HomeMy WebLinkAbout2000 Guidelines for Drafting Historic Preservation OrdinancesMr. Shawn B. Carlson
1031 Rose Circle
College Station, TX 77840
HC:jls
COLLEGE STATION
Thank you for your material.
P. 0 Box 9960 • 1101 Texas Avenue • College Station, TX 77842
Tel: 409 764 3500
October 24, 2000
Dear Mr. Carlson:
Your information will be forwarded to Mr. Jim Callaway, Director of
Development Services. Mr. Callaway is working with consultants who are
reviewing the City's zoning ordinance.
Several Texas cities have adopted historic preservation ordinances.
Sincerely,
7,4
Harvey Cargill, Jr.
City Attorney
O: group / legal /HC/leriers/2000/brazell.doc
Home of Texas A &M University
Mr. Harvey Cargill, City Attorney
City of College Station
P.U. Box 9960
College Station, TX 77842
Dear Mr. Cargill:
Shawn B. Carlson
1031 Rose Circle
College Station, TX 77840
Tel. (979)694 -1522; e -mail scarlson@tca.net
As you may already know, on October 10 I met with Tom Brymer, Glenn Brown, Steve
Beachy, and Jim Callaway regarding transfer of the Historic Preservation Committee from Parks
and Recreation to Development Services. This transition will take place over the next few months
and be completed by January.
One of the items that we discussed was the Committee's desire to create an historic preservation
ordinance as a measure of protection for College Station's older neighborhoods. To date, the
Committee has defined and approved boundaries for our historic areas based on plat dates of
1950 or earlier for the various subdivisions. We have a set of maps prepared by the GIS
department that I will have forwarded to you shortly.
We also have acquired a model ordinance prepared by the Texas Historical Commission that is
currently used by ca. 60-70 Texas cities. I assume it is a sound document and have enclosed it for
your review. It is my understanding that this ordinance, with simple modifications, can be
implemented as is and that design standards can be added to amend it over time.
If our older neighborhoods are legally recognized as historic districts, then homeowners may
become eligible for tax credits such as the Historic Homeownership Assistance Act described by
the National Trust for Historic Preservation in the enclosed article. Incentives such as this would
be readily welcomed in these neighborhoods.
I sincerely hope that you will work with us in this endeavor and will be happy to provide you with
any additional information that you require_
Respectfully,
Shawn B. Carlson. Chair
College Station Historic Preservation Comrnittee
cc: Mr. Tom Brymer, City Manager
Mr. Lee Battle, Neighborhood Planner
Mr. David Gerlmg, City liaason to 11PC
RECEIVED
LEGAL DEPARTMENT
OCT 2 3 2000
CITY OF
COLLEGE STATION
umber 1
Guidelines for Drafting - (Historic Preservation Ordinances
and
Model•Ordinance
Table of Contents
• a'
•
Introduction 1
Part I: Guidelines for Drafting Historic Preservation Ordinances 2
Steps in Drafting an Ordinance 2
Background for Drafting an Ordinance 3
Legal Background for Drafting an Ordinance 4
Questions for Preparing an Ordinance 5
Checklist for Reviewing an Ordinance 6
Administration of an Ordinance 6
Part II: Model Ordinance 7
Appendices: 15
Appendix A: Definitions 15
Appendix B: Bibliography 17
Appendix C: Chapter 211. Municipal Zoning Authority 18
Introduction
This is the first in a series of papers prepared to assist local governments in developing sound legislative
and administrative programs to protect the historic resources in their communities.
Most of the emphasis in recent preservation planning has been placed on the identification,
restoration, and rehabilitation of historic properties in our communities. Although this effort is
important and necessary, little attention has been given to actually protecting these properties from
demolition or exterior alterations that destroy the historic integrity. The continued loss and
deterioration of our historic built environment has led to a need for land use controls that slow or halt
these activities. Such explains the growing interest among local governments in writing and adopting
historic preservation ordinances. The need for technical assistance in order to facilitate this interest is
more important than ever.
To meet this need, the Texas Historical Commission offers this document. We made an effort to present
the information in a straightforward manner. The language is intended to be understood by the
general public and largely devoid of complex legal terms. For greater clarity and consistency,
definitions of all italicized words found in this document are provided for reference in Appendix A.
We encourage you to use the information provided, but caution you on the following:
(1) Each community is unique and adjustments will be required in the model ordinance to make
the material appropriate for your local government administration and political setting.
(2) Just as we recommend against automaticall ad
yopting the enclosed model ordinance, the
same is true ofordinances from other municipalities. Some local governments may have adopted
legislation with little knowledge of developments in preservation law or acknowledgment of
broader land use law considerations. Therefore, some ordinances may lack critical areas
necessary for implementation in Texas.
(3) The enclosed model ordinance is designed for municipalities interested in applying for
Certified Local Government designation. Extreme deviations for the major areas may jeopardize
designation if such is later sought by the local government.
(4) This model ordinance excludes specific references to archeological resources. If specific
mention is necessary in your community, then the wording should be added and the language
amended as appropriate in the ordinance.
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After the initial decision is made to prepare an ordinance, the leaders must begin their work. The
following are typical steps taken in drafting an ordinance.
1.1 Outlined Steps
(A) Organize a Task Force. A small number of interested citizens should be organized to work on the
proposed ordinance. It may be useful to include lawyers, planners, or architects when available.
You may choose to contact your city legal and planning staff for assistance at this time.
(B) Collect Sample Ordinances. Write to several nearby cities that are known to have preservation
ordinances and request copies of their ordinances. The Texas Historical Commission maintains a
file of ordinances from many cities in Texas. Copies may be provided upon request.
(C) Visit Other Communities with Ordinances. It may be beneficial to visit nearby communities with
ordinances to better understand their review process and implications of their ordinance.
(D) Attend a Commission Meeting. If possible, one or two members of the task force should attend a
commission meeting in a nearby community to observe the process for reviewing applications by
the commission.
Section 1: Steps in Drafting an Ordinance
1.0 Introduction
Part l
Guidelines for Drafting
Historic Preservation Ordinances
(E) Determine Possible Landmarks /Districts. A working list of possible landmarks or districts should be
prepared for further study. Commercial or residential areas may be different in regards to review
and designation.
(F) Determine Significance of the Landmarks /Districts. Some preliminary research should be
conducted on the possible landmarks and districts to assess historic or architectural significance.
This will be useful before designation.
(G) Prepare a List of Property Owners. Develop a working list of property owners with addresses for
each landmark and district determined significant. This will be useful in contacting property
owners for support.
(H) Gauge the Political Setting. Always be aware of the political environment in your community for
land use regulation. This is an essential factor in implementation of a design review process. If you
feel an elected official is supportive, it may be helpful to include him or her in your planning.
(I) Draft an Ordinance. A rough draft of an ordinance is useful for formal discussion of the legislation.
Such a document should be sent to selected individuals outside of the community for review and
comment.
(J) Sponsor an Informal Public Meeting. It is essential to gauge the public sentiment toward such an
ordinance. An informal meeting of property owners of landmarks and proposed districts may be
helpful in developing broader support for the ordinance.
(K) Revise the Draft of the Ordinance. After soliciting comments from various individuals and groups, a
revised draft should be prepared incorporating appropriate suggestions. This should reflect the
broad sentiment of the property owners and task force as much as possible.
