife, Brenda K. Milberger, recorded in Yoluine 697, Page 402 of the Official Records of Brazos County, Texas. TO HA VB AND TO HOLD the above described premises together with all and singular the righu and appurtenances thereto in anywise belonging unto the said Grantee, his heirs and assigns, forever; and Grantors do hereby bind themselves, their heirs and assigns, to WARRANT AND FOREVER DEFEND all and singular the said premises unto the said Grantee, his heirs and a.ssigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, subject, however, to the exceptions and encumbrances hereinabove set forth . Ad valorcrn truces for the current year have been prorated as of the date of delivery of this deed, and the Grantee by his acceptance hereof covenants and agrees to pay all ad valorcrn truces upon the property from and including truces for the year 1999. WITNESS our hands this the~ day of May, 1999. ERIC LINDQUIST STATE OF TEXAS COUNTY OF BRAZOS This instrument was acknowledged before me on the .,Jg day of May, 1999 by NELL FRAZER LINDQUIST AND ERIC LINDQUIST. RECORDING PAID !'OR BY: UTC 991711 AFTER RECORDING RETURN TO : WARRANTY DEED NELL FRAZER LINDQU1ST AND ERIC LlNDQUlST to NELSON LEE NAGLE Notary Public -State of Texas Notary's Name Printed: ------- PREPARED IN lliE LAW OPFICE OF: HOELSOiER, LIPSEY, & ELMORE, P.C. 1021 Univasity Drive East College Station, Texas 77840 WCUUNDQU1ST .WD (h) 0 3 4 9 2 0 0 2 3 2 / i' ... BIU.. & RETURN TO: LAWVERSlfnECO GF# ~20{f'2.S TllE STA TE OF TEXAS COUNTY OF BRAZOS . ----·--·------------------·-· DEED Of TRl'ST. SECl'RITY AGREE~IE:O.I, fLXTI'RES. fl'.",\."Cl'."G STATDIE:O.I, A."D ASSIG);ME."T Of RE;\IS A."D LEASES (CO~"IERCIAL) OFEO OF TR UST 0697705 A. The Ci nn1 . Kn ow all pcrM>ns. b)' these prcS('nU , tlut in cons 1Jcration of ecru in indcbtcJncu. justly o""i ng b)· ~El.SO'.\ LEE SAGLE. a 1ini,lt p.<non (hcn:in referred 10 a.s -~fon,:2,:or'". v.hclh<f one or more) to FIRST FEDERAL SA\'l'.\<;S BA.'\"~ BR\"A.'&. TEXAS (herein rcfCTTt'J ttJ u -~h'nt::iEcc'"l.. anJ in consiJcn.11,ln l)f the sum of Tm Doll ars ($10.00) and other \"l lu.ablc considcnt11)n p.i 1d to Mongaa:or, I.he: rei.:c1pt anJ sufli.:1cn9 ('If .... h1.:h art" hcrcb) 2c lno"' kJEcJ. ~1ort~2,or hu gnntcJ. a.ss1gncJ , tnnsfC1TCd and con\'C)'Cd , and docs hcrcb)' r:nnt. u.s irn . tn.nslcr a nJ i.:cm\c y un1 .:i STA~ STEPllE!'. Tn.iUC'C (he re in rc fcrrt'd to as the: '"TrustC'(•}. and aho to the Substitute TN.S tec u hcrc1nan.cr prmukJ for(hct't'in rc l(rrcJ to u the '"Suhstttulc TrustC'C'"). a lt of I.he follo ... :mg JeKnbcJ property: . (I I ThJ1 ccru1n rn.t pr"'fX'rty ll'C1 tcJ in On.ros C "'unty. T C\U (herein rcferTtJ to u the ·und·). as more panicubrl)· Jes.cnhc:J u ~•& all tbat urtala 101.. 1ra c1 or p.rctl or land siluattd ia Brazos Count~·. aad kao•• •• briaa LOT T\\'[L\'E·R (tlR). BLOCK "'C"\ Rtsl .HDIVISIO~ OF COLL[C[ PARK. an addition 10 thC' Ci~· ofColltt.t S utiOlll Bruos County. TC'US.. aet'Ordieato llt.C' Amudinc Plat rtt0rdtd la \'olumr JS~. f'air 181. Ottd Rttords or Bruos Couat~·· Tnu. togcthcT •i th all a ppurtenances lhcrtto a.nd a ll nJhl. llllc and in\.C'rcst (tnduJm g in~· rt\er\11.>ni.ry in:crcst) no"' anJ or hc:rc1!1C'f O"'Tied . cbnn:J. hc:ld CM' acquired by Moniagor, its tUCCC'UOn and usipn, in and 10 (1) the "'hole or ;i;ny p111 o f the i bo\e Jcs..:ribeJ U nJ (1ncl udm1-all m m cnl nihu and interes ts or Mon1-1gCM' rcbting t.hcrcto). anJ:or (it) any cU.Cmr:nlS . 'vl.i )S. i llC)S, nr.hU of ingros i nd e if'eSS ;i;ppuncninl 10 I~ Und, a nJ. CM' (Iii) any and all itnps Of lM\d a.dJ 0 1nm1. adpcent and.'or contiguous to the: Lind inJ or(\\·) 1ny street o r r01J adJi Ccnt and. 'or con11guous to the Land; (:?) All bu1ld1ngs i nd other impro\'emcnts no •· or hercilkr plic ed on s.i id Land. u "'·ell as all appuncn.ancn. bencnnenu and adJ11ioru lhc:Ttto : al\ ind s1ng ul u lhe n th ts . prinlcics, hered1umcnu. anJ a p pun.cninces many ""is.c incident or 1ppc:TU1n in1 lO si1d Land and 1nvro' el"l'IC'flts. incluJ1ng. ""'lhout hm1Ul1 o n. i n) inJ <111nj!:hlS 10 !he present or future ut.e of ""'UlC •~IC'f, ""·ul.C' 'vi.al.cf cipacity, Jnmage. """Uf of olhcr u11hty faci h11 es to the e\tent umc pertain to o r bcncfi 1 siid Lind or the 1mpro,·emrnts loci led thereon. includ1n1 without hmatattOn all rcSCT\·a11ofu of or comm1tmenu ?" kncn co,cnng ;i;ny suc h us.c in t he future. ""hcthCT now 0""Tied or hcrcilkr acquired; and 0 1 A ll fom11ur c . fi\tures. cqu1rmcn1. pcrwn:.il prnpcrty, books. records anJ files belonging to Mortg;i;gor and no v.· or heTCa llC'f or from time to timc s 11Ul tcJ o n or 1n o r used 1n connec11on ""1 th u 1d Land inJ 1mpro,·emcnu."" hclher or not a lliud to I.he ru\ty, includ1nf:, bu1 not limited 10, hJhlmg. hnt1ng .' cn11b.t1ni. ;i;1r cond111om n1-. srnnklinJ. mcc tun1cil i nd plumbing tT'l3tc:Tials,'li,turn ind equipn'C"llt ; ""aur anJ pov. C'f 1ys lCfT'tS : cngine1. 001lcf'l . (umil.'.cs : clc' ators; motors: rc ~ngcnt 1o n : pL1nu, a"'Timgs ; shn.ibbcry ; ranges; o\·cns; refngcnton; d1sh-.-uhcn; d1s;K>ul1; cirpcllng; anJ s"'1mmm1-pool e quipment. and ill i 1\c1-acqu1rcd pro pcny in t he s.ime catcgoric1 (all of s.iid propicny and rii.hu. dC'SCTlbcd in Subpirignphs (I) throu gh()) aOO H :.in: hCTC ini Oa c ollcc t1\·cly rderttd to hcn:in as the ·rropcn1C"S·)_ TO HAVE ASO TO HOL D the Propcmes unlO the Tn.istC'C and also unto the Substitute Trustee, and the as.s igns of the Tn.istcc or Substi tu te Tru stee. i nd ~t onpj!:or docs here by bind ~t onr:it or ind the heirs. leiit reprcscnu11,·es. succc-ssors a.nd usigm or~t <>f'1g iior to 'vl.unt\\ and fo re, er ddcnd ;i;ll :.inJ sin gul ar the P'f\)pcnies unto the Trustee anJ ilso un:o the Substitute Trustcc, and u nto \he u.s1gru. of the Tn.altt or Substitute Trusttt, i nd it.1ins1 e'ery pen.on or pvty "'homsoc,·Cf cliim1ng or to cliim the s.imc, or any part t.hcrrof. B. The lndeh 1edncss . This con,·e )·ance is made in trust , howe\·C'f , to s.ecurc the performanc e of all covrnanu a.nd agrcc-mcnu contained in thi i instrument o r ;i;ny other m strurnc nt neculcd in c omicc1i..:>n hcrc"'ith Of as s.ecu ri ty fCM' the note hcrcin des.cnh<\1, and the full a nd pronvt paymcn1 a nd pcrformanl.'.e .... hen due (by l1pse or time or olhcni.isc~ of the follo"'ing indebledneu (herein rcfCfTC'd to a.s the ·1ndcbtedncu·): (I) An) i nd ill sums. including pn nl.'.1pal . mt.crest. opens.cs, prepayment penalties. court costs and a1tomey'1 fC'Cs , cilled for in dat cCTU in note (herein called the ·sotc·) o re' en dite hcTc"'ith e\ecutc:d by Mons.igo r payable to the order of MortgagC'C, in the pnnc1pal a.mount of SEVE~TI' TltOl SA. ~O A. ~O :'\01100 l>OLLARS (S i 0 ,000 .00). bearint tnlCTC"it at the n.tc and being due and piyible as t.hcrcin sutcd, at the address listed hc:rcm for M~ng1~ee o r cls.c"" hc:Tc a.s the ~t ong ;i;~cc or holder of U-.e ~ote TN)' d irect. conuininJ pro\·•sions for inlCT'C'St a1 the rite lherc:tn sutcd on the entire un p1 id amount o f principal a.nd in ten: st"" hile any Jcfault col'llinun lhcrcundCf, and f'>r accclcn11on of maturity and the collec1ion or anomC)·s· fees under ceru1n c ond111o ns . rckrcnc c to the !'o tc be ins here made for all purposes; the schcdulC'd marwity d.ite of the No te being ~hrcb I, 2000 , (2) All sums. including ~nn cip ail , interest. et.pcnscs.coun costs., a n.ome y1' fC'C"S,and pt'C'l).J.ytnC'Tll pcnaltin, if an y.called for in any note or olhcr instru rncn1 representing. m "'hole or in pirt. a ~e~·al, c'1ens1on, mod1fica1ion or rci.rnngC'mcnt of the lrwkb:.cdncs.s ; it bcin& agJ"C'cd.. however, Uu1 Mongi gcc u under no ob\ig;i;t1o n to n:new, cx1cnd or re11T1t\ge said Indebtedness; and (3) A ll sums i nd ·or oblii;i;tions o"'ing b y Mo:igi!or to Monr:igcc o.-olhctholdCT'(s)of any pan of the tndcbtcdncu punW.111 to the tcnnl and pro\·isions of 1h1s D«J of Tn.ist. Sc..:un1y Agreement. F1\l urcs Finincing Sute~t and Auignmcnt of Rcnu and lcUC1 (herein refC'IT'cd to as this ·0ccd of Trus1·). :u sci forth hercinbclo w , or any other instrument now or hanf\.cr s.ecunng any part of the lndcbtcdnes.s . (4 ) All olhcr debu of eve ry ki nd a nd ctuncur now orhcrcif\.a o ..,ingby MortgagCM' to the Mongagcc whclhct 1uc h debts be C'\'Hknccd by v.Tittcn instrument or not 1nd ""hcthcr lhey be d irect o bligi ti ons arisin g out o f a JUlnnty, cndorsc:mcT'll. surctyship Of ol.hcrv.ii.c, or -.hc:thcT !hey be JOint. i.c "cr.al or 1ndir«1.. and "'·hcthcT thc:y wCTC hcrt:tofore or arc hcreir.cT purch.ucd °' othcrv.isc acquired; (S ) Any ind all tC'ne v.<1.l s and extension s of the a bove. C. Rm"(dies nf ~fong :1gee . 1f1hc Indebte dness is full y pa id and performed a.und -·hen the s.imc b«omcsduc,and ifall ofMongagor"1 CO\'C"n1t\U m d i g:c em:nu here in 11c lully kept and performed. then L~i1 con\·cyance stull thcrcupon become: of no funhcT force and effect 1nd shall be released by ~t ong agce o r other holdcr(s) or I.he lndebtc:dneu upon the v.Tittcn request and at the upcni.c of Mortgigor. But in cue lhcrc occun any defaul t 1n the p.;i;ymcnt o f the Indebtedness. in ""hole or in part, as and v. hen the same is or becomes due, in •·hatevn ""'1.Y the ma turity lhc:Troo may be broug.h1 i bout. or if there stull occu r any othcT fa·cnt of Default hcT'eun der (u hcrcinaif\C'r defined), then MortpgC'C may, at iu election by or through Trusl« or othc""'isc, exercise 1nY or all of the follo"'in g ri&hU.. rcmcdin and rccouna: (I ) Acce 1cr.a tion of !:'ldchtcdncss. Mongigee may declare the enti rety of the lndebtedncu, inc.)uding the Note herein dC"SCTlbed and all principal, accruec! intere st. cou n costs ind ;i;ttom cys' fen l'icnundcr, irrrncdiatdy due and/or payable, ..,ilhout notice of intention to accelcntc, notice of accclcr.ation, presentment. protest. demand or action of any natUTC whaUocvcr (~h of which hicrcby i1 nprculy W1ived by M ortpior) ""hcn:upon the s.imc shall become invnc:d1 itcly due U\d paj ible; (2) Monugce's Righi 10 Possession . Monpgec may enter upon the Propcrtin and take exclus ive poucukln lhcTeof and of all booU. records and accounu rc l;i;t1n g thereto. I ( ~t o ngator rcnu1ns in posscuion of all or any p.art ollhc PropcrtiC"S after an fa·ent of Default a.nd ""ithout Mo rtgagee's pri or ~Tin.en consent there to , it 1hall be considCTCd a tcnanl at 1ufTcnnce, and Mortpgcc may in''oke lt'I)' and all legal remedies k> d isposs.cs.s Mongigor, including spccific illy, one CM' more actioru for forc ible cnrry and dcuinCT, trttp.us to rry ti lie and writ of mututi on. Nolhin& conuincd in the foregoi ng i.cntrnce 1hall. howc,,er, be construed to impose any gra.tcr obliption or any P"Cf'C'qu i1iLe1 to acquirina poucuion of lhc Properties al\cr an E\·cnt o f Default th.al ""·ould have existed in the abi.cnce of •uch a.entcnc:c; (3) Mortv 0 ec's Righi lo Mina ge. M onsagcc may hdd, leuc, man.ace. opcnt.e ()('otherwise use CM' pcnnit the use o( the PropatiC'I.. e ither by iu.clf or b y other pcrs.ons, firm1 o r cnlities, in such manner, for such time and upon 1uc)l other kTmS u Mortgagee may dttm io be prudent and rea.son.ahle under the c ircumsunces (making such repa irs , altcntiom, additions and improvarcnu lhcttto and ta.Jung any and all other action wilh reference thereto , fr om time to time, as Monpgcc 1h.ill deem ncccsury or desirable). and apply all rents and Olhcr amounts cotkc1cd by Mort.pace in conn«lion thcrcv.ith in accon1.ince ""ith the provi1ioru govcmin& appliu.tion of proecc:d.s K1 for\h hcrtin ~ (.() ~clofiurc . Mortgagee nay s.cll or offer for ulc the: Propcrtia tn such portions. order and parccll u Mortpsoc ~Y dc1crmine, with« without vmg int t.akcn posKUion of the ume, io the highest bidder for c.uh at public auction. Such u.J.c ah.all be made at the courthou.tc door orlhc C°"'"Y whcrc:in the Land (0< any ofth&t po<tioo lh=<>rio b< oold) ii 1itu&l<d (whclhcr the puu ""parcels lh=<>r. if any. in d.!fcm\I counties arccontisuow or not. and withoot lhc nec:csi ity ofh.avin1 any pcnona.I property hereby rnort.p&cd prumtat s.uc:h ulc)on the (tnt Tuesday of any rronth bctwccn \he houri of 10:00 a..m.. and .(:00 p.m. a.l\.cr postin1 a "'1iacn or printed notice OC' notices of the place, time and icm. of lhc &&le oflhc Propcnics '"' rwcnry-ooc (ll)c!al" prio< so the c!a1< oflhc &&lc &t 1hc: counhow< door of the county in ...rucli 1hc: &&le ii sob< n-.dc and &t 1hc: counhow< door of any other county in which• portion of !he Propcnica n.y be oitu&tcd and fllins a copy o( IUCb no<icc(•) in lhc olf1CC ol IDW:lp FFSl.\Hoc:lc OT.COW 9'-ISll -1- 0 3 6 1 4 0 0 2 0 5 -·-·-~ ... ~ .... , __ ........ ,_.::;:, l .. ·'-""'~--.. -·-----.... ----~·-•·"--·-' ·l ,, .. 1. : 0697706 SPECIAL WARRANTY DEED DATE: September 17, 1999 GRANTOR: ALI.lSON NAGLE, a single woman Grantor's Malling Address (including county): 600 Welch Avenue College Station, Brazos County, Texas 77S4-0 GRANTEE: NELSON LEE NAGLE (also known as Nelson Nagle) Grantee's Mailing Address (including county): 510 Dennis Drive Roun<lrock, Williamson County, Texas 78664 Consideration: I Ten and No/100 Dollars ($10 .00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by Gram or. Property (including any improvements): All of the Grantors undivided right, title and interest in and to the following two tracts in College Station. Brazos County , Te1'as : TRACT I: Being a 786 square foot tract all tha! certain tract or parcel of land lying and being situated in College Station, Brazos County, Texas, being a portion of Lots 10 and Lot 11, Block "C", Rcsubdivision of College Park. according to the Plat recorded in Volume 107. Page 151 , [ked Records of Brazos County, Te xas, being more fully described by metes and bounds on Exhibit "A" attached hereto and incorporated herein for all purposes. TRACT 2: Being a 103 square foot tract all that certain tract or parcel of land lying and being situated in College Station. Brazos County, Te xas . being a portion of Lot 11, Block "C", Rcsubdivis ion of College Park. acc ordi ng lo the Plat recorded in Volume 107, Page 151. Deed Records of Brazos County, Texas . being more full y described by metes and bounds on Exhibit '"B" attached hereto and incorporated herein for all purposes . Reservations from and Exceptions to Conveyance and Warranty: (1) Restrict ions shown on Plat recorded in Volume 3558, Page 181, Official Records of Brazos County. Te1'as, and a'ddi'tional restrictions recorded in Volume 111. Page 197 and Volume 124, Page 522, ooth of the Deed Records of Brazos County , Texas . · (2) Bu :lding lines and easements reserved on Pl at recorded in Volume 3558, Page 181 , Offi cia l Records of Brazos County, Texas . (3) Building lines and easements set out in restri ct ions recorded in Volume 111, Page 197 and Volume 124. Pa ge 522 , both of the Deed Records of Brazos County, Te xas . (4) Easement executed by Southside Development Company to Community Natural Gas Company, dated January 19 , 1928, recorded in Volume 71, Page 497, Deed Recor ds of Brazos County, Tex as . 0 3 6 1 4 0 0 2 1 4 , i I I / 1· i • . .. -·----·-.. -----·-··-=---~-~--· --~· 0697706 --· 1 ~ -~-----------·-··. I (5) Mineral reservation contained in Deed executed by Charles Lyle Cole and wife. to William V. Milberger and wife. dated June 29, 1984, recorded in Volume 697, Page 402, Official Records of Brazos County, Te_xas . (6) All oil. gas and other minerals , together with the rights of ingress and egress for developing . mining. prod ucing and transporting the same, heretofore reserved or conveyed by predeces so rs in title . Grantor, for the consideration and subject to the reservations from and exceptions to conveyance and warranty, grants, sells and com·eys to Grantee the Property, together with all and singular the rights and appurtenances thereto in anywise belonging, to have and hold it to Grantee, Grantee's heirs, executors, administrators, successors, or assigns forever:. Grantor binds Grantor and Grantor's heirs, executors, administrators, successors and assigns to warrant and forel·er defend all and singular the Property to Grantee and Grantee's heirs, executors, administrators, successors, and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, except as to the reservations from and exceptions to conveyance and warranty, but only when the dalm ls by, through or under Grantor and not otherwise. When the context requires, singular nouns and pronouns Include the plural. ST A TE OF TEXAS COUNTY OF BRAZOS § § § Thi s instrument wa s acknowledged before roe on Alli so n Na gle . COLLEEN M. GO ODPICH Not.,.., Put•:ic . SI<!• ·1" T eus My Cc,r;,r.11ss 1:<1 &;!res IAAR CH 1, 200 2 PREPARED JN TH E LAW OFFICE OF: BRUCHEZ. GOSS, THORNTON, MERONOFF & HAWTHORNE , P .C. 4343 Carter Creek Parkway , Suite 100 Bryan, Texas 77802 File Number : 99-1344 :WST/tgs AFTER RECORDING RETURN TO : LAWYERS TITLE COMPANY OF BRAZOS COUNTY 1673 Briarcrest Drive, Suite 104B Bryan, Texas 778(12 2 ------:-~----·--· 0 3 6 1 4 0 0 2 1 5 I •; . r ' [ I' f r t' l ~· I I I ! i f i '· I ~ \ 1 I f -··. ~- : .. 0697706 TRACT 1 EXHIBIT "A" METES AND BOUN DS DESCRIPTI ON OFA 786 SQUARE FO OT TRACT P ORTION OF L OT 10 AND LOT 11, BLO CK C RESUDDIVISION OF COLLEGE PARK COLLEGE ST A TION, BRAZOS COUNTY, T~ METI:S AND BOUNDS DESCRIPTION OF All THAT CERT.Arn TRACT QR PARCEL OF LAND LYING AND BEING SITUATED IN COLLEGE STATION, BRAZOS COUNTY, TEXAS. SAID TRACT BEING A PORTION OF LOT 10 AND LOT 11, BLOCK C. RESUBDIVISION OF COLLEGE PARK, ACCORDING TO TilE PLAT RECORDED IN VOLUME 107, PAGE 151 OF THE DEED RECORDS OF BRAZOS COUNTY, TEXAS. SAID TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS : COMMENCING AT A 518 INCH IRON ROD FOUND IN·' CONCRETE AT TilE INTERSECTION OF THE SOlffHWEST RIGHT-OF-WAY LINE OF WELSH A VENUE (ALSO KNOWN AS "WELCH AVENUE"· 62.5' R.O.W.) AND THE SOUTHEAST RIGHT-OF-WAY LINE OF FIDEL TY STREET (50' R.o. W.) MARKING THi:: NORTH CORNER OF SAID LOT 10, FOR REFERENCE A lf2 INCH IRON ROD FOUND ON TilE SOlTTHWEST LINE OF WELSH AVENUE 1'1ARKING THE EAST CORNER OF LOT 12R, BLOCK C, ACCORDING TO THE MfENDING PLAT OF Tt-IE RESUBDMSION OF COLLEGE PARK RECORDED IN VOLUME 3558, PAGE 181 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY , TEXAS, BEARS : S 48° 02' 26" E FOR A DISTANCE OF 129 .03 FEET; THENCE: S 48 ° 02' 26" E ALONG THE SOUTHWEST LINE OF WELSH A VENUE FOR A DISTANCE OF20.5 3 FEET TO A 518 INCH IRON ROD FOUND MARKING THE POINT OF BEGINNING OF THIS HEREIN DESCRIBED TRACT; . t THENCE: S 42° 25' 19" W THROUGH SAlD LOT 10 (107/151) AND ALONG THE EXTENSION OF AN EXISTING CHAIN LmK.FENCE FORA DISTANCE OF 117.31 FEET TO A 518 INCH IRON ROD FOUND ON THE CO MM ON LINE OF SAID LOT 10 AND A 15 FOOT WIDE ALLEY, FOR REFERENCE A 318 INC H IRON ROD FOUND IN A 1 INCH IRON PIPE ON SAID COMMO N LIN E BEARS : S 48° 01' 24" E FOR A DISTANCE OF 110.39 FEET; THENCE: S 48° 01' 24 " E ALONG THE COMMON LINE OF SAID LOT 10 AND SAID ALLEY FOR A DISTANCE OF 36 .36 FEET TO A POINT ON TilE SOUTHWEST LINE OF SAID LOT 11 MARKING A COMMON CORNER OF LOT !OR AND LOT l IR (3558118 1); THENCE: THROUGH SAID LOT 11ANDLOT 10 (107/151) AND ALONG THE COMMON 99-1 ll.l l"O I .EXHI BIT 11 A11 -. -1 I l I 0 3 6 " 1 4 0 0 2 1 6 .. ;'.~ ,· I ·~~: '.6~·!, ···~·ir-···· r .,. . .\ :~; : I ·<.t~; ·./J#~ ::··;.~·· . ·,:;~:r;f ·:~£~ -~· ... -.. · ~-· . t ··--."-:: .. -·. -··-----.:----·-·-·- 0697706 TRACT I EXHIBIT 11 A11 LINE OF SAID LOT !OR AND LOT I IR (3558/ISl)FOR 1HE FOLLOWING CALLS: N 41 • 30' 0 I" E FOR A DISTANCE OF 5.00 FEET TO A POINT; N 48 • 0 I' 24" W FOR A DISTANCE OF 30 .00 FEET TO A POINT; N 41" 30' 01" E FOR A DISTANCE OF 112 .32 FEET TO A POINT ON 1HE SOUTHWEST LINE OF WELSH A VENUE MARKING A COMMON CORNER OF SAID LOT I OR AND LOT 11 R; THENCE: N 48 • 02' 26 " W ALO NG 1HE SOUTHWEST LINE OF WELSH A VENUE FOR A DISTANCE OF 4.47 FEET TO IBE POINT OF BEGTNNfNG CONTAINING 786 SQUARE FEET OF LAND MORE OR LESS AS SURVEYED ON THE GROUND APRIL, 1999. BEARING SYSTEM SHOWN HEREIN IS BASED ON GRID NORTii AS ESTA.BUSHED FROM CITY OF COLLEGE STATION OPS MONUMENTS . BRAD KERR REGISTERED PROFESSIO NAL LAND SURVEYOR No. 4502 D:\work\99-l 122A.mab EXHIBIT "A" t9-ll 2l l'02 1· .:I 0 3 6 1 4 ·0 0 2 1 7 ;1 ll ~ t '·: I . .·, TRACT2 EXHIBIT "Bu METES AND BOUNDS DESCRIPTION OFA 103 SQUARE FOOT TRACT PORTION OF LOT 11, BLOCK C RESUBDIVISION OF COLLEGE PARK COLLEGE STATION, BRAZOS COUNTY, TEXAS 0697706 METES AND BOUNDS DESCRIPTION OF ALL 11-IAT CERTAIN TRACT OR PARCEL OF LAND LYlliO AND BEING SITUATED IN COLLEGE STATION, BRAZOS COUNT'(, TEXAS. SAID TRACT BEING A PORTION OF LOT 11, BLOCK C, RESUBDMSION OF COLLEGE PARK. ACCORDING TO THE PLAT RECORDED IN VOLUME 107, PAGE 151 OF THE DEED RECORDS OF BRAZOS COUNTY, TEXAS . SAID TRACT BEING MORE PARTICULARLY DESCRIBED BY .METES AND BOUNDS AS FOLLOWS: COMMENCING AT A 518 INCH IRO N ROD FOUND IN CONCRETE AT THE INTERSECTION OF THE SOlJI1-IWEST RIG ITT-OF-WAY LINE OF WELSH A VENUE (ALSO KNOWN AS "WELCH AVENUE" -62.5' R.O.W.) AND THE SOUTHEASTRIGITT-OF-WAY LINE OF FIDEL TY STREET (50' R.O .W.) MARKING THE NORTI-ICORNER OF LOT 10, BLOCK C, FOR REFERENCE A 112 INCH IRON ROD FOUND ON THE SOUTIIWEST LINE OF WELSH A VENUE MARKING TI-IE EAST CORNER OF LOT 12R, BLOCK C, ACCORDING TO THE AMENDING PLAT OF THE RESUBDIVISION OF COLLEGE PARK RECORDED IN VOLUME 3558, PAGE 181 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS, BEARS: S 48° 02' 26" E FOR A DISTANCE OF I29 .03 FEET; THENCE: S 48° 02' 26" E ALONG THE SO UTHWEST LINE OF WELSH AVENUE FORA DISTANCE OF 75 .0 1 FEET TO A 518 INCH IRON ROD FOUND MARKING THE COMMON CORNER OF SAID LOT 12R AND LOT l lR (35581181) AND THE POINT OF BEGINNING OF THIS HEREIN DESCRIBED TRACT; THENCE: S 41° 30' 01" WTI-IROUGH SAID LOT 11 (107/151) AND ALONG THE COMMON LINE OF SAID LOT l lR AND LOT 12R FOR A DISTANCE OF 14 .06 FEET TO A 5/8 INCH IRO N ROD FOUND; 0 3 6 1 4 0 0 2 1 8 THENCE: S 22° 16' 47" W CONTINUING TI-IROUGH SAID LOT 11 (107/151) AND ALONG .. THE COMMON LINE OF SAID LOT l lR AND LOT 12R FOR A DISTANCE OF 14.38 FEET TO A POINT MARKING THE SOUTHWEST CORNER OF TIIlS HEREIN DESCRIBED TRACT; THENCE: N 42" 12' 06" E CONTlNUING TI-IROUGH SAID LOT 11 (107/151) FOR A 99 .1122 re 1 EXHIBIT 11 8 11 . ' -------------~---~··-·--------~--------------- .. ' I If. , .. >.-~---___ .: ___ --.,.. ~ ... • ·' 0697706 .EXHIBIT II B II TRACT2 DISTANCE OF 27.60 FEET TO A POINT ON 11IE SOtmfWEST LINE OF WELSH A VENUE; THENCE: N 48 • 02' 26" W ALONG TiiE SOUTHWEsT LINE OF WELsH A VENUE FOR A DISTANCE OF S.07 FEET TO THE POINT OF BEGINNING CONTAINING 103 SQUARE FEET OF LAND MORE OR LESS AS SURVEYED ON THE GROUND APRIL, 1999. BEARIN'G SYSTEM SHOWN HEREIN JS BASED ON GRID NORTII AS ESTABUSHED FROM CITY OF COllEGE STATION OPS MONUMENTs . BRAD KERR REGISTERED PROFESSIONAL LAND SURVEYOR No. 4502 D:\work\99.1122B.mab EXHIBIT '.'B" .. ) Fi/rd f or R~rd in: »llOS CIJ.Jm', 0 011 S.p ZJ, 1999 •t ~:IUW /ls • Rtcordinqs Docu.nt ~, 16177'1(, llr owit 16." Rtetipt llv1brr -1~ By, Silvi• Pol •nsk1 0 3 6 1 4 0 0 2 1 9 :! l · I ; L L •' 1. ! I I j i i; _< ~ ' •, /.· f ,, BIU.. & RETURN TO : LAWYERS 11TLE CO GFlt 5Z...Ovt..f8 DEED OF TRt;ST, SEC\.'IUTY ACRJ:EMCNT, n xn:iu:s. FL'1A.'1CL'1C STATC'.\IEST. A.'ID ASSICS~IC.'<T OF RE.'IS A.'ID LEASES 1llE STA Te Of TEXAS COl.INTY Of BRAZOS (CO'.\l;\IERCIAL) PF.F.P OF TRUST 0697707 A. ~-Know all pcnoru by 1hnc pret.ents, \hi.I in coruidcntion of cCTUin i~. justly 0Mn1 by S£1.SOS LC£ NAGLE.• olo&I• pcnoo (herein n:(cm:d ID u "Monsas<><". •·hcth<T <>n< 0< mon:) ID FIRST FEDERAL SAVL'ICS BA.'IK. BRYA.'1, TEXAS (hcTc'1n rc(CTT'C'd to u "'Mortp.&C'C "'). and in considcnuon of the JUm of Ten Dollan (SI0.00) and al.her valuable coru idention paid co Monpgor, the rcccipe and s.umcicncy of,., h1ch arc hereb y ackno,.,·ltd1ed. Mortg21or has gnntcd . u.siincd. tnruferrcd and conveyed, and does hereby gnnt. usisn. tnrufC'f and con,·cy unto STAS STEPIH:'..S , Tnut« (herein rcfC'TT'Cd to u the rrrustcc•). and also to the Substitute Trusl.CC u hcrcinaf\c-r pro..-ukd fof' (herein ref~ to u the "'Subsututc Trw.tcc"'), all of the folio"''"& dn.cnbcd property : (1) Tluit ccruin real propcny loca ted in Oruos Coon ty, Tcu.s (~in rcfCTTcd \Ou the "'Land"). umottputicular,ydctaibed u btl•& •II thal cmal• \ot. tru1 •r pare~ er land dtuttd la Bruos Couaty. ud koo•a •• bd•& LOT TES·R (IOR). BLOCK "'C"\ R£Sl "BDIVlSIO:"' OF COLLEG[ rAR~ u a dditlo• to tb~ City ofColltc~ Su11oa Bruos Counfy. Tuas..ucordln& to tbt Amtndlnc P1at rttordtd la Vol1.1m~ JSSI.. hs:~ 181, Dttd Rn:ordt or Bruos Couat~. Tnu. to~ethcf 'll>llh a ll a ppurtrnances thcTt-to and all ngh1. title a.nd tnl(T"(U (1n.;luJ 1n t any re\eN1tln.1ry 1r.tc reU ) w w a.nJ. or hcr.:.>.1\c:r o"'"ncJ. cl a1mcJ, held or acq uired by ~fortg 2g o r , iu succcssori and assigns. in and to (t) the ""h.Jlc Of any p.u1 o f the at)(,)\c des.i..-nbcd La.nJ 11ncludtng all mincnl nghu and int.crests of ~t ongJigor re lati ng thc:Tt"to), a.nd.:o r (11} any uscmcnu. ""a ys . alk)l. nghu o r 1ngreu and egrcu arpunrnJi nt 10 I.he La.nd, and. or (111) any and all stnps o f \a..'ld adJOtn1n g, adJacrn1 and.i Of coouiuou.s IO t.hc Land and or (1\·} an y Ur'tel or roaJ M!Jacen1 anJ. or conuguou.t IO lhc: La.nd ; (1) All buil d1np and olhcr 1mpro \cmc-n u no w or hc-rcaf\cr placed on s.a 1d Land . u •ell u all appurtenanc es . bet\cTmc"nts a.nd add ition' lhcTcto ; all and sing ular the nghu, pn\ 1leges, hercd1 umc:nu. and appurtt'nanccs many •1'4: mc idrntor appcruinm g to s.a id Land and imprO \'CmcnU. incluJms. •1thout li rru u11on , any &nd all n,_hu to the prncnt or fu1ure u.sc of ,.utc "'.J.ICT, "'Ut.c "'atcr c.i.pa.:-11y, drainage, ..,..at.cT of othCf utihcy fac1 l1tics to the ntent umc pcruin LO or bcnd i1 u 1d LanJ o r the 1mpro \cmcnu loc ated thereon , 1nc lud1ng "'ilho ul li m1uoon all rcsc:n·ations o( or comrrutmcTIU Of lcuen CO\cnng any such UK m the future , "'hcthCf no .. · owned o r hcTc.>.l\cT .a.cqu tr ed ; and l ()) All furn11urc, fa lure,. e4u1;imcn1 , pcnon.i.1 pro perty, book.s. records and liln belonging to Mong2go r and now or 1-im:af\cror fro m lime 1011mc situate d on or 1n oruscJ m conncc11 o n ""'1th »1d UnJ anJ 1mpro \emcnu. ""'hct hCfor no t afliJ.eJ to the rcalty, 1nclud1ng , bul not hmit.cd to, l1gh11ng . he at1n,:. \ en11l1.t 1ng. air conJ1t1on1ng . 'pnnll1ng, mcctun1c al and plumbing matcnals, fi ,ture ' and cqu1pmcn1; "'"J;l.cT and power systems; c-n11nes . bodm. fuma.c cs: elcuto n , m:>tori, rclngcnl1on : pl2nu. l \toTi lngJ; shrubbery ; nnges: O\ens; rcfngcn to", d1sh.,..uhen ; d ispoult; earpc1 1n 1 . &Ji J t""'1mm1ng pool eq u1pmcnt. &Jid 1.ll .>.(tcr ·ai.:q u 1rcd prupcny 1n the umc c2tegones (all of u1d p ro perty and nghu dcKnbcd 1n Subp.J.nt;:raph.i ( 1) through (J) a bo\e arc hcrc 1n.i.f\cr coll cC ll\·e ly rcfencd IO hcmn u the "1-"ropcrt1es "). TO HAV E ASO TO llOLD lhc Pr opcnics unw the Trustee and als.o un to the: Subihtut.c Trustee, and lhc: usigns of the Trus1cc or Substitute Tnatcc, &nd ~t ortg a g1Jr J ocs hereby bmd ~t o ngJigor anJ the he 1n, leg;il reprcscnl.Jltl\"CS, s ucc essors and us1gn s of~tong.>.g or to v.arnn1 and forc\"Ct dcfCT\J all anJ smgul .>.r the PT o pcn1es un lO the Tru\lce a nd also unto the Subs11 1ute Truslee, and unto lhc: ass igns of the Tnatee or Subn1tute Truitec. a.nd 1g;i uu1 e\CT)" person or p.uty ""homsoc\cr cl.>.mung or to cl.iim lhc s.amc , or an y p.J..rt thereo f. 8 . The fnd(~lednc\J Th rs con\·e)"&n CC is mJ.dc in trust. ho"'C' CT, to s.ccurc the pcrfomunce of alt CO\·en.>..nu and agrumcnu contained in th is instrumcnl or any other 1Mtrumcnt nei.:u1ed 1n conn«Uon hc-rc"",th or u K cunty for the note herein dc scnbcJ. and the fu ll an d prompt p.ymcnl and pcrforrN.n Ce .... hen due (b y (.llh< o r time or othc:rv. is.c) or the follo ,.1ng indebtednes.i (he-rem rcfcrrcd IO U the "i nJcbtedneu"'): (I) Any and all sums , incli.MJ1ng pnnci p.21 , interest. upcnsn. prcp.>.)"TT'ICT\t pcnaltio, court co su and attorney's fen , called for in th.al cctUin note (hcTc1n callcJ thc "!'\o te") of C\cn d.>.le here""' u h necutcd by Mong1gor pa)·.>.bl e l.O the ordCf of Mong.>.gee, in the pnnc ipal amount ofS[\'[:\TY TllOl"SA.'iD A.'iO :'\011 00 DOLLARS (S70.000 .00), be.J.11ng interest at the Bte and bemg due and p1 yable u therein SUlC'd , 11 the adJreu luted herein for Murtg ;i ge c Of dK"' here u lhc Mo n g.>.£« or holder of the r-;olC' ma y d irccl. conuinmg pt0\'1S1 ont for interest al the BlC' lhctc1n sUt<d o n the rnurc u np 31J amoun l of pnnc1pal and mtcrcst "'h1l e .>..n y de f.l ull continues lhc rcundcr, and for accclcnt 1o n of mJ.tunly and the co11 C"CllCl n o ( attorneys' fC'Ct u ndCf ecru.in conJ1uons. reference to the Note be ing here made for all purpos.cs ; the scheduled malunty date of thc Nok being :--Jareb I , 2000, (2) All 1ums, includi ng principal, int.crc"'tt. u pcnKs, court cosu , attomC"")'f fees, and p«p.a.ymcn1pen.>.h1cs ,1f .>..ny , call ed for in &ny note or 01hc-r instrument rcprcKnt1 ng. tn .... hole or 1r. p.J..rt . a rt"ne .. al. e1.1cn uon, modification or tcUT2J"L gcmcn1 of the lndcbtedncu; it being agreed, ho""'c..-CT, I.hat M"ngaiC""C is unJCf oo oblig ;i t1on to renew, u lC'nd or rurr...n1e u 1d lnJebledncu; a.nd (.})A ll sums and.'orobltgat1 o ns o .,..1ng by Mortg;igOC"to Mo ngagccoro1hcrholdCT{s)of any put o f the Indebtedness punu.anl lathe lC'1Trd and pro'Yiuons of thi s Deed of Trull. Sccunty Agreement, fu1urcs Financin g Sutemcnt and A..u1gn mcn1 of RcnU an d Leu.cs (herein re fCTTcJ \0 u th11 "Dct-d of Trusl"). u sci fon.h hcrc1nbclo .... , or any olhcf mstn,urcnl now or hcruf\cr s.ccunng .>.ny p;irt of the lndebtcdneu. (.C) All olhcT debts o f e,cry \:mJ And ch.aractcr now orhcrcaf\c-ro""·ing b y Mortgagor to the Mortg1gee whcthct suc h dcbu be e 'Yidrnccd by •nttcn tnstn.1mcn1 or no t anJ "'hcthct thcy be d1rccl o bhg.>.t1 ons vising out of a guan.nty. cndon.cmcnt.. s urcryship or o~isc:. or ..,..hethct they be joint. K"\CTII °' inJ1rcct. and "'hclhcr I.hey .,,.crc here tofore or &rt: hcrcaf\c-r purchucd or o~isc: a.c:qu1rc d ; (S) Any and all rcnc.,,.ah and cx tcnsioos o ft.he abo\·e. C . RemcJ1es o f Mongn«' Hthe lndcbtcdncu is fully pa id and pcrlonncd u and when the s.amc becomes due , and if all ofMortgago(1 CO\'m.&nU and 2gr ccmcn u hCTcin uc fully Le-pt and performed , then th1tcOQ\e)"&nec sh..J.ll lhacupon be-t o r.le of no furt.hcT forc e and effect and shall be relcucJ b y Mortg agee or other htl!Jcrt s) of lhc: Ind eb tedness u pon lhc ""'Ti n.cn rcquc.st a.nd al t.hc C'4pc-nK of Mongago r. But in cue there occun any dcf.>.uh tn the p.>.ymcnl of lhc: lnJebt<Jncu. 1n .... hole o r in pan. u and •hen lhc umc: is or beco mes due:. i n ... h.>.tc 'Y er .... ay the mJ.lurity lhcTton ma y be brou gh1 a bout. Of if there: sh.all o..:i.:ur an y other E\rnt of Defau lt hc-ttund cr(u hcrci nar\cr defined). then M ortgagC""C nuy, at iu election b y ot thr"l>u1h Truit« or otheN i'4:. eurc 1'4: any or all o r the follo .,..ing nihu, remedies and recourses : princ ip1!, .~~1~;!;;;:~~1;":f~~~:~1 :~J:~~~~~·~:!:~nt~~~~i1~J;~,~~~~~4~::i·J:~:::.~~f ~~:::;; :cs;r~.~.~~ of accclcB11on, prc\.Cn tmcn1 , pr1Jtc t l. Jenund or a.c:t1on o f any ruture whaUOC'YCT (ea.ch of v.hich hacby iJ expr-c:u ly w1.1 \'ed b y Mortsagor) wl-im:upoo lhc: umc: shall bC'c omc immcJ1ately due &nd p.a )'able ; (2) ~JSC"t"'s Right 1n P Mtc H i1 ~ Mo npgC'C may rntct upon the P'ropcnies a.nd uk.c eaclusi'Y e poucnion lhcTrof anJ of all boolu, rt'COr~h and &e coun u rcl.1 1mg thcrcl!J. II ~l "ng ;iiur rt"ma 1ns in posKs.tio n of all or .>..n y put of the: Ptop<Ttl es ar\ct a.n E\'rnl of De fault and without Mongagce's pnoc .. nncn .c on~n t lhctcto, 11 •h.i.ll be conudcn:J a tenant at su ffe rance . and Mongagcc may im·okc: an y and all legal rc:mcd1« IO dupou.cu Ml'11&(1gor, intlud1n 1 spcc1f1c 1.lly.ooe or more a..:u o ns f0t forcible entry a.nd deuinCf , trespu1 to trylllle and .. n1 orrcslilu1ion. No th1n i conu mcd 1n the for c11:01n J s.cnler.cc sh.ill, ho"'e'Yct, be construed to impoK a.ny gr ea ter obligation Of a.ny prerequisi tes IO acq ui nng posi.<uion or the Propert ies an.er a.n E\ mt or Dcf:&uh thal .... ouid N.\C c:usted in the abKi"Ke o r suc h '<"r.tcnce : (J) Mongigee's Righ t lll M Ji nii;e. Mong2gc-c: may hold, lea.sc:, manage, opcnlc Of o~i sc us.c or permit the u..sc: of the Propcnies, ~ithcT b y itse lf or by olhc:r p<rwns. t1m\S ur enti11 c-s, 1n such mJ.nncr, f\llf such time and upon su ch other terms u M ortgagee may deem \o be pn.idcnt and reuonable under the c1rc umsW1ccs (maLtng such rc-p.>.trs. 1ltcnlion.s, aJJ111c-n s a.nJ impro'YcmcnU thcTcto and l.Jl.1ung any an d all other action ..,th referenc e thcTcto, fro m llmc to 11mc:, u ~l urt~.i gec sh.all deem ncccsury or desirable). a.nd apply 111 re-nu an d othct a.mounu collected by Mortaae« in con nection thcn""'i th in accordance ..,.1th I.he provuions J O\·erning a pplicatton ofproceed.J scl forth hctcin; (4) Fc:tn:-clos ure . MongagC'C rNY se ll or orra for ulc the Propcrtin in su ch portions, ordCT and parcels u Mong1gec may dcletminc, with or wi l.h.J u 1~ uken poss.cuio n of I.he u.mc:, IO the h1ghcs1 b 1dJer for cuh at publlC auction . Such u.lc sh.a ll be made al thc courthou.c door of the C"ounl)" "'here: in the UnJ (o r any o f lh.21portion1hereo f 10 be solJ ) is s11u.at.cd (.,,.·hcthct the~ or pa.re els thereo f, if any, in d 11TCTTI\t coun1ics arc contig uous o r not. and .,..Hhou t the ncceuily o(h.'Y1ng an y pc~! propaty hereby mortgageJ pre Kn I at such u le ) on the lint Tuesday of a.n y m.>nlh be 1 .. ecn lhc: hou n of 10 .00 am. and -4 .00 pm af\.c r postin g a "'ntttn Of pnntcd notice or notices of the pl1ce, time anJ tctms of lhc ulc of the PT opc-n1 u for I""' en ty-onc (2 1) d.a ys pnor IO lhc: date of t.hc t.1.lc al the courU-.ouK d(l()( o f the counry in ""·h1 ch the s.a lc is to be made and al the counhow.C" door or any other coun[y 1n "'h1c h a portion of t.hc Properties may be situated and fi lin g a copy of such notice(s) in the office of -l- 0 3 E, 1 4 0 0 2 2 0 ---····-·-··--·· ... ·--·· .. --····----····-------- \. ~ s .-:· ... : ~ -:·.: ·--.~::-;.t~ ?~ .-.· . · ...... ;. .... : . . / ''.>;.:{:~\:·'· . ·-~.:.. ... .. 0 < a> " > ~ "" ~(")Q "" " • 0,.... 0 t:t: ,_. o' < a> ,_. o' a> "'"' .. OQ 0 p. a> a>,.... .... .......... f, t/)O ,. D" '<I "'" <T,.... "' ,....°' -0 <T . ·h··· .... ·:.·· ':·': ;,,_-... ; :· ... #., ; ·~.: .. ··•. . ~· .... : .. ... ··· \ • ·· .. 1 •. ' . --. • . . . I· '1!1 ··, ~ r <') I l 11·.' ... : :: ;. ',_ ·.· .: !~ .· s. HER£ FORD ST. t . .. . .. . .· . . . .. . ...... •.· ,-...... ... ._;.· ., . ' "l ..• 1: ..1 · -~u 10 so .:~ &o ,.c.-. .s-o 6'o .F" Jo ~o 40· : .. l ... ·.·· ..... ·... I -;3 1.:J i9 ·. . "';. '· . J; + . . ' ' ' t :. . ~ . ' . J . 4 ~ t T ~ .9 ,;, ;, . ·' ·~ > ' .· .. ~ . . :: 'j ,L .. ~RsH1Rc sr. . . ~ <-•. · ·, . I · 1" .·1 <&S TO ;; ... I z. l.Jf -~ .... ~ . C\ ~ -0 ~ "l ~ "' "' <> ~~ ~ ~ '( (,, ~ ~ ~ :"-I ~ ~ ~ trr J 1.rc 'i .. 0 Cl ~ \.n <a ~ . -~ b -,,,._.Lr ,..,,..,, ~ · · 1 . · r-...'" 7.0 ..s as llj J :., ·'"' v I F . -·· so .so .so .so .ro 60 V/ J "' ~-.. S'O .so ';:: 10 ,, l"i -; .9 'I ~ "1 § -; .. 'c . " "' :-i ~· ~ 10 ., t .Y .:.o II B .~ .ro II . ~ .... ·1 ·' ,·;.: 1 . . . . . ... · I · "I .. ~ J' I z I ..> ~ . .., J ..? ~ I·' . ! ; . I . I ·I· I ... ,.. . : I • f rs I ,, ,... ..u .rD .5D sD so _ .. ~I 6 7 6·~ 'I .. :i 10' .scwr,. l i CAsc,.,,,c/lllT !"" !I 11 ~ ii WELCH AV£. .>o .so .so so .S-D 12 13 14 IS 16 -( -7 6 s 4 ..!:! -~ . .ro .ro ,. ro FAIRVIEW AVE. ... JD .So .. 0 -40 IZ 13 14 IS 16 ..£.J ~-# I 1 11 11 11 IT I I ii 11 11 II 11 11 11 ii 211 iU Ii II II 1, I 0 ..... 1 I 11 1' IT 1 I 1, ,, 11 I! J'O /(J JI$. I I 9&4 8~.8 /~ r.-• ··.r 19 I ~ ~ ;.12 .h. J ~ I I -#!/.l:J 6 ..rd.8 .S"T.9 .s 66" '"·&:: 7 7..f':Z $P. ii 'ii 50 .so .S-'1 ..s-o""'HJ 7 0 8 lo ~ ~ -7 I ' ·4 .5 z I i., .ro So J-.. -~ c.. \ i c :c: I. ~ "' I . i :; . l / Jo JO· J"O •v 8 .9 ·10 //:: "' "' ,-..., .!-'-<.. ,._. (i) ·5 (") 0 0 0 "II ·e .. ~ 0 0 > ~ . g .... E I "' @ t:I ,. . ,,.. ~ t>;I Vi " ..... 0 0 t.O t>;I ~ s ..... ~ 0 t.O ..... "' ~ -(") "' ~; ,,.. ..... "'. .. .... ~ () o~ ~ .~' ~ l:ZD f ·o / "°" ' 6 s 4 ..!T ,,? I i "'~·' .ro -4'0 .$">? ~ ...... 11 I 11 9 8 7 tS s 4 J ·)1 I ~ 1, .ro IO ,r.. .5°0 Go .....,, .ro -'' "°"·_;. I ~ ~ 8 = H t:: H ~ .... 0 0 . 0 . z "II ) "' m _r .ro I ~-fi' I " S• ~ '. MONTCLAIR. Af'E. WE:ST PARK ·1 . -:.~-:1:_KS .. -·-... -1 ~ ,, P' SPARKS ··.--·--· .. ·-··'" •-.---------·' -······ -··---ti " ·' }-.l. I b:i I -:: ••• • • ·:; .-, •••• c ·~ ... ' 10 -/SI•· T!IB . STATX 01" TZXASI COUNl'Y 01" BRAZOS ·lllIERXAS, by dood dated April 4th, 1941, e.nd reoordod in Yolumo 106, pogo, I n 2)4, or the Deod Record.a or Hre.zoo County,Tex.as, Southw1de Dovolopment Company conveyed to Oakwood Roa.lty Company or College Station certain property in the Plan or College Park in Broz~o County! · Texas," ~e!orenoe being hare mado to oa.id deed .and its . record tor deaorlptlon or said property; 1. and WHEREAS, said Odla<ood Realty Company or College Station lo desirous or reeubdlv1d1ng a portion or sald property in aooordanoo with tho hereto at~~ohed plat, the portion resubdivlded. being all that part or said property_ eo . conveyed and lying on the southeast aide or Guernsey : ·l I' 1 . Street and bounded on the northwest . by eald Guernsey Street, bounded on the southwest. by llont-; I olni~ Avenue, bou.odod on the aoutheaet by the property owno~ by L.G.Jones nnd on· the nort'heeat· j · - by South Herero~e. Street with. its northwest continuation to ·Cu~rnsey Street; · 1 • I NOW .THEREFORE Oakwood Realty Company or College Ste tlon, a corporation, acting herein ! . l by its "president, ·1!,E,Burgess; duly authorized by a resolution adopted bf its Hoard or Dirootorii doea hereby declare the hereto attached plat to be a true and correct plat or it~ resubdlvisio?' Jr the portion or ·the property above described, and do.es her e by dedicate to the use 9r the public all streets and alloys as shown upon said plat • ·' • VIITHE$S the-"Bigoature and soal or said Oakwood Realty Company · or College :lt~tion, this 16th day .or July A:D• 1941, tho ' I,.· f" • -l ..C I :sEALi 0.A.iCYIOOD REALTY COln'ANY OF COLLEGE STATION ~~ H,E,Burgess, Its President, j ._:,~;! .. .' ! E: STATE 01" TEXf3l :OUlll'Y 01" BRAZOS BJ!:ll'ORE JdE, tho undersigned 'authority, on this ·day pernonally appeared [, E, Burgess, lq!Qwn to me to . be the person who!le name ls subscribed to the toregol.ng instru-': i ·. l ~nt :and he acknowledg ed to me that he ·executed the same tor the p\lrposes and consideration . ;; 'I 'I . .herein expressed .and in his capacity as preeldent or Oakwood · Realty CompallJ".or College Sta-· -' :1 . • t -ion, a corporation, _and as the aot and deed or said corporation. . . GIVEN _under·my hand and seal or ottioo, tpl~ 28th day or July, 1941. R. V • .Armstron g , a Notary Pub11~ in and to; "f . :~~egoing is a ·true .oopy or the original instrument w::::o~:o~:::T;::s:ecord on the 29th 'l '. ?J' ot ·.July A;D,·.1941 at 2 o'clock .p,m, and duly· recorded on· the 29th day or July A,D, 1941 t 5 o'clock ppm, to 'Which I oortity •. " .j : .. ·. .· .... l ·. ··.·. ·~ . ·. . A, B, SYJlt~,C·~·JY ·C.' -11,, ~J,,~ "' . Dbputy .i ' ! ~ ·1 ! >I: I i ·1; .· .. · ,, 0 :.1 THE S~ATS OF 'n:"AAS( COUNTY OF DRAZOS ( DEED 111 KNO VI ALL l:EN DY THE SE FRESZNTS: Thot t he Oakwood Realty Company or Colloee S~ation ·,-Texas. a corporr.tion or t he County or Drazoe, Stoto or 7o:xas, having heretofore dedicated the stroots , alleys, and pasoegoweys, end subdivided a portion of Collage Park en Addition to tho City or Colle ge Station, conveyed to Oe ,kwood Roolty Com- pany or College Station, by Southside Development Company, on April 4, il94l, by · doed reoorde~ in Volumo 106, paee 2)4, or the Deed Reoorde of i3raz''" County, Texos, nnd M:EREAS, the Oakwood R0 olty Cocpany or College St>otion, Texas, a corporation, ao,ting herein by its Vioo President, >:rs. Ethyl Wal ton Burgees, and 'J.'bomas Henry '.l'orro ll ond · wire ~Ira. Katharine 1;0Kenna Terrell, do here>now iJ!lpose and plaoo the rollowing restrio- tions upon Lots Hos, Ono ond Two or i3look No, Ten (10); Lots Nos, Saven (7) to Eleven (11), inclusive, in Block No , Nino (9}; Lots Nos . Ono (l) to Eic;htoen (18), i nclusiv e, j in ~lock A; Lots One (l) to Eleven (ll) inclusive, in Dlock B; Lots Nos, One (l}, to Nineteen (l9), inclusive, in Dloc:t C; and Lots Ona (l), to T~n (10) inclusive-, in i3lock D of tho Subdivision known as a Resubdiv ision of a portion or Collece Park, to tho City or Colleee Stotion,Toxes, to-wit: l. All or the Streets, roo d-woys, and walks ee shown on plot or nesubdivieion or a Portion or Colleg e Pnrk of reoord in Volume 107, page 151, or tho Deed Reoords or Brozoe County,Texes, ore hereby dodico~od tor public use and md.intenanoe forever. 2. ..\ll lots in the troot ·shell be known ond described os residential lots, end no s~ructure shall be rooted on any residont~a l building plot, other than one detoohsd single ramilydwelling not to exooed two stories in hair.ht, and a one, two, or throe oar earage. ). No building eholl be erected, plooed or altered on any building plot in thie subdivision until the externol design iind location the»oor hove been approved in writing by the noil!hborbood Committee which shall be appointed or eleoted by the owner or owners or a moJority or the lots whioh nre sub.Jent to the oovenanto herei n set forth; provided, howe·;er, that lr such committee fails to approve or disapprove such design nnd location within thirty days arter such plane hove beon .eubmittod to it or if no suit to enjoin the erection or such building or the making or such alterations boa been ooc- menoed prior to the cocpletion thereof, suoh approval will not be required . 4, Thero is horeb:t ostabliohod a rront building lino twenty rive (25) toot rroc ell streets, and all buildings exoop.t garages located on real quarter or lot shall be nye , (5) reet rroc side lot lines, except on corner lots such enrages shall be ten (10) rest , from the side street line. 5, No treiler, basement, tent, shock, esrage, born or other outbuilding erooted in the troot shall at any time be used as a reeidenoe te mporarily or permnnentl;t, nor llboll any etruoturp or a .tCt01porory chsraotor be used es a reeidenoe. 6. Each individual ~~ilding site must havo a rrontngo or ot least ~ove nty rive (75) feet. OnlY people or the wh ite rooe shall ever be parmitted to own property within ruoee moy oooupy quarters reeulorly and duly provided t or servants. 8. None or the property herein convoyed shall ever be used ror tho purpooe or o plaoe tor tho eole or B?irituoue , vinoua or =ilt liquors or be'vorahs, or eny kind ror II period or ninety-nine years rrom Juno. 1, 1941,· No noxrou·s or otrensive trade I ' I ! :1 ;· i I I .. I : .u I DEED 111 ---------------------------------------------___ T ______ ·- :>hal l bo cnrri od on upon :mid lot or pro porty , or shall nnythin3 bo ·., dono thoroon whioh ·1 mtJ.Y be or beo~mo any annoyance or nu13nnce to tho neighborhood. 9. Thoso covonnnts nro to " run w1th tho land nnd shall bo bindine on nll tho pnrtioo I end ~ll parsons claimine und ar thom unt1l January 1, 1968 , at which ti.mo eaid oovananta I shall bo autometioally oxtondod for successive poriods or ten ycnrs unless by n vota or tho lr.!l Jorlty or tho thon ovinors or tho lots 1t ls ai;recd to c hani;o tho said covon11nts ln whole I or in part . 10. Ir the .pertiea horoto, or any or the~, 6r thoir hoirs or ossiens, shall vlolnto or attempt to violate ony or tho o ovenents heroin it shall be lawful tor ~ny other person or · persons owning eny rool property situated in sold develop1116nt or subdivision to pro- oeoute any procoodines et law or in e11uity egainst the persons violatine or atteapting to riolate any such covolllllnts a nd o1ther to p1 ·ovent him or t h em from so doing or to recover la:::.aeos or other .cues tor such violation. ll. Invalidation or any ono or thoso covenants by Jude,raont or court order shall in 10 wiso arreot ~ny or tho other prov is ions which shall roaain in full rorco and crre-ct. Vlltn oss our -hands tltis the 29th day or July, A,D, 1942. OA!:v:ooD llEALTY CO t !PANY OF COLLEGE STATION , Dy Mrs, Ethyl Walton Dureess Vice ?rosidont '.!:heres II , Torrell !.:rs. j:tl thnrino l.:oX'enna. '£orroll HZ STATZ 01" T.':XAS I OIJNI'Y OF BRAZOS DZFORE J.!E, tho undersiened authority, on thio day personally ap- eared L:rs. J!:thyl Walton Durgos a, Vloe President or Oakwood lloalty Company ot College tatioli, known to t10 to bo tho porson whose name ls subscribed to the above and foregoing notrwnant and aoknowledgod to mo that she executed the se.'Ue tor tho purposes and oonsidor_i tlon thorein exprossod, and in t he capacity therein stated , Given under my hand and soal ot ortice this the 29th day ot Aueust, A,D. 1 942 . !UL ) ~ sr.1.n o:: TEXAS I lUhT! OF BRAZOS Coulter Hopposs, {C oulter Hoppess) t:otary Public , Brazos County, To:x.as, BE 7"0RE :.!E, the undol'sicned authority, on this day peroonnliy 1pcared Thoma• P.onry Torrell and wiro !.:rs , Y.atharino ?.:ol:onna Torrell, his wito, both >own to me to be tho persono whooe nsn:os aro subscribed to the torc i;oine instrument, and 1l<ne><led11od to mo that they eaoh exeouted the sru:ie tor tho purposes and consideration 1ero1.n oxpreosod, and the said L!ro, Y.atharlne :.:cI:onna •.rerroll wiro or the said '.l'homa o 'nry Terrell,. having been exo.niinod by mo privily and apart rrom her husband, and having .e so.mo fully explained to her, s ho, tho oaid l.::-s. ;:atharine L:cKenna Terrell, aoknow- dgod auoh inotrwuent to bo her cct and dood, and sho declared that oh o had willingly cned tho saae tor tho purposoo and oons ideration·-therein oxpresoed, ond that st.o did t wish to rotraot it, Given Under my hand o.nd soal or orfice thio tho 10th day ot Septembe r, A·,D. 1942. Victoria Dominik (Victoria Dominik ) UL) Notary Publio , Brazos County,To:x.o.s. ' 1'oregoihg ls a truo copy or tho orii;io.ol instrwnent which wan f1lod for rooord on · ... /. ~·- .:_: th day or Oct, A,D, 1942 at 11 o'clock a,m. a nd duly rocordod on tho 26th day of Oct, A.r, •2 at 9 o'clock o..m. to which I oortlry -:-:--~---:--~~~-~-~---,---,--~~--~__.:A~.~D~._Syptak,c.c.c.B.C. ~ ~-ty~---'-.1-. - ~~;]·;j~·1~~~j:,·!~~~~~~;J;~lj~;_'.:~y;3:;:;:;;:,~~~:3:;-.:.;;.:~~:-:-:·~~/ ....... -~ ··~·. -7--.-:--·--... __ :. :--· -:-;-(-.i: :22~~~· .:.:.:.-=,:.0T;~~Q .. ...• -=· •. ,. •'.' ,; '•. I ·.:.•:, .~· .• . ~.:.:.· .... ~: t~~~ . i~~ ~; . I • • ... . , ·! -~ ... f DEED 124 ) ·: ., ... . . ·.:· .. ;., ·.· ... I I -----------------------------------. --------------------- when t.hil deod llhall booano 11b1oluto, l!ITN!.SS ~ hnnd at Bryan, Toxa• tl.15 lodoro.1 11tm:ip• o.tt1xod end duly onnoolled T!I3 STAT3 or TEXAS oomrrr 01 muzoo thi 0 20th do.y o! J'un<>' l9J,.6 J.!ro, l!:dna B Lo Ilotto :,1 a:t10R! JU:, the uodorolgnod, 11 Notary Publio in and !or coid Cou.nty And State, on thio do.y personally •-!JP•Uod J.!.ro, :&dno B, Lo Ilott~,°-.rl.dow ot O, S, Lo. Ilotto knO'llll :.w.'."° to .be tha poroon wbooo no.~ is ouboo'ribod t-0 tho rorogol.lle inotrwoont, a.al oolcn~lodgod ~. mo tbot 'o.ho oxoou tod tho do.mo tor tho purpoae • all4 ocno idoration th e:roin expr ooood, OIVDi UNDER ll! HAllD JJ1D S!AL or Ol'rICEt.hi• tho 20th do.y or J'uno _A.D •. 1946 (S!AL) B. H. Dowoy, Jr,· Notary Public in end tor Bro.zoo Oounty,Toxao Tho rorogo~ 11 e. true oopy or tho or1gillAl. inotr=t l!hioh l!ao tllod tor reoord on tho 20th do.y or J'uoo A. D, 19.t,.6 a.t 2: JO o '0 look p/m, om. duly rooordod on the 21ot day or J'uno · A. D, 1946 ct 1:25 o'olook p,m, to ..bioh I oerti!y, )., Bytu c.c:.B.O, f!,,Nta.JJf;l~·,, .. I / f)~I STATZ 01 TXlill lCn01r All ).!on by Th••• Prcocnto: ;:zl-n~ fa!. • 1 .-That I, ?, B, Clari:; Truoteo terr '.!HE "EJ.SWD..A PROPERTIES, .do hereby doolare tho. t . .COUli"Tr 01 BRAZC5 tlu reatriotion.a l1lld 11m1to.t1ona 11ppl1011blo to t.ho lot• in Onllogo Park apply to lota in Bouthoe.ot Oollago Park (the m.np or 'llbioh 1a rooorded in Volume 119, pas•• 56)-4,;Brozoc . :I County, Toxo.o) 'llith tho following oxooption.a1 '. ... l, Tho minimwn rcquiromon~ tor 11 rooidllllOO 1a A tloor OjlAOO ArOll O! tnlv.o hundred i I I (1200) 11quare .reot (liTinS aroo.), . I ... , 2, No 11truoture oho.11 bo loootod n<>ArOr the.n t"°nty toot to All1 Id.do or !root proportyl1 ·lino, exoopt 'llhon e. Id.do lino 18 on alloy 11~ ln 'llhiah. oaod the otruoturo may be co noo.r e.o t""lTo and one-bolt !oet to tho property lino, ' ), Ho two-story go.re.so apartmonto o.r t'llo-atory oerTAnt 1 a que.rtora '11111 be All.O'llod, 4. No lot. '11111 be cold ~1ch in tho tirot 1.ootlllloe lo 1ntondod to be uoed primarily tor nntod property, •,·. Tho roatriotions and 11m.1tat1o no applioablo to .tho lot a or On1logo ·Po.rld · 1, Ho out-door to1loto •boll be allOT1od on llllY lot, .'. 2. Tho loy-out or tho lot• 1111 aho-.rn in tho plllll •hall bo adborod to ~d no aah6m4 . ~ ·. · .. · .. ·.· .!'e.oing lota in ADJ" othor cUrcotiCll Aball be ponnittod, ), N~ uao llholl be mo.do ot t.ho property ho re by oonnyod,. or ·~ part tho root,, whl<>h . ; . . . . ahllll oonatituto 11 nuioanoe err injure the ·raluo ot no1e;b.bor1ng. lot•, In ooao or dioputo final doo1o1on aa to l!hat oonctitutos o nu11111.1100 •hall root l!ith i.bo granter, ,,;': . ' . 4. Tho gonornl llllldooo.po pllllla, au oh ca . ··' .. . . . . . .tri.mmJ.ng ot t~aoo, plllllt.1ng or o.hrubbory, oto, loootlon or h~•.-. looation .or tle><or bod•, Aball bo in AOOONllllOO 'With auoh o~do.rd0 .5. Ho holl8o aball be built olooor tQ _tho 11treot tluln t"°n~y toot •. ·-e.utho.ri ty. ca aboJ.l bo aoooptabla to tho grllll tor•. . .. •'.' , 6~ ;.?h~oho11, otoroo, tJi•a;ro .•,. •<>hool hoW100, nnd . othor oontral me.°.t1ng ploooo aball bo . ccnot.ru?~•d . only oa loto proTidod 1.o tho plnn !or ootabliolunonto ·or that kind unloc• agreed .to by tho gra:ntor, 7• !i~ houno, with .tho . ~xoopt1on or ~ood-ohodo 1 go.rag<>c, and 01.mUo:r ·•upplol!lMto.ry ~I " 5~~~-~~-~:·:~~~~~f ~~-~~~·~~:·_,,~~~~\J·~~~-- ...... ·.: .... ~ ': :.::'~; . . .. ..... · ... ·. . ~-:.·.. . . -. . . . . ~:~ • • . G ·, ' ., ' < -~ m ·, I .. ::; : ' ·.·. e '· ·, B ·' (_DEW _ 124 ·~ .l : ::·~ :·-::· .. ···::_; }·;'; .·. . . . ' . . o.rohitoot ao oep tablo t-0 tho grant-Or, a. At the expiration or throa yoo.ra t'l'om tha dat. ot aole ot llilY lot, tho gro.ntor ·.:. -·roorvea the right to buy baolc at tho original purho aoe ·prioo, >lith~_ intoroot, an1 lot the · ov.nor or owner• or f.hioh oe.nnot ehow bona tide nidonoo or utiliu.tion to accie aooie.J. or 1ndh1d114l end othor thAn that ot merely holding t li.e lot tor 1noreaoe in TA:l.ue, '''-· AJJ.y ohars oa 1.mpoood by tho Oit7 ot Collage Station, ToXAa, or any other agonoy tor t he oxtenoioa. ot utility linea (inoluding we.tor, light _ and oewarl other tho.n thoao _a.pplloablo to loto 1n tho c1 ty, limits will be po.id by tho grantor, Tho oity dooo not guo.r1rntoo to d1apooo ot ao'lfage unlooo d1oohargod thrw gb. a p~perl7 oonstruot ed sept1o te.nlc looaud on the property or thl:I ' gro.nteeil, WIT!!eaa m:r hani at 0 0Uoge Bte.t1oo, Texas, tllia 19th dt.J' ot J'uno A. D. 1946, '.Illll KASKASKIA PROPERTIES TH;; ST.ATE 0'1 TEXAS COUNTY 01 BRAZre L,S, l1', B. Clo.rk l1'. B. CLARK , TRUSTEZ COLI.EOE STATION, TltXAS Beroro zoo ,· Dorothy B, llo.kor, a Notary Publio in and tor Brazos County, Texaa, ·:this day a w oared r. B. Clark, Trustee _tor TlrE KASKASKIA PROPERTIES , known to _ ll>ll to be th• person f.hoae Ollllle ia oubsoribod to tho above inlltrwnent, and a cknonl.odgod to mo tll4t ht executed tho CllD>l tor tho purpoaoa tho rein expressed, and 1n tho ?apaoity ther ein atlltod, Chen under my hand and aoe.l · or ottioe thia 19th dAy ot J'uno,' 1946. (BllL) · D o~othv B, BnJ.;o r · Notnryubl1o, Di'az06 C~.,Tox, The foregoi ng 1a ·a true oopy ot tho origill41 inatrumo nt 'llhioh we.a tiled tor roo ord on tho 21st dt.J' or J'une A.D-1946 at 1 o 1 olook p,m. and du!y noord od 'on tho 2lat dAy or J'uno A.D, "'.,1946 at 1150 o 1 oloolc p,m. to •h1oh I oortitr.· 'IBA BTATA 01 _ TELIJl . CO]JN'I'X' 01 BRAZOS :t•. That \!o .r. w. Batto ~nd ll •. o. Nall or tho OOUlltT ot Bre.wa Btate at Toxo.a, !or and in oonaJ.darntion ot tho sum ot Two Hundred and ti tty & .no/100 ($250.00) DOLLAR.9, to ua paid , by J'ul!a Garza in oasb, th • reooipt ot 'llllioh ia horebr aolcnollle_dgl>d ( I l ! l i ·i l ! ! i i .·i · he.Te Orant.•d, Bold and Conny ed, e.nd bT then proaent~ do GRANT, Bl!:LL AND CONYXI 1 unto tho l " ao..id · J'ulie. Oc.rza of the County or llrazoa Btato or ToXAa, all that oerto..in traot or parcel j . '· ..... ·.:-:-.o~ land lyil)g an1 being aituato in the State at Texe.a, County at .tlr~• and =• pUtioule..r~ I _, . .'.11 do.aorib od aa tollolf8 1 to wit• nine The llOUth (65) aixty !i n toet ort tho ao uth ooda ot Lot a Noa (8) e1ght(9)/a.nd (lq) !.-. ten in Blook llo (246) Tllo hundred and forty aix in th• City ot ·Br7an, aooording ~ tile I I l TO HAVX AND TO HOLD tho above doa oribod promiae1, 't-Ogothor with ill and aingular tho lll4P ot oaid City in ooi::::l on use, ·rights and a ppurt oo~ooa thereto in anywise .belonging , unto .t h o_ u 1d J'ulia Ouu.1 her h»ira e.00 aosigna t oro-ro r ,_ aro wo d.o h ereby bind ouraolna, lur h~ira, oxeoutora and a dmin iatra-., I t ore , to 'lfn rro.nt and toroTor dotond , all an1 ai nsu lar tho .oe.id prow.J.aoo wto t h • aai.d J'ulia i Oo.rza, hor hoira a nd acei gn a, a go..in ot nory' pcraon llhcrnJ100Tar lawt'ully olaiming or to olaill \ ~ . , the &ll!lo or o.ny po.rt th e r oof, ! ·.) Vl 1tnoaa our hand a at Bryan thia 6th -dllJ' or Ba p toltb or A,D. 1 943 I · d '. 55~ :Federal ato.mpo a ttixed .r. 'w, Batta ".:·,. j ;t -~ ::; rw1-dul,-oanoolled,--:-------.-.• -,.-. --.,--------.-....;:w. ........ J;. ~ f 0~-. ._,l',a,..UU..---.,.;... -----.-'1-- t~~j ... ;;.:·::.·~:<,;: ... ;;~~-~~i..'.·;,..;,~~~;\;;:.::;: 1': •• : .. b;-., .. ,; .. ; .. , .... ;: ... : ...... '·': '· {#~ . . " : . . . r;J; :: .. ·:~, ::.;·.; .... :.:_,.:: .::.p::i);•;:.;.~.~ -~·.~, ,;,t_.-~ w:.,·,·:,:~;:;':1 •:;;. ....... _.,.~ ;. ~~:p·~ •. ~.:\.: \.' . ! l I 1 I I I I i ! I Connie Hooks City Secretary City of College Station P.O . Box 9960 NORMA MILLER 504 GUERNSEY COLLEGE STATION, TEXAS 77840 ( 409) 696-4454 College Station , Texas 77842 Re : Open Records Request ~- Connie : September 22°d, l 999 This request is made under the Texas Open Records Act, Tex. Gov't Code Section 552, which guarantees the public's right of access to information in the custody of governmental agencies . In accordance with section 552 .221 of the law, which requires that the officer for public records "shall promptly produce such information for inspection, duplication, or both , in the offices of the governmental body," I respectfully request to review of the folloWing information: I am requesting all documentation , letters, memoranda, reports, schedules , etc. between Jane Kee (and the Planning Department) and the following people : Nelson Nagle , Eric Lindquist, and George Dresser, for the last two years . Please communicate with me by telephone a s to when would be a convenient time to review it. My telephone number is 696-4454 after office hou;:s . I shall look forward to hearing from you promptly, as required by the Ac t. Thank you for your cooperation . Very truly yours , (f\~ '°'--h'\, \ \e;, Norma Miller MEMORANDUM August17 , 1999 TO : FROM : SUBJECT: Brad Kerr, Via Fax (409) 691-8904 ~a~l\v Bridgette George, Asst. Development Coordinate~ ~ Resubdivision of College Park -Final Plat Staff reviewed the above-mentioned final plat as requested. The following page is a list of staff review comments detailing items that need to be addressed. Please address the comments and submit the following information for the plat to be filed at the courthouse : __ The Mylar original of the revised final plat with the owner's signature . If you have any questions or need additional information , please call me at 764-3570. Attachments : Staff review comments cc : George Dresser, 501 Fairview Avenue, College Station, Texas, 77840 Case file #99-241 STAFF REVIEW COMMENTS No.1 Project: College Park, Lots 3, 4 & 5 to Lots 3R & 4R k 1. Can you clarify the title of the plat and add the phrase "creating lots 3R & 4R• or it's equivalent? 2 . Remove the setback lines from the amending plat 3. Remove note #4 under General Notes referencing setback lines. Reviewed by: Jessica Jimmerson Date: 8/16/1999 Staff Review Comments Page 1of1 MEMORANDUM a1999 TO : Nelson Nagle, Via fax (512) 218-1821 Min Bridgette George, Assistant Development CoordinatorpF ·~ Numbers for New Houses FROM: SUBJECT: Carl Warren has informed me that the addresses for the existing and new houses being built on Block C of the College Park Subdivision will be as follows : Lot 10 R Lot 11 R Lot 12 R 600 Welsh Avenue 602 Welsh Avenue 604 Welsh Avenue Please call me if you have any questions regarding this information . ·----·---------+----------···---·-·. H HH ~ l ~~~/9 ~~~~~-~=~ . i ··-····-··-----_~i-CJ /)---·-·-·----··------Ylz ~s-; £!J;J --;/M_________ -···-------·-. ·-· ---4~---~--f& __ fdM--Yilai_.___ I -1]__PJ_~ /)l_cd , __ -·----· I --. -------------------·-·--=--~@JJJJi __ ylt eR oJ ~0114!. fJ/liJsl io -~---·-·-·-·· ------~~_{jgcL____ ---------------·--------- ! ·--~~-(~Lf/{UJJ( l~();ta/d>J .. -H H.H H i P Lah /fllld Jr, :Mow "! 5' ~ ~ _ wrid ~ ~-~ ~----=~~ 1i !JM.A __ ~--:-~ --~__;____ --==~~~---=-·---... -_ -·-_--~ ·_ ---=- i Lot ID/0 (J 13 ~ ___ 'f}lg±___ _ ____ __ _ . . .. --·----: ~f------!()-( ·-· ~ j ~-_-.. _____ 'Lb{-~-H -H H H __ ----~-(_f!b _ -~ Vn~ ___ 7!__dihfy .w/ ftft __ lQ_ ···--. --. ------·-. -------·• ------·---· --. --:-+_fltJl_L~ )ft t &nL H H H H H --•••• H H .. :~~ /11\Wf ~-~;QTVJ ~i~-~ W&}J~ .. ex _ .:1 )ids . .. _____ .. _ __ ... -~ m, t{hj;_~ -~ Qj; Md~ ~ ~fl! atJ.JAM -rV a11 (J1 r*fl; OlUri1J//y . .. -t·-----. - i I .. r: -------~-- E UJ :l/l .t-AA ~--L _______ ...___...__ ___ + ··-----+r--------..i I 8 ·- zfD • 'Cl'-"_ "' • \J ;c; • ~l.n • •O " . . s 4 1·.30'0 1" w 11 7.3 5 r .. Nelson L Nagle ~01 S c;f-)j ~d t.,__ (.f) ~ OJ . 0 N N OJ : rrl • I -~p c A:) to fo..f ~o/ --·7 i ~ -3LJCU --(]' n c ;o to ~ 111 •:J 1 I 1-.:1 l/) t.n T ~.:[) )> .... ' < \ ... f'l_ -·-·.~ z .... -:_ c rrl - I) ) ") ) ) ) ) ") ) ~ I , ... ~-.\ N N 48"01 1 24" w 25 .00 15' ALLEY 48'01'24" w .!=I ("ITr I 3 ..- 0 'l--J~..:..++.>--_,;.~:+--4~40 n . ..- ~ (/) ·------ ( 71 ~ (, ---h-Zi -~oh n1 Ii "' I ~ ~ COLLEGE STATION P. O. Box 9960 • 1101 Texas Avenue College Station, TX 77842 Tet. 409 764 3500 MEMORANDUM June 29, 1999 TO : Brad Kerr, Via fax #691-8904 FROM : Natalie Ruiz, Development Coordi SUBJECT: College Park Lots 10, 11 and 12, Block C -Fmal Plat Staff reviewed the above-mentioned final plat as requested . The following page is a list of staff review comments detailing items that need to be addressed. Please address the comments and submit one revised copy of the final plat by any Monday at 10:00 a.m. for further staff review. If you have any questions or need additional information, please call me at 764-3570. Attachments : Staff review comments cc: Nelson l. Nagle, Via fax #(512) 218-1821 Case file #99-225 Ho me of Texas A&M Unive rsi ty Vt . ~-0. /4. Project: STAFF REVIEW COMMENTS No.1 College Park Resubdivision (600-604 Welsh) Show existing improvements on amending plat. (Staff needs to verify that no encroachments will be created with this final plat.) Show dimensions of individual lots on amending plat. How will each of the proposed lots obtain water and sewer service . Are you asking for zero lot line approval? If so , then show the proposed setbacks and proposed development on amending plat. Reviewed by: Jessica Jimmerson Staff Review Comments Page 1 of 1 06129199 - July 14, 1999 TO : FROM : SUBJECT : COLLEGE STATION P. 0 . Box 9960 • 11 01 Texas Ave nu e C ollege Stat ion, TX 77842 Tet. 409 764 3500 MEMORANDUM Brad Kerr, via fax (409) 691-8904 Bridgette George, Asst. Development Coordinator ~ College Park Lots 10, 11, and 12, Block C-Final Plat Staff reviewed the above-men tioned final plat as requested . The following page is a lis t of staff review comments detailing items that need to be addressed . Please addres s the comments and submit one revised copy of the final plat by any Monday at 10 :00 a.m. for further staff review. If you have any questions or need additional information, please call me at 764 -357 0. Attachments : Staff review comments cc: Nelson L. Nagle, via fax (512) 218-1821 Case file #99-225 Hom e of Texas A&M U ni v e rsity :'-~; r ' STAFF REVIEW COMMENTS No. 2 Project: College Park Resubdivision ~~e 1 O' shared access easement needs to be a 1 O' private shared access ( Und parking easement. . The air cond1t1ornng urnt located on Lot 12R which 1s for the building on lot 11 R, needs to either be covered by an easement or there needs to be a note ;tating that the unit will be moved . \}( It has been determined that water service is not provided to Lot 1 OR. Either submit construction documents to extend the water line or reconfigure the lots in such a way that water is provided to all lots, and the lots still meet the zoning requirements . Please be aware that if the extension of utilities is required the plat will no longer qualify as a minor plat and will go to the Planning and Zoning Commission for approval. Reviewed by : Jessica Jimmerson Staff Review Comments Page 1 of 1 07/13199 , - . °U'-tV;;J I U"t J't~O JJC'1CLUr'Jl1£.d~.1 J' "-"~ TRANSMISSION OK TX/RX NO. CONNECTION TEL CONNECTION ID START TIME USAGE TIME PAGES RESULT *************************** *** ACTIVITY REPORT *** *************************** 8371 1512218182lpppl61 Nelson L Nagle 07 /14 14:43 00'33 1 OK ~VV.J. . I UO..,..V//~~ ~J :JJ ~JU. NehonL. lQgle,llDt,L.P.~ Family nmnxeling Prof wionals Confidential 400 West HaiJJ street Ronni Rd. Tuai ? g & ' 4 felepbone: 512-218-0U15 ~imile: 512-218-1821 Date of Trans.action: __ ....... &_~ __ 7-_~.._J,._ ______ _ Number of Page5 (including cover page): ____ ._-i__ ____ _ TO: g V'11A~ JI~ Receiver #: Lt o 9 -7 ~ 'i-34 °th Company Name: FROM: AJels-~ Comments: "t!:JV.L P/-eo..v..__ "'~ v1lw ~ f )j--°"""'~ let_~)::_~ i I .:t ;.. o'Kr -+-o o-cCllW'-f Jiik bcU.]J"'-U r / 0-Js- f~ ~ C""'-.. ~£0...·h~ {)~ /thA ~ )N r.~1 J-A we w; I ) f 1 l f .J..k ~ ~ ~ tLJ....__ ~ ~L~-"' · ~/(_~ ~ ~t l )'~ Wr !_ M ~~:0~~~$~~~~-~~~@·~ _," t-tSi 07199 ~J:JJ 1:-AA NelSOO L l'<ag1e -;l'r"I"-' ,. w {/) <( w o_ cl:5 MINUTES OF REGULAR MEETING July 20, 1962 Members Present: Mayor Langford; Councilmen Landiss, Orr, Anderson, Rosprim, Boyett; City Secretary Manning, City Attorney Sandstedt, City Manager Boswell Visitors Present: Ernest L. Brown, Jr., James R. Brown, Harrison Hierth On motion by Councilman Anderson, seconded b y Councilman Orr, Council- man Sorre l s ' request that he be excused from this meeting wa s granted. A public hearing on Ordinance No. 346, an ordinance determining to as s ess a p a rt of the cost of improving Fairview Avenue, was set for 7:00 p.m. No objection was offered and the mayor declared the hearing closed. On motion by Councilman Orr, seconded by Councilman Anderson, Ordinance No. 350, an ordinance closing hearing and levying assessments for a part of th e cost o f im p roving a portion of Fairview Avenu e , was passed and approved •. A pub l i c he a ring wa s c a lled on the ques tion of rezoning a 115' strip of land in . t he Gorzyck i Addition. On motion b y Councilma n .;.1..-~~~Json, s e cond e d by Counc i l man Boy e tt, Ordinance No. 351, an ordina nce rezon i ng a 115' strip o f l and in the Gorzycki Addition from District No. 2, Second Dwelling Hous e District, to District No. 5 , 3 e cond Busine ss District, 'Was p assed and approv ed. On motion by Councilma n An d erson, seconded by Council ma n Rosprim; th e c ity man a ge r a nd mayor we r e a uthori z ed to p urc h a s e lot 13, block 9 , College Hi lls E s tat es from Mr. E. M. Vi hite. Purch a s e pri ce is to b e $10,000 with a d own p a ym en t in th e amount of $2,500 a nd p ayme nt of $2,5 0 0 i n eac h of th e ye a r s 1 9 6 3 , 1964 and 1965. On mo tion by Councilma n Land iss, second e d b y Co u n cilman Or r, th e ci ty a t t o rne y wa s instruct e d t o p r e p are an ordin ance cl o s ing a street i n t he 500 block of F i de l ity with th e city ma i nta ini ng a 20 f o o t uti l ity eas eme nt. The ma t t e r o f purc hasi ng a n e w p olic e car was tabled until the n ex t me e ting an d C i ty Manage r Bo sw e ll was i nstru ct ed to inv e sti ga t e the possibi l i t ies o f p urc h as i ng an i~t er c e pto r . On mo ti on by Councilman And e r s o n , s econ de d b y Counc i lm an ii o spri11, Ord i - n;:,nce No . 352 , a n o r d i nru1Ce a u th o r i z i ng t h e i ssu a n ce of $35 ,00 G E l e c t ric L i g ht w 1d P ow er System Re v e nu e Bo nd s, wa s p a s sed a n d np µr o v ed . On motion b y Council man Or r , s e con d ed b y Cou nci l ma n Lanc.i i ss , th e bid of Moron e y , Beiss n e r & Co ., I nc . o n th e s al e of :£35 ,0 0 0 L i g ht and P ow e r 3 ys t e m Bonds was a cc e pt e d. 00778 -;3 -::J ~-... ·o 0 CCl . · .. LtJ .· UI <( Lu .[:_. o:j ~ ::J c:: 0 () U:: The city manager, city engineer, and mayor were au thor.ized to ask for a conference with the officials of A & M College to discuss the closing of the street in front of the post office. The council adjourned subject to call. APPROVED: Mayor .A.TTEST: .. -. 00719 7 </ ' @) "' "' tt '~ '.nn ~ :''l. .... , "' .•· &- "' .. w Cf) <( w 0... ctj 2 :::J ~ 0 0 en ® Lu (/) <.( w CL ctj ~ :::J ~ 0 0 en - MINUTES OF REGULAR MEETING August 17, 1962 Members Present: Mayor Langford; Councilmen Orr, Anderson, Boyett, Rosprim, Sorrels, Landiss; City Secretary Manning, City Attorney Sandstedt, City Manager Boswell. Visitors Present: Ray F. Downey, Mrs. A. P. Boyett, Mrs. T. G. Gorbet, J. B. Moon, Mrs. J. P. Dobyne, J. B. Lauterstein, Mary F. Salvaggio, William R. Elledge, C. H. Godfrey, J. P. Dobyne. On motion by Councilman Anderson, seconded by Councilman Orr, the pur- chase of a police car from Cade Motor Company for $2,230 was authorized. The passing of Ordinance No. 353, an ordinance closing a part of Fidelity Street, was tabled until the next regular meeting. The city attorney was requested to draft an ordinance changing the name of Main North to College Main North. On motion by Councilman Sorrels, seconded by Councilman Landiss, the request of the Jr. Chamber of Commerce to solicit customers for street numbers wa s granted. Coun cilman Orr and City Manager Boswell were appointed by the Council to confer with A. & M. College and -Sta te Highway Dep artment officials concerning proposed improvements of FM 60 and Jersey Street. On motion by Councilman Anders on , seconded by Councilman Landiss, the committee previously appointed to confer with the college on ·matters con- cerning improvements of Jersey Street was disbanded. Councilman Orr's request for permission to be excused from the regular meeting of September 24 was granted. On motion by Councilman Boyett, second ed by Coun c ilman Rosprim, the following resolution was passed. RESOLUTION The city council of the city of College Station respectfully requests that the street in front of the U. S. Post Office be reopened to through traffic pending a study by all agencies con- ce rned of the problems of traffic control at the north gate entrance to the campus of A. & M. College . Whatever the program fin ally agreed upon may be , contr ol of traffi c a long FM 60 will devolve upon the city, and for that reason the counc il further requests that the city be given the opportun ity to participate in t he ultimate solution of this problem . Th e co uncil ad journed s ubje ct to call . , ,. 7 City Secretary , Mayor · ·n~s· ·o ,,c !1.J!Uf, I._/ .. ... .. .. w (j) <x: w 0... ~ ~. . ::J 0::: 0 0 co ... .. w (j) <:t: w 0... MINUTES OF REGULAR MEETING September 24, 1962 '1 I Members Present: Mayor pro-tem Orr; Councilmen Rosprim, Boyett, Sorrels, Landiss; City Attorney Sandstedt, City Manager Boswell Visitors Present: Mitchell D. Decuir, G. L. Gorteiser, D. D. Dillard, Hal B. Jones, John R. Anthis, Perry Thompson, Don H. Nicholas, D. G. Mems, John H. Miller, Jr., Frank c. Carlstrom, Jerry D. Kassaw, L. 'W. Christian, R. Bruce Lane, Robert A. Miears, Weldon w. Nash, Raymond E. Bridges, Robert U • Bier, Don M. Henderson, L. R. Vaughn, Ed Holdredge, Homer Norton Mayor Langford and Councilman Anderson were excused from the meeting • Fred J. Benson appeared before the council and outlined briefly some of the plans of A & M College concerning the future plans for internal traffic on the campus and some of the effects it may have on the city. A public hearing was called on the question of rezoning a part of Lot l and all of Lot 2 in the D. A. Smith Subdivision. There were no objections and the mayor pro-tam declared the hearing closed • On motion by Councilman Boyett, seconded by Councilman Rosprim, Ordi- nance No. 354, an ordinance rezoning a part of Lot land all · of Lot 2 in the D. A. Smith Subdivision, was passed and approved. On motion by Councilman Landiss, seconded by Councilman Rosprim, Ordi- nance No. 355 regulating the passing of school buses in the city limits was passed and approved. On motion by Councilman Boyett, seconded by Councilman Rosprim, the Ordi- nance pertaining to window peeping was tabled until the next regular meeting. On motion by Councilman Boyett, seconded by Councilman Rosprim, Ordi- nance No. 356, an ordinance changing the name of Ma.in Street North to College Main North, was passed and approved. On motion by Councilman Landiss, seconded by Councilman Rosprim, Ordi- nance No. 357, an ordinance closing the 500 block of Fidelity Street, was passed and approved. On motion by Councilman Sorrels, seconded by Councilman Boyett, Ordi- nance No. 358 prohibiting the selling of gasoline in containers other than a metal container was passed and approved. On motion by Councilman Sorrels, seconded by Councilman Landiss, the fol l owing resolution was adopted: 00782 7 7 ... .. w {/) <l: w 0.. ~ ~ ::> a::: 0 0 co "' .. w {/) <l: w 0... ~ ~ ::> a::: 0 0 OJ . .. RESOLlJl'lON Be it resolved by the City C.ouncil of the City of College Station, Texas, that all developers of subdivisions or addi- tions in the approximate 250 acres of land that can be served by gravity sewer lines above the inlet of the proposed outfall sewer line from Carter's Grove addition to the City of College Station, Texas, be charged $115 per acre of such subdivision or addition as a proportionate cost of the outfall sewer line from the Carter's Grove addition. Be it further resolved that all developers of additions or subdivisions created along the outfall sewer line south of Carter's Grove addition who connect into said outfall sewer will be charged at a rate as detenained by the City Engineer- ing Department as necessary to reimburse the city for the cost of construction of the said outfall sewer line in excess of the $28,922.64 to be obtained from the 250 acres of land above the inlet to the outfall sewer line. On motion by Councilman Sorrels, seconded by Councilman Landiss, the city manager was authorized to attend the International City Managers Meeting in Philadelphia, Oct 14-18 at city expense. Ed•-Holdredge appeared before the council for the residents on Ashburn Street concerning the drainage problem in that area. The engineers are to make a study of the problem. L. R. Bond appeared before the council to discuss the plumbing inspec- tions and the present ordinance which is out-dated. It was agreed that at the time they present a revised ordinance to the Bryan Council they would also present a copy to the city council of College Station for consideration. On motion by Councilman Sorrels, seconded by Councilman Landiss, the city manager was instructed to recognize the gas pipe code until such time as a proper ordinance has been adopted. Homer Norton appeared before the council concerning a traffic problem created on Highway 6. He was instructed that this problem would have to be taken up with the Highway Department. The recommendation of the City Planning and Zoning Commission that the city council adopt the Brazos Area Plan in principle was tabled until the next regular meeting. The council adjourned subject to call. APPROVED: ATTEST: 'fl~5f £rpot7>f? Mayor / ... .. w Cf) <( w a.. cl:S ~ :J 0::: 0 0 OJ ... .... ~ ORDINANCE NO. 357 AN ORDINA?CE CLOSING THE 500 BLOCK OF FIDELITY STREET, RESERVING TO THE CITY A m'ILITY EASEMENI' ON SAID PROPERTY AND DECLARING AN EMERGENCY. WHEREAS, the City Council of the City of College Station, Texas, has determined that the 500 block of Fidelity Street in the said City of College Station, Texas, is not in fact a street and is not functioning as such at this time, and WHEREAS, it appears to the advantage of the City to reserve a utility easement on this street for the construction of sewers, water lines, electrical energy transmission lines, gas lines, telephone lines and general utility purposes, THEREFORE, BE IT ORDAINED by the City Council of the City of College Station, Texas: 1. The 500 block of Fidelity Street of College Station, Texas, is hereby closed as a public street. 