                                  The Attorney            General of Texas
JIM MATTOX                                           May 19. 1986
Attorney General



Supreme Court Building
                                 Rouorable Kent A. C,aperton                Opinion No. JM-493
P. 0. Box 12548
Auslln. TX. 78711. 2548          Chairman
5121475-2501                     Committee ou Criminal Justice              Re:   Whether a city council,      a
Telex 910/874.1367               Texas State Senate                         planning conmission,    or a zoning
Telecopier   51214750266         P. 0. Box 12068                            board of adjuscmenr is author-
                                 Austin, Texas   78711                      ized   to   grant    specific   “Se
714 Jackson. Suite 706
                                                                            permits In a hone-rule city
Dallas, TX. 75202.45OS
2141742.8944                     Dear Senator Caperton:

4624 Alberta   Ave.. Suite 160
                                       You inquire z,bout the zoning functions         and powers of the city
El Paso. TX. 79905.2793          councI1, the plaaning aad soaiug commission. and the zoning board of
9151533~3484                     adjustment in hone.-rule       cities    and which entity    may approve and
                                 disapprove applicatioasKfor        exceptions,  variances,  and “specific  use
                                 permits.”    The state’s    general zoning statute provides the procedures
1001 Texas. Suite 700
                                 by which special     exceptions     aad variances   are granted by boards of
Houston. TX. 77002.3111
71312235886
                                 adjustment,    but the    statute     does not speak to the       issuaace   of
                                 “specific   use perxits.”     Which entity nay issue “specific    use permits”
                                 depends on whether the permits coastltute            amendments to the zoning
806 Broadway. Suite 312          ordinance.
Lubbock, TX: 79401.3479
Mw747.5238
                                       The zoning ocdiaances     of cities    are aa exercise   of police    power
                                 delegated to cities    by the state for protection         of health,    safety,
4309 N. Tenth. Suite S           conf ort , and welfare of the public.        The authority of a city to zons
McAllen. TX. iSSOl.              is governed by ar.ticles      lOlla-IOllj,    enacted by chapter 283.        Acts
5121882.4547
                                 1927, 40th Leg., c-h. 283, at 424.         Fort Worth & D.C. Railway Co. v.
                                 Amuons. 215 S.W.:!d 407, 409 (Tex. Civ. App. - Amarillo 1948, writ
200 Maln Plaza. Suite 400        ref’d n.r.e.).    Those statutes     constitute   the general zoning enabling
San Antonio. TX. 78205.2797      act of this statu and authorize        zoaine ordinances bv the leaislative
51212254191                      bodies of all cj.ties,     Including homerrule cities.       - See Beilaire    v.
                                 Lamkia. 317 S.W.Z 43. 44 (Tex. 1958); Porter v. Southwestern Public
An Equal Opportunity/
                                 Service Co., 489 S.W.2d 361, 364 (Tex. Civ. App. - Amarillo 1972. writ
Affirmative Action Employer      ref’d a.r.e.);   cf. V.T.C.S.
                                                 --.              art. 1175, subdivision    26.

                                       Article lOlla    grants     the power of zoning to the legislative
                                 bodies of the cities.      Article    1Ollb authorizes   the legislative    body
                                 to divide nunici?alities      into zoning districts    of such number, shape,
                                 and area as the Legislative        body deems best suited to carry out the
                                 purposes of zoning.      Article    1011~ sets forth the purposes of zoning
                                 and provides that zoaing regulations        shall be made ia accordauca with
                                 a compreheasive    plan.     Article    1Olld provides    for public    heariags




                                                            p. 2245
Ronorable   Kent   A.   Caperton   - Page   2   (JM-493)




prior to enactment of zonilg regulations.             Article   1Olle authorizes
amendments to zoning ordinar,cee by e city’s        legislative   body.    Article
1Ollf directs   the legislative    body of a home-rule city to appoint a
zoning commission which reports         its   zoning recommendations to the
legislative   body efter     conducting     public   hearings.    Article      1Ollg
provides for the appo1ntmer.t of a board of adjustment by the city’s
legislative   body to grant variances        from and special      exceptions      to
zoning ordinances vhich the legislative        body adopted.