(L) Prepare for Delivery to the City Staff and Council. If contact was not established early in the work
with the city staff, such should be done at this point. The appropriate individual or department will
differ from community to community. Be sure the municipal process that allows for consideration
of your ordinance is clear and understood by your task force. You should always follow up after
delivering the ordinance to ensure that it travels through the correct city channels.
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Section 2: Background for Drafting an Ordinance
2.0 Introduction
For most people this will be the first effort to draft a preservation ordinance. Unless you are a lawyer,
planner, or professional familiar with ordinances, the exercise may be especially challenging. The
following information is provided for those needing an introduction to legislative activities involving
preservation and land use.
2.1 Legislative Considerations
A. Police Power
The legal authority for preservation ordinances begins with the United States Constitution which
allows state and local governments to protect the "health, safety, morals, and welfare" of the general
public through the enactment of laws. This basic tenet, called police power, is the authority from
which all land use ordinances extend (e.g., zoning, historic preservation, aesthetic). Municipalities
refer to this authority when enacting preservation ordinances that allow design review of designated
historic landmarks and districts. Because of this underlying authority, challenged ordinances have
been consistently upheld by courts as constitutionally sound.
B. Enabling Legislation
The State of Texas through its legislature establishes the parameters for local governments when
individual property rights, such as land use controls in ordinances, are addressed. This legal document
or enabling legislation allows a local government to enact laws that restrict some property rights. It
becomes statutory law. In Texas, the enabling legislation is given in Chapter 211 of the Texas Local
Government Code, Municipal Zoning Authority. (Note: Counties in Texas have not been granted
similar authority through enabling legislation.)
The provisions that specifically pertain to historic preservation in Chapter 211 are:
Section 211.001. Zoning powers granted 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.
Section 211.003. In the case of designated places and areas of historical, cultural, or architectural
importance and significance, the governing body of a municipality may regulate the construc-
tion, reconstruction, alteration, or razing of buildings and other structures.
Section 211.005. The governing body of a municipality may divide the municipality into districts of
a number, shape, and size the governing body considers best. Within each district, the governing
body may regulate the creation, construction, reconstruction, alteration, repair, or use of
buildings, other structures, or land. Zoning regulations must be uniform for each class or kind of
building in a district, but the regulations may vary from district to district.
Although there are only three references to historic zoning in the Municipal Zoning Authority Code,
the entire legislation must be considered when adopting an ordinance. The most important
consideration is not to exceed the authority granted by the Act.
C. Classification of Municipalities
The State of Texas recognizes two types of municipalities in statutory law: general law cities (under
5,000 in population) and home rule cities (over 5,000 in population that adopt a city charter). Both
general law and home rule cities may adopt zoning laws and therefore preservation ordinances.
However, there is more flexibility allowed for home rule cities.
D. Special Districts and Overlay Zones
Historic zoning establishes special districts and works as an overlay zone. This means that the zoning
does not affect the land use restrictions set by a broader comprehensive land use plan, but instead, the
historic significance overlays the existing use and is an additional regulation on property. For example,
a land use zone may require single - family houses on 50,000- square -foot lots in a particular
neighborhood. The overlay of a historic district on that street will not affect the single - family houses on
50,000- square -foot lots, but does mean the owners of the houses must apply to the local preservation
commission before making exterior alterations to their homes. Therefore, before a historic zoning
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overlay may be adopted either as an individual landmark or district, the municipality must have a
comprehensive plan. This requirement is outlined in Section 211.004 in the Municipal Zoning
Authority of the Texas Local Government Code.
Section 3: Legal Background for Drafting an Ordinance
3.0 Introduction
In addition to the statutory law derived from legislative activities, there is case law. This body of law is
established through judicial cases and court decisions. The results of these cases hold equal weight in
the eyes of the courts. Below are important cases that should be considered when drafting an
ordinance.
3.1 United States Supreme Court Decisions and Preservation Ordinances
A. Penn Central Transportation Co. v. New York City, 98 S. Ct 2646 (1978).
Penn Central argued that New York City's denial of a building permit constituted a taking without
compensation and that New York City's ordinance was unconstitutionally discriminatory against Penn
Central by designating the terminal as an individual historic landmark. The United States Supreme
Court held that:
(1) No taking occurred because Penn Central was not denied all reasonable economic use of the
property. A mere showing of a negative economic impact does not constitute a taking. Penn
Central is still able to operate as a terminal and to receive an appropriate return for its operations.
(2) Although the zoning ordinance applies to individual parcels, this does not constitute
discriminatory spot zoning since the ordinance embodies a comprehensive plan to preserve
structures of historic or aesthetic interest.
B. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 107 S. Ct. 2378 (1987).
A flash flood destroyed the Church's buildings used for a camp. The county enacted an interim
ordinance which effectively prohibited the Church from rebuilding. The Church asserted that this
constituted a taking since it was denied all use of Lutherglen.
(1) Once the court determines that a taking has occurred, the government retains a range of
available options such as the amendment or withdrawal of the regulation or the exercise of
eminent domain. However, where government activities have already worked a taking of all use
of property, no subsequent action by the government can relieve it of duty to provide
compensation for the period during which the taking was effective.
(2) This holding is limited to the facts presented but the highest court realized that its decision will
limit the freedom and flexibility of land use planners and governing bodies of municipal
corporations when enacting land use regulations.
3.2 Texas Courts and Preservation Ordinances
A. Connor v. City of University Park, 142 S.W. 2d 706 (Tex.Civ. App. — Dallas 1940, writ ref'd)
The court recognized that "aesthetic considerations" in land use regulation is a matter of general
welfare. This case was decided prior to the amendments to the Municipal Zoning Authority which
provides for historic preservation.
B. City of Dallas v. Crownrich, 506 S.W. 2d, 654 ( Tex.Civ.App. —Tyler 1974, writ ref'd n.r.e.)
The City denied Crownrich's application to build a high rise apartment building within an area which
was merely proposed as a historic district. The trial court ordered the permit issued since the historic
zoning ordinance had not been adopted. The Tyler Court of Civil Appeals reversed the lower court
and held that Dallas' broad police power enabled it to protect property affected by impending zoning
regulation.
C. Southern National Bank of Houston v. City of Austin, 582 S.W. 2d 229 (Tex.Civ.App. — Tyler 1979, writ
ref'd n.r.e.)
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The historic zoning ordinance at issue provided that the moment a building was placed on the agenda
for historic designation consideration by the Landmark Commission, certain restrictions such as
prohibitions against demolition and exterior change immediately attached. This zoning provision was
struck down for several reasons.
(1) First, the court held at 238, that this provision amounted to a servitude on the owner's property
with no provision for any compensation, thus, constituting a violation of Article 1, Section 17 of
the Texas Constitution.
(2) The court held that the enactment of a zoning ordinance and the historic zoning powers of
historic designation, regulation, and restriction are nondelegable powers which can be
performed only by the local legislative body. The court viewed the Landmark Commission's
consideration (and not the City Council's consideration) and the causing of restriction to attach
as tantamount to a temporary historic designation and as an usurpation of the legislative
authority of the City Council.
(3) The court found this ordinance to deprive the owner of equal protection of the law because it
did not provide a time limit for the City Council's final consideration once the Landmark
Commission recommended historic designation. (See page 239.) This could cause the restrictions
to attach for possibly an indefinite period of time.
(4) The court held this provision to be unconstitutionally vague since it was totally void of
certainty. (See page 239.)
Section 4: Questions for Preparing an Ordinance
4.0 Introduction
The basic purpose of an ordinance is to establish a process for protecting historic resources. This
process is set up by answering the questions given in the next section.
