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HomeMy WebLinkAbout01142019 ZPC Agenda Item 3 City of West University Place A Neighborhood City CITY COUNCIL STAFF Susan Sample,Mayor M. Christopher Peifer,City Manager Mardi Turner,Mayor Pro Tern Alan Petrov,City Attorney Bob Higley,Councilmember Thelma Gilliam,City Secretary Kellye Burke,Councilmember Kevin Boyle,Councilmember City Council Meeting Agenda Notice is hereby given of a workshop and regular City Council meeting of West University Place to be held on Monday, January 14, 2019 beginning at 6:00 p.m. in the Municipal Building located at 3800 University Boulevard, West University Place, Texas, for the purpose of considering the following agenda items Note: All agenda items are subject to action. The City Council reserves the right to meet in a closed session on any agenda item should the need arise and if applicable pursuant to authorization by Title 5, Chapter 551, of the Texas Government Code. WORKSHOP (Council Chambers at 6:00 p.m.) Call to Order Matters related to notice of this meeting 1. Convene into Executive Session (Council Conference Room) Notice is hereby given that the City Council will convene into executive session in accordance with the following provisions of Chapter 551 of the Texas Government Code: Section 551.071 — Consult with legal counsel to seek or receive legal advice. Section 551.072 — Discuss the value, sale, purchase, exchange or transfer of real property with the City. Section 551.074 — Deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee: City Manager 2. Reconvene Workshop Matters related to any action resulting from the executive session discussions. 3. Adjourn Workshop REGULAR MEETING (Council Chambers at 6:30 p.m.) Call to Order Matters related to the notice of this meeting Pledge of Allegiance 4. Joint Public Hearing with the Zoning and Planning Commission Matters related to a Joint Public Hearing with the Zoning and Planning Commission regarding the AT&T rezoning application. Recommended Action: Hold public hearing. Mr. Dave Beach, Assistant City Manager/Public Works Director and Richard Wilson, Chair of the Zoning and Planning Commission [see Agenda Memo 4] SU brn Ric_ • D W i lSon Q4- AT&T in West University Fact vs. Fiction FACT FICTION Current zoning permits both AT&T owned and Parking lot is zoned for employee parking only. employee parking. AT&T has not been cited for driving/parking AT&T violated ordinances by driving/parking violations. AT&T will comply with West trucks on residential streets. University traffic and parking ordinances. AT&T was required to judicially appeal a ZBA AT&T sued the City. erroneous interpretation (which reversed a City Staff interpretation) to preserve expiring legal rights, and has not pursued the matter, instead seeking cooperative resolution. AT&T has never seen such petition,if any. 80%of residents petitioned against the rezoning. The proposal is a site specific rezoning,which has This rezoning poses an existential threat to West no bearing on future zoning decisions. University zoning and is precedence for the future. _ Cut-through traffic will be prohibited. Cut-through traffic will endanger children. Statistical Analysis by Valbridge Property Home values have reduced as a result of the Advisors reflects that the AT&T facility has not facility. materially impacted home values year over year, based on sq. ft. value and increase in value for comparable new construction homes. AT&T wants to work with the community and be West University residents' concerns don't a good neighbor. Indeed,we negotiated in good matter. faith with neighbors and their attorneys over the course of many months so as to ease concerns. AT&T made significant concessions as a result of The company is unwilling to compromise. good faith negotiations with West University residents,which are included in PD-SF2. Buildings in the parking lot area are prohibited AT&T wants to expand its presence. and AT&T has not made any requests for new structures. Truck access is limited to those with 2 axels such 18 wheelers will be used at this location. as a van (no 18 wheelers). Loading and unloading in the parking lot is Employees will be able to access the parking lot restricted to 7am-7pm Monday—Friday and 24 hours a day. 8am-7pm Saturday. Parking vehicles, is not limited by time of day. West University residential light and noise Use of the parking lot will result in increased restrictions enforced by the City specifically light and noise. apply. Maintenance standards apply, including The building and surrounding space will be required landscaping. unkempt. AT&T vehicles are prohibited from using Ruskin Trucks will drive down Ruskin regularly. (and Cason). External AT&T signage is prohibited Signs and flyers will be prevalent. AT&T vehicle parking on Ruskin and Cason is Employees will park outside the parking lot. prohibited. AT&T will ask employees not to park on Ruskin or Cason, but on site. Driving on Ruskin and Cason by AT&T utility Trucks will drive down Ruskin and Cason vehicles is prohibited,except to service regularly. customers on those streets. SVADm4 6 \Ij WA -) 1. 1�-1.�� Proposed Notes 12 & 13 for PD-SF3 [Permitting and limiting Parking Lot use] Showing additional limits and optional provision 1/14/19 Note 12. Parking Lot Use in PDD-SF3. PDD-SF3 may be used for (i) parking, loading and unloading and sorting/inventory of contents of vehicles, trucks and vans (2 axels maximum) owned by AT&T and/or its employees only, as part of the telecommunications business only, by manual 2 wheel dollies/hand trucks or 2 wheeled carts, limited to 7am-7pm Monday-Friday and 8am-7pm Saturday except related to services to medical facilities, due to customer medical emergencies or catastrophic events (storms, terrorist events, etc.), or parking only, which may occur at other times, (ii) vehicles temporarily required for repairs/construction relating to the adjacent building under common ownership, limited to the term of a valid City building permit, (iii) no use (non-use is not abandonment), and (iv) any use permitted by a current special exception. Washing, refueling and mechanical services are prohibited, but minor emergency repairs (flat tire, dead battery, out of fuel, etc.) are permitted. Transporting personal items (including food) to and from vehicles and adjacent building under common ownership, and transporting trash, litter and materials to and from vehicles and waste storage areas is permitted. Resting and phone calls are permitted within vehicles. Structures are prohibited, unless permitted by a current special exception. The parking lot shall comply with City Code, including light and noise restrictions applicable to residential areas. The existing solid walls and gates, and the landscaping outside the walls must be maintained in good condition. JIF desired by City, The existing masonry wall along Ruskin St. shall be relocated or replaced by wall of comparable height and style to either the existing wall on Ruskin St. or on Academy St., but moved to have the same setback from Ruskin St. as the existing wall for the parking lot to the east (Whole Foods shopping center).l Monthly landscaping services are required. No exterior signage is permitted, except as required by law. Parking lot use on any lot in PDD-SF3 shall terminate upon: (i) independent sale of the lot, or (ii) sale of all of AT&T's facility on Bellaire/Academy to an entity not in the telecommunications business. Merger of AT&T into another entity in the telecommunication business will not terminate the parking lot use. Note 13. Access/Parking Limits in PDD-SF3 during Parking Lot Use. The following limitations apply to Parking Lot use: (i) access is prohibited from the parking lot to Ruskin St., (ii) parking/driving of vehicles owned by AT&T and/or its employees is prohibited on Ruskin St. and Cason St., except for residents/invited guests, and temporarily while providing telecommunication services to residents on those streets, and (iii) access to/from the parking lot shall be from Bellaire Blvd. via Academy St. to the parking lot except temporarily while providing telecommunication services to residents on those streets. Appendix A CHECKLIST FOR LOCAL DEVELOPMENT REGULATIONS D Is the existing site lawfully platted? O How will drainage be handled? How was it created? Metes and bounds? Is there stream capacity? Is detention required? Exceptions/defenses in the ordinance or state law? What is the drainage route? Who controls it? Was there a prior plat? Check notes/restrictions. D Are there tap fees,impact fees,other fees? D Will a new plat(or replat)be required? See Ch.395,LGC for the times they accrue. Division of a tract? Check for possible exceptions or limits. Change in use or restriction? Crossing a lot line? Need to cross or use a one-foot reserve? a Is any public property needed? Check procedures. Will other jurisdictions review? Construction in street or easement Check for relaxed amending plat or minor plat rules Encroachments by improvements Will any dedications/fee payments be required? D If so,what permission is needed? ❑ Is a site plan(development plat)required? Permit or other revocable permission Check the ordinance"trigger." Contractual permission Is there"development"under 212.043 LGC? Outright purchase(appraisal) Check exceptions/defenses in the ordinance Check to see if a replat could work instead Are special traffic or other studies needed? Will any dedication/fee payments be required? ❑ Does the project meet all building codes? Prior inspections,permits,certificates? ❑ Are there zoning regulations applicable? New inspection/certificate from city? Ordinary municipal zoning? Administrative interpretation or modification possible? Special airport or reinvestment(TIF)zoning? Appeal to hearing board? Watch deadline. County zoning(airport,reservoir,etc.)