United States: The Planning And Zoning Process

The Planning and Zoning process is "legislative" in nature and is structured in such a way to permit the Planning and Zoning "P & Z" member to have a hands on approach to zoning and planning proposals and generally a review of the entire planning, land use process. P & Z members, by reason of their charge, are concerned with a very critical municipal activity: the effective use of land. The P & Z Commission enjoys the flexibility to work intensively on planning and zoning issues and proposals from a law making or legislative prospective, while the City Council, the ultimate law making body, is charged with the responsibility of working on all the many and varied legislative issues involving the city as a whole.

The P & Z is created under the provisions of state law which mandates that a P & Z be created to offer legislative advice to the City Council. While state law does not specify the number of members on the commission or the length of the term, it is clear that the intent of the statute mandating the creation of the commission is to provide a forum for the careful study and review of planning issues as they relate to developing a scheme for the controlled effective use of real property in a zoning environment.

The name Planning and Zoning really relates to two distinct jobs or duties that the P & Z member performs. The job of the commission which is critical under state law is the "zoning job" which we will discuss at length. The second job of the P & Z Commission is the "planning" job. This task, in my opinion, is equally important in order to achieve the desired result in a community and one that should not be taken lightly by anyone serving on the Planning and Zoning Commission.

As we will learn, all zoning ordinances are based upon a comprehensive plan that exists today and is found in our Code of Ordinances as the introductory article of Chapter 24 -- "Planning and Zoning Regulations." The Comprehensive Plan is in most codes even before the laundry list of definitions which form the basis for interpreting the Code. A comprehensive plan is the backbone of a zoning ordinance, its constitution. There are two basic approaches to the comprehensive plan: (1) as we have done, to include a clearly stated document that is identified as a comprehensive plan; and (2) to consider the entire ordinance a comprehensive plan without a separately identified plan statement. Under state law if a comprehensive plan does not exist, a zoning ordinance cannot exist. Basic zoning regulations must at all times be fully in accord with the comprehensive plan and a plan or comprehensive plan for the entire community must exist in order for the zoning ordinance to be legally viable.

Comprehensive plan provisions are not regulatory in nature but instead are provisions of direction. Comprehensive plan statements provide the "policy direction" upon which regulations in the zoning ordinance are based.

While the rules for the zoning part of the job are more rigid and to a great extent are statutory, the rules for the planning part of the job are less rigid and more flexible and less defined but are equally as important to the success of the overall zoning effort. I believe there are a few very basic rules or concepts relating to the planning function which should be reviewed:

1. Planning is a job of recognizing what the current status of property is, historically how the property has been previously developed and what are the parameters for future development that exist today, e.g. utilities, open space and other infrastructure concerns.
2. Planning is a job of diligent inquiry, a job of asking the difficult questions even though the answers or results of the answers may seem to cause one property owner to receive different treatment than other property owners.
3. Planning is the job of looking at the "whole," as opposed to any particular part. The process of determining what particular proposal is most beneficial for the entire city and not just one property owner or one segment of property owners. The "acid test" relating to P & Z decisions must always relate to the benefit to be obtained by the entire city and not the interest of a few.
4. The willingness to study and learn from not only what exists in our city but from what experience exists elsewhere. Ordinances adopted by other cities rarely either look the same or fall into the same category. But more importantly, there is a wealth of information as to the approach or methodology used by other cities which may result in different solutions. We can learn by understanding the approaches that have been taken elsewhere. Planning is not a stagnate process; it is a process of change and we can only be plugged into that process by being aware of what is happening elsewhere and all around us. Regrettably, planning is not practiced in many cities and P & Z commissions in many cities either fail to plan or relegate that function to other bodies and individuals.