4.1 Questions
Why are you drafting this ordinance? This is answered in the "purpose" clause of an ordinance. For
example, the purposes may include fostering civic pride, attracting visitors, and generating economic
prosperity for the community. The "purpose" clause is an important part of any ordinance for it
explains the advantages to enacting this land use control.
Who enforces the ordinance? Every ordinance sets up a preservation commission to oversee the
enforcement of the ordinance and assigns it responsibilities or powers. Some ordinances will specify
the qualifications of its members while others simply state that a certain number is required but that all
members must have an interest.
What resources does the ordinance protect? All ordinances should state the criteria to be used in
designating resources, both individual landmarks (buildings, structures, objects) and districts (districts,
sites). This often corresponds to the National Register of Historic Places criteria, but may deviate as
determined by the local government.
How do you designate properties under the ordinance? Every ordinance should clearly spell out the
process for designating landmarks and districts. This includes recommendations for designation,
notification of property owners, commissions, or boards reviewing it, and the final decision- making
and designation process.
When and how does a property owner apply for review? This is one of the most fundamental parts of
the ordinance and should be clear and direct so that the property owner understands. Exceptions from
the review process (economic hardship, ordinary maintenance) must be stated as must the criteria for
review and application procedure. It is this question that must clearly address the demolition of
properties either willfully or by neglect.
How do you insure compliance? All ordinances should include a penalty clause that states what the
procedure is for noncompliance. This is usually the final clause in the ordinance and is identical to the
penalty for non - compliance with the overall zoning ordinance.
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Section 5: Checklist for Reviewing an Ordinance
5.0 Introduction
After you have drafted an ordinance, check it for the following items:
5.1 Checklist
(1) Are specific criteria spelled out in the ordinance concerning the designation of historic landmarks
and districts as well as the issuance or denial of certificates of appropriateness?
(2) Does the ordinance provide for a due process hearing when designating a property or appealing a
decision on a certificate of appropriateness? Because historic overlay zoning involves a property
interest, a property owner is entitled to a hearing. A record should be made and retained in case it is
appealed to the judicial system.
(3) Does the ordinance include a hardship clause? This is essential in order to withstand a constitutional
challenge.
(4) Is the city council /commission ultimately responsible for designating properties? The ordinance
itself and any designations of landmarks or districts in subsequent ordinances must be passed by the
city council or commission. This is because they are zoning functions that according to the Tyler Court
of Appeals is a non - delegable duty which must be ultimately exercised by the governing body. Refer to
the Southern National Bank case given earlier.
(5) Are specific time limits given for the appeals process and for rendering a decision by the landmark
commission and city council /commission? Again, refer to the Southern National Bank case described
earlier.
Section 6: Administration of an Ordinance
6.0 Introduction
Although the ordinance sets up the process for protecting historic resources, it remains with the
elected officials, preservation commission, and municipal staff to administer the ordinance as passed.
To meet this end, it may be necessary for additional items to be prepared to assist in the administration.
6.1 Additional Administrative Concerns
(1) Design review guidelines that specifically address local issues and properties should be prepared
and used by the landmark commission. Such guidelines are an important tool for communicating to
property owners and helpful to the commissioners in their decision - making. The failure to prepare
and distribute such guidelines may be construed by a court as not allowing due process.
(2) Another administrative task may be to conduct an intensive survey of your designated historic
districts so that all primary and secondary buildings, structures, and landscape features are recorded
for the inventory. Included in this may be additional photography work (black and white photographs,
color slides) as well as thorough property descriptions.
C (3) If not already in place, an area or city -wide comprehensive historic preservation plan that outlines
specific goals and objectives may be important to guide the work of the elected officials and the
preservation commission.
(4) Another administrative task may be to design incentive programs for property owners in designated
districts and individual landmarks. Some incentives may include local marker, tax abatement, or grant
and loan programs. Incentives are popular and often considered essential to building a successful local
preservation program.
(5) An early and repeated effort to coordinate with other administrative offices within the city
government should be made. Special attention should be given to the building inspection and
community development departments because of the frequent interaction of programs. Building a
support network within your local government is essential for the success of any ordinance.
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Part 11
Model Ordinance
Historic Landmark and District Zoning Ordinance
WHEREAS, CH. 211 TEXAS LOCAL GOVERNMENT CODE, the Municipal Zoning Authority,
specifically authorizes zoning functions and procedures for municipalities; and
WHEREAS, CH. 211 TEXAS LOCAL GOVERNMENT CODE, Section 211.003 provides that in the case of
designated places and areas of 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; and
WHEREAS, CH. 211 TEXAS LOCAL GOVERNMENT CODE, Section 211.005 authorizes the governing
body of a municipality to divide the municipality into districts, within which the governing body may
regulate the erection, construction, reconstruction, alteration, repair, or use of buildings, other
structures, or land and within which zoning regulations must be uniform for each class or kind of
building in a district; however, zoning regulations may vary from district to district.
NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF
That the following Historic Landmark and District Zoning Ordinance is hereby (adopted, amended,
enacted) as part of the comprehensive zoning plan, pursuant to CH. 211 TEXAS LOCAL GOVERNMENT
CODE.
Section 1. Purpose
The City Council of hereby declares that as a matter of public policy
the protection, enhancement, and perpetuation of landmarks or districts of historical and cultural
importance and significance is necessary to promote the economic, cultural, educational, and general
welfare of the public. It is recognized that the represents the
unique confluence of time and place that shaped the identity of generations of citizens, collectively
and individually, and produced significant historic, architectural, and cultural resources that constitute
their heritage. This act is intended to:
(a) protect and enhance the landmarks and districts which represent distinctive elements of
's historic, architectural, and cultural heritage;
(b) foster civic pride in the accomplishments of the past;
(c) protect and enhance 's attractiveness to visitors and the
support and stimulus to the economy thereby provided;
(d) insure the harmonious, orderly, and efficient growth and development of the village/
town /city;
(e) promote economic prosperity and welfare of the community by encouraging the most
appropriate use of such property within the village /town /city;
(f) encourage stabilization, restoration, and improvements of such properties and their values.
[Note: Other purposes may be included, but a general statement on aesthetics should be avoided in
most cases. Significant or unusual geographic and historic features may be mentioned here, e.g.,
riverfront, oceanfront, town form, etc., and how it is integral to the village /town /city.]
[Note: A list of definitions conforming to the ordinance should be included at this point. You may refer
to the attached appendix for appropriate definitions.]
Section 2. Historic Preservation Commission
There is hereby created a commission to be known as the Historic
Preservation Commission.
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1
[Note: Other possible names include Landmark Commission,
Historic District and Landmark Commission, or Board of Architectural
Review.]
(a) The Commission shall consist of members to be appointed, to the extent
available among the residents of the community, by the (mayor, council, commission) as follows.
These are possible representatives.
at least one shall be an architect, planner, or representative of a design profession;
at least one shall be a historian;
at least one shall be a licensed real estate broker;
at least one shall be an attorney;
at least one shall be an owner of a landmark or of a property in a historic district;
at least one shall be a member of
[Note: This blank should include the name of whatever preservation nonprofit exists.]
at least one shall be an archeologist or from a related discipline;
(b) All Commission members, regardless of background, shall have a known and demonstrated
interest, competence, or knowledge in historic preservation within the village /town /city of
(c) The Commission as a whole shall represent the ethnic makeup of the village /town /city.
