HomeMy WebLinkAbout01/11/1983 - Regular Minutes - Zoning Board of AdjustmentsMINUTES
CITY OF COLLEGE STATION, TEXAS
Zoning Board of Adjustment
January 11, 1883
7:0o P.M.
MEMBERS PRESENT: Chairman Cook, Members Wagner, MacGilvray and Council
Liaison Boughton
MEMBERS ABSENT: Donahue, Upham and Alternate Member Lindsay
STAFF PRESENT: Zoning Official I:ee, Assistant to Zoning Official Dupies,
Director of Planning Mayo, Assistant Director of Planning
Callaway, Planning Technician Volk and City Attorney
Lowell Denton
City Attorney presented a Legal Workshop covering the attached article
"The Authority and Responsibility of the Zoning Board of Adjustment in Texas"
by John C. Ross, Jr. and Susan M. Horton.
He then advised Board members to help adopt rules for the Board and Staff
• to follow, and further suggested that one of the new rules be that if no action
is taken on a variance during a public hearing, the variance will automatically
be denied by adjournment.
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THE ALTTHORITY AND RESPONSIBILITY' OF THE
ZONING BOARD OF ADJUSTMENT IN TEXAS
by Jorn C. Ross., Jr. and Susan M. Horton
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TF?_E AUTHOF.ITY AND RESPONSIBILITY OF T'rIE
ZONING BOARD -OF ~.DJUS.~I~TT IN TE~iAS
by John C. Ross, Jr. and Susan M. Horton
The Zoning Board of Adjustment is one of the most powerful of
City Boards. and at the same time is a Board that is often mis-
~**~dersLOOd by those citizens of the comurii ty who seek relief from
the Board of Adjustment. Much of the confusion surrounding the
Zoning Board of Adjustment stems from 2 lack of understanding of
the Authority and Responsibility of she Board and a tendency to
conruse its functions kith those of the City Planning Commission.
T"ne purpose of this paper therefore will be to outline the specific
authority of the Zoning Board of Adjustment as it operates unde_
• Texas law and to comment on the responsibilities of the Board.
AU i F~iORI TY OF TIC BOARD
The authority for the creation of the Board of Adjustment is
purely statutory. The ~,egislature by the enactment of Art. lOllgl
of the Texas statutes has provided the vehicle for the creation of
the Board by the governing body of the City. The specific au-
thority for the Boards creation reads as follows:
Such local legislative body may provide for the ap-
pointment of a Board of Adjustment, and in the regulations
and restrictions adopted pursuant to the authority of this
Act may provide that the said Board of Adjustment may, in
appropriate cases and subject to appropriate conditions and
safeguards, make special exceptions to the terms of the
ordinance in harmony with its general purpose and intent and
• in accordance with general or specific rules therein con-
tained.
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.It is important to note that this statute is ermissive -
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not mandatory i.e.: it is up to the governing body of the City
'whether or not to create the Board and if the Board is created
y what special exceptions that the Board will be authorized to
grant. Although the grant of power to create the Board is per-
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missive I known of no city which operates without a duly con-
' stituted Board of Adjustment. In fact failure of a city to estab-
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fish a Board of Adjustment may well endanger the integrity of the
_ City Zoning-plzn.3~
Art. lOllg sets forth three specific powers that the Board of
Adjustment shall have:
' 1. To hear and decide appeals where it is alleged
there is error in any cider, requirement; decision, or deter-
mination made by an administrative official in the enforce-
. ment of this Act or of any ordinance adopted pursuant thereto.
2. To hear and decide special exceptions to the terns
of the ordinance upon which such~Board is required to pass
under such ordinance.
3. To authorize upon aopeal in specific cases such
variance from the terms of the ordinance as will not be con-
trary to the public interest., where, owing to special con-
ditions, 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:4 ~ ~~ ,
It is important to note that once the Board has been created
that it is the state statute itself that spells out and authorizes
the powers that the Board shall have. It should also be noted
that the Board has no other power that is not specifically dele-
gated to it by~this statute.5
• Let us examine each of the aforementioned powers individually
for clarification.