Planning is very necessary in the entire zoning scheme. Zoning ordinances are legally invalidated for principally four reasons all of which may relate to the P & Z having failed to perform the very vital planning function. These reasons are:

1. The ordinance is not in accord with the comprehensive plan for the community.
2. The ordinance constitutes "spot zoning" in that separate or special treatment was given to one property over other properties, thus the zoning ordinance was not adopted in furtherance of a plan for the community, but solely to address the interest of one or a group of landowner(s) over the interests of the entire city.
3. The ordinance constitutes inverse condemnation in that the effect of the ordinance is that property is being taken without just compensation. This usually develops when the zoning ordinance is adopted and unnecessarily discriminates against properties or owners without specified reasons.
4. The ordinance does not accomplish a legitimate zoning objective, one that can be specifically related to the comprehensive plan of the community or to one of the specified legislative-ordained objectives for zoning.

In conclusion, the planning process is neither stagnate nor subordinate to the frequently exercised zoning function of the P & Z Commission. It is vitally important that no one lose sight of the planning work which must necessarily form the basis for effective use of the zoning power. Zoning without the required evidence of planning may result in defective zoning ordinances that could be troubling to a municipality. In every proposal coming before the P&Z, I believe there are certain basic questions which should be asked as a predicate to taking action:

1. Is the proposal in accord with the comprehensive plan, i.e., what section of the comprehensive plan supports the proposal?
2. Does the comprehensive plan address the basic conditions existing relating to the property, i.e., conditions being physical attributes of the properties, the locality and any other special circumstances that might be found to exist?
3. Is the proposal in furtherance of the overall plan for the neighborhood and the community as currently perceived by the City Council and the P & Z?
4. If the proposal is approved, will any part or elements of it be contrary to any part of the comprehensive plan, if so or if a possibility exists of a possible conflict, then the report of the P&Z should address the specific findings made by the commission which establishes or concludes that no conflict exists. If the proposal is favorably recommended, then the P & Z recommendation should also include a recommendation to change the comprehensive plan.

The zoning process is really not a process of planning, but instead a process of administration of a legal fabric consisting of state laws "statutes," and in the case of zoning, the zoning enabling act and local laws called ordinances. These ordinances have the same effect as laws passed by the State Legislature by reason of the authority granted to cities under the state law which is commonly referred to as the "Standard Zoning Enabling Act."

In order to examine the process in detail, I believe it is important to understand the fabric of state laws. In that zoning is a process of depriving property owners of certain rights inherent to property ownership for the common good of the entire community, it is extremely important to recognize that cities may only zone if the process is strictly in accord with the procedure specified under state statutory law. The statutes adopted by the State are in two distinct categories and we must always inquire whether our zoning objectives are in accord with the basis for zoning as prescribed by state law and within the procedural parameters established by the legislature for zoning.

1. Establishes the legitimate purposes for zoning, and
2. Establishes the rules and procedures under which a zoning ordinance may be adopted.

The zoning laws that are of importance to us are founded in the Texas Local Government Code. I will simply paraphrase these statutes where necessary in order to provide a reference guide for further use and review. In addition, I have omitted materials relating to the activities of the Board of Adjustment in that the functioning of the Board of Adjustment in granting and denying variances, special exceptions or taking other actions which they are charged with by law is not important to this discussion or the decisions that may be reached as a member of the Planning and Zoning Commission. The Board of Adjustment does not have a role in the "legislative process" which is unique to P & Z but instead decides cases concerning particular tracts of property and particular property owners. Issues which relate to those properties or the owners of those properties are the subject of Board of Adjustment cases. The decisions of the Board of Adjustment are not subject to review by either the Planning and Zoning Commission or the City Council and do not have any effect on other properties in the city regardless of their location in proximity to the property which is subject to the Board of Adjustment decision.

Section 211.001 defines the purposes for which a Zoning Ordinance can be enacted

The powers of zoning can be exercised 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 specifies what a zoning ordinance may regulate

1. The height, number of stories, and size of buildings and other structures;
2. The percentage of lots that may be occupied;
3. The size of yards, courts, and other open spaces;
4. Population density;
5. The location and use of buildings, other structures, and land for business, industrial, residential or other purposes;
6. In areas that have been designated areas of cultural, historical or architectural importance, a zoning ordinance may regulate the construction, reconstruction, alteration, or razing of buildings or other structures; and
7. In a home-rule city the bulk of buildings may also be regulated.