(d) Commission members shall serve for a term of (at least two) years, with the exception that
the initial term of members shall be years, and members shall be years.
[Note: The term may be set for one, two, or whatever necessary period to achieve a staggered term.]
(e) The Chairman and Vice Chairman of the Commission shall be elected by and from the members
of the Commission.
[Note: They also may be appointed by the mayor, council, or commission.]
(f) The Commission shall be empowered to:
(i) Make recommendations for employment of staff and professional consultants as necessary to
carry out the duties of the Commission.
(ii) Prepare rules and procedures as necessary to carry out the business of the Commission, which
shall be ratified by the City Council.
(iii) Adopt criteria for the designation of historic, architectural, and cultural landmarks and the
delineation of historic districts, which shall be ratified by the City Council.
(iv) Conduct surveys and maintain an inventory of significant historic, architectural, and cultural
landmarks and all properties located in historic districts within the village /town /city.
(v) Recommend the designation of resources as landmarks and historic districts.
(vi) Create committees from among its membership and delegate to these committees
responsibilities to carry out the purposes of this ordinance.
(vii) Maintain written minutes which record all actions taken by the Commission and the reasons
for taking such actions.
(viii) Recommend conferral of recognition upon the owners of landmarks or properties within
districts by means of certificates, plaques, or markers.
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(ix) Increase public awareness of the value of historic, cultural, and architectural preservation by
developing and participating in public education programs.
(x) Make recommendations to the village /town /city government concerning the utilization of
state, federal, or private funds to promote the preservation of landmarks and historic districts
within the village /town /city.
(xi) Approve or disapprove of applications for certificates of appropriateness pursuant to this act.
(xii) Prepare and submit annually to the (mayor /council /commission) a report summarizing the
work completed during the previous year.
(xiii) Prepare specific design guidelines for the review of landmarks and districts.
(xiv) Recommend the acquisition of a landmark structure by the village /town /city government
where its preservation is essential to the purpose of this act and where private preservation is not
feasible. [optional]
(xv) Propose tax abatement programs(s) for landmarks or districts. [optional]
(xvi) Accept on behalf of the village /town /city government the donation of preservation
easements and development rights as well as any other gift of value for the purpose of historic
preservation, subject to the approval of the City Council. [optional]
(g) The Commission shall meet at least monthly, if business is at hand. Special meetings may be
called at any time by the Chairman (or mayor) or on the written request of any two Commission
members. All meetings shall be held in conformance with the Texas Open Meetings Act, Texas Civil
Statutes, Article 6252 -17.
(h) A quorum for the transaction of business shall consist of not less than a majority of the full
authorized membership.
Section 3. Appointment of Historic Preservation Officer
The (mayor, council, commission) or a designee shall appoint a qualified village /town /city official, staff
person, or appropriate resident of the municipal entity to serve as historic preservation officer. This
officer shall administer this ordinance and advise the Commission on matters submitted to it.
In addition to serving as representative of the Commission, the officer is responsible for coordinating
the village /town /city's preservation activities with those of state and federal agencies and with local,
state, and national nonprofit preservation organizations.
[Note: In the absence of a qualified official or staff person of the municipality, a volunteer resident
serving as preservation officer should be aware of the liability issues involved in serving in this
capacity.]
Section 4. Designation of Historic Landmarks
(a) These provisions pertaining to the designation of historic landmarks constitutes a part of the
comprehensive zoning plan of the City of
(b) Property owners of proposed historic landmarks shall be notified prior to the Commission
hearing on the recommended designation. At the Commission's public hearing, owners, interested
parties, and technical experts may present testimony or documentary evidence which will become
part of a record regarding the historic, architectural, or cultural importance of the proposed historic
landmark.
(c) Upon recommendation of the Commission, the proposed historic landmark shall be submitted
to the Zoning Commission within thirty (30) days from the date of submittal of designation request.
The Zoning Commission shall give notice and conduct its hearing on the proposed designation
within forty -five (45) days of receipt of such recommendation from the Commission. Such hearing
shall be in the same manner and according to the same procedures as specifically provided in the
general zoning ordinance of the City of . The Zoning Commission
9
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shall make its recommendation to the City Council within forty -five (45) days subsequent to the
hearing on the proposed designation.
(d) The City Council shall schedule a hearing on the Commission's recommendation to be held
within forty -five (45) days of receipt of the recommendation of the Zoning Commission. The City
Council shall give notice, follow the publication procedure, hold hearing, and make its
determination in the same manner as provided in the general zoning ordinance of the City of
[Note: The general zoning ordinance should provide a time limit within which the City Council must
make its determination. Time limits may be set in accordance with the city's own zoning ordinance.]
(e) Upon designation of a (building, object, site, structure) as a historic landmark or district, the City
Council shall cause the designation to be recorded in the Official Public Records of Real Property
of County, the tax records of the City of
and the Appraisal District as well as the official zoning maps of the City
of . All zoning maps should indicate the designated landmarks
with an appropriate mark.
Section 5. Designation of Historic Districts
(a) These provisions pertaining to the designation of historic district constitute a part of the
comprehensive zoning plan of the City of
(b) Property owners within a proposed historic district shall be notified prior to the Commission
hearing on the recommended designation. At the Commissioner's public hearing, owners,
interested parties, and technical experts may present testimony or documentary evidence which
will become part of a record regarding the historic, architectural, or cultural importance of the
proposed historic district.
(c) The Commission may recommend the designation of a district if it:
(i) Contains properties and an environmental setting which meet one or more of the criteria for
designation of a landmark; and,
(ii) Constitutes a distinct section of the village /town /city.
(d) Upon recommendation of the Commission, the proposed historic district shall be submitted to
the Zoning Commission within thirty (30) days from the date of submittal of designation request.
The Zoning Commission shall give notice and conduct its hearing on the proposed designation
within forty -five (45) days of receipt of such recommendation from the Commission. Such hearing
shall be in the same manner and according to the same procedures as specifically provided in the
general zoning ordinance of the City of . The Zoning Commission
shall make its recommendation to the City Council within forty -five (45) days subsequent to the
hearing on the proposed designation.
(e) The City Council shall schedule a hearing on the Commission's recommendation to be held
within forty -five (45) days of receipt of the recommendation of the Zoning Commission. The City
Council shall give notice, follow the publication procedure, hold hearings, and make its
determination in the same manner as provided in the general zoning ordinance of the City of
[Note: The general zoning ordinance should provide a time limit upon which the city council must
make its determination. Time limits may be set in accordance with the city's own zoning ordinance.]
(f) Upon designation of a historic district the City Council shall cause the designated boundaries to
be recorded in the Official Public Records of Real Property of
County, the tax records of the City of and the
Appraisal District as well as the official zoning maps of the City of . All
zoning maps should indicate the designated historic district by an appropriate mark.
Section 6. Criteria for the Designation of Historic Landmarks and Districts
A historic landmark or district may be designated if it:
10
[Note: National Register criteria are most easily and often used here. Additional criteria may be added
as appropriate. In order to have a valid zoning ordinance, criteria must be clearly established so that it
can withstand a challenge for being unconstitutionally vague.]
(a) Possesses significance in history, architecture, archeology, and culture.
(b) Is associated with events that have made a significant contribution to the broad patterns of local,
regional, state, or national history.
(c) Is associated with the lives of persons significant in our past.
(d) Embodies the distinctive characteristics of a type, period, or method of construction.