? D Are there flooding,storm water,grading or filling or ❑ If so,does the project comply? special water quality regulations? What is the building site/lot/parcel? Check for 100-year flood plain or floodway In which zone(s)does it lie? Any overlay zones? Check for county and city storm water rules Which regulations apply to sites in those zones? Check for special city/ETJ water quality regulations Does the project comply with those regulations? For each non-compliant item,check: ❑ Is off-street parking required? Exceptions/defenses in the ordinance Existing land use? Exceptions/defenses in state law New construction or change in use? Prior-non-conforming status("grandfathering") Check possible exceptions and transitional rules. Prior approvals given(variances,etc.) ❑ Is landscaping or buffering required? ❑ Can the project comply"as of right"? Has the building official ruled? ❑ Are there tree protection or environmental rules? What appeals are available? Deadline? Has anyone else appealed? ❑ Are there any historic preservation regulations? ❑ Is a ZBA discretionary approval needed? ❑ Are there single-subject nuisance-like regulations? Appeal from administrative ruling? Watch deadline. Depends on land use/type of activity Special exception(provided for in the ordinance) Use code of ordinances as checklist Variance(hardship;not in the ordinance) D Are there deed restrictions?Architectural control? ❑ Is another discretionary approval needed? Compliance needed for building permit? Affidavit? Rezoning or change in district boundaries? Can a building permit be revoked? Change in regulations only,not boundaries? Can a lawsuit be brought? Amendment called"permit"(SUP,CUP,etc.)? Planned unit development or PDD? D Check alcoholic beverage licenses and permits. Does the comprehensive plan,if any,allow it? Amendment of the plan?See Ch.219,LGC. a Special assessments or special tax districts? D Is there sufficient water/sewer? Plant/line capacity,points of connection. NOTE:a indicates items that usually apply both inside What are the local providers? Check CCN's. and outside city limits. Will the utility issue a letter of availability? Can capacity be reserved? How? Is construction needed? Who does it? Who pays? G:\Clients\1312Wticles\Fundamentals of Zoning 2002 2-1 2-02.wpd D Are on-site water/sewer facilities needed? Check state/local rules. 65 City of Pharr v.Tippitt,616 S.W.2d 173(Tex.,1981) Page 173 because the amendatory ordinance was spot zoning that was not warranted by any change 616 S.W.2d 173 in conditions in the area. CITY OF PHARR,Petitioner, v. The land in question is a rectangular E.A.TIPPITT,Respondent. 10.1-acre tract. It is on the west side of a No.B-9657. larger 6o-acre tract. The 60-acre tract and Supreme Court of Texas. additional large expanses of land to the south May 13, 1981. and southeast are vacant farmlands. The Rehearing Denied June 17,1981. lands were zoned in 1974 for single-family residences. The tract in question is about two Page 175 blocks east of Highway 281, a major highway that runs from north to south toward Mexico. William E.York,McAllen,for petitioner. The land along the highway is rapidly developing as a commercial strip by reason of Jones and Lewis, John Lewis, McAllen, a proposed new bridge that will cross the Rio for respondent. Grande River into Mexico. Sam Houston Street is a major traffic artery that runs from POPE,Justice. west to east. The tract in question is south of E. A. Tippitt and fourteen other and separated from Sam Houston Street by a landowners filed suit against the City of 2.6-acre tract of land known as the Aycock Pharr, Mayfair Minerals, Inc., and Urban tract. Moving clockwise from the north Housing Associates seeking a judgment around the 10.1-acre tract, the Aycock tract is declaring a zoning ordinance invalid. The zoned for single-family residences. Farther district court upheld the ordinance, but the north of there, on the north side of Sam court of civil appeals nullified it. 600 S.W.2d Houston, there are many city blocks of land 951. We reverse the court of civil appeals that were zoned for multiple-family judgment and affirm that of the trial court. residences. That area, however, was built as single-family residences.The land on the.east, Mayfair Minerals, Inc. is the owner of southeast, south, and southwest are 10.1 acres of land which the City of Pharr undeveloped farmlands, all zoned for single- rezoned from R-1,single-family residence use family residences. Bordering the 10.1-acre to R-3, multi-family residence use. Urban tract on the west is Richmond Heights Housing Associates, the developer, made the Subdivision, which has been developed as application for change of the single-family single-family residences on the north end,but classification so that it could build fifty family is not yet developed toward the south. Three units consisting of duplexes and hundred feet to the northeast of the tract,but quadruplexes. The Planning and Zoning south of Sam Houston,there is an area that is Commission rejected its staffs zoned for multiple housing.Two hundred feet recommendation that the zoning request be to the west of the 10.1-acre tract is a small approved; but the City Council, by a four to area that is zoned for industrial use. one vote,enacted an ordinance which rezoned , the property. After the district court upheld Zoning is an exercise of a municipality s the validity of the zoning ordinance, Tippitt legislative powers. Thompson v. City of was the only person who appealed from that Palestine, 510 S.W.2d 579 (Tex.1974); Arts. lolla, i011b, lollc, lolld, ione. The judgment. Tippitt's single point of error, validity of an amendment to City of Pharr's which point was sustained by the court of civil appeals, was that the City acted arbitrarily comprehensive zoning ordinance presents a -1- City of Pharr v.Tippitt,616 S.W.2d 173(Tex.,1981) question of law, not fact. In making its abused its discretion; that the ordinance is determination,courts are governed by the discriminatory and violates the rights of petitioners under the basic ordinance, and Page 176 does not bear any substantial relation to the public health, safety, morals or general rule stated in Hunt v. City of San Antonio, welfare; that it "constitutes unjustifiable spot 462 S.W.2d 536, 539 (Tex.1971): "If zoning";and that the ordinance is void. reasonable minds may differ as to whether or not a particular zoning ordinance has a These general rules for review of zoning substantial relationship to the public health, ordinances have often been stated, but there safety, morals or general welfare, no clear has been little discussion of the actual legal abuse of discretion is shown and the criteria or standards against which legislative ordinance must stand as a valid exercise of action should be tested. It has been suggested the city's police power." See also City of that such a statement would help to restrain University Park v. Benners, 485 S.W.2d 773 arbitrary, capricious and unreasonable (Tex.1972). We wrote in City of Fort Worth v. actions by city legislative bodies; improve the Johnson, 388 S.W.2d 400, 402 (Tex.1964), quality of the legislation; assist in eliminating that "a zoning ordinance, duly adopted ad hoc decisions, and focus the evidence from pursuant to Arts. 1o11a-1o11k, is presumed to interested parties upon the real issues. 2 We be valid and the burden is on the one seeking call attention to some of the important to prevent its enforcement,whether generally criteria: or as to particular property, to prove that the ordinance is arbitrary or unreasonable in that First: A comprehensive zoning ordinance it bears no substantial relationship to the is law that binds the municipal legislative health, safety, morals or general welfare of body itself. Art. lolic. The legislative body the community." See Thompson v. City of does not, on each rezoning hearing, Palestine, supra; City of University Park v. redetermine as an original matter, the city's Benners, supra; City of Bellaire v. Lamkin, policy of comprehensive zoning. The law 159 Tex. 141, 317 S.W.2d 43 (1958); City of demands that the approved zoning plan Waxahachie v. Watkins, 154 Tex. 206, 275 should be respected and not altered for the S.W.2d 477(1955). special benefit of the landowner when the change will cause substantial detriment to the The burden on the party attacking the surrounding lands or serve no substantial municipal legislative action is a heavy one. public purpose. 1 R.Anderson,American Law Thompson v. City of Palestine, supra, at 581- of Zoning § 5.04 at 24o (1968). The duty to 82; City of El Paso v. Donohue, 163 Tex. 160, obey the existing law 352 S.W.2d 713 (1962); City of Dallas v. Lively, 161 S.W.2d 895 (Tex.Civ.App. Dallas Page 177 1942, writ ref d). As expressed in Weaver v. Ham,149 Tex.309,232 S.W.2d 704(1950): forbids municipal actions that disregard not only the pre-established zoning ordinance, The City had the power to enact the basic but also long-range master plans and maps zoning ordinance, and to amend it,if a public that have been adopted by ordinance. 1 R. necessity demanded it. While the Anderson,supra§5.13 at 267. presumption would be that the enactment of the amendatory ordinance was valid, that The adoption of a comprehensive zoning presumption disappears when the facts show ordinance does not, however, exhaust the and it was determined by the court that the city's powers to amend the ordinance as long City acted arbitrarily, unreasonably, and as the action is not arbitrary, capricious and -2- City of Pharr v.Tippitt,616 S.W.2d 173(Tex.,1981) unreasonable. Art. ioiie. City of University places and areas.Arts. ioiia, ioiic.Weaver v. Park v.Benners,supra. Ham, supra; 2 E. Yokley, Zoning Law and Practice § 13-6 at 243 (1978). The rezoning Second: The nature and degree of an ordinance may be justified, however, if a adverse impact upon neighboring lands is substantial public need exists, and this is so important. Lots that are rezoned in a way that even if the private owner of the tract will also is substantially inconsistent with the zoning benefit.City of Waxahachie v.Watkins,supra; of the surrounding area,whether more or less Edge v. City of Bellaire, 200 S.W.2d 224, 227 restrictive, are likely to be invalid. See (Tex.Civ.App. Galveston 1947, writ refd); Barrington v. City of Sherman, 155 S.W.2d Thompson v. City of Palestine,supra; Hunt v. 1008 (Tex.Civ.App. Dallas 1941, writ ref d w. City of San Antonio, supra; Weaver v. Ham, o. m.). For example, a rezoning from a supra.6 R.Powell,Powell on Real Property§§ residential use to an industrial use may have a 871.1-871.1(4)(1979). highly deleterious effect upon the surrounding residential lands. City of Mr. Tippitt's attack upon the amendatory Waxahachie,supra;City of McAllen v.Morris, ordinance in this case is that it is spot zoning. 