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HomeMy WebLinkAboutCommission Orientation presentationTown of Westlake Planning and Zoning Town of Westlake P & Z training Legal Areas: •Land Use law (Constitutional issues, state law and city ordinance) – zoning, platting, comprehensive plans •Open Meetings Act •Public Information Act Authority for zoning •Chapter 211, Texas Local Government Code •Westlake Ordinances – Code of Ordinances and Zoning Ordinance Zoning definition Zoning - The division of a municipality or area into districts and the prescription and application of different regulations in each district generally is referred to as zoning. A comprehensive zoning ordinance necessarily divides a municipality into certain districts and prescribes regulations for each one having to do with the architectural design of structures, the area to be occupied by them, and the use to which the property may be devoted. The use of a building may be restricted to that of trade, industry or residence. § 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 Planning & Zoning As a general rule, local governmental officials are afforded broad discretion in zoning matters Within this general framework, a municipality’s decision-making body is afforded considerable discretion in its zoning decisions. The decision-making body will not be judged according to whether its zoning decision was necessarily the best course for the community. However, there are issues which can be challenged in court. Area of Risk: 1. Constitutional Issues: i.e.: takings, discrimination 2. Statutory: Fair Housing Act, Manufacturing Housing, Oil & Gas drilling 3. Pre -determined decisions or outcomes Planning and Zoning •Speaking of oil and gas drilling – (little detour) •Gas Well issues became a more prominent matter in the last legislative session •HB 40 amended the Natural Resources Code by adding section 81.0523 Planning and Zoning Section 81.0523 Exclusive Jurisdiction and Express Preemption (a)In this Section: (1) “Commercially reasonable” means a condition that would allow a reasonably prudent operator to fully, effectively, and economically exploit, develop, produce, process, and transport oil and gas, as determined based on the objective standard of a reasonably prudent operator and not on an individualized assessment of an actual operator’s capacity to act. Planning and Zoning (2) “Oil and gas operation” means an activity associated with the exploration, development, production, processing, and transportation of oil and gas, including drilling, hydraulic fracture stimulation, completion, maintenance, reworking, recompletion, disposal, plugging and abandonment, secondary and tertiary recovery, and remediation activities. Planning and Zoning (b) An oil and gas operation is subject to the exclusive jurisdiction of this state. Except as provided by Subsection (c), a municipality or other political subdivision may not enact or enforce an ordinance or other measure, or an amendment or revision of an ordinance or other measure, that bans, limits, or otherwise regulates an oil and gas operation within the boundaries or extraterritorial jurisdiction of the municipality or political subdivision. Planning and Zoning (c) The authority of a municipality or other political subdivision to regulate an oil and gas operation is expressly preempted, except that a municipality may enact, amend, or enforce an ordinance or other measure that: (1) regulates only above ground activity related to an oil and gas operation that occurs at or above the surface of the ground, including a regulation governing fire and emergency response, traffic, lights, or noise, or imposing notice or reasonable setback requirements; Planning and Zoning (2) Is commercially reasonable; (3) Does not effectively prohibit an oil and gas operation conducted by a reasonably prudent operator; and (4) Is not otherwise preempted by state or federal law. (d) An ordinance or other measure is considered prima facie to be commercially reasonable if the ordinance or other measure has been in effect for at least five years and has allowed oil and gas operations at issue to continue during that period. Planning & Zoning •Section 211.007 of the Local Government Code provides that a home rule Town shall (and a general law Town may) appoint a zoning commission. •In Westlake, the zoning is in chapters 26, 62 and 102 of the Code of Ordinances Planning and Zoning Sec. 26-67. Planning and zoning commission. (a) Creation and membership. There is hereby created a planning and zoning commission for the town consisting of five regular members, each to be appointed by the town council for a term of two years and removable for cause. The terms of three members shall expire in odd-numbered years, and the terms of two members shall expire in even-numbered years. Each member shall continue to serve until their successors are appointed and qualified. In addition to the five regular members, one alternate member shall be appointed by the town council for a term of two years . The alternate member shall only vote in the absence of a regular member or in place of a regular member that has abstained. [Emphasis added.] Planning and Zoning 26-67(b) Powers and duties. The planning and zoning commission shall have the following powers and duties: (1) To serve as an advisory body to the board of aldermen concerning adoption of or amendments to the zoning regulations and zoning map and to make recommendations thereon; (2) To advise the board and make recommendations concerning adoption of, or amendments to, the town's comprehensive plan, thoroughfare