(e) Represents the work of a master designer, builder, or craftsman.
(f) Represents an established and familiar visual feature of the neighborhood /village /town /city.
Section 7. Certificate of Appropriateness for Alteration or New Construction Affecting Landmarks or
Historic Districts
No person shall carry out any construction, reconstruction, alteration, restoration, rehabilitation, or
relocation of any historic landmark or any property within a historic district, nor shall any person make
any material change in the light fixtures, signs, sidewalks, fences, steps, paving, or other exterior
dements visible from a public right -of -way which affect the appearance and cohesiveness of any
historic landmark or any property within a historic district.
[Note: In historic districts, it is a good idea to require a certificate of appropriateness for proposed new
construction to ensure compatibility with the existing historic resources of the district.]
Section 8. Criteria for Approval of a Certificate of Appropriateness
In considering an application for a certificate of appropriateness, the Commission shall be guided by
any adopted design guidelines, and where applicable, the following from The Secretary of the
Interior's Standards for the Rehabilitation of Historic Buildings. Any adopted design guidelines and
Secretary of the Interior's Standards shall be made available to the property owners of historic
landmarks or within historic districts.
(a) Every reasonable effort shall be made to adapt the property in a manner which requires minimal
alteration of the building, structure, object, or site and its environment.
(b) The distinguishing original qualities or character of a building, structure, object, or site and its
environment shall not be destroyed. The removal or alteration of any historic material or distinctive
architectural features should be avoided when possible.
(c) All buildings, structures, objects, and sites shall be recognized as products of their own time.
Alterations that have no historical basis and which seek to create an earlier appearance shall be
discouraged.
(d) Changes which may have taken place in the course of time are evidence of the history and
development of a building, structure, object, or site and its environment. These changes may have
acquired significance in their own right, and this significance shall be recognized and respected.
(e) Distinctive stylistic features or examples of skilled craftsmanship which characterize a building,
structure, object, or site shall be kept where possible.
(f) Deteriorated architectural features shall be repaired rather than replaced, wherever possible. In
the event replacement is necessary, the new material should reflect the material being replaced in
composition, design, color, texture, and other visual qualities. Repair or replacement of missing
architectural features should be based on accurate duplications of features, substantiated by
historical, physical, or pictorial evidence rather than on conjectural designs or the availability of
different architectural elements from other buildings or structures.
(g) The surface cleaning of structures shall be undertaken with the gentlest means possible.
Sandblasting and other cleaning methods that will damage the historic building materials shall not
be undertaken.
11
(h) Every reasonable effort shall be made to protect and preserve archeological resources affected
by, or adjacent to, any project.
(i) Contemporary design for alterations and additions to existing properties shall not be discouraged
when such alterations and additions do not destroy significant historical, architectural, or cultural
material, and such design is compatible with the size, scale, color, material, and character of the
property, neighborhood, or environment.
(j) Wherever possible, new additions or alterations to buildings, structures, objects, or sites shall be
done in such a manner that if such additions or alterations were to be removed in the future, the
essential form and integrity of the building, structure, object, or site would be unimpaired.
Section 9. Certification of Appropriateness Application Procedure
(a) Prior to the commencement of any work requiring a certificate of appropriateness the owner shall
file an application for such a certificate with the Commission. The application shall contain:
(i) Name, address, telephone number of applicant, detailed description of proposed work.
(ii) Location and photograph of the property and adjacent properties.
[Note: Historical photographs may be requested here as well.]
(iii) Elevation drawings of the proposed changes, if available.
(iv) Samples of materials to be used.
(v) If the proposal includes signs or lettering, a scale drawing showing the type of lettering to be
used, all dimensions and colors, a description of materials to be used, method of illumination (if
any), and a plan showing the sign's location on the property.
(vi) Any other information which the Commission may deem necessary in order to visualize the
proposed work.
[Note:These requirements may be too extensive for small cities. If so, adjust them as necessary.]
(b) No building permit shall be issued for such proposed work until a certificate of appropriateness has
first been issued by the Commission. The certificate of appropriateness required by this act shall be in
addition to and not in lieu of any building permit that may be required by any other ordinance of the
village /town /city of
(c) The Commission shall review the application at a regularly scheduled meeting within sixty (60) days
from the date the application is received, at which time an opportunity will be provided for the
applicant to be heard. The Commission shall approve, deny, or approve with modifications the permit
within forty -five (45) days after the review meeting. In the event the Commission does not act within
ninety (90) days of the receipt of the application, a permit may be granted.
[Note: The Commission's decision is limited to those decisions stated in the ordinance, i.e., approve,
deny, or approve with modifications. Suspension of action for a specified time also can be provided for
in lieu of or in addition to these provided.]
(d) All decisions of the Commission shall be in writing. The Commission's decision shall state its
findings pertaining to the approval, denial, or modification of the application. A copy shall be sent to
the applicant. Additional copies shall be filed as part of the public record on that property and
dispersed to appropriate city departments, e.g., building inspection.
(e) An applicant for a certificate of appropriateness dissatisfied with the action of the Commission
relating to the issuance or denial of a certificate of appropriateness shall have the right to appeal to the
City Council within thirty (30) days after receipt of notification of such action. The City Council shall
give notice, follow publication procedure, hold hearings, and make its decision in the same manner as
provided in the general zoning ordinance of the city.
Section 10. Certificate of Appropriateness Required for Demolition
A permit for the demolition of a historic landmark or property within a historic district, including
12
' 1t
secondary buildings and landscape features, shall not be granted by the (building inspector or other
city official) without the review of a completed application for a certificate of appropriateness by the
Commission. as provided for in Section 7, 8, and 9 of the ordinance.
Section 11. Economic Hardship Application Procedure
(a) After receiving written notification from the Commission of the denial of a certificate of
appropriateness, an applicant may commence the hardship process. No building permit or demolition
permit shall be issued unless the Commission makes a finding that hardship exists.
(b) When a claim of economic hardship is made due to the effect of this ordinance, the owner must
prove that:
(i) the property is incapable of earning a reasonable return, regardless of whether that return
represents the most profitable return possible;
(11) the property cannot be adapted for any other use, whether by the current owner or by a
purchaser, which would result in a reasonable return; and
(iii) efforts to find a purchaser interested in acquiring the property and preserving it have failed.
(c) The applicant shall consult in good faith with the Commission, local preservation groupss and
interested parties in a diligent effort to seek an alternative that will result in preservation of the
property. Such efforts must be shown to the Commission.
(d) The Commission shall hold a public hearing on the application within sixty (60) days from the date
the application is received by the (building inspector, preservation officer). Following the hearing, the
Commission has thirty (30) days in which to prepare a written recommendation to the (building
inspector or other official). In the event that the Commission does not act within ninety (90) days of the
receipt of the application, a permit may be granted.
(e) All decisions of the Commission shall be in writing. A copy shall be sent to the applicant by
registered mail and a copy filed with the village /town /city clerk's office for public inspection. The
Commission's decision shall state the reasons for granting or denying the hardship application.
(f) An applicant for a certificate of appropriateness dissatisfied with the action of the Commission
relating to the issuance or denial of a certificate of appropriateness shall have the right to appeal to the
City Council within thirty (30) days after receipt of notification of such action. The City Council shall
give notice, follow publication procedure, hold hearings, and make its decision in the same manner as
provided in the general zoning ordinance of the city.