217 S.W.2d 875 (Tex.Civ.App. San Antonio The term, "spot zoning," is used in Texas and 1948,writ ref d); Skinner v. Reed,265 S.W.2d most states to connote an unacceptable 85o (Tex.Civ.App. Eastland 1954, no writ); 1 amendatory ordinance that singles out a R.Anderson, supra §5.08 at 259 (1968); 1 N. small tract for treatment that differs from that Williams, American Land Planning Law § accorded similar surrounding land without 27.03 at 563(1974). proof of changes in conditions. Mr. Tippitt's present complaint of spot zoning invokes Third: The suitability or unsuitability of mainly inquiries about the second and third the tract for use as presently zoned is a factor. criteria stated above. Spot zoning is regarded Art. lollc. The size, shape and location of a as a preferential treatment which defeats a lot may render a tract unusable or even pre-established comprehensive plan. confiscatory as zoned. An example of this is Thompson v. City of Palestine, 510 S.W.2d found in City of Waxahachie v. Watkins, 154 579, 582 (Tex.1974). It is piecemeal zoning, Tex. 206, 275 S.W.2d 477(1955),in which we the antithesis of planned zoning. 2 E. Yokley, approved the rezoning of a residential lot for Zoning Law and Practice§§ 13-1 through 13-6 local retail use, because the lot was (1978). surrounded by a de facto business area. See also,City of West University Place v.Ellis, 134 Spot zoning has uniformly been denied Tex. 222, 134 S.W.2d 1038 (194o). This when there is a substantial adverse impact factor,like the others, must often be weighed upon the surrounding land. The size of a in relation to the other standards, and rezoned tract in relation to the affected instances can exist in which the use for which neighboring lands has been said by some land is zoned may be rezoned upon proof of a authorities to be the most significant real public need or substantially changed consideration in rezoning. 1 R. Anderson, conditions in the neighborhood. See Harris, supra, § 5.07 at 252; 82 Am.Jur.2d, Zoning Rezoning Should It Be a Legislative or and Planning,§§76,77,78 at 514-520(1976). Judicial Function?, 31 Baylor L.Rev. 409, 424-25(1979). Amendatory ordinances which have rezoned a single city lot when there have been Fourth: The amendatory ordinance must no intervening changes or other saving bear a substantial relationship to the public health, safety, morals or general welfare or Page 178 protect and preserve historical and cultural -3- City of Pharr v.Tippitt,616 S.W.2d 173(Tex.,1981) characteristic, have almost always been as urged by the developer who made the voided in Texas. See Hunt v. City of San application, an interim or automatic R-1 Antonio, 462 S.W.2d 536 (Tex.1971), (2 city zoning following annexation. The tract had lots); Weaver v. Ham, 149 Tex. 309, 232 been previously comprehensively zoned, S.W.2d 704 (1950), (3 city lots); Davis v. along with vast areas reaching south and Nolte, 231 S.W.2d 471 (Tex.Civ.App. Austin southeast to the city limits after study, notice, 1950, writ ref d n. r. e.), (2 city block lots); and hearing. The zoning ordinance had Harmon v. City of Dallas, 229 S.W.2d 825 classified lands of the city into districts (Tex.Civ.App. Dallas 1950, writ ref d n. r. e.), known as residential, single-family (R-1); (1 city lot); Barrington v.City of Sherman, 155 residential, two-family (R-2); residential, S.W.2d 1008 (Tex.Civ.App. Dallas 1941, writ multi-family (R-3); residential, mobile home refd w. o. m.), (1 city lot). See also 1 N. parks (R-MH); residential, mobile home Williams, American Land Planning Law § subdivision (R-MHS); residential, townhouse 27.03 at 563 (1974); 1 R. Anderson, supra § subdivision (R-TH); general commercial (C), 5.08 at 2.56. and industrial(M).See Art. 1o11b. Proof that a small tract is unsuitable for The impact of the amendatory R-3 zoning use as zoned or that there have been upon the neighborhood, according to some substantial changes in the neighborhood have witnesses who lived west of the rezoned tract, justified some amendatory ordinances. Here, would depress the values of their R-1 district. too, the size, shape and characteristics of the According to other testimony, the new tract have been determinative factors in development would enhance values of the upholding the amendments. Waxahachie v. entire southeast section of Pharr, and the Watkins, supra, (one-half acre); Bernard v. existing homes in Richmond Heights would City of Bedford, 593 S.W.2d 809 be protected by the city's requirement for a (Tex.Civ.App.Fort Worth 1980,writ ref d n.r. conditional permit which would compel the e.), (3.5 acres); Midway Protective League v. city's prior analysis of the design before City of Dallas, 552 S.W.2d 170 (Tex.Civ.App. development. The new development would Texarkana 1977, writ ref d n. T. e.), (7.98 require the backyards of the existing acres); McWhorter v. City of Winnsboro, 525 residences in Richmond Heights to back upon S.W.2d 701 (Tex.Civ.App. Tyler 1975, writ the backyards of the buildings in the rezoned ref d n. r. e.), (5.29-acre extension of a tract. Most of the traffic from the rezoned business zone); Simons Land Co. v. City of tract would be directed to the east and north Dallas, 507 S.W.2d 828 (Tex.Civ.App. Waco away from Richmond Heights. The new 1974), motion for reh. den., 510 S.W.2d 32 housing district would have its own internal (1974, no writ), (90 acres out of a 100-acre streets and off-street parking. tract); Skinner v. Reed, 265 S.W.2d 850 (Tex.Civ.App. Eastland 1954, no writ), (12 The number of potential structures would acres). On the other hand, an amendatory not be substantially increased. Zoning for ordinance covering a 4.1-acre tract was single-family dwellings would permit as many invalidated in Thompson v. City of Palestine, as forty-four family units, whereas the supra. See 1 R.Anderson,supra§5.07 at 253- rezoning for multiple-housing (R-3) would 54, for a study of size as a factor in spot permit fifty family units. There was evidence zoning cases. that the impact upon the surrounding area would be slight and even beneficial. Amendatory zoning ordinances should be judicially tested against the same criteria that We do not regard the ordinance as spot govern the action of the municipal legislative zoning. The ten-acre tract is located in an body. In this case,the 10.1-acre tract was not, undeveloped farming area. Large expanses of 11111 -4- City of Pharr v.Tippitt,616 S.W.2d 173(Tex.,1981) rural lands are located to the east, south and water reservoir. From the record it does not southeast, the direction which the town must appear that the one complaining of the grow. To hold that the undeveloped land rezoning ordinance discharged his burden to cannot be used for anything other than prove that the City of Pharr acted arbitrarily, single-family residences (R-1) would mean, capriciously or unreasonably. for all practical purposes,that there can be The judgment of the court of civil appeals Page 179 is reversed and the judgment of the district court upholding the ordinance rezoning the no more multiple housing in Pharr within its tract in question is affirmed. present city limits, since there is almost no presently undeveloped area which is available McGEE,J.,notes his dissent. for R-3 housing. The size of this tract is large enough for planning as a self-contained orderly development which can in advance provide for the direction and the flow of 1 All statutory references are to Texas Revised traffic and assure a careful development of Civil Statutes Annotated unless otherwise necessary public utilities. The development indicated. will not cause that measure of disharmony that occurs when there is a rezoning 2 Because of the lack of standards for ordinance that permits a use that affects lands rezoning decisions,the exercise of pressure by or tracts that are already developed. This is ••• groups increases the likelihood that zoning not an instance of an unplanned or piecemeal bodies will be influenced by special interests zoning of an isolated lot or small tract. rather than by the facts and circumstances bearing upon the merits of a rezoning There is also evidence that rezoning request. Standards usually have the effect of would benefit and promote the general making all of the parties concerned the zoning welfare of the community. The City of Pharr body, applicant, and neighborhood has a great need for multiple housing, the opposition concentrate more on the facts population has markedly increased since relating to the standards rather than on 1974, and there are only three small areas in collateral matters. Harris, Rezoning Should It Pharr that are presently zoned for multiple Be a Legislative or Judicial Function?, 31 housing (R-3) which are not fully developed. Baylor L.Rev.409 424(1979). The mayor testified that the need for multi- See also Comment, Municipal Corporations family housing will continue to grow.The City Zoning Spot Zoning Ordinances and Their of Pharr, from the data included in the minutes of the zoning hearing, has 703 acres Validity, 46 Oregon L.Rev. 323 (1967); zoned for residential purposes of all kinds. Comment, Spot Zoning and Comprehensive Only 49 acres are actually used for multiple Plan, 10 Syracuse L.Rev. 303 (1959); Note, housing (R-3), and nine acres are actually Municipal Corporations Spot Zoning used for duplexes (R-2).To relieve the City of Amendment of Zoning Ordinance, 33 Texas Pharr's housing and utility needs,the City had L.Rev. 763 (1955); Note, Municipal Corporations Amendment of Zoning agreed with the Housing and Urban Ordinances Spot Zoning, 29 Texas L.Rev. 689 Development Department to provide more space for multiple housing (R-3) (1951);Annot.,Zoning: Creation by Statute or construction. A block grant to the City of Ordinance of Restricted Residence Districts $3,000,000 had been made which included from Which Business Buildings or Multiple Residences Are Excluded, 117 A.L.R. 1117 sums to provide needed extensions of sewer and water lines and the construction of a (1938); Feld, Supreme Courts Views as to El II -5- City of Pharr v.Tippitt,616 S.W.2d 173(Tex.,1981) Constitutionality of Residential Zoning Restrictions,52 L.Ed.2d 863(1978). -6- and focused on the fact that there only needs to be a rational relationship to a legitimate state interest for regulation to survive an equal protection challenge. On the final issue of procedural due process, the Court held that Sunnyvale must only provide notice and an opportunity to be heard, and that due to the fact that zoning is a legislative act, Sunnyvale is entitled to consider all facts and circumstances which may effect property of the community and the welfare of its citizens in making a decision. Hidden Oaks Ltd.v. City of Austin, 138 F.3d 1036(5th Cir. 1998). The City of Austin placed utility holds on new tenants moving into an allegedly substandard apartment complex. A City employee signed an"agreement"regarding actions to be taken to avoid further utility holds. After efforts to work out a resolution failed,the City"got tough"with the owner,refusing to allow new tenants to move in until remedial efforts were