plan, and open space plan and implementation thereof; (3) To oversee the town's regulations governing the platting and recording of subdivisions, including matters pertaining to the dedication of public facilities, and to advise the board on matters pertaining to public improvements, traffic, utility extensions and the provision of public facilities and services, in order to implement the town's comprehensive plan; (4) To undertake such actions as are necessary to exercise its delegated powers, as indicated by adopted ordinance; (5) To approve certain matters relating to platting and recording of subdivisions as dictated by the town's ordinances and the UDC; (6) To select a planning and zoning commission chair; (7) To call public hearings to initiate zoning changes. [Emphasis added.] Planning and Zoning Sec. 26-65. Public hearing conducted by planning and zoning commission. (a) Planning and zoning commission authority. The planning and zoning commission shall conduct a public hearing and make recommendations to the board of aldermen on the following matters : (1) Text amendments to the Unified Development Code. (2) Zoning changes and map amendments, including reclassification of the zoning designations on land, specific use permits, and planned developments. (3) Site plans for development. (4) Amendments to the Comprehensive Plan. (5) Amendments to the Thoroughfare Plan. (6) Amendments to the Open Space Plan. (7) Plats as required by chapter 82 (8) Replats, when such public hearing is required by the provisions of V.T.C.A., Local Government Code ch. 212. (b) Commission recommendation. Upon the closure of the public hearing, the planning and zoning commission shall make a recommendation to the board on the subject application. The planning and zoning commission may recommend that: (1) The request or amendment be approved or enacted; (2) The request or amendment be approved or enacted as modified to a more restrictive classification or subject to appropriate conditions as permitted by law; or (3) The request or amendment be denied. [Emphasis added.] Planning and Zoning •After the P & Z has made a recommendation it will go to the Town Council (referred to as the Board of Alderman in the ordinance) for final approval or denial. •If 20% of the owners within a 200 foot radius of the area proposed for change object, a ¾ vote of the Town Council is required. The Local Government Code, section 211.006(f) allows a municipality to adopt an ordinance requiring a ¾ vote to override a denial from P & Z, but I do not find any such ordinance in Westlake. Planning and Zoning Plats Sec. 82-33. Statutory procedure. (a) Official submission date. For the purpose of this chapter, the date on which an application for approval of a final plat containing all required elements mandated by V.T.C.A., Local Government Code § 212.004(b), is first filed with the town secretary shall constitute the official submission date for the plat, after which the statutory period required for approval or disapproval of the plat shall commence to run. No application shall be deemed filed until (i) all required filing fees are paid and (ii) the town engineer determines that the application is complete. Failure by the town engineer to make a determination of completeness within ten working days of the date of submission shall result in the application being deemed complete. (b) Compliance procedure for minor plats. The town engineer shall approve applications for minor plats within 30 days of the official submission date, or place the application on the agenda for planning and zoning commission action no later than 30 days after the official submission date; provided, however, that no applications for minor plats shall be accepted for filing within five working days of the last regularly scheduled meeting of the planning and zoning commission. Upon recommendation of the planning and zoning commission, the board of aldermen shall act on the application within 30 days. (c) Compliance procedure for all other plats. The town engineer shall place the plat application on a scheduled meeting of the planning and zoning commission prior to the expiration of 30 days following the official submission date. The planning and zoning commission shall recommend approval or disapproval of the application, or identify requirements which must be satisfied prior to approval of the application. If the planning and zoning commission fails to recommend approval or disapproval (disapproval includes the identification of requirements to be satisfied prior to approval) within 30 days of the official submission date, the application shall be deemed approved. Upon recommendation of the planning and zoning commission, the board of aldermen shall act on the application within 30 days. In the event of denial, any prior preliminary approvals shall remain in effect pending lapse under these regulations. Planning and Zoning Summary of process: •Application filed •Notices sent out by staff •Heard by P & Z which makes a recommendation •Heard by Town Council Planning and Zoning- Court Cases - Example of Court analysis The claim “The Mayhews alleged (1) just compensation takings claims, (2) “fails to substantially advance” takings claims, (3) substantive due process and due course claims, (4) equal protection claims, and (5) procedural due process and due course claims under the United States Constitution and Texas Constitution regarding the Town’s denial of their planned development application for 3,600 units.” These are most of the claims someone would make in a zoning challenge The Court first discussed