Section 12. Enforcement
All work performed pursuant to a certificate of appropriateness issued under this ordinance shall
conform to any requirements included therein. It shall be the duty of the (building inspector or other
official) to inspect periodically any such work to assure compliance. In the event work is not being
performed in accordance with the certificate of appropriateness, or upon notification of such fact by
the Commission and verification by the (designated employee), the (designated employee) shall issue
a stop work order and all work shall immediately cease. No further work shall be undertaken on the
project as long as a stop work is in effect.
Section 13. Ordinary Maintenance
Nothing in this ordinance shall be construed to prevent the ordinary maintenance and repair of any
exterior architectural feature of a landmark or property within a historic district which does not involve
a change in design, material, or outward appearance. In -kind replacement or repair is included in this
definition of ordinary maintenance.
[Note: Color may be included as ordinary maintenance if not part of that regulated in Section 7.]
Section 14. Demolition by Neglect
No owner or person with an interest in real property designated as a landmark or included within a
historic district shall permit the property to fall into a serious state of disrepair so as to result in the
13
deterioration of any exterior architectural feature which would, in the judgment of the Commission,
produce a detrimental effect upon the character of the historic district as a whole or the life and
character of the property itself.
Examples of such deterioration include:
(a) Deterioration of exterior walls or other vertical supports.
(b) Deterioration of roofs or other horizontal members.
(c) Deterioration of exterior chimneys.
(d) Deterioration or crumbling of exterior stucco or mortar.
(e) Ineffective waterproofing of exterior walls, roof, or foundations, including broken windows or
doors.
(f) Deterioration of any feature so as to create a hazardous condition which could lead to the claim
that demolition is necessary for the public safety.
Section 15. Penalties
Failure to comply with any of the provisions of this ordinance shall be deemed a violation and the
violator shall be liable for a misdemeanor charge, and be subject to a fine of not less than
nor more than for each day the violation
continues.
[Note: Penalties should conform to the penalties provided for in the existing zoning ordinance. The
Municipal Zoning Authority authorizes imprisonment as well as a civil penalty. It also should be noted
that if a violation occurs or is about to occur, the municipality is authorized to bring action to enforce
the ordinance. See Sec. 211.012 of the Municipal Zoning Authority.]
14
APPENDIX A: DEFINITIONS
alteration A physical change in or to a building.
architectural control Regulations governing the appearance or architectural style of buildings or
structures. Architectural control is a form of aesthetic zoning. (PAS, Report No. 322, p. 4)
building A building, such as a house, barn, church, hotel, or similar construction is created to shelter
any form of human activity. Building also may be used to refer to a historically and functionally related
unit, such as a courthouse and jail or a house and barn. (National Register Bulletin 24, p. 1)
case law This is the body of law developed through hearings and judgments of specific issues (cases) by
courts of law.
comprehensive plan A document or series of documents prepared by a planning commission or
department setting forth policies for the future of a community. Enabling statutes in many states
require zoning to be in accordance with a comprehensive plan. (PAS, Report No. 322, pp. 10 -11)
comprehensive historic preservation plan A document that integrates the various preservation
activities and gives them coherence and direction, as well as relates the community's preservation
efforts to community development planning as a whole. (National Register Bulletin 24, p. 61)
design review The decision - making process conducted by an established review committee of a local
government that is guided by the terms set in the historic preservation ordinance.
design review guidelines These are a set of guidelines adopted by the commission that details
acceptable alterations of designated properties. They are usually generously illustrated and written in a
manner that would be understood by most property owners.
district A district possesses a significant concentration, linkage, or continuity of sites, buildings,
structures, or objects united historically or aesthetically by plan or physical development. (National
Register Bulletin 24, p. 1)
due process (of law) A requirement that legal proceedings be carried out in accordance with
established rules and principles. (PAS, Report No. 322, p. 14)
enabling legislation State legislation that grants certain authority to local governments so that they may
direct the development of their communities. Chapter 211, Municipal Zoning Authority is the
legislation that enables municipalities in Texas to zone and designate historic landmarks and districts as
part of the comprehensive zoning plan.
general law cities This refers to incorporated municipalities with populations under 5,000. These cities
must conform to the general laws of the state of Texas.
historic property A district, site, building, structure, or object significant in American history,
architecture, engineering, archeology, or culture at the national, state, or local level.
historic resource This generally is the same as a historic property. It includes architectural, historical,
and archeological properties as well as landscape features.
home rule cities This refers to incorporated municipalities with populations over 5,000. These cities
must adopt a home rule charter and are granted more independence in their local decision making.
intensive survey A systematic detailed examination of an area designed to gather information about
historic properties sufficient to evaluate them against predetermined criteria of significance.
integrity The authenticity of a property's historic identity, evidenced by survival of physical
characteristics that existed during the property's historic or prehistoric period.
inventory A list of historic properties that have been identified and evaluated as meeting specified
criteria of significance.
15
landmark This refers to any individual building, structure, or object that is significant for historical,
architectural, or archeological reasons.
object The term object is used to distinguish from buildings and structures those constructions that are
primarily artistic in nature or are relatively small in scale and simply constructed. Although it may be, by
nature or design, movable, an object is associated with a specific setting or environment, such as
statuary in a designed landscape. (National Register Bulletin 24, p. 1)
ordinary maintenance This generally refers to activities relating to a property that would be considered
ordinary or common for maintaining the property, such as the replacement of a porch floor with
identical or in -kind materials. It also may include other activities such as painting.
overlay zones A set of zoning requirements that is described in the ordinance text, is mapped, and is
imposed in addition to those of the underlying district. Development within the overlay zone must
conform to the requirements of both zones or the more restrictive of the two. (PAS, Report No. 322, p.
24)
police power The authority of government to exercise controls to protect the public's health, safety,
morals, and general welfare. (PAS, Report No. 322, p. 26)
preservation The act or process of applying measures to sustain the existing form, integrity, and
material of a building or structure, and the existing form and vegetative cover of a site. It may include
initial stabilization work, where necessary, as well as ongoing maintenance of the historic building
materials.
preservation planning This refers to the planning for the continued identification and evaluation of
historic properties and for their protection and enhancement. (National Register Bulletin 24, p. 61)
rehabilitation The act or process of returning a property to a state of utility through repair or alteration
which makes possible an efficient contemporary use while preserving those portions or features of the
property which are significant to its historical, architectural, and cultural values.
restoration The act or process of accurately recovering the form and details of a property and its setting
as it appeared at a particular period of time by means of the removal of later work or by the
replacement of missing earlier work.
site A site is the location of a significant event, a prehistoric or historic occupation or activity, or a
building or structure, whether standing, ruined, or vanished, where the location itself possesses
historical, cultural, or archeological value regardless of the value of any existing structure. (National
Register Bulletin 24, p. 1)
special district A district established to accommodate a narrow or special set of uses or for special
purposes. The term can signify any district beyond the conventional residential, commercial,
industrial, and agricultural districts. Examples include open space districts, hotel /motel districts, or
historic preservation districts. The establishment of special districts must have an appropriate police
power basis (these should be spelled out in the preamble or statement of purpose). (PAS, Report No.