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} • rear r.-~d Decide Appeals
In the enforcement of any. Zoning Ordinance it is often
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necessary for a zoning official or some other designated officer
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of the City to rez-iew and make determinations in regard to the
compliance of an individual under the ordinance. By way of ex-
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amole, the zoning official may have to make a factual deter~ina-
tion and render a decision in any one of the following instances:
1. Does the individual property owner oualify for a non-
f conforming use under the zoning ordinance?
(a) L,~nen did the non-conforming use come into existence?
(b) ~-:as it been abandoned?
2. Is the individual's proposed use of the property authorized
within the zoning classification for such property?
3. Is the use of an auxiliary buildin pro~eri clas _
g _ _ y s~~led
as an accessory use under the zoning ordinance or is it
a new independent use?
4. Does the individual meet off-street parking and set back
requirements as established by the zoning ordinance? ,
If the individual disagrees with the ruling, order or deter-
mination of the Zoning official, then he is entitled to appeal
such rulir_g to the Board.
In this type of appeal the Board is faced with two respon-
sibilities, to make a determination of the facts surrounding the
appeal and to exercise its administrative judgment or discretion
in interpreting the applicable law.6 In discharging this duty it
• is important for the Board to accept the law as it finds it
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-# not attempt by its decision to promulgate new e~; post facto legis-
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. lation. Although the Board of Adjustment when acting within its
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jurisdiction acts .as a quasi-judicial body, the Board is given
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only the power to render a decision about the existin ordin__ an~;
,# they are not given the power to rewrite the ordinance to-their
liking. 9 -"
'~ the real issue in a case of this nature is whether or not the
Zoning official has properly and correctly applied the applicable
law as set forth in the zoning ordinance to the individual who is
bringing the appeal to the Board. In handling this types of hear-
ing the Board must do the following:
1. Make a careful determination of the facts brought before
a
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/~ the Board at the hearing.
( Z.,,~ Review the facts as actually found by the Board and
reduce these to writi_g in the Board`s Order or be sure
they are carefully set forth in the record of the hearing.
3. Review and determine the applicable law as set forth in
the zoning ordinance.
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4'. Apply the facts found by the Board to the law and render
a decision.
If this procedure is followed it will be of great assistance
to the Board in determining whether the zoning off-~ci~l has erred
or was correct in his ruling or decision.
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Power To Grant Soecial Exceptions
The. second specified power conferred upon the Board by ~w t,
1011g is the power to heir and decide special exceptions to the
terms of-the zoning ordinance.10 Althou h it ~h
that grants the power to the Board to hear and decide special
exceptions to the zoning ordinance, the Board must .look to the
zcning ordinance itself to determine what special exceptions the
local governing body .has inco orated ~~'
,~ rP No the ardi Dance .
A special exce lion is ~ r
P a pa_t of the zoning ordinance itself,
i t i s enacted by the local governing body and being 2 p,~rt of the
zoning ordinance itself it cannot be a1_te,-ed by the Board. A
special exception allows an applicant to put his property t z _
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use which t_ne zoning ordinance expressly per~1; ts_ 11 It is ;R,_ '
portant to distinguish a special exception fro a variance as
these terms are often used interchangeably by those who have
dealings with the Board, and the terms are not synonymons,l2
A=variance is authority exercised by the Board and extended
to the applicant to use•his property in a manner forbidden by the'
zoning ordinance, 13 A variance granted by the Board alwa s
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requires the applicant to show that he will sustain an unnecessary
hardship if.-'the ordinance is given its literal ernforcement.14 A
special exception does not require the applicant to demonstrate
hardship in order to qualify for the exception.
The Board must always keep in mind that k*hen it is~hearing a
request for a special exception to the ordinance, it Dust look to
• tree ordinance itself ~to determine what conditi
ons oust be met in
g is ~ e sate statute
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order to grant the requested relief.15 It is always the burden
of the applicant to show that he Heels all the conditions required
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in order to be granted the special exception.
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- ine Board must accept the special exception and its attendant
conditions as 'they ar.e found in the zoning ordinance and-grant the
exception only when the applicant demonstrates that he meets all
• of the requrements and conditions of the exception. The Board
cannot go beyond the scope of the zoning ordinance because it does
not have the power to legislate.l~ _r '- ~---
The specific type of special exception that may be considered
bar the Board will vary depending on the exceptions authorized by
the local governing body. The Eoard must look to the ordinance
for the enumerated exception, however, illustrations of the type
• of exceptions that may be authorized are as follows:
1. Permit the reconstruction, extension or enlargement of
a non-conforming .building.