2. An easement is hereby reserved to the City of College Station, Texas, in the area formerly known as the 500 block of Fidelity Street, in the said City of College Station, Texas, said easement to extend ten (10) feet . ·. -. . on each side of the center line of ::the area now known as the 500 block of Fidelity Street, and said easement to be reserved to the City of College Station for the erection of sewers, water lines, electric_al energy trans- mission lines, gas lines, telephone lines and general utility purposes. 3. The condition of the said Fidelity Street endangers the safety and health of the population of College Station, and it is necessary that an easement be reserved to expedite the construction of utilities, and it is the determination of the City Council that such facts constitute and create an emergency and an urgent public necessity, and because of the foregoing it is ORDERED that this ordinance be passed and take effect as an emergency measure and that same shall be in full force and effect immediately from and after its passage. PASSED AND APPROVED this 24th day of September, 1962. APPROVED: A1TEST: May~ == City Secretary ' Jane Kee City Planner City of College Station P.O . Box 9960 NORMA MILLER 504 GUERNSEY COLLEGE STATION, TEXAS 77840 ( 409) 696-4454 College Station, Texas 77842 Re : Open Records Request (4of8}.- Ms Kee : cc . I L\l '°}I /-I '<-rv <2 ;f- (~o Lu 'r ~ { September 2 Is', I 999 This request is made under the Texas Open Records Act, Tex. Gov't Code Section 552, which guarantees the public's right of access to infonnation in the custody of governmental agencies . In accordance with section 552 .221 of the law, which requires that the officer for public records "shall promptly produce such infonnation for inspection, duplication, or both, in the offices of the governmental body ," I respectfully request to review of the following infonnation: I am requesting all documentation, letters, memoranda, reports , schedules, etc. between Jane Kee and M ike McClure (and McClure Engineering) for the last two years . Please communicate with me by telephone as to when would be a convenient time to review it. My telephone number is 696-4454 after office hours ... I shall look forward to hearing from you promptly, as require d by the Act. Thank you for your cooperation . Very truly yours, n~ 'R, rn·,,,°"' Nonna Miller Tuesday, January 19, 1999 APPOINTMENT DETAILS : (8 :30 AM -9 :30 AM) plans review (10 :00 AM -1 :00 PM) greenways master plan (2:00 PM -3 :00 PM) Mike McClure -Cardinal dead-end (3 :30 PM -5 :00 PM) Crowley Predevelopment (Dev . Serv . Trng . Rm .) Jane Kee 1 10/7 /99 -10:48 AM Friday, October 17, 1997 APPOINTMENT DETAILS: (8 :30 AM - 9 :30 AM) Mike McClure Phase 8 Woodcreek (OCR) (10 :00 AM -12:00 PM) pre PRC (OCR) (12:00 PM - 1 :30 PM) Parkland Dedication Ordinance (Central Park Conference Room) Jane Kee 1 10/7/99 -10:50 AM Connie Hooks City Secretary City of College Station P .O . Box 9960 NORMA MILLER 504 GUERNSEY COLLEGE STATION, TEXAS 77840 ( 409) 696-4454 College Station, Texas 77842 Re : Open Records Request (5 of 13/. Connie : (_, L .. I '-.I I , September 28th, 1999 This request is made under the Texas Open Records Act, Tex. Gov't Code Section 552, which guarantees the public's right of access to information in the custody of governmental agencies . In accordance with section 552 .221 of the law, which requires that the officer for public records "shall promptly produce such information for inspection, duplication, or both, in the offices of the governmental body," I respectfully request to review of the following information : I am requesting all documentation, letters , memoranda, reports , schedules , etc. between Jane Kee (and the Planning Department) and Jim Callaway concerning Welsh, Fidelity, Fairview, and Park Place streets and including, but not limited to the plats, surveys, properties , streets , utilities, easements, alleys, developments with in this boundary area . Please communicate with me by telephone as to when would be a convenient time to review it. My telephone number is 696-4454 after offioe how:s . I shall look forward to hearing from you promptly, as required by the Act. Thank you for your cooperation . Very truly yours, \\ ~~ cR . ("()\ \\-e~ Norma Miller ~ ~ S~P ~ : :1~ ~ IQ'. l (.,~U w'- CITY ECRETARY'S OFFICE WELLBORN ROAD CORRIDOR STUDY WELLBORN CORRIDOR STUDY COMMITTEE Dan MacGilvray, Chairman David Brochu George Dresser College Station Planning Department February, 1986 I• II. III. IV. v. VI. VII. TABLE OF CONTENTS INTRODUCTION •..••••••• A. Reasons for Study. . • • • . . . . B. Establishment of Committee C. Moratorium Period ••• PAGE NO. . . . . . • 1 • • 1 . • 1 . • 1 DESCRIPTION OF MORATORIUM AREA AND STUDY AREA • • 2 METHODOLOGY • . 4 BASE STUDIES. • • • 5 CITIZEN INPUT . 9 UNIVERSITY INTERFACE. . . .10 SPECIFIC AREA ANALYSIS • .11 A. Area A -West Park . . . . . . . . . . . . . . .12 B. Area B -Southgate Village Area. . . . . . . . .16 c. Area c -Serial Zone 195 . . . . . . . . . . . .18 D. Area D -Serial Zone 200 . . . . . . . . . .20 E. Area E -Industrial Core . . . . . . . . . . . . . .23 F. Area F -TAMU . . . . . . . . . . . . . . . . .25 G. Area G -Serial Zone 173 . . . . . . . . . . . .26 ., WELLBORN ROAD CORRIDOR STUDY INTRODUCTION On August 15,1985 the Chairman of the Planning & Zoning Commission, Ronald Kaiser, presented to the Commission a request to recommend to the City Council that a moratorium on rezoning requests be enacted in the area along Wellborn Road between Jersey and F.M.2818. Several proposals made in the area would have definite impacts on this part of the City and there seemed to be a large amount of land speculation taking p l ace in the area. Mr. Kaiser appointed a committee of George Dresser, David Brochu and Dan MacGilvray as Chairman to establish boundaries and study the design ated area. The Commission approved a recommendation that a moratorium be imposed _ for a period not to exceed three months. The exact boundaries of the moratorium area were to be established by the committee prior to the request before Council. 1 Figure 1 Study Area Moratorium Area -------------- OAKWOOO AP TS ----t --... .-/ r I 1 • ' I L J DESCRIPTION OF MORATORIUM AND STUDY AREA The committee met on August 20, 1985 and after discussion concluded that there should be two areas involved, the moratorium area itself and a larger study area. It was determined that the moratorium area should be bounded on the north by Jersey, along the west by Marion Pugh Drive and the extension of the old I&GN railroad right-of-way to 2818, along 2818 on the south to Tributary B of Bee Creek, north along Tributary B to the Southland Addition, east along the south side of the Southland Addition to Pecan Tree Estates, north along the west side of the Pecan Tree Estates to Holleman, no r th across Holleman Dr. to lot 6 of the Hrdlicka Subdivision , north to the City of College Station tract (Lincoln Center), north along the west side of Lincoln Center to Southgate Village Apartments, along the south and east sides of the Southgate Village Ap a rtments to Luther St., north across Luther St., then along Highland north to Jersey. (Figure 1.) The committee felt that possible recommended changes in either the land use plan or the City's development policies would have an impact on an area broader than just this moratorium area. They therefore recommended that a larger study area be estab- lished, but that this area not be subject to a moratorium. This area was determined to be extended to Welsh St. along the east and 2818 along the west. (Figure 1.) 2 On August 22, 1985 the City Council approved a moratorium in the area proposed by the committee with the exception that two rezoning requests already having been submitted to staff would be allowed to proceed through the process. The following report is the culmination of efforts by the committee and the City's Planning Division staff. 3 METHODOLOGY The study involved the compilation and review of the following information: 1. The Staff provided base studies consisting of current land use and traffic patterns, topography and flood- plain location, current zoning and ownership patterns, utility availability, current and projected population for the area, and owner-occupied vs. renter patte r ns. 2 . The committee sought input from owners of substantial undeveloped tracts by inviting them to an open commit- tee meeting at City Hall. 3 . The Staff provided current development trends and pres- sures in the area, as well as existing plans, policies and supporting information. 4. Using the above data the committee then i den t ified specific problems and divided the study area into 7 geographic areas for more detailed analysis. 5. They created alternative development scenarios and made population and traffic projections based on these. 6. The scenarios were evaluated and land use, zoning and policy recommendations were made. 7. Area traffic counts and peak traffic load data were re- viewed. 4 Figure 2 Serial Zones a B I 0 246 ; l . BASE STUDIES A base map of the area was prepared by the Planning staff at a scale of 1:600. This map includes street rights-of-way, lots and blocks and subdivisions. Overlays were prepared indicating current zoning, current ownership, topography and floodplains. A current land use map was prepared at a 1:200 scale. Current land use data was gathered by windshield survey, review of the "Landuse Inventory Data Base by Serial Zone" maintained by the Planning Division, and review of aerial photographs. Population capacity estimates were calculated using dwelling unit counts from the Landuse Inventory and persons per household figures obtained from the State Highway Department. The study area is comprised of five serial zones; 173,. 194, 195, 200 and 246. (Figure 2.) 5 The follo wing table indicates current (1985) land uses by acreage and percent by serial zone for the study area. Landuse Inventory by Serial Zone in Acres Total Acres Vacant La nd Single Family Mu I t J -Fam i I y Commercial In dustrial Texas A & M Parks/Recreation Transportation Pub I ic Land Othe r Uses Flood Plain Zone 173 308 .66 197 .70 13.40 54 .65 8. 31 2 . 41 0.00 0.00 32 . 19 0 .00 0 .00 0.70 Zone 194 144 .90 13 ,4 4 68.58 9 .65 3,57 0 .00 0 .00 13 .87 29 .48 0 .00 6 . 31 0 .00 Zone 195 127 . 10 47 .43 29.93 3 l. 03 0 .00 0.00 0 .00 0.00 17 . 55 0 .00 l. 16 0 .00 LAND USE ACREAGE Zone 200 !57.80 121. 18 2.00 8.22 4.65 0 .00 0.00 1 .40 20.35 0.00 0 .00 23.80 Zone 246 271. 94 0 .00 6.00 0 .00 0 .00 0 .00 245.86 0 .00 20 .80 0 .00 0.00 29.67 Study Area Total 1010 .40 379 .75 119 . 91 103 .55 16 .53 2 .41 245.86 15 .27 120 .37 0.00 7 .47 54 . 17 Pe rcent Percent of of Area Ci ty 100 .00% 37 .58% l 1 .87% 10.25% 1 . 64% 0 .24% 24. 33% 1. 51% 11 .91% 0 .00% 0 .74% 5 .36% 5.9 1% 2.22 % 0 .70 % 0 .61% 0 .10 % 0 .0 1% 1 .44 % 0 .09 % 0 .70 % 0 .00 % 0 .04 % 0 .32 % The following table indicates current (1985) dwelling unit counts and population estimates by serial zone for the study area. Dwelling Unit Count and Estimated Population by Serial Zone Study Percent Pe r cent Zone Zone Zone Zone Zone Area of of 173 194 195 200 246 Total Area City Single Family Units 78 299 120 2 3 502 17.88% 8.51% Duplex Units 20 50 98 0 0 168 5.98% 8 .63% Multi-Family Un its 902 234 681 320 0 2137 76 . 10% 18 .96% Mob II e Homes 0 0 0 0 0.04% 4 .35% Mob! le Home Park Spaces 0 0 0 0 0 0 0.00% 0 .00% Group Quarters 0 0 0 0 0 0 0.00% 0 .00% Total Units 1000 584 899 322 3 2808 100.00% 9. 77% Percent Units Occupied 96 .40% 91 .40% 91 .40% 80.00% 100.00% Number Occupied Units 964 534 822 258 3 2580 100.00% 9 .59% Person! Per Unit 1 .92 2.57 2 .57 2.57 2.75 Estimated Population 1851 1372 2 112 662 8 6005 100.00% 11 . 49 % 6 A review of the Tax rolls gave an estimate of ownership and rental patterns in the moratorium area along the east side of Wellborn Road based on the assumption that tax certificates sent to addresses other than the property in question indicated a probable rental situation. By this estimate approximately 69% of the residences in the moratorium area along the east side of Wellborn appear to be rental units. 7 Figure 3 Floodplain : .......... ..;~ Figure 4 Zoning / ,1' / The floodplain was located on the map by using the Flood Insurance Rate Maps provided by the Federal Emergency Management Agency. (Figure 3.) Current zoning was taken from the City's Official Zoning Map and transferred to the 1:600 overlay. (Figure 4.) The City's Water and Sewer Division had placed property line boundaries on existing topography maps. These maps were then used to gather ownership information from the City's Tax Off ice. Utility service availability information was gathered from the City's Engineering Division. Traffic information including traffic counts and peak load was gathered from the City's Traffic Engineer. 8 CITIZEN INPUT The committee requested citizen input from property owners of large vacant tracts in the moratorium area. Notices were mailed to thirteen property owners and on September 20, 1985 a meeting was held with staff, the committee and several land owners. Consensus was that Marion Pugh should be extended to Holleman before the Luther Street crossing is completely closed and Jones- Butler should extend through the West Campus to Jersey. It was recommended that a meeting with the University be held discussing access across the West Campus. Land owners also felt that commercial services are needed in the area now but that development should be encouraged, not on a lot by lot basis, but by consolidating lots. Access onto the east side of Wellborn was discussed and consensus was that r ezoning individual small tracts of land should not occur and shared access between tracts should be required. Owners recognized the Southland Addition as a stable low density residential area. The area north of Luther could be encouraged to develop as higher density residential by consolidating small lots into larger parcels of block size or greater, or the area could be preserved as an existing low density residential area providing single family rental housing in close proximity to the University. 9 Figure 5 University Interface Map I I) . --., ;=...---I -J] 1_,1J a F M 2 8 18 -7,---· --------- UNIVERSITY INTERFACE On October 21, 1985 a meeting was held between two committee members and Mr. Charles Caffee, Assistant Manager of the University Office of Planning. Maps indicating TAMU's plans for the Industrial Park area and intramural facilities were provided. (Figure 5.) When asked about TAMU future plans for the rectangle of land south of Jersey between Treehouse Village and 2818, Mr. Caffee referred the committee to Dr. Charles McCandless, Chairman of the Long-Range Planning Committee. A subsequent telephone conversation with Dr. McCandless revealed that the University has no specific plans for developing any major facilities in this area. He did not rule out any future extension of Jones-Butler Road across University land, indicating that the University would be willing to join forces with the City to promote projects of mutual benefit, such as the eventual elevation of Wellborn Road between University Drive and Jersey. Dr. McCandless offered to arrange a meeting of the committee and/or City staff members with the University Long-Range Planning Committee if appropriate. 10 Figure 6 Area . Analysis Map ~ F 246 \ r •. 7r ·-------\r ·i -~ AREA ANALYSIS The committee divided the study area into 7 geographic areas (refer to Figure 6.) and examined each in terms of existing plans, development trends and pressures and specific problems. Alternative land uses and resulting population and traffic projections were made. The committee then developed specific recommendations for each individual area. The following is a description and summary of the above for each area. 11 Figure 7 Area A .. AREA A Area A lies along the east side of Wellborn Road, between Jersey and Luther Streets (Figure 7). The "Southgate" business district is located in the northern portion of this area, along Jersey. An apartment complex is located at the intersection of Jersey and Wellborn. South of the apartment complex, along Wellborn, is a vacant C-N zoned tract, a church, and a dance/exercise studio. The balance of Area A is residential. This residential area is comprised primarily of older single family residences. Deterioration of a number of residences is occurring. Currently 20% of the frontage along the east side of Wellborn is zoned a commercial classification. Low density residential is the primary use indicated for this area in the Comprehensive Plan. A commercial area is planned along Jersey Street from the Wellborn Road intersection east to Fairview Street. The Balance of the area is planned for low density residential uses. In 1985 a rezoning was granted which changed a small portion of R-1 property to A-P for a dance/exercise studio. This was the fourth request for a small area rezoning or use permit in the West Park area since 1980. Several specific problems were identified by the Committee in this area. The intersection of Wellborn Road, Jersey Street, the railroad, and a portion of Marion Pugh Blvd. creates traffic 12 congestion, traffic hazards, and possible emergency vehicle access problems. Residential drives along the east side of Wellborn Road (four curb cuts) also pose traffic constraints and hazards. A commercial area is adjacent to a res i dential area in the northern portion of this area, creating land use conflicts. The high percentage of rental occupancy in this area has resulted in the dilapidation of some dwelling units. The condition and capacity of area street and utility infrastructure limits potential density of development. Several alternatives were identified (for area zoning). These include: 1. Allow additional C-1 or C-3 zoning along Wellborn . This alternative has a number of associated problems. Additional curb cuts would be requested along Wellborn Road. The depth of existing lots along Wellborn is inadequate for commercial development. Commercial zoning would probably create "strip commercial" development. Extensive buffering would be required to minimize land use conflicts. 2. Allow small parcel rezoning to R-4 or R-5. This alternative would increase residential curb cuts and traffic on Wellborn Road. Increased demands would also be placed on area streets, water and sewer systems. Land use conflicts with area residences could occur since redevelopment would occur on residential size lots in a developed residential area. 3. Allow redevelopment to R-4 or R-5 densities of minimum areas of one entire block. This alternative could minimize 13 land use conflicts. Increased demands on area infrastructure could be minimized by requiring street and utility improvements by developers (as part of a replatting process). 4. Leave the area single family residential and encourage improvement and maintenance of area housing. This alternative would allow the preservation of this area of older single family housing supply. Stricter code enforcement could slow the decline and dilapidation of rental units in the area. The City's Community Development Block Grant programs could aid in funding the repair and rehabilitation of both owner and renter occupied units. Problems with residential drive access to Wellborn Road could be addressed by replatting and redevelopment of various parcels as single family lots with alternate access (alleys, access easements, etc.). Rezoning parcels to R-lA would provide incentives for single family redevelopment (increased density, flexible lot requirements). Increase in demands on infrastructure would be minimized. After consideration of the various alternatives identified for this area the Committee developed several recommendations for area zoning and land use. The existing residential uses should be preserved as the area is stable with a demand for rental units near the University. The City should encourage code enforcement, utilize tax incentives where appropriate to encourage rehabilitation and renovation and should utilize Community 14 Development Block Grant funds to upgrade the area where possible. Zoning should remain R-1 with perhaps some R-lA unless full blocks are consolidated for a change to a higher density residential zoning. The replatting and redevelopment of lots fronting on Wellborn should be encouraged to reorient automobile access to alleys or side streets rather than Wellborn Road. No additional curb cuts should be allowed within 200' of the Jersey/Wellborn Intersection. 15 Figure 8 Area .B AREA B This area is bounded by Luther to the north, Welsh to the east, Holleman to the south, and Wellborn to the west (Figure 8). The area has a variety of land uses. Predominant uses within the area include commercial uses at the intersection of Luther and Wellborn, a large apartment project south of Luther, and Lincoln Center on Eleanor Street. The balance of the area is comprised of single family residences and vacant tracts. As in area A the single family units in this area are older, and a number of the units in this area are deteriorating or dilapidated. Currently 58% of the frontage along Wellborn is zoned a commercial classification. The land use plan, as it pertains to this area, includes a commercial area at the intersection of Luther and Wellborn Road surrounded by high density residential to the south and east and two park areas. The balance of area B is reflected as low density residential on the land use plan. Community Development Block Grant funds were expended in the eastern portion of this area on the rehabilitation of rental property and on park improvements. In 1984 a request was made to change 2.5 acres in the western portion of the area from R-5 to C-3 zoning. The location was the northeast corner of Holleman and Wellborn. This request was originally denied. However, in 19 85, a request at the same location for C-1 zoning was approved for 2.33 acres. 16 Several specific problem areas were identified. There are residential lots fronting on Wellborn Road with drive access to Wellborn Road. Land use conflicts and potential conflicts exist due to C-1/R-l adjacencies along Wellborn. A number of the dwelling units in this area are dilapidated. Although a number of alternatives were discussed for this area, only one realistic alternative was identified, due to the fact that the area is largely developed. The existing residential lots fronting on Wellborn are not desirable due to the orientation of driveway access onto Wellborn. The best zoning in this area would be commercial provided lots are consolidated (replatted) with existing commercially zoned lots/tracts. Vacant areas behind (east of) the tracts fronting Wellborn could be considered for multi-family (R-4, R-5) zoning or possible use for mobile or modular home development. Community Development Block Grant funded housing rehabilitation should continue to upgrade the existing housing stock. 17 Figure 9 Area ·c OAKWOOD APTS AREA C Area C is bounded by Wellborn Road, Holleman Drive, Welsh Avenue, and Southwest Parkway (Figure 9). The northern portion of this area consists primarily of low density (single family and duplex) uses. Many of the single family residences in this portion of the area are deteriorating or dilapidated. Multi- family residential uses are found along Welsh Avenue in the eastern portion of the area and along Southwest Parkway in the southern portion of the area. Uses along Wellborn Road in this area include single family residences and vacant tracts. Large vacant tracts are found at the intersections of Holleman and Wellborn and Southwest Parkway and Wellborn. Currently 53% of the frontage along Wellborn is zoned a commercial classification. The land use plan reflects low and medium density residential and medium density residential uses in the northern portion of this area; high and medium density residential uses are reflected in the southern portion. There has been a stabilizing effect in the Southland and McCullough subdivisions due to Community Development Block Grant funds that have been expended on street improvements, water and sewer line improvements, street lighting systems and housing rehabilitation. In 1983 a request at the southeast corner of Holleman and Wellborn was approved to rezone R-1 property to allow 8 acres of R-2 duplex development and 1.5 acres of neighborhood commercial (C-N) development. In 1984 approximately 18 3 more acres were rezoned to various commercial classifications along the east side of Wellborn, specifically .6 acres of C-N on the southeast side of Holleman and Wellborn and 2.5 acres of C-1 on the northeast side of Southwest Parkway and Wellborn. In 1985 2 acres of C-N property was rezoned to a C-1 classification at the southeast corner of Holleman and Wellborn. Numerous problems were identified by the Committee in this area. There are deteriorated, non-conforming commercial uses along Wellborn. Several residential lots front on Wellborn with drive access to Wellborn. Southland Street and Oney Hervey Drive are both "dead-end" streets that exceed City cul-de-sac standards. Land use conflicts (and potential conflicts) exist due to C-1/R-l, R-2 adjacencies. Dilapidated dwelling units are found in portions of this area. As is area B, no realistic alternative scenarios were developed for this area. The best uses for the area south of Holleman (between Holleman and the Southland Addition) should include multi-family (R-4 or R-5) housing or moderate cost (modular or mobile home) housing. Southland Street should be extended to connect with Oney Hervey Drive. Residentially zoned lots along Wellborn Road should be consolidated with multi-family zoning (R-4 or R-5) or mobile/modular home development encouraged on these tracts. The use of Community Development funds should be continued to preserve and upgrade existing housing stock. Non- conf roming uses should be phased out as the opportunity arises. 19 Figure 1 O Area D ~ RoWNsroNE--4''! .... f~~~~.J.-.'9m __ ..,~-~~ APTS I ~· ". I l I I I L_ AREA D This area is bounded by Southwest Parkway, Welsh Avenue, F.M. 2818, and Wellborn Road (Figure 10). Development in area D is limited to the northeast portion of the area. Land uses in this area include commercial uses at the intersection of Southwest Parkway and Welsh Avenue, a school bus maintenance facility adjacent to the commercial area, and apartments along the south side of Southwest parkway. The balance of area D is vacant. Currently 100% of the frontage along Wellborn is zoned commercial in this area. Commercial uses are planned at the intersection of Southwest Parkway and Welsh. Public-institutional uses are reflected to the south and southwest of the planned commercial area. Planned uses along the south side of Southwest Parkway west of the commercial area include a high density residential area and a park. Planned uses along Wellborn Road include a commercial area at the Southwest Parkway intersection with off ice-commercial and high density residential areas to the south, along Wellborn Road. A medium density residential "core" is planned for this area. This area is relatively stable with a large portion currently vacant. A large portion of this vacant area is used for agricul- tural purposes for the grazing of cattle. Development to date has been limited to apartment construction along the south side of Southwest Parkway and commercial construction in the area of the intersection of Welsh and Southwest Parkway and to the south 20 along Welsh. There have been few rezoning requests in the last five years and none in the last three years. In 1981 a request for R-4 zoning was denied on a C-N tract of 3.34 acres fronting on Welsh. Then in 1982 this 3.34 acres was rezoned from C-N to C-3 and currently is the location of an office/warehouse build- ing. Later in 1982 the City approved a rezoning from A-0 to R-4 for 6.76 acres on the south side of southwest Parkway east of Wellborn. This land is currently vacant. A potential problem that exist in this area is a C-3/R-l adjacency in the southeast portion of the area. This is not a problem at this time as all R-1 tracts involved are owned by the College Station Independent School District and are used, or planned to be used, for school facilities. Another problem identified is the poor access to a large R-4 zoned tract located in the central portion of this area. The Committee recommends that the central portion of this area be a low density residential, preferably single family residential, use. Access through this area should be improved without crossing the creek located along the southwest portion of this area. This could be accomplished with either of two possible street alignments. One alignment would include the extension of a new street from Southwest Parkway south to the central portion of the area. This street would turn to the east, cross the c.s .I.S.D. tract south of the bus maintenance facility, and intersect with Welsh Street. An alternative alignment would be to take the street extension south from Southwest Parkway to 21 2818, intersecting 2818 east of the creek. In either case, a series of cul-de-sacs or loop streets could be developed to provide internal access. The only other possible access into this area would involve crossing the creek and intersecting the 2818/Wellborn Road "interchange", a long, curved section with high-speed north bound traffic. 22 Figure 11 Area E D n ii . . . AREA E Area E extends form Jersey Street south to F.M. 2818 (Figure 11). This area is bounded to the east by Wellborn Road, to the west by Marion Pugh Blvd. and its southward extension (the abandoned I&GN railroad right-of-way). The northern portion of this area is primarily industrial, although a potion has been cleared for possible commercial development. The southern portion of this area is primarily vacant, with scattered warehousing and related activities near West Luther Street and scattered residential uses near F.M. 2818. The southern 2000' of property fronting on Wellborn in Area D is currently zoned R-1. This area is reflected as an industrial area on the land use plan. This area is referred to as the industrial core large l y because of the current zoning designations and projected land use designation on the City's Future Land Use Plan. However, in 1982 a rezoning took place that changed a 37 acre M-2 industrial tract, situated south of Luther with frontage along Wellborn, to 9 acres of M-1 Planned Industrial and 28 acres of R-5 Multi- Family. This R-5 tract is currently developed as a large apart- ment project. Since 1983, and the previously mentioned rezoning, the number of multi-family units has nearly doubled in areas E and G putting increasing pressure on the road system, the Wellborn/Jersey intersection and the City's emergency services serving this increased density west of Wellborn. In 1984 C-1 23 General Commercial uses were deleted from the M-2 zoning district except for the M-2 tract located between Jersey and Luther on the west side of Wellborn. There was an approved site plan for a large hotel at this location at that time. Specific problems identified in this area result from the location of the railroad. Tracts in this area have primary access only to Marion Pugh Blvd. These tracts are impacted by railroad traffic blocking rail crossings and creating noise. The southern potion of this area is impacted by floodplain and is low-lying and poorly drained. It is recommended that some C-N zoning be placed on the west side of Wellborn at the Holleman/Wellborn intersection to serve the apartments and duplexes that have developed in the Woodway area. The M-2 zoning should be phased out as Marion Pugh Blvd. is not constructed to carry heavy industrial traffic. Developable land in this area should be zoned M-1 and R-4/R-5 in "layers" along the railroad (similar to the M-1 and R-5 area south of West Luther). The low-lying areas should be used for a park. Marion Pugh Blvd. should be extended to F.M. 2818. The alignment of Southwest Parkway should be preserved to accommodate future possible extension across the railroad. 24 Figure 12 Area F • n 0 ( •••••••••••••••••••• AREA F Area F is bounded by Marion Pugh Blvd., West Luther Street, F.M. 2818, and Jersey Street. A high density residential area and a vacant tract are located in the northeast portion of this area. The balance of the area is part of Texas A&M University. The land use plan reflects high density residential uses in the northeast port~on of this area. The balance of the area is reflected as public & institution~l. Continued development of the west campus and TAMU research facility to the north of this area will require better access and circulation through the University owned portion of this area. The only specific problems identified in this area was the lack of access through the University tract. The committee recommends that the City work with the University with regard to the possible extension of Jones Butler Rd. to the west campus. It appears that this extension could tie in with a street on the west campus, and this should be required, since any encouragement of through traffic into the west campus would eliminate some traffic from the Jersey/Wellborn/railroad intersection. 25 Figure 13 Area G .. AREA G Area G is bounded by the abandoned I&GN railroad right-of-way, F.M. 2818, and West Luther Street. Land uses within this area include medium to high density residential uses in the central and northeast portions of the area. There are scattered residences near the intersection of West Luther and F.M. 2818. The balance of the area is vacant. This area is planned as a medium and high density residential area. A park is reflected on the land use plan in the eastern· portion of area G. Industrial uses are reflected at the intersection of F.M. 2818 and West Luther. Between 1976 and 1983 this area was practically the only developing area within the study boundary. Development was taking place in the form of multi-family residential units and some duplex units. Since 1983 the number of multi-family units has increased greatly. Several specific problems were identified in this area . The zoning and development that has occured has left a haphazard zoning pattern in the undeveloped portion of the area (heavy industrial zoning adjacent to residential zoning). There are sewer limitations in the northwest portion of the area, which drains into the Brazos River watershed. Jones Butler Road is not constructed to City standards. Luther Street is not constructed to City standards. 26 '. ·• The committee developed several recommendations for this area . The extension of Jones Butler Rd. (as a City standard cross section) from Luther to 2818 should be accomplished. West Luther should be widened and paved. The City should move to rezone the M-2 district located along West Luther to eliminate any future land use conflicts. 27 r AN ANALYSIS OF THE ZONING ON THE PROPERTY AT 200 MONTCLAIR MONTCLAIR 79' SUBJECT ... [;usEI It(' PARCEL ~ #'"" ~ ~ ~~ [ . ~ Q ~ ~~ ~ co en Go Cl2 ~ \;~ en §~ ~\; ~ ~ ~ ~~ ..., ~ .q,~ ~~ ~ I 0 ~ JULY 1989 «~ PREPARED BY: THE COLLEGE STATION PLANNING DIVISION AN ANALYSIS OF THE ZONING ON THE PROPERTY AT 200 MONTCLAIR PREPARED AT THE REQUEST OF THE PLANNING AND ZONING COMMISSION BY THE COLLEGE STATION PLANNING DIVISION JULY, 1989 PLANNING DIVISION STAFF JANE R. KEE, SENIOR PLANNER KIM JOHNSON, PLANNING ASSISTANT NANETTE MANHART, MAPPING SPECIALIST SHIRLEY VOLK, PLANNING TECHNICIAN IN ACKNOWLEDGMENT OF SUPPORT ENGINEERING DIVISION STAFF VERONICA MORGAN, GRADUATE DESIGN ENGINEER AN ANALYSIS OF THE ZONING ON THE PROPERTY AT 200 MONTCLAIR INTRODUCTION:: On April 6, 1989, the Planning & Zoning Commission considered a request for a conditional use permit for a fraternity house to locate in an existing residence at 200 Montclair. The property is zoned R-6 Apartment Buildings/High Density. During consideration of the request for the use permit there were several residents of the surrounding neighborhood who expressed concern over the intrusion of a fraternity use into the neighborhood. Comments were made concerning the historic significance of some of the structures in the neighborhood and the attempt by some owners to renovate and improve their properties. In light of these comments (and the ultimate denial of the use permit by the Commission) direction was given to staff to analyze the R-6 zonin~ on this property and determine if there might be a more appropriate zoning classification. · PROPERTY DESCRIPTION: The property at 200 Montclair (West Park, Block 8, Lot 14) is a .5 acre lot with 79 feet of frontage on Montclair and 269 feet along a public alley running along the north side. There is a single family structure on the front portion of the lot that is used as rental housing. The back 105 feet of the lot has an approved use permit to operate as a commercial parking lot to serve a bookstore across the alley to the north. The alley is used for access to the commercial area to the north as well as to the parking lot and the residential structure on this lot. Ownership of the property is listed as Myrna J. Hughes, Trustee. THE STUDY AREA AND ITS LAND USES: The study area as defined for this report is bounded by Jersey Street on the north, Fairview Street on the east, Wellborn on the west and Fidelity on the south. The subject property is adjacent to a commercial development on the north and is surrounded by largely single family residential development on the east, south and west. There are 3 duplexes scattered among the single family homes, a church on the western boundary and commercial developments along the periphery of the area. See Figure 1. ZONING IN THE STUDY AREA: The City of College Station was incorporated in 1938. At that time portions of this neighborhood existed. When the first zoning ordinance was adopted in 1940 properties in the block fronting on Jersey between Montclair and Highland were placed in a commercial category. The property at 200 Montclair, along with a few others nearby, were zoned as apartment areas. As time went by and areas were rezoned, the property at 200 Montclair was left isolated with a multi-family classification. · 1 Zoning in the study area consists largely of R-1 (25.1 acres) with two small areas of R-lA zoning (.34 acres). There are .84 acres of vacant C-N zoning near the intersection of Jersey and Wellborn, .33 acres of A-P zoning along Wellborn where the Jazzercise business is located, .61 acres of developed R-6 at the corner of Jersey and Wellborn and 2.60 acres of C-1 running along the majority of the Jersey frontage. See Figure 2. DISTRICT R-6 APARTMENT BUilDINGS/lllGH DENSITY: The R-6 zonin~ district is intended to provide land for a variety of housing types, primarily multiple family dwellings. The district is designed to provide the widest range of housing types as well as the highest density in the community. Permitted uses include: Single family dwellings Duplex dwellings Townhouse dwellings Apartments Convalescent homes Dormitories Rooming/Boarding houses Fraternity /Sorority houses or meeting places as Conditional Uses DEVELOPMENT SUITABILITY: Development suitability ratings for the study area are included in Plan 2000. The majority of the area is reflected as having high suitability for commercial uses with the most southern portion of the area shown as being suitable for multi-family uses. A portion of this area including the subject property is reflected in a noise zone because of the railroad. If the efforts underway to lower the railroad tracts are successful, the noise will become less of a problem. TENURE PATTERN: A review of ownership records and utility records indicate that 48% of the single family residential structures in the study area are owner occupied. The neighbor- hood appears to be at a critical stage. It is an older area where many of the residential structures have made the transition from owner occupied structures to rental properties. The neighborhood may stabilize or begin a decline deJ?ending on future trends relative to owner/renter patterns and efforts to improve existing properties. See Figure 3. 2 UTILITY CONSTRAINTS: Utility locations are reflected on Figure 4. Water is provided to the subject lot but fire hydrant placement is poor in the vicinity of the property. Any development greater than low density residential would require improvement m the hydrant Jo cation. Recent testing of the sewer in the vicinity indicates the line serving this property to be in good condition and sewer should pose no constraints to development in the area. The drainage infrastructure in the area was designed based upon low density residential development. Rezoning to intensify the land use on the property would increase run-off from that originally planned. Access is poor for this property. Current access to the lot is from the adjacent alley located along the northern boundary of the property. The width of this alley is fifteen (15') feet and was designed as a service entrance for the commercial development across the alley and for access to the single family residence on this lot only. It was not designed to handle traffic that would be generated with commercial or high density residential use. The alleY. will be seal-coated in the near future to improve the integrity of its surface. It will also be signed as a one-way alley with traffic flowing from Montclair to Highland. · WELLBORN ROAD CORRIDOR STUDY: In 1986 a sub-committee of the Commission prepared a report, a portion of which covered this study area. The report addressed land uses and problems in the area and made recommendations for future land uses and development. In the report it was recommended that " ... existing residential uses should be preserved.... The City should encourage code enforcement, ... rehabilitation and renovation .... Zoning should remain R-1 with perhaps some R-lA unless full blocks are consolidated for a change to a higher density residential zoning." THE LAND USE PLAN AND DEVELOPMENT POLICIES: The City recently adopted revisions to its land use plan by revising its future land use map and development polices. The future land use map reflects this area, including this lot, as low density residential. The surrounding areas are reflected as commercial to the north and low density residential to the south, west and east. According to the development policies "[m]ulti-family residential development provides appropriate separation between single family residential areas and higher intensity land uses." Higher density development should locate along the boundary of residential areas with lower densities toward the center of neighborhoods. The policies also address transitional areas which are essentially buffer areas between higher intensity and lower intensity land uses where lower intensity land uses would not be appropriate yet commercial uses would not be consistent with development policies. Appropriate uses in a transitional area would include office- commercial, neighborhood commercial, multi-family, and/or conditional uses. 3 CONCLUSIONS: Although this property is near the boundary of the residential area with which it is associated, and it presently separates commercial uses from low density residential uses, it is not likely that it would be redeveloped at multi-family densities due to its small size and the development presently on the property. There are uses permitted in the R-6 zone that might be feasible using the existing structure. These would include a convalescent home or a rooming/boarding house. A fraternity or sorority would be allowed as a conditional use. However, access and parking might be a problem depending on the intensity of the use. If properties in the area were consolidated with this property, then multi-family development might be feasible. To leave this property as R-6 in anticipation of future consolidation creates a situation with some of the characteristics of the spot zone which violates sound planning principles. The zone is an isolated district unrelated to area districts. It does not comply with the land use plan map. Also R-6 uses would be contrary to established land use patterns in the area. Some uses in the A-P administrative professional office district would maintain the integrity of this lot as a buffer between the commercial and low density residential uses. However, the provision of parking could be a problem and access might have to be improved. Also a chanl?;e to A-P zoning would make the residential use non- conforming which would limit, to some extent, additions and/or improvements to the structure. A-P zoning would likely not be perceived by the property owners in the neighborhood as a step toward preserving the single family character of the area. Zoning the property to a single family residential classification would alleviate the concern on the part of residents who do not want to see their nei~borhood make the transition to higher density residential uses and thereby lose its single family character. This would also be in compliance with uses reflected on the future land use map. It would conflict with development policies which strive to buffer low density residential uses from high intensity uses. However, this land use situation now exists as the property is presently developed. The alley somewhat buffers the incompatible land uses and existing uses face away from each other, which helps avoid visual conflict. Rezoning to sin~le family would preclude further intrusion into the neighborhood of those uses perceived as having an adverse effect on the character of the area. 4 FIGURE 1 FAIRVIEW AVE. S. MONTCLAIR AVE. S. SUBJEOI- PARCEL HIGHLAND ST. S. MONTCLAIR STUDY LAND USES 0 500 I SCALE (In Feet) cri i-= (/) ~ 0 a::: (.!) MARYEM ST. LEGEND D Single-Family Residential C2J Duplex Residential 121 Multi-Family Residential I:;:] Commercial I:] Public Map produced by Planning Div. -6/89 FIGURE 2 FAIRVIEW AVE. S. 5 6 7 ,j 9 10 vi 1 2-t7 4 vi 1 4 ,_: ,_: C/) Cf) -.,, -\ >-Cf) lJ 0:: l :::> '--0:: 2 (!) w 15 14 13 12 11 z 8 7 6 5 ::.c: 17 < \.. 1 ~ MONTCLAIR A VE. S. 1 2 3 L.-R 4 -6 5 ---6. 14 i.-Sl ( :-71 BJEC ·T .... 8' p, RCEL 9 " 10 ~ J 11 1, ~ 23 12 15 16 17 20 21 22 13 24 HIGHLAND ST. S. 1 23 2 7 24 8 9 10 ~ ~ .... 25 ~ l 13 14 h -26 ,.... ( I y r-:;... ;:::::--27 ' 6 1~t}--~ u r---r---. 28 ~ 18 19 29 ........ r:-................ 20 21 ·Af. <1s4 ......._ 22 30 ~ ......................... A3l,r:> l.Lsof?N -....._..........._ I\. T MONTCLAIR STUDY ZONING MAP · 0 500 SCALE On Feet) 1 5 6 6 15 14 13 12 vi ,_: Cf) 9 10 11 r-... ._ 12 l.-'"'!'\ 13 \.. LJ 14 15 16 7 8 / ... I\ 9 v [\ 10 \ • .LJ 11 12 MARYEM ST. 5 6 7 7 11 1 2 3 4 5 6 7 8 1 2 3 4 5 6 vi ,_: C/) Map produced by Planning Div . -6/89 u:i G:i w ~ (/) ~ (/) ~ ~ !;;: I") N j LL.'. FIGURE 3 FAIRVI EW A\/f... S • • 0 0 ~101110 1 ~10 0 •• I 0 .----.,,~ 111111~~1• 111 -1~10000I111• r '" MONTCLAIR A Vf... S. 1111 D D II i.--S U BJ E CT Iii PARC E L 11 11 1111111111 D loo o 111 oloo HI GH LA ND ST. S. D II D Ill D 111 D Bl f:°.},.f . 21 54 We:f.LaoRN RoA.o u:i ...: (/) ~ 0 ~ " D D D Bl Ill D D MARYEM ST. D Ill Ill D II 1111 D II II D Ill D D u:i ...: (/) ~ :J w Cl G: MONTCLAIR STUDY 1111 TENURE MAP 0 I SCAL E (In Feed 500 I LEGE ND II Rental Structures D Own e r -Oc c upied Structures Mop p roduced by Plonning Div . -6/89 FIGURE 4 l ......, FAIRVI EW A'-\_ 5! r n ui ;; .,_; IJ') --0:: 3 0::: w ;: ~ '- ~AIA-MIE......_ - - -·--~ t r I I ,,.._SL BJE CT_ I PJ ·RCEL I I I I !b lJ ,lJJl lj_ -I lb -f t-"T ----1 ~ ( I I ui I I , ______ .,_; I IJ') r--r-------~ -------l __ r-----0 I 0::: --(!) I ............ ......._ MA RYEM ST. /:'.Af. 215.,. ............................ ......._ I WcL.L801rN ......._......_ lro~0 ......._ ~ L~ t___ . 4 ,.... _) ui .,_; IJ') r ~ r..J TC LAIR STUDY --------MON LEGEND UTILITY LOCATIONS 0 500 I I S e wer Line Water Line -$-Hyd rant --- • Manhole SC AL E (In Feet) Map produced by Planning Div . -6 /89 r .. Project: STAFF REVIEW COMMENTS No.1 College Park Resubdivision (600-604 Welsh) Ji. Show existing improvements on amending plat. (Staff needs to verify that no encroachments will be created with this final plat.) V"i . Show dimensions of individual lots on amending plat. ~ How will each of the proposed lots obtain water and sewer service. / 4. Are you asking for zero lot line approval? If so, then show the proposed setbacks and proposed development on amending plat. Reviewed by: Jessica Jimmerson Staff Review Comments Page 1 of 1 0612.9199 VI. '"t.V TRANSMISSION OK TX/RX NO. CONNECTION TEL CONNECTION ID START TIME USAGE TIME PAGES RESULT *************************** *** ACTIVITY REPORT *** *************************** 8475 15122181821ppp161 Nelson L Nagle 01 1 26 07:39 00'26 1 OK "t'.:J VV..t,. ..• @> . "J .. ;i 2 w Cf) <( w 0.... a:s ~· .. · .. ~·-/~~· 0 0 ,.,,,, ... •._..I...J l...L! J) ·~ !..:J c_ MINlTI'ES OF REGULAR MEETING July 20 1 1962 Members Present: Mayor Langford; Councilmen Landiss, Orr, Anderson, Rosprim, Boyett; City Secretary Manning, City Attorney Sandstedt, City Manager Boswell Visitors Present: Ernest L. Brown, Jr., James R. Brown, Harrison Hierth On motion by Councilman Anderson, seconded by Councilman Orr, Council- man Sorrels' request that he be excused from this meeting was granted. A public hearing on Ordinance No. 346, an ordinance determining to assess a part of the cost of improving Fairview Avenue, was set for 7:00 p.m. No objection was offered and the mayor declared the hearing closed. On motion by Councilman Orr, seconded by Councilman Anderson, Ordinance No. 350, an ordinance closing hearing and levying assessments for a part of the cost of improving a portion of Fairview Avenue, was passed and approved. A public hearing was called on the question of rezoning a 115 1 strip of land in . the Gorzycki Addition. On motion by Councilman ~~fson, seconded by Councilman Boyett, Ordinance No. 351, an ordinance rezoning a 115' strip of land in the Gorzycki Addition from District No. 2, Second Dwelling House District, to District No. 5, Second Business District, ·was passed and approved. On motion by Councilman Anderson, second ed by Councilman Rosprim, the city manager and mayor we re authorized to purchase lot 13, block 9 1 College Hills Estates from Mr. E. M. White. Purchase price is to b e $10,000 with a down payment in the amount of $2 ,500 and paym ent of $2,500 in each of the years 1963, 1964 and 1965. On motion by Councilman Landiss, second ed by Councilman Orr, the city c;ttorney was instructed to prepare an ordinanc e c Josing n stree t in the 500 bl ock of Fid e lity with th e city majntaining a 20 foot uti li t:• easement. Th e ma tt e r of purchasing a n e w polic e c a r was t a b} ed unt:i 1 th e next meeting and City ~~n ager Boswell was in st ru cted t o in ves ti ga t e th e po ssi bili ti es of p u rchasin g an int e rceptor. On 1a otion by Councilman Ander s on, second EH l by Counc ilmaJ1 Rosµri11, C1rci i - r,;:,n c e No . 352 , an ordin ance r-,uthori z ing th e i:::s u <rnce of $ 35 ,00G Ele ctric L i gh t and l'ow er Sys t em f\eve nue Bonds , Wi'JS pc.s se d ;-,nd :1 .pµr oved . On mo ti on by Co un cjl1:1<i11 Orr, se cond ed 1..Jy Counc i lnwn L;rnuiss , th e bid o f :•.io r o n e y , iJe i ss ne r &. Co ., L1c . o n t he sc:;l .o o f .i>35 ,0Cl() Light and Power .3ys t e 1!! Jo nd s was acc e p t e d . ,-·· 00778 /3 :;:J r;r:· 0 0 cc @) w (/) <( w (i_ o.'j ~ ::J 0:: 0 0 cc The city manager, city engineer, and mayor were au thor.ized to ask for a conference with the officials of A & M College to discuss the closing of the street in front of the post office. The council adjourned subject to call. APPROVED: Mayor ATTEST: City Secretary .. · .. 00779 }<../ "' @) w (/) <{ w 0.... cij :2 ::J 0:: 0 0 ro MINUTES OF REGULAR MEETING August 17, 1962 Members Present: Mayor Langford; Councilmen Orr, Anderson, Boyett, Rosprim, Sorrels, Landiss; City Secretary Manning, City Attorney Sandstedt, City Manager Boswell. Visitors Present: Ray F. Downey, Mrs. A. P. Boyett, Mrs. T. G. Gorbet, J. B. Moon, Mrs. J. P. Dobyne, J. B. Lauterstein, Mary F. Salvaggio, William R. Elledge, C. H. Godfrey, J. P . Dobyne. On motion by Councilman Anderson, seconded by Councilman Orr, the pur- chase of a police car from Cade Motor Company for $2,230 was authorized. The passing of Ordinance No. 353, an ordinance closing a part of Fidelity Street, was tabled until the next regular meeting. The city attorney was requested to draft an ordinance changing the name of Main North to College Main North. On motion by Councilman Sorrels, seconded by Councilman Landiss, the request of the Jr. Chamber of Commerce to solicit customers for street numbers was granted. Councilman Orr and City Manager Boswell were appointed by the Council to .. · confer with A. & M. College and -State Highway Department officials concerning proposed improvements of FM 60 and Jersey Street. ® " " Lu (/) <.:{ w CL cij ~ :J 0::: 0 0 ro On motion by Councilman Anderson, seconded by Councilman Landiss, the committee previously appointed to confer with the college on matters con- cerning improvements of Jersey Street was disbanded. Councilman Orr's request for permission t o be e xc used from the regular me eting of Se ptember 24 was granted. On motion by Councilman Boyett, seconded by Coun cilm an Rosprim, the following resolution was passed. RESOLUTION Th e c ity council of the c ity of College Sta tion respec tfully re quests that the street in fr on t of the U. S. Post Offi ce be r e open ed t o through tra ffi c p en ding a s t udy by a ll a ge nc ies con - ce rned of the pr o blems of tra f f i c control a t t he no rth ga t e entran ce to the c ampus o f A. & M. Co l l ege . Wh ateve r t h e pr og r am fi nal l y ag r ee d u po n may be , c ontro l of tra ffi c alo ng FM 60 wi l l de vo l v e u po n the c ity , a nd for th a t r ea s on t he co un c il fu r t he r requests t ha t the ci ty be g iven t h e op po r t unity to pa rti ci pa t e in t h e ul t i ma t e so l ution of t h is pro bl em. The co un ci l a d j ourned sub j ec t t o cal l . ATTE ST: f(. //. I//' Jr _< --1.1 ,;J.[j ·~/ May or · w tf) c:( w 0... ~ ~. :J 0::: 0 0 co • .. w (/) <( w 0... KINUTES OF REGULAR MEETING September 24, 1962 Members Present: Mayor pro-tem Orr; Councilmen Rosprim, Boyett, Sorrels, Landiss; City Attorney Sandstedt, City Manager Boswell Visitors Present: Mitchell D. Decuir, G. L. Gorteiser, D. D. Dillard, Hal B. Jones, John R. Anthis, Perry Thompson, Don H. Nicholas, D. G. Mama, John H. Miller, Jr., Frank c. Carlstrom, Jerry D. Kassaw, L. w. Christian, R. Bruce Lane, Robert A. Miears, Weldon w. Nash, Raymond E. Bridges, Robert u. Bier, Don M. Henderson, L. R. Vaughn, Ed Holdredge, Homer Norton Mayor Langford and Councilman Anderson were excused from the meeting. Fred J. Benson appeared before the council and outlined briefly some of the plans of A & M College concerning the future plans for internal traffic on the campus and some of the effects it may have on the city. A public hearing was called on the question of rezoning a part of Lot 1 and all of Lot 2 in the D. A. Smith Subdivision. There were no objections and the mayor pro-tea declared the hearing closed. On motion by Councilman Boyett, seconded by Councilman Rosprim, Ordi- nance No. 354, an ordinance rezoning a part of Lot 1 and all · of Lot 2 in the D. A. Smith Subdivision, was passed and approved. On motion by Councilman Landiss, seconded by Councilman Rosprim, Ordi- nance No. 355 regulating the passing of school buses in the city limits was passed and approved. On motion by Councilman Boyett, seconded by Councillll8.I1 Rosprim, the Ordi- nance pertaining to window peeping was tabled until the next regular meeting. On motion by Councilman Boyett, seconded by Councilman Rosprim, Ordi- nance No. 356, an ordinance changing the name of Main Street North to College Main North, was passed and approved. On motion by Councilman Landiss, seconded by Councilman Rosprim, Ordi - nance No. 357, an ordinance closing the 500 block of Fidelity Street, was passed and approved. On motion by Councilman Sorrels, seconded by Councilman Boyett, Ordi - nance No. 358 prohibiting the selling of gasoline in containers other than a metal container was passed and approved. On motion by Councilman Sorrels, seconded by Councilman Landiss, the following resolution was adopted: 00782 7 7 ' ' , ~ 7 RESOLUfION Be it resolved by the City C.ouncil of the City of College Station, Texas, that all developers of subdivisions or addi- tions in the approximate 250 acres of land that can be se.rved by gravity sewer lines above the inlet of the proposed outfall sewer line from Carter's Grove addition to the City of College Station, Texas, be charged $115 per acre of auch subdivision or addition as a proportionate cost of the outfall sewer line from the Carter's Grove addition. Be it further resolved that all developers of additions or subdivisions created along the outfall sewer line south of Carter's Grove addition who connect into said outfall sewer will be charged at a rate as determined by the _City_ E_ngi~~er_ ing Department a.s · nece_ssa.ry to reimburse the city for the cost of construction of the said outfall sewer line in excess of the $28 1 922.64 to be obtained from. the 250 acres of land above the inlet to the outfall sewer line. On motion by Councilman Sorrels, seconded by Councilman Landiss, the city manager was authorized to attend the International City Managers Meeting in Philadelphia, Oct 14-18 at city expense. Ed•·Holdredge appeared before the council for the · residents on · Ashburn Street concerning the drainage problem in that area. The engineers are to make a study of the problem. L. R. Bond appeared before the council to discuss ·the plumbing inspec- tions and the present ordinance which is out-dated. It was agreed that at the time they present a revised ordinance to the Bryan Council they would also present a copy to the city council of College Station for consideration. On motion by Councilman Sorrels, seconded by Councilman Landiss, the city manager was instructed to recognize the gas pipe code until such time as a proper ordinance has been adopted. Homer Norton appeared before the c0uncil concerning a traffic problem created on Highway 6. He was instructed that this problem would have to be taken up with the Highway Department. The recommendation of the City Planning and Zoning Commission that the city council adopt the Brazos Area Plan in principle was tabled until the next regular meeting. The council adjourned subject to call. APPROVED: .ro'TEST: %~;ff iirpol"l/,2 Mayor / @) ORDINANCE NO. 357 AN ORDINA?CE CLOSING THE 500 BLOCK OF FIDELITY STREET, RESERVING TO THE CITY A UI'ILITY EASEMENI' ON SAID PROPERTY AND DECLARING AN EMERGENCY. WHEREAS, the City Council of the City of College Station, Texas, has determined that the 500 block of Fidelity Street in the said City of College Station, Texas, is not in fact a street and is not functioning as such at this titte, and WHEREAS, it appears to the advantage of the City to reserve a utility easement on this street for the construction of sewers, water lines, electrical energy transmission lines, gas lines, telephone lines and general utility purposes, THEREFORE, BE IT ORDAINED by the City Council of the City of College Station, Texas: 1. The 500 block of Fidelity Street of College Station, Texas, is hereby closed as a public street. 2. An easement is hereby reserved to the City of College Station, Texas, in the area formerly known as the 500 block of Fidelity Street, in the said City ot College Station, Texas, said easement to extend ten (10) feet on each side of the center line of i:the area ~ow known as th~ 500 block of Fidelity Street, and said easement to be reserved to the City of College Station for the erection of sewers, water lines, electric_al energy trans- mission lines, gas lines, telephone lines and general utility purposes. 3. The condition of the said Fidelity Street endangers the safety and hea.lth of the population of College Station, and it is necessary that an easement be reserved to expedite the construction of utilities, and it is the determination of the City Council that such facts constitute and create an emergency and an urgent public necessity, and because of the foregoing it is ORDERED that this ordinance be passed and take effect as an emergency measure and that S8Jlle shall be in full force and effect immediately from and after its passage. PA$SED AND APPROVED this 24th day of September, 1962. APPROVED: A1TEST: City Secretary , , ",9QS63 ,,.;. \., ··• " . 600-604 Welsh Late May-June Prior to purchasing the property Nelson Nagle made several phone inquiries of the possibility of adding one or two homes to it. Staff informed Nagle of the minimum requirements. Apparently Mr. Nagle sought additional land opportunities including the possible abandonment of Fidelity and land purchase from George Dresser. Upon request, staff researched and located information regarding the Fidelity abandonment. June 2, 1999 City staff held a predevelopment meeting with Nelson Nagle, George Dresser, and Brandon Nagle to discuss the shifting of interior lot lines of 3 lots on Welsh Street. Mr. Nagle provided a conceptual plan for staff to review. Mr. Nagle was informed of the applicable ordinance requirements for an amending plat. He inquired about the ownership of Fidelity Street and whether it could be platted with Lot 10. June (the following weeks) Jane Kee instructed staff to inform Mrs. Miller about Mr. Nagle's replatting. Mrs. Norma Miller came into Development Services and met with Bridgette George inquiring about the final plat. She requested, and was given, copies of the drawings from the predevelopment meeting, portions of the proposed final plat, as well as the minutes from the Council meeting abandoning Fidelity Street. She inquired about taking the other half of Fidelity Street via the replatting process. Bridgette informed her that she could rep lat her property and include Fidelity if she desired. Mrs. Miller was unhappy regarding the associated fees to replat. June 17 June 17-27 July 29 August 16 September 15 Mr. Nagle submitted a Final (amending) Plat application with the appropriate documents required to process the plat. Staff processed the plat. Reviews resulted in a few required revisions, which were addressed by the applicant. Staff then approved the plat. The final plat was filed for record and the Brazos County courthouse. Upon request Scott Hester went out to the property and met with Nelson Nagle to discuss parking and driveway access. Mr. Nagle was informed of what he would and would not be allowed to do. Scott gave him the minimum zoning requirements. Stylcecraft Homes applied for the building permits. Norma Miller called Bridgette George saying she was informed that Mr. Nagle was going to build a home on the lot adjacent to hers. She inquired about various ordinance and subdivision regulation requirements. She stated that she was not aware that he was going to build a home there until now. September 16 September 17 September 20 Building permits were issued for 600 and 604 Welsh . Mrs. Miller came in to see Bridgette George about Mr. Nagle building on the lots he just platted. She stated that she wasn't aware that he was going to build homes on those lots . Bridgette informed her that Mr. Nagle had met all the zoning and subdivision regulations when replatting and could build homes on the two vacant lots. Mrs. Miller also stated that she received a letter in 1967 (she thought that was the date) giving her Fidelity Street. Bridgette asked if she had a copy of the letter and Mrs. Miller stated she wasn't sure where it was and whether or not she could find it. Bridgette offered to have the Council Office and Legal check to see if they had records of the letter. Mrs. Miller was given another copy of the Council minutes from 1962 because she misplaced her previous copy. Bridgette checked with Connie Hooks and Jan Schwartz and neither found any reference to the letter Mrs. Miller said she received giving her Fidelity Street. Connie stated that records for that year have already been destroyed . Mrs . Helen Pugh contacted Sabine and was informed that building permits for two additional homes on the property were pending or may have already been issued. Mrs . Pugh expressed her concern regarding the relatively small lot sizes and the potential for student rental housing . Mike Luther came in to meet with Jeff Tondre regarding drainage ordinance compliance . Mr. Luther requested that Mr. Tondre revoke the building permit and he was informed that Mr. Tondre could not do that. Nelson Nagle called Bridgette asking why the City stopped construction. She stated that she was not aware that construction had been stopped. Mrs . Miller came to see Bridgette and voiced her concern about drainage and parking issues regarding the property. Bridgette made a copy of the conceptual layout for the parking and driveways, and informed Mrs. Miller that Scott Hester went out to the property and met with Mr. Nagle to discuss parking issues. Scott Hester called Norma Miller regarding cement trucks destroying the tree limbs in her yard and also discussed driveway and parking zoning requirements. Mrs. Helen Pugh and Mr. Benito Flores-Meath met with staff to voice their concern regarding the City allowing homes to be built on the lots, stating that we were allowing an increase in density. September 28 September 29 September 30 Norma Miller, Helen Pugh, and Steve Esmond visited with Carl Warren , Plans Examiner and Lance Simms , Building Official expressing concerns regarding possible encroachment of a carport, driveway radii, and other more zoning-related concerns. They requested revocation of the building permits and were informed though revocable, there were no compelling grounds. The three also met with Jeff Tondre regarding drainage and other issues. Steve Esmond visited with Jane Kee and Natalie Ruiz and discussed the aforementioned and other related issues, including "O" lot line construction. He also requested a special emergency ZBA meeting. Jane indicated that staff would look into the question . Mr. Flores-Meath hand-delivered a letter regarding his concerns regarding the aforementioned issues. Mrs. Miller submitted a ZBA application. She visited with Bridgette informing her that several large trees and crepe myrtles had been cut down several days before. Mr. Flores-Meath hand-delivered a second letter regarding additional concerns. Steve Whitten, who lives in the vicinity, visited with Scott Hester regarding driveway access issues. -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas , Texas Page 1 of 84 Bicteratd. Heath . Smile,, Pollan , Kover &, MtDanleL J.L.P, iiiirii!MURl44 .. ._. ... -- Puhlit·atious Loclltion,.. • Feature Publication QUICK SEARCH - The Compleat Primer on the Law of Zoning: From Regulation to Litigation Robert F . Brown Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. Presented To: The Texas Municipal league Intitute-Public Official Liability Workshop , February 26, 1999 Author's Acknowledgement This article would not have been possible without the collaborative efforts of Terrence S. Welch and Kent S . Hofmeister, two of my partners at Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. This article evolved from prior articles that the author has co-written with both Mr. Welch and Mr. Hofmeister. Mr. Welch made significant contributions to Part I: Substantive Land Use Laws and Regulations and Mr. Hofmeister was a co-author of the predecessor article to Part II: Litigating the Land Use Case. Thanks are extended to both Mr. Welch and Mr. Hofmeister for their contributions to this work. Due to the size of this article, it has been broken into two separate HTML documents. You are now viewing Part 1. TABLE OF CONTENTS • PART ONE : SUBSTANTIVE LAND USE LAWS AND REGULATIONS o I. ZONING • A. Statutory Basis -Chapter 211, Texas Local Government Code • B.lliscretion In Zoning Matters -Applicable Law • C. Immunity • D . Conflicts Oflnterest • E . Frequently Asked Questions http ://www.bickerstaff.com/articles/primerzonel.htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 2 of 84 o II . COMPREHENSIVE PLANS • A . Statutory Basis -Chapter 219 , Texas Local Government Code • 13."What Is A Comprehensive Plan? • C. Frequently Asked Questions o III. PLATS AND SUBDIVISIONS • A. Statutory Basis -Chapter 212, Texas Local Government Code • B.lliscretion In Platting Matters -Applicable Law • C. Frequently Asked Questions o IV . ZONING BOARD OF ADJUSTMENT • A. Statutory Basis -Chapter 211, Texas Local Government Code • B.Functions And Powers Of The Zoning Board Of Adjustment • C . Variances • D. Special Exceptions • E. Use Variances • F. Unnecessary (Or Undue) Hardship o V. PLANNED DEVELOPMENT o VI. SPECIFIC USE PERMITS • A. Specific Use Permits • B. Dallas Development Code o VII. IMP ACT FEES o VIII. VESTED RIGHTS • A. Overview of Former Law • B. Committee Report to the 1995 Amendments • C. Significant Amendments and Implications • 1. Definitions • 2. Uniformity of Requirements The Bad News • 3. Effective Date • 4. Exemptions The Good News • 5. Developers Can Change the "Snapshot" • D. Summary o IX. NONCONFORMING USES/NONCOMPLYING STRUCTURES AND SITES • A. Nonconformance With Zoning Requirements • 1. Nonconformance Defined • 2. "Grandfathering" --The Right to Continue Use • 3. Amortization/Termination • a. Amortization • b . Termination • 4. Vested Rights • 5 . Special Treatment For Churches, SOBs, Liquor Establishments And Governmental Entities • a. Churches • b. Sexually Oriented Businesses • c . Liquor Establishments • d. Governmental Entities • B. Administrative Relief • 1. Staff Level • 2. Planning And Zoning Commission • 3. Zoning Board of Adjustment o X. MUNICIPAL REGULATION OF SEXUALLY ORIENTED BUSINESSES (SOBs) • A. Regulate, Don't Eradicate • B. It's Not Expensive And You Need Not Reinvent The http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 J ' -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P ., Austin I Dallas, Texas Page 3 of 84 Wheel • C . A void Public Bloodletting • D. Guarantee Adequate Available Locations • E. Changes To The Locational Restrictions Should Be Supported By Studies That Indicate That The Available Land Area Has Not Fallen Below The Five Percent (5%) Or Otherwise Adequate Level • F. Make Legislative Findings • G . Be Strict With Yourself; Be Loose With Others • H . Remain Independent • I. Be Cautious • J. If Sued, Ask For A Jury And Explore Damages • K . Be Prepared For The Long Haul o XI. MUNICIPAL REGULATION OF ALCOHOLIC BEVERAGES • A. Preemption By The Texas Alcoholic Beverage Code • B. Areas Where Municipal Regulation Is Not Preempted • C. Common Issues • 1. Pre-June 11 , 1987, City Ordinances • 2. Regulation Of Beer And Wine Sales For Off- Premise Consumption • 3. Regulation Of Beer And Wine Through Specific Use Permits • 4. Nonconforming Uses • 5 . Non-Discriminatory Regulation Of Businesses Which • Are Engaged In The Sale Of Alcoholic Beverages • 6 . Private Clubs o XII. ESTOPPEL o XIII . THE OFFICIAL/LEGISLATIVE PRIVILEGE (Can They Really Depose Me?) o XIV. LEGAL CHALLENGES TO ZONING DECISIONS • A. Taking Challenges In General • 1. Federal Taking Analysis • 2. State Taking Analysis • B. Due Process And Equal Protection Challenges In General • 1. Federal Substantive Due Process Analysis • 2 . Federal Equal Protection Analysis • 3. State Substantive Due Process And Equal Protection Analysis • C. Procedural Due Process Challenges In General o XV. PRACTICAL TIPS FOR MAYORS AND COUNCILMEMBERS IN MAKING LAND USE DECISIONS • PART TWO : LITIGATING THE LAND USE CASE o I. INTRODUCTION o II. PRETRIAL • A. Preliminary Case Investigation and Analy sis • 1. Factual Analysis • a. Obtaining Records • b. Obtaining Statements • c. Key Individuals • d. Key Documents • e . Photographs • f . Private Investigators • 2. Legal Analysis • a. Causes of Action • b . Standards of Judicial Review http://www.bickerstaff.com/articles/primerzone l .htm 1016199 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 4 of 84 • c. Categories of Zoning Cases • d . Conflicting Circuit Views • e. Removal and Choice of Forum • f. Cost Estimates • g. Damage Estimates • B . Elements of the Case • 1. The Trial Notebook • a. Purposes of the Trial Notebook • b. Trial Notebook Sections • 2. Cause of Action Checklist • C. Substantive and Procedural Defenses • 1. Ripeness • 2. Exhaustion of Administrative Remedies • 3. Procedural Due Process • 4. Waiver and Estoppel • 5. Exemplary Damages • 6. Official Capacity Suits • 7. Absolute Legislative Immunity • 8. Qualified Immunity • 9. Official Immunity • D . Discovery • 1. A General Overview • a. Tickler Files • b. Status of the Parties • c. Discovery Agreements • d . Open Records Requests • 2. Written Discovery • a. Contention Interrogatories • b. Standard Interrogatory Questions • c. Requests for Production of Documents • d. Depositions on Written Questions • e . Motion to Enter Land • f. Document Numbers • 3. Depositions • a. Depositions By Agreement or By Subpoena • b. Master Deposition Exhibit Notebook • c. Purposes of the Deposition • d. Standard Deposition Questions • e. Preparing Your Witness for Depositions • f. Depositions in the Computer Age. • E. Experts • 1. Types of Experts • 2 . Retaining the Expert • 3 . Consulting Experts versus Testifying Experts • 4 . Communicating with Your Expert • 5.Experts'Reports • F. Pretrial Motion Practice • 1. Removal and Choice of Forum • 2. Motion to Disqualify Counsel • 3. Motion to Dismiss • 4. Motion for Summary Judgment • 5. Motion in Ljmine • G . Pretrial -The Final Thirty Days • 1. The Pretrial Order • 2. The Trial Brief • 3. The Pretrial Conference o III. THE TRIAL http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 5 of 84 • A. V oir D ire • B. The Opening Statement • C. Presentati on of the Evidence • 1. Document Management -Winning the Paper War • 2. The Master Trial Exhibit Notebook and Master Jury Exhibit Notebooks • D . Direct Examination • 1. Fact Witnesses • a . Know Your Witness and Rehearse Your Lines • b . Write Out Your Questions • c. Puttin' on the Ritz • d . Use Demonstrative Aids • e. Organize Your Presentation, and Then Organize it Again • 2. Your Expert Witnesses • E. Motion for Directed Verdict • F. Cross Examination • 1. Fact Witnesses • 2. Adverse Expert Witnesses • G. Motion for Judgment • H. Closing Argument o IV . POST TRIAL AND OTHER MATTERS • A. Appeal • 1. Scope of Review • 2. Appellate Practice Pointers • a . In Writing Your Brief, Remember Your Audience • b. Do Not Ignore the Facts of the Case • c. Do Not Dilute Your Assignments of Error by Inundating the Court with Them • d. Be Completely Candid with the Court • e. As in the Trial of the Case, Have a Theme • 3. Appellate Persuasion • B . Settlement • 1. Authority to Settle • 2 . Procedural Requirements • 3. Contract or Spot Zoning • 4. Conditional Zoning • C. Mediation • 1. Settlement Authority • 2. Advantages of Mediation • 3. Timing of the Mediation PART ONE: SUBSTANTIVE LAND USE LAWS AND REGULATIONS I. ZONING http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 6 of 84 The division of a city or area into districts and the prescription and application of different regulations in each district generally is referred to as zoning. A comprehensive zoning ordinance necessarily divides a city into certain districts and prescribes regulations for each one having to do with the architectural design of structures, the area to be occupied by them, and the use to which the property may be devoted. The use of a building may be restricted to that of trade , industry or residence. 