      A board of adjustment f-8 an administrative             body created for the
administration     of the zoning ordinance within standards set by the
state statute     and the ordj.nance.         Article   1Ollg confers three major
powers on the board:           (1)   to    pass   on  special    exceptions;     (2) to
authorize    variances;      and   (3)  to   hear   appeals   from   decisions     of a
building   inspector       or ottler official.        The board’s      functions     are
administrative,     fact-finding,      and quasi-judicial     In nature.     See Texas
                                                                             ---
Coneol. Theatres,       Inc. v. J?ittillo,       204 S.W.2d 396. 398 (Tex. Civ.
APP. - Waco. 1947 no writ).

       The power to author&c! a variance authorizes the board to suspend
the operation    of the zoning ordinance under certain conditions.            It
allows the board to relieve      the rigidity    of an ordtiance where, owing
to special     conditions,   a literal       enforcement   of   the provisions
contained in the ordlnencc: will result in unnecessary hardship.             The
spirit   of the ordinanca must be observed and the public interest         must
be served by the variance.        See Shelton v. City of College Station,
754 F.2d 1251, 1257 (5th s::Lr.85);          Board of Adjustment of the City
of San Antonio v. Willie,     ‘511 S.W.2d 591, 593 (Tex. Civ. App. - San
Antonio 1974, writ ref’d n.r.e.1;      Barrington v. Board of Adjustment of
the City of Alamo Eelghts,      124 S.W.Zd 401 (Tax. Civ. App. - Amarillo
1939, writ ref’d).

      The power to ..grant opeciel   exceptions   allows the board to hear
and decide exceptions      to an ordinance    in accordance with specific
provisions  contained   in the ordinance.       The ordinance    itself must
authorize  the snecial    ex:aotions  and epeciallv     named uses and must
provide rules and standardrr’to guide the’board..       See Moody v. City of
University  Park, 278 S.W, 2,d 912. 921 (Tax. Civ. Fp.       - Dallas 1955,
writ ref’d n.r.e.).

       A board of adjuscmatit has no legislative     powers, for that power
is conferred by the general zoning statute on the city council aa the
city’s   legislative    body.  The board has no power to enact or amend
zoning ordinances      or to grant special  exceptions    or variances     that
amount to an ordinance amendment. See Nichols v. City of Dallas, 347
S.W.Zd 326, 333 (Tax. Civ. App. -Dallas          1961, writ ref’d    n.r.e.).
See generally,       McSwain, The Zoning Board of Adjustment,      13 Raylor
L.Rev. 21. 28-31 (1961).




                                            p. 2246
,   Ronorable   Kent   A.   Ceperton - Page 3    (JM-493)




          A planning and zoning commission appointed by the city council of
    a home-rule city is manda,:ed by article           1011f.     See Coffee City v.
    Thorn eon, 535 S.W.2d 758, 764 (Tex. Civ. App. - 51x1976.                 writ ref'd
    &            The zoning coxa~ission recommends the boundaries                 of the
    various districts     and appropriate uses and regulations          to be enforced
    in the districts     after the commission conducts public hearings.              The
    zoning    commission      acts     in   a*   advisory      capacity      In    making
    recommendations to the city council.          As the legisletive       body of the
    city.   only   the  city    council   has  authority    to   enact    or    emend an
    ordinance prescribing      the ‘:Lty's zoning regulations.        An amendment to
    a zoning ordinance        approred by the zoning commission is only a
    recommendation of the ronins: commission unless the citv council adoots
    it.   See V.T.C.S.,    art. lOl?e; Clesi v. Northwest Dalias Imp. Ass'b..
    263 Sxd      820.  829 (Tex. (Xv.     App. - Dallas   1953, writ ref'd n.r.e.).