After this list of legitimate purposes for zoning, state law also provides additional parameters by specifying the basic "reasons" that a zoning ordinance may be adopted as long as it is adopted in accordance with a comprehensive plan. It is thus the legislative intent as clearly stated that all regulations be adopted in accord with the comprehensive plan for a municipality. The purpose for which "regulations" can be adopted are as stated in Section 211.004 of the Texas Local Government Code.

Section 211.004 provides that zoning, regulations may be adopted in accord with a comprehensive plan which has been previously adopted for the community

Regulations that may be adopted can fall into the following categories:

1. Lessen congestion in the streets;
2. Secure safety from fire, panic, and other damagers;
3. Promote health and the general welfare;
4. Provide for adequate light and air;
5. Prevent the overcrowding of land;
6. Avoid undue concentration and population; and
7. Facilitate the adequate provision of transportation, water, sewers, schools, parks, and other public needs or requirements.

The statutes that have been reviewed are primarily designed to provide the basis for zoning as well as the areas of legitimate regulations; however, before regulations can be developed, it is necessary to understand that all zoning must be based upon a fair, just and proper division of the city into separate and distinct zoning districts. A zoning district is established for the purpose of providing a unique and separate set of regulations which are applicable to property within that district. Although traditionally most cites have more than one block of property which has the same zoning classification, this is not necessary and there can be an infinite number of zoning districts all with separate and distinct regulations which are applicable in that various district. In many cases it is difficult to support numerous zoning districts all with differing classifications unless it can be shown that because of unique factors within that city, justification for that approach exists.

Section 211.005 requires the division of the city into districts "zoning districts"

The City Council may specify unique regulations in each district which may regulate the erection, construction, reconstruction, alteration, repair, or use of buildings, structures or land. The statute most importantly provides that the regulations within each district of the same designation must be uniform within the district. We seldom see or consider the unique approach of sub-districts. Clearly, I think a city may consider sub-districts or districts within a district as legally possible within the statutory authorization to create districts. Sub-districts offer a legitimate approach to solving unique problems that might exist in certain distinct parts of a district such as frontage on a main artery or frontage on a seashore.

The statutes we have reviewed have dealt with the substantive aspects of zoning we now turn to the procedural aspects of zoning, which as we have said earlier are equally important in order to achieve a viable zoning document.

Section 211.006 is generally referred to as the procedural statute governing the adoption of amendatory zoning ordinances--

There are alternatives presented in order to adopt a valid zoning amendment:

1. A public hearing may be held by the P & Z upon giving 15 days notice in a newspaper of general circulation published within the city, and
2. If the hearing is one conducted by the governing body of the municipality and the municipality so decides that another method of notification is more relevant than publication as provided, then the governing body by a vote of two-thirds of the membership may prescribe a different format or type of notification.

This section also provides for the "super majority" in order to pass a zoning proposal when a protest is filed. If a protest signed by 20% of the property owners owning property within the area where change is sought or within 200 feet around the area where change is sought, then the proposal must receive a vote of at least three-fourths of the members of the governing body. The protest provision is applicable to either a proposed change in regulation or boundary of any zoning districts.

The City Council can also provide for super majority of three-fourths in the event the City Council seeks to overrule the decision of the P & Z as contained in their report and recommendation.

Section 211.007 of the Texas Local Government Code is in furtherance of the procedural objectives set out in the previous section.

This section is important in that it gives the City Council the power to hold joint public hearings with the P & Z and also prohibits the governing body from taking action on a proposal until a final report and recommendation is received from the P & Z. This section generally provides for the power of the P & Z to act and make recommendations; the relevant part of the statute provides:

The commission shall recommend boundaries for the original zoning districts and appropriate zoning regulations for each district... 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 take action on the matter until it receives the final report of the Zoning Commission.

This section also provides for two interesting procedural concepts-

1. The P & Z can only hold a public hearing if a 10 day notice is given by publication. If the hearing is before the City Council or jointly with the Planning and Zoning Commission and the City Council, the required notice period is 15 days or published notice more than 15 days before the date set for the hearing, and
2. If the proposal is to change a zoning classification, then a written notice must be sent to everyone owning property within the area sought to be changed and within 200 feet around the area of the proposed change. The names of the people receiving the notice are determined from the tax roll of the municipality as prepared by the Central Appraisal District in the county.