satisfactory to the City. The apartment owner filed suit for lost rents based on breach of the"agreement"and takings. At trial, the constitutional issues were dismissed but the land owner won on the contract law claim and was awarded damages equal to lost rent during the period the utility holds were in place. The Court held that federal takings claims were not"ripe"since the apartment owner failed to appeal the utility holds to the Building and Standards Commission,where a claim could have been asserted that the holds were wrongfully imposed. On the takings claim, the Court held that, as a matter of law, placing utility holds on substandard property qualifies as a reasonable,non-arbitrary decision designed to accomplish the "legitimate goal" of keeping substandard housing unoccupied, at least as to the substandard units. However,the issue of nonsubstandard units on which utility holds were placed in an effort to force compliance on other substandard units gave the Court more trouble. Nevertheless, on the facts submitted,the Court upheld the City's action. On the issue of substantive due process,the Fifth Circuit reaffirmed its longstanding holdings that there is a very limited range for substantive due process analysis and that so long as there is a conceivable rational basis for a City land use decision, it will be upheld. The City waived what apparently would have otherwise been a winning argument that the "agreement"was invalid either because it was not authorized by the City Council or it was an unenforceable restriction on the City's police power. Statements by the City's attorney in the charge conference denying that there was a dispute regarding the "validity of the agreement" constituted judicial waiver of those defenses. Although the contract law judgment was upheld,the Fifth Circuit remanded on the issue of damages. SWZ,Inc.v.Board of Adjustment of Fort Worth,985 S.W.2d 268(Tex.App.—Fort Worth 1999,pet. denied). A city ordinance forbids the operation of sexually oriented businesses within 1000 feet of any church. After denial of a certificate of occupancy to operate a sexually oriented business within 1000 feet of a church hall, a business owner challenged the ZBA decision, claiming it to be unreasonable and unconstitutional. The district court affirmed the decision,and the owner appealed. The owner argued that an intervening elevated freeway and railroad tracks were substantial buffer zones that would mitigate any negative secondary effects the sexually-oriented business might have on church goers. This argument was ultimately rejected by the appellate court on the grounds that the ordinance's distance requirement was narrowly tailored to protect a legitimate interest. 40 City of Monterey v. Del Monte Dunes at Monterey,Ltd., 526 U.S. 687(1999). Property owner Del Monte Dunes brought suit against the city alleging the city's repeated rejections of it's request for development approvals resulted in a regulatory taking which violated owner's equal protection and due process rights. Del Monte Dunes applied for an application to develop a parcel of land 5 separate times over 5 years,and with each rejection,the city imposed more rigorous demands. A total of 19 site plans were submitted.The facts indicate that the city never wanted the development to occur,and later,the land became public land. The owner filed suit under 42 U.S.C. § 1983. The district court submitted the case to a jury on Del Monte Dunes'theory of a regulatory taking. The jury was instructed to find for Del Monte Dunes if it found"either that Del Monte Dunes had been denied all economically viable use of its property, or that the city's decision to reject the final development proposal did not substantially advance a legitimate public purpose." The jury found in favor of Del Monte Dunes and assessed money damages. The Ninth Circuit affirmed. In its holding, the Ninth Circuit held that under 42 U.S.C. § 1983, Del Monte Dunes had a right to a jury trial,and the jury,with the evidence presented,could reasonably have decided in Del Monte Dunes'favor. The Supreme Court affirmed the right of the jury to decide the takings issues and also affirmed the money judgment. The Supreme Court also addressed the "ripeness" issue. This dispute was held to be ripe for adjudication under the rather extreme facts of numerous applications over many years. Specifically, the Supreme Court held that pursuit of relief in state court was not a condition of seeking federal law relief since"the State of California had not provided a compensatory remedy for temporary regulatory takings." Finally,the Supreme Court concludes"...we have not extended the rough-proportionality test of Dolan beyond the special context of extractions—land use decisions conditioning approval of development on the dedication of property to public use." Avalon Residential Care Homes v. City of Dallas, 130 F. Supp. 2d 883 (N.D. Tex. 2000). Avalon sued the City under the Fair Housing Standards Act and Equal Protection Clause of the 14th Amendment,when the City denied Avalon a special use permit to operate a handicapped home. The home housed more persons and was closer to another similar home than allowed by city ordinance. Avalon claimed:(1)discrimination by making housing unavailable to handicapped persons because of their status;(2)discrimination by refusal to make reasonable accommodations under the City's zoning; (3)violation of the Equal Protection. The case was decided on cross motions for summary judgment. As to Avalon's first claim,the court held that Avalon failed to establish the ordinance made housing unavailable to handicapped persons because of their handicapped status. In fact, the regulation permitted a greater number of unrelated handicapped persons to live together than non-handicapped persons,thus making housing more available to handicapped persons. The court found some support for Avalon's contention that the City ordinance failed to make a reasonable accommodation for handicapped persons. In determining whether there had been a "reasonable accommodation,"the court focused on how the ordinance operated under the City's overall zoning laws,citing Elderhaven,Inc.v.City of Lubbock,98 F.3d 175, 178(5th Cir. 1996). According 41 to the court, even a neutral regulation might fail to produce a reasonable accommodation. Avalon presented evidence that the City's denial of Avalon's application for a specific use permit was based on generalized perceptions and speculations of persons with disabilities and the business status (as opposed to residential status)of the home. The court also cited the fact that handicapped group homes have no way to be certain whether they are operating within 1000 feet of other such homes. Therefore, the court concluded there was a fact issue as to whether the City ordinance provided handicapped persons a reasonable accommodation. The court rejected Avalon's third claim that the City's zoning ordinance violated the Equal Protection Clause, since only 6 unrelated,non-handicapped persons may occupy a home, so even if Avalon's 8 residents were not handicapped,they would be in violation. Since the ordinance regulated handicapped group homes substantially the same as non-handicapped group homes, the court granted summary judgment for the City. Baby Dolls Topless Saloons,Inc.v. City of Dallas, 114 F. Supp. 2d 531 (N.D. Tex. 2000). Baby Dolls claimed the Dallas SOB ordinance was unconstitutional because it was overbroad, and content-based. The SOB ordinance required Baby Dolls to relocate or to change the dancer's attire from pasties to bikini tops. The SOB ordinance was upheld as constitutional. LLEH,Inc.v. Wichita County, 121 F. Supp. 2d 513 (N.D. Tex. 2000). LLEH claimed the Wichita County SOB ordinance was unconstitutional because the restrictions were arbitrary and content based. Defendant argued that the regulations were justified because they aimed to reduce secondary effects of sexually oriented businesses. Applying the test set forth in United States v. O'Brien 391 U.S. 376 (1968),the location restrictions failed due to lack of evidence of secondary effects that could possibly be reasonably believed to be relevant to the problems being addressed. Thus,the location requirements were unconstitutional. A 6 foot buffer zone was held excessive,but 3 feet acceptable. The requirement for an 18 inch pedestal was rejected as it had no purpose since the interest of deterring sexual contact and touching had already been satisfied with the buffer zone rule. Community Visual Communications,Inc.v.City of San Antonio, 148 F. Supp. 2d 764(W.D. Texas) 2000. The San Antonio SOB ordinance was upheld in a challenge by a newstand. The ordinance was held to be narrowly drafted and thus constitutional. Wilkinson v. Dallas/Fort Worth Int'l Airport Bd., 54 S.W.3d 1 (Tex. App.2001,pet. filed). A group of homeowner brought an inverse condemnation claim and Fifth Amendment taking claims against D/FW Airport for its actions in connection with the expansion of the airport. At the trial court level, the Airport won its motion for summary judgment. On appeal, the court affirmed the summary judgment. The court held that the injuries alleged by the homeowners were not sufficient to support an inverse condemnation claim because the injuries were suffered by the community as a whole. Inverse condemnation requires "special" or "unique" harm, and according to the court, the decrease in the value of the homeowner's 42 it homes,did not meet this requirement. Nor did the temporary noise,dust,traffic,vibration and dislocation of vermin support the homeowner's claims since Texas courts have consistently found that temporary interferences do not constitute a physical governmental appropriation of private property that entitles property owners to compensation. Rosenblatt v.City of Houston,31 S.W.3d 399(Tex.App.—Corpus Christi 2000,pet. denied), cert. denied, 121 S. Ct. 2218 (2001). The Houston SOB ordinance was upheld in a challenge of the"line of sight"requirement between the manager's station and each area in an arcade where the public is permitted. The arcade proposed to use video cameras instead of direct line to sight. The court held that the cameras did not literally or substantially comply with the requirements. The arcade's attempt to challenge the ordinance provisions was determined to be barred by res judicata due to the decision in N.W. Enterprises, Inc. v. City of Houston,27 F.Supp.2d 754(S.D.Tex. 1998). Champion Builders v.City of Terrell Hills,No.04-99-00779-CV,2001 WL 1580484(Tex.App.—San Antonio 2001,no pet.h.)(not designated for publication).