2. Permit the use of, property owned by a church for the
parking of passenger cars in an,T district under .such
safeguards and conditions as are necessary to protect
adjacent property.
~~'`3. Permit in certain zoning districts, "tents", "tent sales"
and "sidewalk sales" where adequate previsions are made
`t for--safety and parking.
4. Permit appropriate modifications of setback lines when
because of special topographic conditions the purposes
• and intent of the ordinance can be met, and adequate
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open space, light, air and privacy provided, without
complying with the normal setback reouirements; but not
more than thirty-five percent (35%) of the lot area
shall be covered by structures.
The above listed examples are by no means exhaustive of all
of the possible types of special exceptions the Board may be
authorized to hear but they do illustrate this function of the
Board.
Power To Grant A Variance
The third and final power conferred on the Board by Art.
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lOllg is the power to grant a variance from the terns of the
orcin~nce.l$ A varia.nce.is the authority extended to the Board'
whereby the Board may allow an applicant to use his property in a
manner forbidden by the zoning ordinance.19 The Board is authorized
to grant a variance from the ordinance provided such action is not
contrary to the public interest and due to special conditions, a
literal enforcement of `he provisions of the ordinance will result
in unnecessary hardship on the app licant.20
Case law of this State has established the following con-
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ditions which must be met before an applicant is entitled to a
variance:
1. k7hen seeking a variance, an applicant Host show an un-
necessary hardship, 21 .
2. The hardship must not be self imposed, nor financial
only, and must relate to the various property for which
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the variance is sought.22
3. The hardship must beyunique, oppressive and not co~mon
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to other property.
4. ?t must be shown that the granting of a variance by the
Board would not be against the public interest.24
5. The granting of the variance will be in accord with the
spirit of the zoning ordinance and substantial justice
done.25
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~ The burden is~always upon the applicant to show that he has
met all of the above conditions before the Board grants relief to
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' the applicant in the form of a variance from the ozCinance,26
~ The Board should always remember that the power ro vary the con-
ditiors of the zoning ordinance should be sparingly exercised,27
and it is only when the-Board has satisfied itself that the con-
ditions necessary for the granting of the variance have been met
by the applicant that the variance should issue_28
Although the Board is given. the discretion to vary the con-
ditions of the zoning ordinznce, the Board must remember that the
power to vary is not the power to legislate.29 The Board may not
under the guise of a variance re~~-ite the zoning regulation ap-
plicable to the case in question, but may vary the literal enforce-
ment of those regulations on a case by case bas?s. The Amarillo .
Court-of Appeals in the case of Harrington v. Board of Adiustmento~
stated:
The latter variance) means that substantially the same thing~•
• shall be done by the board as that which is provided by the
ordinance but relieves the enacted provision of its rigidity
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in specific cases where in 2 literal, rigid and absolute3toe-
• the mark interpretation would work unnecessary hardship.
The purpose of a variance. is really that of a safety valve,
~it exists to allow the Board, in appropriate cases, to vary the
strict requirements of the ordinance. The Board may for example,
allow variances in the off street parking requirements, the set
back requirements, the side yard or rear yard requirements, the
height requirements, or the landscaping requirements. A variance
should not however be used to allow a use~rohibited by the zonin£
ordinance for to do so would amount to emending the zoning ordi-
nance, a power the zoning board does not possess.32 The Board
should grant a variance only upon their finding that the applicant
has met the test prescribed by statute and case law and should
grant a variance solely on the basis of its legal merit.
• The Board of Adjustment is authorized by State Law and created
by legislation of the local governing body. Once created the
board derives its powers directly from the State Statutes and may
not enlarge upon the powers conferred upon it. Broadly speaking
the Board acts as a body to hear appeals ccncerning the enforce-
ment and inteepretation of the zoning ordinance, to hear the merit
of a case for a special exception, and to act as a safety valve in
granting relief to the strict enforcement of the zoning ordinance.
RESPONSIBILITY OF THE BOARD
In the writers opinion there are six major responsibilities
of the Board of Adjustment, these are as follows:
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1. Responsibility to acopt rules.