          As a result of the ne?ed of the cities            for flexibility   in rheir
    zoning powers to avoid problems that result from rlgld boundaries and
    use8 in zoning ordinences,          new concepts for zoning have developed in
    recent years which recognize         that planning and zoning are a continuing
    process.      Cities    discovered       that  they   cannot    always anticipate
    development and plan for all areas and all uses.                  Under new zoning
    procedures,    which may be re.ferred to as "specific         use permits" end as
    "planned unit developmenta,"           a city may leave certain areas free of
    rigid    zoning conditions        and regulations.       A landowner wishing to
    develop such an area usuaY.1.y works with the city's             plunning staff to
    prepare a site plan that ,!rovides the specific             usee. conditions,    and
    regulaticns    for that tract.          These may include,    among other things,
    the type of use, required ,acreage, design of improvements, open space,
    and traffic     accessibility         If the site plan and application        for a
    permit for the specific           d.evelopment are approved and granred,         the
    development must conform to the specific            plans on which the approval
    is granted.      A building ptrrmit will be limited to the plans approved
    for   the specific       projecl:..     See Ragman, Urban Planning and Land
    Development Control Law 117, 4551975).

          Although the state's  general         zoning statute does not expressly
    provide for such zoning p,cocedures,          the Texas courts have upheld the
    olanned unit orocedures    end the           "soecific  use oermit" method of
    amending a zoning ordinance.     In         C&y of Lubbock v. Whitacre.       414
    S.W.2d 497, 499 (Tex. Civ. App. -           Amarillo 1967, writ ref'd n.r.e.),
    the court stated that

                    The use      of     the     type   permit   here  under
                consideration;       1.e..    a Specific    Use Permit, to
                amend a comprehensive zoning ordinance has been
                recognized     and approved by the courts of Texas.
                Stearman v. City of Farmers Branch, 355 S.W.2d 541
                (Tex.    Civ.    ADI; - Dallas,          1962.  writ  ref'd
                o.r.e.);    Clesi‘v.       Northwest Dallas Imp. Ass'n..




                                            p. 2247
Honorable Kent A. Caperton - 'Page 4            (J'M-493)




            263 S.W.2d 820 ('Iex.        Civ.    App.   -   Dallas,   1953.
            writ ref'd n.r.e.1.

      If a "specific   use pr;rmit" is in fact a special    exception    as
authorized by article   lOllg, its approval end issuance is included in
the express powers of the board of adjustment.         If such a permit
amounts to the adoption or amendment of zoning regulations    which only
the legislative   body has the: power to adopt or amend, a basic zoning
ordinance    that undertakes   to confer  that power on the board of
adjustment would constitute    an invalid  delegation of the legislative
power.    Tex. Const. art. 11, 51; see Swain v. Board of Adjustment of
City of Univ. Perk, 433 S.W.:!d 727,731   (Tex. Civ. App. - Dallas 1968,
writ ref'd n.r.e.);   Board OE Adjustment v. Stovall,    218 S.W.2d 286,
288 (Tex. Cl". App. - Fort 'dorth 1949, no writ).

      The method of zoning in question has been described as a two-step
ordinence.    The first step is an ordinance adopting a generalized  plan
for development.      The second step occurs when a developer submits a
precise   and detailed   development plan , which is approved and adopted
by a second       ordinance.     See Hagman. Urban Planning     and Land
Development Control Law 460 (1975).