322, p. 32)
statutory law This is the body of law established through statutes initiated and adopted by elected
officials participating in our legislative and executive branches of government.
structure The term structure is used to distinguish from buildings those functional constructions made
usually for purposes other than creating shelter. (National Register Bulletin 24, p. 1)
taking The appropriation by government of private land for which compensation must be paid. Under
the U.S. Constitution, property cannot be condemned through eminent domain for public use or
public purpose without just compensation. This is reasonably clear when government buys land
directly. But the "taking issue" is far Tess clear when the imposition of police power controls. (PAS,
Report No. 322, p. 34)
zoning A police power measure, enacted primarily by generavl 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. (PAS, Report No. 322, p. 38)
16
APPENDIX B: BIBLIOGRAPHY
Bowsher, Alice Meriwether. Design Review in Historic Districts, The Preservation Press, National Trust
for Historic Preservation, Washington, D.C., 1978.
Cole, Richard L. and Delbert A. Taebel. Texas, Politics and Public Policy, Harcourt Brace Jovanovich,
Inc., Orlando, Florida, 1987.
Dennis, Stephen N. "Do's and Don'ts in Drafting a Preservation Ordinance," National Center for
Preservation Law, Washington, D.C., July 10, 1987.
Derry, Anne et. al. Guidelines for Local Surveys: A Basis for Preservation Planning, National Register
Bulletin 24, National Register of Historic Places, Interagency Resources Division, National Park Service,
U.S. Department of the Interior, Washington, D.C., 1977, Revised 1985.
Duerkson, Christopher. Aesthetics and Land -Use Controls, Beyond Ecology and Economics, American
Planning Association, Planning Advisory Service, Report Number 399, 1986.
Duerkson, Christopher, ed. A Handbook on Historic Preservation Law, Conservation Foundation and
the National Center for Preservation Law, Washington, D.C., 1983.
Meshenberg, Michael J. The Language of Zoning, A Glossary of Words and Phrases, American
Planning Association, Planning Advisory Service, Report Number 322, 1976.
Ridley, Katherine Raub. "Reviewing a Local Historic Preservation Ordinance," excerpts from a
presentation to the Certified Local Government workshop in Pittsburgh, Pennsylvania, on June 15,
1987.
Roddewig, Richard J. Preparing a Historic Preservation Ordinance, American Planning Association,
Planning Advisory Service, Report Number 374, 1983.
Other helpful publications include the Preservation Law Reporter issued by the National Trust for
Historic Preservation in Washington, D.C., and the "Preservation Law Updates" prepared by the
National Center for Preservation Law. The latter may be contacted at 1233 20th Street N.W., Suite ,
Washington, D.C., 20036 or (202) 828 -9611.
17
APPENDIX C:
Title 7. Regulation of Land Use,
Structures, Businesses, and Related Activities
Subtitle A. Municipal Regulatory Authority
Chapter 211. Municipal Zoning Authority
Subchapter A. General Zoning Regulations
Section
211.001. Purpose
211.002. Adoption of Regulations or Boundary Includes Amendment or Other Change.
211.003. Zoning Regulations Generally.
211.004. Compliance With Comprehensive Plan.
211.005. Districts.
211.006. Procedures Governing Adoption of Zoning Regulations and District Boundaries.
211.007. Zoning Commission.
211.008. Board of Adjustment.
211.009. Authority of Board.
211.010. Appeal to Board.
211.011. Judicial Review of Board Decision.
211.012. Enforcement; Penalty; Remedies.
211.013. Conflict With Other Laws; Exceptions.
[Sections 211.014 to 211.020 reserved for expansion]
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.
Acts 1987, 70th Leg., ch. 149, 1, eff. Sept. 1, 1987.
211.002. Adoption of Regulation or Boundary Includes Amendment or Other Change
A reference in this subchapter to the adoption of a zoning regulation or a zoning district boundary
includes the amendment, repeal, or other change of a regulation or boundary.
Acts 1987, 70th Leg., ch. 149, 1, eff. Sept. 1, 1987
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 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.
Acts 1987, 70th Leg., ch 149, 1, eff. Sept. 1, 1987.
18
211.004. Compliance With Comprehensive Plan
Zoning regulations must be adopted in accordance with a comprehensive plan and must be designed
to:
(1) lessen congestion in the streets; (2) secure safety from fire, panic, and other dangers; (3)
promote health and the general welfare; (4) provide adequate light and air; (5) prevent the
overcrowding of land; (6) avoid undue concentration of population; or (7) facilitate the adequate
provision of transportation, water, sewers, schools. parks, and other public requirements.
Acts 1987, 70th Leg., ch. 149, 1, eff. Sept. 1, 1987.
211.005. Districts
(a) The governing body of a municipality may divide the municipality into districts of a number,
shape, and size the governing body considers best for carrying out this subchapter. Within each
district, the governing body may regulate the erection, construction, reconstruction, alteration,
repair, or use of buildings, other structures, or land.
(b) Zoning regulations must be uniform for each class or kind of building in a district, but the
regulations may vary from district to district. The regulations shall be adopted with reasonable
consideration, among other things, for the character of each district and its peculiar suitability for
particular uses, with a view of conserving the value of building and encouraging the most
appropriate use of land in the municipality.
Acts 1987, 70th Leg., ch. 149, 1, eff. Sept. 1, 1987.
211.006. Procedures Governing Adoption of Zoning Regulations and District Boundaries
(a) The governing body of a municipality wishing to exercise the authority relating to zoning
regulations and zoning district boundaries shall establish procedures for adopting and enforcing
the regulations and boundaries. A regulation or boundary is not effective until after a public hearing
on the matter at which parties in interest and citizens have an opportunity to be heard. Before the
15th day before the date of the hearing, notice of the time and place of the hearing must be
published in an official newspaper or a newspaper of general circulation in the municipality.
(b) In addition to the notice required by Subsection (a), a general -law municipality that does not
have a zoning commission shall give notice of a proposed change in a zoning classification to each
property owner who would be entitled to notice under Section 211.007(c) if the municipality had a
zoning commission. That notice must be given in the same manner as required for notice to
property owners under Section 211.007(c). The governing body may not adopt the proposed
change until after the 30th day after the date the notice required by this subsection is given.
(c) If the governing body of a home -rule municipality conducts a hearing under Subsection (a), the
governing body may, by a two- thirds vote, prescribe the type of notice to be given of the time and
place of the public hearing. Notice requirements prescribed under this subsection are in addition to
the publication of notice required by Subsection (a).
(d) If a proposed change to a regulation or boundary is protested in accordance with this
subsection, the proposed change must receive, in order to take effect, the affirmative vote of at least
three - fourths of all members of the governing body. The protest must be written and signed by the
owners of at least 20 percent of either:
(1) the area of the lots or land covered by the proposed change; or
(2) the area of the lots or land immediately adjoining the area covered by the proposed change
and extending 200 feet from that area.
(e) I n computing the percentage of land area under Subsection (d) the area of streets and alleys shall
be included.
(f) The governing body by ordinance may provide that the affirmative vote of at least three - fourths
of all its members is required to overrule a recommendation of the municipality's zoning
commission that a proposed change to a regulation or boundary be denied.
Acts 1987, 70th Leg., ch. 149, 1, eff. Sept. 1, 1987.
19
Cross References
Joint public hearing of governing body and zoning commission, notice, see 211.007. Property in
annexed area and not on municipal tax roll. notice of zoning commission hearing to be given in
manner provided in this section, see 211.007.
211.007. Zoning Commission
(a) To exercise the powers authorized by this subchapter, the governing body of a home -rule
municipality shall, and the governing body of a general -law municipality may, appoint a zoning
commission. The commission shall recommend boundaries for the original zoning districts and
appropriate zoning regulation for each district. If the municipality has a municipal planning
commission at the time of implementation of this subchapter, the governing body may appoint that
commission to serve as the zoning commission.