• '2. Responsibility to prow=de a fair hearing.
3. Responsibility to comply with Open Meeting Law.
4. Responsibility to comply with Open Records Law.
5. Responsibility to avoid conflicts of interest.
6. Responsibility to prepare findings and decisions.
Each of the aforementioned responsibilities is important and
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shall be discussed separately.
Responsibility To Adopt Rules
Art. lOllg states, "The Board shall adopt rules in accord-
ance with the provisions of ~y ordinance adopted pursuant to this
Act."33 The Legislature used~the word shall in this statute and
hence, this is a randated responsibility of the Board. The rules
adopted by the Board shall be in accordance with the zoning ordi-
nonce, therefore the rules adopted by the Board shall not conflict
~ ith any requirement set forth in the zoning ordinance.
Rules promulgated by the Board m-cs ~ be ir. keeping with the
requirements in the statute. ;Specific reouirements include the
following as outlined in §504 of Texas Practice:
1..
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3.
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Meetings of the bo~_d shall beheld:
(a) At the call of the .Chairman. ~ c ~ Su~Jec/' ~ 6zS1- ~~
(b) At such times as the board determines . as -~ na/~te
All meetings of the board shall b open o the public.
The Chairman or, in his absence, t e acting chairman,
may ad,~inister oaths and comael attendance of witnesses.
The board shall kee: mutes of its proceedings, shoN~ing
the vote of each meter upon each question.
The-minutes shall~s_o~r`abseiice'°'t~f board members or
failure to vote.
Appeals to the boarc ;may be taken by any person ag-
grieved or by an of=ier, department, board, or bureau of
the municipality of=ected by any decision of the admin-
istrative officer.
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7. Appeals shall be taken withir. a"" reasonable time by
filing a'not~ce~of appeal with t.'-e ~o?'~ic_~L: rom whom
appeal is taken and with the board of adjust nt.~'~~"~~
8. -The notice of appeal Lhall ~pecify the grounds of appeal.
9. T'he administrative of~icer prom whom appeal is taken
shall forth;aith transmit all the _pap_~rs constituting the
record upon which the action appealed ~rom was taken.
10. An appeal stays all proceedings in furtherance of the
action appealed from unless item 11 is followed.
11. The officer from whom appeal is taken shall certify by
the reasons stated in the .certificate that a stay, in
his opinion, would'Yause imminent peril to life or
property ; ~.tid'- !~ ~ ~Ui;~ll~r~.!:E- ,-~G2~,c2d?;e~~~ .
12. If such certificate is filed as mentionea in item 11,
proceedings may be stayed, on due cause shown by a
restraining order of the board of adjustment or by
court of record on application
from whom appeal is taken.
---~ 13. The tine of the hearing of the
the board of adjustment, which
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14. Due notice to the publ`~ic and tc
shall be given by the board or
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and notice to the officer
appeal stall be fixed by
shall be a reasonable
~ the parties in interest
15: The appeal shall, be decided by theuboard Lof~z s tme~n/t /, vs
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ti,.i thin a reasonable time. Kati
16, upon the hearing, any party may appear in person, cr by
agent or by attorney. -
17. The board may reverse, or affirm wholly or partly or
may modify the decision appealed from.
18. To effect any reversal or variation of the decision
appealed from, the board dust have a vote of at least
four (4) concurring .votes of its members.
19. Upon serz-ice of a~w-r~it of certiorari directed to the
baard of adjustment,.the board shall return certified or
sworn copies of the original papers, or the original
papers, upon which the decision was rendered, and con-
cisely set forth such other verified facts, pertinent
and material, to show "the grounds of the. decision.
Experience has shown that the board of-adjustment
should include in-its-rules the matters hereinabove set out
but eliminate such uncertainties as meeting time, by tixin
regular meeting dates, naming a secretary ~o keep records and
prepare notices,~eep forms for appeals so as to assist
aggrieved persons to get matters before the board have a
regular meeting place, and arrange for posting of~notice of
agenda for meetings as required by Article 6252-17. (Open ~,
Aieeting Law),34
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The above quoted section of the Te~,as Practice series, set-
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ting.forth rules of
rules the Board may
requirements of the
submitted that adop
serve as a road map
duties.