[Dev.wins @ trial. Taking claim reversed but individual liability upheld!] A developer asserted regulatory takings claims against the City of Terrell Hills and sought recovery for damages against the individual members of the ZBA for negligence. These claims arose from the revocation of a building permit for construction of an apartment complex and a subsequent reduction in allowed density. The revocation was apparently due to disgruntled citizens objecting to the city about the project. While considering the revocation,the ZBA went into closed session and discussed their collective desire to revoke the permit because the project would become a"whorehouse"bringing "undesirables", "scum"and"drug dealers"to the city. The jury found for the developer,but the judge entered judgement n.o.v. for the city. The appellate court affirmed the takings holding, finding that the evidence failed to establish a compensable taking under Mayhew,but remanded on the issue of commissioner liability,finding that there was some evidence of bad faith.. Government officials are entitled to official immunity unless they are negligent and acted in bad faith. Good faith is determined by an objective standard,not the actor's subjective intent. The court held the following was evidence of bad faith: • Discussion in the executive session showed bias and an unspoken agenda caused the denial,not the stated legitimate purpose, • The ZBA had never before revoked a permit,met in executive session or acted in contravention of the advice of the city attorney,and • An zoning and planning consultant who was an expert witness for the developer testified the commissioners acted unreasonably. The developer's first takings claim alleged the revocation set in motion a legal dispute that delayed and ultimately killed the project,therefore,the revocation denied the developer the use and benefit of its property and is a taking. The court stated that the developer was not challenging the application of a governmentally imposed restriction,as is necessary for a takings claim,citing City of Cincinnati v. 43 Chavez Properties,690 N.E.2d 561,565(Ohio Ct.App. 1996). Instead,the basis for the takings claim was the act of revocation. That revocation will not support a regulatory takings claim. The developer's second takings claim focused on the down zoning density by increasing minimum square footage for apartment units(by 300 square feet). However,the developer failed to establish causation, since it had not learned of the down zoning until after filing the lawsuit. Glenn Heights v. Sheffield Dev. Co., 61 S.W.3d 634 (Tex. App.—Waco 2001, pet. filed) ("Glenn Heights I"). [Dev.wins-but no profits] Sheffield,a real estate developer,purchased 194 acres of land in Planned Development District 10("PD 10") of the City of Glenn Heights. Prior to closing, Sheffield conducted an extensive due diligence investigation,specifically the current zoning and the possible rezoning by meeting with officials and employees of the city. Sheffield intended to develop the land in compliance with the then existing zoning regulations, and apparently made this well known. After Sheffield purchased the property, the city enacted a six month development moratorium;then extended the moratorium, and finally down zoned the property. Sheffield sued for violation of due process and equal protection,regulatory taking and the common law causes of action of estoppel,laches and vested rights. Sheffield claimed that the down zoning and the unreasonable length of the moratorium were separate taking. Applying Mayhew, the court held that (i) the down zoning was a taking, and (ii) the unreasonably long moratorium was a separately compensable taking. In holding that Sheffield was entitled to compensation, the court focused on whether the regulation unreasonable interfered in Sheffield's right to use and enjoy the property. Two factors are relevant to this inquiry: (1) the economic impact of the regulation; and (2) the extent to which the regulation interferes with distinct investment-backed expectations. As to the first factor,evidence that the rezoning reduced the property value by at least 38 percent convinced the court there was a sufficient adverse economic impact to satisfy the first prong of the unreasonable interference test. The second prong focuses on whether the existing and permitted uses of the property constitute the "primary expectation" of the owner affected by the regulation. The court held it was, citing the following facts: • Everyone on city council knew of Sheffield's intended purpose in purchasing the property, • Sheffield reviewed the city's unified development code and comprehensive plan and determined they conformed with the zoning regulations in effect, • City officials met in secret before Sheffield closed his purchase to discuss the moratorium and down zoning without Sheffield's consent or knowledge, • No one on city council advised Sheffield of the possible rezoning action, • The best use of the property after the rezoning was to hold the land and wait for demand for it,as rezoned,to increase. The city argued that Sheffield knew the zoning was subject to change by city council's vote. The court explained that although every regulation is subject to change, the landowner is still entitled to compensation when the regulation unreasonable interferes with investment backed expectations. 44 The moratorium was not a taking until it became unreasonably long and thus failed to substantially advance a legitimate government purpose. Rather, it was simply a way to prevent Sheffield from developing. Testimony established that the city extended the moratorium,in part,to gain negotiating leverage in discussions with Sheffield. The purpose of the moratorium was to allow the city to investigate the situation,obtain needed information and consider it in making an appropriate decision. Once the purpose was fulfilled,there was no need for further delay on a zoning vote. Beyond that point, the taking took place. Further, the fact that there was a "stalemate" on city council regarding the appropriate action to take did not justify a further moratorium. On an interesting side issue,the court remanded for consideration Sheffield's allegation that the city's failure to act on a submitted plan(which the city rejected because the city felt the moratorium was still in effect,although Sheffield alleges the moratorium lapsed for a short period,thus allowing the plat to be filed)caused a"deemed approval"under Texas Local Government Code,section 212.009. Part if the interest is the fact that the submitted plat was a"preliminary"plat,which some municipal attorneys claim is not subject to the deemed approval provision. B. Zoning Board of Adjustment Dengler v. City of Groves, 997 S.W.2d 418(Tex. App.—Beaumont, 1999,pet. denied). A grocery store turned restaurant provided dancing without a cover charge. The owner applied for and received a dance hall license,but operated in a zoning district which allowed only restaurants,not dance halls. Neighbors complained about noise and traffic,alleging the establishment violated the use provisions of the district. The City building official disagreed and interpreted the establishment to be a restaurant with dancing,not a precluded dance hall,so long as food was the primary revenue source and was always served. The ZBA agreed. The neighbors filed a writ of certiorari and declaratory judgement action against the City. The court listed the rules for review of a ZBA interpretation and then held the establishment was a dance hall, and thus prohibited. Interpretations are a matter of law to be decided by summary judgement. The court did not grant any weight to the ZBA's interpretation and,essentially,made its own decision based on an independent review of the evidence. Since"restaurant"was not defined in the zoning ordinance, the court referred to Webster's Dictionary and noted that dancing was not mentioned. Since the court disagreed with the ZBA,it reversed its decision and remanded the case for further proceedings consistent with the court's interpretation. The dissent disagreed with the interpretation,closing with"laissez le bon temps roulez!" SWZ,Inc.v.Board of Adjustment of Fort Worth,985 S.W.2d 268(Tex.App.—Fort Worth 1999,pet. denied). A sexually oriented business owner challenged by writ of certiorari the ZBA's decision to uphold the denial of an application to open a business within the prohibited distance from a church.The trial court granted summary judgment for the ZBA. On appeal,the owner alleged that the actual structure within the prohibited zone was not a church,but a hall used for religious education classes, prayer groups and socials (apparently the actual church building was outside the prohibited zone). The owner cited several cases holding that particular 45 structures were not churches(parish priest's home,area in a prison where religious activities sometimes occurred). After listing the typical standards for review of a ZBA interpretation,the appellate court applied the"abuse of discretion"standard finding the owner did not prove the ZBA acted arbitrarily or unreasonably. The court applied a "common-sense" definition of a church which requires that "activities are primarily connected with religious worship or intended to propagate religious beliefs." The court held that the interpretation of the hall as a church was reasonable and did not contradict the plain language of the statute,therefore it was upheld. Pearce v. City of Round Rock,992 S.W.2d 668 (Tex. App.—Austin 1999,pet denied). The City extended its regulation into its ETJ. Stop work orders were posted on nine of Pearce's signs. Pearce's application for sign permits was denied. Pearce appealed the denial to the ZBA. The ZBA upheld the denial by a 3-2 vote in favor of Pearce(one short of the required four). Pearce appealed the ZBA decision by writ of certiorari filed within ten days. In both his first and amended petitions,Pearce listed as defendants the City, the planning director(in his official capacity), and the members of the ZBA(in their official capacities). The City's plea to jurisdiction was granted and the case dismissed because the repleading(caused by the City's pleading)was outside the statutory ten day period under section 211.011 of the Texas Local Government Code. The court recited that the ten day period is jurisdictional, citing Davis v. Zoning Bd. of Adjustment, 865 S.W.2nd 941, 942 (Tex. 1993). The court noted that Section 211.011 does not specifically require the ZBA itself be named as a defendant, but is silent on whom must be or can be sued. Therefore,the court held that naming the individual members,in their official capacities,was equivalent to naming the ZBA. This action placed the ZBA, as a body,on notice of the suit. Jurisdiction was properly and timely invoked. Note that Reynolds v.Haws,741 S.W.2d 582,584(Tex.App.