ripeness – I do not think that concept is much help to you. Planning and Zoning – court analysis- just compensation (takings) “The Just Compensation Clause of the Fifth Amendment provides that “private property [shall not] be taken for public use, without just compensation.” This prohibition has been incorporated through the Fourteenth Amendment to apply to the individual states . [Citations omitted.] Similarly, article I, section 17 of the Texas Constitution provides, in pertinent part, that no ‘person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made....’” Planning and Zoning – Court analysis - takings “Takings can be classified as either physical or regulatory takings. Physical takings occur when the government authorizes an unwarranted physical occupation of an individual’s property. [Citation omitted.] The Mayhews do not claim that the Town has physically taken their property. Rather, the Mayhews allege that the denial of their planned development constitutes a regulatory taking.” Planning and Zoning – Court analysis- takings “Zoning decisions are vested in the discretion of municipal authorities; courts should not assume the role of a super zoning board . [Citations omitted.] However, despite the discretion afforded to municipal authorities, zoning decisions must comply with constitutional limitations. As a general rule, the application of a general zoning law to a particular property constitutes a regulatory taking if the ordinance ‘does not substantially advance legitimate state interests’ or it denies an owner all ‘economically viable use of his land.’ ” [Emphasis added.] Planning and Zoning – Court analysis- substantially advance Substantially advance “The Supreme Court has, however, indicated that “a broad range of governmental purposes and regulations” will satisfy these requirements. [Citation omitted.] Specifically, the Supreme Court has noted that the following state interests are legitimate state interests: protecting residents from the “ill effects of urbanization”; [Citation omitted.] enhancing the quality of life; [Citation omitted.] and protecting a beach system for recreation, tourism, and public health; [Citation omitted.]” “The ‘substantial advancement’ requirement examines the nexus between the effect of the ordinance and the legitimate state interest it is supposed to advance. “ Planning and Zoning –Court analysis –Takings –Substantially viable – next question – economic use “Our conclusion that the Town’s action substantially advances a legitimate state interest does not end the takings inquiry, however. A compensable regulatory taking can also occur when governmental agencies impose restrictions that either (1) deny landowners of all economically viable use of their property, or (2) unreasonably interfere with landowners’ rights to use and enjoy their property.” Planning and Zoning – Court analysis A restriction denies the landowner all economically viable use of the property or totally destroys the value of the property if the restriction renders the property valueless. [Citations omitted.] Determining whether all economically viable use of a property has been denied entails a relatively simple analysis of whether value remains in the property after the governmental action. Planning Zoning –Court analysis In contrast, determining whether the government has unreasonably interfered with a landowner’s right to use and enjoy property requires a consideration of two factors: the economic impact of the regulation and the extent to which the regulation interferes with distinct investment-backed expectations. [Emphasis added. Citations omitted.] The first factor, the economic impact of the regulation, merely compares the value that has been taken from the property with the value that remains in the property. [Citations omitted.] The loss of anticipated gains or potential future profits is not usually considered in analyzing this factor. [Citations omitted.]The second factor is the investment-backed expectation of the landowner. The existing and permitted uses of the property constitute the “primary expectation” of the landowner that is affected by regulation. [Citations omitted.] (owner’s reasonable expectations shaped by uses permitted by state law); [Citations omitted.] (“the courts have traditionally looked to the existing use of property as a basis for determining the extent of interference with the owner’s ‘primary expectation concerning the use of the parcel.’ ”) (quoting Penn Central, 438 U.S. at 136, 98 S.Ct. at 2665). Knowledge of existing zoning is to be considered in determining whether the regulation interferes with investment-backed expectations. [Citations omitted.] Planning and Zoning – Court analysis- no takings •Accordingly, we render judgment against the Mayhews on their regulatory takings claims. The Town’s denial of the planned development substantially advanced legitimate state interests and did not totally destroy the value of the Mayhews’ property or unreasonably interfere with their rights to use and enjoy their property. P & Z –Court analysis-Substantive Due Process •“A court should not set aside a zoning determination for a substantive due process violation unless the action ‘has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.’ ” P & Z –Court analysis-Substantive Due Process-Claim not successful “A generally applicable zoning ordinance will survive a substantive due process challenge if it is designed to accomplish an objective within the government’s police power and if a rational relationship exists between the ordinance and its purpose.” “This deferential inquiry does not focus on the ultimate effectiveness of the ordinance, but on whether the enacting body could have rationally believed at the time of enactment that the ordinance would promote its objective.” “We likewise conclude that the Town did not act irrationally or arbitrarily in denying the Mayhews’ planned development application.” P & Z –Court analysis-Equal Protection “An as-applied equal protection claim requires that the government treat the claimant different from other similarly-situated landowners without any reasonable basis. [Citations omitted.] The ordinance generally must only be rationally related to a legitimate state interest to survive an equal protection challenge, unless the ordinance discriminates against a suspect class. [Citations omitted.] Economic regulations, including zoning decisions, have traditionally been afforded only rational relation scrutiny under the equal protection clause.” Planning and Zoning - Court analysis – Equal Protection “An as -applied equal protection claim requires that the government treat the claimant different from other similarly-situated landowners without any reasonable basis. [Citations omitted.] The ordinance generally must only be rationally related to a legitimate state interest to survive an equal protection challenge, unless the ordinance discriminates against a suspect class. [Citations omitted.] Economic regulations, including zoning decisions, have traditionally been afforded only rational relation scrutiny under the equal protection clause.” Court found that he was not treated differently than other similarly situated owners. P & Z –Court analysis-Procedural Due Process “If an individual is deprived of a property right, the government must afford an appropriate and meaningful opportunity to be heard to comport with procedural due process. [Citations omitted.] Accordingly, a plaintiff alleging a procedural due process takings claim must establish that he was deprived of notice and an opportunity to be heard with respect to a decision affecting his property rights.” Court found against Plaintiff on this issue: “To satisfy the requirements of procedural due process, then, the Town must only provide notice and an opportunity to be heard, which it did. We conclude that the Mayhews are not entitled to prevail on their procedural due process claims.” Planning and Zoning – Court analysis- no recovery for Plaintiffs “. . .we render a take -nothing judgment against the Mayhews because we hold that, as a matter of law, the Mayhews did not prevail on their just compensation takings claims, “substantially advances” takings claims, substantive due process and due course claims, equal protection claims, and procedural due process and due course claims under the federal and state constitutions.” Planning and Zoning – Court analysis Even if the governmental regulation has not entirely destroyed the property’s value, a taking can occur if the regulation has a severe enough economic impact and the regulation interferes with distinct investment-backed expectations[Citation omitted] (takings are to be measured by the “economic impact of the regulation on the claimant and ... the extent to which the regulation has interfered with distinct investment-backed expectations”); [Citation omitted.] (sufficiently severe economic impact can constitute a taking). The reasonable investment-backed expectation of the claimant is critical to this analysis because it distinguishes this concept from those situations in which the landowner’s property has been totally destroyed. Because we conclude that the Mayhews had no reasonable investment - backed expectation to build 3,600 units on their property, we hold that the Town has not unreasonably interfered with their right to use and enjoy their property by denying their planned development proposal. Role of Staff Comply with all notice and publication rules. –Notice published in newspaper at least 15 days prior to public hearing. –Mail notice to all record property owners within 200 feet at least 10 days prior to public hearing. Review request for compliance with comprehensive plan, existing ordinances and good urban planning practices. Assist applicant in Town process. Communicate Council and community goals to applicant. Liaison for P&Z and Council. Provide professional advice, not policy making Role of P & Z •The commission shall recommend boundaries for districts and appropriate zoning regulations for each district. • Make a preliminary report • Hold public hearings • Provide final report to governing body Role of Town Council Legislative determination to promote public health, safety, morals or general welfare and to protect and preserve places and areas of historical, cultural or architectural importance and significance. Frequently Asked Questions 1.Can the area of land subject to a zoning change be increased? No. For a zoning change to occur, there must be public notice of the proposed change in zoning. Since the public notice contains a description of the property for which a zoning change is sought, there would not be adequate notice of change in the increased area. Frequently Asked Questions 2.Can the area of land subject to a zoning change be reduced? Yes . Since there has been public notice of the portion of land subject to a zoning change, decreasing the amount of land included in a zoning change would not violate the public notice requirements. The fact that a zoning change has been effected on only a portion of the land instead of all of the land is not injurious to those individuals who have an interest in the zoning change. Frequently Asked Questions 