the Board is by no means e~;t.austive of the
adopt, however the Board is limited by the
statute and .their zoning ordinance. It is
lion by the Board of appropriate rules will
to assist the Board in the discharge of its
Resoonsibility To.Provide A Fair Hearing
T"ne Board of Adjustment in discharging their duties acts as
an administrative body with-quasi-judicial functions., 35
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In discharging its functions as a quasi-judicial body, the
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Board has a responsibility to .assure a fair and _mpartial hearing
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on the matters under review. In discharging this obligation,
the Board should pay particular attention to the fallowing:
1. Be sure to give adequate notice of the hearing before
the Board both to the interested -parties_.and to the
pub-l~~e. Failure of the Board to give such required
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notice will nullify the hearing held by the Board.
Nothing is Wore basic~to a fair hearing before the Board
trap fulfilling .the recuirement of giving notice as"''
required by the statute. In the eyes of the law there
is not a fair hearing unless an Opportunity is afforded
the parties to prove their case before an administrative
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agency..
2. Render a decision within a reasonable timer Art. lOllg
itself imposes an obligation to render a decision within
a reasonable time.39 The Board should remember that
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• justice delayed is justice denied.
3.Compel attendance of witnesses. Art. 1Gllg gives the
• chairman of the Board the power to compel the attendance
of witr_esses40 although the statute is silent as to how
this may be accomplished and what sanctions are available
in the event a witness fails to comply. It is suggested
that the procedure for issuance and serving a subpoena
to compel the attendance of a witness be set .forth in
either the zoning ordinance itself or the rules adopted
by the Board. It is ,very important for the Board to
have and exercise this power, for adverse parties before
the~Board have an absolute right to cross-examination of
all adverse witnesses, therefore the power to compel
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such witnesses to attend is necessary to a fair hearing.
4. Provide for the cross-examination of witnesses. The
Supreme Court addressed the,'issue of cross-examination
in the case of Richardson v. City of Pasadena.42 "The
right to cross-examination is a vital element in a fair
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adjudication of disputed facts. The right to cross-
examine an adverse witness and examine and rebut all
evidence is not--confined to court trials but applies.
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-also to administrative hearings." Failure of the
Board to structure its hearing in such a way as to
afford the rights mentioned above to adverse parties
will more than likely be grounds for the courts to set
aside the action of the Board.
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J If the Board Will glue Particular attention tO th.e abOVe, It
• t=ill go a long way to negate any allegation of lack of due proc
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or lack of a fair hearing before the Board.
Respensi bilit To Comply With The Open 'Meeting Law
To insure that the public has a right of access to govern.,mental
meetings the Texas Legislature passed the Open Meeting Law.44
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This statute is mandato 'and
~' provides that every regular, special,
or called meeting or session of every governmental body shall be
open to the public.45 By definition this statute applies to the
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Zoning Board o,f Adjustment.46 Compliance with the Open Meeting
Law is essential in that violation of the law ma~* result in the
- inz'alidation of the action taken by the Board.47
rurther, if the
violation is wilful on the part of the Board members a criminal
penalty may be imposed. 48
T'he Open Meeting Law requires that written notice of the
date, hour,
place, and subject of each Zoning Board of Adjus~ent
meeting be given before the meeting at a place convenient to the
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public in the Cit Ha11.49
y T~e~notice must be posted for at least
i2 hours~preceding.the scheduled time of the meetir_g unless the
meeting is called for an emergency or Lr ens ~bli
g p.L c necessity in
which case two hours is sufficient. 50 7n ; ~,~~ ,..,,.., ~_______ _
if a request has
given to them by
requirements may
• these must also '.