—Fort Worth, 1987,writ denied)held that the ZBA itself is an indispensable party and must be named as a defendant, even if individual members of the ZBA are served and answer. Id. at 587. Apparently, the distinction of naming the member,"in their official capacity"was not at issue. 6th&Neches,L.L.C.v. Aldridge,992 S.W.2d 674(Tex.App. -Austin 1999,no pet.). The owner requested a zoning variance to construct a taller downtown Austin office building than the maximum limit allowed. The variance was denied by the Austin city council. The city council's decision was heavily based upon the protest letters issued from the General Services Commission and the State Preservation Board concerning impact on the views of the state capitol. The State owned at least 20%of the land adjoining the subject property,and an objection was voiced to protect the state's property interest and anything adversely impacting the views of the Capitol. The owner claimed the State did not have the right to object. The court disagreed and held the State's objections could be considered in denying the variance. Southwest Paper Stock,Inc.v.Zoning Bd.of Adjustment of Fort Worth,980 S.W.2d 802, 1998(Tex. App.—Fort Worth 1998,pet. denied). Southwest operated a paper recycling facility in the City of Fort Worth pursuant to a special exception. It began recycling glass, aluminum cans and wood products in violation of the zoning ordinance. Southwest requested an expanded special exception. Hearings were continued three times to allow Southwest,the City and concerned citizens to negotiate. Southwest requested the fourth hearing be 46 rescheduled,but instead the Zoning Board of Adjustment(the"ZBA")took testimony from various citizens and City staff and rejected the special exception. Southwest submitted no testimony or evidence. The trial court entered summary judgment for the City. The Court of Appeals reviewed applicable law - for challenging a ZBA decision by writ of certiorari,and specifically held that summary judgment is an appropriate procedure since the issue of whether the ZBA abused its discretion is a question of law. The Court noted that the requirements for the special exception required that the proposed use be"fully compatible with the use and permitted development of adjacent property." Southwest specifically challenged the authority of the ZBA to consider testimony of neighboring property owners,asserting that only the reports of City staff should be considered. This was specifically rejected. Southwest also contended that the ZBA had a legal duty to grant special exceptions,subject to appropriate conditions to protect the stability of adjacent property,which contention was also rejected. The Court held that the ZBA did not abuse its discretion as long as its decision was supported by some evidence of substantial and probative character. Hagood v.City of Houston,982 S.W.2d 17(Tex.App.Houston[1St Dist.] 1998,no pet.);Hagood v. City of Houston,No. 01-98-00916-CV, 2000 WL 730660 (Tex. App.—Houston [1St Dist.] 2000,no pet.)(not designated for publication). Tax Increment Reinvestment Zone No. 1 in Houston adopted zoning regulations. A builder received a variance from the ZBA. A neighbor(an attorney)brought a petition for a writ of certiorari. The ZBA's answer attached an affidavit of the zoning official,all applicable rules and regulations and other exhibits totaling 91 pages. The ZBA requested the Judge decline to accept jurisdiction and deny the petition for writ of certiorari. The trial court denied the petition for writ of certiorari,without any hearing. In Hagood I,the Court of Appeals held that the issuance of the writ of certiorari is discretionary,but the party filing the petition for writ of certiorari should have an opportunity to submit evidence at the trial level. Therefore,the Appellate Court dismissed the appeal for want of jurisdiction until a final judgment is issued by the trial court after reviewing evidence. The dissenting opinion criticized the majority opinion's"form over substance"decision as requiring unnecessary judicial resources. The trial court again dismissed the petition for writ of certiorari,and Hagood appealed again. First, Hagood contended the district court erred in denying his petition because the court did not conduct a trial,oral hearing,or hear any other evidence before taking action. The court held,however,there is "no statutory requirement that the district court conduct a trial, hearing, or otherwise hear evidence before deciding whether or not to grant a petition for writ of certiorari." Only if the writ is granted does a party have the right to submit evidence. Hagood also argued that the district court erred in denying his petition based on the pleadings,claiming the ZBA abused its discretion by granting the variance when Weekly would not suffer an unnecessary hardship. The court held that the fact that Weekly had been issued a building permit before commencing the construction,and only after construction had begun was Weekly notified of the error provided a basis for finding an unnecessary hardship. 47 City of Lubbock v.Ward,No.07-96-0254-CV, 1997 WL 136656(Tex.App.—Amarillo 1997,no pet.) (not designated for publication). Ward sought a variance to retain a portico constructed without a building permit which was contrary to the set back requirements of the city's zoning ordinance. The zoning board of adjustment("ZBA") denied the variance. The Wards filed a petition for writ of certiorari. The trial court held that the ZBA acted unreasonably,arbitrarily and without reference to any guiding rules and/or principles of the law and thus,abused their discretion in denying the variance. The ZBA appealed. However,the transcript containing the evidence admitted at the ZBA hearing omitted the statement of facts memorializing the evidence received by the trial court. Therefore,the appellate court held that the ZBA failed to carry its burden to provide evidence to the reviewing court of whether the ZBA abused its discretion. Because the appellate court had no way of assessing whether the trial judge accurately held that the ZBA abused it discretion,the appellate court could only affirm the trial court decision. City of Lubbock v.Tri-Star Invs.d/b/a Camelot Vill.Mobile Home Park,No.07-96-0254-CV, 1997 WL 331006(Tex.App.—Dallas 1997,no pet.)(not designated for publication). After several requests by the owner(each rejected),the city issued a permit for a large sign for a mobile home park. After the sign was erected, the city realized that the permit was issued in error. The landowner requested a variance from the ZBA for violations of set back and height. The variance was denied. Landowner filed a petition for writ of certiorari. The trial court held that the ZBA abused its discretion and reversed the ZBA's denial of the variance,as well as estopped the city from revoking the permit and enforcing the city's sign ordinance. The Appellate Court stated that the test for overruling a denied variance is whether the evidence is such that the ZBA could have reached no other decision but to grant the variance,citing Board of Adjustment,City of Corpus Christi v.Flores,860 S.W.2d 622 (Tex.App.—Corpus Christi,1993,no writ). The Appellate Court reversed and upheld the ZBA decision to deny the variance since the record contained some evidence from which the ZBA could have decided that granting the variance was against the public interest. Galveston Historical Found.v.Zoning Bd.of Adjustment of City of Galveston, 17 S.W.3d 414(Tex. App.—Houston [1st Dist.]2000,pet. denied). The Foundation,a non profit group, appealed to the ZBA the city's decision granting a permit for two freestanding monument signs within an historic overlay zone where it leased property. The ZBA ruled the Foundation did not have standing to pursue the appeal. The court held that the Foundation had standing as an"aggrieved person,"since it operated a business withing the overlay zone and had an interest in preserving the historic character of the district. The court also held that establishing standing did not require the Foundation to establish a direct link between signs and the Foundation's business activities, or that a harm had already occurred. It was sufficient that "GHF established that its business would be affected other than as a member of the general public if non-conforming signs were permitted, and it had a peculiar interest to itself in preserving the historical nature of the neighborhood." Fincher v.Board of Adjustment of Hunters Creek Vill.,56 S.W.3d 815(Tex.App.—Houston[1St Dist.] 2001,no pet.). 48 In April 1995,the City rejected the homeowners' plans to build a covered porch(or carport)because the plans violated the City's zoning ordinance. The homeowners proceeded without a permit and were caught. In April 1996,the homeowner's applied for a variance from the ZBA,but were denied. Then the homeowner's requested an interpretation from the ZBA that would allow the structure to remain. The ZBA meet and considered the request but took no action at that meeting. The homeowners filed a writ of certiorari within 10 days thereafter. The trial court dismissed the writ without addressing the merits,holding that the court did not have subject matter jurisdiction due to the failure to exhaust administrative remedies by failing to timely appeal the building inspector's decision not to issue the permit in 1995. City ordinance required such appeals to be made within 30 days. The appellate court reversed the trial court's dismissal,holding that although the Finchers failed to exhaust all remedies, the court could still render judgment on the merits. The court noted that the recent Texas Supreme Court decision in Dubai Petroleum Co. v. Kazi, 12 S.W. 3d 71 (Tex. 2000), held that the failure to comply with statutory requirements to bring suit should not be treated as jurisdiction,but as an issue to be raised on the merits. The appellate court construed the Finchers'request for interpretation as an end run of the requirement that they appeal the first rejection to the ZBA. Essentially,in asking for an interpretation of the ordinance,the Finchers were really appealing the denial of their permit application. Since the 30 day period for appeal had run, the Finchers were denied relief. However,the appellate court reversed the trial court's judgement dismissing the case for lack of subject matter jurisdiction, and instead rendered judgement for the city on the merits,citing Tex. R.App.P.43.2(c). South Padre Island v.Cantu,52 S.W.3d 287(Tex.App.