Customarily the P & Z will begin its work on a zoning proposal at one of three levels. Each zoning proposal is unique in that it necessarily involves complex issues and while we can delineate levels, it is very appropriate for each level to consume several or many meetings and in some cases stretch over one or more weeks. The simple one issue proposal should obviously be disposed of readily without the necessity of using a protracted period of time to review and study the issues that might be involved.

a. Conceptional Level -- Ideally most members of the P & Z would prefer to begin working on an issue at the "conceptional level" or at the "formation stage." The formation stage is usually characterized by:

1. Defined objectives -- usually everyone will know what the final result will be.
2. Loosely defined methodology -- which means how to accomplish the result.
3. Limited knowledge of infrastructure -- the proposal is usually characterized by an incomplete knowledge of the infrastructure which is necessary to carry out full planning of the project.
4. Progress time frame poorly defined -- while completion date is usually adequately projected or estimated, the time increments to finish intermediate steps is usually ill defined and nothing more than a guess.
5. Limited consideration as to how project relates to existing development -- while the land owner where the project is to be located is anxious for the project to go forward, there usually is little in the way of analysis as to how the proposed project will relate with or negatively impact existing development.

The objective at this level is to give guidance to the developer so that the proposed project requiring a zoning adjustment may properly be formulated to achieve mutually advantageous objectives as follows:

1. Maximum land utilization from a cost/economy prospective.
2. Minimum adverse impact to existing developments.
3. Fostering of a work-together spirit between developer, interested citizens and the municipality.
4. Common objectives are discerned at an early stage.
5. All aspects of municipal planning can become involved (e.g. streets, public works, health and well being.)

b. At the time of the initial public hearing-- As is evident from a review of the statutory provisions that are applicable, when a zoning proposal is filed with the appropriate public official which requires a public hearing because of a requested change in the zoning code, the hearing may either be a "singular hearing" or a hearing by one body as in the case of a hearing before the P & Z or a "bi-party hearing" before the City Council and the Planning and Zoning Commission at the same time. If the public hearing is called by the City Council it will be joint or bi-party.

c. At the time of the joint public hearing-- A joint public hearing mechanism is used as the most expeditious way to complete the hearing process; however, it offers the least opportunity for interaction, molding and shaping the proposal at the P & Z level.

In addition to these formal procedural elements for any proposal at the P & Z level, P & Z can be effective as a body which engages in early planning or what is called "pre-need" planning. This is the process of planning for community development before a specific proposal is on the table to rezone or change some concept of the zoning code to accomplish a defined development.

The "pre-need" planning that the P & Z can engage in is in many respects the most meaningful part of the job. Every conceivable effort should be made to allow sufficient time on each P & Z agenda to engage in some degree of pre-need planning.

While few reported cases exist where zoning ordinances have been invalidated because of procedural errors committed by P & Z during the public hearing process, it is important to recognize that a casual approach to public hearings may well result in needless litigation or public questioning of the fairness of the process. In order to avoid considerations of fairness or adequacy being an issue in zoning litigation, the following procedural guidelines for the public hearing process should be carefully reviewed:

1. Allow everyone present desiring to speak to the issue the opportunity to do so within reasonable time frames, e.g., a time limit of 3 to 5 minutes for each speaker.
2. Make sure the record reflects that the notice for public hearing was read at the beginning of the hearing or the proposal is explained to everyone present.
3. If the proposal is complex and/or not straight forward, be sure the proposal is adequately explained as to what is intended so that a person of ordinary intelligence can understand what is intended.
4. Close the public hearing at the conclusion of the public comment section of the hearing. An announcement should be made that the public hearing is being closed. Do not reopen the public hearing at any other meeting or future date without complying with the notice provisions of law that are applicable to a new public hearing. It is very desirable not to even reopen a public hearing on the same date in that any reopening could result in allegations that the reopening might deprive an interested citizen of sufficient advance notice that the hearing was going to be reopened.
5. Prior to the public hearing each member of the P & Z should satisfactorily inform themselves of the nature of the proposal by visiting the site of the proposed development or change. Residents and interested citizens may be interviewed depending upon time and geographical limitations.
6. Confine all citizen comments during the public hearing to the subject matter of the public hearing.
7. Written comments should be received the same as oral comments and read aloud and the same distributed to each member of the P & Z.
8. Members of the P & Z should as much as possible avoid making statements as to their position on a proposal either before the public hearing or at any time before the public hearing is closed.
9. Do not expand the public hearing to include other issues or subject matter. Any expansion of the public hearing requires a new notice procedure as well as a new public hearing.
10. Do not participate in the debate or deliberation on an issue or proposal if not present for the public hearing.