10 Tex.Jur.3d, Building Regulations § 6. Zoning is distinguished from eminent domain in that zoning laws are enacted in the exercise of the police power, their enforcement does not constitute condemnation of property, and the constitutional requirement of compensation for the taking of private property does not restrict the exercise of zoning power. 77 Tex.Jur.3d, Zoning§ 2. Zoning also is distinguishable from the law of nuisance because comprehensive zoning ordinances have a much wider scope than the mere suppression of the offensive use of property. They act, not only negatively, but constructively and affirmatively, for the promotion of the public welfare. Moreover, the existence of a nuisance is not a necessary prerequisite to the enactment of zoning regulations. Id In Texas, the statutory authorization for municipal adoption of comprehensive zoning ordinances is found in Chapter 211 of the Local Government Code. A. Statutory Basis -Chapter 211, Texas Local Government Code § 211.001. Purpose The powers granted under this subchapter are for the purpose of promoting the public health, safety, morals, or general welfare and protecting and preserving places and areas of historical, cultural, or architectural importance and significance. § 211.003. Zoning Regulations Generally (a) The governing body of a municipality may regulate: ( 1) the height, number of stories, and size of buildings and other structures; (2) the percentage of a lot that may be occupied; (3) the size of yards, courts, and other open spaces; (4) population density; and ( 5) the location and use of buildings, other structures, and land for business, industrial, residential, or other purposes. (b) In the case of designated places and areas of http://www.bickerstaff.com/articles/primerzone l .htrn 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 7 of 84 historical, cultural, or architectural importance and significance, the governing body of a municipality may regulate the construction, reconstruction, alteration, or razing of buildings and other structures. ( c) The governing body of a home-rule municipality may also regulate the bulk of buildings. B. Discretion In Zoning Matters -Applicable Law As a general rule, local governmental officials are afforded broad discretion in zoning matters. Further, in determining the constitutionality of a zoning ordinance, a court is guided by the rational basis test under both the due process and equal protection clauses of the United States Constitution. Thompson v. Gallagher , 489 F.2d 443, 447 (5th Cir. 1973). See also Horizon Concepts, Inc. v. City of Balch Springs , 789 F.2d 1165, 1167 (5th Cir. 1986). Zoning ordinances and zoning legislation may be held unconstitutional only if they are shown to bear no possible relationship to the state's interest in securing the health, safety, morals or general welfare of the public and are clearly arbitrary and capricious. Village of Euclid v. Amber Realty Co. , 272 U.S. 365, 395 (1926); Village of Belle Terre v. Boraas , 416 U.S. 1, 7-8 (1974); Shelton v. City of College Station , 780 F.2d 475, 479-80 (5th Cir.), cert. denied , 479 U.S. 822 (1986). Within this general framework, a municipality's decisionmaking body is afforded considerable discretion in its zoning decisions. The decisionmaking body will not be judged according to whether its zoning decision was necessarily the best course for the community. See Shelton , 780 F.2d at 480 ("It is not the function of the trial court to determine whether the Town's zoning decision was necessarily the best course for the community, which effect would be to move the function of a zoning decision maker from a legislator to judge"). Rather, in making such a determination, the appropriate inquiry is whether there was a conceivable or even hypothesized factual basis for the specific zoning decision made. Shelton , 780 F.2d at 480-81. This is not to suggest, however, that a zoning decision can be justified merely by mouthing an irrational basis for an otherwise arbitrary decision. See Shelton , 780 F.2d at 481-82 (" [a] denial of a building permit on the King Ranch because of inadequate parking might fall into this category"). See also City of Cleburne v. Cleburne Living Center , 473 U.S. 432, 450 (1985) ("mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases" upon which a council may rely). "The key inquiry is whether the question is 'at least debatable."' Shelton , 780 F.2d at483. C. Immunity Local legislators who decide discretionary zoning matters are entitled to absolute immunity. Mayhew v. Town of Sunnyvale , 774 S.W.2d 284 (Tex.App.-Dallas 1989, writ denied). D. Conflicts Of Interest Attorney General Opinion DM-130 (1992) addresses city councilmembers http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P., Austin I Dallas, Texas Page 8 of 84 abstaining from participating in zoning decisions and voting ifthe zoning matter affects that councilmember's residence. Many municipalities have adopted ordinances that specifically address this issue. E. Frequently Asked Questions 1. Can the area of land subject to a zoning change be increased? No. For a zoning change to occur, there must be public notice of the proposed change in zoning. Since the public notice contains a description of the property for which a zoning change is sought, there would not be adequate notice of a change in the increased area. 2. Can the area ofland subject to a zoning change be reduced? Yes. Since there has been public notice of the portion ofland subject to a zoning change, decreasing the amount of land included in a zoning change would not violate the public notice requirements. The fact that a zoning change has been effected on only a portion of the land instead of all of the land is not injurious to those individuals who have an interest in the zoning change. 3 . Can the area ofland subject to a zoning change be zoned to a more intense use than it was advertised? No. In such a situation there would not have been adequate public notice . For example, if the public notice stated that there was an application to change land zoned agricultural to residential with lots of 10 ,000 square feet , the governing body of a municipality instead could not zone the land residential with lots of 5,000 square feet since there was not adequate public notice and the use is more intense than advertised. 4. Can the area ofland subject to a zoning change be zoned to a less intense use than it was advertised? Yes. In this situation there was adequate public notice. Thus, if the public notice stated that there was an application to change land zoned agricultural to residential with lots of 5,000 square feet , the governing body of a municipality instead could zone the land residential with lots of 10 ,000 square feet since there was adequate public notice and the use is less intense than advertised. 5 . What is spot zoning? Spot zoning is a rezoning of property that benefits a specific tract of land with a use classification that is less restrictive than provided by the original zoning ordinance . One theory of spot zoning is that when a city council departs from its comprehensive plan and rezones especially to benefit a small tract, it violates the state law requirement that zoning be "in accordance with a comprehensive plan." Mixon, Texas Municipal Zoning Law,§ 4.12 (2d ed. 1994). Thus , spot zoning is illegal because it is an arbitrary departure from the comprehensive plan. 6 . What is contract zoning? http ://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 9 of 84 Contract zoning is an unlawful activity whereby a property owner or developer agrees to develop or use property in a certain way in exchange for receiving a particular zoning classification from a city, i.e ., contract zoning involves an enforceable promise on the part of either the owners or zoning authority to rezone property. This is an area of the law that must be scrutinized if a city attempts to settle zoning/land use litigation by entering into a written settlement agreement. 7. What is conditional zoning? Conditional zoning is the granting of a zoning change by a governing body which is subject to agreed upon specific conditions which limit permitted uses in a zoning district. The typical scenario is that a governing body secures a property owner's agreement (1) to limit the use of the subject property to a particular use (or uses) or (2) to subject the tract to certain restrictions as a precondition to any rezoning. Unlike contract zoning, under conditional zoning a zoning authority requires an owner to perform some future act in order to receive rezoning, but does not enter into an enforceable agreement promising such rezoning. II. COMPREHENSIVE PLANS A. Statutory Basis -Chapter 219, Texas Local Government Code § 219.001. Purpose The powers granted under this chapter are for the purpose of promoting sound development of municipalities and promoting public health, safety, and welfare. § 219.002. Comprehensive Plan (a) The governing body of a municipality may adopt a comprehensive plan for the long-range development of the municipality. A municipality may define the content and design of a comprehensive plan. (b) A comprehensive plan may: (1) include but is not limited to provisions on land use, transportation, and public facilities ; (2) consist of a single plan or a coordinated set of plans organized by subject and geographic area; and (3) be used to coordinate and guide the establishment of development regulations. http://www.bickerstaff.com/articles/primerzone l .htm 1016199 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P ., Austin I Dallas , Texas Page 10 of 84 ( c) A municipality may define , in its charter or by ordinance, the relationship between a comprehensive plan and development regulations and may provide standards for determining the consistency required between a plan and development regulations. ( d) Land use assumptions adopted in a manner that complies with Subchapter C, Chapter 395, may be incorporated in a comprehensive plan. § 219.003. Adoption or Amendment of Comprehensive Plan (a) A comprehensive plan may be adopted or amended by .ordinance following a hearing at which the public is given the opportunity to give testimony and present written evidence and, if one exists, review by the municipality's planning commission or department. (b) A municipality may establish, in its charter or by ordinance, procedures for adopting and amending a comprehensive plan. § 219.004. Effect on Other Municipal Plans This Chapter does not limit the ability of a municipality to prepare other plans, policies, or strategies as required. § 219.005. Notation on Map of Comprehensive Plan A map of a comprehensive plan illustrating future land use shall contain the following clearly visible statement: "A comprehensive plan shall not constitute zoning regulations or establish zoning district boundaries." B. What Is A Comprehensive Plan? A comprehensive plan is defined as a long-range plan intended to direct the growth and physical development of a community for an extended period of time. Comprehensive planning is a process by which a community assesses what it has , what it wants , how to achieve what it wants and finally, how to implement what it wants. A comprehensive plan usually contains several componentstransportation systems, parks and recreational services, utilities, housing and public facilities. It also provides for the distribution and relationships of various land uses and often serves as the basis for future land development recommendations. The plan may be in the form of a map , a written description and policy statements, or it may consist of an integrated set of policy statements. An expert in urban planning, T.J. Kent, Jr., defines the comprehensive plan as a community's official statement of policies regarding desirable future physical development; the plan should be comprehensive in scope, general in nature and long-range in perspective. The comprehensive plan is the single most important document for managing a community's physical growth because it can consolidate and coordinate physical planning needs and goals and policies, as well as separate community studies that address various aspects of physical development in a city. Further, http://www.bickerstaff.com/articles/primerzone 1.htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 11 of 84 comprehensive planning, to be effective, has to be an on-going process, involving periodic evaluation and updating. To further aid in its effectiveness , the comprehensive plan has be to based on a shared vision of the community. This vision usually is constructed through consensus-based planning . See A Guide to Urban Planning in Texas at 1-10, 3-13-2 (Texas Chapter, American Planning Association). It should be noted that in Texas it is not mandatory that cities adopt comprehensive plans; however, if one is adopted, Section 211.004 of the Texas Local Government Code provides, in part, that "[z]oning regulations must be adopted in accordance with a comprehensive plan .... " Thus , any city that has a comprehensive plan must zone in accordance with that plan; otherWise , a strong argument may be made that any action not taken in accordance with the comprehensive plan is arbitrary and capricious as well as violative of a zoning applicant's federal and state constitutional rights. C. Frequently Asked Questions 1. Are Texas cities required to adopt comprehensive plans? No. In Bernard v. City of Bedford , 593 S.W.2d 809, 812 (Tex.Civ.App.Fort Worth 1980, writ refd n.r.e.), the Court of Civil Appeals wrote that " [ w ]e know of no rule of law which requires that a city adopt a comprehensive zoning ordinance which constitutes or becomes its comprehensive zoning or land use plan." The Court further wrote that "[t]here is no requirement that a single comprehensive ordinance be passed to constitute the comprehensive plan." Id. 2. If a city has adopted a comprehensive plan, may it nevertheless zone property? Yes. In City of Brookside Village v. Comeau , 633 S.W.2d 790, 793 (Tex.), cert. denied , 459 U.S. 1087 (1982), the Texas Supreme Court, in footnote 4 to its opinion, wrote as follows: Because Brookside Village, a general law city, has no comprehensive zoning plan, the ordinances in question do not come under article 101 la [the Zoning Enabling Act, now contained in Chapter 211 of the Texas Local Government Code], which embodies legislative authorization for zoning .... A city, however, may regulate land use under its general police powers. [Citation omitted]. 3 . If a city has adopted a comprehensive plan, must it follow it when making zoning decisions? Yes. As the Texas Court of Appeals wrote in Mayhew v. Town of Sunnyvale , 774 S.W.2d 284, 295 (Tex.App.Dallas 1989, writ denied), cert. denied , 498 U.S . 1087 (1991), "[t]he [municipal] legislative body does not, on each rezoning hearing, redetermine as an original matter, the city's policy of comprehensive planning. The law demands that the approved zoning plan should be respected .... The duty to obey the existing law forbids municipal actions that disregard not only the pr- established zoning ordinance but also the long-range master plans, and maps that have been adopted by ordinance." See also City of Pharr v. http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 12 of 84 Tippitt , 616 S .W.2d 173, 176-77 (Tex. 1981). III. PLATS AND SUBDIVISIONS A plat is a map of a specific land area such as a subdivision, showing the location and boundaries of individual parcels of land subdivided into lots with streets, alleys, easements, etc. drawn to scale. Black's Law Dictionary (6th ed.). In Texas , the statutory authority relative to plats and subdivisions is found in Chapter 212 of the Local Government Code . A. Statutory Basis -Chapter 212, Texas Local Government Code § 212.002. Rules After a public hearing on the matter, the governing body of a municipality may adopt rules governing plats and subdivisions of land within the municipality's jurisdiction to promote the health, safety, morals, or general welfare of the municipality and the safe, orderly, and healthful development of the municipality. § 212.004. Plat Required (a) The owner of a tract of land located within the limits or in the extraterritorial jurisdiction of a municipality who divides the tract in two or more parts to lay out a subdivision of the tract, including an addition to a municipality, to lay out suburban, building, or other lots, or to lay out streets, alleys, squares, parks, or other parts of the tract intended to be dedicated to public use or for the use of purchasers or owners of lots fronting on or adjacent to the streets, alleys, squares, parks, or other parts must have a plat of the subdivision prepared. A division of a tract under this subsection includes a division regardless of whether it is made by using a metes and bounds description in a deed of conveyance or in a contract for a deed, by using a contract of sale or other executory contract to convey, or by using any other method. A division of land under this subsection does not include a division of land into parts greater than five acres, where each part has access and no public improvement is being dedicated. (b) To be recorded, the plat must: (1) describe the subdivision by metes and bounds; (2) locate the subdivision with respect to a corner of the survey or tract or an original corner of the original survey of which it is a part; and http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P ., Austin I Dallas, Texas Page 13 of 84 (3) state the dimensions of the subdivision and of each street, alley, square, park, or other part of the tract intended to be dedicated to public use or for the use of purchasers or owners of lots fronting on or adjacent to the street, alley, square, park, or other part. ( c) The owner or proprietor of the tract or the owner's or proprietor's agent must acknowledge the plat in the manner required for the acknowledgement of deeds. ( d) The plat must be filed and recorded with the county clerk of the county in which the tract is located. ( e) The plat is subject to the filing and recording provisions of Section 12.002 , Property Code. § 212.005. Approval by Municipality Required The municipal authority responsible for approving plats must approve a plat or replat that is required to be prepared under this subchapter and that satisfies all applicable regulations . § 212.006. Authority Responsible for Approval Generally (a) The municipal authority responsible for approving plats under this subchapter is the municipal planning commission or, ifthe municipality has no planning commission, the governing body of the municipality . The governing body by ordinance may require the approval of the governing body in addition to that of the municipal planning commission. (b) In a municipality with a population of more than 1.5 million, at least two members of the municipal planning commission, but not more than 25 percent of the area outside the limits of the municipality and in which the municipality exercises its authority to approve subdivision plats. § 212.009. Approval Procedure (a) The municipal authority responsible for approving plats shall act on a plat within 30 days after the date the plat is filed. A plat is considered approved by the municipal authority unless it is disapproved within that period. (b) If an ordinance requires that a plat be approved by http ://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 14 of 84 the governing body of the municipality in addition to the planning commission, the governing body shall act on the plat within 30 days after the date the plat is approved by the planning commission or is considered approved by the inaction of the commission. A plat is considered approved by the governing body unless it is disapproved within that period. ( c) If a plat is approved, the municipal authority giving the approval shall endorse the plat with a certificate indicating the approval. The certificate must be signed by: (1) the authority's presiding officer and attested by the authority's secretary; or (2) a majority of the members of the authority. (d) If the municipal authority responsible for approving plats fails to act on a plat within the prescribed period, the authority on request shall issue a certificate stating the date the plat was filed and that the authority failed to act on the plat within the period . The certificate is effective in place of the endorsement required by Subsection ( c ). ( e) The municipal authority for approving plats shall maintain a record of each application made to the authority and the authority's action taken on it. On request of an owner of an affected tract, the authority shall certify the reasons for the action taken on an application. § 212.010. Standards for Approval (a) The municipal authority responsible for approving plats shall approve a plat if: (1) it conforms to the general plan of the municipality and its current and future streets, alleys , parks, playgrounds; and public utility facilities; (2) it conforms to the general plan for the extension of the municipality and its roads, streets, and public highways within the municipality and in its extraterritorial jurisdiction, taking into account access to and extension of sewer and water mains and the instrumentalities of public utilities; · (3) a bond required under Section http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P ., Austin I Dallas, Texas Page 15of84 212.0106, if applicable, is filed with the municipality; and ( 4) it conforms to any rules adopted under Section 212.002. (b) However, the municipal authority responsible for approving plats may not approve a plat unless the plat and other documents have been prepared as required by Section 212.0105, if applicable. B. Discretion In Platting Matters -Applicable Law As a general principle, the scope of discretionary authority in platting matters is severely circumscribed by state law. Section 212.010 of the Texas Local Government Code, above, provides the standards for plat approval. Thus , the approval of plats, both preliminary and final, is mandatory as long as the conditions enumerated in Section 212.0lO(a) are met. If a plat meets all applicable standards and regulations , the decisionmaking body's inclusion of new standards or guidelines, not mandated by the applicable zoning ordinance and subdivision regulations , prior to approval by that body of the plat may operate as a denial of the applicant's state and federal due process rights absent compelling health, safety or welfare concerns. Consequently, while there may exist in extremely limited circumstances valid health, safety or welfare concerns for rejecting a plat that complies with all applicable regulations , as a general principle, local governments are not granted wide latitude in considering platting issues; however, a city is not liable for negligence in the plat approval process. City of Round Rock v. Smith , 687 S.W.2d 300 (Tex. 1985). Further, the approval of plats is a governmental function. Tex.Civ.Prac. & Rem.Code§ 101.0215(a)(29). C. Frequently Asked Questions 1. Can a plat be tabled? No. A plat is approved by operation oflaw if it is not disapproved within thirty (30) days, as referenced above in§ 212.009 of the Texas Local Government Code; however, developers, in attempting to resolve differences and avoiding a council vote to disapprove or deny a plat, often agree on the record to a continuance to resolve those differences . This is almost always beneficial to the developer because he/she is not required to file a new plat and pay a new filing fee. Please be advised , however, that there is no reported case law that sanctions this procedure, although it is highly unlikely to be challenged. 2. Can a plat be approved subject to the staff working out certain problems? No. A plat must be approved or disapproved with specific conditions set out. As a practical matter, if the plat is acceptable except for some very minor condition~. no indication of North on the plat, an adjacent road name is improperly labeled, etc.), the plat may be approved subject to it being corrected and the motion to approve the plat should specifically state the necessary addition or modification. It is not advisable, however, to approve a plat subject to a major condition or modification~. all streets will be curvilinear, the number of lots will be reduced or http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 16of84 increased, easements will be added or removed, etc.). In those situation s , problems invariably arise and it is unclear whether there is an approved plat or not. A void this situation! 3. If a plat conforms to all applicable ordinances, must the city council approve the plat? Yes. If the plat conforms to the general plan of the city, its streets, alleys, parks, playgrounds, public utility facilities, sewer, water and all rules and regulations governing plats, then the city must approve the plat. IV. ZONING BOARD OF ADJUSTMENT A. Statutory Basis -Chapter 211, Texas Local Government Code § 211.008. Board of Adjustment (a) The governing body of a municipality may provide for the appointment of a board of adjustment. In the regulations adopted under this subchapter, the governing body may authorize the board of adjustment, in appropriate cases and subject to appropriate conditions and safeguards, to make special exceptions to the terms of the zoning ordinance that are consistent with the general purpose and intent of the ordinance and in accordance with any applicable rules contained in the ordinances. (b) A board of adjustment must consist of at least five members to be appointed for terms of two years. The governing body must provide the procedure for appointment. The governing body may authorize each member of the governing body, including the mayor, to appoint one member to the board. The appointing authority may remove a board member for cause, as found by the appointing authority, on a written charge after a public hearing. A vacancy on the board shall be filled for the unexpired term. ( c) The governing body, by charter or ordinance, may provide for the appointment of alternate board members to serve in the absence of one or more regular members when requested to do so by the mayor or city manager. An alternate member serves for the same period as a regular member and is subject to removal in the same manner as a regular member. A vacancy among the alternate members is filled in the same manner as a vacancy among the regular members. ( d) Each case before the board of adjustment must be http ://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 17 of 84 heard by at least 75 percent of the members. (e) The board by majority vote shall adopt rules in accordance with any ordinance adopted under this subchapter. Meetings of the board are held at the call of the presiding officer and at other times as determined by the board. The presiding officer or acting presiding officer may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. (t) The board shall keep minutes of its proceedings that indicate the vote of each member on each question or the fact that a member is absent or fails to vote. The board shall keep records of its examinations and other official actions. The minutes and records shall be filed immediately in the board's office and are public records. § 211.009. Authority of Board (a) The board of adjustment may: (1) hear and decide an appeal that alleges error in an order, requirement, decision, or determination made by an administrative official in the enforcement of this subchapter or an ordinance adopted under this subchapter; (2) hear and decide special exceptions to the terms of a zoning ordinance when the ordinance requires the board to do so; (3) authorize in specific cases a variance from the terms of a zoning ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of the ordinance is observed and substantial justice is done; and ( 4) hear and decide other matters authorized by an ordinance adopted under this subchapter. (b) In exercising its authority under Subsection (a)(l), the board may reverse or affirm, in whole or in part, or modify the administrative official's order, requirement, decision, or determination from which an appeal is taken and make the correct order, requirement, decision, or determination, and for that purpose the board has the same authority as the administrative official. http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley , Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 18of84 (c) The concurring vote of 75 percent of the members of the board is necessary to: (1) reverse an order, requirement, decision, or determination of an administrative official; (2) decide in favor of an applicant on a matter on which the board is required to pass under a zoning ordinance; or (3) authorize a variation from the terms of a zoning ordinance. § 211.010. Appeal to Board (a) Any of the following persons may appeal to the board of adjustment a decision made by an administrative official: (1) a person aggrieved by the decision; or (2) any officer, department, board, or bureau of the municipality affected by the decision. (b) The appellant must file with the board and the official from whom the appeal is taken a notice of appeal specifying the grounds for the appeal. The appeal must be filed within a reasonable time as determined by the rules of the board. On receiving the notice, the official from whom the appeal is taken shall immediately transmit to the board all the papers constituting the record of the action that is appealed. ( c) An appeal stays all proceedings in furtherance of the action that is appealed unless the official from whom the appeal is taken certifies in writing to the board facts supporting the official's opinion that a stay would cause imminent peril to life or property. In that case, the proceedings may be stayed only by a restraining order granted by the board or a court of record on application, after notice to the official , if due cause is shown. ( d) The board shall set a reasonable time for the appeal hearing and shall give public notice to the parties in interest. A party may appear at the appeal hearing in person or by agent or attorney. The board shall decide the appeal within a reasonable time. § 211.011. Judicial Review of Board Decisions http://www.bickerstaff.com/articles/primerzone 1.htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 19of84 (a) Any of the following persons may present to a court of record a verified petition stating that the decision of the board of adjustment is illegal in whole or in part and specifying the grounds of the illegality: (1) a person aggrieved by a decision of the board; (2) a taxpayer; or (3) an officer, department, board, or bureau of the municipality. (b) The petition must be presented within 10 days after the date the decision is filed in the board's office. ( c) On the presentation of the petition, the court may grant a writ of certiorari directed to the board to review the board's decision. The writ must indicate the time by which the board's return must be made and served on the petitioner's attorney, which must be after 10 days and may be extended by the court. Granting of the writ does not stay the proceedings on the decision under appeal, but on application and after notice to the board the court may grant a restraining order if due cause is shown. ( d) The board's return must be verified and must concisely state any pertinent and material facts that show the grounds of the decision under appeal. The board is not required to return the original documents on which the board acted but may return certified or sworn copies of the documents or parts of the documents as required by the writ. ( e) If at the hearing the court determines that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take evidence as directed. The referee shall report the evidence to the court with the referee's findings of fact and conclusions of law. The referee's report constitutes a part of the proceedings on which the court shall make its decision. (f) The court may reverse or affirm, in whole or in part, or modify the decision that is appealed. Costs may not be assessed against the board unless the court determines that the board acted with gross negligence, in bad faith, or with malice in making its decision. B. Functions And Powers Of The Zoning Board Of Adjustment http://www.bickerstaff.com/articles/primerzone l .htm 1016199 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P., Austin I Dallas, Texas Page 20 of 84 • In Texas , a zoning board of adjustment must act within the parameters established by the state legislature and the municipal ordinance that both establishes the board and defines its local function and powers. Further, a zoning board of adjustment must not stray outside its specifically granted authority. If it does so, its actions may be held by a court to be null and void. C. Variances A "variance" is defined by the Sixth Edition of Black's Law Dictionary as "[p] ermission to depart from the literal requirements of a zoning ordinance by virtue of unique hardship due to special circumstances regarding [a] person's property. It is in the nature of a waiver of the strict letter of the zoning law upon substantial compliance with it and without sacrificing its spirit and purpose. An authorization to a property owner to depart from literal requirements of zoning regulations in utilization of his property in cases in which strict enforcement of the zoning regulations would cause undue hardship." In reality, a variance actually sanctions violations of the strict technical terms contained in a zoning ordinance. An administrative official of a city cannot approve a variance. D. Special Exceptions A special exception refers to uses that a zoning ordinance permits, but that are screened and specially approved by the board of adjustment for situational suitability. Special exceptions do not require a showing of hardship, unlike variances. As a practical matter, most special exceptions are handled by many cities as specific (or special) use permits. There is no authority to grant a special exception unless the zoning ordinance specifies that special exceptions may be granted. Thus, a zoning ordinance should specify the conditions that must be met for a special exception to be granted or the standards that a zoning board of adjustment is to employ when granting a special exception. E. Use Variances The Zoning Board of Adjustment may not grant use variances . Variances may be granted from dimensional requirements such as setbacks; however, variances may not be granted which would allow a parcel of property to be used for a use that is not permitted under the zoning ordinance. F. Unnecessary (Or Undue) Hardship A variance may only be granted ifthere exists an unnecessary hardship. Although state law does not define the term "unnecessary hardship," it does not include (1) property that cannot be used for its highest and best use (see Board of Adjustment of the City of San Antonio v. Willie , 511 S .W.2d 591 (Tex.Civ.App.-San Antonio 1974, writ refd n.r.e.)); (2) financial or economic hardship (see Caruthers v. Board of Adjustment of the City of Bunker Hill Village , 290 S.W.2d 340 (Tex.Civ.App.-Galveston 1956, no writ); Southland Addition Homeowner's Ass'n v. Board of Adjustments of City of Wichita Falls , 710 S.W.2d 194 (Tex.App.-Fort Worth 1986, writ refd n.r.e .); Bat'tles v. Board of Adjustment and Appeals of the City of Irving , 711 S .W.2d 297 (Tex.App .-Dallas 1986, no writ)); (3) self-created hardship (see Currey v. Kimple , 577 S.W.2d 508 (Tex.Civ.App.-Texarkana 1979, writ refd n.r.e.)); or (4) the development objectives of the property owner are or will be frustrated (see , e.g. , Willie , supra ). http://www. bickerstaff.corn/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 21 of 84 Professor Mixon in his treatise , Texas Municipal Zoning Law , defines "unnecessary hardship" as a "hardship that is self-induced or that is common to other similarly classified properties will not satisfy the requirement." Id , Glossary at 11 (emphasis added). V. PLANNED DEVELOPMENT Planned Development Districts (PDDs) are specialized land use districts utilized in most municipal zoning schemes. "PDD procedures allow developers to obtain site-specific approval for developments that may not fit standard area and use zoning categories and that require specific negotiations to ensure that community interests are protected. PDDs conventionally accommodate designated types of major development, such as apartment projects, cluster housing, office developments , shopping centers and hospital facilities ." Mixon, Texas Municipal Zoning Law § 17 .03 (2d ed. 1994). The prior Dallas Development Code described and defined Planned Development Districts as follows: In order to provide flexibility in the planning and development of projects with combinations of uses and of specific physical designs such as office centers, combination apartment and retail centers, shopping centers, medical centers with office and housing elements, special industrial districts, housing developments and other similar developments, a PD district is provided. This district is intended to be applied to the district map as an amendment to the zoning ordinance. Certain maximum and minimum standards are specified for various use categories and certain standards such as for yards, coverage, and building spacing are to be determined by the design. Specific development conditions and development schedules can be enforced with respect to a PD district and failure to adhere to a development schedule can be the basis of removing all or part of a PD district from the zoning district map. The purposes of the PD district are to achieve flexibility and variety in the physical development pattern of the city, to encourage a more efficient use of open space and to encourage the appropriate use of land. It is intended that cognizance be taken of surrounding property and that proper protection be given to it in locating and approving any PD district. Dallas Development Code§ 51-4.102(c)(l). Planned Development Districts are usually designated as "floating zones" in a city's zoning scheme; that is , they usually are not found on a zoning map until after the PDD has been approved. For a detailed discussion of legal i ssues associated with PDDs, see chapter 17 of Mixon, Texas Municipal Zoning Law. VI. SPECIFIC USE PERMITS A. Specific Use Permits A specific use permit refers to uses that a zoning ordinance permits, but that are http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 22 of 84 screened and specially approved for situational suitability. There is no authority to grant a specific use permit unless the zoning ordinance specifically authorizes it. Thus, a zoning ordinance should specify the conditions that must be met for a specific use permit to be granted. For example, a helicopter landing pad may be permitted in an industrial zone; however, due to safety concerns, overhead power lines and other issues, a city obviously would not desire that every parcel zoned industrial be entitled to a helicopter landing pad. Thus, a specific use permit is a method by which many cities regulate such uses. B. Dallas Development Code § SlA-4.219. SPECIFIC USE PERMIT (SUP). (a) General provisions. (1) The SUP provides a means for developing certain uses in a manner in which the specific use will be compatible with adjacent property and consistent with the character of the neighborhood. (2) The use regulations for each use in Division 51A- 4.200 state whether an SUP is required for a use to be permitted in a zoning district. The SUP requirement for a use in a district does not constitute an authorization or an assurance that the use will be permitted. Each SUP application must be evaluated as to its probable effect on the adjacent property and the community welfare and may be approved or denied as the findings indicate appropriate. Each SUP must be granted by the city council by separate ordinance. (3) The city council shall not grant an SUP for a use except upon a finding that the use will: (A) complement or be compatible with the surrounding uses and community facilities; (B) contribute to, enhance, or promote the welfare of the area of request and adjacent properties: (C) not be detrimental to the public health, safety, or general welfare; and (D) conform in all other respects to all applicable zoning regulations and standards. ( 4) The granting of an SUP has no effect on the uses permitted as of right and does not waive the regulations of the underlying zoning district. http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P., Austin I Dallas , Texas Page 23 of 84 (5) The city council may impose reasonable conditions upon the granting of an SUP consistent with the purposes stated in this chapter. VII. IMPACT FEES There is no more technical, difficult area of land use law in Texas than municipal impact fees. Nevertheless, in light of recent United States Supreme Court cases, all cities should (and must) consider impact fees relative to the development of property and off-site improvements related to specific developments. Before addressing these issues, however, a short explanation of the purpose of impact fees and their history in Texas is instructive. "Impact fees, like other forms of development exactions, are imposed as a condition of development approval to mitigate impacts on public facilities and services generated by the development project. The principal use of impact fees , which distinguishes them from traditional subdivision exactions, is the financing of off-site capital facilities to support new growth." Morgan, T . "The Effect of State Legislation on the Law oflmpact Fees, With Special Emphasis on Texas Legislation," 18th Annual Institute on Planning, Zoning and Eminent Domain § 7.01at7-2 (1988)(hereinafter "Effect of State Legislation"). Further, "[i] mpact fees ... serve as a substitute for denial of development projects that otherwise would not be served by adequate facilities. In essence, development exactions mitigate adverse impacts of new development on the municipality's ability to provide essential facilities and services ." Id , § 7.02[1] at 7-4. An impact fee, a form of development exaction, is broadly defined as a contribution of land, improvements or money imposed as a condition of development approval to mitigate the impacts of the development project. Such development exactions include mandatory dedications of property for rights-of- way, requirements to construct capital improvements, fees in lieu of dedication or construction, impact fees for public facilities, and fees or charges that are assessed against development projects to mitigate environmental or social impacts. Texas Municipal League Public Policies Briefing Series, "Impact Fees in Texas," § 1.2 at 1-2 (Nov. 1989)(hereinafter "Impact Fees"). The Texas impact fee statute, codified in Chapter 395 of the Local Government Code, defines "impact fee" as "a charge or assessment imposed by a political subdivision against new development in order to generate revenue for funding or recouping the costs of capital improvements or facility expansionsffi necessitated by and attributable to the new development. The term includes amortized charges, lump-sum charges, capital recovery fees , contributions in aid of construction, and any other fee that functions as described by this definition .... " Tex.Local Gov't Code§ 395 .001(4). The statute specifically excludes park dedication or payments in lieu of park land dedication, several different categories of on-site facilities and lot or acreage fees. Id In certain instances a developer may be entitled to a refund or credit of impact fees. For example, if a developer constructs wastewater facilities in a service area, the developer would not also be required to pay the maximum amount of impact fees for wastewater facilities. To do so would be unfair to the developer since he/she, in essence, would be paying twice for the same capital improvement.ill The impact fee statute contains three provisions requiring that impact fees be refunded. The first is upon request of an owner "if existing facilities are available and service is denied or the political subdivision has , after collecting the fee when service was not available, failed to commence construction within two years or service is not available within a reasonable http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P ., Austin I Dallas, Texas Page 24 of 84 period .... " Tex.Local Gov't Code§ 395.025(a). The second instance entitlin g a record owner to a refund is when any impact fee "is not spent as authorized ... within 10 years after the date of payment." Id. , § 395.025(c). Last, the impact fee statute contains a refund provision requiring comparison of the actual costs of cap ital improvements identified in the capital improvements plan with estimated costs included in the capital improvement plan. Id. , § 395 .025(b).ill In light of two recent United States Supreme Court decisions, I believe the u se of impact fees to finance off-site capital facilities is far preferable to other methods of obtaining both on-site and off-site improvements impacted by a new development. The first case, Nol/an v. California Coastal Comm'n , 48 3 U.S. 825 (1987), placed local governments on notice that drafting and implementing regulatory conditions in the development approval process that effectuate acquisition of title or interfere with possession can result in a finding that private property has been taken without just compensation. In this case, the Nollans were private beachfront landowners who wanted to replace their dilapidated small bungalow with a larger house. They were granted a permit from the California Coastal Commission with the condition that they grant an easement, by deed, for the public to pass across their beach. The easement required was a lateral one that would pass across a portion of their property . The Coastal Commission's stated rationale for requiring the easement was that the new structure would obscure the view of the ocean, thus burdening the public's right to traverse the beachfront. The Supreme Court ruled in favor of the Nollans, finding that a condition attached to approval of a single-family development permit, which required the owner to dedicate a portion of his lot to provide the public with lateral access to the beach, violated the guarantee of the Fifth Amendment that private property shall not be taken for public use without just compensation. In so ruling , the Court established a standard of "remoteness," under which development exactions attached as conditions to development approval must "substantially advance" the asserted and legitimate governmental interest for which they are imposed. Effect of State Legislation,§ 7 .03[4][a] at 7-10, citing Nol/an . The Supreme Court also wrote that it was "inclined to be particularly careful about the adjective ["substantial"] where the actual conveyance of property is made a condition to the lifting of a land-use restriction, since in that context there is heightened risk that the purpose is avoidance of the compensation requirement, rather than the stated police-power objective." Nol/an , 483 U .S. at 841. The second significant Supreme Court case is Dolan v. City of Tigard , 512 U .S._, 11 4 S .Ct. 2309 (1994). The Tigard, Oregon, city planning commission approved Mrs. Dolan's application to expand her store and pave her parking lot conditioned upon her compliance with the dedication of land (1) for a public greenway to minimize flooding that would be exacerbated by the increases in impervious surfaces associated with her development and (2) for a pedestrian/bicycle pathway intended to relieve traffic congestion in the city's central business district. Id. , 114 S .Ct. at 2314. She appealed the commission's denial of her request for variances from these standards to the Land Use Board of Appeals. She alleged that the land dedication requirements were not related to the proposed development, constituted an uncompensated taking of her property for a public use and therefore violated the just http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 25 of 84 compensation clause of the Fifth Amendment to the United States Constitution. The Board found that there was a reasonable relationship between the development and the requirement to dedicate land for a greenway due to the impact that a larger building and increased impervious surfaces would have on runoff into the creek. The Board also found that requiring a pathway was reasonable to mitigate the impact of the increased traffic from the development and to facilitate alternative means of transportation. Id. at 2315. On appeal, both the Oregon Court of Appeals and Supreme Court affirmed the Board's ruling. Id. The United States Supreme Court, however, held that the requirements in fact did constitute an uncompensated taking of property. The Court wrote that, under the well-settled doctrine of "unconstitutional conditions," a government may not require a person to give up a constitutional right in exchange for a discretionary benefit conferred by the government where the property sought had little or no relationship to the benefit. Id. at 2317. The Court stated that the first question, in evaluating Dolan's claim, is whether an "essential nexus" exists between a legitimate state interest and the permit condition. If it does, the second question is whether the degree of exaction demanded by the permit condition bears the required relationship to the projected impact of the proposed development. In assessing the second question, the Court instructed that the necessary connection required by the Fifth Amendment is "rough proportionality," or essentially the "reasonable relationship" test adopted by a majority of state courts. Id. at 2318-20. In applying this two-step analytical model, the Supreme Court found that although preventing flooding along the creek and reducing traffic congestion in the district were legitimate public purposes, thereby establishing a nexus, the findings upon which the city relied did not show the required reasonable relationship between the floodplain easement and bikepath and Dolan's proposed building. Specifically, the Community Development Code already required Dolan to leave 15% of her property as open space, which would have practically been satisfied by the undeveloped floodplain. The city, however, never stated why a public, as opposed to private, greenway is required in the interest of flood control. Moreover, the city did not meet its burden of establishing, beyond mere conclusory statements, that the additional traffic generated by Dolan's development reasonably related to the city's requirement for a dedication of the pathway easement. Id. at 2321-22. I believe the potential impact of Dolan upon local governments across the country is significant. First, most local governments routinely exact donations of land and facilities in conjunction with subdivision plats or other development approvals based on proximity of the land to be developed to existing or planned services and facilities. Typically, as in Dolan , the location of the future facilities is designated in master plans or other comprehensive planning documents. These documents, and development regulations that implement those policies, seldom quantify the relationship between the required contribution and the impacts arising from the proposed development of specific tracts and subdivisions. These forms of development exactions contrast markedly with demand-based exactions such as impact fees which necessarily quantify the relationship. Most commentators agree that the Dolan decision, in its demand for quantification, likely will encourage the use of fee-based exactions which provide a standard against which land dedications or construction requirements can be measured. http://www.bickerstaff.com/articles/primerzone l .htm 1016199 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 26 of 84 Second, it is common local government practice to formulate conditions that are unique to the development application pending. Ad hoc conditions routinely are attached t o applications ranging from rezoning proposals to building permits . Often development regulations do not anticipate even the types of conditions that will in fact be imposed. The lack of standards to guide development approval , while always problematic, can be expected to be more so following Dolan . The Dolan opinion expands Nol/an so that conditions must be related both to the nature and extent of the proposed development. In the absence of standards and with a newly assigned burden to justify conditions ,® local governments will have difficulty clearing even the first hurdle -the nexus test. Third, impact fees directly address the concerns raised in Dolan when such fees have been enacted pursuant to proportionality standards established by state statute or constitutional requirements . Impact fees allow local governments to fully mitigate the demands created by new development on public facilities through monetary payments that are quantified for the development at issue. At the same time, traditional subdivision requirements, such as land dedication and facilities construction, can be continued in effect by crediting the value of such improvements against the payment of impact fees. After Nol/an and Dolan , it is safe to say that impact fees are far more advantageous than traditional development exactions that may arbitrarily vary from one development to another. As stated in Impact Fees, the advantages are as follows : First, impact fees represent an additional source of revenue from which to finance a portion of future capital improvements' needs . Political subdivisions which are responsible for supplying water, sanitary sewer, roads and drainage facilities increasingly are subject to fiscal constraints for funding such improvements to serve new growth. With the disappearance of many federal and state grants, and tax-payer sensitivity to increased taxes and utility rates , local governments must transfer a portion of the costs of capital improvements which serve new development to the ultimate beneficiaries. The more the local government relies upon debt financing to serve its capital improvement needs, the more likely it becomes that service levels in the community will be reduced. By supplementing tax and utility revenues with impact fee revenues , existing revenue sources may be devoted to maintaining service levels and funding capital improvements to correct existing deficiencies or replace existing facilities. Because impact fees present a means for assuring that community- related facilities will be coordinated with new development, their use promotes economic development by encouraging the location of new employers in the community who value such services. At the same time, the use of impact fees provides assurance to existing businesses that local taxes and utility rates will remain relatively stable. If the local government must rely upon these sources to finance capital improvements to serve both new and existing development, the community faces steady increases in tax and utility rates attributable to debt financing. http://www.bickerstaff.com/articles/primerzone l .htm 1016199 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas , Texas Page 27 of 84 Impact fees also represent a means of attaining certain police power objectives, which are not easily attained through the use of traditional development exactions . Thus, local governments may adjust impact fee rates to meet particular economic development or other police power objectives . Impact fees may be varied among service areas or by type of land use , as long as such differences are reasonably related to a proper police power objective . Through the use of impact fees , the community may encourage the establishment of certain kinds of developments, such as major employers or affordable housing projects. Finally, impact fees represent a more equitable form of distributing the burdens for financing future capital improvements among various types of development. Traditional development exactions practices, which require the on-site dedication or construction of capital improvements, are based on the location of the property in relation to existing or planned public improvements . As a consequence, developments which equally contribute to the need for additional capital improvements may be assessed widely differing costs under such practices. Generally speaking, the owner of the property which is located on or abutting the site for a future public improvement is required to contribute more than the owner of property which is not so located. This unequal distribution of responsibilities for providing for future capital improvements is avoided through an impact fee program, in which the contribution of a particular development project is in proportion to the demand it creates for additional capital improvements. Impact Fees,§ 3.2 at 15-17. From a strictly legal standpoint, impact fees provide cities with easily enforceable standards relative to both on-and off-site exactions. If a city had no impact fee ordinance, prior to requiring any dedication or exaction, the city would be virtually indefensible without conducting studies regarding the relationship between any dedication or exaction and the impacts of the development. Further, a study would be mandated for each development plan considered by the city and the city would be required to quantify its findings in support of each such exaction or dedication. Consequently, it would be cost- prohibitive to conduct such studies and the potential would be great that the conclusions of any study would be challenged. If a city opted not to conduct studies for each new development, the risk of liability would be exponentially greater with little likelihood the city would prevail. Last, to require a developer to construct a capital improvement pursuant to a city's capital improvement plan and also assess that developer impact fees would violate state law. In the situation where a developer constructed a capital improvement, the developer under state law would be entitled to either a refund or credit because it would be manifestly unfair, and legally indefensible, to "double charge" for the construction of a capital improvement. VIII. VESTED RIGHTS The 1997 session of the Texas Legislature repealed the Vested Rights Statute ; it is questionable whether the repeal was intentional or rather a legislative oversight. Thus, at present (at least until the 1999 session of the Legislature) there is no vested rights statute in Texas. Since it in all likelihood will be resurrected during the next session, it is important to know what it was, what is http ://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P., Austin I Dallas, Texas Page 28 of 84 was designed to do , and what its provisions were. The 1995 Texas Legislature enacted several significant amendments to section 481 .141 et seq. , of the Texas Government Code, commonly known as the Vested Rights Statute. Most of these amendments are , arguably , pro-developer and may restrict the ability of municipalities to apply current zoning ordinances and regulations or any amendments thereof to certain real estate developments. The statute, as well as the concept of vested rights, has recently become significant due to the existence of subdivisions that were platted during the mid to late-1980s but never developed due to the downturn in the Texas real estate market. Preliminary plats for these developments often were approved by municipalities with no expiration date. Lately, developers have applied for final plats on these subdivisions asserting that under the vested rights statute only those ordinances and regulations in effect at the time the preliminary plat was approved should apply to the development of these tracts . Obviously, in many cities, land use regulations and ordinances will have changed substantially in the interim. The following is a review of the significant amendments to the vested rights statute, as well as suggestions for municipalities on how to most effectively respond to these changes. A. Overview of Former Law The former vested rights statute stated: Section 481.142 DEFINITIONS In this subchapter: (1) "Political subdivision" means a political subdivision of the state, including a county, a school district, or a municipality. (2) "Permit " means a license, certificate, approval , registration, consent, permit, or other form of authorization required by law, rule, regulation, or ordinance that must be obtained by a person in order to perform an action or initiate a project for which the permit is sought. . (3) "Project" means an endeavor over which a regulatory agency exerts its jurisdiction and for which a permit is required before initiation of the endeavor. (4) "Regulatory agency" means an agency, bureau, department, division, or commission of the state or any department or other agency of a political subdivision that processes and issues permits. Section 481.143 UNIFORMITY OF REQUIREMENTS (a) The approval , disapproval, or conditional approval of an application for a permit shall be considered by each regulatory agency solely on the basis of any orders, regulations , ordinances, or other duly adopted requirements in effect at the time the original http://www.bickerstaff.com/articles/primerzone l .htm 1016199 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 29 of 84 application for the permit is filed. If a series of requirements in effect at the time the original application for the first permit in that series is filed shall be the sole basis for consideration of all subsequent permits required for the completion of the project. (b) This section does not apply to: (1) permits or licenses issued in connection with any form of gaming or gambling; (2) permits or licenses issued under Title 2 Tax Code ·ill or ' ' (3) permits or orders issued under programs for which a state regulatory agency has received authorization, delegation, or approval from the federal government to implement an equivalent state program in lieu of or as part of the federal program. Under the former law, land developers argued that only those ordinances and regulations in effect at the initial stage of the permit application process could be applied to the final permit review and the ultimate construction of the project. According to the developers' argument, all subsequent revisions to regulations governing permit review, including zoning and subdivision ordinances, were inapplicable. In effect, a "snapshot" was to be taken of existing ordinances and regulations at the time of application for the initial permit, and that picture could not later be changed by the municipality. Prior to the 1995 amendments, municipalities had effective rebuttals to the developers' aforementioned arguments. For example, the statute was unclear as to whether it was applicable to zoning ordinance amendments since the statute did not expressly state that it was applicable to a municipality or other governing body .® Municipalities could also argue that the developers' position would result in seemingly inequitable results, such as a planning and zoning commission being forced to review and approve two permits under vastly differing regulations during the same meeting's agenda. There has been little Texas case law directly addressing these issues. The court in Long Reach Associates, Inc. v. City of Sugar/and , Cause No. 84 ,807, in the 240th Judicial District Court of Fort Bend County, Texas, sustained the plaintiff developer's argument that approval of a preliminary plat vested the developer's rights under the statute. In Williamson Points Venture v. City of Austin , Cause No. 93-09435, in the 126th Judicial District Court of Travis County, Texas, the court indicated in an informal letter opinion that permit applications which had expired could not be used to "lock in" applicable regulations. The court further indicated that zoning was not a "permit" and therefore regulations, ordinances, and other requirements in effect at the time of a zoning application were not controlling. Uncertainty regarding these and related issues undoubtedly provided the impetus for the 1995 amendments, which resolve most ambiguities. As previously stated, the results are generally http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 30 of 84 not favorable to municipalities. B. Committee Report to the 1995 Amendments The Committee Report to the 1995 Amendments states that "[i]n the case of real estate development, there has been some confusion as to what constitutes a project and what constitutes a series of permits under the current law." Additionally , the Report notes confusion as to whether health and safety regulations can be changed after a permit has been filed. The stated purpose of the amendments is to "clarify the existing law with regard to the uniformity of requirements for the approval of permits related to real estate development." C. Significant Amendments and Implications 1. Definitions Under the 1995 Amendments, the following definitional changes were enacted: (3) "Project" means an endeavor over which a regulatory agency exerts its jurisdiction and for which one or more permits are required to initiate or continue the endeavor. (4) "Regulatory agency" means an agency, bureau, department, division or commission of the state or any department, agency, board, commission, or governing body of a political subdivision in its capacity of processing, approving, or issuing permits. Tex. Gov't Code§ 481.142 (1995). The amended definition of "project" makes clear that the real estate development permit process, which will generally include multiple stages, will be viewed as a single event for purposes of the statute. In addition, the "regulatory agency" amendment eliminates any argument that the statute does not apply to municipalities or their governing bodies. 2. Uniformity of Requirements The Bad News Section 481.143(a), has been substantially expanded: Section 481.143 UNIFORMITY OF REQUIREMENTS (a) The approval, disapproval, or conditional approval of an application for a permit shall be considered by each regulatory agency solely on the basis of any orders, regulations, ordinances, rules, expiration dates, or other duly adopted requirements in effect at the time the original application for the first permit in that series is filed shall be the sole basis for consideration of all subsequent permits required for the completion of the project, and all permits required for the project shall be considered to be a single series of permits. Preliminary plans and related subdivision plats, site plans, and all other development permits for land covered by such preliminary plans or subdivision plats are considered collectively to be one series of permits . Once an application for a project has been filed, a regulatory agency shall not shorten the duration of http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P ., Austin I Dallas, Texas Page 31 of 84 any permit required for the project. The expansive language of§ 481.143(a) clearly strengthens a developer's argument that the first act required by a municipality for real estate development "locks in" the applicable ordinances and regulations. Some developers likely will attempt to push this argument to its illogical extreme, asserting that the mere application for change of a comprehensive plan or zoning ordinance is sufficient, upon approval, to vest the application of the then existing ordinances and regulations. While the expansive language may lend some credence to this argument, it should not prevail. The vested rights statute addresses procedural administrative practices, and zoning is more properly viewed as an exercise of a municipality's legislative powers. See City of Pharrv. Tippit!, 616S.W.2d173, 175 (Tex. 1981). Accordingly, the better argument is that the applicable rules and ordinances do not "vest" until a person has made application for a preliminary plat. Furthermore, there is nothing in the statute addressing a developer's application for a replat. Again, the better argument is that the replat is a new project and therefore begins the permit process anew under the ordinances in place at the time of application for such replat. 