—Corpus Christi 2001,no pet.). [owner wins] The city approved building plans and issued a building permit despite a set-back encroachment shown on the plans(how clearly shown is not known). When the building was 80%complete,the building inspector informed the Cantus that the home violated the zoning ordinance's set-back provision. The Cantus then sought a variance. The ZBA denied their request,and the Cantus sought judicial review. The district court held that the ZBA abused its discretion by refusing to grant the variance, and the court of appeals affirmed. A ZBA abuses its discretion if it refuses to grant a request for a variance when(1)enforcement of the ordinance would result in an unnecessary hardship,and(2)the variance would not adversely affect the public interest. The court noted that the hardship cannot be purely financial nor self-inflicted. To comply with the zoning ordinance the Cantus would need to change the style of their roof in a way which would have an adverse aesthetic affect. Since the city knew that the Cantus' building plans violated the set-back before the building started,then the city was responsible. In effect,the city acquiesced in the violation. This holding amounts to the application of an estoppel theory against the city. Therefore,the court was satisfied the appropriate hardship existed. The court also held that the variance would not adversely affect the public interest. This conclusion was based on testimony that there was no health or safety concerns and the neighbors'support of the variance. The court was impressed that despite the set-back encroachment, 10 feet of set-back from any utility line remained. Pick-N-Pull Auto Dismantlers v. Zoning Bd. of Adjustment of Fort Worth, 45 S.W.3d 337 (Tex. App.—Fort Worth 2001,pet. denied). 49 Pick-N-Pull sought a special exception for an automobile dismantling and retail parts facility in an area zoned heavy industrial. The ZBA denied the request and Pick-N-Pull filed a writ of certiorari. The district court denied Pick-N-Pull's motion for summary judgment and granted the ZBA's motion. Pick- N-Pull appealed both. The court of appeals held that the ZBA did not abuse its discretion, citing evidence that the proposed facility would be incompatible with existing uses. This evidence consisted of testimony and letters opposing the special exception. The court held that since there was substantive and probative evidence to support the Board's decision the ZBA decision must be upheld. Although quoting the"abuse of discretion"rule,this court applied the"substantial evidence"rule. C. Vested Rights/Non-conforming Uses/Estoppel/Limitations Centeno v.City of Alamo Heights,No. 04-00-00546-CV, 2001 WL 518911 (Tex.App.—San Antonio 2001, no pet.) (not designated for publication). The Centenos applied for a building permit.When denied,they appealed to the ZBA. TheZBA denied their request on the grounds that the proposed modifications would not cure the nonconformity. The Centenos filed a writ of certiorari, but after 13 days. The trial court granted the City's motion for summary judgement,but without stating the grounds. Therefore, appellant must show error to each independent ground. The Centenos were unable to challenge the City's position that the writ of certiorari was untimely and therefore the trial court lacked jurisdiction. Glenn Heights v. Sheffield Dev. Co., 55 S.W.3d 158 (Tex. App.—Dallas 2001, pet. filed)- "Glenn Heights II". After trial of the liability phase, but not damages phase, of Glenn Heights I (discussed in Section VIII.A),Texas Local Government Code,Chapter 245 became effective. Sheffield claimed it vested in it the right to develop its property under the former Planned Development District zoning classification as the specifics of the PDD approval constituted a"permit"as contemplated by the vested rights law. The trial court agreed and entered summary judgement for Sheffield. The appellate court focused on the city's claim that Sheffield elected its remedy of damages in Glenn Heights I. Since Sheffield proceeded to complete the damages phase of Glenn Heights I,it elected that remedy. To allow Sheffield to collect damages and have vested rights would be an improper double recovery. Levy v.City of Plano,No.05-97-00061-CV,2001 WL 1382520(Tex.App.—Dallas 2001,no pet.)(not designated for publication). Levy owned land in the City of Plano's extraterritorial jurisdiction ("ETJ"). In 1994, Levy filed a proposed land study with the City. The study related Levy's intent to subdivide the land into four parcels. The City approved the proposal subject to two conditions: (1)the proposed land study was for information only,and approval did not operate to permit or limit land use,and(2)street connections to adjoining subdivisions may be required. 50 In 1995, the City condemned a part of Levy's property for a road, annexed all Levy's property and zoned it agricultural. Levy filed a counterclaim in the condemnation lawsuit alleging that TEX.LOC. Gov'T.CODE Sec.481.143 provided statutory vested rights such that subsequent requests for permits would be subject to the ordinances in place at the time the land study was filed, and thus no zoning ordinance could be applied to the property. The district court granted summary judgment in favor of the City,holding that no vested rights existed. The court of appeals affirmed. The court explained that Section 481.143 applies to lock in ordinances in effect at the time a required permit application is filed. Here,Levy was not required to file the land study since the City's subdivision ordinance did not require a land study to merely subdivide land in the ETJ. Furthermore,even if the City required a land study to be filed,the"proposal"only contemplated subdividing property. Therefore,the only right locked in was the right to subdivide,not the use rights that Levy was claiming. Wende v. Board of Adjustment of San Antonio, 27 S.W.3d 162 (Tex. App.—San Antonio 2000,pet. granted). The quarry operator leased several tracts for quarrying. When the land was annexed and zoned as residential, only one tract had a history of quarrying. Several aggrieved parties, including area landowners and an adjacent city challenged the ZBA's decision to recognize the quarry's nonconforming use rights to all tracts it leased,even those it had never quarried. The trial court affirmed the decision. The appellate court overruled the ZBA's decision because (i) the evidence did not support the establishment of a nonconforming use,and(ii)the diminishing asset doctrine did not apply. First,the court held that area landowners,as taxpayers,and an adjacent city,as an"aggrieved party," each had standing to appeal the ZBA decision. A nonconforming use is one that lawfully existed before the date of a zoning restriction and that is allowed to continue to exist in nonconformance with the restriction. The court construed "nonconforming use"to require more than intent to use the property for the nonconforming purpose at some time in the future. Under the zoning ordinance being applied,if there is no pre-existing use,the applicant must prove"planning for the proposed use was in progress." Such"planning"requires the property owner to submit a site plan,evidence of financial commitment,and affidavit of ownership,and a narrative explanation of the proposed project and its purpose. A lease was not sufficient to meet the planning requirement. Alternatively,the operator argued that it actually began the nonconforming use before the annexation. Actual use requires more than"intending"to use the property for a nonconforming purpose at some time in the future. Since the ZBA failed to cite actual use as a basis for its decision to permit the nonconforming use,for the court to find such use,the evidence would have to establish it as a matter of law. The operator presented the following evidence to prove intent: several permits had been obtained, quarrying had occurred at some time in the past(although such discontinued use does not constitute a nonconforming use), some construction had commenced on the tracts before annexation, material were stockpiled on one of the tracts,and some activities the city had defined as part of quarry operation had taken place on the tracts. That evidence was insufficient to establish the right to non- conforming use status as a matter of law. 51 The operator also asserted the"diminishing asset doctrine." Courts in other states have allowed quarry operations to extend beyond the area being excavated at the time a prohibiting ordinance takes effect, due to the unusual character of quarries and mines.See In re Syracuse Aggregate Corp.v.Weise,414 N.E.2d 651, 655 (N.Y. 1980). However,without a finding by the ZBA on this issue,the court was unwilling to extend the doctrine to this situation. Quick v. City of Austin, 7 S.W.3d 109(Tex.1999). In an opinion by Justice Greg Abbott, the Texas Supreme Court upheld the Save Our Springs Ordinance adopted by the City of Austin in 1992 to protect the Barton Creek Watershed,both inside and outside Austin's city limits (but within its extraterritorial jurisdiction). The Court held that the ordinance was a water pollution control measure,not a zoning ordinance,notwithstanding that its effect is to control and limit land development,particularly density. This holding defeated a challenge that the Ordinance was a"disguised"zoning ordinance, which was invalid since it had not been adopted following the procedural requirements for a zoning ordinance. Although not a zoning case,the Court discussed limits on the judiciary's review of legislative functions of a municipality and indicated strong policy to uphold those decisions. In its initial decision, the Court held that former Section 481.143 of the Texas Government Code, containing a statutory vested rights provision,was no longer applicable to any matter,whether suit had been filed or not, since the repeal of a statute without a savings clause for pending suits is given an immediate effect. Therefore, the fact that a party to a suit had asserted the statutory vested rights provision was irrelevant. However,on rehearing the Court applied section 481.143 of the Texas Government Code,ruling that the City must consider a permit application on the basis of any orders,regulations,ordinances or other adopted requirements in effect when the original applications for preliminary