(b) The zoning commission shall make a preliminary report and hold public hearings on that report
before submitting a final report to the governing body. The governing body may not hold a public
hearing until it receives the final report of the zoning commission unless the governing body by
ordinance provides that a public hearing is to be held, after the notice required by Section
211.006(a), jointly with a public hearing required to be held by the zoning commission. In either
case, the governing body may not take action on the matter until it receives the final report of the
zoning commission.
(c) Before the 10th day before the hearing date, written notice of each public hearing before the
zoning commission on a proposed change in a zoning classification shall be sent to each owner, as
indicated by the most recently approved municipal tax roll, of real property within 200 feet of the
property on which the change in classification is proposed. The notice may be served by its deposit
in the municipality, properly addressed with postage paid, in the United States mail. If the property
within 200 feet of the property on which the change is proposed is located in territory annexed to
the municipality and is not included on the most recently approved municipal tax roll, the notice
shall be given in the manner provided by Section 211.006(a).
(d) The governing body of a home -rule municipality may, by a two - thirds vote, prescribe the type of
notice to be given of the time and place of a public hearing held jointly by the governing body and
the zoning commission. If notice requirements are prescribed under this subsection, the notice
requirements prescribed by Subsections (b) and (c) and by Section 211.006(a) do not apply.
(e) If a general -law municipality exercises zoning authority without the appointment of a zoning
commission, any reference in a law to a municipal zoning commission or planning commission
means the governing body of the municipality.
Acts 1987, 70th Leg., ch. 149, 1, eff. Sept. 1, 1987.
Cross References
Notice of proposed changes in classification by general -law municipality without a zoning
commission, application of this section, see 211.006.
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 five members to be appointed for terms of two years. The
appointing authority may remove a board member for cause 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 four alternate
board members to serve in the absence of one or more regular members when requested to do so
20
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 four members.
(e) The board shall adopt rules in accordance with any ordinance adopted under this subchapter.
Meetings of the board are held at the call of the chairman and at other times as determined by the
board. The chairman or acting chairman 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
examination and other official actions. The minutes and records shall be filed immediately in the
board's office and are public records.
Acts 1987, 70th Leg., ch. 149, 1, eff. Sept. 1, 1987.
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; and
(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.
(b) In exercising its authority under Subsection (a)(1), 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 four 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, 1, eff. Sept. 1. 1987.
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 a notice of appeal with the board and the official in question 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 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
21
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
staved 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.
Acts 1987, 70th Leg.. ch. 149, 1, eff. Sept. 1, 1987.
211.011. Judicial Review of Board 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 municipalit■.
(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 fact that
shows 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.
Acts 1987, 70th Leg., ch. 149, 1, eff. Sept. 1, 1987.
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 violation.
(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;
22
(2) restrain. correct, or abate the violation;
(3) prevent the occupancy of the building, structure, or land: or
(4) prevent any illegal act, conduct, business, or use on or about the premises.
Acts 1987, 70th Leg., ch. 149, 1, eff. Sept. 1, 1987.
211.013. Conflict with Other Laws: Exceptions
(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, 1, eff. Sept. 1, 1987
[Sections 211.014 to 211.020 reserved for expansion]
SUBCHAPTER B. ADDITIONAL ZONING REGULATIONS IN MUNICIPALITY WITH POPULATION OF
MORE THAN 290,000
211.021. Additional Zoning Regulations
(a) The governing body of a municipality with a population of more than 290,000 that has adopted a
comprehensive zoning ordinance under Subchapter A may, by ordinance, divide the municipality
into neighborhood zoning areas after a public hearing on the matter at which parties in interest and
citizens have an opportunity to be heard. Before the 15th day before the date of the hearing, notice
of the time and place of the hearing must be published in an official newspaper or a newspaper of
general circulation in the municipality.
(b) The mayor of the municipality, with the approval of the governing body, may appoint a
neighborhood advisory zoning council for each of the neighborhood zoning areas. Each zoning
council must be composed of five citizens who reside in the neighborhood zoning area. A zoning
council member is appointed for a term of two years.
(c) Each neighborhood advisory zoning council shall provide the zoning commission with
information, advice, and recommendations relating to each application filed with the zoning
commission for zoning regulation changes that affect property within that neighborhood zoning
area.
(d) On the filing of a zoning change application with the zoning commission, the zoning
commission shall provide the appropriate neighborhood advisory zoning council with a copy of the
application. The zoning council shall conduct a public hearing on the application and must publish
notice of the time and place of the hearing in an official newspaper or a newspaper of general
circulation in the municipality before the 10th day before the date of the hearing.
(e) At or before the zoning commission's hearing on the zoning change application, the
neighborhood advisory zoning council shall submit to the zoning commission any information,
advice, and recommendations relating to that application that the zoning council considers proper.
The zoning commission may not overrule a recommendation of the zoning council with respect to
the disposition of the application unless at (east three - fourths of the members of the zoning
commission who are present at the meeting vote to overrule the recommendation.
Acts 1987, 70th Leg., ch. 149, 1, eff. Sept. 1, 1987.
23
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diverse historic places and revitalize our communities.
IN THE NEWS
HISTORIC HOMEOWNERSHIP ASSISTANCE ACT
GAINS A MAJORITY OF
HOUSE SUPPORT
Tax Credit Would Benefit Lower- Income Homeowners In
Historic Districts
(Washington, D.C. July 31, 2000) - Homeowners seeking to
E -MAIL: improve their historic neighborhoods are one step closer to
pr@nthp.org their dream. The Historic Homeownership Assistance Act
(HR 1172/S 664) has achieved a majority of sponsors in the
Take Action! House, reflecting the broad bipartisan support behind the bill.
Visit our So far, 221 members of the House and 39 senators back the
Legislative measure. Majority support increases the likelihood that the
Action Center act will be passed in the current Congress_ Fifteen states have
On -line already passed similar legislation.
"Passage of the Historic Homeownership Assistance Act
would be a real benefit to lower- and middle- income
homeowners in historic neighborhoods," said Richard Moe,
president of the National Trust. "Contrary to popular belief,
most historic districts are home to people of modest means.
This tax credit would provide them with a much - needed
boost."
The act would establish an income tax credit (up to 20
percent of the cost of rehabilitation) for homeowners who
rehabilitate or purchase newly rehabilitated homes as their
primary residences. Homeowners without sufficient tax
liability to use the credits could transfer them to their
mortgage bankers and make a smaller downpayment or lower
mortgage rate on their house. Until now, there has been no
federal tax credit for such projects, though one exists for
owners of commercial buildings.
Eligible properties include those listed in the National
Register of Historic Places or contributing structures within
certified federal, state or local historic districts. The credit is
directed toward the housing stock in deteriorating
neighborhoods, making homeownership easier for people of
diverse income levels while rebuilding communities and
preserving historic buildings.
The legislation would help combat suburban sprawl by
promoting reinvestment in the sound housing stock and
existing infrastructure of older areas. Currently, federal tax
laws encourage low -density, land- consumptive development
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Preservation Frontline - News
What's Mew
or neighborhood demolition in the name of urban renewal or
highway construction.
The Historic Homeownership Assistance Act is sponsored by
E. Clay Shaw, Jr. (R -FL) and John Lewis (D -GA) in the
House, and Lincoln Chafee (R -R1) and Bob Graham (D -FL)
in the Senate. The late John Chafee, the current Senator's
father, was the original author of the legislation.
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