3. Effective Date Section 481.143(b) states: (b) This subchapter shall apply to all projects in progress on or commenced after the effective date of this subchapter as originally enacted by Section 1, Chapter 374 , Acts of the 70th Legislature, Regular Session, 1987, and the duly adopted requirements in effect at the time the original application for the first permit for the project was filed shall control. This subchapter shall be enforceable solely through declaratory, mandamus, or injunctive relief. As indicated, the 1995 amendments apply to all projects in progress or commenced after enactment of the original 1987 statute, which became effective September 1, 1987 . Ironically, the amendments will apply even with respect to pre-1987 preliminary plats if the preliminary plat in question has no expiration date. 4. Exemptions The Good News The exemptions under the statute have also been expanded. Section 481 .14 3 ( c) states: (c) This section does not apply to : (1) permits or licenses issued in connection with any form of gaming or gambling; (2) permits or licenses issued under Title 2, Tax Code; (3) permits or orders issued under programs for which http://www.bickerstaff.com/articles/primerzone 1.htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 32 of 84 a state regulatory agency has received authorization, delegation, or approval from the federal government to implement an equivalent state program in lieu of or as part of the federal program; (4) permits for the construction of buildings or structures intended for human occupancy or habitation that are issued pursuant to laws, ordinances, procedures, rules, or regulations adopting solely the provisions of uniform building, fire , electrical, plumbing, or mechanical codes promulgated by a recognized national code organization or local amendments to any such codes enacted solely to address imminent threats of destruction of property or injury to persons, unless such permits are less than two years old; (5) municipal zoning regulations that do not affect lot size, lot dimensions, lot coverage, or building size; (6) regulations for the location of adult-oriented businesses; (7) state or local laws, including city or county ordinances, rules, regulations, or other requirements, affecting colonias; (8) fees lawfully imposed in conjunction with development permits; (9) regulations for annexation; (10) regulations for utility connections; ( 11) regulations to prevent imminent destruction of property or injury to persons; or (12) construction standards for public works located on public lands and easements. (Emphasis added.) a. Health and Safety Regulations As indicated, health and safety regulations adopting uniform codes are exempt from the statute . Municipalities can therefore compel a developer to comply with the most recent uniform codes regardless of whether such codes were modified after the permit process began. Local amendments addressing imminent threats of destruction of property or injury to persons are also exempted if the applicable permit is less than two years old. It is unclear if the two-year requirement under subsection (4) also applies to changes in a uniform code. If so, developers would not be required to comply with modifications to a uniform code enacted within two years of the initial permit application. b. Municipal Zoning Regulations http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley , Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 33of84 Municipal zoning regulations that do not affect "lot size, lot dimensions, lot coverage , or building size" are also excluded under the statute . The reasonable construction of this amendment is that all other zoning ordinances and regulations are exempt from the statute and changes are therefore permissible during the permit application process . It should be noted, however, that most zoning regulations directly or indirectly affect lot size, dimensions, and/or coverage , and therefore most zoning regulation amendments and certainly most site-specific rezonings of property would be inapplicable once a preliminary plat has been filed. It is unclear, however, how a court may view changes to certain environmental ordinances, such as tree or noise ordinances. Arguably, these ordinances do not affect the totality of the uses of the land and are properly viewed as zoning regulations exempt from the statute. c. Impact Fees Pursuant to subsection (8), impact fees assessed by a municipality pursuant to chapter 395 of the Texas Local Government Code are exempt from the statute and may be modified at any phase of development. d. Construction Standards for Public Streets Pursuant to subsection (12), construction standards for public works on public lands and easements are exempt. Accordingly, those provisions of a municipality's subdivision ordinance governing construction standards for streets, medians, curbs, fencing , and similar matters may also be changed. In addition, the modifications may be made at any time in the permit process, even post-final plat. 5. Developers Can Change The "Snapshot" Section 481.143(d) states : (d) Notwithstanding any provision of this section to the contrary, a permit holder shall have the right to take advantage of procedural changes to the laws, rules, regulations, or ordinances of a regulatory agency which enhance or protect the project including , without limitation, changes which lengthen the effective life of the permit after the date on which application for the permit was made , without otherwise forfeiting any rights under this section. Accordingly, although the developer does not have to suffer the consequences of changes in regulations restricting his rights, the developer can take advantage of any changes benefitting the development project. The "snapshot" can be changed, but only if the developer wants it to be changed. Furthermore, while the municipality cannot shorten the effective time periods of permits, developers can take advantage of changes lengthening the effective life of a permit. D. Summary In summary, the 1995 amendments generally favor developers . The law has now been clarified to "lock in" most zoning and procedural requirements at the time of preliminary plat application. For this reason, it is important that municipalities take all available steps to limit the adverse effects of the new legislation. In this regard, municipalities should initially establish expiration http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 34 of 84 periods for all preliminary plats. A time period of twelve to eighteen months is generally reasonable. Second, comprehensive plan regulations , zoning ordinances and subdivision ordinances should clearly state that approval of proposed changes does not begin the permit process. As indicated above, the permit process should only begin upon approval of a preliminary plat. Finally, municipalities must be aware of the various improvements to the former. law. Specifically, certain health and safety standards, zoning ordinances, impact fees, and construction standards for street improvements are expressly exempted under the statute. For these reasons, municipalities must become aware of the advantages, as well as the disadvantages, of the new legislation. IX. NONCONFORMING USES/NONCOMPLYING STRUCTURES AND SITES A. Nonconformance With Zoning Requirementsill Cities can establish zoning districts under their general police power to protect the public health, safety and general welfare. City of Corpus Christi v. Allen , 254 S.W.2d 759, 761 (Tex. 1953). Such restrictions, however, may not be made retroactive; rather, they must relate to the future rather than to existing buildings and uses of land, and ordinances may not operate to remove existing buildings and uses not in conformity with the restrictions applicable to the district, at least where such buildings and uses are not nuisances and their removal is not justified as promoting public health, morals, safety or welfare. Id. at 761 (citations omitted) (wrecking yard in light industrial district not nuisance nor harmful to public safety and welfare; therefore, compulsion to cease operation constituted taking). See also Carthage v. Allums , 398 S.W.2d 799 (Tex.Civ.App.-Tyler 1966, no writ) (no retroactive application). 1. NonconformanceOO Defined 11 A nonconforming use of land or buildings is a use that existed legally when the zoning restriction became effective and has continued to exist. 11 City of University Park v. Benners , 485 S.W.2d 773, 777 (Tex. 1972), app. dism'd , 411 U.S. 901 , reh'g denied , 411 U .S. 977 (1973); Town of Highland Village v. Marshall , 235 S.W.2d 658, 662-63 (Tex.Civ.App.-Dallas 1950, writ refd n.r.e.) (the use of a garage apartment pre-dated the zoning ordinance; therefore , although the garage apartment violated the single-family district regulations , the privileged status or exemption applied). In other words, nonconforming status is attributable to a use or structure when (a) such use or structure was constructed or operational prior to (i) the annexation of such property into the municipality, or (ii) the adoption or amendment of the zoning http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 35 of 84 ordinance; and (b) the nonconforming use or structure has continued to exist without subsequent abandonment. Infrequent or sporadic use of land does not necessarily establish existing use for purposes of nonconformity. See generally Silsbee v. Herron , 484 S.W.2d 154 (Tex.Civ.App.-Beaumont 1972, writ refd n.r.e.). The use must be lawful at the time the ordinance is passed. For example, a building that violates the building code when the zoning ordinance prohibiting its use is enacted, is not a lawful nonconforming use. 8A McQuillin, Municipal Corporations , § 28.186.50 . Further, it must be the same use and not a use of some other kind. City of Dallas v. Fifley , 359 S.W.2d 177, 181-82 (Tex.Civ.App.-Dallas 1962, writ refd n.r.e.). Finally, although a use may be considered nonconforming to the zoning regulation, it does not exempt it from complying with other regulatory ordinances, such as the building code. See generally Town of Renner v. Wiley , 458 S.W.2d 516 (Tex.Civ.App.-Dallas 1970, no writ) (owner must comply with permit requirements notwithstanding that owner commenced construction prior to zoning ordinance). 2. "Grandfathering" -The Right to Continue Use The right to continue a nonconforming use has its genesis in federal and state constitutional provisions that prohibit the unconstitutional taking of property without just compensation and due process of law. Eckert v. Jacobs , 142 S.W.2d 374, 378 (Tex.Civ.App.-Austin 1940, no writ). Additionally, the exemption for pre-existing nonconforming uses protects an owner's investment in property. The exemption does not apply to uses initiated after the zoning ordinance is promulgated or which are illegal. See generally Scott v. Champion Bldg. Co . , 28 S.W.2d 178, 184 (Tex.Civ.App.-Dallas 1930, no writ) (only "innocent" nonconforming uses protected; i.e. , one who legally and rightfully began or planned the construction of a building as opposed to one who acted in defiance of a valid ordinance). The protected status continues until such time as the nonconforming building or structure has been abandoned by the owner or terminated under the ordinance. 3. Amortization!f ermination a. Amortization Pre-existing nonconforming uses need not continue in perpetuity and " [a] mortization is a valid method of eliminating existing nonconforming uses of land." SDJ, Inc. v. City of Houston , 636 F.Supp. 1359 (S.D. Tex. 1986), affd , 837 F.2d 1268, 1371 (5th Cir. 1988). An owner's investment in property, for purposes of calculation, is the recoupment of the landowner's dollar investment, as opposed to the market value or replacement value. Murmur Corp. v. Board of Adjustment, City of Dallas , 718 S.W.2d 790, 795- 97 (Tex.App.-Dallas 1986, writ refd n.r.e.). The amortization formula may consider past depreciation of the structure, Neighborhood Comm. on Lead Pollution v. Board of Adjustment, City of Dallas , 728 S.W.2d 64, 70 (Tex.App.-Dallas 1987, writ refd n.r.e.), or the value of structures which can be moved to another location. Board of Adjustment, City of Dallas v. Winkles , 832 S.W.2d 803, 807 (Tex.App.-Dallas 1992, writ denied). It need not consider appreciation of land value, improvements or profit from an advantageous acquisition. Id , 832 S.W.2d at 806. http://www.bickerstaff.com/articles/primerzone l .htm 1016199 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 36 of 84 b. Termination The Texas Supreme Court has recognized the "public need for a fair and reasonable termination of nonconforming property uses ... [and is] in accord with the principle that municipal zoning ordinances requiring the termination of nonconforming uses under reasonable conditions are within the scope of municipal police power." Benners , 485 S. W.2d at 778; White v. Dallas , 517 S .W.2d 344 (Tex.Civ.App.-Dallas 1974, no writ) (termination of wrecking yard within one year not unreasonable or arbitrary). See also Fif/ey , supra . In fact, a zoning regulation may have as a legitimate objective the eventual elimination of nonconforming uses. City of Garland v. Valley Oil Co. , 482 S.W.2d 342, 346 (Tex.Civ.App.-Dallas 1972, writ refd n.r.e.), cert. denied , 411 U .S. 933 (1973). In this regard, Texas courts have approved the direct and systematic termination of nonconforming uses provided that adequate time is allowed to recoup an owner's investment in the property. Swain v. Board of Adjustment of the City of University Park , 433 S.W.2d 727, 735 (Tex.Civ.App.-Dallas 1968 , writ refd n .r .e.), cert. denied , 396 U.S . 277 , reh'g denied , 397 U.S. 977 (1970) (twenty-five years sufficient for amortization and discontinuance of nonconforming uses). In Benners , the court held that termination of nonconforming uses is not a "taking in the eminent domain sense"; rather it is a legitimate exercise of the police power. Id. , 485 S.W.2d at 777-78 . The court upheld the constitutionality of a twenty-five year amortization provision terminating pre-existing nonconforming uses. Id. See also Valley Oil Co. , 482 S.W.2d at 345-46 (ordinance requiring owner of property to di scontinue use as gasoline station within one year not unreasonable and arbitrary given the equipment was removable and could be used at other stations and the owner had recouped the initial investment). Abandonment of a nonconforming use may also terminate the privileged status. In Rosenthal v. City of Dallas , 211 S. W.2d 279 (Tex.Civ.App.-Dallas 1948 , writ refd n .r .e.), the court established the test for abandonment of a nonconforming use . Specifically, abandonment requires (1) the intent to abandon and (2) some overt act or failure to act that carries the implication of abandonment. Id. at 284; Turcuit v. City of Galveston , 658 S.W.2d 832, 834 (Tex.App.- Houston [1st Dist.] 1983 , no writ) (discontinued use for 6 months not abandonment). Temporary discontinuance of a nonconforming use is insufficient to show abandonment. Specifically, '[t]he mere cessation of the use for a reasonable period does not itself work an abandonment, whether the building is permitted to remain vacant or is temporarily devoted to a conforming use with the intent that the nonconforming use be resumed when opportunity therefor should arise, and periods of interruption due to lack of demand, inability to get a tenant, and financial difficulty do change the character of use .' Marshall , 235 S .W.2d at 664 (citations omitted). In addition, the failure to adhere to registration requirements may effectuate the termination of a nonconforming use. Board of Adjustment, City of San Antonio v. Nelson , 577 S.W.2d 783 (Tex .Civ.App .-San Antonio 1979, writ refd n.r.e .). http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 37 of 84 4. Vested Rights A nonconforming use that was pre-existing and lawful at the time of the act making such use nonconforming is viewed as a "vested right" protected by federal and state constitutional takings provisions. In 1995, the Texas Legislature revised the Vested Rights Statute located in § 481.141 et seq . of the Texas Government Code. Exemptions to the Vested Rights Statute include but are not limited to: * * * (5) municipal zoning regulations that do not affect lot size, lot dimensions, lot coverage, or building size; (6) regulation for the location of adult-oriented businesses; * * * Tex.Gov't Code§ 481.143(c). The reasonable construction ofthis provision is that all other zoning ordinances and regulations are exempt from the statute and changes are therefore permissible during the permit application process. It should be noted, however, that most zoning regulations directly or indirectly affect lot size, dimensions and/or coverage, and therefore, most zoning regulation amendments and certainly most site-specific rezonings of property would be inapplicable once a preliminary plat has been filed . Although an owner or developer does not have to suffer the consequences of changes in regulations restricting his rights, the developer may take advantage of any changes benefitting a project. [A] permit holder shall have the right to take advantage of procedural changes to the laws, rules, regulations, or ordinances of a regulatory agency, which enhance or protect the project including, without limitation, changes which lengthen the effective life of the permit after the date on which application for the permit was made, without otherwise forfeiting any rights under this section. Tex.Gov't Code§ 481.143(d). The vested right law is viewed as locking in most zoning and procedural requirements at the time of preliminary plat application. Although certain zoning ordinances are exempted under the statute, ordinances should clearly state that approval of changes does not begin the permit process, which should only begin upon approval of the preliminary plat. These provisions, however, do not necessarily affect a lawful, pre-existing, nonconforming use or structure. If premises were used for nonconforming purposes at the time the zoning regulation was adopted, the owner has the right to continue that use. As a practical matter, nonconforming uses run with the land and, therefore, changes in ownership do not affect the protected status. 8A McQuillin, Municipal Corporations , § 28.183.50.rn. Those nonconforming uses, however, are subject to reasonable regulation under the municipality's police power as well as licensing and permit requirements . http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 38 of 84 5. Special Treatment For Churches, SOBs, Liquor Establishments And Governmental Entities a. Churches Municipalities should always exercise caution in the regulation of churches to protect against possible First Amendment violations. As a general matter, there is no health, safety, morals or general welfare basis to exclude churches from residential districts. City of Sherman v. Simms , 183 S.W.2d 415, 417 (Tex. 1944). See also Congregation Comm. N Ft. Worth Congregation Jehovah's Witnesses v. City Council of Haltom City , 287 S.W.2d 700 (Tex.App.-Fort Worth 1956, no writ). Churches, however, are subject to reasonable and applicable regulations pertaining to fire, health and sanitation. Simms , 183 S.W.2d at 417. b. Sexually Oriented Businesses The Texas Local Government Code specifically authorizes a municipality, by ordinance, to regulate SOBs for the purpose of promoting the public health, safety and welfare of its citizens. Tex.Local Gov't Code § 243.003(a). In so regulating, the municipality also must adhere to all of the applicable procedural requirements dictated by its zoning ordinance. SOBs may be ( 1) restricted to particular areas; or (2) prohibited within a certain distance of a school, regular place of religious worship, residential neighborhood, or other specified land use the governing body of the municipality or county finds to be inconsistent with the operation of a sexually oriented business. Tex.Local Gov't Code§ 243.006(a). See generally Smith v. Copeland , 787 S .W.2d 420, 422 (Tex.App.-San Antonio 1990, no writ) (massage parlor owner did not acquire constitutionally vested right to operate SOB in present location). An amortization period may be particularly appropriate tool for the termination of adult businesses in particular locations. SDJ, Inc. , 636 F.Supp. at 1371 (six months amortization period reasonable to eliminate use as topless dancing bar). See also . Dumas v. City of Dallas , 648 F.Supp. 1061 (N.D. Tex. 1986), aff'd sub nom. FWIPBSv. City of Dallas , 837 F.2d 1298 (5th Cir. 1988), aff'd in part , vacated in part and remanded in part , 493 U.S. 215 (1990) (3 year amortization period for SOB deemed nonconforming because of location held constitutional). c. Liquor Establishments A liquor store that pre-dates residential zoning prohibiting the sale of alcoholic beverages would be considered a nonconforming use; however, as long as such use was lawful prior to the zoning ordinance, it may continue to operate so lo ng as there is no abandonment of use. Further, since nonconforming uses run with the land, if the owner of the nonconforming liquor store sells the store, the nonconforming use stays with the store and belongs to any subsequent owner. 8A McQuillin, Municipal Corporations , § 25.183.80. See generally footnote 8, supra . The owner, however, may not move that use to a different location. Id. http://www.bickerstaff.com/articles/primerzone 1.htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 39 of 84 As a practical matter, local regulations of alcoholic beverages sales are preempted by state regulation to the extent local regulation conflicts . Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas , 852 S .W.2d 489 , 491 (Tex. 1993). Further, the Texas Alcoholic Beverage Code expressly prohibits the enforcement of regulations that discriminate against businesses engaged in the sale of alcoholic beverages. Tex.Alco.Bev.Code§ 109 .57 . This does not mean, however, that a municipality cannot regulate these establishments in a non-discriminatory manner. See generally Dallas Merchant's supra. (ordinance requiring all businesses to maintain fire extinguisher applied with equal force to businesses selling alcoholic beverages). Again, amortization may be the appropriate method to discontinue its use in a particular location. d. Governmental Entities A municipality may not require the removal or destruction of property existing at the time the ordinance is implemented, if that property is actually and necessarily used in a public service business. Tex.Local Gov't Code§ 211.013 (b ). "The statutory prohibition was intended to prohibit restriction of nonconforming uses only with respect to public utilities, and businesses of like character." 77 Tex.Jur.3d, Zoning , § 88 at 251. B. Administrative Relief 1. Staff Level The first level of decision lies with the individual who issues the permit, such as the building inspector or other designated administrative official. This individual may make deci,sions concerning whether the use is nonconforming and whether the use predates the ordinance. Such administrative decisions may be appealed to the Board of Adjustment. Tex.Local Gov't Code§§ 211.009(1) and 211.010. 2. Planning And Zoning Commission The Planning and Zoning Commission may, subject to the notice requirements , recommend zoning district boundaries and appropriate zoning regulations for each district. Tex.Local Gov't Code§ 211.007. The Planning and Zoning Commission, however, has no authority to grant a variance or approve a nonconforming use. 3. Zoning Board Of Adjustment If a municipality has established a Zoning Board of Adjustment, the municipality may authorize the board of adjustment, in appropriate cases and subject to appropriate conditions and safeguards, to make special exceptions to the terms of the zoning ordinance that are consistent with the general purpose and intent of the ordinance and in accordance with any applicable rules contained in the ordinance. Tex.Local Gov't Code§ 21 l.008(a). The Zoning Board of Adjustment has the general authority to "hear and decide special exceptions to the terms of a zoning ordinance" and "authorize in specific cases a variance from the terms of a zoning ordinance." Tex.Local Gov't Code§ 211.009(2) and (3). Under this http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley , Pollan, Kever and McDaniel , L.L.P., Austin I Dallas, Texas Page 40 of 84 authority, the Zoning Board of Adjustment holds a public hearing, considers evidence presented and makes a factual determination with regard to the entitlement to protection as a nonconforming use or structure. The Board's decision is final unless timely appealed to the district court by writ of certiorari. Washington v. City of Dallas , 159 S.W.2d 579 , 581 (Tex.Civ .App.-Dallas 1942 , no writ); Tex.Local Gov 't Code§ 211.01 l(c). See also Crow v. City of Sweetwater , 715 S.W.2d 166 (Tex.App .-Eastland 1989, no writ) (appeal must be filed in trial court within 10 days after board's decision is filed or it may be properly dismissed). Zoning Board of Adjustment decisions are measured under an "abuse of discretion" standard. City of San Angelo v. Boehme Bakery , 190 S.W.2d 67 , 70-71 (Tex. 1945); Winkles , 832 S .W.2d at 805. As a general matter, "[c] ourts cannot interfere unless a challenged ordinance appears to represent a clear abuse of municipal discretion , or unless there is conclusive evidence that a zoning ordinance is arbitrary or unreasonable, generally or as to a particular property." Wiley , 458 S .W.2d at 521. A court cannot substitute its judgment for the Board's even if it concludes that there is an overwhelming preponderance of evidence against the Board's decision. Fifley , 359 S.W.2d at 181. The court proceeds under the substantial evidence rule , i.e. , whether there is substantial evidence in the record to support the board's decision, such as whether the use pre-dates the ordinance. See generally Huguley v. Board of Adjustment of City of Dallas , 341 S.W.2d 212, 218 (Tex.Civ.App.-Dallas 1960, no writ). See also Turcuit , 658 S.W.2d at 834. Such a question is a question oflaw. White , 517 S .W.2d at 344 . X. MUNICIPAL REGULATION OF SEXUALLY ORIENTED BUSINESSES (SOBs) Municipal and local governmental regulation of sexually oriented businesses (SOBs), while a prolific source of litigation in the last decade, is legally permissible and I believe should be considered by a city council or other local governmental body even if there presently are no sexually oriented businesses in the community. While a discussion of the myriad constitutional issues involved and the scope of permissible regulation is beyond the purview of this paper, several "pointers" have evolved.(lQ} A. Regulate, Don't Eradicate The key issue in regulating sexually oriented businesses is that a local government must never have the intent to eradicate or the effect of eradicating sexually oriented businesses from the community. As offensive as this may be to governmental bodies or law enforcement agencies, this concept needs to be continually stressed to police departments, the local district attorney's office and citizen activist groups in the community . It needs to be explained to all those parties that, like it or not , sexually oriented businesses have a constitutional right to exist in the community . The only proper justification for regulating sexually oriented businesses is to regulate and limit their harmful secondary effects, namely, the rise in crime and lowering of property values and spread of "urban blight." The local government must understand that the locational and licensing provisions of the ordinances are only designed to manage the problem, not to eradicate the source. http://www.bickerstaff.com/articles/primerzone l .htm 1016199 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 41of84 To the greatest extent feasible, try to sensitize the public to the First Amendment concerns that a local government must address. Even though this may be difficult, I would like to offer a few suggestions. First, when the governmental body is considering adopting a sexually oriented businesses ordinance or regulation, check the notice contained in the posting of the meeting. One local government in Texas posted its meeting as follows: "Consideration of adoption of anti-pornography ordinance." Although that notice is not violative of Texas state law, a sexually oriented businesses ordinance legally is not an anti-pornography ordinance, particularly in light of the legislative findings contained in most SOB ordinances. Second, treat any SOB ordinance or regulation as a zoning ordinance (which it is). This means you must give any appropriate state law-mandated notices and conduct public hearings . Third, if you (as the local government attorney) are allowed to present or assist in the presentation of the ordinance or regulation, lay the groundwork for the meeting -"this is not an anti-pornography ordinance," "we are sensitive to the First Amendment issues involved here," "the secondary effects of sexually oriented businesses are well documented," etc. Since you are participating in a public hearing, there is little, if anything, you can do to stop a citizen from wrongly characterizing the ordinance or regulation; however, my experience is that courts pay no attention to the public comments and the ordinance or regulation stands or falls on its own merits. Nevertheless, you can help frame the debate. Fourth, at every public hearing I have attended, an audience member has stood up and stated that the proposed SOB ordinance will allow those businesses into the community, "so, why should we pass this ordinance?" As gently as possible, the presiding officer (mayor, county judge, etc.) should make it clear that the purpose of the SOB ordinance or regulation is that of a "preemptive strike" and that the community's residents have greater protection after the adoption of the SOB ordinance or regulation than otherwise. B. It's Not Expensive And You Need Not Reinvent The Wheel If your mayor, councilmembers or county commissioners conclude that sexually oriented businesses should be regulated, the following questions will be asked: (1) how much will it cost?, (2) will we be sued? and (3) how do we do it? At least in regard to the first and third questions, the answers are ( 1) it should not be costly and (3) we will rely on the studies and experiences of other cities and counties. In my firm, we have an "SOB packet" that contains the studies conducted by several cities and counties as well as summaries of the salient findings. We also include a draft ordinance that should be appropriately modified for the specific city or county . This need not be an expensive, time- consuming proposition since "you are not going where no man has gone before ." C. Avoid Public Bloodletting No local government or local governmental attorney should put itself or http://www.bickerstaff.com/articles/primerzone l .htm 1016199 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P., Austin I Dallas, Texas Page 42 of 84 himself/herself in the unenviable position of approving specific sexually oriented businesses at specific sites. Some cities have adopted sexually oriented businesses ordinances in which a specific use permit (SUP) must be obtained by any SOB applicant in order to locate the business at a specific site in the city . Assuming the SUP provisions are constitutionally sound (which is difficult), the city council, commissioners court or local government body is in the difficult position of either ( 1) approving the location of a sexually oriented business, which is incredibly unpopular and may be political suicide, or (2) denying the SOB applicant's request, which, while politically popular, ultimately may result in litigation and a damage award. In my opinion, there is no way that a local government's consideration of a sexually oriented business' SUP application can be anything but politically charged. Your client will resent you, as the local government's attorney, for placing it in the position of approving an SOB at a certain location and the media coverage may be brutal. Consequently, I believe it best not to use SUP provisions in any SOB ordinance. D. Guarantee Adequate Available Locations Although a local government is not required to guarantee the economic viability of the locations that are available for sexually oriented businesses, it should be certain that the physical and legal characteristics of the available land make the land truly available for use as sexually oriented businesses. For example, if the underlying zoning classification prohibits the location of a sexually oriented business in that zoning district, then that land is not truly available. Furthermore, if the so-called "available land" is simply flood plain, then again it is not truly available for use. As a rule of thumb (and nothing more), the local government should allow at least five percent (5%) of its land area for use as sexually oriented businesses. Of course, this five percent (5%) figure does not include land that is either legally or physically unavailable. As soon as I told one city council about the 5% rule, its first question was what about 4% or 3.5%? There simply is no right or wrong, bright-line percentage test. My hunch is simply this -4% probably is acceptable if it is truly available land while 20% probably is unacceptable if it is all flood plain. Further, do not worry about infrastructure availability -sure, it may cost a lot to extend water and sewer to the SOB site; however, that would be true in all probability ifthe land developed as industrial or commercial. E. Changes To The Locational Restrictions Should Be Supported By Studies That Indicate That The Available Land Area Has Not Fallen Below The Five Percent (5°/o) Or Otherwise Adequate Level Although there is not a per se legal requirement to conduct studies in this regard , as a practical matter the ordinance likely will be challenged and likely will be defeated in court unless the local government can establish that, despite the changes to the locational restrictions, the ordinance still provides adequate available locations. During the 1995 session of the Texas Legislature, there were two bills introduced that would allow local governments to prohibit sexually oriented businesses within 3,000 feet of a church, school, hospital , park, playground or similar facility. Even though both bills failed , if the Legislature in the future enacts such a locational restriction, before immediately changing your local locational requirements , make sure that there are still adequate available http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P., Austin I Dallas, Texas Page 43 of 84 locations. A 3,000 foot requirement, while politically popular, could be a legal kiss of death if all available locations consequently have been eliminated. The best way I know to support your local government's position that there are adequate alternative locations is to request your planning or community development staff to prepare a map (preferably colored) showing the available areas . Even better, attach a letter-sized copy to your public hearing minutes as an exhibit -it will be good evidence at the summary judgment or trial stage. F. Make Legislative Findings In passing an ordinance , it is helpful to make legislative findings of fact regarding both the detrimental effects of sexually oriented businesses on the community and the availability of locations. This will enhance your position at trial since the courts often give deference to legislative findings of fact. Attorneys for sexually oriented businesses usually contend that judicial deference to legislative findings is absurd since local government lawyers draft "findings" even though the local government did not so find and nothing in the record reflects any findings . I respond that since the findings are contained in the ordinance or regulation , and the governmental body passed the ordinance or regulation, there therefore is a "finding" by the local government. I am happy to report that at least one federal district court has accepted that determination. G. Be Strict With Yourself; Be Loose With Others Interpret your ordinance or regulation strictly against the city or governmental body, and fairly and more generously with respect to the regulated. It is important that the local governmental body understand that ordinances regulating sexually oriented businesses need to be enforced fairly and reasonably . They are not tools for oppression or censorship and generally will be stricken in their entirety if they are used in such a way. The courts naturally will interpret the ordinance strictly against the government and fairly and reasonably in favor of the sexually oriented businesses, so it is best to do likewise and avoid unnecessary litigation. As a practical matter, review all documents and license applications that are given to SOB license applicants . After spending more than three years litigating the facial constitutionality of an SOB regulation, an SOB plaintiff filed a second lawsuit against the governmental entity I represented, contending that its application form violated its First Amendment rights and required information not addressed in the sexually oriented businesses regulation itself. Although my client prevailed, I believe we prevailed because the assistant district attorney and I reviewed the application form in advance and deleted questions that were either immaterial or invasive of personal privacy. Additionally, in applying an SOB ordinance's regulatory scheme, questions invariably will arise regarding the interpretation of the ordinance or regulation. Without doing violence to the terms of the specific SOB ordinance or regulation, interpret the regulations in such a way as to allow the SOB license applicant the greatest permissible leeway since restricting the applicant may be subject to challenge . If such a challenge ensues, the burden will be on you to substantiate a restrictive interpretation of the SOB ordinance or regulation. One of my clients was questioned about a partition between a peep show area of a building and the sales area. Since the SOB applicant could not comply with the http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 44 of 84 structural and building requirements for peep show booths, the applicant decided to block off the peep show area from the rest of the structure. At first the applicant placed a sign in front of the peep show area saying that the area was closed to the public, even though there was no barrier to entering the area. I told the applicant (through the public works department) I did not believe that the sign in question was sufficient. The applicant later built a wall and placed a door in the wall with a padlock on the door. I believe that was sufficient even though some public works officials believed otherwise. My decision was simple -the area was barricaded and no entry would be made unless the door was unlocked. After one of our periodic, unannounced site inspections, if we found the door was unlocked, then we would undertake enforcement actions at that time. I did not believe, however, that a federal judge would accept the local government's argument that a padlocked door and wall would be insufficient for blocking off the peep show area . H. Remain Independent To the greatest extent possible, remain independent from your police department and the district attorney's office. Enthusiastic vice squads may misunderstand this ordinance or regulation as a tool to eradicate sexually oriented businesses. Do not allow yourself to get sucked into that enthusiasm. I believe it is important that you remain the "voice of moderation." It is indisputable that the regulation of sexually oriented businesses is emotionally charged and that many citizens have strong feelings about these issues. Personally I have many of those same feelings; however, I also have a duty to my client and consequently, I occasionally must divorce myself from those feelings in order to protect my client's legal position. I. Be Cautious Be cautious of creative approaches. Since some sexually oriented businesses are involved with constitutionally protected activities, courts will be very wary of creative attempts to take enforcement action against them. Smaller communities would do well to proceed with aggressive enforcement of known methods rather than experimenting with exotic or creative methods. On the other hand, I am not against aggressively enforcing your ordinance or regulation -of course, always within the confines of the law. Further, if a question exists whether a particular business in your community indeed is a sexually oriented business, you may want to consider a declaratory judgment action prior to undertaking enforcement actions. There are many variables to consider -can you make a good faith argument that the business is a sexually oriented business? Would a court and judge be receptive to your client's argument? Are you attempting to enforce the law or harass a business? Have all other efforts to resolve the issues failed? J. If Sued, Ask For A Jury And Explore Damages If your client becomes involved in a lawsuit with a sexually oriented business , request a jury trial and investigate every allegation for damages . Sexually oriented businesses as a rule are reluctant to go before a jury since juries are not particularly sympathetic to SOB plaintiffs (a real understatement). Furthermore, these types of businesses are reluctant to disclose business records to support their damages claims. Several years ago , an adult theater in http ://www. bickerstaff.corn/articles/primerzone l .htm 1016199 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 45 of 84 the Dallas suburbs closed rather than turn over its business and tax records to a municipality. Even though this is not the usual course of action for most sexually oriented businesses, it nevertheless is one more tool to effect compliance with your local regulations. K. Be Prepared For The Long Haul Invariably sexually oriented businesses have the funds available to fight against regulation by local governments . Be prepared for protracted litigation, including costly discovery disputes. In most cases the longer a sexually oriented business can stave off local regulation of its operations, the more profit it will reap . Vice officers in several Texas cities I represent have told me that many sexually oriented businesses in the Dallas/Fort Worth Metroplex are conduits for laundering drug and prostitution money. Consequently, most sexually oriented businesses have little to lose by challenging regulations. So be prepared for years oflitigation --this is not litigation for the faint-hearted! XI. MUNICIPAL REGULATION OF ALCOHOLIC BEVERAGES In recent years, the ability of cities to regulate alcoholic beverages has been significantly curtailed. This section briefly examines the current legislation governing this area and identifies the specific areas over which municipalities retain regulatory control. A. Preemption By The Texas Alcoholic Beverage Code Although home-rule cities have broad discretionary powers, they cannot enact an ordinance that is inconsistent with the Texas Constitution or laws enacted by the Texas legislature. An ordinance that attempts to regulate a subject matter that has been preempted by a state statute is unenforceable to the extent it conflicts with a state statute. Prior to 1977, alcoholic beverages were regulated in the State of Texas by the Texas Liquor Control Act. Numerous courts interpreting the Act held that it did not preempt home-rule cities from enacting more stringent regulations. See , e.g., City of Clute v. Linscomb , 446 S.W.2d 377 (Tex.Civ.App.-Houston [1st Dist.] 1969, no writ); Louder v. Texas Control Board , 214 S.W.2d 336 (Tex.Civ.App.-Beaumont 1948, writ refd n.r.e.); Eckert v. Jacobs , 142 S.W.2d 374 (Tex.Civ.App.-Austin 1940, no writ). In 1977, the Texas Liquor Control Act was codified into the Texas Alcoholic Beverage Code ("TABC"). Section 1.06 of the TABC stated: [u]nless otherwise specifically provided by the terms of this code, the manufacture, sale, distribution, transportation, and possession of alcoholic beverages shall be governed exclusively by the provisions of the code. Nevertheless, subsequent to this codification, at least one court continued to hold that the statute did not preempt more restrictive municipal control. See Young, Wilkinson & Roberts v. City of Abilene , 704 S.W.2d 380, 383 (Tex.App.-Eastland 1985, writ refd n.r.e.); Abilene Oil Distributors v. City of Abilene , 712 S.W.2d 644 (Tex.App.-Eastland 1986, writ refd n.r.e.). In 1987, the Texas Legislature added section 109.57 to the TABC. Section 109 .57 http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 46 of 84 was further amended in 1991 and 1995 and now reads as follows : § 109.57. Application of Code; Other Jurisdictions (a) Except as is expressly authorized by this code, a regulation, charter, or ordinance promulgated by a governmental entity of this state may not impose stricter standards on premises or businesses required to have a license or permit under this code than are imposed on similar premises or businesses that are not required to have such a license or permit. (b) It is the intent of the legislature that this code shall exclusively govern the regulation of alcoholic beverages in this state, and that except as permitted by this code, a governmental entity of this state may not discriminate against a business holding a license or permit under this code. ( c) Neither this section nor Section 1. 06 of this code affects the validity or invalidity of a zoning regulation that was formally enacted before June 11, 1987 , and that is otherwise valid, or any amendment to such a regulation enacted after June 11 , 1987, if the amendment lessens the restrictions on the licensee or permittee or does not impose additional restrictions on the licensee or permittee. For purposes of this subsection, "zoning regulation" means any charter provision, rule, regulation, or other enactment governing the location and use of buildings, other structures, and land. ( d) This section does not affect the authority of a governmental entity to regulate, in a manner as otherwise permitted by law, the location of: (1) a massage parlor, nude modeling studio, or other sexually oriented business; or (2) an establishment that derives 75 percent or more of the establishment's gross revenue from the on-premise sale of alcoholic beverages. ( e) A municipality located in a county that has a population of 1.2 million or more and that is adjacent to a county with a population of more than 250,000 or a municipality located in a county with a population of250,000 or more and that is adjacent to a county with a population of 1.2 million or more may regulate, in a manner not otherwise prohibited by law, the location of an establishment issued a permit under Chapter 32 or 33 if: http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 47 of 84 (1) the establishment derives 35 percent or more of the establishment's gross revenue from the on-premises sale or service of alcoholic beverages and the premises of the establishment are located in a dry area ; and (2) the permit is not issued to a fraternal or veterans organization or the holder of a food and beverage certificate. The Texas Supreme Court considered the preemptive effect of section 109.57 (a)-(c) in Dallas Merchant's and Concessionaire's Association v. City of Dallas , 852 S .W.2d 489 (Tex. 1993). The Dallas Merchant's and Concessionaires Association and other various parties challenged an ordinance passed by the City of Dallas which prohibited the sale of alcoholic beverages within 300 feet of residential areas in certain parts of the City without a specific use permit. The City's ordinance was passed in an effort to curtail rising crime and other problems associated with the high concentration of alcohol-related businesses in South Dallas. Following a bench trial , the trial court granted the plaintiffs declaratory and injunctive relief and held that the City's ordinance was void to the extent it conflicted with the T ABC. The court of appeals reversed and rendered judgment in favor of the City. On appeal, the Texas Supreme Court reversed the court of appeals and affirmed the judgment of the trial court. The Texas Supreme Court held that the City's ordinance was preempted by the T ABC , stating that "the regulation of alcoholic beverages is exclusively governed by the provisions of the T ABC unless otherwise provided. Section 109 .57 clearly preempts an ordinance of a home-rule city that regulates where alcoholic beverages are sold under most circumstances." Id . at 491-92. The Court concluded that the City could have prohibited the sale of alcoholic beverages in residential areas , but not in the 300 foot zone surrounding residential areas. The Court also held that Section 109.33, which permits a city to prohibit the sale of alcoholic beverages within 300 feet of a church, school, or public hospital, did not apply to residential areas. Accordingly, a municipality's authority to enact new legislation regulating the sale of alcoholic beverages is unenforceable to the extent it is in conflict with the T ABC. As noted in Dallas Merchant's , the T ABC preempts most areas. The issuance of permits authorizing the sale of alcoholic beverages is also governed by the TABC. Some of the more common statewide regulations include : • Regulations governing the days and hours of permissible alcoholic beverage sales . • No sales of alcoholic beverages to minors. • No consumption of alcoholic beverages on the premises of an off- premise licensee. • No consumption of alcoholic beverages near a school. • No sales of alcoholic beverages in a dry county. (Interestingly, the possession of more than 24 12-oz. bottles of beer is prima facie evidence on an intent to sell.) • No offensive noise from a licensee . • No sales to habitual drunkards , intoxicated or insane persons . http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P ., Austin I Dallas, Texas Page 48 of 84 B. Areas Where Municipal Regulation Is Not Preempted A municipality seeking to regulate alcoholic beverages therefore must look to the T ABC to determine the extent of its powers . In this regard, the T ABC permits the following municipal regulations : 1. A city may prohibit the sale of liquor in its residential areas through its charter. Tex.Alco.Bev.Code Ann.§ 109.31(Vernon1995). In this regard , liquor is defined as " ... any alcoholic beverage containing alcohol in excess of four percent by weight, unless otherwise indicated. Proof that an alcoholic beverage is alcohol, spirits of wine, whiskey, liquor, wine, brandy, gin, rum, ale, malt liquor, tequila, mescal, habanero, or barreteago, is prima facie evidence that it is liquor." Tex.Alco.Bev.Code Ann.§ 1.04(5) (Vernon 1995). 2. A city may prohibit the sale of beer in residential areas by charter or ordinance. Tex.Alco.Bev.Code Ann.§ 109.32 (Vernon 1995). A city may also regulate the sale of beer in other areas and prescribe the hours in which it may be sold. Id . 3. A city may prohibit the sale of all alcoholic beverages within 300 feet of a church, public school, or public hospital. Tex.Alco.Bev.Code Ann. § 109 .33 (Vernon Supp. 1996). A city may prohibit the sale of all alcoholic beverages within 1000 feet of a public school if the commissioners court or the governing body receives a request from the board of trustees of a school district under section 38.007 of the Election Code. Id . 4 . A city may prohibit open containers or the public consumption of alcoholic beverages in central business districts. Tex.Alco .Bev.Code Ann.§ 109.35 (Vernon 1995). 5. A city may regulate the location of massage parlors, nude modeling studios, and other sexually oriented businesses. Tex.Alco.Bev.Code Ann. § 109.57(d)(l) (Vernon 1995). 6. A city may regulate the location of establishments that derive 75 percent or more of their gross revenue from on-premise sale of alcoholic beverages. Tex.Alco.Bev.Code Ann.§ 109.57(d)(2) (Vernon 1995). 7. Effective August 25, 1995, subsection (e) was added to section 109.57 and provides that: [a] municipality located in a county that has a population of 1.2 million or more and that is adjacent to a county with a population of more than 250,000 or a municipality located in a county with a population of 250,000 or more and that is adjacent to a county with a population of 1.2 million or more may regulate , in a manner not otherwise prohibited by law, the location of an establishment issued a permit under Chapter 32 or 33 if: (1) the establishment derives 35 percent or more of the establishment's gross revenue from the on-premises sale or service of alcoholic beverages and the premises of the establishment are located in a dry area; and (2) the permit is not issued to a fraternal or http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P ., Austin I Dallas, Texas Page 49of 84 veterans organization or the holder of a food and beverage certificate. Chapters 32 and 33 of the TABC govern the issuance of permits for private clubs . Accordingly, certain municipalities are able to govern the location of private clubs meeting the requirements set forth in the statute . 8. Importantly, Sections 1.06 and 109.57 of the TABC do not affect the validity or invalidity of a zoning regulation that was formally enacted before June 11 , 1987 , and that is otherwise valid, or any amendment to such a regulation enacted after June 11 , 1987, ifthe amendment lessens the restrictions or does not impose additional restriction. Tex.Alco.Bev.Code Ann.§ 109.57(c). C. Common Issues 1. Pre-June 11, 1987, City Ordinances As indicated above , municipal charter provisions and ordinances regulating alcoholic beverages which were otherwise valid and enforceable are not affected by Section 109 .57 . Accordingly, if a city has enacted an ordinance which regulates alcoholic beverages more strictly than the T ABC , the city must exercise great care before amending any such ordinance. An amendment which imposes greater restrictions would be unenforceable and runs the risk of invalidating the previous regulation as well. 2. Regulation Of Beer And Wine Sales For Off-Premise Consumption As stated above, Section 109.32 of the TABC permits a municipality to regulate the sale of beer and prescribe the hours when it may be sold. A municipality may also regulate the sale of wine for off-premises consumption pursuant to Section 26 .04 of the TABC , which states: [t]he restrictions in [the T ABC] relating to beer as to the application of local restrictions ... apply to the sale of alcoholic beverages by a wine and beer retailer's off-premise permittee . Accordingly , since an establishment that sells wine for off-premise consumption must obtain a wine and beer retailer's off-premise permit, the establishment is subject to the local regulations pertaining to the sale of beer. In this way, the municipality can regulate both beer and wine for off-premise consumption. 3. Regulation Of Beer And Wine Through Specific Use Permits One manner in which a municipality can regulate the sale of beer and wine is through a specific use permit. A specific use permit refers to uses that a zoning ordinance permits, but that are screened and specially approved for situational suitability. There is no authority to grant a specific use permit unless the zoning ordinance specifically authorizes it. Thus, a zoning ordinance should specify the conditions that must be met for a specific use permit to be granted. By requiring a specific use permit, a municipality can place various regulations http://www.bickerstaff.com/articles/primerzonel.htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 50 of 84 upon the sale of beer (and wine iffor off-premise consumption), such as limitations on the square footage a business can devote to beer sales, the hours a business can sell beer, or other such regulations. As a word of caution, however, a municipality must be careful that its regulation of beer sales is not so restrictive that it is essentially a prohibition of beer sales. In such a case, the municipality may face the same challenge as in Dallas Merchant's 4. Nonconforming Uses Nonconforming status generally exists when (1) a use or structure was constructed and operational prior to either (a) the annexation of such property into a municipality, or (b) the adoption or amendment of an ordinance, and (2) the nonconforming use has been operating since the use first became nonconforming without subsequent abandonment of such use. An example is a liquor store that is situated on property that is subsequently zoned as residential where the sale of alcoholic beverages is prohibited. In such a scenario, the liquor store is a nonconforming use, but will generally not be prohibited from continuing to operate as a liquor store so long as there is no abandonment of such use. In the above example, the question sometimes arises whether a change in the property's ownership will destroy the new property owner's ability to continue with such a nonconforming use. Other jurisdictions have held that the nonconforming use runs with the land. See State ex rel. Keeven v. City of Hazelwood , 585 S.W.2d 557 (Mo.App. 1979); see also 8A E. McQuillin, Municipal Corporations , § 25.183.50 (3d ed. 1965). There are no Texas cases directly addressing this issue; however, certain courts have presumed this to be the law. This was demonstrated, for instance, in Rosenthal v. City of Dallas , 211 S.W.2d 279 (Tex.Civ.App.-Dallas 1948, writ refd n .r.e.) in which the appellate court did not address whether a transfer of property had any bearing on the potential continuance of a nonconforming use, but instead addressed whether such use had been abandoned by the prior owner. Similarly, in City of Dallas v. Coffin , 254 S.W.2d 203 (Tex.Civ.App.-Austin 1953, writ refd n.r.e.), the court declined to invalidate the nonconforming status of a parcel land as a consequence of a change in ownership. The facts in Coffin revealed that the new owner should have been aware of an agreement between the prior owner and the city under which the prior owner was allowed to completely amortize his investment in such property over a five-year period, at which time he had agreed voluntarily to "relinquish and abandon the use of said property ... and immediately restore it to the use for which it was zoned." The court held that the order of the Board of Adjustment of the City of Dallas which had been made with the previous owner was valid and at the expiration of the five-year amortization period the property would no longer qualify for nonconforming status. 5. Non-Discriminatory Regulation Of Businesses Which Are Engaged In The Sale Of Alcoholic Beverages As indicated above, Section 109.57 of the TABC prohibits the enforcement of regulations that discriminate against businesses engaged in the sale of alcoholic beverages. This does not mean, however, that a municipality cannot regulate these establishments in a non-discriminatory manner. In Dallas Merchant's , the Texas Supreme Court expressly acknowledged that an ordinance requiring all businesses to maintain a fire extinguisher would apply with equal force to businesses that sell alcoholic beverages. The distinction is that a city could not require a liquor store to maintain two fire extinguishers while all other http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 51 of 84 businesses were required to have only one. This general principle regarding discriminatory regulations is particularly applicable with regard to businesses which sell alcoholic beverages, but are engaged in other enterprises as well. One example is a zoning regulation that prohibits all restaurants or convenience stores in a certain area. Although these businesses may sell alcoholic beverages, they are not being discriminated against on that particular basis. Another example is the municipal regulation of sexually-oriented businesses . As noted above, Section 109.57 of the TABC expressly permits municipal regulation of the location of such businesses. A municipality could enact additional regulations of these businesses, however, without running afoul of the T ABC. More restrictive regulations would be permissible because they are designed to regulate that particular aspect of the business, not the sale of alcoholic beverages. 6. Private Clubs Private clubs are regulated by Chapters 32 and 33 of the TABC. Section 32.01 (a) authorizes private clubs to store, possess, and mix alcoholic beverages on club premises, and also to serve alcoholic beverages for on-premises consumption to club members, their families and guests. As indicated above, Section 109.57(e) of the TABC authorizes certain municipalities to regulate the location of private clubs. In addition, a municipality can regulate the sale of alcoholic beverages in such clubs as long as the regulations are not in conflict with the T ABC. XII. ESTOPPEL At some time in the future, you or your city council inevitably will confront the problem of the wrongful or erroneous issuance of a permit by a city inspector. For example, sign permits or building permits may be issued in error by an inspector and, not surprisingly, the permit recipient relies upon the permit and either constructs a sign or commences construction of a building. When it is determined that the sign or building permit should not have been issued, the permit recipient always protests that he/she received a permit and now the city cannot prohibit him/her from constructing a sign or a building. It is even more problematic if revoking the permit results in financial harm to the permit recipient. Although it may appear inequitable to the permit recipient, the wrongful or erroneous issuance of a permit does not estop a city from enforcing its zoning and land use regulations. The general rule in Texas is that a municipality is not estopped from enforcing its zoning ordinances unless the zoning violator has detrimentally relied upon an authorized act of the municipality. See , e.g. , City of Hutchins v. Prasifka , 450 S.W.2d 829, 835 (Tex. 1970); City of Amarillo v. Stapf, 129 Tex. 81, 101 S.W.2d 229 (1937); City of San Angelo v. Deutsch , 126 Tex. 532, 91 S .W.2d 308 , 311-312 (1936); Davis v. City of Abilene , 250 S.W.2d 685 (Tex.Civ.App.-Eastland 1952, writ refd); Edge v. City of Bellaire , 200 S.W.2d 224 (Tex.Civ.App.-Galveston 1947, writ refd); Robinson v. City of Dallas , 193 S.W.2d 821, 823 (Tex.Civ.App.-Austin 1946, writ refd); City of Corpus Christi v. Jones , 144 S.W.2d 388 (Tex.Civ.App.-San Antonio 1940, writ dism'djudgmt cor.). The doctrine of estoppel, in its simplest form, applies against a party who http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 52 of 84 knowingly misrepresents a fact to an innocent party, intending that the listener rely on the statement. If the innocent party does rely on the false statement to his detriment, estoppel acts to prevent the party who made the false statement from raising as a defense the falsity of the statement, or from denying its truth. See , e.g. , Gulbenkian v. Penn , 151Tex.412, 252 S.W.2d 929 (1952); Moore v. Carey Bros. Oil Co. , 269 S.W. 75, reh'g denied , 272 S.W. 440 (Comm'n Appeals 1925). A strict application of the estoppel doctrine to the administration of zoning ordinances would hold municipalities accountable for the chance misstatements or errors of its administrative officials, which would in turn destroy the integrity of the enforcement system and defeat the zoning policies undergirding the zoning ordinances. Municipalities are created and exist to perform public purposes, and they possess only the precise and limited governmental power that has been delegated to them. Southwestern Telegraph & Telephone Co. v. City of Dallas , 104 Tex. 114, 134 S.W. 321 (1911). Municipalities must act within the limits set by constitutions, statutes, charters and their ordinances when exercising their police powers. These restrictions are designed to protect both individual rights and public interests. Prasifka , 450 S.W.2d 829. Conversely, all persons who deal with local governments are charged with notice of those governmental limitations and requirements. Zachry v. City of San Antonio , 296 S.W.2d 299, 305 (Tex.Civ.App.-San Antonio 1956), aff'd , 157 Tex. 551, 305 S .W.2d 558 (1957). Since citizens are charged with constructive notice of all city ordinances, an estoppel claimant cannot easily show reasonable and innocent reliance on administrative misstatements. See City of Fort Worth v. Johnson , 388 S.W.2d 400, 404 (Tex. 1964); Davis , 250 S.W.2d at 688. Moreover, since administrative actions that violate the fundamental commands or limitations established by constitution, statute, charter or ordinance are void and cannot bind the municipality by either contract or estoppel, the traditional application of estoppel has no place in the administration of zoning ordinances. See Black & Daniel, The Texas Rule of Estoppel in Zoning Cases , 33 Baylor L.Rev. 241 (1981 ). With the exception of one aberration, Rosenthal v. City of Dallas , 211 S.W.2d 279 (Tex.Civ.App.-Dallas 1948, writ refd n.r.e.), and on retrial, City of Dallas v. Rosenthal , 239 S.W.2d 636 (Tex.Civ.App.-Dallas 1951, writ refd n.r.e.), Texas courts have recognized the strong policy reasons that justify insulating municipalities from estoppel when they exercise their governmental powers to enforce and administer zoning ordinances. As early as 1937, the Texas Supreme Court held that reliance upon the assurances by city officials would not estop a city to enforce a valid ordinance. In Stapf, 101 S.W.2d 229, the plaintiff operated a machine shop at 1211 Lincoln Street in the City of Amarillo. Located at 1505 Johnson Street was a small foundry. The plaintiff determined that the foundry might be operated profitably in conjunction with his machine shop if the foundry could be located at 1210 Johnson Street, a location immediately across the alley from the plaintiffs machine shop. The plaintiff requested a building permit to move the foundry from its then present site to the location adjacent to his machine shop. The city manager sent the plaintiff a note which read: "It is okay, it seems to me, for a permit to be issued for a foundry at 13th and Johnson Streets." The plaintiff relied upon the city manager's representations and purchased the foundry for a substantial sum of money. A building permit was then issued to the plaintiff by the building inspector. The plaintiffs building permit subsequently was canceled by the building inspector when it was determined that a foundry was not a permitted use in the zoning district to which the foundry had been moved. The plaintiff brought suit to restrain the city from http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P., Austin I Dallas, Texas Page 53 of 84 interfering with his construction of the foundry at the location adjacent to his machine shop. Stapf , 101 S.W.2d at 230-31. On appeal , the plaintiff asserted [t]hat, on account of his reliance upon the action of the city manager advising him that there was no objection to the issuance of a permit for the construction and operation of a foundry at 1210 Johnson Street, and his expenditure of money in purchasing the foundry and in obtaining the lease for the property, the building inspector, the Board of Adjustment, and the city and its officials were estopped from revoking the permit issued to him. Stapf , 101 S. W .2d at 231 . The court, however, held that the foundry was not a permitted use pursuant to the comprehensive zoning ordinance and, consequently, a valid permit could not be issued by the building inspector for the building of a foundry in that particular zoning district. Stapf , 101 S . W .2d at 232 . The court, rejecting the plaintiffs estoppel argument, stated : It being true, then, that the ordinance did not permit the location of a foundry at 1210 Johnson Street in the first manufacturing district, but permitted such a use only in the second manufacturing district, it follows that the action of the building inspector in granting the permit was unauthorized, and the permit was void. Under such permit [plaintiff] could acquire no rights , and no estoppel would be created . Stapf , 101 S.W.2d at 232 . In Jones , 144 S.W.2d 388 , plaintiffs sought to enjoin the City of Corpus Christi from enforcing its zoning ordinance against their property. Plaintiffs, who were in the business of ice manufacturing, purchased land zoned Commercial District. After securing a permit to erect a building on the property from the city engineer's office, plaintiffs erected the building and installed machinery for manufacturing ice. After plaintiffs began manufacturing and selling ice from their newly constructed plant, Corpus Christi officials determined that the plant was in violation of the zoning ordinance and demanded that the plant be closed. Jones , 144 S.W.2d at 392. Plaintiffs asserted that the city was estopped from enforcing its zoning ordinance against their property because the city engineer had issued them a building permit. Jones , 144 S .W.2d at 391-92 . The court, however, rejected plaintiffs' estoppel arguments. Appellees contend that the City of Corpus Christi is estopped from enforcing the provisions of the Zoning Ordinance with reference to their property as the City Engineer issued a permit for the erection of the building, and no city official informed appellees that the erection of an ice manufacturing plant would be violative of a zoning ordinance, although there was considerable newspaper publicity as to the proposed construction of the plant. This contention was overruled by the trial court and that holding must be sustained here. http ://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 54 of 84 The zoning ordinance, or use regulation, is for the purpose of promoting the health, safety, morals and general welfare of the community. Such regulations represent an exercise of the police power by a municipality in its governmental capacity. The fact that a city official or employee fails in certain particulars to enforce the regulations cannot render it invalid, nor estop the city from asserting its validity. Jones , 144 S .W.2d at 392. In Edge , 200 S. W.2d 224, a court once again refused to hold that a city was estopped from enforcing its zoning ordinance. Plaintiff sought an injunction restraining the City of Bellaire from interfering with plaintiffs operation of a restaurant and grill. Plaintiff had converted his residential property into a grill and cafe, and shortly thereafter, he began the construction of an addition to hi s residence in order to accommodate the change from a residence to a restaurant. The city, after erroneously issuing plaintiff a building permit, discovered that the restaurant was in a residential area and revoked the building permit. Edge , 200 S.W.2d at 226. On appeal , plaintiff challenged the City's power to revoke the building permit, claiming that the doctrine of equitable estoppel applied. The court rejected plaintiffs estoppel arguments: While it is unfortunate that the officials of the City of Bellaire issued a permit to [plaintiff] to erect a business establishment within the zoning area, the conduct of these officials, however harsh and unjust its effect might have been on [plaintiff], can not be used to prejudice or destroy the rights of the public to require the enforcement of the zoning ordinance, which was valid on its face , [citations omitted], since in enforcing an ordinance valid in all respects, the officials of the city were discharging a governmental function and the city and its citizens cannot be bound or estopped by unauthorized acts of its officers in the performance of that function. Edge , 200 S.W.2d at 228. In 1948, the sole Texas case to apply the conventional estoppel doctrine against a municipality was Rosenthal , 211 S .W.2d 279. In Rosenthal , the court held that a building inspector's assurances that a nonconforming ice manufacturing plant could be used for meat processing, coupled with the City of Dallas' failure to object to construction work beyond the monetary limit contained in a building permit, estopped the city from contesting the legality of the use. The court deferred to the building official's interpretation of the city ordinance and held that the permit was lawfully issued. Rosenthal , 211 S.W.2d at 291. In reaching that conclusion, the court wrote that the city waived its requirement of a final certificate of occupancy by inspecting the property without complaint as work progressed, and further, that the city was estopped from claiming a substantial variance between the cost stated in the application and the final expenditure as grounds for invalidating the permit because city officials knew about the excessive costs and lodged no complaint. Rosenthal , 211 S .W.2d at 292-93. In addressing the estoppel issue , the court opined that it knew of no reason why cities, acting as they must through authorized agents, should be immune from the estoppel doctrine. Rosenthal , 211 S.W.2d at 292. On retrial , the trial court held the city estopped from revoking the permit. In City of Dallas v. http ://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 55 of 84 Rosenthal , 239 S.W.2d 636 (Tex.Civ.App .