3. Can the area of land subject to a zoning change be zoned to a more intense use than it was advertised? No. In such a situation there would not have been adequate public notice. For example, if the public notice stated that there was an application to change land zoned agricultural to residential with lots of 10,000 square feet, the governing body of a municipality instead could not zone the land residential with lots of 5,000 square feet since there was not adequate public notice and the use is more intense than advertised. Frequently Asked Questions 4.Can the area of land subject to a zoning change be zoned to at less intense use than it was advertised? Yes . In the last example, there was adequate public notice. Thus, if the public notice stated that there was an application to change land zoned agriculture to residential with lots of 5,000 square feet, the governing body of a municipality instead could zone the land residential with lots of 10,000 square feet since there was adequate public notice and the use is less intense than advertised. Frequently Asked Questions 5.What is contract zoning? Contract zoning is an unlawful activity whereby a property owner or developer agrees to develop or use property in a certain way in exchange for receiving a particular zoning classification from a Town, i.e., contract zoning involves an enforceable promise on the part of either the owners or zoning authority to rezone property. This is an area of the law that must be scrutinized if the Town attempts to settle zoning/land use litigation by entering into a written settlement agreement. COMPREHENSIVE PLANS A Comprehensive Plan May: (1)Include but is not limited to provisions on land use, transportation, and public facilities; (2)Consist of a single plan or a coordinated set of plans organized by subject and geographic area; and (3) Be used to coordinate and guide the establishment of development regulations. What is a Comprehensive Plan? A comprehensive plan generally is defined as a long-range plan intended to direct the growth and physical development of a community for an extended period of time. Comprehensive planning is a process by which it has what it wants, how to achieve what it wants, and finally, how to implement what it wants . Governed by Chapter 213 of the Local Government Code Westlake is in the process of reviewing the Comprehensive Plan right now. Comprehensive Plan Comprehensive planning process is: ♦ Future-oriented ♦ Continuous ♦ Based on a determination of present and projected conditions. ♦ Comprehensive Comprehensive Plans Chapter 213 of the Local Government Code Sec. 213.001. PURPOSE. The powers granted under this chapter are for the purpose of promoting sound development of municipalities and promoting public health, safety, and welfare. Sec. 213.002. COMPREHENSIVE PLAN. (a) The governing body of a municipality may adopt a comprehensive plan for the long-range development of the municipality. A municipality may define the content and design of a comprehensive plan. (b) A comprehensive plan may: (1) include but is not limited to provisions on land use, transportation, and public facilities; (2) consist of a single plan or a coordinated set of plans organized by subject and geographic area; and (3) be used to coordinate and guide the establishment of development regulations. (c) A municipality may define, in its charter or by ordinance, the relationship between a comprehensive plan and development regulations and may provide standards for determining the consistency required between a plan and development regulations. (d) Land use assumptions adopted in a manner that complies with Subchapter C, Chapter 395, may be incorporated in a comprehensive plan. Sec. 213.003. ADOPTION OR AMENDMENT OF COMPREHENSIVE PLAN. (a) A comprehensive plan may be adopted or amended by ordinance following: (1) a hearing at which the public is given the opportunity to give testimony and present written evidence; and (2) review by the municipality's planning commission or department, if one exists. (b) A municipality may establish, in its charter or by ordinance, procedures for adopting and amending a comprehensive plan. Sec. 213.004. EFFECT ON OTHER MUNICIPAL PLANS. This chapter does not limit the ability of a municipality to prepare other plans, policies, or strategies as required. Sec. 213.005. NOTATION ON MAP OF COMPREHENSIVE PLAN. A map of a comprehensive plan illustrating future land use shall contain the following clearly visible statement: "A comprehensive plan shall not constitute zoning regulations or establish zoning district boundaries." Frequently Asked Questions 1.Are Texas cities required to adopt comprehensive plans? No. 2.If a Town has not adopted a comprehensive plan, may it nevertheless zone property? Yes. Frequently Asked Questions 3.If a Town has adopted a comprehensive plan, must it follow it when making zoning decisions? Yes . (§ 211.004 Texas Local Government Code) 4.What is the effect of a comprehensive plan on pre-existing zoning? Nothing. Pre -existing zoning on a tract of land controls the development of that tract, regardless of the use designation contained in the comprehensive plan. If the property seeks rezoning, the comprehensive plan will govern. Frequently Asked Questions 5. Is there a difference between a master plan and a comprehensive plan? Sometimes yes, sometimes no. 6. How should a Town view a comprehensive plan, as a guide or a document with the force of law? Due to the requirements of state law that all zoning must be in accordance with a comprehensive plan, I personally view a comprehensive plan as