The Kyle Report

The Kyle Report

Wednesday, March 1, 2017

Planning director blames himself for illegal zoning amendments, reveals two P&Z vacancies

There is debate over what constitutes "conditional zoning" and what’s "contract zoning."

In a paper presented last April to the 20th annual Land Use Conference at the University of Texas, Terrence S. Welch, an attorney who represents and advises local governments on land use issues and other regulatory matters, wrote "Conditional zoning is the granting of a zoning change by a governing body which is subject to agreed upon specific conditions which limit permitted uses in a zoning district," while "Contract zoning is an unlawful activity whereby a property owner or developer agrees to develop or use property in a certain way in exchange for receiving a particular zoning classification from a city." According to the book Texas Municipal Zoning Law by James L. Dougherty and Brenda N. McDonald, contract zoning is illegal in Texas, but "Conditional zoning, on the other hand, is a lawful rezoning that unilaterally requires the owner to subject land to certain restrictions without a contractual commitment to do so."

I’ll leave it up to others to decide whether Planning & Zoning Commission’s attachment of an amendment two weeks ago to a proposed zoning change requiring less density than was specified in the city’s ordinances was an example of conditional or contract zoning. My interpretation of the law would be this: The developer said before his zoning change that he would agree to limit the number of houses he built on the property to 3.2 per acre (the zoning allows 5.5) Passing the zoning change based on that statement makes it a "conditional zoning," which, according to the above cited sources, is legal. However, what the Planning Commission did was attach an amendment to the zoning change recommendation requiring the 3.2 density. At that point, in my opinion, it crossed over to the Contract Zoning category, which these same sources say is illegal.

Be that as it may, after telling what’s left of the Planning & Zoning Commission during an education workshop last night that conditional zoning is illegal in Texas, Planning Director Howard J. Koontz said he should have blocked the conditional amendments attached to this zoning change request the commission forwarded to the City Council two weeks ago.

Koontz, however, may have actually been referring to contract zoning when he discussed conditional zoning because he specifically said a contract could not be entered into.

"Although philosophically I don’t like it and I don’t agree with it, there’s no such thing as conditional zoning here," Koontz told the five commissioners attending the workshop. "Where I came from, when somebody wanted to zone something, the very first paper they had to bring us was a site plan, which is what it was going to look like when they were done. In Texas, under no circumstances is there any way you can enter into that contract — and it’s considered a verbal and later on a written contract — between the municipality’s regulatory authority and the applicant.

"So when you consider zoning here, you don’t consider any use," he continued. "You consider every use because someone can come in and say "I am going to build a nice new shiny hotel that will be the greatest thing the city has ever seen" and after he gets his approval he walks across the street and sells the land to somebody whose going to put a coin laundry there, and there’s nothing you can do to prevent that because they’re both allowable uses."

Later in the meeting, Koontz, speaking more specifically about the zoning change with the controversial amendments passed two weeks ago, mused "Did the Planning Commission agree to that zoning because it was conditioned to 3.2 or would they have agreed to it conditionally or unconditionally. Because the condition in Texas wasn’t lawful.

"At the time, the first thing I thought to myself was ‘That’s OK. He (commissioner Timothy Kay, who added the amendment) can put that condition on there because it’s not going to be adhered to anyway.’ Later on I had regrets that I didn’t stand up and same something and say ‘no! You can't conditionally approve anything in Texas.’ We have to either approve it or not approve it. In retrospect I should have stood up and said ‘It needs to be either recommended for approval or recommended for denial unconditionally.’ It was after the fact that I thought of that."

Koontz also separated the term "conditional use" from "conditional zoning."

"The number one way you see conditional uses is usually in some form of overlay," he said. "It’s not generally a request for a use, per se, although we call it ‘conditional uses.’ It’s almost always aesthetic. It’s building materials, how far the building is from the street, how tall it is, how many square feet it has. It’s the number of parking spaces, It’s landscaping. It’s signage. You have a little more latitude to look at those applications with a critical eye. How much is spelled out in the code. If you want their parking to orient north and south instead of east and west, so be it. You can make that decision. You are the arbiter for conditional uses. They don’t go on to the mayor and council."

Incidentally, conditional use permits are issued for to allow for uses withing a zoning district that would otherwise not be allowed under the existing zoning ordinances.

Although it’s no surprise the city is seeking a replacement on the commission for Irene Melendez, whose term is expiring this year (although I hear she wants to leave even earlier than the Sept, 30 date her term expires), it came as somewhat of a surprise to learn last night that Mike Torres, one of the two most recent appointees to the board, has been forced to resign because, according to Koontz, he is relocating. Torres has been on the commission for only four months.

Truth in advertising and advance warning: Today I submitted an application to serve on the commission, although if one of the requirements of service would be to end The Kyle Report during that term of service, I would have to graciously decline such an appointment.

So there’s that.

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