-Dallas 1951, writ refd n.r.e.), the appellate court, upholding the trial court's judgment, determined that the city's silence, until practical completion of all work, justified a finding of estoppel. Rosenthal , 239 S.W.2d at 645. Clearly, the doctrine set forth in Rosenthal and the doctrine set forth in Stapf clouded the issue of whether a municipality could be estopped from enforcing its zoning ordinances. Fortunately, although not expressly overruled, the estoppel cases decided since Rosenthal have distinguished Rosenthal and looked upon it with disfavor . In fact, immediately after the Rosenthal decision, any viability that the Rosenthal doctrine might have had in the application of estoppel against municipalities began to erode . In Davis , 250 S.W.2d 685, the Eastland Court of Civil Appeals was provided an opportunity to choose between Stapf and Rosenthal . It chose Stapf . In Davis , plaintiffs applied for a building permit from the City of Abilene to move a building to a lot zoned "B-Dwelling District." The city's comprehensive zoning ordinance required that all buildings in the "B-Dwelling District" be set back at least 25 feet from the front property line . The city, however, granted plaintiffs a building permit that allowed the construction of their building within five and a half feet of the front property line. Davis , 250 S .W.2d at 685-86. When the work on the building was approximately 80% complete, and after substantial sums of money had been expended, the city advised plaintiffs that the building was in violation of the city's set-back requirements and issued an immediate stop work order. Davis , 250 S.W.2d at 686. Plaintiffs brought suit to enjoin the city from enforcing its zoning ordinance . The trial court denied plaintiffs' request and granted the city's mandatory injunction to have plaintiffs' building removed and set back the required distance from the street. On appeal , plaintiffs urged that the building inspector's administrative decision was binding upon the city , and that the city was estopped from canceling the building permit and enforcing its zoning ordinances. Davis , 250 S.W.2d at 686-87. The court noted that a permit issued in direct conflict with the city's zoning ordinance was void. The permit issued to [plaintiffs] was void and without effect from the beginning because it was in violation of the City's zoning ordinance . The building inspector and the Board of Adjustment were without authority to issue a permit or to authorize the construction of a building in violation of such ordinance and to usurp the legislative power expressly conferred upon the legislative body of the City. Davis , 250 S .W.2d at 687. The court also discussed plaintiffs' assertion that the city was estopped from canceling the building permit and enforcing the city's zoning ordinance. In their second point, [plaintiffs] contend that the City of Abilene is estopped from canceling the permit. It is urged that the building inspector was informed of the use to which [plaintiffs] expected to put their building and with this knowledge granted the permit; that http://www.bickerstaff.com/articles/primerzone l .htm 1016199 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 56 of 84 the issuance of the permit was not appealed from; that the officer issuing the permit was presumed to know the zoning ordinances of the City of Abilene; that [plaintiffs] relied upon such presumption and upon the action of the city official in granting the permit and expended about 80% of the total cost of their building. Davis , 650 S.W.2d at 688. The court, after reviewing the pertinent facts of the case, wrote that estoppel could not apply in this situation. The facts in this case are that the building inspector granted [plaintiffs] a permit to place their building upon their lot within 7 feet of their property line on South 6th Street, contrary to the provisions of the City ordinance, and that [plaintiffs] actually placed such building only 5 112 feet from the property line. The permit was, therefore, in direct violation of the set-back provisions of the City ordinance and the action of [plaintiffs] in placing the building 5 112 feet from their property line was in violation both of the permit granted and of the terms of the ordinance. The permit was absolutely void. No mistaken fact finding was made by the building inspector as a basis for the permit. The question of a reasonable construction of an ordinance is not presented by the facts. The building inspector simply granted a permit which the undisputed facts show was unauthorized and void under the city's zoning ordinance. * * * [Plaintiffs] were charged with notice of the provisions of the City ordinance and were not entitled to rely upon the unauthorized action of the building inspector or of the Board of Adjustment taken in direct conflict with such ordinance. In doing so, they acted at their own peril and the city did not become bound or estopped thereby. Davis , 250 S.W.2d at 688. The cases which followed Davis also adopted the Stapf rationale. See , e.g. , City of Corpus Christi v. Lone Star Fish and Oyster Co. , 335 S.W.2d 621 (Tex.Civ.App.-San Antonio 1960, no writ); Bartlett v. City of Corpus Christi , 359 S.W.2d 122 (Tex.Civ.App.-El Paso 1962, no writ); Johnson , supra ; Prasifka , supra ; Marriott v. City of Dallas , 635 S.W.2d 561 (Tex.App.-Dallas 1982), aff'd , 664 S.W.2d 469 (Tex. 1983). Stapf is still viable and has been applied most recently in two 1985 appellate decisions, City of San Marcos v. R. W McDonald Dev. Corp. , 700 S.W.2d 674 (Tex.App.- Austin 1985, no writ), and T&R Assocs., Inc. v. City of Amarillo , 688 S.W.2d 622 (Tex.App.-Amarillo 1985, writ ref'd n.r.e.). In McDonald , the City of San Marcos appealed the trial court's adverse ruling that the conduct of its city officials estopped the city from insisting upon compliance with the City's Interim Drainage and Erosion Control Ordinance ("Interim Ordinance"). The city's general subdivision ordinance required that all development meet the requirements of the Interim Ordinance. Plaintiff never complied with the Interim Ordinance requirements in its final subdivision plat, and the city filed suit to prevent plaintiff's filing of its final plat with the county clerk. Plaintiff asserted that the city was estopped from http://www.bickerstaff.com/articles/primerzonel.htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 57 of 84 enforcing the requirements of its Interim Ordinance. McDonald , 700 S.W.2d at 675-76 . Plaintiffs estoppel claim was based on the director of public work's failure to respond to a letter that plaintiff had written to the city stating that the city planning commission had granted plaintiff a variance from all requirements of the Interim Ordinance. The public works director received plaintiffs letter but did not discuss its contents with other city officials , and did not respond to the letter. The city's planning commission subsequently approved plaintiffs final plat without discussion of whether the Interim Ordinance or its requirements had been addressed . McDonald , 700 S.W.2d at 675-76. The district court found that city officials "led [plaintiff] reasonably to believe that the subdivision improvements would not have to comply with the [Interim Ordinance] ... , " and held that the city was estopped from enforcing the provisions of the Interim Ordinance. McDonald , 700 S.W.2d at 675-76. The court of appeals , in rejecting the trial court's estoppel findings, noted as follows: [T]his Court has concluded, as a matter oflaw, that the City was not estopped to insist upon compliance with its Interim Ordinance. Generally, a unit of government exercising its governmental powers cannot be estopped by its officials' unauthorized or negligent acts. [Citations omitted.] The rule has been applied in a number of cases involving a City's exercise of its zoning powers. [Citations omitted.] This Court does not view the conduct of the City officials as supportive of the district court's finding of estoppel. McDonald , 700 S .W .2d at 676. Plaintiff argued that the city's planning commission was the authorized body to approve the subdivision plat, and therefore, the authorized act of the city planning commission in approving the subdivision plat would be subject to estoppel. McDonald , 700 S.W.2d at 677. The court, even though agreeing that the planning commission was the authorized agency to approve the subdivision plat and that the approval of the subdivision plat was an authorized act of the city, determined that estoppel would not apply. [Plaintiffs] strongest claim for estoppel is that the planning commission's approval of his final plat was an authorized act which estopped the City . It is true , of course, that the planning commission approved [plaintiffs] final plat and that it was the agency empowered to do so. Furthermore, the City's general subdivision ordinance specifies that all requirements of the Interim Ordinance shall have been met at the time of final plat submission. Yet the planning commission, the body specifically authorized to grant variances to the subdivision ordinance and to approve final plats , approved [plaintiffs] final plat without considering the requirements of the Interim Ordinance, and when this omission was called to the commission's attention, it made no attempt to revoke the plat. http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 58of84 The fa ilure of the planning commission to address the requirements of the Interim Ordinance must be viewed as a negligent or unauthorized performance of its functions. A municipality may not be estopped by unauthorized acts of its officials which conflict with a City ordinance. * * * Although the method, or the lack of it, of the City of San Marcos with regard to enforcing its subdivision ordinances leaves a great deal to be desired, those ordinances may not be thwarted by unauthorized or negligent acts of its officials and agencies. McDonald , 700 S.W.2d at 677. Equally persuasive is T&R Assocs. where the plaintiff appealed from a summary judgment granted in favor of the City of Amarillo, which had enjoined the continued operation of plaintiffs lounge. The lounge had been found to be operating in violation of the city's zoning ordinance. The case arose when plaintiff acquired retail shopping mall property for the purposes of operating a lounge that sold alcoholic beverages . The original tenant of the property had sold both prepared food and beverages on the premises. The interim tenants who had occupied the property during the period between the original tenant's occupancy and plaintiffs occupancy had operated an establishment that served alcoholic beverages but not food. After plaintiff purchased the property and began operating the lounge, the city notified plaintiff that its operation selling alcoholic beverages without food service was in violation of the city's zoning ordinance. Plaintiff then applied for a specific use permit that would allow the continued operation of the lounge. The city, however, denied the application. T&R Assocs. , 688 S.W.2d at 624-25 . Among the points raised on appeal, plaintiff contended that the city was estopped from denying its application for a specific use permit. Plaintiff argued that the city's issuance of certificates of occupancy for the premises during those time periods when prior tenants sold alcoholic beverages without food service activit ies estopped the city from now denying the legality of the lounge operation and , alternatively, that such actions amounted to a ratification of the unauthorized use sufficient to legalize it. The court found that city inspectors had physically inspected the premises on a routine basis as part of the code enforcement procedures of the city, and that the city issued certificates of occupancy to the tenants that certified that the use of the lounge was in compliance with all applicable ordinances. T&R Assocs. , 688 S.W.2d at 628 . In spite of the city's apparent acquiescence, the court rejected plaintiffs estoppel arguments, noting that [t]he well-established general rule in Texas is that, as a matter of law, a city may not be estopped to enforce zoning ordinances unless a zoning violator has detrimentally relied upon an authorized act of the municipality. [Citations omitted.] The exception to the general rule of non-estoppel on the part of the City, i.e. , detrimental reliance upon an authorized act of the municipality, is a narrow one. It has been stated that it should be applied only in exceptional cases and with caution. http ://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 59 of 84 T&R Assocs. , 688 S .W.2d at 629 (emphasis in original). The court, after reviewing and rejecting Rosenthal , concluded that equitable estoppel was not appropriate. The use of the premises by [plaintiff] without food service was admitted to be a clear violation of the zoning ordinance . Even assuming , arguendo, that the certificates were issued reflecting a lounge use , the inspectors had no authority to legalize such an unauthorized use. No fact finding by the inspectors of an unauthorized use of the premises is here involved. [Plaintiff] was charged with notice of the provisions of the zoning ordinance and was not entitled to rely upon any action of the building inspectors which was in 'direct violation of such ordinance. If, in fact, [plaintiff] did rely upon any actions of the inspectors, [plaintiff] did so at its own peril and the City did not become bound or estopped thereby . T&R Assocs. , 688 S.W.2d at 629 . Therefore, except in very limited circumstances, a city is not estopped from enforcing its zoning and land use ordinances. XIII. THE OFFICIAL/LEGISLATIVE PRIVILEGE (Can They Really Depose Me?) A tactic of some landowner/developer attorneys whose clients failed to receive requested zoning/land use approvals is to sue not only the municipality but also the individual councilmembers who voted against their clients' project or development. While this often is nothing more than an attempt to harass the individual councilmembers, the courts have looked favorably upon those same councilmembers when the plaintiff landowner/developer attempts to take their depositions to determine why they voted a certain way. Judicial scrutiny of this issue has resulted in the official/legislative privilege. Local legislators are entitled to invoke the official/legislative privilege, which essentially provides that an individual legislator may not be questioned to determine the subjective knowledge , motive, mental processes, individual knowledge , lack of knowledge , understanding or thought processes relating to the legislative body and the decisions and actions of the legislative body. See City of Corpus Christi v. Bay.front Assocs. , 814 S.W.2d 98 , 105 (Tex. App.- Corpus Christi 1991, writ denied); City of El Paso v. Madero Dev. & Constr. Co . , 803 S .W.2d 396 , 401 (Tex.App .-El Paso 1991, writ denied); Clear Lake City Water Auth. v. Salazar , 781 S .W.2d 347, 349-50 (Tex.App.-Houston [14th Dist.] 1989 , writ denied); Mayhew v. Town of Sunnyvale , 774 S.W.2d 284, 298-99 (Tex.App.-Dallas 1989, writ denied); Sosa v. City of Corpus Christi , 739 S.W.2d 397 (Tex.App.-Corpus Christi 1987, no writ); City of Las Vegas v. Foley , 747 F .2d 1294, 1297-99 (9th Cir. 1984); Searingtown Corp. v Incorporated Village of North Hills , 575 F .Supp. 1295, 1298-99 (E.D.N.Y. 1981). In Sosa , supra , the Corpus Christi Court of Appeals affirmed the trial court's quashing of the notices of deposition directed to individual members of the Corpus Christi city council. In that case, the plaintiff had listed each matter of inquiry that involved the individual council member's "complete http://www.b ickerstaff.com/articles/primerzonel.htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas , Texas Page 60 of 84 understanding and knowledge" of actions taken by the city council in eliminating the position of district fire chief, and "the complete process" undertaken by each city councilmember "in determining the advisability" of that action. Sosa , 739 S.W.2d at 404. The trial court held, and the appellate court affirmed , that the "individual knowledge, lack of knowledge, understanding, or thought process of any individual member of a governmental body such as a city council have no bearing upon the validity of the action taken by the body." Sosa , 739 S.W.2d at 404 . In concluding that public policy dictates that the wiser course is not to hale legislators into court every time a legislative action is questioned, Sosa , 739 S.W.2d at 405, the appellate court stated that "[i]ndividual legislators may not be questioned to determine the evidence upon which they relied or their reasons for voting a particular way." Sosa , 739 S.W.2d at 405 [quoting County of Santa Cruz v. City of Watsonville , 177 Cal.App.3d 831, 223 Cal. Rptr. 272 , 279 (6th Dist. 1985)]. Since the Corpus Christi city council could only act collectively as a legislative body, the appellate court additionally held that "individual member s of the City Council are not competent to testify regarding the 'good faith' of the Council in enacting [legislation] .... Furthermore, public policy dictates that individual legislators be incompetent witnesses regarding a law enacted by the legislature as a body." Sosa , 739 S .W.2d at 405. See also Madero , 803 S .W.2d at 401; Mayhew , 774 S.W.2d at 298-99; Foley , 747 F.2d at 1297. Similarly, in May hew , supra , the Dallas Court of Appeals upheld a town council-member's assertion of the official/legislative privilege when a developer, whose application for development approval was denied by the town, sought to depose the councilmember. The court held that O]udicial review of legislative actions should be restricted to examination of the language of the law in question and official legislative records. [Citation omitted.] Individual legislators may not be questioned to determine the evidence upon which they relied or their reasons for voting a particular way. [Citation omitted.] These principles are consistent with the basic doctrine that the subjective knowledge, motive, or mental process of an individual legislator is irrelevant to a determination of the validity of a legislative act because a legislative act expresses the collective will of the legislative body. [Citation omitted.] Furthermore, public policy dictates that individual legislators be incompetent witnesses regarding a law enacted by the legislature as a body. Legislators' hands must not be bound by a possibility of being haled into court to testify every time a legislative action is questioned. Mayhew , 774 S.W.2d at 298-99 (emphasis in original). The Houston Court of Appeals in Salazar , supra , also upheld the official/legislative privilege. In Salazar , officials of the Clear Lake City Water Authority ("Authority") sought protection from discovery regarding their subjective thought processes in denying utility services to a property owner. The appellate court, holding that members of the Authority were not susceptible to judicial inquiry into their subjective thought processes, traced the development of the official/legislative privilege in Texas. The court wrote that "[a]ny privilege or immunity of one governmental department as against another implicates the doctrine of separation of powers. This doctrine derives from Article II ,§ 1 of the Texas Constitution." Salazar , 781 S.W.2d at 349. http://www.bickerstaff.com/articles/primerzone 1.htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas , Texas Page 61 of 84 In addition to the Tex as constitutional provisions requiring separation of powers of the three branches of government, the appellate court reviewed and adopted the reasoning of Sosa . The Salazar court added that [i]t simply is not consonant with our scheme of government for a court to inquire into the motives of legislators. [Citations omitted.] ... A contrary result would not only violate the general rule of Article II, § 1, the specific rule of the Speech and Debate clause [Tex. Const. art . I ,§ 16], and the holding of Sosa v. City of Corpus Christi , but it would also prove an extremely difficult doctrine to contain. No limiting principle would prevent the spread of intergovernmental inquisition to other situations. A court has no more authority to investigate the motives of local legislators than that legislative body has to regulate our deliberations in conference or ask why we ruled a certain way in a given case .... Indeed, ... legislators need not give -or even have -an explanation. Salazar , 781 S.W.2d at 350. The El Paso Court of Appeals applied the official/legislative privilege in Madero , supra , an inverse condemnation action, where judgment was rendered in the trial court against the city and its planning commission for a taking of property without just compensation by virtue of the rezoning of the plaintiffs property for Planned Mountain Development ("PMD"). The appellate court reversed and rendered , dismissing the action for want of jurisdiction and holding that the case was not ripe for adjudication. Salazar , 781 S .W.2d at 400-01. In so ruling , it found the record failed to reveal that the plaintiff landowner had applied for variances to the zoning, and the possibility therefore existed that it "could develop the subdivision according to its plat, or if not according to its plat, with some compromise to its plat after obtaining certain variances and that this would give it reasonable beneficial use of its property." Salazar , 781 S.W.2d at 399. The landowner sought to introduce the testimony of two city aldermen to establish that these individuals had stated words to the effect that they wanted to impede the development of the property by zoning the property PMD, and that therefore it would be futile for the landowner "to attempt to obtain variances in, view of the city's mind-set." Salazar , 781 S.W.2d at 401. The appellate court, in decreeing that the landowner had failed to establish what degree of taking, if any , had occurred and that the futility exception to the ripeness doctrine was not applicable, held that "[i]ndividual legislators are incompetent witnesses in regard to laws enacted because any law expresses the collective will of the legislative body and must be interpreted in that light." Salazar , 781 S.W.2d at 401 , citing Mayhew. It is well settled that city councilmembers are incompetent to testify as witnesses regarding a law enacted by the legislature as a body. Bay.front Assocs. , 814 S .W .2d at 98; Madero , 803 S.W.2d at 401; Salazar , 781 S.W.2d at 350; Mayhew , 774 S .W .2d at 298-99; Sosa , 739 S.W.2d at 405 . This legal maxim serves as both sword and shield because the status of incompetency as a matter oflaw, unlike a privilege, cannot be waived. All city councilmembers, therefore , should not be compelled or permitted to testify regarding their subjective knowledge , motive or mental process relating to the evidence upon which they relied or their reasons for voting a particular way , because those matters are irrelevant to the determination of the validity of a legislative act and the collective will of the legislative body, and they are incompetent, as a matter of public policy, to testify regarding action taken by http://www.bickerstaff.com/articles/primerzone 1.htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 62 of 84 the legislative body, i.e. , the city council. Mayhew , 774 S .W.2d at 297-98. Additionally, to reject the claim of official/legislative evidentiary privilege would undermine the concept of absolute immunity accorded legislators under federal law to protect the integrity of the legislative process. What is at issue in this action, according to plaintiffs, is the motivation of the local legislators in rezoning plaintiffs' property. However, this is precisely the kind of activity which is protected by legislative immunity. Balanced against this doctrine of immunity is the demand by two private plaintiffs in this civil action to know why they have been denied the value they claim their land had prior to the legislative acts in question. I cannot find that this interest rises to a level of public need for the full development of relevant facts sufficient to warrant threatening the interest in protecting the legislative process mandated by the Supreme Court in Tenney [v. Brandhove , 341 U.S. 367 (1951)] and Lake Country Estates [Inc. v. Tahoe Regional Planning Agency , 440 U.S. 391 (1979)]. Accordingly, I must allow defendants' assertion of privilege and deny plaintiffs' motion to compel them to answer questions relating to their motivations and deliberations regarding legislation they enacted. Searingtown Corp. , 575 F.Supp. at 1299. While federal law on the official/legislative privilege is not as plentiful as Texas law, federal courts also have recognized the privilege. In Foley , supra , the Ninth Circuit reviewed a city's request for a protective order prohibiting a corporation from deposing city officials to determine their motives for enacting a sexually oriented business ordinance. In holding that the city officials' motives were not subject to discovery, the court noted that "[t]he Supreme Court has held that an otherwise constitutional statute will not be invalidated on the basis of an 'alleged illicit legislative motive,' [citation omitted], and has refused to inquire into legislative motives." Foley , 747 F.2d at 1297. The Foley court, although recognizing that plaintiffs are often required to prove invidious purpose or intent, as in racial discrimination cases, nevertheless upheld the privilege. Foley , 747 F.2d at 1298. The Court prevents inquiry into the motives of legislators because it recognizes that such inquiries are a hazardous task. Individual legislators may vote for a particular statute for a variety of reasons. [Citations omitted.] "The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futi le." Foley , 747 F .2d at 1297 [quoting Soon Hing v. Crowley , 113 U.S. 703, 710-11 (1885)]. Thus, city councilmembers are not legally competent witnesses to testify regarding the actions taken by a city council acting as a body. http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P ., Austin I Dallas, Texas Page 63of84 XIV. LEGAL CHALLENGES TO ZONING DECISIONS While there are a number of potential theories under which a disgruntled landowner conceivably could challenge a municipality's zoning decision, ranging from the far flung to more conventional attacks, there are several fairly established categories of land use and zoning challenges that may be used as a framework within which to analyze any zoning decision. These general categories are as follows: 1. Just Compensation Takings Claim. This claim arises when a landowner asserts that the zoning or land use decision applied to his property constitutes a taking of his property without just compensation in contravention of the Fifth and Fourteenth Amendments to the United States Constitution. The remedy usually sought in this type of challenge is just compensation. 2 . Due Process Takings Claim . In this challenge, a landowner claims that the zoning or land use regulation applied to his property goes too far and destroys the value of his property to such an extent that it amounts to a taking by eminent domain without due process of law. The remedy sought in this challenge is typically the invalidation of the zoning or other land use regulation. 3. Arbitrary and Capricious Substantive Due Process Claim. A landowner may claim that the zoning regulation or other land use decision is arbitrary and capricious in that it does not bear a substantial relation to the public health, safety, morals or general welfare. This type of challenge may be brought under either a facial or "as applied" attack. 4 . Equal Protection. An equal protection challenge may be based upon an assertion that the zoning regulation or other land use decision unfairly impacts upon a suspect class, which would involve a strict scrutiny review, or results in an economic discrimination, which would involve a rational basis review. 5. Procedural Due Process. This last category involves an attack whereby a landowner claims that he has been deprived of procedural due process in the manner in which the zoning or other land use regulation has been enacted. The foregoing challenges may be brought under both the United States and Texas Constitutions. A. Taking Challenges In General 1. Federal Taking Analysis In Agins v. City ofTiburon , 447 U .S. 255 (1980), the United States Supreme Court set out the test to determine if a land use regulation amounts to a taking. The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests [citation omitted], or denies an owner economically viable use of his land [citation omitted]. Id. at 260. See also Nollan v. California Coastal Comm'n , 483 U.S. 825 , http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P ., Austin I Dallas, Texas Page 64 of 84 834 (1987). The Court has also acknowledged, however, that it has developed no "set formula to determine where regulation ends and taking begins." MacDonald, Sommer & Frates v. Yolo County , 477 U.S. 340, 348 (1986). In Penn Central Transportation Co . v. New York City , 438 U .S. 104 (1978), the Court applied the taking clause to a land use case when it upheld the designation of Grand Central Station as an historic landmark, and upheld the city's refusal to allow the construction of a high rise building in the air space above the station. The Court enumerated the factors to be considered in applying the taking clause. The first consideration is the economic impact of the regulation on the claimant and the extent to which the regulation interferes with "distinct investment-backed expectations." Id. at 124. The Court noted, however, that "the submission that appellants may establish a 'taking' simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable." Id. at 130 . The Court further wrote that "government may execute laws that adversely affect recognized economic values ," such as exercises of the taxing power. More important, the Court added , were cases that upheld "land-use regulations that destroyed or adversely affected recognized property interests .... Zoning laws are, of course, the classic example .... " Id. at 125. The Penn Central case, and the taking guidelines stated therein, impose a significant burden on landowners who challenge zoning laws and other land use decisions as a taking due to a mere diminution in property value. In any taking analysis , the initial inquiry is whether the challenged governmental action advances a legitimate public interest. Agins , 447 U.S . at 260; Penn Central , 438 U.S . at 125. The second step in a taking analysis examines whether the challenged governmental action denies an owner the economically viable use of his land. Agins , 447 U.S. at 260. In reviewing this part of the taking analysis, it is important to note that the Fifth Amendment's prohibition against taking without compensation does not guarantee the most profitable use of property, Goldblatt v. Hempstead , 369 U.S. 590 , 592 (1962), and a diminution in value, standing alone, does not establish a taking. See Hadacheckv. Sebastian , 239 U.S. 394, 405 (1915) (restriction that devalued property by approximately 90%, from $800,000 to $60,000, upheld); Village of Euclid v. Amber Realty Co. , 272 U.S . 365, 384 (1926) (zoning regulation stistained even though the restriction reduced the value of the property by 75%); Pace Resources, Inc. v. Shrewsbury Township , 808 F.2d 1023 , 1031 (3d Cir. 1987) (reduction in value from $495,600 to $52 ,000 held not a taking); Pompa Constr. Corp. v. Saratoga Springs , 706 F .2d 418 , 420 n.2 (2d Cir. 1983) (use restriction which devalued property by approximately 77% was not a taking). Penn Central , 438 U.S. at 131. Taking issues must be resolved by focusing not on the uses regulations deny, but rather on the uses that regulations permit. Id. As stated in City of Eastlake v. Forest City Enterprises, Inc. , 426 U.S. 668 , 674 n.8 (1976) (citations omitted): By its nature, zoning "interferes" significantly with owners' uses of property . It is hornbook law that " [ m ]ere diminution of market value or interference with the property owner's personal plans and desires relative to his property is insufficient to invalidate a zoning ordinance or entitle him to a variance or rezoning." See also Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional http ://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 65 of 84 Planning Agency , 638 F.Supp. 126 , 134 (D. Nev. 1986) ("A zoning regulation is not made invalid merely because of loss of value to the property affected, even if that loss is substantial"). Under federal law, a land use regulation does not constitute a taking unless it deprives the property owner of all use of the property. Lucas v. South Carolina Coastal Council , 505 U.S. 1003, 112 S. Ct. 2886 (1992); First English Evangelical Lutheran Church of Glendale v. County of Los Angeles , 482 U.S. 304, 320 (1987); Jackson Court Condominiums, Inc. v. City of New Orleans , 874 F.2d 1070, 1080-82 (5th Cir. 1989); Midnight Sessions Ltd v. City of Philadelphia , 945 F.2d 667, 677 (3d Cir. 1991); Pace Resources , 808 F .2d at 1031. Although the Supreme Court has yet to define the meaning of the term "economically viable use ," the term appears to have nothing to do with whether a landowner realizes a profit on his investment. See Agins , 447 U.S . at 262- 63. In Williamson County Regional Planning Comm'n v. Hamilton Bank , 473 U.S . 172 (1985), the Supreme Court discussed the "economically viable use" concept with reference to the defendant's evidence that, because of prior investments in the property, it would not be profitable to develop the land with the 67 dwelling units the Planning Commission was willing to approve. The Supreme Court refused to equate the concept of "economic feasibility" with the concept of "profitability." The expected income from the sale of the 67 units apparently was measured against the cost of the 27-hole golf course and the cost of installing water and sewer connections for a large development that would not have had to have been installed for a development of only 67 units .... Thus, the evidence appears to indicate that it would not be profitable to develop 67 units because respondent had made various expenditures in the expectation that the development would contain far more units; the evidence does not appear to support the proposition that, aside from those "reliance" expenditures, development of 67 units on the property would not be economically feasible. Id at 191 n.12 (emphasis added). 2. State Taking Analysis In City of College Station v. Turtle Rock Corp. , 680 S.W.2d 802, 805 (Tex. 1984), the Texas Supreme Court enunciated the test to determine whether an ordinance constitutes a "taking" under the Texas Constitution: A taking occurs if (1) the ordinance is not substantially related to the health, safety, or general welfare of the people ; or (2) the ordinance is arbitrary. Most zoning decisions are substantially related to the health, safety or general welfare, thereby satisfying the first prong of the Turtle Rock test. This rule was applied in Turtle Rock to uphold the park land dedication ordinance in question. The presumption favors the reasonableness and validity of the ordinance. An "extraordinary burden" rests on one attacking the city ordinance .... If reasonable minds may differ as to whether or not a particular zoning ordinance has a substantial relationship to the public health, safety, morals , or general welfare ... the http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 66 of 84 ordinance must stand as a valid exercise of the city's police power. Turtle Rock , 680 S.W.2d at 805 . Most zoning decisions are at the very least issuable or debatable, and therefore should be upheld as facially and constitutionally sound. B. Due Process And Equal Protection Challenges In General Initially, it should be noted that in order for a landowner to maintain a claim for substantive due process , equal protection or taking without just compensation, the landowner must establish that he has been deprived of a property interest. Ruckelshaus v. Monsanto Co. , 467 U.S. 986, 1001-04 (1984); Webb's Fabulous Pharmacies, Inc. v. Beckwith , 449 U.S. 155, 161 (1972). Property interests are not created by the United States Constitution; rather, they are created by state law. Board of Regents v. Roth , 408 U.S. 564, 577 (1972). It is well established in Texas that "property owners do not acquire a constitutionally protected vested right in property uses once commenced or in zoning classifications once made ." City of University Park v. Benners , 485 S.W.2d 773, 778 (Tex. 1972); Smith v. Copeland , 787 S.W.2d 420, 422 (Tex.App.-San Antonio 1990, no writ). 1. Federal Substantive Due Process Analysis The applicable standard of review for substantive due process claims in land use matters was established in Shelton v. City of College Station , 780 F .2d 475, 482 (5th Cir.) (en bane), cert. denied , 477 U.S. 905 (1986) ("[W]e hold that the outside limit upon a state's exercise of its police power and zoning decisions is that they must have a rational basis"). In reviewing a landowner's challenge, the appropriate inquiry for a reviewing court is whether there was a conceivable or even hypothesized factual basis for the specific zoning decision made. Id at 480-81. It is not the function of the trial court to determine whether a city council's land use decision necessarily would have been the best course for the community. Id at 480. The United States Supreme Court has admonished courts from intruding into local government zoning decisions absent a clear showing of a violation of constitutional rights. The zoning function is traditionally a governmental task requiring the "balancing [of] numerous competing considerations," and courts should properly "refrain from reviewing the merits of [such] decisions, absent a showing of arbitrariness or irrationality ." Larkin v. Grendel's Den. Inc. , 459 U .S. 116, 121 (1982)(citations omitted). The range of legitimate governmental interests to support a change in zoning or other land use decision is very broad. In Euclid , 272 U.S. at 394, the Supreme Court first sustained the constitutionality of zoning ordinances based upon the "evils of overcrowding people ." The Court further noted the legitimacy of keeping residential areas free of "disturbing noises," "increased traffic ," the hazards of "moving and parked automobiles" and "depriving children of the privilege of quiet and open spaces .... " The ordinance was upheld because the validity of the legislative classification was "fairly debatable" and therefore could not be said to be "wholly arbitrary ." Id at 388. Similarly, in Berman v. Parker , 348 U.S. 26 (1954), a landowner challenged a District of Columbia zoning ordinance alleging that such http://www.bickerstaff.com/articles/primerzone 1.htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 67of84 ordinances were unconstitutional because they were passed "merely to develop a better balanced , more attractive community." Id at 31. In upholding the zoning ordinance, the Supreme Court held: We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. [Citations omitted.] The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that a community should be beautiful as well as healthy, spacious as well as clean, well- balanced as well as carefully patrolled. Id at 32-33. In reviewing the constitutionality of a zoning enactment, courts are required to recognize the presumption of validity accorded the adoption of any zoning decision or ordinance. Goldblatt v. Hempstead , 369 U.S. 590, 596 (1962); United States v. Carolene Products Co. , 304 U.S. 144, 154 (1938) (exercise of police power will be upheld if any set of facts either known or which could be reasonably assumed affords support for it). Zoning ordinances are presumed valid. [Citations omitted.] The courts may interfere only if an ordinance is unreasonable and arbitrary. Hence, parties challenging an ordinance bear the "extraordinary burden" of demonstrating that reasonable minds could not differ as to whether the ordinance has a "substantial relationship to the protection of the general health, safety or welfare of the public." Otherwise, the ordinance will stand. [Citations omitted.] Thus, the Ordinance need only have a possible rational basis; the court will not inquire into its actual purposes. In other words, the court's review is deferential to the City. Brewster v. City of Dallas , 703 F.Supp. 1260, 1263-64 (N.D . Tex. 1988) (emphasis in original). Indeed, as one court explains: "[Substantive due process] claims should, however, be limited to the truly irrational--for example, a zoning board's decision made by flipping a coin .... " Lemke , 846 F .2d at 472 (Arnold, J., concurring). 2. Federal Equal Protection Analysis The equal protection clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws," which essentially is a direction that all persons similarly situated should be treated alike. Plyler v. Doe , 457 U.S. 202 , 216 (1982). Section 5 of the Amendment empowers Congress to enforce this mandate, but absent controlling congressional direction, the courts themselves have devised standards for determining the validity of state legislation or other official action that is challenged as denying equal protection. The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Schweiker v. Wilson , 450 U.S . 221, 230 (1981); United States Railroad Retirement Bd v. Fritz , 449 U.S. 166, 174-75 (1980); Vance v. Bradley , 440 U.S. 93, 97 (1979); New Orleans v. Dukes , 427 U.S. 297, 303 (1976). When social or economic legislation is at issue, the equal protection clause allows the states wide latitude, United States Railroad Retirement Bd , 449 U.S. at 174; http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P ., Austin I Dallas, Texas Page 68 of 84 Dukes , 427 U.S . at 303 , and the Constitution presumes that even improvident decisions eventually will be rectified by the democratic process. City of Cleburne v. Cleburne Living Center , 473 U .S. 432, 440 (1985). The general rule gives way, however, when a statute or ordinance classifies by race, alienage or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to soon be rectified by legislative means , these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. See Cleburn e Living Center , 473 U.S. at 441 , and the cases cited therein . Strict scrutiny has never been employed in reviewing deferential treatment based upon wealth classifications. See , e.g. , James v. Valtierra , 402 U.S. 137 (1971); Harris v. McRae , 448 U.S. 297 , 323 (1980) (poverty, standing alone , is not a suspect classification); San Antonio Indep. Sch. Dist. v. Rodriguez , 411 U.S. 1, 29 (1973) (Supreme Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis). Se e also Maher v. Roe , 432 U.S. 464 , 470-71 (1977). An ordinance or other legislative enactment that does not burden a suspect class or a fundamental interest should not be overturned "unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [governing body's] actions were irrational." Pennell v. City of San Jose , 485 U.S . 1, 14 (1988) (quoting Vance , 440 U.S. at 97). 3. State Substantive Due Process And Equal Protection Analysis In Texas, municipal zoning ordinances and other land use legislation are presumed to be valid and the burden is on the party seeking to prevent their enforcement, whether generally or in relation to a specific parcel of property, to prove that the ordinance or other legislative act is arbitrary or unreasonable because it bears no substantial relationship to the health, safety, morals or general welfare of the citizenry. If reasonable minds may differ, no clear abuse of discretion is shown and the ordinance must stand as a valid exercise of the city's police power. City of Pharr v. Tippitt , 616 S. W.2d 173 , 175-76 (Tex. 1981); Hunt v. City of San Antonio , 472 S.W.2d 536, 539 (Tex. 1971). The burden on the party attacking the ordinance or other legislative act is an "extraordinary" one and the challenging party must show that no conclusive or controversial , issuable facts or conditions exist that would authorize the governing body of the municipality to exercise the discretion confided to it. Hunt , 472 S.W.2d at 539 ; Thompson v. City of Palestine , 510 S.W.2d 579, 581(Tex.1974). The validity of an ordinance or other legislative act clearly is a question of law, not a question of fact. City of Pharr , 616 S.W.2d at 175 ; Hunt , 472 S.W .2d at 539 . In determining whether an ordinance or other legislative act violates either the due process of law or equal protection of law provisions of the Texas Constitution (see Tex .Const. art. I, § 3), a reviewing court must determine whether to apply the rational relationship or strict scrutiny test. See , e.g. , Littlefield v. Hays , 609 S.W.2d 627 , 629 (Tex.Civ.App.-Amarillo 1980, no writ). In undertaking due process and equal protection analyses , the reviewing court must deem the state constitutional provisions coterminous with their federal counterparts ; consequently, federal constitutional due process and equal http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 69 of 84 protection violations are equated with the appropriate state constitutional violations. See , e.g. , Alford v. City of Dallas , 738 S.W.2d 312, 315-28 (Tex.App.-Dallas 1987, no writ) (federal and state constitutional due process and equal protection claims simultaneously considered along with applicable case law and are dispositive of both federal and state constitutional claims); Lubbock Poster Co . v. City of Lubbock , 569 S.W.2d 935, 944 (Tex.Civ.App.-Amarillo 1978 , writ refd n.r.e.), cert. denied , 444 U .S. 833 (1979); Houston Chronicle Publishing Co . v. City of Houston , 620 S. W.2d 833, 836-39 (Tex.Civ.App.-Houston [14th Dist.] 1981, no writ). C. Procedural Due Process Challenges In General "It is an established constitutional principle that procedural due process attaches only to administrative or adjudicatory action by the state, and not to legislative action." Development in the Law -Zoning , 91 Harv. L. Rev. 1427, 1508 (1978) (emphasis added). See also Bi-Metallic Inv. Co. v. State Bd. of Equalization , 239 U.S . 441 (1915); J o int Anti-Fascist Refugee Comm. v. McGrath , 341U.S.123 , 167 (1951) ("[W]hen decisions of administrative officials in execution of legislation turn exclusively on considerations similar to those on which the legislative body could itself have acted summarily, notice and hearing may not be commanded by the Constitution"). Consequently, the procedural protections of due process do not extend to all deprivations of otherwise protected property interests. Deprivations which occur as a result of a legislative act of a municipality are not subject to the procedural requirements of due process. See Jackson Court Condominiums , supra , and cases cited therein; Couf v. DeBlaker , 652 F.2d 585, 590 (5th Cir. 1981), cert. denied , 455 U.S . 921 (1982) ("Our opinions repeatedly characterize local zoning decisions as 'legislative' in nature," therefore "Plaintiffs cannot complain of a denial of procedural due process, for no constitutional limitation on legislative procedure is relevant here"). As recently noted by the Fifth Circuit in Calhoun v. St. Bernard Parish , 937 F.2d 172 (5th Cir. 1991), even spot zoning is considered a legislative act: Although this court has always viewed zoning as a legislative function, at one point, we distinguished "true" zoning ordinances from spot zoning .... In Shelton [supra ], this circuit put [that distinction] to rest. In Shelton , we held the denial of a request for a variance from a zoning ordinance was a legislative decision .... It followed that the decision at issue was a legislative judgment, an evaluation of legislative facts , even though the legislative decision was not the initial enactment of a zoning code . Rather, the spot zoning remained legislative in character. Id. at 174. The above-referenced discussion of taking, due process and equal protection challenges provides a good overview of the law in those areas in regard to zoning and land use challenges generally. XV. PRACTICAL TIPS FOR MAYORS AND COUNCILMEMBERS IN MAKING LAND USE DECISIONS http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 70 of 84 1. A void personal attacks on builders/developers; 2. Treat all builders/developers similarly; 3. Avoid pandering to citizens--it only confuses the process; 4. Frame comments in objective terms--avoid discussion of personal likes and dislikes; 5. Keep good (that is , error free and complete) minutes of meetings; 6. Be extremely cautious when speeding up the plat review or zoning process; 7. Are you taking on added maintenance/repair responsibilities for your city? 8. Sensitize other councilmembers and P & Z commissioners to their responsibilities ; 9. Eliminate all discrimination concerns (no ethnic comments or socio- economic comments) and consider disabled persons' concerns; 10. When denying a plat, provide a specific basis for the denial on the record; 11. When considering a plat, limit considerations to platting matters, i.e. , do not discuss or otherwise attempt to amend the zoning that is already in place; 12. If denying a plat that complies with your subdivision ordinance on public health, safety or welfare grounds , make sure your reasons concern problems that are unique to that particular plat. A void very general concerns, such as fear of increased traffic congestion, effect of development upon schools, etc.; 13. Always keep in mind the amount of discretion you possess--in a zoning/rezoning situation, your discretionary authority often is very broad; in the platting context, your discretionary authority is severely circumscribed; and 14. When in doubt, ask your City Attorney! Continued in Part 2 Footnotes i=. 1. The terms "capital improvement" and "facility expansion" are terms of art. A "capital improvement" is limited to only one of four types of public facilities with a life expectancy of three or more years. "These are (1) 'water supply, treatment and distribution facilities'; (2) 'wastewater collection and treatment facilities'; (3) 'storm water, drainage , and flood control facilities'; or 'roadway facilities."' Impact Fees , § 2.1 at 5-6. "Facility expansion" refers to the "expansion of the capacity of an existing facility of one of these types of capital improvements ." Id. , § 2.1 at 6. ~ 2. The impact fee statute provides that "an owner may not be required to construct or dedicate facilities and to pay impact fees for those facilities." Tex.Local Gov't Code§ 395 .001(4). A "credit" is "a reduction in the amount of the impact fee reflecting previous monetary contributions identified in the capital improvements plan for impact fees" and an "offset" refers to "a reduction in the amount of an impact reflecting the value of land dedicated by a developer for a capital improvement designated in the capital improvements plan for impact fees, or the value of such improvement constructed by a developer pursuant to the political subdivision's land use regulations or requirements." Impact Fees, § 11.3 at 102-03. http://www.bickerstaff.com/articles/primerzonel .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Ke ver and McDaniel , L.L.P., Austin I Dallas, Texas Page 71 of 84 .a 3. One commentator has described this third refund provision as "virtually unworkable ." S ee Impact Fees,§ 10 .5 at 94 . .a 4. In Dolan , the Supreme Court, although stating that precise mathematical calculation is not required , placed the burden of proof upon cities to make some sort of individualized determination that a city-imposed dedication is related both in nature and extent to the impact of the proposed development. Id. , 114 S.Ct. at 2319-20. Thus, any exaction must bear a reasonable relationship to the needs created by the development and the burden of proof rests with the city to establish and quantify such needs . .a 5. Tex. Tax Code§ 101.001 et seq . .a 6. The vested rights statute referred to approvals, etc ., by a "regulatory agency ." Since , by definition, a "regulatory agency" is an agency , department or division of a political subdivision, the political subdivision itself was not included. Therefore, a rezoning of property, which can only be implemented by the governing body , arguabl y did not come within the express terms of the vested rights statute . .a 7 . The author gratefully acknowled ges the assistance provided by Bonnie Goldstein, an attorney at Vial , Hamilton, Koch & Knox , L.L.P ., Dallas, in the preparation of this section of the paper. .a 8. Nonconformance must be distinguished from a variance or special exception; the latter two require proof that the zoning regulation imposes a substantial and unique hardship and generally involve a new use . .a 9. Although, there are no Texas cases directly addressing this issue , it may reasonably be implied. In Rosenthal , supra , the court did not address whether a transfer of property had any bearing on the potential continuance of a nonconforming use ; rather addressed whether such use had been abandoned by the prior owner. Se e also Ci ty of Dallas v. Coffin , 254 S.W.2d 203 (Tex.Civ.App.-Austin 1953 , writ refd n .r.e.) (court declined to invalidate the nonconforming status of a parcel of land as a consequence of a change in ownership). ~ 10. An article by Tom Brandt (a partner with Fanning, Harper & Martinson of Dallas , Texas) summarizing these pointers appeared in the Fall 1992 edition of The Spectrum , the quarterly newsletter of the State and Local Government Relations Section of the Federal Bar Association. I have taken the liberty of adding a few pointers and thoughts based upon my experience in this area of the law . .a 11. For ease and consistency of reference, this article typically will refer to "the city," "city council" and "city officials and employees." The concepts addressed in this chapter usually are applicable to any governmental entity that regulates land uses , ho wever, and unless otherwise noted should apply equally t o states, state agencies , counties and special districts, as well as their respective elected and appointed officials and employees . .a 12. As discussed in Part II(F)(2), infra , both the in-house city attorney and the landowner's counsel should be aware of their respective potential disqualification in representing the city or landowner if, by virtue of their participation in the administrative aspects of the land use decision, they have http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 72of84 become potential fact w itnesses. In-house counsel and the landowner's attorney may need to consider retaining other legal counsel should this ethical and legal dilemma materialize. i:. 13. For further discussion on document organization, see Part II(D)(1), infra . i:. 14. See , e.g. , MacDonald, Sommer & Frates v. Yolo County , 477 U.S. 340, 351 (1986); Williamson County Regional Planning Comm'n v. Hamilton Bank , 473 U.S . 172 , 199-200 (1985); Herrington v. County of Sonoma , 834 F.2d 1488, 1494 (9th Cir. 1987), modified , 857 F.2d 567, 568 (9th Cir. 1988), cert. denied , 489 U .S . 1090 (1989). i:. 15. For example, the Eleventh Circuit has held that an as applied substantive due process claim is not ripe until the decision denying zoning or other land use decision i s final and applied to the property. Under this approach, futility is not established and a constitutional challenge to local zoning may not be entertained until at least one meaningful application has been submitted to the local zoning authority. See Eide v. Sarasota County , 908 F.2d 716, 726 (11th Cir. 1990), cert. denied , 498 U .S. 1120 (1991). The Ninth Circuit has imposed an even more stringent requirement, mandating that the landowner not only must submit one meaningful application, but also must seek at least one variance if that applicati on is denied. Herrington , note 4 supra , 834 F .2d at 1494-95, modified , 857 F .2 d at 569. See also Executive JOO, Inc. v. Martin County , 922 F.2d 1536 , 1549-50 (11th Cir.), cert. denied , 502 U.S. 810 , (1991). The Sixth Circuit, however, has adopted a more lenient standard for a plaintiff, holding that the very existence of an allegedly unlawful zoning action, without more, makes a substantive due process claim ripe for federal adjudication. See Nasierowski Bros. Inv. Co. v. City of Sterling Heights , 949 F.2d 890 , 894 (6th Cir. 1991) . ..i. 16 . For a complete discussion of these categories, see Eide , supra note 15, 908 F.2d at 720-22. See also Pearson v. City of Grand Blanc , 961 F.2d 1211 , 1215-16 (6th Cir. 1992). The author has borrowed liberally from and paraphrased Jud ge Bertelsman's categorical descriptions of federal zoning cases discussed in P earson , 961 F.2d at 1215-16. i:. 17 . Once again, the author has paraphrased Judge Bertelsman's discussion of this matter in Pearson , supra note 16, 961 F .2d at 1217-19 . i:. 18. See Cloutier v. Town of Epping , 714 F.2d 1184, 1189 (1st Cir. 1983), and the cases cited therein . Se e also Creative Environments, Inc. v. Estabrook ., 680 F.2d 822, 833 (1st Cir.), cert. denied , 459 U .S. 989 (1982). i:. 19. Gilbert v. City of Cambridge , 932 F.2d 51 (1st Cir.), cert. denied , U.S. , 112 S .Ct. 192 (1991). See also Smithfield Concerned Citizens/or Fair Zoning v. Town of Smithfield , 907 F.2d 239, 244 (1st Cir. 1990), for an extensive discussion with cited authorities. ~20. Smithfield Conc erned Citizens , supra note 19, 907 F.2d at 246 (alleged improper moti ves were of an economic nature only). i:. 21. Brady v. Town a/Colchester , 863 F .2d 205, 207 (2d Cir. 1988). http://www.bickerstaff.com/articles/primerzone1 .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 73 of 84 A 22. Sullivan v. Town of Salem , 805 F.2d 81, 85 (2d Cir. 1986). A 23. RR! Realty Corp. v. Incorporated Village of Southampton , 870 F.2d 911, 918-19 (2d Cir.), cert. d enied , 493 U.S. 893 (1989). The Second Circuit, in following th e decision in Board of Regents v. Roth , 408 U.S. 564 (1972), has adopted a strict approach in defining constitutionally protected property interests . S ee Yal e Auto Parts, Inc. v. Johnson , 758 F.2d 54 (2d Cir. 1985). "Yale Auto Parts and its progeny have committed this Circuit to the 'entitlement' inquiry in land use regulation cases." RR! Realty , 870 F .2d at 918. The Second Circuit advocates focusing on the degree of official discretion in defining protected property interests to prevent the courts from becoming a super zoning board of appeals. Id A 24. Midnight Session s, Ltd v. City of Philadelphia , 945 F.2d 667, 683 (3d Cir. 1991); Bello v. Walker , 840 F.2d 1124, 1129 (3d Cir.), cert. denied , 488 U.S. (1988); Pace R esources, Inc . v. Shrewsbury Township , 808 F.2d 1023, 1035-36 (3d Cir.), cert. denied , 482 U .S. 906 (1987). A 25. Marks v. City of Ch es apeake , 883 F.2d 308, 311 (4th Cir. 1989); Scott v. Greenville Coun ty , 716 F.2d 1409 , 1419 (4th Cir. 1983). A 26. Shelton v. Ci ty of Coll eg e Station , 780 F.2d 475, 479 (5th Cir.) (en bane), cert. denied , 477 U .S. 905 (1986). See also Calhoun v. St. Bernard Parish , 937 F.2d 172 , 174 (5th Cir. 1991) (legislative immunity), cert. denied , U .S. , 112 S.Ct. 939 (1992); Horizon Concepts, Inc. v. City of Balch Springs , 789 F .2d 1165 , 1167 (5th Cir. 1986). A 27. Nasierowski Bros. , supra note 15 , 949 F.2d at 896. A 28. Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood , 699 F.2d 303 , 308 (6th Cir.), cert. denied , 464 U.S. 815 (1983). A 29. G.M Eng'rs & A ssocs. v. West Bloomfield Township , 922 F.2d 328 , 332 (6th Cir. 1990). A 30. Coniston Corp. v. Village of Hoffman Estates , 844 F.2d 461 , 467 (7th Cir. 1988). Accord Harding v. County of Door , 870 F .2d 430, 431 (7th Cir.), cert. denied , 493 U.S. 853 (1989). A 31. See New Burnham Prairie Homes, Inc. v. Village of Burnham , 910 F.2d 1474, 1479 (7th Cir. 1990). A 32. Lemke v. Cas s County , 846 F.2 d 469, 470 (8th Cir. 1987) (en bane). The concurring opinion disavowed the approach taken in Littlefield v. City of Afton , 785 F.2d 596 , 607 (8th Cir. 1986), which upheld the invalidation of zoning actions that are arbitrary and capricious and have no rational relationship to the general welfare, and favored the deferential legislative review standard of the First Circuit, as articulated in Creative Environments , supra note 18, 680 F.2d at 833. See also Condor Corp. v. City of St. Paul , 912 F.2d 215, 220 (8th Cir. 1990). A 33. Southern Pac. Transp . Co . v. City of Los Angeles , 922 F .2d 498 , 507 http://www.bickerstaff.com/articles/primerzone l .htm 1016199 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 74 of 84 (9th Cir. 1990), cert. denied , U.S ., 112 S.Ct. 382 (1991). a. 34. Jacobs, Visconsi & Jacobs, Co . v. City of Lawrence , 927 F.2d 1111, 1119-20(10thCir.1991).See RRIRealtyCorp. ,supra note23,870F.2d at 915-18. a. 35. Eide , supra note 15. Indeed, the Ninth Circuit relied on the Eleventh Circuit decision in Eide in Southern Pac. Transp. , supra note 23, 922 F.2d at 507 . ..t..36. Silverman v. Barry , 845 F.2d 1072, 1080 (D.C.Cir.), cert. denied , 488 U.S. 956 (1988). a. 37. See 28 U.S.C. § 1291. a. 38. See 28 U .S.C . § 144l(b). a. 39. See Hamilton Bank , supra note 4, 473 U.S. at 194. For further discussion regarding the state compensation ripeness requirement, see T. Roberts, "Inverse Condemnation Claims in Federal Court: The State Compensation Ripeness Requirement and Principles of Res Judicata," 1992 Institute on Planning, Zoning and Eminent Domain, ch. 6. &.40. For an in-depth discussion of the choice of forum issue in land use litigation, see S. Steinglass, Section 1983 Litigation in State Courts , § 6.6. a. 41. Fed. R. Civ. P. 12(b). a. 42. See, e.g. , Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). See also Fed. R. Civ. P. 56(e) . ..s. 43. For a discussion of the immunity defenses available to the public official in land use litigation , please refer to part II(C)(7)-(9) ofthis article, infra . .5. 44. A district court's denial of an immunity defense is an appealable "final decision" under 28 U.S .C . § 1291, notwithstanding the absence of a final judgment. Mitchell v. Forsyth , 472 U.S. 511 (1985). a. 45. For a complete discussion of the substantive differences in federal and state constitutional law in land use cases, see D. Mandelker, Federal Land Use Law , § 1.05[5] (1993). i:.46. See Hamilton Bank , supra note 14, 423 U.S. at 186; Hodel v. Virginia Surface Mining and Reclamation Ass'n, Inc . , 452 U.S. 264, 295 (1981); Agins v. City of Tiburon , 447 U.S . 255, 260 (1980). See also supra note 5 . ..s. 47. Steere Tank Lines, Inc. v. Interstate Commerce Comm'n , 675 F.2d 763, 765 (5th Cir. 1982). See also K. Davis, Administrative Law Treaties § 20.20. ~48. See Developments in the Law-Zoning , 91 Harv. L. Rev. 1427, 1508 (1978); Bi-Metallic Inv. Co . v. State Bd. of Equalization , 239 U.S . 441 (1915). http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P., Austin I Dallas, Texas Page 75 of 84 ~ 49. See , e.g. , J acks on Court Condominiums, Inc. v. City of New Orleans , 874 F.2d 1070, 1074 (5th Cir. 1989), and cases cited therein. ~ 50 . See, e.g . , Ci ty of Hutchins v. Prasifka , 450 S.W.2d 829, 835 (Tex. 1970). The policy arguments frequently advanced to avoid the application of estoppel in the municipal land use context is that a strict application of the estoppel doctrine to the administration of zoning ordinances would hold cities accountable for the chance misstatement or errors of its administrative officials , which in turn would destroy the integrity of the enforcement system and defeat the zoning policies undergirding the zoning ordinances. See Black & Daniel, "The Texas Rule ofEstoppel and Zoning Cases," 33 Baylor L. Rev. 241 (1981). ~ 51. City of Newport v. Fac t Concerts, Inc . , 453 U.S. 247 (1981). ~ 52. In Kentucky v. Graham , 473 U.S . 159 (1985), the United States Supreme Court attempted "to unravel once again the distinction between personal-and official-capacity suits ." Id. at 163. Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, "generally represent only another way of pleading an action against an entity of which an officer is an agent." As long as a government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity . Thus, while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damage judgment in an official-capacity suit must look to the government entity itself. Id. at 165-66 (citations omitted) (emphasis in original). ~ 53. See Brandon v. Holt , 469 U.S. 464 (1985). ~ 54. See , e.g. , Austin v. Borel , 830 F.2d 1356 (5th Cir. 1987). ~ 55. See Butz v. Economou , 438 U.S. 478, 507 (1978) (citing Scheuer v. Rhodes , 416 U.S . 232 , 239-40 (1974)). ~ 56. Martinez v. California , 444 U.S. 277, 284 n.8 (1980). ~ 57. Hernandez v. City of Lafayette , 643 F.2d 1188, 1193 (5th Cir. 1981), cert. denied , 455 U.S . 907 (1982). S ee also Lake Country Estates, Inc. v. Tahoe Regional Planning Agency , 440 U .S. 391 , 402-06 (1979); Owen v. City of Independence , 445 U.S. 622, 663 n .6 (1980). ~ 58. Heiar v. Crawford County, Wi s consin , 558 F .Supp. 1175 , 1180 (W.D. Wis. 1983), aff'd in part, vacated in part , 746 F .2d 1190 (7th Cir. 1984), cert. denied , 472 U.S . 1027 (1985). Cf . Tenney , 341 U .S. at 378. http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Ke ver and McDaniel , L.L.P ., Austin I Dallas, Texas Page 76 of 84 59. In Mayhew v. Town of Sunnyvale , 774 S.W.2d 284 (Tex.App.--Dallas 1989, writ denied), the Dallas Court of Appeals upheld a summary judgment granted in favor of defendant town councilmembers who voted to deny the plaintiff developer's application for planned development. The court held that the town councilmembers were entitled to absolute legislative immunity for their role in denyin g the developer's zoning change request. Thus , we reach the question of whether the individual defendants acted in a legislative capacity when they voted to deny [the developer's] application for planned development under ... the zoning ordinance. When a zoning body acts on an individual request , it is motivated by legislative concerns --its role is to decide the best course for the community and not necessarily to adjudicate the rights of contending parties. [Citation omitted.] We conclude, therefore, that the individual defendants acted in a legislative capacity. Therefore , the individual defendants are entitled to absolute immunity. Consequently, the individual defendants were entitled to judgment in their favor as a matter of law. Id. at 298. For an expanded discussion of the official/legislative privilege, see Part XIII of Part One of this Paper at 57-61. .a 60. Harlow v. Fitzgerald , 457 U .S . 800, 818 (1982); Mitchell v. Forsyth , 472 U .S. 511 , 526 (1985). The critical issue is not whether a defendant actually infringed upon a plaintiffs rights: "Even defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard." Davis v. Sch er er , 468 U.S. 183, 190 (1984). To aid in that determination, the Supreme Court has reaffirmed that "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful action turns on the 'objective legal reasonableness' of the action ... assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton , 483 U.S. 635 , 639 (1987) (citations omitted). For the relevant legal standards to be "clearly established," the "contours" of the right alleged to have been violated "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 640 . .a 61. "A government official who is sued in his 'individual capacity' is entitled to immunity from suit and liability based on the doctrine of' official immunity' if the official status or action can be classified as quasi-judicial , the official acted in good faith , and the actions were within the scope of the official's authority ." Esparz a v. Diaz , 802 S.W.2d. 772 , 778 (Tex.App .--Houston [14th Dist.] 1990 , no writ) . .a 62. See, e.g. , Esparza , supra note 52, 802 S.W.2d. at 779 ; Austin v. Hale , 711 S .W .2d 64 , 66 (Tex.App .--Waco 1986, no writ). Ministerial duties require onl y obedience to orders, or the performance of a duty in which the employee or officer has no choice of his own. [Citation omitted.] On the other hand, duties which are discretionary involve acts requiring personal deliberation, decision, and judgment on the part of the officer or employee . [C itation omitted.] A state officer or employee who "is required to pass on facts and determine his actions by the facts http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel, L.L.P., Austin I Dallas, Texas Page 77 of 84 found" is performing duties that are "quasi-judicial" in nature and are discretionary. Chapman v. Gonzales , 824 S.W.2d . 685, 687 (Tex.App.--Houston [14th Dist.] 1992, writ denied) (quoting Torres v. Owens , 380 S.W.2d. 30, 33-34 (Tex.Civ.App.--Corpus Christi 1964, writ refd n.r.e.)). See also Esparza , 802 S.W.2d at 779. When a public official gathers facts and then acts, such actions are quasi-judicial in nature. Austin , 711 S .W.2d. at 66 . .a 63. The justification for [granting immunity] is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials , the innocent as well as the guilty, to the burden of trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Baker v. Story , 621 S .W.2 d 639, 644 (Tex.Civ.App.--San Antonio 1981, writ refd n.r.e.) (quoting Gregoire v. Biddle , 177 F.2d 579 , 581 (2d Cir. 1949)). See also Esparza , supra note 52, 802 S.W.2d at 778 (immunity from suit and liability) . .a 64. See , e.g. , Tex. Gov't Code Ann.§ 552.103 . See also Tex. Att'y Gen. ORD-551 (1990); Op. Tex. Att'y Gen. No. JM-1048 (1989) . .a 65. See Yolo County , supra note 14 , 477 U.S. at 348-49; Herrington , supra note 14, 834 F.2d at 569; Landmark Land Co. of Oklahoma v. Buchanan , 874 F.2d 717, 722 (10th Cir. 1989) . .a 66. See Fed. R. Civ. P. 33(c); Tex. R. Civ. P. 166b(2)(a) . .a 67. See Section 1983 Litigation: Forms (Wiley Law Publications 1994), Witt, Hanlon and Ryals (1995 Supplement), Interrogatories to Plaintiff -Land Use Case, Form 3-23 .l and Requests for Admission to Plaintiff -Zoning Litigation, Form 3-37-1. .a 68. See Fed. R. Civ. P. 31 ; Tex. R. Civ. P. 208 . .a 69 . See Fed. R. Civ. P. 34(a); Tex. R. Civ. P. 166b(2)(c) . .a 70. This assumes, of course , that the deposition is being taken in preparation of a witness who will be testifying at trial . .a 71. See, e.g. , Fed. R. Civ. P. 26(b)(4); Tex. R. Civ. P. 166b(2)(e)(l) . .a 72. See , e.g. , Tex . R. Civ. P. 166b(2)(e)(4) . .a 73. See 28 U.S.C . § 144l(b) . .a 74. See Hamilton Bank , supra note 14, 473 U.S. at 194 . .a 75. For an in-depth discussion of the choice of forum issue in land use litigation, see S . Steinglass , Section 1983 Litigation in State Courts , § 6 .6. =-= http://www.bickerstaff.com/articles/primerzone l .htm 1016199 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P., Austin I Dallas, Texas Page 78 of 84 76. See, e.g. , Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). See also Fed. R. Civ. P. 56(e). ~ 77. A district court's denial of an immunity defense is an appealable "final decision" under 28 U.S.C. § 1291 , notwithstanding the absence of a final judgment. Mitchell v. Forsyth , 472 U.S. 511 (1985). ~ 78. For a complete discussion of the substantive differences in federal and state constitutional law in land use cases, see D. Mandelker, Federal Land Use Law , § 1.05[5] (1993). ~ 79. For example, Rule 3.08 of the Texas Rules of Disciplinary Procedure provides as follows: (a) A lawyer shall not accept or continue employment in a contemplated or pending adjudicatory proceeding ifthe lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client, unless: ( 1) the testimony relates to an uncontested issue; (2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) the testimony relates to the nature and value of legal services rendered in the case; ( 4) the lawyer is a party to the action and is appearing prose; or (5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's client, unless the client consents after full disclosure. ( c) Without the client's informed consent, a lawyer may not act as advocate in an adjudicatory proceeding in which another lawyer in the lawyer's firm is prohibited by paragraphs (a) or (b) from serving as advocate. If the lawyer to be called as a witness could not also serve as an advocate under this Rule, that lawyer shall not take an active role before the tribunal in the presentation of the matter. Tx. R. Disciplinary P. 3.08, reprinted in Tex. Gov't Code Ann., tit. 2 , subtit. http://www.bickerstaff.com/articles/primerzone 1.htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P., Austin I Dallas, Texas Page 79 of 84 Gapp. a 80. See Fed. R. Civ. P. 12(b). A 81. See, e.g . , Samaad v. City of Dallas , 940 F.2d 925 , 933 (5th Cir. 1991). A 82. See Developments in the Law-Zoning, 91 Harv. L. Rev. 1427, 1508 (1978); Bi-Metallic Inv. Co. v. State Bd. of Equalization , 293 U.S. 441 (1915); Jackson Court Condominiums, Inc. v. City of New Orleans , 874 F .2d 1070, 1074 (5th Cir. 1989), and cases cited therein. A 83. See Fed. R. Civ. P. 56; Tex. R. Civ. P. 166a. In addition, as with all motions, consult your court's local rules to determine whether the court requires the filing of an accompanying proposed order. The Northern District of Texas requires that each contested motion "be accompanied by a proposed order and by a brief setting forth the movant's contentions of fact and law, unless a brief or proposed order is not required by the Uniform Requirements on Motion Practice. (See Appendix I.)