far more than a guide. Planned Development Planned Development (PDs) are specialized land use districts utilized in most municipal zoning schemes. PD procedures allow developers to obtain site-specific approval for developments that may not fit standard area and use zoning categories and that require specific negotiations to ensure that community interests are projects. PDs conventionally accommodate designated types of major development, such as mixed use projects, apartment projects, cluster housing, office developments, shopping centers and hospital facilities. Site Plans •It’s common for “Site Plans” and/or “Concept Plans” to be submitted and approved prior to development. •Site Plans are often required as a part of a zoning case for non-residential property. •Site Plans are not zoning and, as such, must be approved if in compliance with all applicable requirements. •Site Plans help the P&Z and Town Council: –See an Overview of how the project will development –See the layout of: buildings, open space, parking, landscaping, building materials and colors, architecture, and signage. –Know that the property will develop in accordance with the Site Plan unless an amendment is approved. Specific Use Permits A specific use permit refers to uses that a zoning ordinance permits or may permit, but that are screened and specially approved for situational suitability. There is no authority to grant a specific use permit unless the zoning ordinance specifically authorizes it. Thus, a zoning ordinance should specify the conditions that must be met for a specific use permit to be granted. An application for a specific use permit is considered a rezoning of the property. Basic Platting Concepts in Texas Plat: A map of a specific land area such as a subdivision, showing the location and boundaries of individual parcels of land subdivided into lots with streets, alleys, easements, etc . drawn to scale. Statutory Authority Statutory authority relative to municipal plats and subdivisions is found in Chapter 212 of the Local Government Code § 212.002. Rules • After a public hearing on the matter, the governing body of a municipality may adopt rules governing plats and subdivisions of land within the municipality’s jurisdiction to promote the health, safety, morals, or general welfare of the municipality and the safe, orderly, and healthful development of the municipality. Statutory Authority § 212.003 Extension of Rules to Extraterritorial Jurisdiction (a) The governing body of a municipality by ordinance may extend to the extraterritorial jurisdiction of the municipality the application of municipal ordinances adopted under Section 212.002 and other municipal ordinances relating to access to public roads. The Platting Process After the subdivision of a tract of property into at least two or more parts (Tex . Local Gov’t Code § 212.004 (a)) and the preparation of a plat by a developer or landowner, the municipal review process begins. Administrative or staff review procedures will vary from municipality to municipality; however, the following is indicative of a typical review process, from staff review to Town council approval. The Platting Process Staff Review Staff review of a plat involves determination by a Town’s staff whether a plat is necessary, and if so, staff review usually involves comments to the applicant regarding what is or should be included in the plat. This usually is a technical review to determine compliance with applicable ordinances and other municipal regulations and involves review of engineering plans, drainage plans, improvement plans, etc. The Platting Process Planning and Zoning Commission Review After staff has determined that the plat is complete and technical issues have been adequately addressed, the plat proceeds to the Planning and Zoning Commission. After review and approval by the Planning and Zoning Commission, the plat proceeds to the governing body. (Note: Many Texas cities use the Planning & Zoning Commission as the final approval body for plats since plats are technical in nature and do not involve zoning, site planning or land use.) The Platting Process Section 212.009(a) of the Texas Local Government Code provides, in part, that “[t]he municipal authority responsible for approving plats shall act on a plat within 30 days after the plat is filed.” [Emphasis added.] A plat cannot be “tabled” under state law, unless it is less then 30 days from the date filed. If someone moves to “table” a plat for any period that would mean that the plat was not acted upon within the 30 days, the plat will be approved by operation of law. If a plat has to go to Council, the time period to get to Council is 30 days after it is heard by P & Z. These time limits cannot be changed by ordinance. The Platting Process When is a plat filed? A good municipal ordinance should spell this out. As we saw above, Westlake’s ordinance (Section 82-33) does so. It states that the date is when it is filed with the Town Secretary. More recently, some ordinances provide that a plat may be considered “filed” when it is determined to be administratively complete, i.e., it is ready for submission to the Planning and Zoning Commission. Some cities provide that a plat is filed on the date when it has been placed on the Planning and Zoning Commission’s agenda and the agenda has been posted in accordance with all legal requirements. I believe the “administratively complete “ definition will be upheld if challenged. It is possible the “placed on the agenda” date for filing will not be upheld. The Platting Process Governing Body Review After the municipality’s