       Several Texas courts 'have found, under the situations                 that each
addressed,     that the approy.a.1 and issuance of "specific               use permits"
constituted     ordinauce amendments. In Clesi v. Northwest Dallas Imp.
;rG;,m,             the basic   zoning ordinance         provided that a "special
        ' for apartment uee would be an amendment to the zoning
ordinance with;he       property to be improved according to the plans and
specifications.       In Nichols v. City of Dallas,             supra, the ordinence
authorizing     issuanceofm        special permit" for multiple residence and
commercial uses in residential           zones was an amendment to the zoning
ordinance.      The court poinl:t:d out, et page 331, that the name "special
oermit" was not well choseb. for the lenal effect                 of the action taken
was unquestionably      an amendment to the 'Zoning ordinance.              In Strarman
v. City of Fanners Branch, 355 S.W.2d 541 (Tsx. Civ. App. - Dallas
 1962, writ ref'd n.r.e.),       the court upheld use of the "special            permit"
method of amending the sor.ing ordinance to authorize development of a
medical center.       The eppli.cation     for a "special      permit" was submitted
 to the planning and zoning ,commission end granted by the city council,
 In City of Lubbock v. Whitacre, supra. the court upheld an ordinance
amendment by the city co&~granting                  a "specific     use permic" for a
private    apartment project.        In T & R Associates,             Inc. v. City of
Amarillo,    688 S.W.2d 622. 626 (Tex. App. - Amarillo 1985 wrir ref'd
.m          the court found t'oat issuance of a "specific                use permit" to
 allow a lounge in a retail           district      to serve alcoholic        beverages
without serving food constituted          an amendment of the zoning ordinance.
Cf.. Sherwood Lanes. Inc. J. City of San Angelo, 511 S.W.2d 597 (Tex.
Civ.    App. - Austin        1974, writ       ref'd    n.r.e.)      (governing    body's




                                         p. 2248
Ronorsble   Kent A. Caperton -’ Page 5         (JM-493)




authorization of a special permit by ordinance that amends the city’s
general zoning ordinance is the exercise of legislative power).

      The city   ordinances   c,!i which we are aware that provide             for
“planned  unit developmentr?’ and “specific          use permits” based on
specific  site plans contwplate        approval by the city’s       legislative
body after review and recoormendations by the zoning commission.                We
are not awere of a case dec;ling with a “specific         use permit” that was
granted by a board of adjurltment or a case in which it was suggested
that a “specific    uee permit’” or a “planned unit development” was in
fact a special    exception anthorized     by article     1011s and was not a
zoning ordlnauce     amendment,. If.     however,    a landowner requests         a
permit which conscicutes    a s!pecial exception which is of the type that
may be authorized by the clrdinance itself.         article   1Ollg allow      the
board of adjustment to hear .and decide the exception.

       In addition,   there is no statutory    authority   for the governing
body of e city to delegate ‘to the planning end zoning conxaission its
legislative     power to amend a zoning ordinance.          See City of San
Antonio v. Lanier, 542 S.W.:!d 232, 235 (Tex. Civ. APT-            San Antonio
1976, writ ref’d n.r.e.).      An amendment to a zoning ordinance must be
proposed    and adopted wir:h the same formality            as the original
ordinance.     See Clesiv.   Northwest Dallas Imp. Ass’n..     m,        at 830.
Hence, the z%&g commissi~~‘s function $0 the “specific            use permit”
method of amending ordinhnws is not to decide and grant such permics
but to review specific      use site plans, conduct public hearings,         and
submit its recommendations to the legislative          body which, in turn,
will    approve    or disapprove    the applications     for   “specific     use
permits.”

                                    SC’HMARY

                The state’s       geueral     zoning statute      expres’sly
            authorizes      a city’s    board of adjustment to grant
            variances       from and exceptions            to    a zoning
            ordinance.       The r;tete statute expressly grants the
            power to enact and amend zoning ordinances to the
            city’s    legislatiw      body, which usually is the city
            council.      A boa1:d. of adjustment has no power to
            grant exceptions         or variances     that amount to an
            ordinance      amandnent.       Where the approval         of a
            “specific       use     ~perndt" constitutes        a    zoning
            ordinance      amendwnt,      only the city       council    may
            approve or disapprove            such a permit.        Where a
            “specific       use permit”        is   in fact     a special
            exception authorized by article            1011g. V.T.C.S..      a
            zoning      board     of     adjustment      may grant        the
            exception.        The zoning        commission acts       in an




                                         p. 2249
Honorable Kent A. Caperton ..Page 6    (m-493)




          advisory capaciry to making zoning recommendations
          to the city council..




                                       J k
                                        Very truly yours


                                               A.
                                         JIM    UATTOX
                                        Attorney General of Texas

JACK EIGETOWER
First Assistant Attorney Gewral

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney   3eneral

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General




                                   p. 2250