been filed
telephone
be adopted
~e met even
by any news media, notice must also be
~r telegraph.51 Additional notice
in a City's Charter in which case
though they are not addressed and are
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more stringent than the State legislation.52
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+= • The notice required by the Open Meeting Law must be specific
enough to inform the public of the matters to be considered. For
•instance, notice that a meeting is to be a regular meeting or that
it is to ratify action taken at another meeting, without listing
specific matters to .be considered is mot suf_`icient notice.53
Notice must be sufficiently specific to apprise the public of the
subjects that will be discussed and general phrases such as "new
business," "old business," "regular business," "routine business"
and "other business which may~come before the board" will not
comply with this article,54
Although the requirements of written notice are mandatory,
courts have held that compliance with its provisions are subject
to the substantial compliance rule.55 In some specific cases the
• courts have held that notice was given 'in "substantial co
mpliance
with the reouirement even though the letter of the statute was not
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met, however it is a far better practice to provide the public
effective notice with specificity. for the full sLatL'torv period to
avoid unnecessary litigation.~57
Responsibility~To Comply~With Open Reco^~ds Law
The stated public policy of the Texas Legislature is that all
persons are entitled to full and complete information regarding
the affairs of the government and the o=ficial acts of public
officials and employees.58 The Open Records Law therefore states
that "all information collected, assembled, or maintained by
• governmental bodies pursuant to law or ordinance or in conne
coon
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with the transaction of official business is public information
and available to the public during normal business hours of any
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governmental body" subject to certain exceptions.' If a written
request for information is received, the governmental body must
provide the information unless it falls within one of the stated
exceptions_ If there is doubt as to whether the information is
excepted, a decision of the Attorney General must be reauested.60
An individual can seek a ti'rit of Mandamus to compel the govern-
mental body to make the information available,61
The records of the Zoning ,Board of Adjus~ent are subject to
the pur'T.i ew of the Open Records Law. 62 Therefore all of the
Board's records are subject to disclosure unless they are specifically
e~:empted in the listed exceptions.63 The Boards' agenda and all
• material supporting the agenda is public information.64 The
minutes of the Board are also public and must be disclosed even
though they have not been officially,approved.65 Information
collected from individuals eoneerLing matters to be considered are
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also public. The Zoning Board has a responsibility to comply
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cr~th the requirements of the Open Records Law and must also comply
with ary addit.ion21 requirements that may be set out in the City's
Charter.67
Zn meeting the requirements and in accomplishing the purpose
of the Open Records Law, the Zoning Board of Adjustment should
carefully preserve the proceedings of the Board and accurately
record them.
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Board members should realize that in the discharge of their
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duties they perform a sovereign function of.government and that
they= perfor-,n this function for the benefit of the public largely
independent of the control of others and as such Board members are
officers of the City.69
In the case of De1ta.Electric Const. Co. v. City of San
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Antonio, 'the court stated that "It is the general rule that
municipal contracts in which officers or employees of the City
have a personal pecuniary interest are void the foregoing
rule rests upon sound public policy. Its object is to insure to
the city strict fidelity upon ttie part of those who represent it
ar~d manage its affairs. T'he rule prohibiting public officers from
being interested in public contracts should be scrupulously en-
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forced. '
Board members should always be on their guard to see that
this responsibility is adheared to.
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Responsibility To p=eaare FindrQs ~.~-~d Decisions
The Zoning Board of Adjv~stment must make s~~ecific findings
once a decision has been made by the Board setting forth the basis
and reasons for the Board's decision.72 This is to provide the
court in the case of an appeal the ability to review and evaluate
the actior. of the board.73 Article 10 llg provides that an.appeal
from a board's decision is to be done by a writ of certiorari
which requires .the board to return the papers acted upon and
further states that the return "shall concisely set forth such
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other facts as may be pertinert~and material to show~the grounds
' ~ of the decision appealed from. znd shall be verified. "74 'I'be
general rule is that in the event there is failure to make such
findings the trial court must set aside the decision or remand the
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case to the Board for further action. However, in the event a
request for a special exception is denied and there is no manda-
tory city ordinance which requires findings then the Board's
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decision may be upheld. A careful review of the requirements
set out in each particular city ordinance should be examined and
at a minimum the requirements in the state statute should be met
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when a Jariance is granted. Findings in accordance with the
reouirements of a city's ordinance when mandated and the reauire-
gents of the Slate statute must be set out accordingly or the -'
• Board's decision may be found~by a reviewing court to be void.78
To avoid the possibility of rendering a decision that is
challenged because findings are not made, the Board should make a
practice of setting forth findings in their decision whether it be
granting or denying a request so that a court can properly review
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that decision in the event it is appealed.
Trhe Zoning Board of Adjustment is a oowerful Board of the
city, the members should always be conscious of the authorities
that they possess and of the limitations. By adhering to the
responsibilities outlined the Board will provide a valuable service
to the citizens of the community.
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