Planning and Zoning Commission has approved a plat, the governing body must review it and act upon the plat within thirty (30) days . If the governing body does not approve the plat within thirty (30) days, then state law deems the plat approved. Governmental Discretion (or lack of) in Platting The approval of plats is mandatory as long as the conditions enumerated in Section 212.010(a) are met. If a plat meets all applicable standards and regulations, the governmental body’s inclusion of new standards or guidelines, not mandated by the applicable zoning ordinance and subdivision regulations, prior to approval by that body, may operate as a denial of the applicant’s state and federal due process rights absent compelling health, safety or welfare concerns. Local Govt. Code 212.010 (a) Sec. 212.010. STANDARDS FOR APPROVAL. (a) The municipal authority responsible for approving plats shall approve a plat if: (1) it conforms to the general plan of the municipality and its current and future streets, alleys, parks, playgrounds, and public utility facilities; (2) it conforms to the general plan for the extension of the municipality and its roads, streets, and public highways within the municipality and in its extraterritorial jurisdiction, taking into account access to and extension of sewer and water mains and the instrumentalities of public utilities; (3) a bond required under Section 212.0106 if applicable, is filed with the municipality; and (4) it conforms to any rules adopted under Section 212.002. Frequently Asked Questions Question: Can a Plat be tabled? No. A plat is approved by operation of law if it is not disapproved within thirty (30) days, as referenced above in § 212.009 of the Texas Local Government Code. The statute provides no exceptions to that rule – not based upon agreement of parties, or any other reason. The rule for counties is different. Frequently Asked Questions Question : Can (or should) a plat be approved subject to the staff working out certain problems? No. A plat must be approved or disapproved with specific conditions set out. As a practical matter, if the plat is acceptable except for some very minor condition (e.g., no indication of north on the plat, an adjacent road name is improperly labeled, etc.), the plat may be approved subject to it being corrected and the motion to approve the plat should specifically state the necessary addition or modification. It is not advisable, however, to approve a plat subject to a major condition or modification (e.g., all streets will be curvilinear, the number of lots will be reduced or increased, easements will be added or removed, etc.). In those situations, problems invariably arise and it is unclear whether there is an approved plat or not. Frequently Asked Questions Question: If the plat conforms to all applicable ordinances, must the Town Council or the Planning and Zoning Commission approve the plat? Yes. If the plat conforms to the general plan of the Town, its streets, alleys, parks, playgrounds, public utility facilities, sewer, water, and all rules and regulations governing plats, then the Town must approve the plat. The same applies to counties as well. Frequently Asked Questions Question: Should Town’s periodically review their subdivision ordinances? Yes. Ordinances should be reviewed periodically to ensure compliance with constitutional standards regarding exactions, vagueness, procedural due process issues, as well as a host of other issues. Frequently Asked Questions Question: Procedurally, is there a difference between a preliminary plat and a final plat? Good Question! Some cities apply the same rules (e.g., 30 day rule contained in Section 212.009 of the Texas Local Government Code) to preliminary plats as final (or recorded) plats. Some people do not believe that those rules apply to preliminary plats. Given the risks that a plat could be deemed approved, I recommend following the 30 day rule for all plats. Frequently Asked Questions Question: Is a municipality or county liable for negligently approving a plat? No, that is not the current law. See Town of Round Rock v. Smith, 687 S.W.2d 300, (Tex . 1985) “[P]lat approval is a discretionary function that only a governmental unit can perform. By definition a quasi-judicial exercise of the police power is exclusively the province of the sovereign. An individual or private corporation cannot exercise that same power. We hold that plat approval is a governmental function.” VESTED RIGHTS Section 245.002 Uniformity of Requirements (a) Each regulatory agency shall consider the approval, disapproval, or conditional approval of an application for a permit solely on the basis of any orders, regulations, ordinances, rules, expiration dates, or other properly adopted requirements in effect at the time: (1) the original applications for the permit is filed for review for any purpose, including review for administrative completeness; (2) a plan for development of real property or plat application is filed with a regulatory agency. Vested Rights Section 245.002 continued (a-1) Rights to which a permit applicant is entitled under this chapter accrue on the filing of an original application or plan for development or plat application that gives the regulatory agency fair notice of the project and the nature of the permit sought. An application or plan is considered filed on the date the applicant delivers the applications or plan to the regulatory agency or deposits the application or plan with the United States Postal Service by certified mail addressed to the regulatory agency. A certified mail receipt obtained