." See Rule 5.l(d) of the Local Rules of the United States District Court for the Northern District of Texas ("Northern District Local Rules"). Appendix I requires that a brief but not a proposed order accompany a motion for summary judgment. See Northern District Local Rules , Appendix I. In contrast to this practice, the Local Court Rules of the United States District Court for the Eastern District of Texas ("Eastern District Local Rules") require that "[w]ith each motion there shall also be filed and served a proposed order for the Judge's signature. The order shall be a separate paper endorsed with the style and number of the cause." See Eastern District Local Rule 4 (e). Motions for summary judgment are no exception, and a proposed order must accompany such a motion. The Eastern District Local Rules also require that any response to a motion, which by definition includes a motion for summary judgment, "shall be accompanied by a proposed order conforming to the requirements of Local Rule 4(e)." See Eastern District Local Rule 6(d). Texas state practice varies from the federal practice and, by example, the Dallas Civil District Court Rules do not require the presentation of an accompanied proposed order with any motion. The prevailing practice in the Dallas civil district courts is to prepare an order for the court's signature following argument before the court on the motion in question. Nevertheless, it is suggested that the better practice is to present such an order on contested motions that do not raise the potential for multiple findings, e.g. , motions for continuance or motions for leave to file an amended pleading . .a 84. Most plaintiffs will challenge the validity of a city's zoning and land use legislation both facially and as applied; however, the plaintiffs burden is extremely onerous. In City Council v. Taxpayers for Vincent , 466 U.S. 789, 796 (1984), the United States Supreme Court established that "[t]here are two quite different way s in which a statute may be invalid on its face --either because it is unconstitutional in every conceivable application, or because it seeks to prohibit such a broad ran ge of protected conduct that it is unconstitutionally overbroad. "In the first situation, "a holding of facial invalidity expresse s the conclusion that the statute could never be applied in a valid manner." Id at 797-98 . "A 'facial challenge' means a claim that the law is 'invalid in toto --and therefore incapable of any valid application."' Hoffman Estates v. Flipside, Hoffman Estates , 455 U.S . 489, 494 n.5 (1982). http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P., Austin I Dallas, Texas Page 80 of 84 Where a decision turns on the meaning of words in a statute or regulation, a legal question is presented for the court to decide. Bingham's Trust v. Commissioner of Internal Revenue , 325 U .S. 365, 371 (1945). Therefore, when the question presented is only a legal one requiring examination of municipal regulations to determine their constitutionality, the issue is appropriate for summary judgment proceedings. International Soc'y for Krishna Consciousness, Inc. v. Rochford , 425 F.Supp. 734, 738 (N.D. Ill. 1977). A 85. See, e.g. , Mayhew v. Town of Sunnyvale , 774 S.W.2d 284 (Tex.App.- Dallas 1989, writ denied), where the trial court dismissed a significant land use case against a city and several of its elected officials at the motion for summary judgment stage. Although the motion for summary judgment ultimately was reversed in part and remanded for trial, the result, besides delaying the landowner's case for almost three years, was the dismissal of the individual city councilmembers based upon the doctrine of absolute legislative immunity and the plaintiffs state statutory claims . A 86. See, e.g. , Northern District of Texas Local Rule 7.1, which provides that a pretrial order must be filed at least 10 days before the scheduled date for trial and which must contain the following: (1) a summary of the claims and defenses of each party; (2) a statement of stipulated facts; (3) a list of the contested issues of fact; ( 4) a list of contested issues of law; (5) an estimate of the length of trial; (6) a list of additional matters which would aid in the disposition of the case; (7) the signature of each attorney; and (8) a place for the date and signature of the Court. In the Eastern District of Texas , pretrial orders are only required to be filed if the litigation is assigned to any specific three of the six possible track assignments. The pretrial orders are standardized and the form is found as Appendix A to the Eastern District of Texas Civil Justice Expense and Delay Reduction Plan Pursuant to the Civil Justice Reform Act of 1990 ("Eastern District Plan"). While the two districts are similar in most respects in their requirements for the pretrial order, the Eastern District also requires that each party submit with the order a list of witnesses separated by category as to fact witnesses and expert witnesses, and a list of numbered exhibits, which includes a designation of deposition excerpts anticipated to be read at trial. See Eastern District Plan , Appendix A . .i:. 87. In the Northern District of Texas, the filing of trial briefs is discretionary http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Ke ver and McDaniel , L.L.P., Austin I Dallas, Texas Page 81 of 84 with each party. S ee Northern Di stric t Local Rule 8.4. ~ 88 . See Fed. R. Civ. P. 16 ; Tex . R . Civ. P . 166. ~ 89. Northern Di strict Local Rule 8.2 (d) provides as follows: Conduct of Voir Dire Ex amin ation and Peremptory Challenges ; Submission to Jury. The cond uct of jury selection, the exercise of peremptory challenges , and the form of the jury instructions shall remain in the discretion of the Presiding Judge . ~ 90 . James W. McElhaney's Trial No tebook advises that the process ofvoir dire accomplishes one of three thin gs, or perhaps a little of each: The trial attorney selects a jury, studies a jury or commits ajury to the client's cause . Se e J. McElhaney, Trial Not ebook (2d ed . 1987), ch. 8, "Voir Dire," at 73-87. ~ 91. See Tex. R . Civ. P. 265(a). ~ 92. Tex. R. Civ. Evid. 612 (2 ). S ee also City of Denison v. Gresham , 716 S .W.2d 121 (Tex .App.--Dallas 1986 , no writ) (trial court must permit opposing counsel to view a document relied upon by a testifying deponent to refresh his memory) . .£. 93. In today's age of computer and word processing technology , if you earlier prepared questions for your opening w itnesses' deposition testimony, you can extract and duplicate those important questions for cross-examination with the push of a button. ~ 94. For a discussion of preparing fo r and delivering the direct examination, see K. Nolan, "Direct Examination -For Re al," Litigation , Vol. 19 , No. 3, at 48-50 (Spring 1993 ). ~ 95. Tex. R. Civ. P . 166b(2)(e)(4) . .£. 96 . Tex . R. Civ. P. 200 (2)(a). ~ 97. See Tex . R. Civ. P . 268. ~ 98 . Fed. R. Civ . P . 50(a). ~ 99. Qantel Business Sy stems v. Cu s tom Controls Co. , 761 S.W.2d 302, 304 (Tex. 1988). ~ 100. See Tex. R. Civ . P . 301 , whi ch provides in pertinent part as follows: The j udgment of the court sh a ll conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all t he .relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the court m ay render judgment non obstante veredicto if a directed verdict w ould have been proper, and provided further that the court may, upon like motion and notice , http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P ., Austin I Dallas, Texas Page 82 of 84 disregard any jury finding on a question that has no support in the evidence. E:. 101. Cox, "The Advocate, His Training , Practice, Rights, and Duties." E:. 102. F. Wellman, Art of Cross-Examination (1983 ed.), at 22-23 . .a 103. Id. at 400-03 (emphasis in original). i;,, 104. Id. at 403-04. E:. 105. McElhaney, supra note 90 , ch. 24, "An Introduction to Cross- Examination," at 257. E:. 106. Id. at 257-58. i=.107. McElhaney, supra note 90, ch. 25, "The Story Line in Cross- Examination," at 263-79 . ..to. 108. See Fed. R. Evid. 403. E:. 109. See Viterbo v. Dow Chemical Co. , 646 F.Supp. 1420 (E.D. Tex. 1986), affd , 826 F .2 d 420 (5th Cir. 1987). E:. 110. Id. at 1425-26 . .a 111. See Fed. R. Civ. P. 50 . ..to. 112. See Tex. R. Civ. P. 266, 269 . .a 113. See McElhaney, supra note 90, ch. 44 , "The Law of Final Argument." .a 114. See "Testimony as Demonstrative Evidence," 3 Litigation , No. 4., at 19 (Summer 1977). A 115. For a discussion of the circuits' various standards ofreview, see part II(A)(2)( d) of the article, supra . ~ 116. Where a constitutional question is involved, the appellate court is obliged to "apply the applicable rules of law upon the basis of an independent review of the facts of each case." Ja cobellis v. State of Ohio , 378 U.S. 184, 189 (1964). See also Connickv. Myers , 461U.S.138, 150 n.10 (1983) (the court must make "an independent constitutional judgment on the facts"); Norr is v. State of Alabama , 294 U.S. 587 , 590 (1935) ("[W]henever a conclusion of law of a state court as to a federal ri ght and findings of fact are so intermingled that the latter control the former , it is incumbent upon us to analyze the facts in order that the appropriate enforcement of the federal right may be assured"). See Bateson v. Geisse , 857 F.2d 1300, 1303 (9th Cir. 1988)(appellate court review is de novo of determinations by the trial court of questions of law and mixed questions of law and fact which implicate constitutional rights.) Cf Adcockv. King , 520 S.W.2d 418 , 423 (Tex.Civ .App.--Texarkana 1975 , no writ) (appellate court considered facts in the record to determine whether the http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 ,. -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P ., Austin I Dallas, Texas Page 83 of 84 ordinance applied by the city resulted in confiscation without compensation or otherwise violated plaintiffs' constitutional rights). E:. 117. For example , in Texas the law is clear that the power of a municipality to contract resides solel y in the municipality's governing body and an officer or employee of a municipality is not legall y authorized to contract on behalf of the municipality without express prior authorization from the governing body, acting in its official capacity, or subsequent ratification of the contract by the governing body, acting in its official capacity. Brazos River Auth. v. City of Graham , 354 S.W.2d 99 , 110 (Tex. 1962); City of Corpus Christi v. Bay.front Assocs. , 814 S.W.2d 98 , 105 (Tex .App .--Corpus Christi 1991, writ denied); Alamo Carriage Service, Inc . v. City of San Antonio , 768 S .W.2d 937, 941- 42 (Tex.App .--San Antonio 1989 , no writ); Cleontes v. City of Laredo , 777 S .W.2d 187, 189 (Tex.App.--San Antonio 1989); City of Coppell v. General Homes Corp. , 763 S.W.2d 448 , 456-57 (Tex.App.--Dallas 1988 , writ denied); City of Gree nville v. Emers on , 740 S.W.2d 10, 13 (Tex.Civ.App.-- Dallas 1987 , no writ); Cook v. City of Addison , 656 S.W.2d 650, 657 (Tex.Civ.App.--Dallas 1983 , writ refd n .r.e.); City of Farmers Branch v. Hawnco, Inc. , 435 S.W.2d 288, 292 (Tex.Civ.App.--Dallas 1968 , writ refd n.r.e.); First Nat'! Bank of Marlin v. Dupuy , 133 S.W.2d 238, 240 (Tex.Civ.App.--Waco 1939 , writ dis'mjudgm cor.) E:. 118. See, e.g. , B ernard v. City of B edford , 593 S . W.2d 809 (Tex.Civ.App .--Fort Worth 1980, writ refd n .r.e .). E:. 119. See, e.g. , Ci ty of Pharr v. Tippitt , 616 S.W.2d 173 (Tex. 1981). E:. 120. See part IV (B)(l) ofthis article , s upra . E:. 121. See , e.g. , T ex. Rev. Civ. Stat. Ann. art. 6252-17, § 2(a). Disclaimer This article is intended to be general inform ation only and is not provided in the course of an attorney-client relat ions hip; nor does it constitute legal advice. This article may not be applicable to your partic ular legal situation. You should consult with a lawyer regarding your specific legal situation. firm overview I practice areas I members I recru iting I publications I locations news I search I disclaimer I resources I sitemap I home http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 -Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel , L.L.P., Austin I Dallas, Texas Page 84 of 84 4 January 1999 Questions or Com ments? Contact Us . © 1999 Bickerstaff. Heath . Smiley . Pollan . Ke ver & McDaniel. LLP 1700 Frost Bank Plaza . 8 16 Congress Avenue , Austin , Texas 78701-2443 USA 3000 Bank One Center. 1717 Main Street. Dallas. TX 75201-4335 USA Problems with the site? Contact webmaster@bickerstaff.com http://www.bickerstaff.com/articles/primerzone l .htm 10/6/99 City of College Station City Counci 1 In re: Unresolved implementation of accepted Historic Preservation Area Resolutions Box 9960 College Station, TX 77840 October 28, 1999 The College Station City Counci 1 has designated an area of the City of C.ol lege Station as a Historic Area. It is marked by unique signs. This area is: A VERY well known and demarked designated place and area of historical, cultural, or architectural importance and significance. Because there is now such a designated AREA of historical, cul tura.l, or architectural importance and significance, for regulatory purposes, it comes under a provision of the Texas Local C'"°vernment C.ode: TITLE 7. REGULATION OF LAND USE, STRUCTURES, BUSINESSES, AND RELATED ACTIVITIES SUBTITLE A. MUNICIPAL REC'.JJLATORY AlmIORITY CHAPTER 211. MUNICIPAL ZONING AlmIORITY SUBCHAPTER A. GENERAL ZONING REC'-.l!LATIONS Under this portion of the State LGC, 211.003 (a), the city may regulate the construction, reconstruction, alteration, or razing of buildings and other structures. It is so important that special consideration be given Historic Areas that in the law, a second major heading, (b), equal in importance in the entire Zoning Regulations <3enerally, is given to Historic places: Sec . 211.003. Zoning Regulations Generally. (a) The governing body of a municipality may regulate: (1) the height, number of stories, and size of buildings and other structures; (2) the percentage of a lot that may be occupied; (3) the size of yards, courts, and other open spaces; (4) population density; and (5) the location and use of buildings, other structures, and land for business, industrial, residential, or other purposes. 1 (b) In the case of designated places and areas of historical , cult ural, or archi tectura.l importance and significance, the governing body of a. municipality may regulate the construction , r econstruction, alteration, or razing of buildings and other structures. Of citizen/city pa.st efforts a.t bringing about reasonable regulation of construction, reconstruction, alteration, or razing of buildings and other stru ctures in this now designated Historic Area. it is noted: 1.) Li tera.l ly hundreds of people in this city have pa.rt icipated in the formulation of the Neighborhood Preservation Committee's final report. 2.) Literally thousands of hours of time have been devoted to this issues and guidelines to be used in making decisions in this neighborhood area . 3.) The City of College Stat ion and the people of C'.ol lege Stat ion have invested thousands of dollars developing the guidelines and principals which are to be used to in handling planning and zoning issues in this area.. The work doveta.i ls and is amplified with the accepted HOK report, a. professional study for which tens of thousands of dollars of the residents' funds wer e pa id , a report which is to provide guidelines for the entire city development for many years to come. The most specific focus of all this work on policy and direction given to this , t he fir st Historic Area. in the City of College Station, was in formal City Cou ncil action taken July 23, 1998. In that action City Sta.ff urged the City Council to adopt all but item number six (6) of the Neighborhood Preserva.t ion C'.ommi t tee's f ina.l report. The actual vote by the City C'.ounci 1 to do this, as a. formal acceptance of the key Resolutions that were in the formal report, was unanimous, with a. modified view of parking needs. Item six (6) was a. problem because the City Legal Staff could not ea.si ly come to a. re c ommendation of how to best implement it, given current law on the issues this Resolution touched. More work had to be done for Council to act on it. City Staff itself suggested, in the briefing for the City C'.ouncil meeting of that July 23, 1998 , that it needed 90-120 days to draw up implementation of the necessary ordinances, if C'.ouncil directed Staff to do so. That there was a agreement and understanding on this by the members of the City Cou nci 1 , was fully acknowledged at that meeting. There was discussion on how to i mplement it a.11. Over that, the tape recording of the City Counci 1 me eti ng of July 23, 1998, has the voice of Mayor McLihaney noting, just before the vote was taken on adopting the Re so lutions, "I think most of this will come back to the C'.ounci 1 when they work out the implementation plan, it's just accepting the recommendations." 2 There is a question as to the actual action taken and the transcription of the meeting which led to a written version of the, "minutes" of the meeting. That issue is over whether Item Four (4), was really passed or not . Those people whom have invested so heavily over decades, of their time, efforts to build this City, in a constructive and careful manner and have spent major family assets helping the people of C.ollege Station, all left the meeting with the understanding that City Council had taken the action necessary to prevent major flare ups and destruction of the Historic Area. That included one of the most critical of the issues, Item Four (4) -what has ioore recently become termed the practice of "Infill." The City has all the beginning items in focus for protection of this Historic Area; it's already acted as needed. This is the beginning of what should be an Ar ea Preservation approach to what is needed. The Southside Historic Area should simply be the beginning of a more formal codified approach to this. To best take care of current pressing problems in this Historic Area, the simplest form of control which can be effected, is to require public notice and P&Z Hearing, where the key issues such as upcoding, infill, adequate parking, fu 11 structure-to-structure building sepa.rat ion, instead of foundation-to-foundation building separation, and the like, might be at issue for permit issuance in this area. For safety and preservation purposes, what is practical and acceptable in all the City of C.ollege Station, cannot work successfully in these Historic Areas. If it could they wouldn't be designated as such, the protection and public notice wouldn't be necessary. This is not a question of just "convenience" for a few. It is a matter that in this designated Historic Area, the current building, street size profile, and land use that is currently there, cannot support the increase in residents, street vehicle load, or building crush in a safe manner. As well, the entire Historic Preservation of crucial of neighborhoods will be lost. The only thing that is left to do to start this process, so needed in this city, is to IMPLEMENT what has already been done. Please RATIFY what has already been passed. Please IMPLEMENT the resolutions in the Historic Preservation Committee's report, including item four (4). Begin working on a working approach to item six (6) now, by asking City Staff to tell you how it CAN be done, not just tell you how it CAN'T be done. The majority of other university oriented cities have had to do this and have done it. C'.ollege Stat ion wi 11 continue to suffer from flare ups over this until the implementation requested a year ago, has been done as instructed. Mike Luther, Chairman The Neighborhood Preservation Committee. 3 November 3 , 1999 Mr. Steve Esmond K W Brown & Associates, Inc. 501 Graham Road College Station , Texas 77845 RECEIVED LEGAL DEPARTMENT NOV 0 3 1999 CITYOF COLLEGE STATION RE: Your Letter Dated October 25, 1999 Concerning Nagle Subdivision Plat Dear Steve, Reference is made to the above mentioned letter. I have considered the issues you have raised in that letter and have found that there simply is no legal basis to put this plat on the Planning and Zoning Commission's agenda. At this point, the only appeal is to the District Court to challenge the legality of the plat. Regarding deed restrictions, the City of College Station can not enforce or respect deed restrictions as you request in your letter due to requirements we must meet under State law as a zoned city. I do hope that Mrs. Miller and Mr. Nagle are able to resolve their dispute. I will also send a copy of this Jetter to Planning and Zoning Commission Chairman Wayne Rife so he is aware of our correspondence on this matter. Sincerely yours, Thomas E. Brymer City Manager cc: ~rvey Cargill Jr., City Attorney ti.L .-9'-~ Wayne Rife, Chairman, P&Z Commission Jim Callaway, Director of Development Services Norma Miller Mike Luther o:adminlcorrespondenceltomlsenagle.doc P.O. Box 9960 1101 Texas Avenue College Station, TX 77842 Tel: 409 764-351 0 '; 11 /i!:~"'' ,., 1, .. MT .. l I~ I , ,~, r . r:· ':1 ' ... /! ICWBrovvn Steven E. Esmond, P.E., R.P.LS. Senior Engineer sesmond@kwbes.com October 25, 1999 Mr. Tom Brymer City Manager P.O. Box 9960 College Station, TX 77842 Re: Replat of Lots 10, 11, & 12, College Park Subdivision Dear Mr. Brymer: KW Brown & Associates, Inc. 501 Graham Road College Station, Texas 77845 409•690-9280 • 888•875•0063 Fax: 409•690•7310 www.kwbes.com On September 25, I was retained by Ms. Norma Miller in my capacity as a land surveyor to assess the technical issues regarding the plat and zoning issues in the above matter. We requested and were granted a meeting of the Zoning Board of Adjustment on Tuesday, October 5. During the meeting Staff advised ZBA that some of the issues raised by Mrs. Miller were not within the purview of ZBA, but did fit within the purview of the Planning & Zoning Commission. In follow- up to staff direction, Mrs. Miller requested a special or emergency meeting of the P&Z. A copy of the request is enclosed. Of the six (6) specific issues referred to in the request for meeting, the first two are now being undertaken in a civil lawsuit. Mrs. Miller never expected and never asked the City to enforce the deed restrictions. (Enforcement by definition occurs after the fact.) She did expect the Staff to honor the deed restrictions as is their practice in newer subdivisions. Many of the Southside residents have told us -how surprised they were that the City of College Station totally disregarded the deed restrictions. That doesn't even happen in Bryan. I hand delivered the enclosed letter to the office of P&Z Chairman Wayne Rife on October 8. I telephoned him on October 13 and 14, both times leaving messages. He finally called me about 11 :45am on October 18. He told me that he had put a lot of thought into the matter and had spoken to Jane, Harvey, and David Alexander, and couldn't decide whether or not to call a P&Z meeting. H e told me he would get back to me --which he never did , nor did he respond to my lette r. Mike Luther also requested a meeting of the P&Z (draft copy enclosed). His letter was hand delivered to Mr. Rife's office on October 18 . He had also visited Mr. Rife's office previously on October 11. Yet Mr. Luther was never able to speak with Mr. Rife, nor has he received any kind of acknowledgment or response from him or any other representative of the City. Acting on Mrs. Miller's behalf, Mr. Benito Flores-Meath paid a visit to Jane Kee on October 5 to pick up a form to get on the next P&Z meeting agenda. He was told that no such form existed, nor was there any set procedure on how to handle such an appeal. (Is this really the case because if that's so I'm very Scientists • Engineers • Planners Burbank • College Station • Houston • Victoria • Phoenix • Logan • Mexi co City Tom Brymer, City Manager Re: College Park Subdivision Page2 October 25, 1999 surprised.) Under the circumstances, Mrs. Miller feels that she has been aggrieved by the City's approval of this re p lat. Both the City's Zoning Ordinance and LGC 212.01 lS(i) give her proper l egal standing to ap peal the City's approval of the plat. This section of the LGC states that it applies to land both within the City limits as well as within the ETJ. Mrs. Miller contends that Staff did not have proper legal authority to approve the plat, as it was not an amendin g plat due to the removal of C.Q venants. Consequently, a public hearing before P&Z should have occurred . ... It is also quite clear that Staff failed to comply with Paragraph 6-D .5.3 of the Subdivision Regulations within the specified time period. This report is several months late and as of last Thursday's P&Z meeting, the Commission has not yet heard those reports. This same ordinance requires the City Manager to present the report to City Council. How unfortunate and that this particular plat coincidentally "fell through the cracks" in both the Manager's Office and in Planning . Had Staff simply complied with this provision, Mrs. Miller would have found out about this project jo ampl e time to file an appeal within 3 0 days or less following Staff approval of the rep lat. There is undoubtedly an appeal process for that which she intends to pursue, and the failure of staff to follow the proper legal procedure was a contributory element. Mrs. Miller wishes to ask P&Z to correct the technical deficiencies in the plat, and allow for a public hearing on the revised plat. This hearing should have been held under our own Subdivision Regulations and in compliance with State Law. Even if the new and revised rep lat is ultimately approved, the citizens will have "had their day in court" and the law will have been fulfilled. In spite of this issue appearing on the front page of the Eagle three different times last week and in spite of the constant stream of City vehicles passing by the property, the City is behaving like a disinterested third party even though this situation wouldn't exist apart from the City's failed approval process. Mrs. Miller is asking you, as City Manager, to respond to her request to be heard before the P&Z. I believe her request is reasonable, given her standing and the factual circumstances . During my term on the City Council, my written requests were always answered promptly, and as far as I knew, letters from citizens in the community were treated with the same respect as requests from Council Members. I hope the standards have not fallen so quickly . Please call me if you have any questions. Very truly yours, KW BROWN & ASSOCIATES, INC. ~~s Form er College Station City Councilmember, Place I Form er College Station Planning & Zoning Commissioner Encl. c: Norma Miller Mike Luther ~V~fCWBrolNn Steven E. Esmond, P.E., R.P.LS. Senior Engi n eer sesrnond@kwbes.com October 8, 1999 Wayne Rife West, Webb, Allbritton & Gentry 1515 Emerald Plaza College Station , TX 77845-1515 Re: Planning & Zoning Commission Replat of Lots 10, 11, & 12, College Park Subdivision Dear Mr. Rife: KW Brown & Associates, Inc. 50 l Graham Road College Station, Texas 77845 409•69~9280 • 888•875•0063 Fax:409•690•73JO www.kwbes.com I have been retained by Ms. Norma Miller, in my capacity as a land surveyor, to assess the technical issues with regard to the plat and zoning issues in the above matter. The ZBA granted her a Special Meeting on Tuesday, October 5, and during the meeting agreed to consider the merits of her appeal at a second Special Meeting, set for October 20, 1999. We urged the ZBA to go ahead and call an Emergency Meeting in order to deal with the issues speedily in light of construction activity currently und erway . We also requested that the City authorize the Building Official to suspend further construction work until the issues in this matter have been resolved. City staff advised ZBA members that they did not have that authority, thus no action was taken on that request. Staff also advised ZBA that some of the issues were not within their purview and perhaps should be referred to the Planning & Zoning Commission (P&Z). In follow-up to staff direction, Mrs . Miller is requesting a special or emergency meeting of the P&Z. I would recommend you check with the College Station Legal Department and the Attorney General's office to determine if you can invoke an emergency meeting. The two reasons would be: 1) Public Necessity -the eminent construction of the buildings (and destruction the neighborhood). If this seems far fetched, know that the City invoked the emergency meeting when they announced the resignation of Skip Noe and the hiring of Tom Brymer to replace him. Surely, since they were to retain Noe as an adv isor for six months, could they not have used the 72 hour notice for a special meeting? Since that meeting was deemed ~cceptab le as an emergency meeting, I think we can agree that Norma Miller's plight (and the nei ghbor's , too) qualify . 2) Health and Safety -during last Tuesday night's ZBA meeting, Norma sat through the meeting , clutching her nitroglycerin pills. Why? Because the stress of this construction goi ng on from now until Oct 20th cou ld have started another. Nobody wants to think that this construction could kill her -but it could. 1 became obvious that the ZBA was keen and qui te interested in doing the right thing. I feel th at they were open to any lega l aven ue to proceed, and cou ld have invoked the Scientists • Engineers • Planners Burba nk • Co ll eg e Sta ti on • Houston • Victoria • Phoenix • Log a n • Mex ico City Wayne Rife, Chmn. P&Z Commission Re : College Park Subdivision Page 2 October 8, 1999 emergency meeting (with its more lenient notification requirements), had the city Staff been forthcoming and not confused the issue. Wayne, feel free to ask the Legal Department, but I think the mechanism is the Chairman of a government body calls the Emergency Meeting. You could confirm with Legal how Council does it, and then ask how your Commission would do it. I suggest that you then check-out their answers with the AG's office. I have enclosed some guidelines from the Texas Local Government Code, along with some additional information for your consideration . What are we asking for? Did you know that the P&Z commission can hear an appeal against the plats? The same State Law that permits the delegation of approval of plats to staff, in that very same paragraph, states: . Sec. 212.0115 (i) 'The governing body of a municipality may delegate, in writing, the ability to perform any of the responsibilities under this section to one or more persons. A binding decision of the person or persons under tit is subsection is appealable to the municipal authority responsible for approving plats. " More specifically, some of the problems leading to this appeal to the P&Z arise from the following deficiencies in the staff-approved amending plat: 1. Lot widths of 50 feet on the plat violate the deed restrictions, which specify a minimum lot width of 75 feet, as contained in Vol 111, P 197, Deed Records of Brazos County, Texas. 2. Side setback lines on the plat violate the deed restrictions, which specify a minimum setback of 20 feet, as contained in Vol 124, page 522, Deed Records of Brazos County, Texas. 3. The subject plat, titled, "Amending Plat," fails to qualify as an amending plat under the definition proscribed by State Law, Sec 212.016 of the Local Government Code. 4. The subject plat contains encroachments on Lot 12R including the eave of an existing roof, and an air conditioner, for which there is no easement either of plat or of record --which fails to comply with current surveying standards and is a violation of Section 8. 7 of the City of College Station's zoning ordinance. 5. The subject plat violates Section 8-H.4 of the City of College Station's Subdivision Regulations by closing off an alley, and in addition failing to comply with the City's own Ordinance No. 357 in regard to utility access . 6. Proposed driveways shown on the existing application for building permit for Lots 1 OR and 12R indicate encroachments onto adjacent properties for which there is no easement either of plat or of record. We further contend that Staff did not have proper legal authority to approve the plat. Consequently, a public hearing should have, but did not, occur. I would urge the P&Z to think seriously about estoppel. The City has the power to overturn a building permit even after it has been approved and construction is under way . P&Z has the power to overturn! Please check with the Legal Department and read section XII of the Bickerstaff Primer on Zoning. It even mentions a case where another City approved a permit for construction and 80% into the job, the permit was pulled and that was upheld in Court . ~/jJCWB Wayne Rife, Chairman Request for Emergency P&Z Meeting Pa g e 3 October 8, 1999 Basically what we are asking P&Z for is to correct the technical deficiencies in the plat, and allow for a public hearing on the revised plat -which should have been held anyway under our own Subdivision Regulations and in compliance with State Law . Then, even if the new and revised replat were to be ultimately approved, at least the citizens would have "had their day in court," to which our laws and ordinances entitle them. Finally, what more do you want or need from me before calling either a Special Meeting or an Emergency Meeting? Please call me if you have any questions. I loo k forward to receiving notification from you of the upcoming P&Z meeting. Thank you very much. Very truly yours, Steven E. smond, P.E., R .P.L.S. Office Manager Enc. c : Planning and Zoning Commissioners Norma Miller Subdivision Regulations (rev Jan 1999) 6-D.5 .3. Within twenty (20) days after an amending or minor plat is formally filed, the City Engineer, or his designee, and the City Planner, or his designee, shall approve such plat or notify the applicant that consideration of the plat will be forwarded to the Commission. The Commission shall approve, disapprove or conditionally approve the plat within thirty (30) days of the City Engineer's decision and notification to the applicant. A report shall be made to the Commission at each meeting notifying the Commission of any new minor or amending plats that were approved by the City Engineer since the last Commission meeting. The same report shall be forwarded to the Council through the Office of the City Manager. Connie Hooks City Secretary City of College Station P .O . Box 9960 College Station , Texas 77842 BENITO FLORES-MEATH 901 VAL VERDE COLLEGE STATION, TEXAS 77845 ( 409) 696-8295 Open Records Request for pl at report Connie : In the Subdivision Re g ulation s (rev Jan 1999), item 6-D .5.3 state s: October 6'h, 199 9 Within twenty (20) days after an am ending or minor plat is formally filed, th e City Engin eer, or his designee, and th e City Planner, or his designe e, shall approve such plat or notify th e applicant that consideration of th e plat will be forwarded to th e Commission. The Commission shall approve, disapprov e or conditionally approve th e plat within thirty (30) days of th e City Engin eer's decision and notification to th e applicant. A report shall be made to the Commis sion at each meeting notifying th e Co mmission of any new minor or am ending plats that were approved by th e City Engin ee r sin ce th e last Commission mee ting. The same report shall be forwarded to th e Council throug h th e Office of th e City Mana ger. This request is made under the Texas Open Records Act, Tex . Gov't Code Section 552, which guarantees th e public's right of access to information in the cu stody of governmental agencies . In accordance with section 552 .221 of the law, which requires that the officer for public records "shall promptly produce such information for inspection, duplication , or both, in the offices of the governmental body," I respectfully request to review of the following information: I am requesting to review the report s pre sented to the Planning and Zoning Commission and to the City Council , concerning the plat approved for 600 Welsh (behind Norma Mill er's home), including, but not limited to , a ny accompanying memos, letters , notes, agendas , minutes, etc . p e rtaining to these reports . Pl e ase communicate with me by telephone as to when would be a convenient time to review it. My telephon e number is 696-8295 after office hours . I shall look forward to hearing from you promptly, as required by the Act. Th a nk you for your cooperation . Very trul y yours, Benito Fl o res -Meath CC: Mayor, Ci ty Council , City Manage r, P&Z Commissio n , ZBA , Ci ty Pl ann er, City En g ineer (Conni e -can you forward the se , please? CC : Steve Es mond, Norma Miller -----Original Message ----- From: Benito Flores-Meath <bflores@elitesoft.com> To: Tom Brymer <tbrymer@ci.college-station.tx.us> Cc: Norma Miller <normil@tca.net>; Steve Esmond <sesmond @ kwbes .com> Sent: Wednesday, October 06, 1999 12:59 PM Subject: Minor, amending plat reports to Commission and Council Below is the final copy of a letter I submitted to the City, requesting the reports that were brought up last night. Connie will get you a copy, as I CC'd it to you and the rest. These reports I requested are, by City Ordinance (and I believe state law too) to be presented to P&Z at the following meeting after a minor or amending plat is approved by City Staff. The Office of the City Manager is to also present these to the City Council. I've checked the minutes and agendas for all the P&Z meetings since June (before the plat), and did not find any such reports mentioned. Last night I checked with Judy Warren, a P&Z Commissioner, asking if when she had first heard of the development behind Norma's, and was told the first information was an email from me! Today I'm told that they are accumulating the reports to do a quarterly report, and that they are three weeks behind. Amber relayed this to me, as she had never heard of such reports , and had to ask about them. Presumably Jane was the one who described the quarterly report, as most of the rest of the staff is gone until Monday , and she was the only one in authority that I knew was there . So I go to ask for reports that by city ordinance should be filed with the Commission and I get the impression that the City Planner (Jane)just isn't following the law. The Office of the City Manager is also required to file these with the Council -but if you aren't provided with the reports , how are you to fulfill your legal obligations to the Council? I also asked Jane for the forms to appeal the plat in question and Jane didn't know anything about the permits, forms, code, whatever to file an appeal under Sec. 212.01 lS(i) of the TLGC. I don't believe she is that ignorant, especially since Steve brought it up last night, and handed a copy of the regs to the ZBA. After last night's performance, and after the 303 Boyett mess (where the city didn't follow it's own zoning ordinance), and now these nonexistent reports, when is enough? [open records request enclosed here] Note: this text was manually typedfrom the original letter faxed from Legal to Benito. I can forward this fax or a photocopy of it, for you to verify the accuracy. -----Original Message----- From: Benito Flores-Meath [SMTP:bflores@elitesoft .com] Sent: Wednesday, October 06, 1999 3:06 PM To: Norma Miller; Steve Esmond Subject: Response to ORR ( I can fax it if you wish ) Dear Mr. Flores-Meath: The City of College Station is in receipt of your Open Records Request dated October 6, 1999. At this time there are no documents responsive to your request. By way of further explanation, and in response to the Subdivision regulation text referred to in your request, the City Planner provides a report to the Planning and Zoning Commission on a quarterly basis, per their request. The latest report was prepared in July and does not reference the material sought in your request. If you have any questions, please contact me at the above number. Sincerely , [signed] Meridith Ladd Assistant City Attorney Sec. 212.0065. Delegation of Approval Responsibility. (a) The governing body of a municipality may delegate to one or more persons of the municipality or of a utility owned or operated by the municipality the ability to approve: (1) amending plats described by Section 212.016; or (2) minor plats involving four or fewer lots fronting on an existing street and not requiring the creation of any new street or the extension of municipal facilities . (b) The designated person or persons may, for any reason, elect to present the plat for approval to the municipal authority responsible for approving plats . (c) The person or persons shall not disapprove the plat and shall be required to refer any plat which the person or persons refuse to approve to the municipal authority responsible for approving plats within the time period specified in Section 212.009 -', Added by Acts 1989, 71st Leg., ch. 345, Sec. 1, ejf. Aug. 28 1989. Amended by Acts 1995, 74 th Leg., ch. 92, Sec. 1, eff. A ug. 28, 1995; Acts 1997, 75th Leg., ch. 566, Sec. I, ejf. June 2, 1997. Source : http ://capitol.tlc .s tate.tx .us/statutes /codes /LG000084 .html Sec. 212.0115. Certification Regarding Compliance With Plat Requirements. (a) For the purpos e s o f thi s section , land is considered to be within the jurisdiction of a municipality if the land is located within the limits or in the extraterritorial jurisdiction of the mun ic ipality . (b) On the approval of a plat by the municipal authority responsible for approving plats , the authority shall issue to the person applying for the approval a certificate stating that the plat has been reviewed and approved by the authority . ( c) On the written re que st of an owner of land , an entity that provides utility service , or th e governin g body of the municipa lity, the municipal authority res ponsible for approving plats shall make the following determinations regarding the owner's land or the land in which th e entity or governing bod y is interested that is located within the jurisdiction of the municipality : (1) w hether a plat is required under this subchapter for the land ; and (2) if a plat is required, whether it has been prepared and whether it has been revi e wed and approved by the authority. (d) The request made under Subsection (c) must identify the land that is the subject of the request. (e) If the municipal a uthority responsible for approving plats determines under Subsection (c) that a plat is not required , the authority shall issue to the requesting party a written certification of that determination. If the authority determines that a plat is required and that the plat has been prepared and has been reviewed and approved by the authority, the authority shall issue to the requesting party a written certification of that determination. (f) The municipal authority responsible for approving plats shall make its determination within 20 day s after the date it receives the request under Subsection ( c) and shall issue the certificate , if a ppropriate, within 10 days after the date the determination is made. (g) If both the municipal planning commission and the governing body of the municipality have authority to approve plats , only one of those entities need make the determinations and issue the certificates required by this section. (h) The municipal authority responsible for approving plats may adopt rules it considers necessary to administer its functions under this section. (i) The governing body of a municipality may delegate , in writing, the ability to perform any of the responsibiliti es und er this section to one or more persons. A binding decision of the person or persons under this subsection is appealable to the municipal authority responsible for approving plats. Added by Acts 198 9, 7 I s t Leg., c h. I , Sec . 46(b), eff. Aug. 28, 1989. Amende d by A cts 1989, 7 Isl Leg., ch. 624, Sec. 3.03, eff. Sept. I , 1989; A cts 1997, 75th Leg., ch. 567, Sec. I, eff. J une 2, 199 7. S ource: htt p ://cap it o I. t lc.state.tx .u s/statu tes/co des/LG000084 .htm I Some Notes on Emergency Meetings: I would recommend you check with the legal department AND the Attorney General's office to determine if you can invoke an emergency meeting. The two reasons would be: 1) Public Necessity -the eminent construction of the buildings (and destruction the neighborhood). If this seems far fetched, know that the City invoked the emergency meeting when they announced the resignation of Skip Noe and the hiring of Tom Brymer to replace him. Surely, since they were to retain Noe as an advisor for six months, could they not have used the 72 hour notice for a special meetin g? Please ask for a copy of the minutes of the meeting so you can evaluate the justification yourself. Since this meeting was deemed acceptable as an emergency meeting, I feel that Norma's plight (and the neighbor's , too) qualify. 2) Health and Safety -during last night's, t~forma sat through the meeting, clutching her nitroglycerin pills. Why? Because the stress of this construction going on from now until Oct 20th could have started another. I didn't know that she was ready with the pills until she mentioned them after the meeting. If I had, I would have asked Steve to mention another valid reason for having you proceed . Nobody wants to think that this construction could kill her -but it could. 3) Unforeseeable Situation -when the Commission was not properly notified about the plat, as per city ordinance, a situation arose to where we are now -construction is ongoing. I seems obvious that the Commission is keen and quite interested in doing right for Norma. I feel that you are open to any *legal* avenue to proceed, and can invoke the emergency meeting (with its more lenient notification requirements). Ask legal, but I think the mechanism is the chairman of a government body calls the meeting. To be discrete, just ask how Council does it, and then ask how the Commission would do it. Then check their statements with the AG's office. They have been quite happy to help me before . If you have questions , visit the Attorney General's website at: http://www.oag.state.tx.us/ It is set up to educate the public about their rights. You can also call them at: John Comyn, Atty Genl john.comyn@oag.state.tx .us (800) 252-8011 -Public Information and Assistance (also 512-475-2994) (512) 478-0PEN -Open Records Hotline (512) 463-2100 (512) 463-2063 FAX **************************************************** Text of the Texas Open Meetings Act 551.045. Exception to General Rule: Notice of Emergency Meeting or Emergency Addition to Agenda (a) In an emergency or when there is an urgent public necessity, the notice of a meeting or the supplemental notice of a subject added as an item to the agenda for a meeting for which notice has been posted in accordance with this subchapter is sufficient if it is posted for at least two hours before the meeting is convened. (b) An emergency or an urgent public necessity exists only if immediate action is required of a governmental body because of: (1) an imminent threat to public health and safety; or (2) a reasonably unforeseeable situation. (c) the governmental body shall clearly identify the emergency or urgent public necessity in the notice or supplemental notice under this section . ( d) A person who is designated or authorized to post notice of a meeting by a governmental body under this subchapter shall post the notice taking at face value the governmental body's stated reason for the emergency or urgent public necessity. Source: http ://www .oag.state.tx .us/ AG Publications/openmeetaa.htm **************************************************** "The Texas Open Meetings Laws Made Easy" Frequently Asked Open Meetings Questions/ Answers Source: http://www.oag .state.tx.us/opinopen/om easy.htm II. Notice Provisions Under the Open Meetings Act Where and for how long must an open meeting notice be posted? The Open Meetings Act requires that the notice for each city council meeting must be posted on a bulletin board at a place convenient to the public in city hall.(14) A Texas court has ruled that posting in a kiosk immediately outside city hall is also permissible.(15) Generally, this agenda must be posted and readily accessible to the public at all times for at least 72 hours preceding the meeting .(16)The city will want to be sure that the posted notice is in a well-lit place that is accessible to the public even when city hall is closed . The same rules apply to posting notice for a meeting to deal with an emergency, except that the notice only needs to be posted for two hours and the notice must give a reason for calling the emergency meeting. **************************************************** Open Meetings Handbook (which you can also request, free, from the AG's office -good book!) Source: http ://www .oag .state .tx.us/ AG Publications/openmeetoc.htm The Texas Statutes (all the statutory codes) Source: http ://capi to!. tic .state. tx. us /statutes/statutes .htm Portion of Bickerstaff Primer on Zoning XII. ESTOPPEL At some time in the future, you or your city council inevitably will confront the problem of the wrongful or erroneous issuance of a permit by a city inspector. For example , sign permits or building permits may be issued in error by an inspector and, not surprisingly, the permit recipient relies upon the permit and either constructs a sign or commences construction of a building. When it is determined that the sign or building permit should not have been issued , the permit recipient always protests that he/she received a permit and now the city cannot prohibit him/her from constructing a sign or a building. It is even more problematic if revoking the permit results in financial harm to the permit recipient. Although it may appear inequitable to the permit recipient, the wrongful or erroneous issuance of a permit does not estop a city from enforcing its zoning and land use regulations. The general rule in Texas is that a municipa:lity is not estopped from enforcing its zoning ordinances unless the zoning violator has detrimentally relied upon an authorized act of the municipality. See, e.g., City of Hutchins v. Prasifka, 450 S.W.2d 829, 835 (Tex. 1970); City of Amarillo v. Stapf, 129 Tex. 81 , 101S.W.2d229 (1937); City of San Angelo v. Deutsch, 126 Tex. 532, 91S.W.2d308 , 311-312 (1936); Davis v. City of Abilene, 250 S.W.2d 685 (Tex.Civ.App.-Eastland 1952, writ refd); Edge v. City of Bellaire, 200 S.W.2d 224 (Tex.Civ.App.-Galveston 1947, writ refd); Robinson v. City of Dallas, 193 S.W.2d 821, 823 (Tex.Civ.App.-Austin 1946, writ refd); City of Corpus Christi v. Jones , 144 S.W.2d 388 (Tex.Civ .App.-San Antonio 1940, writ dism'd judgmt cor.). The doctrine of estoppel , in its simplest form, applies against a party who knowingly misrepresents a fact to an innocent party , intending that the listener rely on the statement. If the innocent party does rely on the false statement to his detriment, estoppel acts to prevent the party who made the false statement from raising as a defense the falsity of the statement, or from denying its truth. See, e.g., Gulbenkian v. Penn, 151 Tex. 412 , 252 S .W.2d 929 (1952); Moore v. Carey Bros . Oil Co., 269 S.W. 75 , reh'g denied, 272 S.W. 440 (Comm'n Appeals 1925). A strict application of the estoppel doctrine to the administration of zoning ordinances would hold municipalities accountable for the chance misstatements or errors of its administrative officials , which would in turn destroy the integrity of the enforcement system and defeat the zoning policies undergirding the zoning ordinances. Municipalities are created and exist to perform public purposes, and they possess only the precise and limited governmental power that has been delegated to them. Southwestern Telegraph & Telephone Co. v. City of Dallas , 104 Tex. 114, 134 S.W. 321 (1911). Municipalities must act within the limits set by constitutions , statutes , charters and their ordinances when exercising their police powers. These restrictions are designed to protect both individual rights and public interests. Prasifka, 450 S.W.2d 829 . Conversely, all persons who deal with local governments are charged with notice of those governmental limitations and requirements. Zachry v . City of San Antonio, 296 S. W.2d 299, 305 (Tex .Civ.App.-San Antonio 1956), affd , 157 Tex. 551 , 305 S.W.2d 558 (1957). Since citizens are charged with constructive notice of all city ordinances , an estoppel claimant cannot easily show reasonable and innocent reliance on administrative misstatements . See City of Fort Worth v . Johnson, 388 S.W.2d 400, 404 (Tex. 1964); Davis, 250 S.W .2d at 688. Moreover, since administrative actions that violate the fundamental commands or limitations established by constitution, statute, charter or ordinance are void and cannot bind the municipality by either contract or estoppel, the traditional application of estoppel has no place in the administration of zoning ordinances. See Black & Daniel, The Texas Rule ofEstoppel in Zoning Cases , 33 Baylor L.Rev . 241 (1981). With the exception of one aberration, Rosenthal v. City of Dallas, 211S .W.2d279 (Tex.Civ.App .-Dallas 1948, writ refd n.r.e.), and on retrial, City of Dallas v. Rosenthal, 239 S.W.2d 636 (Tex.Civ.App .-Dallas 1951, writ refd n .r.e.), Texas courts have recognized the strong policy reasons that justify insulating municipalities from estoppel when they exercise their governmental powers to enforce and administer zoning ordinances. In Davis, 250 S.W.2d 685, the Eastland Court of Civil Appeals was provided an opportunity to choose between Stapf and Rosenthal. It chose Stapf In Davis, plaintiffs applied for a building permit from the City of Abilene to move a building to a lot zoned "B-Dwelling District." The city's comprehensive zoning ordinance required that all buildings in the "B-Dwelling District" be set back at least 25 feet from the front property line. The city, however, granted plaintiffs a building permit that allowed the construction of their building within five and a half feet of the front property line. Davis, 250 S.W.2 d at 685-86 . When the work on the building was approximately 80% complete, and after substantial sums of money had been expended, the city advised plaintiffs that the building was in violation of the city's set-back requirements and issued an immediate stop work order. Davis, 250 S.W.2d at 686. Plaintiffs brought suit to enjoin the city from enforcing its zoning ordinance . The trial court denied plaintiffs' request and granted the city's mandatory injunction to have plaintiffs' building removed and set back the required distance from the street. On appeal, plaintiffs urged that the building inspector's administrative decision was binding upon the city, and that the city was estopped from canceling the building permit and enforcing its zoning ordinances . Davis, 250 S.W.2d at 686-87 . The court noted that a permit issued in direct conflict with the city's zoning ordinance was void. The permit issu ed to [plaintiffs] was void and without effect from the beginning because it was in violation of th e City's zoning ordinance. The building inspector and the Board of Adjustment were without authority to issue a permit or to authorize the construction of a building in violation of such ordinance and to usurp the legislative power expressly conferred upon the legislative body of the City. Davis, 250 S. W2d at 687. The court also discussed plaintiffs' assertion that the city was estopped from canceling the building permit and enforcing the city's zoning ordinance . In their second point, [plaintiffs] contend that the City of Abilene is estoppedfrom canceling the permit. It is urged that the building inspector was informed of the use to which [plaintiffs} expected to put their building and with this knowledge granted the permit; that the issuance of the permit was not appealed from," that the offic er issuing the permit was presumed to know th e zoning ordinances of the City of Abilene," that [plaintiffs} relied upon such presumption and upon the action of the city official in granting th e permit and expended about 80% of the Iota/ cost of their building. Davis, 650 S. W2d al 688. The court, after revi ew ing the pertinent facts of the case, wrote that estoppel could not apply in this situation. The facts in this case are that the building inspector granted [plaintiffs] a permit to place their building upon their lot within 7 feet of their property line on South 6th Street, contrary to the provisions of the City ordinance, and that [plaintiffs] actually placed such building only 5 112 feet from the property line. The permit was, therefore, in direct violation of the set-back provisions of th e City ordinance and the action of [plaintiffs] in placing the building 5 112 feet from th eir property line was in violation both of the permit granted and of the terms of the ordinance . The permit was absolutely void. No mistaken fact finding was made by the building inspector as a basis for the permit. The question of a reasonable construction of an ordinance is not presented by the facts . The building inspector simply granted a permit which the undisputed facts show was unauthorized and void under the city's zoning ordinance. Source : http://www .bickerstaff.com/articles/primerzone l .htm Steven Esmond, P.E. From: Sent: To: Subject: DRAFT TEXT: Mrs . H. A. Luther 614 Welsh Ave . College Station, TX 77840 Mike Luther [mike .luther@ziplog .com] Friday, October 15, 199911 :31 AM sesmond@kwbes .com Proposed letter I need to get quickly to Wayne Rife .. City of College Station In re : Construction proj ect either side Wayne Rife , Chairman of 600 Welsh Ave . and; The Planning and Zoning Committee 614 Welsh Ave .; 612 Welsh Ave .; Box 9960 601 Fairview ; College Station, TX 77840 As follow up to my personal visit to attempt to conference with you on Tuesday October 12, 1999, now written October 15 , 1999. Dear Mr. Rife: I asked your secretary for a chance to visit with you on what P&Z could hear in an appeal to cons ider a wrongful action concerning the issuance of build ing permits on what I will generally call "The 600 Welsh project", on Tuesday afternoon , October 12, 1999. I left both a contact telephone number where someone could page me so I could return a call to you and an email address . To date I have heard nothing . Therefore , I must unilaterally note what I have read independently and understand about why P&Z should schedule this matter for its next regular meeting . There are a number of completely separate actions regarding the project adjacen t to 600 Welsh which require attention near the very near time frame of the next P&Z meeting . However, the reason I came to you asking for advice on how to form an appeal that would take the least time and focus on the most important things about such an appeal, was that the next normal meeting of the P&Z might be material to the other consideration to be given to this issue and might be ahead of them, time-w ise . P&Z action might pre-empt them . This issue is material to our family, in that we own property in the affected block at 614 Welsh , four doors down from this address . Our property has, we believe, significant historic significance and requires careful planning and work to preserver that. We have been on that same property in excess of 50 years now. I believe we will suffer economic loss in the future and will incur other safety issues in the future over this project as well . You are an attorney , I am not. This issue and any relationship I have to the P&Z is not one in wh ich I am , at this time, represen ted by counsel. I came to you, as the guiding responsible party for P&Z, to ask for what I think is my right to appeal a decision by one or more administrative officials in the issuance of plats and permits for construction in the "The 600 Welsh Project." I read in : 1 CHAPTER 212 . MUNICIPAL REGULATION OF SUBDIVISIONS AND PROPERTY DEVELOPMENT SUBCHAPTER A. REGULATION OF SUBDIVISIONS 212 .0115 . Certification Regarding Compliance With Plat Requirements . what I think are relevant points that are crucial to this issue . As far as I can determine , the responsibility for handling the requ irement of this law in : Sec. 212 .0065 . Delegation of Approval Responsib ility . (a) The governing body of a municipality may delegate to one or more persons of the municipality or of a utility owned or operated by the municipality the ability to approve : (1) amending plats described by Section 212 .016 ; or (2) minor plats involving four or fewer lots fronting on an existing street and not requiring the creation of any new street or the extension of municipal fac:.ilities . was delegated to one or more officials in the City of College Station Planning department. Under this same general section of law, I read that the person or persons whom handled this issue: (b) The designated person or persons may, for any reason, elect to present the plat for approval to the municipal authority responsible for approving plats . could have presented this plat to the P&Z Committee for action, rather than act to approve the plat simply within the certification authority granted them to act in the P&Z Committee's stead . Whomever approved and worked on this plat did not choose to do this. Further, per the next section of the law, I read that , in fact, if the plat had anything in it which was seen to be wrong, from a formal standpoint: (c) The person or persons shall not disapprove the plat and shall be required to refer any plat which the person or persons refuse to approve to the municipal authority responsible for approving plats within the time period specified in Section 212 .009 . If an error occurred in granting the plat, evidenced by an "approved" plat being issued, under the delegation of authority to grant such plats , it is thus obvious to me that the error has occurred as committed by one or more persons of the municipality ... granted the authority to approve it. Specifically , approval of this plat, on administrative basis, would have had to have been done on either a minor plat, or an amending plat. As I read the law, there are only two circumstances under which a designated administrative official could have acted. I do not think the changes in this plat are minor in nature at all. There were many, many things different about this plat and the property which is to be the final outcome of this project. To this extent, I would expect that there would often be a valid interchange between the person or persons delegated the authority to approve a plat, and the owner of the property whom is entitled to present a proposed plat, so that minor errors can be corrected such that approval can be granted, rather than a referral to the P&Z Committee . 2 It has been reported by many that this plat was issued only after much such repeated interchange between the Administrative person or persons and not the then owner of the property, by a subsequent owner. I think that can be substantiated by evidence, if needed . So noted , it is clear that this plat is an AMENDED PLAT. It clearly states that on the plat. It would be an outright Administrative error, I believe, if it were issued as an AMENDED PLAT, and it were, truly, a MINOR PLAT. I pose that in the final analysis, it will be determined that it is, as represented, an AMENDED PLAT and that one question you will have to decide on the basis of appeal it that it is, as stated, an AMENDED PLAT . That noted , in this context I read that the only things which can be addressed amending plat are : Sec. 212 .016 . Amending Plat. (a) The municipal authority responsible for approving plats may approve and issue an amending plat, which may be recorded and is controlling over the preceding plat without vacation of that plat, if the amending plat is signed by the applicants only and is solely for one or more of the following purposes: (1) to correct an error in a course or distance shown on the preceding plat; (2) to add a course or distance that was omitted on the preceding plat; (3) to correct an error in a real property description shown on the preceding plat; (4) to indicate monuments set after the death, disability , or retirement from practice of the engineer or surveyor responsible for setting monuments; (5) to show the location or character of a monument that has been changed in location or character or that is shown incorrectly as to location or character on the preceding plat ; (6) to correct any other type of scrivener or clerical error or omission previously approved by the municipal authority responsible for approving plats, including lot numbers, acreage, street names, and identification of adjacent recorded plats; (7) to correct an error in courses and distances of lot lines between two adjacent lots if: (A) both lot owners join in the application for amending the plat; (B) neither lot is abolished; (C) the amendment does not attempt to remove recorded covenants or restrictions; and (D) the amendment does not have a material adverse effect on the property rights of the other owners in the plat; (8) to relocate a lot line to eliminate an inadvertent . encroachment of a building or other improvement on a lot line or easement; (9) to relocate one or more lot lines between one or more adjacent lots if: 3 (A) the owners of all those lots join in the application for amending the plat; (B) the amendment does not attempt to remove recorded covenants or restrictions; and (C) the amendment does not increase the number of lots ; ( 10) to make necessary changes to the preceding plat to create six or fewer lots in the subdivision or a part of the subdivision covered by the preced ing plat if: (A) the changes do not affect applicable zoning and other regulations of the municipality ; (B) the changes do not attempt to amend or remove any covenants or restrictions; and (C) the area covered by the changes is located in an area that the municipal planning commission or other appropriate governing body of the municipality has approved , after a public hearing, as a residential improvement area ; 1 or (11) to replat one or more lots fronting on an existing street if: (A) the owners of all those lots join in the application for amending the plat; (B) the amendment does not attempt to remove recorded covenants or restrictions; (C) the amendment does not increase the number of lots ; and (D) the amendment does not create or require the creation of a new street or make necessary the extension of municipal facilities . To that extent, we belive error has occurred, as my family notes this as follows. As best we can determine from the issues: 1.) This plat was not issued to correct an error in a course or distance on the preceding plat as in (1) above; 2 .) This plat was not issued to add a course or distance that was omitted on the preceding plat as in (2) above ; 3.) This plat was not issued to correct an error in a real property description shown on the preceding plat as in (3) above . 4.) This plat was not issued to indicate monuments set after the death, disability, or retirement from practice of the engineer or surveyor responsible for setting monuments; 5.) This plat was not issued to show the location or character of a monument that has been changed in location or character or that is shown incorrectly as to location or character on the preceding plat ; 6 .) This plat was not issued to correct any other type of scrivener or clerical error or omission previously approved by the municipal authority responsible for approving plats, including lot numbers, acreage, street names, and identification of adjacent recorded plats ; 4 7.) This plat was not issued to correct an error in courses and distances of lot lines between two adjacent lots . 8.) This plat was not issued to relocate a lot line to eliminate an inadvertent encroachment of a building or other improvement on a lot line or easement; 9.) This plat was not issued to relocate one or more lot lines between one or more adjacent lots if: (A) the owners of all those lots join in the application for amending the plat ; (8) the amendment does not attempt to remove recorded covenants or restrictions ; and (C) the amendment does not increase the number of lots; More specifically , error may have occurred because it, we believe did relocate one or more lot lines between one or more adjacent lots where ; (A) the owners of all those lots did may not have joined in the application for amending the plat; (8) the amendment may have attempted to remove recorded covenants or restrictions ; and (C) the amendment increased the number of lots as evidenced by the issued amended plat. 10 .) Th is plat was not issued to make necessary changes to the preceding plat to create six or fewer lots in the subdivision or a part of the subdivision covered by the preceding plat if: (A) the changes do not affect applicable zoning and other regulations of the municipality; (8) the changes do not attempt to amend or remove any covenants or restrictions ; and (C) the area covered by the changes is located in an area that the municipal planning commission or other appropriate governing body of the municipality has approved, after a public hearing , as a residential improvement area ; More specifically, error may have occurred because it, we believe did make necessary changes to the preceding plat to create six or fewer lots in the subdivision or a part of the subdivision covered by the preceding plat where : (A) the changes DID affect applicable zoning and other regulations of the municipality where at a minimum it ; a.) was the first formal attempt in this block to formally define the closure of one end of an alley more than 100 feet in length in violation of what we believe to be the most recent law on such matters which was effective as of December of 1997 ; We believe that there are other ordinances which were violated as well, however we reserve the right to further enumerate them between now and time of hearing . (C) the area covered by the changes is located in an area that the municipal planning commission or other appropriate governing body of the municipality has approved, after a public hearing, as a residential improvement area where ; 5 a.) There was NO public hearing granted ov e r the issue nor notice to us that this project even existed . Specifically , we were denied what should have been a right to question the aspects of this project in that the only notice we had on this issue was when v isual ev idence of the work began , less than 30 days ago and months after we should have had a right to protest the issuance of th is plat under the law. (8) the changes DID attempt to amend or remove covenants or restrictions in that it ; a .) violated covenants that the City Council reached with the people of the Southside Historic Area in action taken July 23, 1998, wherein the Council , by accepting the recommendations of Staff and the Neighborhood Preservation Committee , report and the Resolutions there in, joined in and adopted as RESOLVED that, at a min imum: I aa .) Requ ired that the same people whom approved this plat should have implemented, as instructed there own recommendations to Council, the exact course of action they should have taken that would have caused, at a minimum , this plat to go up for hearing! (11) Th is plat was not issued to replat one or more lots front ing on an existing street where: (A) the owners of all the lots materially affected by this plat were given the right to join in the application for amending the plat, specifically ; a .) There were deprived of that right by the errors which have occurred in the issuance of th is plat (8) the amendment does attempt to remove recorded covenants or restrictions as noted previously above ; (C) the amendment does increase the number of lots; and (D) the amendment does not create or require the extension of municipal facilities, we believe, in such a fash ion that its issuance will further deteriorate that city's ability to properly serve all the lots, at a minimum in the in the specific block where this amended plat was issued . We believe that we have a right to seek hearing under this law because as per section of the law: Sec. 212 .0115 . Certification Regarding Compliance With Plat Requirements . (h) The municipal authority responsible for approving plats may adopt rules it considers necessary to adminis ter its functions under this section . (i) The govern ing body of a municipality may delegate, in writing, the ability to perform any of the responsibilities under this section to one or more persons . A binding decision of the person or persons under this subsection is appealable to the municipal authority responsible for approving plats . The decision to issue this amended plat was a binding decision . It was a unilateral decision in which we had no notice or in wh ich we were g iven any opportun ity in which to participate . 