The drafting and submission of the final report and recommendation to the City Council usually represent the conclusion of the work of the P & Z on any proposal or issue that has come before them. As we know, the P & Z is a body of legislative recommendation, thus the final report of the P & Z does not represent "law" nor should it be considered to have any legal regulatory effect.

Texas state law mandates a P & Z recommendation as a condition "precedent" before the City Council can even debate or deliberate a proposal to amend or change the zoning code. So, theoretically if the P & Z fails to render a report and recommendation or delays a report and recommendation, the City Council does not have the legal power to even consider the zoning proposal which was subject to the public hearing. Of course in the case of the P & Z, the City Council has unlimited power to replace members with or without cause and there are no minimum periods of service before a replacement can be brought on board.

The basic elements of a final report and recommendation are:

1. Description of the issue considered.
2. Findings of fact made by the P & Z.
3. Statement of the recommendations of the P & Z.
4. Conditions the P & Z finds to be appropriate to insure the health, safety and well being of the community, if the City Council chooses to include the recommendations in an ordinance of adoption.
5. Any time constraints or staging issues that are appropriate in line with the P & Z recommendation, e.g., this could refer to such elements of construction that the P & Z concluded that one part of a project should be completed before another or that a certain number of days should pass between elements of the project.
6. The final report and recommendation should reflect that it has been adopted by a majority vote of the commission members present and voting at a properly called public meeting and signed by the chairman and/or attested to by the secretary of the commission.

We have spent a majority of this paper discussing the job of planning and the job of zoning which the P & Z is charged with completing by law. There is one further "job" which is seldom mentioned, but is equally important in the role of effective city planning and that is the job of approving subdivision plats as provided for under state law and Chapter 23.5 of the Code of Ordinances.

The distinguishing characteristic in this job is that the Planning and Zoning Commission and/or the City Council do not act in a legislative capacity, but instead act in an administrative role when subdivision plats are considered for approval. Administratively, the P & Z is required to approve a subdivision plat if the proposed plat meets the requirements of the Code of Ordinances and the provisions of sate law. P & Z's only role in this process is to be "super administrator;" i.e., a body of final review over all others in the city who are principally department heads and are charged with the day to day job of reviewing proposed subdivision replats. There are basically four steps to this process:

1. Initial filing-- The Code of Ordinances requires a pre-filing approach so that the city will not find itself in the position of being unable to correct a defective subdivision plat. Generally, the P & Z will interact at an early stage at this level. The developer will be in the process of satisfying all infrastructure assessments or determinations that have been made at the departmental level.

2. Filing-- Once filing has occurred, the city through the P & Z is limited to 30 days to approve or disapprove the proposed subdivision. Thus, the customary approach is to require "pre-filing" so that any parts of the plan which are contrary to the Code of Ordinances can be thoroughly reviewed and modified as necessary.

3. Public Hearing-- Our Code and state law mandates a hearing on the proposed subdivision plan. Frequently, the public is mislead as to what can occur in this type of hearing. Regardless of whether the public speaks in favor of or against the proposal, the sole and only purpose of the hearing is for the public wishing to comment to address the "administrative" issues. Administrative issues generally relate to compliance with the requirements of the Code as to the rules and substantive provisions for subdivision plats consideration and approval.

4. Final Approval-- While we have already discussed the basis for a subdivision plat review, it is necessary for the P & Z to act and disapprove the plat within 30 days from the date it is finally filed or it will be deemed automatically approved at the end of the 30 day period.