by the applicant at the time of deposit is prima facie evidence of the date the application or plan was deposited with the United States Postal Service. Vested Rights Section 245.002 continued (b)If a series of permits is required for a project, the orders, regulations, ordinances, rules, expiration dates or other properly adopted requirements in effect at the time the original application for the first permit in that series is filed shall be the sole basis for consideration of all subsequent permits required for completion of the project. All permits required for the project are considered to be a single series of permits. Preliminary plans and related subdivision plats, site plans, and all other development permits for land covered by the preliminary plans or subdivision plats are considered collectively to be one series of permits for a project. Vested Rights 245.002 •(e) A regulatory agency may provide that a permit application expires on or after the 45th day after the date the application is filed if: (1) the applicant fails to provide documents or other information necessary to comply with the agency’s technical requirements relating to the form and content of the permit application; (2) the agency provides to the applicant not later than the 10th business day after the date the application is filed written notice of the failure that specifies the necessary documents or other information and the date the application will expire if the documents or other information is not provided; and (3) the applicant fails to provide the specified documents or other information within the time provided in the notice. Other Considerations - Rough Proportionality •Following a series of well-publicized U.S. Supreme Court decisions and Texas Supreme Court decisions, in 2005 the Texas Legislature enacted Section 212.904 of the Local Government Code. •If the Town requires, as a condition of development approval, a developer to bear a portion of the costs of public improvements by making dedications, the payment of fees, or the payment of construction costs, a professional engineer employed by the Town must determine that these requirements are “roughly proportionate” to the proposed development. •A developer who disputes the determination may appeal to the governing body. At the appeal, the developer may present evidence and testimony “under the procedures adopted by the governing body.” The governing body then has 30 days to make a determination. •The developer then has 30 days to appeal the governing body’s decision to county or district court. •A Town cannot require a developer to waive the right of appeal as a condition for approval. •If a developer who prevails is entitled to attorney’s fees and costs, including expert witness fees (the statute does not make this provision reciprocal). Fair Housing Act •Plaintiffs not required to prove intent •If action has a “disparate impact” on a racial group, the disabled or other protected class, action could be struck down •Intent or disparate act without intent will be evidenced by P & Z inquiries into price of homes to be built or demographics expected in development. Do not ask the expected price or demographics. Other Considerations - RLUIPA § 2000cc. Protection of land use as religious exercise (a) Substantial burdens (1) General rule No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution-- (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. (2) Scope of application This subsection applies in any case in which-- (A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability; (B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or (C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved. . RLUIPA (b) Discrimination and exclusion (1) Equal terms No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution. (2) Nondiscrimination No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination. (3) Exclusions and limits No government shall impose or implement a land use regulation that-- (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. RLUIPA Examples •Requiring a SUP for a church, but not other uses •Prohibiting a Bible study in the home (in that case about 25 non-family members •“At bottom, the ordinance treats the Church on terms that are less than equal to the terms on which it treats similarly situated nonreligious institutions. We conclude therefore that the imposition of the Town's ordinance violates the RLUIPA's Equal Terms Clause.” Elijah Group v. Town of Leon Valley Texas Public Information Act There is a lot of information to cover in the Texas Public Information Act (TPIA), and we do not have enough time. Please be aware that any fixed communication (written, digital, verbal recording, etc.) that you have about public business – which zoning is – is subject to the TPIA, whether it is on your home computer, personal phone or personal voice mail or text. Texas Open Meetings Act •Generally speaking, any time you discuss P & Z business with another P & Z member, it should be done in an open meeting that was posted 72 hours in advance. •Certain items may be discussed in Executive (Closed) Session. Attorney Client advice is one such example. For that exception to apply, an attorney must be present. Texas Open Meetings •You can not circumvent the Open Meetings Act by meeting with members one at a time. •Emails and texts between members (concerning P & Z or Town business) may be considered to be an Open Meetings violation. •Remember emails and texts will be considered to be subject to the Texas Public information Act when those emails or texts concern Town Business. Questions?