6 Mrs . H. A. Luther ~:,( Welsh Ave. vurlege Station, TX 77840 Bobby Mirza 612 Welsh Ave . C-0llege Station, TX 77840 Helen Pugh 601 Fairview C-0llege Station, TX 77840 October 4, 1999 City of C-0llege Station In re: Tom Brymer, Acting City Manager The Zoning Board of Adjustment The Historic Preservation C-0mmittee Box 9960 C-0llege Station, TX 77840 Mr . Nelson Nagle 510 Dennis Drive Round Rock, TX 78664 Stylecraft Builders, Inc. Randy French, President 4112 State Highway 6 South C-0llege Station, TX 77840 Gentlemen: Construction project either side of 600 Welsh Ave. and; 614 Welsh Ave.; 612 Welsh Ave .; 601 Fairview; This i s a formal request for full near-term abando1111ent of the current construction of two additional single f811ily dwellings on either side of 600 Welsh Ave. We believe the city erred in issuance of construction permits for this work in many ways. This letter specifically addresses just one of then which is · very important to us. It also addresses a staff management viewpoint which we think some staff personnel are using which is very bad for all of the city; it produces these problems and citizen-staff flare ups . We tried to fix this problem verbally, as cheaply and as fast as we became aware of it. However, there was no notice to us at all, so we could begin working with this issue in the some six months it took the developer, the contractor and city staff to orchestrate this project! our to-be-filed written request was deemed to be meaningless. Thus, it is now necessary to present our problem for board level decision. In considering this, it should be apparent that Council and board level action must *AGAIN* be taken , to prevent future similar flare ups. Some of city staff are sti 11 1 not listening to either the majority of the citizens , nor to C'.ouncil , as we think this complaint illustrates. The guidelines are clear, as we see it . As the last verbal interface at this, Jeff Tondre saw a less strongly worded draft of this request. He was asked for guidance for the final docu•ent, so as to minimize the time and expense needed to bring the best case forward to the city, both as to the complaint and any proposed solution. He verbally acknowledged that there is a problem with this construction and our plight . He noted he could not advise us on how best to write the fol'IB8.l letter , which he said should be written, until he checked with the city legal department. His answer, on checking with the city legal staff, was the city has no legal obligation to consider our position, at all, relative to this c.onstruction for protection of our property! We disagree with that . Additionally, it has come to our attention that there is a feeling that absent of a 'specific ordinance' which addresses the general policy toward additional development and construction in historic neighborhoods, such as this, city staff has no obligation to c.onsider anything on how c.onstruction wi 11 impact a. neighborhood such as this! They are free to do as they please in exercising their own view of these things . They may act as they want and need not consider the thousands of hours of citizen-city previous work . They a r e not bound by any directive of C'.ouncil here. We bel ieve this perception in error . We believe staff has failed to take into account existing city ordinances, togethe r with specific pol icy applicability to our property. You may aff i rm this with inspection on the ground and reasonable engineering study, current law noted and a simple review of the July 23 , 1998, City C.oun c il meeting minutes . It's all there for anyone whom wants to do a Ii ttle study . We think you may determine, if you review the City C'.ouncil's minutes, in action on general policy as applicable to Neighborhood Preservation, that the all but item six of the Neighborhood Preservation C'.ouncil, was ACCEPTED , in its entirety, as general policy and guidelines for the future development in the area of study for the Southside area and other older neighborhoods like this. There now ARE general staff guidelines which have been formally ACCEPIED as a matter of policy to protect property owners like us. They are a. directive which has been ACCEPTED for city staff. Thus staff has failed to act on the generally adopted directive on policy towards us, even under a most widely interpreted perspective of a modified Carver's Governance model for staff performance, as we see it. Something is badly wrong here . First, we address the technical problem and current ordinance protection that is afforded to us which has been violated. There is no ability, at all, for the immediate downstream property t,o handle any additional water runoff, let alone construction waste water. There is no way to provide for it, given the current civil engineering foundation for this neighborhood, nor any near-term future engineering solution for it . 2 This neighborhood was designed, for drainage purposes among others, with alleyways at the rear of many of the houses. As designed, a formal alleyway here and both Welsh a.nd Fairview street were lower than the property level of a.11 of the houses in this block. The street AND the alley were both the required drain ways for water runoff, in protection to the property. The formal alley, in theory, designated for this property, behind it, is common to all houses in the block which back it on both Fairview and Welsh Ave. By ordinance, a.t the time this property wa.s frozen into the current engineering template, this alley must continue to provide several utility service requirements. Per our reca.11, these include that it must remain no less than 20 feet in width, and is to be paved. The original improve~ paving for this alley was in a non-ha.rd surf aced, improved gravel-I ike material, similar to the original street paving on Welsh. It originally had not only the required paving needed, but wa.s the garbage pickup route for the houses. The original wood garbage can rack is still there at 614 Welsh Ave! This alleyway also contains sewer service for the houses in question in this block, most of which a.re still connected to it. The original sanitary service in the neighborhood was in septic tanks. The sewer supplementing them was constructed in this alley yea.rs ago as many of the houses were built . This alley also contains water and gas service for many of the houses. It, further, contains the full 6900 volt primary electrical distribution service for all of the houses in the block. That service, a.lone, has to be protected for access for full truck a.nd lift operations on the ground by the city, even if there were no issue on the drainage for us. This alley, by ordinance, must not be fenced or obstructed by any property owner, and a.s a. drainage way, no property owner is permitted to interfere with the drainage it must continue to afford. Further, in that it is longer than 100 feet in length, it must, by ordinance, remain open at both ends of the alley! That means, full city access, irrespective of what ma.y or ma.y not ha.ve appropriately been done with the other end of the block, the extension of Fidelity street, legally has to be maintained a.t the subject property end on the 600 Welsh project. None of this was addressed in the action taken together by the developer, the contractor, nor the city. As an inspection on the ground, together with applicable ordinance requirements will easily determine, none of this can be satisfied under the present construction plans. There is no easy adequate engineering solution for new construction here, a.s is common to many of these older neighborhoods. Specifically, the current property flooding conditions i•ediately down stream from these locations are already well known to City engineering. The issue is so severe for the corner area a.round the intersections of Welsh and Park Place, that there is no ability for that segment of the City to handle *ANY* additional water flow from major construction upstream, of *ANY* kind, which will a.dd to the run-off. The property on which construction is to be done is already, now, slightly below street grade level for Welsh. Not a full block down stream toward 3 Park Place, the land property level decreases to what is already now nearly nine inches below current street grade level. The civil engineering foundation upon which this neighborhood was based, coupled with the fifty succeeding years in which what little dra.inage protection there once was, has long since been neglected and/or abandoned by the City -to the expense of the individual property owners down stream of this development. As a matter of fact, the entire recent street overlay work that proceeded, under protest, on Welsh, has only added to the problem. The proper street level is clearly evident from the original drive way levels still in existence. The abandonment is photographically provable. The intended original below-grade full curb, gutter and sewer plans had to be abandoned more than forty years ago; the 'storm sewer' preparation, even then, overflowed into the property! It took removal of the original 'pre- storm drain' facilities, c:-.oupled with private property owner paving and driveway maintenance, to even keep adequate access to their property on Welsh. This situation has remained for at least forty years now. It grows steadily worse with each additional square foot of ground either paved, or built-over, upstream. Any further major c.onstruction upstream of this area, like this, will even more seriously endanger the property of those below it . There is no realistic frontal civil engineering solution for Welsh, which wi 11 now provide dra.inage for this development. Significantly, the major trees below it, cannot be preserved, if any major Welsh Street work is done to alleviate the problem. The entire rear drainage for this property in the alley way behind the property, which was the actual allowable exit for all this runoff water below the development property, must be re-addressed by the City as well. It is now over-level in respect to the downstream properties as wel 1. The City having realistically lost any abi 1 ity to cure this over forty years running, cannot technically, therefore, permit further construction like this, without liability for the consequences, unless a demonstrable and satisfactory engineering solution for the problem is on hand, contemporaneous with the new construction, as we see it. Until all of you can settle this issue alone, such that no additional runoff of any kind from this major c:-.onstruct ion will reach those of us below the property, to add to our current woes, please withdraw forward work on this project. It's either that or consider the possibility that the only action we might take to gain relief, would be in the form of injunctive relief, pending litigation over the issue. That's expensive for all concerned, perhaps significantly so for you, should you lose the case. In summation, this neighborhood is a classic, historic, fragile area of the City. The guidelines for City future property development in this particular historic neighborhood are well established. They have been developed formally over many hundreds hours of public work toward guidelines for further development of neighborhoods, while preserving these fragile areas of the City. The basic policy of caut.ion and concern for this, already h~~ C.ollege Station City Council past approval. The focus of this near c.omplete inability to solve this problem, in and a.round this particular downstream intersection and area has, on dozens of occ&~ions, been the 4 subject of City-citizen conference, with no real solution, as well. The houses of concern are headed toward historic registry . All of this would have been easily discovered had city staff simply followed the already issued guidelines set forth in the Neighborhood Preservation Committees' report to C.ouncil and the formal adoption of that report as guidelines for future property development in this Historic Neighborhood . There is a sign demarking this property as being in this neighborhood directly in front of the development. We believe, for these permits for such new major construction, to have even been issued, for such construct ion, without addressing this problem, as well as other neighborhood issues, in advance, including an impact notice to the public, would be far beyond what any reasonable and prudent person would have done. Further, we don't believe that any knowledgeable and capable City staff person, given their presence at C.ouncil meetings, could have issued or permitted the issuance of any building permit for this work, absent of protection arrangements for the downstream citizens. We believe any reasonably aware such person had to have known, or should have known, that the protection of downstream residents was necessary. Gee, even the current rules force the erection of temporary plastic barriers to protect the neighbors on a temporary basis! There is *NO* form of temporary protection for construction runoff that can be made in *ANY* form for the downstream residents of this project! Sincerely yours, Bobby~rza 612 Wei Ave. ~ Helen Pugh 601 Fairview 7~LS~ Attachments: Minutes transcript ion July 23, 1998, C.ounci ! Meeting. Neighborhood Preservation C.ommittee report submission to C.ouncil. Alley Ordinance c.ontinuing duties December 1997. C.opies of water load photographs on downstream properties. 5 Attachment to letter of October 4, 1999 to various parites. Partial transcription of City of C.ollege Council meeting minutes for July 23 , 1998: Hickson: "I would like to IOOVe that we accept 1, 2, 3 and 5 of staff recommendations .. " He is interrupted, "Could you go the two hour deal instead of one hour?" He c.ontinued, "Yeah, eh, .. two hour parking . Mmm, .. my prob .. , I don't necessarily agree right now that we need an on- street parking system. I'd like to see how these things work, before we really consider IOOVing in that direction, to see what the impact ... To me these are some things that will definitely help in that area. I agree with Jerry at this time that going to an on-street parking , parking permit with .. is maybe a little bit premature." Marriot: "I second that." Mcilhaney: "OK, we have a motion to approve staff recommendation 1, 2 and 3 which is re100ving the on-street parking on George Bush; establishing a two-hour parking, uh, .. eight through five on, uh, .. Fairview and George Bush to Kerry; install no parking from here to corner signs on Fairview and then to accept the staff's proposed actions for recommendations for on, uh, .. the C.ommittee's report, items one through five and seven through thirteen . Motion by Councilman Hickson; second by C.ouncilman Marri_ott. Further discussion by the C.ouncil?" She paused, then continued, "Seeing none, I'll call for the vote. Those in favor say 'Aye' . " Voices heard. "Those opposed, say 'No'." There is no sound. Whereupon she continues, "Motion carries unanimously." Look *CAREFULLY* at item number four of the C.ommittee's recommendations . Note that this project is *NOT* a reconstruction of an old house for student use. It is *NEW* construction. Accepted C'.ommittee Item number four says: 4.) Land Use Restrictions RESOLVED, that no tipc.oding of structure c.a.tegory shal 1 be permitted in this area. Property shall not be re-platted in this area to achieve a higher structural density than is currently of record. So noted, staff has violated both the wishes of the people of C.ollege Station whom employ them, and the directive of the City Council, when approval of this project was given. Moreover, if you listen carefully to the Council meeting tapes, staff was expected to get back to the City C.ouncil to implement these acceptances; to our knowledge, they have never done so. In order to prevent future flareups like this, we think failure to accept the will of the people relative to issues like this must cease. 6 7/14/98 Southside I Southgate Neighborhood Preservation Report Recommendations #1 - 5 I. Student Housing (Nevada & We/sit). RESOLVED, that no further changes in any property use from single-family residence or up-coding of any property in the Neighborhood Preservation Area of College Station should be permitted and are the position taken in the report. 2. Develop Themes. RESOLVED, that the theme of the Neighborhood Preservation Area addressed by the Committee shall not change from the present mixture of single-family residential dwellings and zoning in any way. 3. Opportunities For Small Business Development RESOLVED, that the present language used by the City of College Station to describe opportunities for small business development at home is satisfactory. 4. Land Use Restrictions. RESOLVED, that no upcoding of structure category shall be permitted in this area. Property shall not be re-platted in this area to achieve a higher structural density than is currently of record. 5. Zoning Changes. RESOLVED, that it would be contrary to the Public Interest , cause unnecessary hardship and substantial injustice would be done, if the zoning were changed and up- zoning of property in this area should occur. In regard to Recommendations l, 2, 4, & 5: This issue has been largely addressed by past City Council and staff action. The City has included fOm!!!_~ts in the current Comprehensive Plan to not increase density in the Southside/Southgate area. State law prohibits a City Council from restricting future City Councils from considering zoning requests. Also, the City cannot prohibit developers from submitting zoRing requests. The Council has previously voted to not require amendments to the Comprehensive Plan prior to consideration of re-zoning requests that are not in accordance with the Plan. If Council wishes, it could reconsider this option. As with any such consideration, there are pros and cons. When Council last considered this issue, the fact that such a step would increase development review time seemed to be a major factor in Council's decision not to make this a requirement. 2 I • .. ._ ~7114198 l ( In reeard to Recommendation 3: In accordance with the recommendation by the Southside/Southgate Neighborhood Preservation Committee, there are no plans to change the ordinances describing small business development (i.e., home occupations). Southside I Southgate Neighborhood Preservation Report Recommendation #6 6. Housing Renovation. RESOLVED. that the Committee recommend that a regulatory authority be established in the City of College Station to regulate non-owner-occupied rental property in the Neighborhood Preservation Study area. Occupancy rate for unrelated adults in any such single-family residence shall not ex ceed the number of bedrooms and shall not exceed four such occupants in any such dwelling. The number of improved parking spaces which must be provided on the property shall equal the number of unrelated adults permitted for any given single-family residence used as rental prope;ty. Th e adoption of such an ordinance shall be requested in a timely fashion , so as to bring the Neighborhood Preservation Area under its protection as soon as it is practically possible to do so. preferably in time for th e fall semester. [n regard to Recommendation 6: At the City Council workshop in January, the Council directed staff to review the Southside/Southgate Preservation Committee's recommendations. Council discussed the various aspects of Recommendation #6, and asked staff to look at options other than the regulation, or permitting, of non-owner occupied rental property. In light of the direction given by Council, City staff has studied the symptoms created by non-owner occupied rental property. One of the primary problems caused by both the rental housing as well as the proximity of the Texas A&M University campus, is an overflow of on-street parking in the Southside/Southgate neighborhoods. City staff has reviewed the on-street parking situation and developed the followi _ng options to deal with the problem in this neighborhood: l. Re~ove all on-street parking in the entire study area. 2. Remove on-street parking in the entire study area from one side of every street, leaving on-street parking on the other side of every street. 3. Permanently remove on-street parking on ev~ry street in the study area that is currently restricted by Special Event Parking. 4. No o.n-street parking during certain hours of the day, such as from 8:00 a .m . to 5:00 p.m. 3 7/14/98 5. Identify blocks with majority of rental units and restrict parking only on those blocks. A potential impact of this is the possibility that is parking may spill over into the blocks marked owner-occupied. 6. Use of a permit, or hangtag, method to allow on-street parking by the residents of the study area. This option also addresses the situation in Committee Recommendation #8b. Staff has also evaluated the concerns associated with the off-street parking situation. Current ordinance states that a single family residence dwelling unit will have a minimum of two off-street parking spaces. Staff has investigated the possibility of enforcing the required two off-street parking spaces for non- conforming residences built before the standard was put into effect. Staff has determined that legal restrictions facing the City prohibit this action. However, the options presented regarding restricting on-street parking could have the effect of encouraging the construction of off-street parking. With limited or no on-street parking available, property owners and residents may have an incentive to create off-street parking spaces if they do not already exist. After the options regarding the on-street parking situation were developed as an indirect method to deal with Recommendation #6, staff met with the Southside/Southgate Neighborhood Preservation Committee on May 7. The Committee asked to have the options presented to a forum of Southside/Southgate residents and property owners, and have this group reach a consensus on which option to support. Over 2,000 invitations were sent out to those who reside in the Southside/Southgate area and those who own property in this area but live elsewhere. On June 4, a neighborhood forum was held in the College Station Conference Center for the residents and property owners in the Southside/Southgate neighborhoods. The options to deal with on-street parking were presented to approximately 70 citizens in attendance, followed by a discussion period and a survey on the options. The survey was taken by ballot, and resulted in the permit system receiving the largest amount of votes. Of the 28 votes cast for this option, twelve votes asked to combine the permit system with other options. The survey results are attached for your consideration. Using these survey t;"esults and stafrs analysis of the problem, staff recommends the following actions to deal with the on-street parking situation created by the proximity of Texas A&M University to this neighborhood: 1. Remove on-street parking presently along the north side of George Bush Drive from Timber to Texas Avenue. If this is done before the fall semester, staff can track where Texas A&M Universfry commuters migrate to in search of free parking. 4 •• • • J j 7114198 fl'° . 2. Establish ;1.;'J_Hour Parking" from 8:00AM to S:OOPM Monday through Friday in ~reason Fairview Avenue and Montclair Street, from George Bush Drive to Kerry Street. · 3. Install "No Parking From Here To Corner" signs on Fairview Avenue to help reduce the sight distance problems created by parked vehicles. These recommendations would be a first step, and staff can watch the area to see if the problem moves further south. If tlte commuter parking moves further south, the City can increase the area for restricted one hour on-street parking. One of the attached maps shows the area and volume of the Southside/Southgate Neighborhoods in which commuter parking is occurring. Starrs recommendation to deal with the problems caused by residential on-street parking is to create an on-street permit parking system. The concept is l;>a~ed on similar programs in cities such as Lubbock, Dallas, Austin, and San Marcos. The permit system restricts on-street parking to residents and their guests. Under such a system, residents would be able to limit non-residents from parking in front of their homes without losing valuable parking area. Using other cities' models as examples, the permit system would be based on street-by-street basis. Residents would apply for a permit through a petition and pay for the application fee, signs, and permits. Staff recommends an application/petition system of some type which would require the signature of a certain percentage of owners and/or residents adjacent to street in question. This places the responsibility for initiating such a system to the residents of a particular street while allowing the City the final authority for approving it. Information on Lubbock's residential parking program is attached for your review. It should be noted that while other Texas cities have such programs, from a legal standpoint, there are issues to consider. The streets and roadways are held in trust by the City for public usage. The cities that have established limited use of public streets have no clear statutory authority to limit the public access to the public streets. It is likely that only in extraordinary circumstances will limited use of public roads be allowed. It is also possible that limited use of public roads may be ~eld to be invalid. Staff is recommending implementing an application/petition based permit system on a pilot basis in a small trial area to test the system's effectiveness. If this pilot program has a positive impact, staff can implement this system in other neighborhoods as needed. Staff advises making the area bordered by George Bush Avenue to the North, Dexter to the East, Park Place to the South, and Wellborn Road to the West as the targeted trial area for the permit system. Further details of such a system would have to be worked out if Council directs staff to move forward with this recommendation. 5 7/14/98 Southside I Southgate Neighborhood Preservation Report Recommendation #7 7. Restoration of the Neighborhood. RESOLVED, that the Committee recommends; a. The City create a reinvestment positive climate in the area through economic means which is restricted to single-family owner-occupied homes. It is suggested that the time period for this should not exceed beyond the y ear 2040 and that abatement on a given individual 's property should not exceed 20 years. b. The City should tie the above point together with some form of tax abatement and/or some kind of program of low interest subsidized Joans which will increase the valu e of non-conformance property, as well , in order to make the overall effe cts revenue positive for the City as tim e go es forward in the area. In regard to Recommendation 7: Staff's research has found the City cannot legally offe r abatements of ad valorem taxes for residential property owners. However, there are existing Community Development programs which can be utilized in this neighborhood on a voluntary basis : • If a family is low-income (less than 80% of area's median adjusted for family size) and owns their home (or purchasing it), then they can apply for . owner-occupied rehabilitation assistance and Optional Relocation Program (if house is beyond repair, Community Development tears it down and ·rebuilds). These programs are grant programs for persons below 60% of median income, and those between 60%-80% pay a small portion of their project cost. Community Development does not do any kind of loan for .their share. • The Rental Rehabilitation Program is available for landlords of rental property on a dollar-for-dollar match, with a ceiling amount based on number of bedrooms, i.e., on a 2-bedroom Community Development loans up to $7,500. These are deferred, forgivable loans for a 10-year period. The landlord has to bring the property up to code and make it available for rent to low to moderate income (LMI) tenants. • Also, the Downpayment Assistance Program is available for LMI homebuyers who might wish to purchase a home in that area (actually available city-wide). Community Development can pay up to $4,000 in down payment and closing costs. Also, !hey can apply for rehabilitation assistance in conjunction with this . 6 ' ' ',/ c 7/14/98 • Other assistance would be to make available painting supplies and materials to a LMI homeowner who might wish to paint the exterior o·r his home. Community Development has also done some relatively minor · drainage projects. Community Development can also do "emergency repairs" if the health and safety of occupants is involved. While Community Development offers a variety of programs to this area, it may be that there is not a high awareness of these programs by residents and/or property owners. If Council so directed, Comm unify Development and the City could begin a targeted marketing project to the residents and property owners in the Southside/Southgate study area. This would include workshops , flyers, and other possible informational material to get the information out to those who need it. 7 __;."..;.."o...', v;,.o,f-".:...o-... v<>..,· .... .1.,.,:0.~r AA ... V ti O lJI J 'I I. 'l J !II lJ (j .. _ -·--· -·-·-·------....:.·;.:.:··-· ·w;..-.-«a..;;· ~,.···a,.r•· •••••• wo o2 1 ~street Names New streets snail not onlv be named so as to provide cont inuity of existinQ streets, but shall be named to prevent oonflict with Identical or similar names in other parts of the City. New streets shall not be named after any living person. - l±LI. Alleys may be required at the rear of all lots intended to be used for business purposes and may be provided in residential areas. 8-H.2 Alleys snail generally be paralltl to the 5treet, shall be not less than twenty feet (20' wide and shall be paved under City Engineenng standards. The right-<>f-way for alleys shall be dedicated to the pubfic. ~ V\lhere two (2) alleys intersect. or Where an alley tums, adcrruonal width may be required to allow tumlrig of vehicles or guying of utility poles. Dead.end alleys shall not be permitted, except where the alley ts one hundred feet (100 or less in le • In all alleys , overtiead easements of at least four feet ("' in width shall be provided on each side of the alley right-of-way overwtllch the aerial electric and communication lines must hang. This easement is not required when the electric and communication lints are placed underground . 6-1 E.asements ill Dra inage Easements Where a subdivision is traversed by 11 watercourse, drainage way , natural channel o r stream, there may be required a drainage easement or ri~ht-of-way c:onforming sub- stantially to the limits of such watert0uf3e, plus additional width to accommodate future needs as determined by the Ctty Engineer. No construction , including fences. shall Im- pede, constrict. or block the flow of wmer in any easement or natural watercourse. Such easement shaU not be considered a part of the let area for purposes of minimum lot size 119qulrements of the zoning orUinance . Drainage easements may be used for utilities. §:12 Utility Easements S-1..2.1 Each block that does not contain an alley as prDVided in 8-H above, shall have a utility e.sement .t the rear of all lots, reserved fer the use of all utility lines, conduit, and equipment. These utility easements shall be twenty feet (201 in width , taken ten feet (10' from eacti lot where tne rear of the lots abut each other, and shall be continuous for the entire length Of a bloc:k. Those easements shall be parallel as closely as possible to the street line frontage of the block. ~ Normal curb section shall be required where utility easements Intersect streets. ~ Where utUlly easements are not themselves stfilight Within e.ch block, or if the same do not connect on a W'Bight cou~ \Nitti utmty easemems of adjoining blOCks, then an additional easement shall be provided for the placement of guy wi~ on lot division lines in oro1r to support poles set on curving or deviating rightS-of...way or easements. 8-1.2.• Utility easements may be required across parts of lots other than as described above upon recommendation of the City E~lneer. Where the proposed subdivision adjoins an unplatted area, the full twenty foot {20') width of easement may be required along the rear or lots adjoining the unplatted area. 9-22 Rw.12.-R t I 1 ' I I I I I I I I I I ' I I I I ~ ~·~;): ,.·. ~· ~~ ~"" --\~ ~ ~t 0 ~ ~~ ~l s ~ i~ ~:!\ -- 1 ~f~. ~ ~ ~ ~· .. &. ( . .i ·,1 ~ ,. ,,, ~,.. . .,. . i '· ... .-. . I· ';. ·~ T ,~·. .. ·.· f~' T -" r lll: l .'j ' "-:· ... ; ;~~ 7:i.: ~.'~ • ! " . f , • ,,.·· . ~· ~·· ' .. ,. i. ·-~: ~ ;.:~· .. 1t t. . ~-'\· "··: •.'· ) ' .. , 600-604 Welsh Late May-June Prior to purchasing the property Nelson Nagle made several phone inquiries of the possibility of adding one or two homes to it. Staff informed Nagle of the minimum requirements. Apparently Mr. Nagle sought additional land opportunities including the possible abandonment of Fidelity and land purchase from George Dresser. Upon request, staff researched and located information regarding the Fidelity abandonment. June 2, 1999 City staff held a predevelopment meeting with Nelson Nagle, George Dresser, and Brandon Nagle to discuss the shifting of interior lot lines of 3 lots on Welsh Street. Mr. Nagle provided a conceptual plan for staff to review. Mr. Nagle was informed of the applicable ordinance requirements for an amending plat. He inquired about the ownership of Fidelity Street and whether it could be platted with Lot 10. Staff informed Mr. Nagle that there may be some people in the area that may have concerns regarding this development and encouraged him to talk with his neighbors, especially Mrs. Miller. June (the following weeks) Jane Kee instructed staff to inform Mrs. Miller about Mr. Nagle's replatting. Mrs. Norma Miller came into Development Services and met with Bridgette George inquiring about the final plat. She requested, and was given, copies of the drawings from the predevelopment meeting, portions of the proposed final plat, as well as the minutes from the Council meeting abandoning Fidelity Street. She inquired about taking the other half of Fidelity Street via the replatting process. Bridgette informed her that she could replat her property and include Fidelity if she desired. Mrs. Miller was unhappy regarding the associated fees to replat. June 17 June 17-27 July 29 August 16 September 15 September 16 Mr. Nagle submitted a Final (amending) Plat application with the appropriate documents required to process the plat. Staff processed the plat. Reviews resulted in a few required revisions, which were addressed by the applicant. Staff then approved the plat. The final plat was filed for record and the Brazos County courthouse . Upon request Scott Hester went out to the property and met with Nelson Nagle to discuss parking and driveway access. Mr. Nagle was informed of what he would and would not be allowed to do. Scott gave him the minimum zoning requirements. Stylcecraft Homes applied for the building permits. Norma Miller called Bridgette George saying she was informed that Mr. Nagle was going to build a home on the lot adjacent to hers. She inquired about various ordinance and subdivision regulation requirements. She stated that she was not aware that he was going to build a home there until now. Building permits were issued for 600 and 604 Welsh. September 1 7 September 20 September 28 Mrs. Miller came in to see Bridgette George about Mr. Nagle building on the lots he just platted. She stated that she wasn't aware that he was going to build homes on those lots. Bridgette informed her that Mr. Nagle had met all the zoning and subdivision regulations when replatting and could build homes on the two vacant lots. Mrs. Miller also stated that she received a letter in 1967 (she thought that was the date) giving her Fidelity Street. Bridgette asked if she had a copy of the letter and Mrs. Miller stated she wasn't sure where it was and whether or not she could find it. Bridgette offered to have the Council Office and Legal check to see if they had records of the letter. Mrs. Miller was given another copy of the Council minutes from 1962 because she misplaced her previous copy. Bridgette checked with Connie Hooks and Jan Schwartz and neither found any reference to the letter Mrs. Miller said she received giving her Fidelity Street. Connie stated that records for that year have already been destroyed. Mrs. Helen Pugh contacted Sabine and was informed that building permits for two additional homes on the property were pending or may have already been issued. Mrs. Pugh expressed her concern regarding the relatively small lot sizes and the potential for student rental housing. Mike Luther came in to meet with Jeff Tondre regarding drainage ordinance compliance. Mr. Luther requested that Mr. Tondre revoke the building permit and he was informed that Mr. Tondre could not do that. Nelson Nagle called Bridgette asking why we stopped construction. She stated that the City was not responsible for stopping construction. Mrs. Miller came to see Bridgette and voiced her concern about drainage and parking issues regarding the property. Bridgette made a copy of the conceptual layout for the parking and driveways, and informed Mrs. Miller that Scott Hester went out to the property and met with Mr. Nagle to discuss parking issues. Scott Hester called Norma Miller regarding cement trucks destroying the tree limbs in her yard and also discussed driveway and parking zoning requirements. Mrs. Helen Pugh and Mr. Benito Flores-Meath met with staff to voice their concern regarding the City allowing homes to be built on the lots, stating that we were allowing an increase in density. Norma Miller, Helen Pugh, and Steve Esmond visited with Carl Warren, Plans Examiner and Lance Simms, Building Official expressing concerns regarding possible encroachment of a carport, driveway radii, and other more zoning-related concerns. They requested revocation of the building permits and were informed though revocable, there were no compelling grounds. September 30 The three also met with Jeff Tondre regarding drainage and other issues. Mrs. Miller submitted a ZBA application. She visited with Bridgette informing her that several large trees and crepe myrtles had been cut down several days before. Steve Esmond visited with Jane Kee and Natalie Ruiz and discussed the aforementioned and other related issues, including "O" lot line construction. He also requested a special emergency ZBA meeting. Jane indicated that staff would look into the question. Mr. Flores-Meath hand-delivered a letter regarding his concerns regarding the aforementioned issues. Mr. Flores-Meath hand-delivered a second letter regarding additional concerns. Steve Whitten, who lives in the vicinity, visited with Scott Hester regarding driveway access issues. owner or occupant or any other persons having charge, care or control of any building, structure, or premises shall fail or neglect, after proper request is made as herein provided, to promptly permit entry therein by the building official for the purpose of inspection and examination pursuant to this code . 103.3 Stop Work Orders Upon notice from the building official, work on any building, structure, electrical, gas, mechanical or plumbing system that is being done contrary to the provisions of this code or in a dangerous or unsafe manner, shall immediately cease. Such notice shall be in writing and shall be given to the owner of the property, or to his agent, or to the person doing the work, and shall state the conditions under which work may be resumed . Where an emergency exists, the building official shall not be required to give a written notice prior to stopping 'the work. 103.4 Revocation of Permits 103.4.1 Misrepresentation of Application. The building official may revoke a permit or approval, issued under the provisions of this code, in case there has been any false statement or misrepresentation as to the material fact in the application or plans on which the permit or approval was based. 103.4.2 Violation of Code Provisions. The building official may revoke a permit upon determination by the building official that the construction, erection, alteration, repair, moving, demolition, installation , or replacement of the building, structure, electrical, gas, mechanical or plumbing systems for which the permit was issued is in violation of, or not in conformity with, the provisions of this code. 103 .5 Unsafe Buildings or Systems All buildings , structures, electrical, gas, mechanical or plumbing sys tems which are unsafe, unsanitary, or do not provide adequate egress, or which constitute a fire hazard , or are otherwise dangerous to human life, or which in relation to existing use, constitute a hazard to safety or health , are considered unsafe buildings or service systems. All such unsafe buildings, structures or service systems are hereby declared illegal and shall be abated by repair and rehabilitation or by demolition in accordance with the provisions of the Standard Unsafe Building Abatement Code. 103.6 Requirements Not Covered By Code Any requirements necessary for the strength, stability or proper operation of an existing or proposed building , structure, electrical, gas, mechanical or plumbing system, or for the public safety, health and general welfare, not specifically covered by this or the other technical codes , s hall be determined by the building official . Standard Building Code©1994 5 ZONING BOARD OF ADJUSTMENT RULES AND PROCEDURES The Zoning Board of Adjustment hears requ ests for variances and special exceptions, appeals o f Zoning Official decisions, Airport Zoning Board adjustments, floodplain and drainage ordinances variance requests, and PITY ordinance special exceptions. The ZBA is a fact -finding body, and to grant variances it must determine the existence of special conditions other than solely financial , which create an undue hardship for applican ts . Positive action requires an affirmati ve vote by at least four (4) of the five (5) members . Reco urse fr om ZBA decisio ns is to a Court o f Law and app eals must be made wi thin ten (10) days of the decision, which becomes final at Thursday noon after the meeting . The ZBA shall develop an d adopt rules in acco rda nce with State la w and City ord inance to govern t he ZBA and its meetings . L Application. A. Any Variance request, speci al exception, appeal o f a decision of the Zo ni ng Official , or floodplain ordinance varian ce request shall be preceded by the applicant submitting to the Zoning Offi c ial a typed and completed (1) application and (2) request fo rm . B. Applicatio ns and request form s ar e available from the Zoning Offi c ial in the Planni ng Division Office. C . The Zoning Official shall assist the applicant in determining the zoning of the tract and in identifying the applicabl e ordinance section for the application . D . The applicant shall attach an add itional sheet(s) if he cannot fully explain his requ est in the space provided on the request form . E . Additional materials may be required of the applicant such as site plans , elevation drawings, and floor plans . The Zoning Official shall inform the applicant of any extra materials required . F. An applicant shall submit a no n-re fundable fee of $75 .00, payable to th e City of College Station, to defray noti fica tion costs . The $75 .00 shall be given to the Zonin g Offi cial when the C''P1pl eted application a nd request form are submitted G . Appeal of Zoning Official D ec isio n. 1. App eals of Zoning Offi c ial decisions shall be filed within thirty (30) days of th e decisi o n. 2 . The ZBA shall hear the appeal within sixty (60) days after the application and request forms are received by the Zoning Official. 3 . The ZBA shall decide the appeal within a reasonable time . The ZBA ma y reverse or affirm wholly or partly, or may modify the order, requirement, o r decision, of the Zoning Offi cial by a concurring vote of at least four (4) of th e five (5) members . H. The completed application and request form must be received by the Zoning Official before noon on the designated deadline date, which is indicated on the attached Deadline/Meeting Date Wormation schedule. I. When the application and request form are received by the Zoning Official, he shall put the item on the next available ZBA meeting agenda and shall mail and publish all required notices . l The applicant h as the responsibility to verify his item has been placed on a ZBA meeting agenda. IL Notice. A. The Zoning Official shall notify the applicant of the ZBA meeting by certified mail not less than one ( 1) week prior to the meeting. B . The Zoning O ffic ial shall notify p ro perty owners within 200 feet of the p ro perty for which a request is pending of the ZBA meeting by certified mail not less than ( 1) one week prior to the meeting . 1. Such owners shall be determined by the Zoning Official. When deciding which property is within 200 feet, measurements shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the property for which a request is pending to the nearest portion of other properties. 2. Notice by certified mail to such owners shall correspond to the owners' names and addresses as shown on certified tax roles, even if the roles are incorrect or outdated . C. At the applicant's request, the Zoning Official shall notify any interested person of the ZBA meeting by regular mail not less than one ( 1) week before the meeting . D . The Zoning Official shall place a notice of the ZBA meeting in the THE EAGLE prior to the meeting. DI. Meeting. A. Robert's Rul es of Order, newly revised, shall be foll c wed . B . Meetings shall be held the first and third Tuesday of each month at 7 :00 P .M . C. Packets for ZBA members shall be made available by the Zoning Official the Friday before the meeting. D . Minutes. 1. The Planning Technician shall tape record all meetings . Tape recordings of meetings shall be kept for three (3) years. 2 . Minutes of the meeting shall be typed by the Planning Technician in paraphrased form to reflect pertinent points of discussion (in Technician's judgment). No transcript will be made . 3 . Minutes shall be signed by the Chairman after they are approved by the ZBA E. Each item befo re the ZBA must be heard by at least fo ur ( 4) members . F. The ZBA may act on any requ est with or without the ap plicant's presence at the meeting . G . When heari ng requests, this procedural format sh all be followed : Staff re port, ZBA members ask staff questions, publ ic hearing, ZBA di scussion and acti on. H. Public Hearing . l . Witn esses shall be placed un der oath by th e Cha irman using thi s st atement: "Do you swear or affirm to tell the truth in thi s proceeding und er penalties of perjury?" 2 . Witnesses include the appli cant and interest ed persons . I. Motions . 1. Motions shall be made on the Motion Format Form and may be positive or negative . 2 . Negative motions (motions to deny a request) should be made when the ZBA finds no special conditions, undue hardship , or that the spirit of the ordinance will not be preserved . 3 . Negative motions which fail do not imply the request is granted . 4 . Requests are only granted when a positive motion is passed by at least four (4) ZBA members . Requests are denied when a negative motion is passed by a majority of members present. J. Rehearing . 1. When a request is denied , the applicant may ask the ZBA within ten (10) days to consider the request again at a future date . 2 . Within the ten (10) days, the applicant must ask the Zoning Official to put the requ est on the next avail able ZBA meeting ag enda . 3 . Appli cants must have th e ZBA's approval t o present the same or a similar request regarding the same property after denial of such request by the ZBA. ZBA approval to rehear the request requires a motion to rehear, a second to that motion, and passage by a majority of members present. K . If an applicant wishes to appeal a ZBA decision, he must file a petition with a court of record within ten ( 10) days after the date the decision is filed in the Planning Division Office . FOR OFFICE USE ONLY CASE NO.: DATE SUBMflTED: ____ _ ZONING BOARD OF ADJUSTMENT APPLICATION MINIMUM SUBMITTAL REQUIREMENTS: __ Filing Fee of$75 .00 . __ Application completed in full . __ Request form completed in full . __ Additional materials may be required of the applicant such as site plans, el evation drawings, sign detai ls and floor plans . The Zoning Official shall inform the applicant of any extra materials required. APPLICANT/PROJECT MANAGER'S INFORMATION (Primary Contact for the Project): Name -----------------------------------~ Mailing Address -----------------C ity State ----Zip Code _____ _ E-Mail Address ------------- Phone Number Fax Number ----------~ ------------------- PROPER1Y OWNER'S INFORMATION: Name -----------------------------------~ Mailing Address -----------------C ity -----------~ State ----E-Mail Address -------------Zip Code _____ _ Phone Number Fax Number ----------~ ------------------- LOCATION OF PROPER1Y: Address ------------------------------------- Lot Block Subdivision Description if the re is no Lot, Block and Subdivision ----------------------- Action Requested : (Circle One) Current Zoning of Subject Property Applicable Ordinance Section Setback Variance Parking Variance Sign Variance Appeal of Zoning Officia l's Interpretation Spec;al Exception Other ----------- The applicant has prepared this application and certifies that the facts stated herein and exhibits attached ~ereto are troe , correct and complete. Signature and Title ZBA APPLICATION ZBAAPP .DOC 3125199 Date 1 of 2 FOR OFFICE USE ONLY CASE NO.: DATE SUBMTITED: ___ _ SPECIAL EXCEPTION REQUEST I am requesting a special exception for: The substitution of one non-confonning use for another. The enlargement of a non-conforming building or structure. The reconstruction of a non-confonning buildi ng or structure. The parking of vehicles on front lawns in resid ential areas. Present use of property ------------------------------- Proposed use of property ------------------------------ Parking required for existing use Existing parking available ------------------------------ Par king required for proposed use Area of existing structure l\rea of expansion --------------------------------- Cost of reconstruction -------------------------------- Existing lot dimensions ------------------------------~ Existing lot dimensions from structure to: Front property line -------------------- Rear property line --------------------- Side street property line __________________ _ Explain the purpose of this request : The facts stated in this application are true and correct. Applicant SPECIAL EXC EITION REQUEST ISPECRQST.DOC 3n5/99 Date 2 of2 ZONING BOARD OF ADJUSTMENT OCTOBER 20, 1999 1 ZONING BOARD OF ADJUSTMENT A PPEAL OF INTERPRETATI ON A ND APPLICATION OF SECTION 9 A N D SECTION 7.2.D The questions before the ZBA are whether the Zoning Official applied the parking regulations and the side setback requirements properly in the review of the building permits for two new houses at 600 and 604 Welsh. The Zoning Ordinance authorizes the Zoning Official to make interpretations of any provision of the Ordinance ifthe need arises. The Zoning Official is not one particular person but may be any staff member given responsibility for acting in that capacity in a given situation. In making such determinations , the Planning Staff takes into consideration the intent of the ordinance , consistency, and the public interest. Staff members constantly communicate to ensure that each person, when acting in the capacity of Zoning Official, is being consistent with past applications and interpretations . 2 ( This property involves lots 10, 11 , and 29 feet of 12 , Block C, College Park. Ori<f·~ rto.4~ '" l"t'fl. In 1962 the portion of Fidelity running parallel and adjacent to this property was abandoned. These properties are zoned R-1 Single Family. One home has existed on the property for many years. Single family zoning and development surround the property. 3 SECTION 9 -PARKING • PROVIDES FOR MINIMUM STANDARDS FOR: -DIMENSIONS -ACCESS -ISLANDS -MAINTENANCE -LANDSCAPE RESERVES -SURFACING -PARKING LOT LIGHTING Section 9 provides for minimum standards for parking space dimensions, access, islands , parking lot maintenance, landscape reserve area, surfacing requirements , parking lot lighting and temporary parking lot requirements. 4 SECTION 9 -PARKING "In all districts for all uses at the time any building or structure is erected, enlarged or increased in capacity, or at any time any other use is established, there shall be provided off-street parking spaces for motor vehicles in accordance with the requirements specified herein." Section 9 references "In a ll districts for all uses ... ". The majority of the regulations are intended for uses that require parking lots , such as multi -family or commerc ial uses. The p ortions of Section 9 dealing with is lands, parking lot mainten ance , the landscape reserve, p arki n g lot li ghting an d temporary parking requirements are n ot app licab le to this case as these provisions are for multi -family/commercial u ses and no t for single family uses. I will address each part of Section 9 indicating where and how staff has ap pl ied these to single family si te plan review. 5 SECTION 9A -DIMENSIONS AND ACCESS • ILLUSTRATIONS -APRON DIMENSION AND SURFACE -DRIVEWAY RADIUS -REFERENCES CHAPTER 3 -CITY CODE OF ORDINANCES Section 9 .A -Dimensions and Access references illustrations at the end of the section. These are examples. In those illustrations there are graphs depicting concrete driveway aprons in the right-of-way for residential applications. It shows the maximum driveway radius of 10 feet as established in Chapter 3 of the City 's Code of Ordinances (The City 's Code of Ordinances is a codified version of all codes and ordinances. The Zon ing Ordinance is included by reference.) Chapter 3 of the City's Code of Ordinances establishes curb return radius for residential driveways on local streets to be a maximum of 10 feet and a minimum of2.5 feet. Typically single family drives have a radius of2.5 to 5 feet when located on local streets. Chapter 3 also provides for a maximum width for a residential drive approach to be 28 feet measured at the property line with a minimum width of 10 feet. The graphics of Section 9 of the Zoning Ordinance include the Chapter 3 requirements relative to driveway width. These standards are applied to SF uses. 6 7 SECTION 9.2.A.1 • REQUIRES A 9' BY 20' PARKING SPACE FOR ALL USES THAT REQUIRE PARKING • THIS IS USED IN SINGLE FAMILY (SF) SITE PLAN REVIEWS 7 SECTION 9.2.A.2 • REFERS TO OFF-STREET PARKING FOR TRUCK UNLOADING • THIS IS NOT USED FOR (SF) SITE PLAN REVIEWS 8 SECTION 9.2.A.3 • REQUIRES ALL PARKING AREAS TO BE ON THE PROPERTY EXCEPT AS PER CHAPTER 3 WHICH REFERS TO SHARED ACCESS • THIS IS APPLIED TO (SF) USES 9 .2.A.3 intends for all parking and maneuvering areas to be located entirely within the boundaries of the building plot except as set forth in Chapter 3 of the City's Code of Ordinances (this refers to shared access drives.). All single family driveways and parking areas are required to meet this. 9 SECTION 9.2.A.4 • REFERS TO CIRCULATION AISLES AND BACKING ONTO CERTAIN STREETS • THIS IS APPLIED WHENEVER (SF) DRIVEWAYS ARE ON THOSE CERTAIN STREETS --:f>ro\Li~~~~v.Jb cµlu._ l-acLl ctvb e-o l ~e.~ (a. r~ e.,.;..<:Jl J.o aclw a..'t . 10 SECTION 9.2.A.5 • REFERS TO A LANDSCAPE RESERVE AREA • APPLIES TO PARKING LOTS • INDIVIDUAL DRIVEWAYS ARE EXCLUDED • THIS IS NOT APPLIED TO S.F. USES 9.2.A.5 refers to a 24 foot landscape reserve. This is intended for parking lots, not individual residential driveways as driveways are specifically excluded in this section. Exceptions are made for 7 parking spaces to be allowed in this reserve. (These are clearly references to uses that require parking lots as opposed to single family uses.) This particular section is is not applied to single family permits since driveways are excluded and up to 7 spaces are allowed in the reserve area. The result in the same whether applying this section or not. 11 SECTION 9.2.A.6,7,8 • REFERS TO PARKING LOT ISLANDS • THIS IS NOT APPLIED 12 SECTION 9.2.B • REFERS TO OFF PREMISE PARKING LOCATIONS • THIS IS NOT APPLIED TO (SF) USES 9 .2.B references off-premise parking locations and the requirements for such. This is intended for facilities that require parking lots and multiple spaces and allows for some to be located off-premise under certain circumstances. It has never been applied to a single family residence. 13 SECTION 9.2.C • REFERENCES PUBLIC PARKING LOTS AND IS NOT APPLICABLE 9.2.C. Every Parcel Of Land Hereafter Used As A Public Parking Area, Including Commercial Parking Lots , Automobile, Farm Equipment, Mobile Home, Trailer Or Other Open-air Sales Lot, Shall Be Developed And Maintained In Accordance With The Requirements In This Section. This is not applied to SF uses. 14 SECTION 9.2.D • REFERS TO SURFACING REQUIREMENTS AND STATES: -"EXCEPT AS OTHERWISE PROVIDED, ALL OFF-STREET PARKING AREAS SHALL BE CONSTRUCTED ... " -SECTION 6 OF CH. 10 ADDRESSES DRIVEWAY SURFACES FOR PARKING VEHICLES IN RESIDENTIAL AREAS -THIS IS APPLIED TO S.F. DRIVEWAY SURFACES 9 .2.D references surfacing requirements and states ; "Except as otherwise provided all off-street parking areas shall be constructed ... " Goes on to describe the amount of base material and surface materials. This is applied to multi-family and commercial parking lots. Section 6 of Chapter 10 of the City's Code of Ordinances is the code otherwise provided relative to surfacing for single family driveways and this section is applied. Section 6 is what we refer to as the Parking in the Yard Ordinance. It defines driveways as any paved concrete, asphalt, gravel and/or other impervious surface on a lot designed to provide direct access for vehicles between a street and private garage , carport or other parking space ... located on a lot developed with a residential dwelling. 15 SECTION 9.2.E • REFERS TO LIGHTING FOR OFF- STREET PARKING AREAS • THIS IS NOT APPLIED TO (SF) USES 16 SECTION 9.2.F • REFERS TO DRIVE SURFACES FOR TEMPORARY AND/OR PERMANENT DRIVES REQUIRED FOR EMERGENCY ACCESS • THIS IS APPLIED BY THE CITY ENGINEER AND IS NOT INTENDED FOR S.F. USES 9.2.F references drive surfaces for temporary and/or permanent drives required for emergency access and is applied by the City Engineer. This is not applicable to single family site reviews because the street acts as the drive for emergency service provision. 17 SECTION 9.2.G • REFERS TO TEMPORARY PARKING LOTS • THIS IS NOT APPLIED TO (SF) USES 18 SECTION 9.3 • REFERS TO THE NUMBER OF PARKING SPACES REQUIRED FOR EACH USE • THIS IS APPLIED TO (SF) USES • TWO SPACES ARE REQURIED Refers to the parking generation table on pg. 9-11 19 ersona Private Sch oo l or Comme r cia l Stu di o op Retail Sales & Service I 00 S .F . .0 250 S .F . .0 Restaurant 65 S .F . .0 (includes Fast Food Restaurant WITHOUT drive through) (A.s a m ended by O rdinan c e No . 2 0 29 , daud Augus t 26 , 1994) Restaurant (with Drive -thru facility) Rooming/Bo arding House Sales Dirp l ay Single Fa mi l y Residence Shopping Center** (75,000 S .F . or l eu) Shopping Ce nter•• (More than 75 ,000 S .F .) Townhouse Theater Truck Te rm in al Veterinary C linic I 00 S .F. Perron 250 S .F . DU 15 0 S .F . 200 S .F . DU Seat .0 .0 .0 2 .0 1.0 1.0 2 .0 .2 5 300 S.F . 1.0 As deter mined b y the Comm inion (As amtnded by O rdinanct No . 2 00 2 , do t ed Ftb ruary 25 , 1993) Wa r ehouse 1000 S .F . 1.0 NOTE : DU -Dwelling Unit ~ S .F . -Square Feet of floo r space . Gener ators of traffic not listed above to be determined by the Co mmi ssion . • Parking spacer within service bays shall be credite d toward off-rtreet parking requi.rements . No more than twenty-five (25%) percent of any sh o pping cente r square footage rhall be utilized for r estaurants , nightc lub s , taverns, bars or theaters un l ess additional parking is provided i n accordance w i t h the above requirements for that square footage o f such uses in excess of25% ." 21 APPLICATION OF THE PREVIOUS SECTIONS • RADIUSOFDRIVEWAY • SURFACE AND WIDTH OF APRONS • SURFACE OF DRIVEWAY • NUMBER OF SP ACES • DIMENSION OF SPACES ~ ~~Ert'S of' ~J-i·en 9 ~ tlA..L ~~~CJ u~ Cert (QJ.//'- -~ \(e_ '((}J.& .. t.\~5 _..., ~ ~ k c..t2- -~ v~~~ -*?~ ___,, ci·MWA~~ o4 ~~ 20 13' - Both new permits issued for 600 and 604 Welsh we:a=e iBtorprotul M meet• the applicable requirements: ll H1u1s e: Location and radius of the curb return was not shown on the site plan, BUT contractor was advised of radius requirements on 9- 28-99. Standards were FAXed by B.O. and discussed by phone. Staff inspect radius of 2.5 to 5 feet and see it is contained on site. No CO will be issued w/o compliance. Driveway aprons are shown as all weather surfaces w/in ROW as provided for in Zoning ordinance and Chapter 3. Surface of driveway on private property is shown to be crushed limestone , which is a private drive standard previously approved by the City Engineer. This standard has been allowed for years. 2 spaces are required by the Zoning Ordinance. Dimensions of the driveways have the minimum width and depth for two parking spaces. It is customary that the two spaces required for a single family use may be side by side or end to end as the spaces and vehicles are under control of the property owner. This has been a long standing interpretation for single family residential uses . 21 SECTION 7.2.D -AREA REQUIREMENTS • SIDE SETBACK REQUIREMENTS -R-1 SINGLE FAMILY ZONE • 7.5 FEET • NOTE C -"ZERO LOT LINE CONSTRUCTION Section 7 .2.D refers to Table A that sets out the setback, lot size and height restrictions based on the applicable zoning district. The portion being appealed is the application of the side setback requirement for the R-1 zone. For single family zones Table A requires either an absolute 7.5 foot side setback or allows for zero lot line construction under certain circumstances 22 TABLE A-NOTE C "ZERO LOT LINE CONSTRUCTION OF RESIDENCES IS ALLOWED WHERE PROPERTY ON BOTH SIDES OF LOT LINE IS OWNED AND/OR DEVELOPED SIMULTANEOUSLY BY SINGLE PART. DEVELOPMENT UNDER LOT LINE CONSTRUCTION REQUIRES PRIOR APPROVAL OF THE ZONING OFFICIAL. IN NO CASE SHALL A SINGLE FAMILY RESIDENCE BE BUILT WITHIN 15 FEET OF ANOTHER BUILDING." Note C of Table A states: " "Zero lot line construction of residences is allowed where property on both sides of lot line is owned and/or developed simultaneously by single party. Development under lot line construction requires prior approval by the Zoning Official. In no case shall a single family residence be built within 15 feet of another building." Prior approval is required so that staff can ensure there will be 15 ' of separation in the event variable setbacks are used. Had the provision required a min. 15 ' side yard opposite a zero side yard, there would be no implied flexibility. The ordinance intent was for flexibility or the provision would have read differently. 23 INTERPRETATION • LESS THAN 7.5' AND AS LITTLE AS 0 • IMPORTANT HEALTH & SAFETY CONSIDERATION IS 15' SEPARATION This section has been interpreted over the years by many different people but has consistently been interpreted to allow less than the 7 .5 foot setback and as little as a 0 foot setback. The important health and safety consideration is that no residence is closer than 15 feet to another. This is why it is imperative that property on both sides of the lot line in question be under one person's control when the decision is made to apply lot line construction. This separation provision is a critical factor in the interpretations as made to date. 24 In this case there is an existing house in the center of the property. The property has consisted of 2 lots, each 50 foot wide as f riginally platted in 1941, a portion of a 3rd lot and 1/2 of the Fidelity ROW abandoned in 1962. This property contains 154.03 feet of frontage. Under the Zoning Ordinance the minimum lot width in R-1 is 50 feet measured at the front setback line. With this amount of frontage Mr. Nagle chose to build two additional houses. 25 Following established applications of lot line construction Mr. Nagle met the required setback. 26 PROPERTIES ON WELSH • LOT LINE CONSTRUCTION -0' AND 15' ON ONE SIDE -3.5' AND 11.5' ON OPPOSITE SIDE In this case Mr. Nagle opted to use Note C of Table A to provide 0 foot and 15 foot setbacks for one side of the existing house and 3.5 foot and 11.5 foot setbacks for the opposite side. This application is consistent with the City's long standing application of this provision. 2 7 13' -, ~· v )._ii'i! t~~ ~ ~ 28 EXAMPLES OF LOT LINE CONSTRUCTION • EASTMARK Variable • PEBBLE CREEK 0' I 15' • GRAND OAKS 0' I 15' • TWO LINCOLN PLACE 0' I 15' • PLEASANT FOREST Variable These are examples of recent developments that have built under lot line construction and received approval for both o I 15 and variab le setbacks. In all cases there is 15 feet between residences. 29 LOT LINE CONSTRUCTION • 0' I 15' -MAXIMIZE USEABLE SIDE YARD AREA •VARIABLE -WORKW/ SITE FEATURES -WALL MAINTENANCE -ROOF OVERHANG I WATER RUN-OFF -FLEXIBILITY IN DESIGN AND LAYOUT • BLDG. CODE LIMITS OPENINGS • FIREWALL & EXIT REQUIREMENTS It has been more common for builders/developers to use the 0/15 foot combination under lot line construction. Because it maximizes the amount of useable side yard area by containing it all on one side . However, there are builders/dev elopers who choose to use a variable setback because : •It allows one to work with site elements such as topography and trees; •Provides room for sidewall maintenance and room for roof overhangs (water run-off); The alternative is to grant maintenance and overhang easements . •Allows flexibility in design . •The Building Code limits the amount of openings that can be in a wall based on construction type and distance from the property line. Bedrms could not be located on a PL because the fire exit req . couldn 't be met. •The Code requires specific firewall requirements within certain distances . It requires a one hour rated firewall when wood construction is 3 feet or closer to the property line . This language in the Building Code anticipates the use of the variable setback as there are specific regulations for structures built closer than 7.5 feet to a property line . 32 SIMILAR APPEALS t'/ STAFF FOUND NO PREVIOUS APPEALS OF LOT LINE CONSTRUCTION OR SINGLE FAMILY PARKING REQUIREMENTS 31 ZONING BOARD AUTHORITY • SECTION 15.6 STATES: THE BOARD MAY REVERSE OR AFFIRM, WHOLLY OR PARTLY, OR MAY MODIFY THE ORDER, REQUIREMENT, DECISION OR DETERMINATION APPEALED FROM AND MAY MAKE SUCH ORDER, REQUIREMENT, DECISION OR DETERMINATION AS OUGHT TO BE MADE, AND TO THAT END SHALL HA VE THE POWER OF THE ZONING OFFICIAL FROM WHOM THE APPEAL IS TAKEN. 32 ZONING BOARD DECISION SECTION 15.7 REQUIRES THE CONCURRING VOTE OF FOUR (4) MEMBERS OF THE BOARD OT REVERSE ANY ORDER, REQUIREMENT, DECISION, OR DETERMINATION OF THE ZONING OFFICIAL, TO DECIDE IN FAVOR OF THE APPLICANT OR ANY VARIATION IN THIS ORDINANCE. 33 ZONING BOARD DECISION THE BOARD'S DECISION WHETHER TO UPHOLD OR OVERTURN, WILL FORM BASIS FOR ALL FUTURE DECISIONS RELATING TO THE APPLICATION OF THESE TWO SECTIONS FOR ALL SINGLE FAMILY ZONING DISTRICTS. 34 IMP ACT ON BUILDING PERMITS ALREADY ISSUED • THESE PERMITS WERE ISSUED BY CONSISTENTLY APPLYING THE RULES IN EFFECT AS THEY HA VE BEEN APPLIED TO OTHER PROPERTIES WITHIN THE CITY. • IF THE ZBA OVERTURNS THESE APPLICATIONS, A RETROACTIVE APPLICATION OF AN ORDINANCE DUE TO A CHANGED INTERPRETATION IS A LEGAL ISSUE. 37 ZONING BOARD OF ADJUSTMENT • DETERMINE JURISDICTION • SPECIAL MEETING REQUEST INTRODUCTION: An application has been received in our office requesting a special meeting to hear an appeal to decisions made by the Zoning Official. This is in reference to a minor plat and two single family building permits issued in the 600 block of Welsh. There are several items that the applicant is requesting be heard by the ZBA. As you know the Board's charge is to determine questions of a factual nature relative to the application of the zoning ordinance. It is important that the Board discuss and/or take action only on items that are within its purview. First, I'll present the items mentioned in Mrs. Miller's app. And Mr. Esmond's letter and give the Board guidance as to which are within your purview to hear. Then I will give you the options you have for a special meeting. 1 BOARD JURISDICTION • OFF-STREET PARKING • ZERO LOT LINE • COUNCIL ACTION 7-23-98 • SURVEY I BUILDING PERMIT • PROJECT DEFICIENCIES • DEED RESTRICTIONS • CITY POLICIES :J-0 ~ ~e;-_ W-~dlMi~ a01Ji""' 2 BOARD JURISDICTION --> • OFF-STREET PARKING • ZERO LOT LINE • COUNCIL ACTION 7-23-98 • SURVEY I BUILDING PERMIT • PROJECT DEFICIENCIES • DEED RESTRICTIONS • CITY POLICIES UNCLEAR WHAT IS BEING APPEALED. Ordinance calls for 2 spaces per house. Areas shown for parking meet ordinance dimensions for such. 3 BOARD JURISDICTION • OFF-STREET PARKING • ZERO LOT LINE • COUNCIL ACTION 7-23-98 • SURVEY I BUILDING PERMIT • PROJECT DEFICIENCIES • DEED RESTRICTIONS • CITY POLICIES Unclear from application exactly what is being appealed. Ordinance allows lot line construction where property on both sides of a lot line is owned and/or developed by a single party. Requires approval of the Zoning Official. In all cases no less than 15 feet must be between residences and other buildings. Staff has interpreted lot line construction to allow for a variable setback from the property line as long as there is 15 feet between buildings. If this variable setback application is being appealed THIS IS WITHIN THE BOARD'S PURVIEW. When a meeting is scheduled, the staff report will address the application of this section of the ordinance and the applicant should explain how the staffs application of the ordinance is invalid. The application submitted in writing by Mrs. Miller does not explain in sufficient detail what, if any, error was committed in the application of the section 4 BOARD JURISDICTION • OFF-STREET PARKING • ZERO LOT LINE ---i--} • COUNCIL ACTION 7-23-98 • SURVEY I BUILDING PERMIT • PROJECT DEFICIENCIES • DEED RESTRICTIONS • CITY POLICIES This is not within the Board's jurisdiction to consider. We believe the item being referenced is a report that was presented to Council. Staff is unsure as to which items this appeal is referring, but the ZBA has authority only over the Zoning Ordinance and not plans or Council actions. 5 BOARD JURISDICTION • OFF-STREET PARKING • ZERO LOT LINE • COUNCIL ACTION 7-23-98 ---+---> • SURVEY I BUILDING PERMIT • PROJECT DEFICIENCIES • DEED RESTRICTIONS • CITY POLICIES This is not within the Board's purview to consider. Surveyor's and applicant's signatures on plats indicate that ownership and dimensions are true and accurate. A discrepancy between surveyors or an individual's argument over a survey is neither within the City's nor the Board's jurisdiction. This is a private matter between parties. The staff was unaware and still is unaware of any misrepresentation relative to ownership or dimensions on the plat in question. The ZBA has no authority over the issuance of building permits 6 BOARD JURISDICTION • OFF-STREET PARKING • ZERO LOT LINE • COUNCIL ACTION 7-23-98 • SURVEY I BUILDING PERMIT ---1--~· PROJECT DEFICIENCIES • DEED RESTRICTIONS • CITY POLICIES "Deficiencies in the project which adversely impact access, parking, drainage and existing structures." It is not clear what the appeal is relative to these issues. Driveway access is not within the Board's purview. Parking numbers and dimensions are within the Board 's purview. The City's drainage ordinance is not applicable to single family building permits 7 BOARD JURISDICTION • OFF-STREET PARKING • ZERO LOT LINE • COUNCIL ACTION 7-23-98 • SURVEY I BUILDING PERMIT • PROJECT DEFICIENCIES .__i---:::>...-' • DEED RES TRI CTI 0 NS • CITY POLICIES The City is not given authority by state statute to enforce deed restrictions and cannot do so. 8 BOARD JURISDICTION • OFF-STREET PARKING • ZERO LOT LINE • COUNCIL ACTION 7-23-98 • SURVEY I BUILDING PERMIT • PROJECT DEFICIENCIES • DEED RESTRICTIONS ..--i---) • CITY POLICIES There are policy statements in the City's comprehensive plan which mention preserving existing neighborhoods and not increasing densities. However, these policies have not been fully implemented. There is no ordinance in place at present that would preclude or prohibit replatting or building single family houses on lots that meet the subdivision regulations and the zoning ordinance. An allegation of a violation of city policy is not within the Board's purview to consider. 9 BOARD JURISDICTION • PARKING -------------------? ? • ZERO LOT LINE ---------YES • CC ACTION 7-23-98 ------NO • SURVEY I BP---------------NO • DEFICIENCIES------------?? • DEED REST.----------------NO • CITY POLICIES-----------NO 10 Od-. zo w~. oc). zz f .O... od· zs ~ ~"e.s.. Dd. ;;l.I ~~. vd-· "l."t fr i. }..b\j · I M_dY1 . SPECIAL MEETING REQUEST • MET DEADLINE FOR 11-2 • NOTICE REQ. -3RD WK. OCT. • 9-19 AGENDA-FULL • 2 WEEK WINDOW (9-20TO11-1) Regarding the request for a special meeting. The applicant met the deadline for the upcoming November 2°ct 1999 meeting. The options to meet earlier than this are as follows: It will not be possible to meet notification requirements and have a special meeting before the next regularly scheduled meeting of October 19th. To try to set one any earlier would not allow sufficient time for property owners to receive notice as per the Board Rules and Procedures. The October 19th meeting already has a full agenda for consideration of applications that did meet the proper deadline. It is possible to have a special meeting and meet proper notification !>+/ \ between October 19th and November 2°ct with the exception of October ,;)...l \.P('{l.) 2gth. There is already a joint P&Z I City Council meeting that day which requires staff attendance. 11 SPECIAL MEETING REQUEST • ZBA ACTION DETERMINES CORRECT APPLICATION OF ZONING ORDINANCE , NOT VALIDITY OF BUILDING PERMITS • INJUN CTION OR OTHER ACTION TO CORRECT IS SUBJECT TO COUNCIL ACTION Any determination made by the Board re lative to this appeal will not affect the plat or the building permits that hav e been approved and issued. Any injunction or other action to correct any error in interpretation is subject to Council action. The Board 's charge is to decide on the Zoning Official 's application of relevant sections of the Zoning Ord. and not whether to revoke a building permit or how any other ordinance is applied. If the Board determines that the Zoning Official's interpretation of what constitutes zero lot line construction w as incorrect, then future applications w ill reflect this new interpretation. 12 BOARD ACTION • NOT A PUBLIC HEARING • MAY ASK APPLICANT FOR CLARIFICATION Again, item was not advertised as a public hearing. It is solely for Mrs. Miller to request a special meeting to appeal certain items within the Board's jurisdiction. Board may ask for clarification from either Mrs. Miller or Mr. Esmond to make this determination. 13 BOARD JURISDICTION # k· ARKING -------------------? ? • ZERO LOT LINE ---------YES • CC ACTION 7-23-98 ------NO • SURVEY I BP---------------NO • DEFICIENCIES ------------?? • DEED REST.----------------NO • CITY POLICIES-----------NO 14 CITY OF COLLEGE STATION PLANNING DIVISION POST OFFICE BOX 9960 1101 TEXAS AVENUE COLLEGE STATION , TEXAS 77842-9960 (409) 764 -3570 MEMORANDUM TO: Zoning Board of Adjus FROM: Jane R. Kee, City Pl er RE: Request for Special Mee · ng DATE: October 4, 1999 An application has been received in our office requesting a special meeting to hear an appeal to a decision made by the Zoning Official. This is in reference to a minor plat and two single family building permits issued in the 600 block of Welsh . There are several items that the applicant is requesting be heard by the ZBA . The legal and planning staffs have determined that several of the items are not within the Board's purview. The purpose of this memorandum is to advise the Board of this. As you know the Board's charge is to determine questions of a factual nature relative to the application of the zoning ordinance. It is important that the Board discuss and/or take action only on items that are within its purview. The applicant, Mrs. Miller, in this appeal lists several items. The statements in quotations are from the application and the statements in italics are staff comments. 1. "Off-street parking requirements not met." It is unclear what the applicant is referencing by this statement. 2 . "Zero lot line" This is within the Board's jurisdiction. The staff report, when prepared, will address the application of this section of the ordinance and the applicant should explain how the staff's application of the ordinance is invalid The application submitted in writing by Mrs . Miller does not explain in sufficient detail what, if any, error was committed in the application of the section. 3. "Does not comply with Council action on July 23, 1998." This is not within the Board's jurisdiction to consider. We believe the item being referenced is a report that was presented to Council. Staff is unsure as to which items this appeal is referring, but the ZBA has authority only over the Zoning Ordinance and not plans or Council actions. 4. "I am appealing the surveys and/or building permits issued for lots l OR, 11R,12R -600 Welsh." This is not within the Board's purview to consider. Surveyor's and applicant's signatures on plats indicate that ownership and dimensions are true and accurate . A discrepancy between surveyors or an individual's argument over a survey is neither within the City's nor the Board's jurisdiction. This is a private matter between parties. The staff was unaware and still is unaware of any misrepresentation relative to ownership or dimensions on the plat in question. The ZBA has no authority over the issuance of building permits. Although the Mrs . Miller submitted the application herself, it is our understanding that Mr. Steven Esmond is representing her. In a letter received from him he states 4 items that are being appealed. They are: 1. "Appealing the Zoning Official's approval under Section 7.3.D ." This section references Area Requirements for the R-JA district. The property in question is zoned R-1 but I believe this is an unintentional error on the part of Mr . Esmond. The appropriate section is 7.2.D. This references Table A which outlines setbacks for each zoning district and where Note C provides for zero lot line construction. This is within the Board's purview to consider. 2. "Deficiencies in the project which adversely impact access, parking, drainage and existing structures." It is not clear what the appeal is relative to these issues. Driveway access is not within the Board's purview. Parking numbers and dimensions are within the Board's purview. The City's drainage ordinance is not applicable to single family building permits. 3 . "Violation of the deed restrictions ." The City is not given authority by state statute to enforce deed restrictions and cannot do so . 4. "Violation of City policy regarding protection of historic areas ." There are policy statements in the City's comprehensive plan which mention preserving existing neighborhoods and not increasing densities . However, these policies have not been fully implemented._ --There is no ordinance in place at present that would preclude or prohibit replatting or building single family houses on lots that meet the subdivision regulations and the zoning ordinance . An allegation of a violation of city policy is not within the Board's purview to consider. Any determination made by the Board relative to this appeal will not affect the plat or the building permits that have been approved and issued. If the Board determines that the Zoning Official's interpretation of what constitutes zero lot line construction was incorrect, then future applications will reflect this new interpretation. Regarding the request for a special meeting. The applicant met the deadline for the upcoming November 2°d 1999 meeting. The options to meet earlier than this are as follows: It will not be possible to meet notification requirements and have a special meeting before the next regularly scheduled meeting of October 19th. To try to set one any earlier would not allow sufficient time for property owners to receive notice as per the Board Rules and Procedures . The October 19th meeting already has a full agenda for consideration of applications that did meet the proper deadline. It is possible to have a special meeting and meet proper notification between October 19th an d November 2°d with the exception of October 28 th. There is already a joint P&Z I City Council meeting that day which requires staff attendance . This item is not and does not require a public hearing . The Board may ask questions of the applicant, Mrs. Miller and her representative Mr . Esmond , to help determine the two questions of Board jurisdiction and whether to set a special meeting. The public hearing will be held once a meeting is scheduled for the relevant appeal and at that time other interested persons will be able to address the issue . Attachments: Mrs . Miller's application Letter from Steven E. Esmond E-mail from Mrs . Miller to ZBA Correspondence between Jane Kee and Mr . Esmond FOR OFFICE USE ONLY CASE NO.: DATE SUBMirr£o: ___ _ ZONING BOARD OF ADJUSTMENT APPLICATION MINIMUM SUBl\1ITTAL REQUIREMENTS: _Filing Fee ofS75 .00. _Application completed in full . _ Request fonn completed in full. _Additional materials may be required of the applicant such as site plans, elevation drawings, sign details and floor plans . The ZOning Official shall infonn the applicant of any extra materials required . APPLICANT/PROJECT MANAGER'S INFORMATION (Primary Contact for the Project): Name ([\D£0'\4 \_ .. re\ l \\e r2 Mailing Address 'f, l> 1 Ge l.e c'\S:.€ ti City 0o llrJe S:+;:;; State --Y--n., Zip Code 1 :J 'X (/ 0 E-Mail Address V\ 0 t')Y\·, l Ci r-\ C-4. ne cl Phone Number k, q k .--<{ L/S 'f Fax Number b q L{ " V 3 .:3 Y PROPERlY OWNER'S INFORMATION: Mailin g Address ----------------Cicy __________ ~ State ___ _ E-Mail Address ------------Zip Code ____ _ Phone Number Fax Number --------------------------- LOCATION OF PROPERlY: Address (1 Q t> LJ e.. l S h. Lot"-1 l> /u /12 Block {'_.._..___ __ ~ &01. ~.aj;~ Subdivision . c 0 ! I edZ-I Ci.A K l2e .S.L{ bJ I U&"t J\ Action Requested : (Circle One) Current Zoning of Subject Property Applicable Ordinance Section Setba.Gk Variance Parking Variance Sign Variance f.Z \ \~ , :Appeal of Zoning Official's Interpretation Special ~xception Oilier ________ ~~ The applicant has prepared this application and certifies that the facts stated here in and exhibits attached ~e reto are true, correct and complete. p©M»A £, (\\\ \laf(1 ZBA APPLICATION ZBAAPP .DOC 3125/'99 Date 1of2 ~-w: OlllGl STATION FOR OFFICE USE ONLY CASE NO.: DATE SUBJ.\1lTTED: __ _ APPEAL OF ZONING DECISION REQUEST I believe the Zoning Official has misinterpreted Section q -{ S , Ordinance 1638 . The misinterpretation is: C) b b s \-r e e t 0 11)'.._ KI "A {" e '} u l .... ~ me.d.i t--.c:> =1 (\ '\ e.± Other facts supporting my opinion are (attach additional sheets if necessary): ~~ ~\s\ ,· ..... ~ ~t> ""e oC.. Cs> Co \..0-e\sh ,\$ siqn"'\ bi ca o ~\\A °"' ~ '\'.:" " .\ e r::. :l: ,-ta t l 1 ~ L J-o r i c -0 .,-,' 1 \ .\-;_,,,,, \ 'l S b ki '1 'rh Ct k ( \ t.L._,,~ b n. Lev. 'I. e ~ J. c~"-"' ~,,,., . c(,'--",,. n..J 1 'i . ':! _ " ¥ llVl. 1 fLl ~ \ 'V ,· nq ~QM. , J. s. ~ =t "c\ u.A ~ ~ w ~~ n ~ t. C tVv;> t:lhl.... C o u n:\ t' J ~ e 1' \ e..:t\ ~ n '\ a.\/\ l. f'Q._O tq Cl "' \ :Si t\1 ll :U>o S ( o .. \ ~ h d\ " • ~Q <? h ~ IV-. 0 ''ib ~~ m~ 6 ' ~ v._\o..\ nM4 tA" ~ ~~~~~~{\Q~ :r!:;:::~ 3r~\~~:·:M ; ' .. \ I ":) e. ~ "'0 ()....(__ ~~~-~,\\~ Appl icant ZBA APPEAL \J E' e c\ '\ <'.' s \ r \ c--.\: l DECRQ ST.DOC 3125199 \. c..:._ r--.. ( . . r Q_ ~ \.) \:) €. \ ''°' c) l\ ~ (t_)~ ~ \ CJ \'CA -\<? c::{ 2 of 2 U!:l/3U/lHI .Lv.uv •1cwsrovvn Steven E. Esmond,. P.£., R.P.L.S. Senior Engineer sesmond~kwbes.com September 3.0. 1999 Ms.Jane Kee Zoning Official City of College Station P.O. Box 9902 College Station, TX 77842 Re: Replat of Lots 10, 11, & 12, College Park Subdivision Dear Ms. Kee: KW Brown & Associates, Inc. 50 I Grciham Road · · College Station. Texas 77845 . · 409 • 6ci ·O.n8o . • 888 • 015. 0063 . Fax: 40'1•690 • 7310 WINW.kwbes.com I have been retained by Ms . Norma Miller, in my capacity as a land surveyor, to assess the technical issues with regard to the plat and zoning issues in the above matter. Under i:eparate cover and pursuant to Section · l S of tho Zoning Ordinance, Mrs . Miller has submitted to your office a check for $75 along with a completed application to be placed on the ZBA agenda. This is a request fo r a special or emergency meeting of the ZBA . We urge that this request be con:;idered promptly in light of construction activity currently underway. We also request that you authorize the Building Official to suspend further construction work until the issues in this matter have been resolved . The appeal to ZBA includes : 1. ~ppealing the Zoning Official's approval under Section 7.3.D. 2 . Deficiencies in the project which adversely impact access, parking, drainage, and existing structures . 3. Violation of the deed restrictions . 4. Violation of City policy regarding protection of historic areas. Section 15.5 says that •any aggrieved person• may appeal to the ZBA. The applicant, along with at least one additional adjacent property owner, believe they are aggrieved . I also have the assurance of yourself and the City Manager that you are willing to work with Mrs. Miller in getting this matter resolved. Therefore, a special or emergency meeting of the ZBA is requested. Please call me if you have any questions. I look forward to receiving notification from you o :f the upcoming ZBA meeting. Thank you very much. Very truly yours, KW BROWN & ASSOCIATES, INC. ~1-M Steven E. Esmond, P.E., R.P.L.S. Office Manager Scientists • Engineers • Planners Burbank • Co ll ege Station • Houston • Victo ri a • Phoenix • Lo 9 an • Mexico Ci ty From: •Nonna Miller" <nonnil@tca .net> To: ·connie Hooks• <chooks@ci .college-station .tx.us>, •colleen Kavanagh• <ckavanagh@theeagle.com> Date: 9/29/99 3:39PM Subject: Misguided Power and the Death of a Neighborhood-Connie, please distribute to Tom , Mayor and council, P&Z and ZBA Sitting here today, watching the bulldozer mercilessly taking down beautiful old trees, I realized how much at your mercy we all are. That has to be true because we have been power1ess to stop this murder. Three crepe myrtles are gone. A young pear tree and a very old one that came from the A&M Campus, and the most glorious of all chinaberry tree, many years old that fonned a perfect canopy. All felled willy-nilly, because your Planning office has had complete control of this project since April , and we, the homeowners around the neighborhood, knew nothing of It until 2 weeks ago. Mayor Mcllhaney, no more false promises about preserving historic neighborhoods. This is an historic neighborhood . You don't care. Planning doesn't care. Your city planner and director of development services have been after the Southside area for a long time. This Is the first major step, and It has taken flawed surveys, altered plans, changes in everything possible. I was denied a carport because of deed restrictions. Now I learn we have no deed restrictions. I'm a lot smarter now than I was then. This is the second time in my 45 years in this home that I have been reduced to tears because trees were being eliminated . To the west of me , those were cut down because they were •old and ugly: Well , I'm •old and ugly• too, and yes, this has cut me down. Now I know what it means to feel helpless and hopeless, thanks to one city staffer who has more power . than any one person should ever have. Even some of her employees question the validity of the building pennit. Multiple surveys????? I will gladly pay the $75 filing fee to bring this before the ZBA, but to what avail. It would be mid-Nov. before I could be heard, and Kee says there is no possibility of an emergency meeting . Why not? She is the Zoning Official? The 2 four-bedroom houses could be pretty much built by mid-November. I regret that even one cent of my tax dollars goes to her salary. Her abuse of power goes far beyond the scope of the original intent of her job description and her position . ~-~ r CITY OF COLLEGE STATION ~ w DEVELOPMENT SERVICES DEPARTMENT Post Office Box 9WfJ 1101 Texas Avenue College Station. Texas 77842-0960 Mr. Steven E. Esmond, P.E., R.P.L.S Office Manager KWBrown & Associates, Inc. 501 Graham Road College Station, Texas 77845 October 1, 1999 Dear Mr. Esmond, (409) 764-3570 I am in receipt of your letter concerning Norma Miller's request to be heard by the Zoning Board of Adjustment. Mrs. Miller's application was received on 9-29-99. An item will be placed on the upcoming ZBA meeting (Tuesday October 5, 1999) for the Board to consider two things; first, what parts, if any, of the appeal are within their purview to hear and second, whether they will be willing to set a special meeting to hear any relevant items or whether they prefer to use a regular meeting time. In the event that a special meeting is approved it will be scheduled only with sufficient time for proper notification to all parties, including the property owner and property owners within 200 feet of the subject lots. Sincerely, City Planner ··sul/ding a Better City in Partnership with You· ,,. NORMA MILLER, H ELEN PUGH, BOBBY MIRZA, AND MRS . H .A . LUTHER ,'-THROUGH"HER AUTHORIZED AGENT, MICHAEL LUTHER , INDIVID UALLY AND ON BEHALF OF HOMEOWNERS IN THE COLLEGE PARK SUBDIVISION , C OLLE G E STATION, TEXAS V. NELSON NAGLE AND STYLECRAFT BUILDERS, INC. § § § § § § § § § § § § § AGREED ORDER ti.. OF BRAZOS COUNTY , TEXAS 85 TH JUDICIAL DISTRICT On October 2o --, 1999 , the Court co n s id ered a n Applicati o n of Plaintiffs fo r Tempo rary Injunct io n o n the ir ve ri fied Petition after due notice to D efendam s of the iss uance of a Temporary R es t raining Order h e re in . Pl ai ntiffs and D efe ndants have agreed to the entry of thi s Ord er as evide nced by th e s ignatu r e of their r espect ive atto rneys he r eto. Ba s ed on th e ag reement of the p arties , the Court finds that Pl ai ntiffs a r e enti tl e d to the Temporary Injunc tion as gra nted in thi s Order a nd as requested in Pl a intiffs' verified Applicat io n for T e mpora r y Injunction. IT IS, THEREFORE , ORDERED that the T e mpora ry Injunc ti on reques ted be and 1s h e reby granted a s reques ted . Pending final hea rin g and dete rmination of thi s c ause , it is O RD ERED that D efendant , Nel so n Na g le a nd Sty lecraft Builders, Inc. are re s tra in ed a nd e nj o in ed from proceed ing with co n stru ct io n of the two p roposed residences on Lot lOR and Lot 12 R , Bl ock C, R es ubdi v is ion of Co ll ege P ark , Co ll ege Station , Texas, as a uthori zed in th e construct ion permit issued by the City of Co ll ege Station for L ot lOR a nd L ot 12R , Block C, R es ubdi visio n of Co ll ege Park, College Station , Texas. It is further ORDERED that the Temporary Injunction as to Defendants , Nelson Nagle and Stylecraft Builders, Inc. shall not restrain and enjoin Defendants from constructing a privacy fence along the boundary line of Lots lOR , Lot 1 lR, and Lot 12R, . . . . . . . •, ~ ; . . . . ,:. .. ~. ' . ... . Block C, Resubdivision of College Park, College Station, Texas, during the pendency of this suit. It is ORDERED that the good and sufficient bond in the amount of $5,000 filed with the Clerk for the issuance of the Temporary Restraining Order shall serve as the bond for the issuance of the Temporary Injunction . It is furthered ORDERED that a trial on the merits of this action is set for As the parties have agreed to the entry of this Order, no writ of injunction shall be issued by the Clerk of this Court. Upon request by Plaintiffs, the Clerk of this Court is directed to issue a temporary injunction that conforms with this Order and all legal requirements if such writ of injunction is deemed necessary by Plaintiffs . SIGNED on this the 20 ~ day of ~JI 2 \ \ ' 1999. E PRESIDING APPROVED AS TO FORM AND SUBSTANCE : . ~ · ... L; ...... A .<•· WILLIAM STEVEN STEELE State Bar No . 19104700 Davis & Davis P.O. Box 3610 Bryan, Texas 77805 (409) 776-9551 Payne, Watson, Kling, Miller & Malachek, P .C . 3000 Briarcrest Drive, Suite 600 Bryan, Texas 77802 (409) 776-9800 Attorneys for Defendant, Nelson Nagle --b-~9=-BILL THORNTON, JR. State Bar No. I 'I qq 7-i e-o 4343 Carter Creek Parkway, Suite 100 Bryan, Texas 77802 (409) .268-4343 Attorney for Defendant, Stylecraft Builders, Inc. 3 ·:: ~ .... , ... :, .. I narvey 1.,;arg111 -Miller v . Nagle , Cause #50,081-85 From: To: Date: Subject: Jan Schwartz Harvey Cargill ; Roxanne Nemcik 10/21/99 4:03PM Miller v. Nagle , Cause #50 ,081-85 Becky , Judge Langley's court coordinator , called about 3 :30 this afternoon. She said that Steven Steele filed an order yesterday (she wasn't sure what the order was , but she it was agreed to by both parties). The only setting at this time in this case is a jury trial setting on February 7 , 2000 . Page 1 J Nelson L. Nagle, M.Ed.,L.P.C . . 510 Dennis Drive Round Rock, Texas 78664 512-218-0015 Facsimile 512-218-1821 E-mail abrnagle@aol.com Re: New construction at 600 and 604 Welsh College Station, Texas Dear Property OWner: My Name is Nelson Nagle. I am the father of three children, 2 of which currently attend A&M University. Vocationally I am a family counselor in Round Rock , Texas. Together with my daughter, Allison Nagle and son, Brandon Nagle, I am a property owner in what is known as a Resubdivision of College Park. You own property also in this very specific four block area, a plat of which is attached. I am being sued to stop construction of the improvements that I have planned on my property. A copy of the legal papers are enclosed. I have planned two houses to be constructed on this property that will be owned and occupied by my adult children who presently attend A&M University. The site plan and design of the homes have been carefully planned through several meetings with the Planning and Zoning Department of the City of_c;ollege Station, an architect, and my builder Stylecraft Homes. I believe the homes are sensitive to the architectural flavor of the neighborhood. The exterior is modeled after the turn of the century bungalow style housing that is apparent throughout this subdivision as well as streets in the College Park area that surround it. I believe they will be a high quality improvement to the property values and the integrity of our subdivision. Site plans and floor plans for the houses are also enclosed for your review. : I have a vested interest in my property and the new construction that exceeds $150,000. Your interests regarding your property in this subdivision are also at stake. Any court rulings will directly affect you regarding the use of your property either by you or your tenants, now and in the future. Your views on this matter are very important. Please take the time to review the enclosed documents. I do not believe that the views of the plaintiffs truly represent the views of the majority of property owners. You will find that the main point concerns a violation of the deed restrictions dated 1941 of which I was unaware during the planning of my project. It is specifically related to a 75' frontage for new building sites. The new construction on my lots is based on a 50' frontage which is in accordance with city ordinances and is utilized throughout the adjoining streets in the neighborhood. The City staff has continued to assure me that they do not feel I am in violation of any building ordinances. I am being sued in civil court regarding the deed restrictions. My attorney advises me ·that he believes only the deed restrictions sited in exhibit A are at issue. Your property may also be in violation of one or more of these restrictions. Please note that property owners can vote to change or remove these restrictions in whole or ill part. I am advocating that they be revoked by a majority vote, which will then yield disputes in all matters regarding use and development to city ordinances only'. Alleged violations regarding City ordinances are to be addressed: ....,special Called Meeting of Zoning Board of Adjustments ....,6:00 P.M . ....,Wednesday, October 20th ....,City Council Chambers on Texas Ave. across from A&M Your presence is important! Thank}ZOU for taking time to read this information. I am writing this letter to inform you of the issues as I know them. Please feel free to call, fax, or email me with your questions. I also invite you to drive by the development and meet my daughter Allison, who presently lives next door at 600 Welsh. She can be reached for information by calling ( 409) 2 2 9- 0445. Because I have become the target of a lawsuit I need to know where you stand as property owners. I would appreciate you returning the enclosed response sheet ASAP . . Sincerely, ~~)-¥ Nelson L. Nagle Contact: Nelson Nagle 51 O Dennis Dr. Round Rock, Tx. 78664 (512) 218-0015 abrnagle@aol.com Fax (512) 218-1821 Please fill one out for every person on deed Return via E·mail, Fax, or Regular Mail WHERE DO YOU STAND CONCERNING PROJECT AT 600 and 604 WELSH? D I support this Project and your efforts to improve our neighborhood . D I am against this development • D I am neutral on these issues . Property address: _____________ _ Owners Names : Mailing Address : Home phone : Workphone : Fax: -~ - E-mail : H applicable: I authorize the following person as my local agent to represent my views. Name : Mailing Address : Home pMone : Work phone : Fax: E-mail : Signature :. _________________ Date:. ___ _ AREA SU MM ARY : FIRST FLO OR HTD : 1273 COY. PORCH AREA: 6 2 TOTAL F R MD: 133 5 s ~ ~ ~~ ~~ ~~ - ~------~------~~ ~~~ ............... ~~ ~~ ~"'-.... ~~ ............... "'-.... "'-.... ~------~~.............._ .............._---....._ ~ "'-.... "'-.... ~ ~"'-.... ~ ~~.............._ ~~ ~ .............._ il PLATE HT . I I ~ --~ /"1--~ ----·· ~ I w I I I ~ .r=r-li .. LWINDOW r-i I--; I ri I CJ] DJ I I HEAD : I , . r ..._...... ! aioo Ii : Cx ~ ! ' r-l I I i ~ - ~ I '11 I I Cx - r n 1: ' 1-- If I ._..: ' ! i-I a. eioo I . I ; ; :.i "' --,__ I ~ I r ,_ .......... I-..... I r-i 1 ~ ---! i-I -------:~ I I·_ ,_ I. I-I-,_ I ~ ---I f-I I lFINISHED FLR . !,, le le I= b .. !a b .. le ., h ~-l/ "' FR :ONT ·ELEVATION SCALE: 1/4 "=1 '-o" r I L < (25 YR .) COMPOSrTION SH INGLE S : 12 6 : 12 I I STOOP - i I I ! ' Ii, I '§I I ; I I ! I ! ' I : I I I le I I r----1 I: I p : I ! I l I b ! ............ ,,_ ........ ~I--!/ '• ....._· I i------: I I-I-.... I-I-I I r---: \.I -~ ~ -- LEFT ELEVATION SCALE: 1/4"=1'-o" .. .. ~w WO:: Iw V>I . ::i a:: w .uz D ~I- .Z V> Ww . t-:l: x~ w-l ! CONC. OR ASPHALT PARKJNG/ DRIVE " I I I I 25.00 N 4s·o1 ·24" w I I I I . 6' CUR B WELSH fl Vfl.JJIJ.E. b'.2... s" f{.o. VI. CONC . OR ASPHALT PARKJNG/ DRIVE S 4g·o2·25" E 154 .03 . ,.-··i .. 18.5'x1 9 _5·· • ~--L---_L__L__.q CONC. PATIO · w. 10'x10 ONC. P D . .. ~W .P . ELEC . OUTLEl 1 5' ALLEY ... w I I I I I . I 1 29 .03 PLAN 1 "= ?n' -n" 11 I' 0 -0 I") rENCE N()l (: (Nfllt( M()US( f O ..,_.vt SU.MPCO COHC . r u:>ORtNC . 1 '-7' 1.:>· _,. "·-n · I I II ' -11 IJ ;>• ._, 11.:>• ,._, ,,,. ,,.._a L '-" I ''' £•_n ',,, ,._, . ,,. ,,._. ,, .. ··-· ~ ... 18:!010/l '"' . \~ Ii) 1' fV8 /S...WR ;. 1x - ~ ~ ,; l •, I c ;, ,, ';, <111 ;. 0 1 I ,. ~~ - c l NI! I@. ", ~-.,,_,. • 0 ' .... T: c : I -I II ~ I i-h ----11=. POS f S .. .uJ ·~· "' -~ _,. _ _,. I . I':::: ::::;,.. L ;,, .. 1'.0 • ,._I ,, •. -~ .lOl!O,TWIN, 0/l ,._ .. a •_A' 1;>· -,. ''-'-"' PAYNE, WATS ON, KLING, MILLER & MALECHEK, P .C. WILLIAM D. FARRAR Admincd Texas and Colorado WILLIAM T. FLEMING Of Counsel CHRIS J. KLING •Board Certified Civil Trial Law LOUIS A. MALECHEK, Ill (TREY) CINDY L . MILLER •Board Certified Famil y Law J . DEREK MOORE BILLY M. PAYNE SCOTT J. SCHERR JAY DON WATSON •Board Certified Commercial Real Esta1e Law •Board Certified Farm and Ranch Real Esta1C Law •Board Ccnified Residential Real Esta1C Law •Texas Board of Legal Specialization Mr. Nelson Nagle 510 Dennis Drive Round Rock, TX 7866,4 ATTORNEYS AT LAW October 11, 1999 ~P.O.BOX6900 BRYAN, TEXAS 77805-6900 3000 BRIARCREST DRIVE, SUITE 600 BRYAN , TEXAS 77802 TELEPHONE (409) 776-9800 FAX (409) 731-8333 LA W@PWK.MMLA W.COM Re: Norma Miller, et al. v. Nelson Nagle and Stylecraft Builders, Inc. Dear Nelson: Cause No. 50,081-85; 85th Judicial District Court: Brazos County, Texas Our File No . 99-1710 I enclose herewith copies of the following documents: 1. The Plaintiffs' Original Petition, with Exhibits; 2. Order to Show Cause; 3. Temporary Restraining Order-Writ of Injunction. Please note that the hearing date for the Temporary Restraining Order is set for Thursday, October 21, 1999 at 3 :00 p.m. As I explained, this hearing date can be eliminated by an agreement that we will not continue with construction until this dispute is resolved . · I phoned attorney Steven Steele and explained that we had visited and that our employment had beenv erbally agreed to , subject to the receipt of the retainer, and that I would visit with him in more detail at that time. He did indicate that issues pertaining to this case would be addressed by the Planning and Zoning Commission on October 20, 1999. He explained that there had been an appeal of the variance granted, so I would alert you to that possibility and would direct you to the Affidavit attached to the Petition that is signed by Steven E . Esmond. Please be alerted to the items that are enumerated in that Affidavit and I suggest that you be prepared if necessary to appear at the Planning and Zoning meeting to address the points raised by Mr. Esmond. BP:gw Enclosures: F:\LA W'J> A YNE\99 \171 O\Ne lson .Nagle.letter .wpd Very truly yours, CAUSE N0 .5Q 0J/-g'c.._;- NORMA MILLER , HELEN PUGH ,. BOBBY MIRZA, AND MRS . H .A. LUTHER, THROUGH HER AUTHORIZED AGENT, MICHAEL LUTHER , INDIVIDUALLY AND ON BEHALF OF HOMEOW:'.'!ERS I N THE COLLEGE l"'IL.t:D Ar. ___ -.:c 'clock~--'M 0~: c 8 1999 PARK SUBDIVISIO N, COLLEGE STATION , TEXAS § § § § § § § § § § § § § BRAZOS CO C:.J TY , T EX AS V . NELSON NAGLE A ND:.STYLECRAFT BUILDERS , INC . ---- PL\INTIFFS ' ORIGI N AL PETITIO N TO THE H ON ORABLE JU DGE OF SAID C OU RT : J U DICIAL DI STRICT COM E NO W N OR_;\1 A MILLER , H ELEN PU GH , BOBBY \1IRZA . \1RS. H .. .\. LUTHER , THROUGH HER AUTHORIZED AGENT, MICHAEL LUTHER , IND IVIDUALL Y AND ON BEHALF OF HOMEOWNERS IN THE COLLEGE P ARK Sl l3 D I VISIO K . COLLEGE STATION , TEXAS , hereinafter referred to by name or a s Pl ain tiffs or as "HomeO Wilf.\.S ~ and files this their Original Pe ti tion complaining of NELSON N AGLE , h ere in referred to as "Nagle " and ST YLECRAFT BUILDERS , INC., here in referred to as "Sty lecraft ", and in supp ort of su ch cause of action would re spectfull y s how the Coun th e foll ow in g: DISCOVERY LEVEL 1 . Plaintiff \l/OUld allege that disCO \"ery is intended to be conducted unde r Level 1 o f 1 Rule 190 of the Texas Rules of Civil Procedure . .. PARTIES 2 . Plaintiffs are the owners of lots in a subdivision known as College Park located in College Station, Brazos County, Texas. 3 . Defendant, Nelson Nagle is a resident of Round Rock, Williamson County, Texas , and may be served with citation at 510 Dennis Drive, Round Rock , Texas 78664 . Nagle is the owner of Lot 10, Lot 11, and Lat 12, Block C, resubdivision of College Park, College Station, Texas, also known as 600 Welsh, College Station, Texas. 4 . Defendant, Stylecraft Builders, Inc . is a corporation duly organized and existing under the laws of the State of Texas with its principle office in Brazos County, Texas, and may be served with citation by serving its President , Randy French at 4112 State Highway 6 South , College Station, Texas 77840 . VENUE AND JURISDICTION 5 . Venue of this suit is proper in Brazos County, Texas, pursuant to the provisions of §15.002 of the Texas Civil Practice and Remedies Ccxle in that all or a substantial part of the events givln--$ ~ise to the claim occurred in Brazos County , Texas, and Stylecraft's principle office is in Brazos County, Texas . Venue may also be mandatory in Brazos County, Texas pursuant to the provisions of §15.001. 6 . The amount in controversy and the relief requested is within the jurisdictional limits of this Court. 2 FACTS 7. On July 29, 1942, the Oakwood Realty Company of College Station, in establishing a subdivision known as College Park in College Station, Texas, established and filed of record certain restrictive covenants which were subsequently incorporated into all deed to the lots in the College Park Subdivision. These restrictive covenants were recorded in Volume 111 , Page 197 and are attached hereto as Exhibit "A". 8. On June 19, 1946, the Kasaskia properties established and recorded additional restrictive covenants for the College Park Subdivision which were subsequently incorporated into all deeds to the lots in the subdivision. These restrictions were recorded in the Deed Records of Brazos County, Texas . A true and accurate copy of the restrictive covenants are attached hereto and marked Exhibit "B". 9. Nagle acquired a portion of Lot 10, Lot 11, and Lot 12, Block C, College Park (the "Property") on September 17, 1999. A true and accurate copy of the Warranty Deed is attached hereto and marked Exhibit "C". The deed references the previously recorded deed restriction as well as otl!~ ~venants and restrictions on construction on the Property. 10. At the time that Nagle acquired the Property in the College Park Subdivision, there existed on Lot 11, Block C, an improvement which was a single family dwelling. Prior to the acquisition of the Property and the conveyance of title to Nagle, an amended plat ~as submitted and recorded for the purpose of establishing new metes and bounds description for Lot 10, Block C and Lot ~2. Block C. The purpose of the replatting was in order to construct improvements on Lot 12 and Lot 10, Block C of the College Park Subdivision. Subsequently, Nagle has submitted 3 an Application for Building Permit for the purpose of constructing improvements (1200 square foot, four bedroom, two bath house) <?n Lot lOR, Block C and Lot 12R, Block C according to the amended plat. 11 . Nagle has employed Stylecraft to construct the improvements on these lots in the College Park Subdivision. Nagle has executed a contract with Stylecraft for the purpose of constructing the improvements as reflected in the Application for Building Permit submitted to the City of College Station. , VIOLATION OF DEED RESTRICTIONS 12. The proposed construction would be in violation of the deed restrictions in several respects including, but not limited to, the restriction that requires that each indi v idual building site have frontage of at least 75 feet. According to the amended plat and the application for building permit, the proposed building sites on Lot lOR and Lot 12R would have frontage of 50 feet. Additionally, the proposed improvements would be located nearer than 20 feet to a side property . See Affidavit of Steven E. Esmond attached hereto. 13 . Plaintiffs' or Plaintiffs' representative have requested Defendants to cease ) construction of the improvements, but Defendants refuse and continue to refuse to cease -, - construction. EQUITABLE RELIEF 14. Nagle's violation of the restrictions and the continued construction by Stylecraft will . cause Plaintiffs and other homeowners similarly situated in College Park Subdivision irreparable injury, for which they have no adequate remedy at law. In order to prevent Defendants from constructing improvements which may be required to be removed as being in violation of the deed 4 restrictions , Plaintiff would request the Court to enjoin further construction until a judicial determination is made regarding the proposed construction of the improvements . 15 . Contemporaneously \vith the filing of Plaintiffs' Original Petition , Plaintiffs have filed a request for a Temporary Restraining Order and to set a hearing for a temporary injunction. Plaintiffs would request that the Court maintain the status quo until such time as the matter regarding a violation of the restrictive covenants can be resolved . . DECI,.,ARA TORY mDGMENT RELIEF 16. Plaintiffs 'are further seeking, pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code , a judicial determination that the deed restrictions are valid and subsisting and that the de&i restrictions would preclude th e construction of the improvements planned by Defendants . ATTORNEY'S FEES 17. Pursuant to the provisions of §5 . 006, Plaintiffs seek recovery of the ir attorney 's fees and costs in enforcing a restrictive covenant. WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that the Application for Temporary Restraining Order be issued and that the Court set a hearing for -~ - Application for Temporary Injunction and upon final hearing that the Court permanently enjoin Defendants from constructing the improvements in the College Park Subdivision in violation of . the deed restrictions, that the Court determine that the deed restrictions are valid and subsisting and that Defendants' proposed construction would be in violation of such deed restrictions, for reasonable attorney's fees, costs of suit, and for such other and further relief that the Court deems just and equitable . 5 "' _,;: .. Respectfully submitted , DA VIS & DA VIS 3000 Briarcrest Drive, Suite 602 P .O . Box 3610 Bryan, Texas 77805-3610 Telephone (409) 776-9551 Facsimile (409) 776-2712 ATTORNEYS FOR PLAINTIFFS WILLIAM STEVEN STEELE State Bar No. 19104700 6 ... -:1\:7>·:· =x · -· -··--• -- .... . J . .-;· ,: : ·~: ~. . i ·.:. [· .· , : : ·- .. ·.:· <"·" .... . ~· . . ~ .. 9) ai. :: . i ~ ~ . 1--------Jt ·1.· • II) .. 1-: . ~"' ~ "', - ~ti> ~ .. ' '· ••r ~ L "'. \ '-" ' .. "' ~ .., ~· t 'f?D sr.· J .. ":. ·-: ... ·: .. ' " ~ >--· • ' .... ~ .. "' IQ ... -<; ... /.-·: ~ .... : ~ ~ . ;-.· .. •: ~-. ·: .. _ ... ·: .. (' ... . . : ;.~~ • :. I • •• • ·:·:;.~·::/.::.· .. :.-··~ : .. •,·;.-:·· .... ·.·. ~~·, :)?;:t·~.L::\: ... . ];'.@.·::.;.·.·· ·'" · ... ·. · ... .... ····· .. : ,..,., -,:....,_..;..._-J.s• "--''~'r:...__...J "; . : : . ' . . . ·~· .. • .... . ..J : -:..:.-t ~· ~ ... ' . ~:_:; .. _,~ · .... ,~:7 .. :) :;< .;; ... · ~, .. : .. · ... , .... ~ \ ~ . ~ " .. ~ ~ ~ ·~ \.j :::;: "\ c· ~ ~ I UJ ·.·· ..N ·--.. !.8.1-:!~!.5&.-i- R!:SUBDIVISION Ol. A PORTION 01' COUZGE PARK COLLEGE STATION TEXAS . ."!°\l?O 1941 1 • .J...._, Orr e Control JJonument ".JON£S ST. PARK P LA cc ~ ~ - ' ~· . ' ... . ·i .. ·~ . ., ~ .; ~ .. -----... ,,.....---.... "' ~ .. ' -----~ • 'O I . l'l ' '/ k) . ~ ---~ ~~ 0 ~ ,. • '" \ 0 f'l ·• ~ -"i ~ " ,~, • i-,. .. ~ '() <-'l . • ., 0 "' .... I -, rt ' . ~ ~ ' Cl I ... A • ~ Cl) /~ ~· "-....... ur.· ... ' ~ fl FIDELJTY ST. , . •• .so """ <TO •ii -'O i ) I ~' l ..; $'~ i J I 10 .r• ,,.,, -,,.,, .r.-.r• ~,4 - ~ . 2 -.---... .... 'Cl .... ~ \~ ~~· .J ~ ~- -~ .... .... ~ r:- """ .ro '-'. -6 9 ... -~ ~ "!- l.j lo .... ti) 0, . ~ ~ ·- ~ : I e : ~ c ~ • .. . l"P '\""" ~ . .. J,; ·...____~VE'RNSCY ST. 1 .r~ I (Onr) APlll'OTO~ 1\llJ' 2; 1941 Cib'b cu~ Chrm. College Sta~oR,Texaa J'.W.HeDael 1Er ~ . i ' I .. ~ ' ·-- ' \.f : 'j J i -. ! i I EXHIBIT• fl PAGE ;__/_ OF..!/.._ PAGES • ... 10 -s .. ~-sv.n 07 T?:XAS I IN'l'Y .07 BRAZOS l!ID!JUtAS, b;r dood 6atod .April 4th, 1941, e.nd rocordod 1.n 'olu:.o 106, J>e.gOi I n ., ot t.b• Dud Rooord.a ot »i:uoe Co11I1t7,Tene, Southwid·• D6nlo_pco11t Ca:po.llJ" 0011n:red . to Oe.lar'oo4 .1~7 Coc;>e.llJ" ot Col.loge Ste.t1011 oorte.111 proport:r ill the Ple.11 or College hrlc in Braz~• Co11I1t)"!. · ~s. rerore110• boing bore me.de to ae.id deod.e.nd it•-rocord ror do11oriptio11 or 11e.1d proport:r; 1. 'WmREJ-S, 11o.1d Oe.lcwood Ree.lt:r Co:npaIJ;T or College Sta t1011 i11 doairows or re11u'bd1Tiding e. ·tion or ae.1d p.ropert7 in aooorde.nce -with t.b.o horeto at1!'chod pl.at, the portion reaubdiTidod, .ng all tb.o t part or oaid proport:r. 110 . oonTe;red e.11d l;ring 011 tb.o 11outhoaat aide or Cuernae:r : . . ·, ·eot a.nd bounded 011 the 11orthwost .b;r eeid Cuor11oe:r Street, bouod!d 011 the southwost b;r ~oot- •1r ..l.unuo, 'boui:ided ·on tb.e ioutheaat b;r tb.o p r oport:r OWDO~ by L,C.J'o11e11 and 011· tho ~ort'boeat• South Berer~e. Stroot 'With. ite oortb.woet oontinuetion to ·Cu~rnaey Street; ~I 'NOW !I'HLREFOR:E Oakwood Ree.lt7 Canpan:r ~r College, Ste.tion, e. corpore.tioo, acting hore1n i·~· prelidont, ·ll,:E,Burgeas; dul:r e.uttio:;~1ed b;r a rosolution e.doptod by ite . I ~<>drd or Dirootori 1s. horeb:r decl..aro tho hereto e.ttacb.ed plH to be a true e.11d correct plat or it~ resubdiTieio!l'· tho portion ct the propert:r above described, and d0eo hereby dodicate to the use 9r the 1li_c _all atreota ~ e.lleye u ehown upon said plot. .i .. -· I .... • liITJ{tSS the-"1ig1111turo e.nd aoe.l or ae.1d Oakwood Realty Compeoy · ot Collego ~t!'tio11,· thio ~ ., tho ~ ' . , .. -! .!. I ;•: ;h dA:!· or •u.l,-..l.:D• lS-41,.r , :t~j . O.AiC\'IOOD RUI.TY COlil'JJrr or COIJ.ffil': STAnON ':J.L i .· !.·_: l .. I : STATE o:r ~I . r : · Jh'T'!_ o:r 'BRAZOS Bl:1'0R1: ll!:, tb.e ':llldorsignod ·authority, Oil thia ·da:r per aooalli op~eared . ·I Z, Burgeae, lqlqwn to i:>e to .be t h e perao11 whoso name is aubscribod ·to the roregOiJ28 i1111tru-·;i . I . ··.i lt : 8.lld he aclcnowledged to mo tb.ot ho ·ex.ocutod tho OOJOO for tho p\lrpOSell ODd COl18idorntfo11 : :: -; 1rc1.n expressed .aod ill hie oep11c1t:r e.a president or Oalorood·Reelt:r Compari;r .ot College Ste-· 'I 'I , '· _._.:\ • • 1 )11 0 a corporation, _e.11d aa the e.ot e.od doed or said corpo:ret1011, ·• Cl\'l:N under·Jll7 .hand and 11ee.l or ottice, t~i~ 28tb. day or July, 194 1. R. V • .ArmetroDg, a ~otary :Public 1 nd t · .. , . !:AL) Brazoo County 1 Tens, n ° or '.I i taro going 1a a ·true . ~op,-or the origin.al inetrumeot which -..aa tilod tor record 011 the 29th '. .I · I·! r ot ·_.1ul,-.A.;D, .l9U at 2-0• olook ·P ~m. e.nd dulr-reco"rded 011· the 29th da7 or _1'll:r A,D, 1941 '\ \ S o' cl~k ~pm. to 1di1ch I certir,. ..... D~put7 ~/: .. : . . " _.,_ •.. · .... .'-:·.-· . . :.··· .. . ... •. I ." . ~ .. ·. . . . ' ... ~ .. I n I· t I· ·' n r t . ~ f I f I I I 0 l .. j EXHIBIT • __ 8 __ . PAGE~ OF~ PAGES ·J ··~ i 11 rt;.:..~ i. l ; t ...... ·. -: .... THE S':'AT:l: 07 TI:XAS I cotn:rr or muzos I DEED 111 1'»011 AU. ~II DY niESE l'!\l:SZm'S: Thet tt,e Oakwood Realt7 Ccr.i;>enr or Colloee Stotion·0 Texas, o oorporr.tion or tho County or o~a:z.oa, St.eta or Texaa, he-.ing heretofore dedie<>tod the streets, alleya, end pasoaeewa70, end eubd1Tidod a portion or Colle&• Park an Addition to tho C1t7 or Colle&• Stotion, oor.To)'M to Oo,lcwood Roelt7 Com- pall)' or College Station, b7 Southside Development Company, on April 4, ;1941, bT <.cod record•~ in Volume 106, paee 2)4, or the Deed Reeorda or a'"'~~• County, Toxaa, ..nd ·· V.~RlUS, the Oakwood Realty Coopany or College St>otion, Toxaa, e oorporat1oo, ao,_t1ng here1n by ita Yioe President, :.:rs. Ethyl Wol ton Bur sea a, an! TbOC11e Eonry Torrell and·. "ire lJro, 1Catru.r1.Jle l.:o!Cenna Terrell, do hera:·no• Uipooe and place the rollo .. ing restric- tions upon Lota Ros, Ooe and Tw0 or olook No, Tan (l]}; Lota Nos. StTen (7) to ~leven (11), inolus1Ye, in ~l~lt No, !line@ Lots Nos, Ono Ill t.o Eic;l>teon (181, includu, I in lllocic(!} Lota One (1) to LJ.even (ll) inolusiu, in "loct('.i)I.ota llos. One (1), to Nineteen (l9), inclushe, in Dloc<S)and Lota One (1), to 7~n (10) incl~he; in Bloc~r the Subdivision known cs ~ ResubdiYision or a pc=tion or Collece Park, to the City or College Station,Texao, to-.,it: _,.i_-. All or the Streets, rood-'Woys, nnd walb a• aho'Wn on pl.et or f.eeubd1T111on or a Portion or Collese Park or record in Volume 107, page 151, or the Deed Recorda o: Bra:z.oa County,Texaa, are hereb7 dedico~od ror public use and miinte:JAnce roreTer. 2. .i\ll lote in the tract ·shall he known and described as residential lots, and no s~ructure •hell he reote<! on any residential building plot, other than one detac~od aingle ramilydwelline not to exceed two stories 1n heir.ht, <.:>d a one, two, or tll:"oo car ee.re.se. ), No buildine ahe.ll be erected, plooed or altered on any building plot in thie aubdiYision unti.l the external deaign iond location themeor l:..aYa been opproYed 1n writing by the noillbborhood C~ttee ~ich shall he appointed or electe4 b)' tho o>mer or 01::nera ot a caJority or the lota which ore aub.Ject to th'e cC"Tenanta herein aet rorth; provided, hCNe>er, that ir ouch ccc:n1ttee raila to approTe c: disapprcrre auch desi&n and location within thirty daya after auch plane haYe heon .au~tted to it or ir no auit to enjoin the erection or auch huildine or the malti.ne or auch ~lterations ha• hoen ooc- menoed prior to t.he cocpletion thereor, •~oh approY~ will not be ·reqllire4. -4, -There is hereby establiahed. a rront huildins line t...,nt:r riTe (25) toot fro<> all 1treet1, and all bu1Uin&A exoop.t garages located on real qzrtc.r ot lot shall lie t1J• , (5).teet rrOll aide lot lines, except on corner lots auch ec.raoe• ahall be ten (10) reet i tree t.he aide 1tre~t 11.ne. 5, No trailer, basOG1ont, tent, shack, earage, born or other outbuildine erooted in the troot ah~l at any tiae he ueed as e teaidenoe tem~~ or percanently, nor ihal1 •11)' atructur; or 1.tecporcr7 charaotor be used aa a reaideAOe. 6. l:ach indiTidual b_u1ldill(I aite nuat haYa a rrontage ot at leaat •oTenty riYe (751 teet. Only people or the nit• rooe ahall nar be parnitted to .,.,... property w1t.h1n I aai4 J.4dition; and no property or any patt thereor shall onr be 1eaaod, rented, or oo-I oupied by all)' peraon or any other race than the white, except that aarTanta or other raoea ""'-1 occupy quartera re&ularly end d.uly proYid.ed tor aer-.anta. II. !Iona or the property heroin con-.oyed. aball n•r be ue4 tor the purpose or a pleoe tor the l&le or 1;>1rituouo, YiDOU8 Ot' &a1lt li1iuora Or be'rarat°ea:·or &DJ' lt1Ad ror a peri_od or n1n1t7-n1n1 yeara rrom June, l, 1941"; No DOXi"OU:. or orten.aiT• trade .. l . - \." I I : i I .. I : /) ·, '· ·~ ... EXHIBIT ._,4._._ __ PAGE _.3_ OF J:L PAGES DEED 111 · .. b• or boo""'° an7 annoyance or nuisance -:.o tho noit)lborhood, I I I l be carried on upon aa.id lot or ;proport7, or aholl onythi~ bo~ dono thereon whioh Those covonanta are to .run with~. land and stu.ll bo bindine; on all tho ;portioa ~ll persons cloi.mine under tho.m until 3uiuor7 l, 1968, ot which ti.mo aoid l bo auto1t&tioall7 oxtondod tor suocoso1vo poriods or ten years unlo:>s by oovenanta I a vote ot tho. rit7 or tho thon Ol<Oors or tbo lots it !.s acroed to chan&o tho :>aid COvon11nts in >iholo n part. 10. Ir thepartios horoto ,.or on7 ot t h em, or their hoirs or asoien>, shall violnto ttompt to violate any or tho oovonants heroin it ohall bo lawtul ror :>ny othor poraon ersona O"«ning any roal property oitueto~ 1n sold development or subdivision to pra- te a111 procoodi.ncs at law or in e11uit7 &<;ai.nst t~e persons viol.atine or atteaptins t.o ate an7 suoh covo..,nts and oithor to p revo~~ him or tbe<:1 rrom oo doing or to recover t•• or other .cues ror aucb violation. ll, Invalidation or any one or tho:>o covon.o.nts b7 •udo;iont or court order shall in !so arroot any or tho other pr ov is ions 'IQ.ich sbo.ll re<>.o.in in rull rorco and crt•·Ct, llitnoos our.lulnds t)!is tho 29th dny ot lul1, J..,D, 1942. STAT? or TI:tAS I rT OF BRAZOS CJ....':t:OOD ll?.>.l.TY CO!.IPANY or c OLU:O? STAT ION. By J.!ra. tthyl Walton Bureo=>s Vice ?rooidont TuoC!>s ll, Te rr ell !j-o. i:a tharino l.:oXonna Tor rell B:?J'O!U: Le, tho undoro1enod nutborit7, on thie 'ey pcraonall7 ap- ed 1"ro, ];th7l l/Qlton Burgess, Vioo Pros~'°''t or Ot.l<wood Roalt7 Cocpnny or Coll•£• ion, l:nO\TO tO CO to be tho per son ~hOOO :.t.JllO iS OUbooribed to tho abOVI nnd fOre50ing niment e.nd aoknowlodeod to ""' tllat sho cecuted tho =• tor t.be purposea and oonsidor_j II therein expressed, and in tho oapacit7 therein stated, Civon undor m:r hand and seal or ortice this tho 29th do7 or Aueust, A.D, 1942. ~l STAT? O:!' TEXAS I l'T 07 Bl\.U.OS Coulter Bopposs, (Coult.or Hoppossl llotnr7 Public, Bruoo Count7, Texas, t.red °thOOIAS Eonr7 Terrell and •1te laa, :tatharino !:ol:enn.a Terrell, hie v1ie, both i to mo t.o be tho poraons whoae n=os a:rt subscribed to tho torecotni 1.nstrumont, and llWle~ed t.o .me that tho1 each exoouted Ue su.e tor the purposes and consideration •1.n expressed, and tho said J.:re. ?:atha.rU.. 1.:cl:enna Terrell w1te or the aaid Themas r Terrell~ havi~ been ext.IUned b7 .. e pr!v1l7 Olld apart rrom her husband, and haviJI& •e.Ae !ull7 nplai.nod to her, aho, the eoU.4 ~s. ::0.thari.no J,;c:J:enna Torrell, aoltnoW- td auoh instrwaont to be her ~ct and dut, and. ehe doolared that she had "1111.n&).1 :d the ...... tor tho purpose• and oons1do:w.t1on--thero1n o::qirossed, and that et.o c11d riah to rotraot 1t, C1ven llnder 10¥ hai>d and eeal or ott1co t.his Uio 10th da7 or Sept .... bor, A~D. 1942. Victoria DOAinik (Y1ctor1a DOA1.n.1Jt} r.) Notar7 Public, Bra%os Count7,Tox.as, t oregoi.hg 1.a a true oop7 or tho oric1nal 1.nstrwoent which vaa til<>d tor record on 4a7 ot Oot, A,D. 1942 at ll o'clock a.&. and dul7 rocor4ed on th• 26th d41 or Oct. A •• &t 9 o• olook a.a. to 'llhich I oortU7 ··: ~ .• .. "'· n. s1 ;p~_.=.c ,c .11.c. ·.:.: ~ %7---.c:.t:=--~---,, .... ~ :-. ~---=_,.~;.J;>'.";;'~o;:; .. -t.lr.™:'! .. -~"'~"!C~~-~~· 'ftd .. : ...... . ~:. '·-.. =-... : . . . . . t~s~~;~::~~ /~::-:-.. ~: ... :~ ... .·,· . I .. .! .• ·.• .! :~ ! ·f .( EXHIBIT ._.ft ....... __ • PAGE~ OF .!:f_ PAGES ,o.11 ~ d•od .eball 'beocmt a'baolut•. nniz:ss =:t han4 at lleyan, To:ua t?.lS 7o4o:n>l. atmp• a.trtx•4 All4 4ulT oanooll•4 ) .... ... ... ~ . ' ': .,._ ·.; .. •·• ... . --~·-... th11 20t.h ~1 ot lune, 1946 )q •• Uii .. 11 u Batte •••• •,1 ; .. Cl'~ ia, tha i,md•rai&no4, 1. lloto.r7 l'u~llo 1"zi 1.114 tor ae.14 Countr A.ll4 5tato, 011 th1a 4&T pnJOAAilT appouo4 lLre, :t4:lA ll, 14 l!att~; ld40lf ac o. 5. La EAtto kAO'l!ll : tO DO to _'bo tho P6?'".°A co.oo 11 ~ 11 au'beor1'bo·4 to tho tore .go~ 1l1~t.ru:::c11t: ~ o.clcn~o4~od ~: 1:10 tbl>t '!>ho 0:uoute4 tho da:oo tor tho . purpooeo e.lld oau1Aorat1m th e:re111 oxprtuo4 • . OIV?li t1Nilllt l£r lU.'>"ll AND 8?.IJ. 07 017lcith_1.I th• 2'ot.h 4&7 ot ~·. >..D •. 1946 . ,· (SJW.) .. B. E. D"o7, 1r. ·· · ·· l!ot&r)' P'u'bllo 111 -~4 !er Bra..u>a OoUAtT ,Toxu I . DI• torogo~ 1 a a truo oopr ot tho or1gill.al. ~tr=t 'IO.ich 'lfU tllo4 tor rooord Ol1 tho 20th 4t.1 ot 1W>O J..I>. 19.(..6 1.t 2:)0 o 1 0 look p/n. am dulr rooor4o4 m tho 211t 4ti:' et 1=o ·. I.. ll, 1946 at 1:25 o' olook p,ll. to .b1oh 1 cort1tr. ..L:!talc C.C.j~B.O. ~;,~!If@~-:; .. ,··. · I / Xnow All ltcn b7 T.hOIO l'rou.aU.I . . 1.:i.fL-n~ ,,e~. I, /"\. BUrl 01 n::o.s :tut I, 7. B, Olulr::; Tr:u•t .. tor mg XA.Si>.sn.i. no~, . .w horobr doolc.ro that the reatr1ot1ona &lld l1.t:.1te.t1~ appl1oablo to tho lou 1..n Ooiloge l'c.rk applr to lota 111 . I . I l!outh.out OQ1logo l'o.rlr:: (tho .r:.o.p or •hi oh 1• rooordo4 111 Volw:io 119, pesoe 56~~, ;Bn:z:as Ooa.nt1, Te-x.e..z) ~1th tbe !ollowi.n& oxoo;tio~t '· • J ! (l.200) ~u: ~:~:ir~:;: tor a ru1de.::ioe 1o a !le= a~o• c.ree. ot tuln hun~ 2, l!o •tl'lloturo ohe.ll bo looc.tod 110t.ror t.l>A11 tn11t1 toot io r.r.:r ld.4 o or tr~t J>l'O;.~~I 1.1.llo, n:oopt •hon 1. Id.do l1Ao 1• e.n e.llor 11~ 1..n wh1c!l . oao~ tho atruoturo .u.7 'bo ..,. 11oo.r u I t>rel,.. 1.114 c:u-hAlt toot to tho pro port)' 11.ll o, . . ), No t..o-•tory gr.re.so apu-tl:>611te o.r _two-atorr aerT!l.11t 1 a quart.era ~ill 'bo e.llowo4, 4. Ho lot. •ill be ~14 lQ1cll 1n tbo tirat 1.nata.noo 1• .i"nte~ed to be UfliCd ,Primarlly Tho rutr1ot1ona &.lld liJtl.tati.011.1 _appl1oe.'blt to .t.h• lota ot Coilogo Pan i ·.· · ~· l!o out-door tollota •bl>ll 'bo allon4 an 1.111 lot •• . : }~.-~~-.~-out ot tho lot• u ahcnrn 111 th• plan ahtll. 'be o.Clero4 to ~ 110 aoh61>4 or ta~ lot.a 1.n D.111 othor Urooticn !>ball. 'be po=itto4, ), >:!? uee r.he.ll 'bo =4t ot t.bo proportr bore'b7 COAToroA.,or &is:, port tho root, ;'lrh.ioh lh&U oo~~~:~to a .1ru.bA1101 ~:~J:U,; tho ;alua ot ~o1ti'borlng. lota. In ouo ~r cUeputo • .. :-: C1Jl&l. -~~bi~ a.a to 11hat ocm1t1tuto~, a 11u.1l4llc• ·~root 111th ?• gra.ntar • . t-:i;_~o _so11~l lr:nd~oape ple.na, ~oh .. 1:ooat1on. ot ho..i.oo~ .• lo0«t1011 _or n~or 'bod•, :Z-1=.l:ig or tz;ooe, ple.nUJl6 or &hrub'borr, oto, "21all 'bt 1A aooord.anoo with 1NCh ato.Ado.r{. •~critJ'.e..a ~l 'bt acoo~~bl• to tbo gre.ntor •. "' ·, . ... _. ·'.' . '' ·':• ·'· l!~ houao shall 'bo 'built ol_?aor tq _tho atroot ·~ t110~7 toot •.. ~6!;?~ohoa, atoroe: thee.tree, •ahool houaoa, e.114 othor oentre.l aooting plaoea ahci . . -... . ~ . ... . .. . . .. -.· . -. - " •CXla~~4 : 01111 cu lO:• • .P_ro'Y14o4 111 .tbo pl.&11 tor .• .. te.'bl.U~ta :or that ·kind \lllloea agr-ood :O 'b1 .\ha graht.or. • . . ~ ' .• : . 7• ~C!.~ouao, 'W1th ;~o.•!:XO•,litlan or ~o4-~.a, go.re.go, t.ll4 •1.a.ilAr -a11~lo~t&r7 . ~, $l .. :~ ; f.; ~I Cl ~'.: ~ .; ., '? ~:- ,. r 1':111~• ~'be 0011.1t.niato4 Ulo ·~la.ca ot,'llhioh hnt 11~ .'boe11 4ru11 ~ appro1'o4 'bJ: All . ----·-· -------·--·--------·--...,...,.....--·--,.:---t--------· ~~·. -.. :,_; :-~_·.: .. -.~ ... :=.:·.;. ,. . ·'·~'.'··· .... ·.. ,.. . ;:~i ••• # • .... '(' ••••• ~-• ~ ~ .: . f ."'. ~ .... : ~J ·-s.:;.~:-:.\! · .... ""' -·. .... :-.-:..... .• • • •• . ....... . :·, ~~~=~··=· =·=::::::=:-:==:;:;::;;~==~==z===:=r==·==·============·:;,-::-===-·--.... -'_~_· ..... !-"·.,.· ·=---6-~.... . ~, .. · r )~ I~ .l._ '>.; EXHIBIT 13 PAGE _j_ OF ...'6 PAGES ~-..... ... r _; .. . . .,,,,.. ....... ~. . 4 • ......-. ·~;. ( DE£D 124 ~.: .· .. ····. . . .... -~ -i_;~~~==========================~, _ uoh.itoot aooeptablo to the granter, t.:i>' /.s-...... ._.. > <;;) 8• J.t tbo e:z:piraticc or tbr~~ 7oua Noll th& 4at4 ot •o.l• ot IA1l1 lot, th• grAlltor ) -::reun•• th• right to bur be.ale e.t thAI original purbo~H ·prioe, "1thwt 1ntorut, e.n7 lot l . the · QfQer or Ol<D4r• or 'Obi~ oe.nnot •bow bon& tide nidonoe ot utlliution to •a.• 1ooi&l or in.diTidWLl and other tban that ot ioerel.1 holding the lot tor 1noroau in niue, ', ., ..... J.r.t ob1rgoa 1.mpoeod 'b7 tb• 01t1 ot Colle go Btat1ai, Tona, or e.n1 other e.0011c1 tor t h e extoiuioa. ot ut111t1 linu (inoluditi(s ·uur, light t.114 aewe.r). other the.n thou •J>Plloabl• t4 lot• 1n th• c1 t7, ll:.1t1 'Will be pe.i4 b7 the granter, Zhe oit7 doea not gue.rll.llt,te to diapoee ot uwe.~ unleu diaohargod tb.r<>Jgn a : p:r0ptrl1 ooutruoted .~•pUo te.nlc looaw4 on tb1 prope.rt1 or tb!i' grantee I, I I ! I I , l'ITllu• r:.:r bani at Ooll&S• Btation, Toxaa, thi• 19th 411.7 ot lune J...P, 1946. IBX XASJl:.l.SO>. l'ROI'Dl:l'nS L,5, 7, B, ClU'lc . 7, B. CLJ.RX, TRUSTO C OUJtG! 5'tillOll, TXXA.9 I I , I ~ . ; , ... , .·.~ ---~ ... . -·~ .. ··.• .;. . llotore co,· Poroth7 B, Be.kor, a Note.rr l'u~lio in an4 tor .&ra~oa Coun t 7, Texa•, peraon -..boae .c.o:>e ia INbeoribod t<> tb• e.bole instrument, and &cborclo_4<;o4 to ;c.o that be exeouted th• or.::e tor the pu:poua tho nin expruao4, and in tho ~e.paoit1 thuoin atatod, . Ohon un4or i:.1 band e.n4 ooal · or ort101 tb.11 19th do.7 0: J'une,' 1946. (53..U.) . · Do~otby B, Bcls'c r l\ottJJ' ublio, bi610& C_o., Tox. Tho tcxrogoil>O i• a tru• oo rr or tho or1gill.o.l 1na tru::iont 'Which we.1 tiled tor rooord 011 tb • 2l.1t dq ot Juno J...P -1946 e.t l o 1 oloolc p,i:., and dUl.1 noorded .011 tho 2l•t cl.AT ·ot 1uno J...P, ~,.,1946 at 11~0 o'olook p.:, to which I oert1!')', O~ 07 BIUZOS ,11 . --,--Thl.t 1'e 1. w • .Batta &lid ll, _o, l\&ll ot tw Oountr ot llra:i:oa Btat• at Texu, tor "4 1.n oocaidore.tion ot tb• SUA ot Two Hundred a.!l4 t1tt1 •·no/loo lt2so.oo) POUJJ!S, to u1 I I I l ' I I l l ! i c I : ! i i ; .-i · hn~ Orant .. d, Bold and Oonn7e4, a:id ·b7 thou pruellt~ do CllU.'lT, BUl. J:ED CONVn, unto tbt I aeJ.4.11111& Or..ru ot th• C0Ullt7 or llra:.oa Btatt or Tona, all th.e. t oerte.in tract C% paroel I ;.;: .,. .. ,_o~ le.nd 171.Qg t.n1 'being a1tuat1 ill tb• 5tah at Texu, Oount1 at Jlr~ e.r4 =• pi.nioulU'-J ... :11 4eaor1bad u tol~owa, to "'1 t• I -nine Tht 10.1th {6~) •1xt1 tiu tut ott tbo 1outh tlld• ct Lota lloa (8) •1sbt(9)/&lld {lQ) I c !;-.·till 1.n Bloolc llo (U.6) T-.o hundred IAild tortr •ix 1.n th• Oit7 ot .:Br7an, aooord1ns ~ the I . l ~p ot eaid Cit7 ill OOCQOn UH• i l , 1 TO BJ.VJ .um TO BOLD th• abO"T• duor1'bed prom11u, ·toootbor 'Wi~ all a:id aingule.r th• l ·rli;hU and appurtonanou the nt.o in e.nrnu .~.ion.sin~, unto . the aaid Julia Ge.ru, her b..»ira j ud •Nignl tonnr, ud •• do her1b7 'bind ouraehu 1 lur h~ir•, txeouto.ra and admniatra-· j tora, to •o.rre.nt &lid tonnr det•nd, all e.r4 •insular th• Mid premiau IXlto th~ •L14 1ul1a I' Oa.ru, hor heir• e.1:14 uds;n•, ~ge.1n1t •Tori pcireOA •hm.e<>tur l.e.'1Ctull7 ole.ii::.in& or to ole.1a . i ... •m·.::.:: :·.::::-:·.,,.., ........ ., " ....... ., •·•· :·" .. I ··sr, __ ..._ .... ·.-~-+-·-·-· ... 51)15'-!~~:!ll!: att1xod . . [.•. ?~ .. ~;:• ~-.. : .. '.: . . . -. j . .-·· .·. ;,. : .. .. . ,, . ·. -~--i~l"':'.''-.;:":·~··~·,..,.'_,....,-,!'-·~·~··..,.,..~·~~:,,,,,~~~-:--:-':'""":..,--:-":--'---·_~~·~_.~_··~~-:-7··,-:-.,.....-:-::-:-:-:--:--·~·-·-·~·~~7··-:-·)~·':":"":'~~~·-,~~.,.....~ ..... .......- .~ q;-i:j~~.;:.:~~~~~,!.:~~~~.}:..O ·~.~_.;~::.;, ~;:;. :;..;;.:,:~ ~ .... , ... :Y~_;_.,,:i ··.:4~,~ •• ;:,,;;..~~~~ ~7·'~-~~~:"'·.1:: .... ~ :r .. .:.~. ,;.:., .. . I I I ! I ... , EXHIBIT ._ .... fi ___ .. PAGE ..i::_ OF ?.. PAGE: j I , t .. ... ..•.. : . ' - . ! ·' · ..... _ ... : .: ; . , • .. =~ ·.· ··.· ...... ....... llJ!COllDINO 1iJD 1'011. g)'; VTC nfll I; ~-TD (I<) Bill g. Retvm to · Urwersity Tlt1~ eompr.ny P.O. o ·awer OT eonoge Station. Te~ 77841 GFI ~q\111 (//. STATE OF TEXAS WARRANTY DEED . . .. .. ,;. ., ... ·····'·· . , ..... -'-~ ~·.:;:. · . 0686978 . KNOW ALL MD~ BY THESE PRESENTS, THAT: COUNTY OF BRAZOS NELL FRAZER LINDQUIST AND ERJC LINDQUIST, of the County of B~. Stz1e of Texa.5, GRANTORS, fa tnd in con.sidcratioo of the sum of TEN DOLLARS (SJ0.00) mid other good aod valuable coo.sidcra.tioru, CASH, paid by NELSON LEE NAGLE, whose addrt:s3 j, :)10 e<lu,.,,,,.,,·12 &iw a~d ack. ....3,: 7;c,~4 ) ) GRANTEE, the receipt t.:.d sufficiency of which arc hereby eckn<?wledgcd. HA VE GRANTED, SOLD AND CONVEYED and by these prcsenu do GRANT, SELL AND CONVEY unto lb: said NELSON LEE NAGLE, all of the follov.i.og described real property, together with zJl or Granters' improvements thc:rcoo , to-wit: fuM: Metes and bounds descriptioo of all th.at certain tract or parcel of land lying t::Jd being situaled in College Station, Bra= County, Texas. Said tract being a portion of Lot 10, Block C. Resubdivision of College Park, according to the plat recorded in Volume 107 , Page I SJ of the Deed Records of Brazos County, Texas . Said tract being more pa:-jcularly described by metes 2.Dd bounds BJ follows : COMMENCING at a 5/8" iron rod found in concrete at the intc:rSectioo of the southwest right-of-way line of Welch Avenue (62 .5' R.0.W .) and the southeast rig.ht-of-way line of Fidclty Street (50' R.O.W.) marl:ing the nor1h corner of said Lot 10. for reference a 112" iron rod found on the southwest line of Welch Avenue marking a point in the northeast line of Lot 12, Block C. bears:·S 48° 02'26" E for a distance of 129.03 feet; THENCE S 48° 02'26" E along the southwest line of)Vcleh Avenue for a distance of20..53 feet to a .s/8". iron rod set mzrking the east comer of this herein dcscri~ tract; THENCE S 42° 25' 19" W through said Lot I 0 and along the extension of nn existing chain iink fence for a distance of 117 .31 feet to a 5/8" iron rod set on the common line of said Lot 10 and a 15 foot wide alley, for reference a 3/8" iron rod found in a I" iron pipe on said common line bears: S 48° 01 '24" E for a distance of 110.39 feet; THENCE N 48° 01 '24" W along the common line of said Lot 10 and said alley foe a distance of 18 .64 feet to a 3/4" iron rod found in concrete on the southeast line of Fidclty Street marking the west comer of s:i.id U>t 10; THENCE N 41° 30'01" E along the southeast line of Fidclty Street for a distance of I 17.31 feet to the Point of Beginning. containing 0 .053 of an llCTe of land. more or lc;s,, as surveyed 00 the ground April, 1999 . EXHIBIT • __ c __ PAGE _L OF _3_ PAGES 0 3 4 g 2 0 0 2 3 QI '· ~'- :-· ·-~----·~- ., I • f ! ' •· ' I ~i ... . . ' . .. :· ... ____ J 0686978 Metes and bounds description o( all that certain tract or parcel of land, lying :.nd being situated in College Station, Brazos County, Texas. Said tract being a portion o( Lou 11 and 12, Block C, Resubdivision of College P:i.rk, according to the plat recorded in Volume 107, Page I.SI o(the Deed Records of Brazos County, Texas. Said tract being more particularly described by metes and bounds Ill follows : COMMENCING at a 518" iron rod found in concrete at the iotcnection o( the southwest right-of-way line of Welch Avenue (62.S' R.O.W.) and the southeast right-of-way line of Fi deity Street (50' ltO.W.) marking the north comer of said Lot 10; THENCE S 48° 02'26" E along the southwest line of Welch Avenue for a dist.anee of 80.08 feet to a S/8" iron rod set on the nonhcast line of said Lot 11 marlcing the Point of Beginning o( this ·herein described tract; THENCE S 48° 02'26" E continuing along the southwest line of Welch Avenue for a distance of 48 .95 feet to a 112" iron rod found rrurking the east corner of this herein &scribed tract; THENCE S 41° 30'01" W through said Lot 12 for a distance of 117.35 fcct to a 3/8" iron rod found in a 1" iron pipe on the common line of s:i.id Lot 12 and a I 5 foot wide ~Icy marking the south eorncr of this herein described tract; · THENCE N 48° 01 '24" W along the common line of said Lot 12 and said alley for a distance of 50.39 feet to a 5/8" iron rod set on the common line of said Lot 11 and said alley marking the west corner of this herein described tract, for reference a 3/4" iron rod found in concrete oo the southeast line of Fidelty Street marking the west comer of said Lot 10 bears : N 48° 01 '24" W for a distance of 78 .64 feet; TH:ENCE N 42° 12'06" E through said Lot 11 and along the extension of ao existing 1 story brick and wood house for a distance of 117 .33 feet to the Point of Beginning, cont.aioiog 0.134 o( an acre of land, more or less, as surveyed on the ground April, 1999. This conveyance is nude subject to the following restrictions and exceptions: 1. _Restrictions recorded. in Volume 111, Page 197 and Volume 106, Page 134 of the Deed Records of Brazos County, Texas. ·,., 2 . 2S' Building _Une oo the northeast & southwest sides; 1 S' Building Line on the northwest side; as set out io restrictions recorded in Volume 111, page 197 of the Deed Records o( Brazos County, Texas; Electric: Line in the southeast portion; all as shown oo survey prepared oo April"26, 1999, under the supcrvisioo of Brad Kerr, R.P.LS . #4502. (Tract A) 3 . 25' Building Une on the northeast & southwest sides; 7.5' & 5' Building Unc on the southez.st side; as set out in restrictions recorded in Volume 111, Page 197 of the Deed Records of Brazos County, Texas; all as shown on survey prepared ob Apn1 26, 1999, under the supavisioo of Brad Kerr, R.P.L.S. t:-4502. (Tract B) 4 . Any elaim or right of adjoiniog property owu~s) to that strip of land lying and between the (enee and the boundary line on the northeast & southwest sides of the property as shown on survey prcp:i.red oo April 26, 1999; under the supervision of Brad Kerr, R.P.L.S . t:-4502. (Tract B) 5. Blanket Easement d:ited January 19, 1928, executed by Southside Developm~t Company to Community Natural Gas-Comp:my, recorded io Volume 71, Page497, o(the Deed Records of Brazos County, Texas; as noted on survey prepared on April 26, 1999, under the supervision o( Bmd JC.err, R.P.L .S. #4502. EXHIBIT • __ c __ PAGE~ OF _2_ PAGES l'or '. 0 3 4 9 2 0 0 2 3 1 ·. l I r ,, 'i .. 1: --··-·~-..:---~·-':..!.1--·-·----·_:.__,_~·~~~----· -· ---.:.-..:~~ _,. t .• ·• -· ........ ; ... -· ··· _ ... ·-.._, I i· ~ I . ; ; ! i . ! ' .. ; ' . 2 0 .. ;') " . ,, 3/.Ji. INCH . IRON ROD FOUND IN CONCRETE LOT 9 BLOCK C LOT 11 R BLOCK C ~-~ 6274 sq.ft / ~·~ POINT OF BEGINNING 1'1>----1/2 INCH IRON ROD FOUND 0. 1 «O Acres 'Ooy / "-..~ ~ <v / ~LOT 12R -) /\// o.oo ~o.,() $ BLOCK C / ~ c? / 5932 sq.ft / "") ~ \< • q~ 0. 1362 Acres /~<v ,.:> · / ~ v / / . ~~ ~ *-c. / / 4J7/.~ cP / ~-' /~ ,()°' o/ / ' "<4c~~ ~. q ."')() .._')..· / :+-'"""5> "\"? ' 6-/ . </1': t>< "' Sa ~ 0 ' / ·J".9 'l.-/ N/F LOT 13 BLOCK C / GEORGE 8 . DRESSbR / 384/282 / / / Affidavit I, Steven E. Esmond, am a licensed professional engineer in the State of Texas (#3 8830) and a Registered Public Surveyor in the State of Texas (#3814). As a practicing engineer and surveyor, I am familiar with the laws governing the subdividing and platting of land in Texas. I was retained in my professional capacity to evaluate the Amending Plat of Lots 10-12, College Park Subdivision, College Station, dated 7/23/99. It is my opinion that the plat and the application for building permit by which the construction of improvements became approved violated the following ordinances, laws and restrictive covenants recorded for the College Park Subdivision: 1. Lot widths of 50 feet on tlie plat violate the deed restrictions, which specify a minimum lot width of 75 feet,"as contained in Vol 111, P 197, Deed Records of Brazos County, Texas. 2. Side setback lines on the plat violate the deed restrictions, which specify a minimum setback of 20 feet, as contained in Vol 124, page 522, Deed Records of Brazos County, Texas. 3. The subject plat, titled, "Amending Plat," fails to qualify as an amending plat under the def~~on proscribed by State Law, Sec 212.016 of the Local Government Code. 4 . The subject plat contains encroachments on Lot 12R including the eave of an existing roof, and an air conditioner, for which there is no easement either of plat or ofrecord -which fails to comply with current surveying standards and is a violation of Section 8.7 of the City of College Station's zoning ordinance. 5. The subject plat violates Section 8-H.4 of the City of College Station 's Subdivision Regulations by closing off an alley, and in addition failing to comply with the City 's own Ordinance No. 357 in regard to utility access. 6. Proposed driveways shown on the existing application for building permit for Lots 1 OR and 12R indicate encroachments onto adjacent properties for which there is no easement either of plat or of record. The foregoing statements are true and accurate to the best of my knowledge. SWORN AND SUBSCRIBED TO this gt11 day of October, 1999. p JANE E. TROITER ~ary Pubic Stale ~ Texas Mv Commission ExpcreG S'EPTEMBFA 28 2000 J~~~~ (Notary Public) At RECEIVE O ----·O'clock ___ M CAUSE No5qD~I-~s OCT 01 1999 NORMA MILLER, HELEN PUGH, BOBBY MIRZA, AND MRS. H.A . LUTHER, THROUGH HER AUTHORIZED AGENT, MICHAEL LUTHER, INDIVIDUALLY AND ON BEHALF OF HOMEOWNERS IN THE COLLEGE ~O . PARK SUBDIVISION, COLLEGE STATION , TEXAS § § § § § § § § § § § § § BRAZOS COUNTY , TEXAS V. NELSON NAGLE AND STYLECRAFT BUILDERS , INC . JUDICIAL DISTRICT ---- ORDER TO SHOW CACSE The above styled matter was heard by the Court on ~ 2 ±ii ' 19 99 . Plaintiffs appearing by their attorney of record , William SteYen Steele, and the Court, haYing examined Plaintiffs ' verified petition filed with the Clerk of this Court, finds that the verified petition filed by Plaintiffs sho w that Plaintiffs w ill suffer irreparable harm t0 them unle ss a temporary restraining order is issued restraining Defendants from co nstructing the improvements -....,. - in the College Park Subdivision which may be in violation of the deed restrictions, including the pouring of the foundation on Lot 1 OR and Lot12R , Block C of College Park Subdivision, College Station, Texas, before notice is given and a hearing had on Plaintiffs ' application for temporary injunction. The Court further finds that a bond in the amount of$:), ODO~ will fully and ade.qu~tely protect the rights and interest of the Defendants until a hearing on the motion for temporary injunction. _ De ·"tv ,, It is therefore ordered that Defendants are enjoined and restrained from constructing the improvements in the College Park Subdivision which may be in violation of the deed restrictions, including the pouring of the foundation on Lot lOR and Lot12R, Block C of College Park Subdivision, College Station, Texas, from the date this order is signed for fourteen (14) days or until further order of this Court. It is further ordered that Defendants appear before this Court in the courtroom number ~61:11 DiS'tYic..fiocated at 306 East 26th Street, Brazos County Courthouse, Bryan, Texas, at 3'.oo , then and there to show ... , cause, if any, why a temporary inunction should not issue in against them enjoining and restraining them from constructing the improvements in the College Park Subdivision which may be in violation of the deed restrictions , including the pouring of the foundation on Lot lOR and Lot12R, Block C of College Park Subdivision, College Station, Texas, until the final hearing or other disposition of this cause. The Clerk of this Court is directed to issue a show cause notice to Defendants to appear at the temporary injunction hearing. It is.further ordered that this Order will not become effective until Plaintiffs execute and files with the Clerk of this Court a good and sufficient bond in the sum of $5, tXX> '\c() from which Plaintiffs will pay to Defendants any and all damages they may sustain if it is .. determined that Defendants are wrongfully restrained, pending the hearing on the application for temporary injunction in this action. On the filing and approval of this bond, the Clerk shall issue a temporary restraining order conforming to this Order and all legal requirements . 2 .. " SIGNED on this the ~'/±J day of fJtt# h ' 1999. 3 ·;;,· Ur'.ginal signea oy l. Ds LANui..EY JUDGE PRESIDING ·. CAUSE NO. 50,081-85 NORMA MILLER, HELEN PUGH, BOBBY MIRZA, AND MRS. H.A. LUTHER, THROUGH HER AUTHORIZED AGENT, MICHAEL LUTHER, INDIVIDUALLY AND ON BEHALF OF HOMEOWNERS IN THE COLLEGE PARK SUBDIVISION, COLLEGE STATION, TEXAS V. NELSON NAGLE AND STYLECRAFT BUILDERS, INC. ........ § § § § § § § § § § § § § IN THE DISTRICT COURT/ COUNTYCOURTATLAW NO. BRAZOS COUNTY, TEXAS 85TH JUDICIAL DISTRICT TEMPORARY RESTRAINING ORDER -WRIT OF INJUNCTION STATE OF TEXAS TO: NELSON NAGLE and STYLECRAFf BUILDERS, INC., their agents, employees, and representatives and any person with notice of Temporary Restraining Order . Plaintiffs, NORMA MILLER, HELEN PUGH, BOBBY MIRZA, MRS. H.A. LUTHER, THROUGH HER AUTHORIZED AGENT, MICHAEL LUTHER, INDIVIDUALLY AND ON BEHALF OF HOMEOWNERS IN THE COLLEGE PARK SUBDIVISION, COLLEGE STATION, TEXAS, have filed a verified petition in the 85th District Court of Brazos County, .. Texas, Cause No. 50,081-85, in which NORMA MILLER, HELEN PUGH, BOBBY MIRZA, :MRS. H.A. LUfHER, THROUGH HER AUTHORIZED AGENT, :MICHAEL LUTHER, : INDIVIDUALLY AND ON BEHALF OF HOMEOWNERS IN THE COLLEGE PARK SUBDMSION, COLLEGE STATION, TEXAS are the Plaintiffs and NELSON NAGLE and STYLECRAFT BUILDERS, INC. are the Defendants, seeking a temporary and permanent injunction, and requesting issuance of a temporary restraining order restraining Nelson Nagle and Stylecraft Builders, Inc., their agents, servants, and representatives as set forth below. From the facts set forth in the petition the applications and affidavits attached thereto, it appears to the Court that Plaintiffs are entitled to a temporary restraining order in that unless you are ordered to immediately cease the acts described below you will commit the acts before notice can be given and the matter can be heard on the petition for a temporary injunction and that Plaintiffs will be . injured and will suffer itteparable damage. Therefore you, _NELSON NAGLE and STYLECRAFf BUILDERS, INC ., are ordered to im.media.te cease from constructing the improvements in the College Park Subdivision which . ' ....... may be in violation of the deed restrictions, including the pouring of the foundation on Lot lOR and Lot12R, Block C of College Park Subdivision, College Station, Texas, until October 22, 1999. A hearing on Plaintiffs' request for a temporary injunction has been set before The Honorable J. D. Langley, judge of the above mentioned court, at 3 :00 p .m., on Thursday, October 21, 1999, in the 85th District Court courtroom of the court located at 306 East 26th Street, Brazos County Coillthouse, Bryan, Texas, at which hearing you will personally appear to show cause why a temporary injunction as requested should not be granted, to be effective until final judgment in this suit. 2 ISSUED under my hand and seal of the above mentioned Court, at my office located at 306 VJ Street, Brazos County Courthouse, w '1999. Bryan, Texas, on this the --day of District Clerk, Brazos CGU:nty , Texas B "' 3