subdivision approval were filed and approved in 1985. The court noted the general rule that the right to develop property is subject to intervening regulations and changes of section 481.143 of the Texas Government Code significantly altered this common law rule. Mont Belvieu Square,Ltd.v.City of Mont Belvieu,27 F. Supp.2d 935(S.D.Tex— Galveston 1998). The City of Mont Belvieu imposed a 6 month moratorium on issuance of all building permits(except single family), to consider a comprehensive zoning ordinance. The moratorium, coincidentally, prevented construction of a controversial low income housing project. Shortly after the moratorium was passed,the project lost its financing. Promptly thereafter,the developers filed suit due to the city's refusal to issue a building permit,based on constitutional,Fair Housing Act 42 U.S.C. § 3601 et seq. and Civil Rights Act claims. The Court followed Quick in denying the developer's statutory vested rights argument under section 481.143, but this statute was repealed in the 1997 legislature. The Court also denied an equitable vested rights claim, holding that the general rule is that the right to develop properties is subject to intervening regulations or regulatory changes. Only in"unusual circumstances"(not defined)would equitable vested rights apply. The Court held that a 6 month moratorium which bans the issuance of 52 building permits(except for single family),while the city considers whether to develop a comprehensive zoning ordinance is,as a matter of law,reasonable. Jim Sowell Construction Co.,Inc.v.City of Coppell, 82 F. Supp.2d 616(N.D.Tex. 1998),aff'd at, No. CIV.A.3.96-CV-0666-D,2000 WL 968782(N.D. Tex.2000)(not designated for publication). The City of Coppell denied a permit to build a low income housing project since the project did not comply with applicable zoning. The developer sued based on the Fair Housing Act 42 U.S.C. §3601 et seq.and other claims. The Court denied a statutory vested rights claim under section 481.143 of the Texas Government Code following Quick. The Court also rejected the developer's claim of equitable vested rights citing the general rule from the City of University Park v.Benners,485 S.W.2d 773,778 (Tex. 1972),that property owners have no constitutionally protected vested right to property uses once commenced or in zoning classifications once made. The Court also noted that the few cases in Texas applying the concept of equitable estoppel to preclude enforcement of government regulation are exceptionally unusual citing City of Dallas v.Rosenthal,239 S.W.2d 636(Tex.Civ.App. 1961,writ ref.n.r.e.), City of Hutchins v.Prasifka, 450 S.W.2d 829 (Tex. 1970) and J. R. Marriott v. City of Dallas,635 S.W.2d 561(Tex.App. 1982). The Court also denied the developer's request that the city be estopped from enforcing its zoning ordinance,noting that it is a back door vested rights theory. This case was revisited in 1999 by the United States District Court to address a racial discrimination suit in violation of the Fair Housing Act against the city. The city moved for summary judgment and was denied. The District Court held that there was a genuine issue of material fact regarding whether race was a significant factor in the city's zoning decision which precluded summary judgment. Jim Sowell Constr. Co.,Inc.v. City of Coppell, 61 F. Supp.2d 542 (N.D. 1999). Amonette d/b/a Mr. Sign v. City of Pasadena, No. 01-96-01512-CV, 1998 WL 255103 (Tex. App.—Houston [1s`Dist.] 1998,no pet.)(not designated for publication). Owner of the sign business failed to satisfy procedural requirements for his signs to continue to be non- conforming,thus they were required to comply with a new sign ordinance. The sign company owner brought claims for conversion,fraud,tortuous interference,civil conspiracy,breach of contract,civil rights,constitutional violations,negligent misrepresentation and estoppel. Apparently,in earlier years (but after passage of the new sign ordinance) non-conforming permits had been issued to the sign owner,notwithstanding certain procedural requirements had not been satisfied by the sign owner. Only when the city began enforcing procedural requirements were the non-conforming permits denied. The Court held that estoppel would not apply to the performing of a governmental function in regulating signs and outdoor advertising and, specifically, that the jury's answers on these issues could be disregarded. The Court held that sign regulation is a governmental function,not a proprietary function. Trail Enters., Inc. v. City of Houston, 957 S.W.2d 625 (Tex. App.—Houston 114` Dist.]1997, writ ref d). The Court applied a 10-year limitations period found in section 16.026 of the Texas Civil Practices and Remedies Code to an inverse condemnation action. This limitation period applies to both regulatory and physical takings. The taking occurred when the ordinance in question,which effectively prohibited drilling on the landowner's mineral estate, was passed, not when the land owner was later denied a hearing on its request for a variance from that ordinance. The Court also rejected an estoppel claim 53 asserted by the landowner, citing the general rule that the doctrine of estoppel does not apply against a city exercising governmental functions. Galveston County MUD No.3 v.City of League City,960 S.W.2d 875(Tex.App.—Houston[14th Dist.] 1997,no pet). In a non-zoning case,the Court held that a city was not estopped to deny the non-enforceability of an agreement which was not properly entered into,even though it was due to city error. In this case,the city and a utility district entered into an agreement regarding payment by the city of ad valorem tax revenues to the district. The initial agreement was executed with proper formalities but an amendment, increasing the percentage of revenues paid by the city to the utility was not. The Court cited City of Hutchins v.Prasiflca,450 S.W.2d 829(Tex. 1970)for the general rule that when a unit of government is exercising its governmental powers, it is not subject to estoppel and that exceptions to the rule are applied with caution, and only in exceptional cases where the circumstances clearly demand its application to prevent manifest injustice. Applying the Prasifka standard,the Court denied the utility district's estoppel defense against an agreement which was otherwise unenforceable as a matter of law. D. Preemption/Delegation City of Freeport v.Vandergrifft,26 S.W.3d 680(Tex. App.—Corpus Christi 2000,no pet.). The zoning ordinance violated the Texas Manufactured Housing Standards Act because it did not provide separate treatment of HUD-code manufactured homes and mobile homes. See TEX.REV.Crv. ST. ART. 5221f, § § 3(17), 3(A), 4A(b). The zoning ordinance provision were pre-empted under Dallas Merchs. &Concessionaire's Ass'n v. Dallas, 852 S.W.2d 489,491 (Tex. 1993). The Act mandates separate treatment for mobile homes and HUD-code manufactured homes. The court explained separate treatment to mean(i)a mobile home is not a HUD-code manufactured home,and (ii)a HUD-code manufactured home may not be treated as a mobile home for any purpose. The zoning ordinance treated mobile homes and HUD-code manufactured homes the same because its definition of"mobile homes"included HUD-code manufactured homes. Therefore,the ordinance violated the Act and would not be given effect when applied to HUD-code manufactured homes. Texas Boll Weevil Eradication Found., Inc.v.Lewellen, 952 S.W.2d 454(Tex. 1997). A divided Supreme Court held that the delegation of authority to a private foundation as part of the state's boll weevil eradication efforts constituted an unconstitutionally broad delegation of authority to a private entity in violation of Article II, Section I of the Texas Constitution. Although a non-zoning case, the Supreme Court established an eight part test to assess the validity of a private delegation relevant in land use cases as follows: 1. Are the private delegate's actions subject to meaningful review by a state agency or other branch of state government? 2. Are the persons affected by the private delegate's actions adequately represented in the decision process? 3. Is the private delegate's power limited to making rules or does the delegate also apply the law to particular individuals? 54 4. Does the private delegate have a pecuniary or other personal interest that may conflict with his or her public function? 5. Is the private delegate empowered to define criminal acts or impose criminal sanctions? 6. Is the delegation narrow in duration,extent and subject matter? 7. Does the private delegate possess special qualifications or training for the test delegated to it? 8. Has the legislature provided sufficient standards to guide the private delegate in its work? 952 S.W.2d at 472 This test applies only to private delegations,not to the more typical delegation by the legislature to an agency or other department of government. Id. West End Pink,Ltd. v. City of Irving, 22 S.W.3d 5 (Tex. App.—Dallas 1999,pet. denied). West End Pink brought a declaratory judgment action to have the zoning ordinance pre- empted as to the limit on the sale of alcoholic beverages in restaurants to no more than 40% of annual total sales. West Pink argued the ordinance was unconstitutional because it conflicted with a state statute giving the Texas Alcoholic Beverage Commission the exclusive power regulate alcoholic beverages, citing Dallas Merchant's &Concessionarire's Ass'n v. City of Dallas, 852 S.W.2d 489,490(Tex. 1993). The court held that any inconsistency was cured by various validation statutes. West Pink argued that a validation statute cannot cure an unconstitutional ordinance. However,the court explained that a validation statute cannot validate a law that the legislature itself could not pass. In this case, the legislature had the authority to pass a law regulating alcoholic beverages (although the city might not have had such authority),and therefore the validation statutes effectively cured the otherwise defective ordinances. Proctor v.Andrews,972 S.W.2d 729(Tex. 1998). In a non-zoning case,this unanimous decision of the Texas Supreme Court discusses the power of the state to overrule regulations of a home rule City. The decision is relevant to the right of the state to preempt local zoning and land use laws. Consistent with the Court's earlier decision in Dallas Merchs. &Concessionaire's Ass'n v.City of Dallas,852 S.W.2d 489,490-91 (Tex. 1993),the Court held that to do so,the state legislature must make it abundantly clear that the preemption of home rule authority on the particular issue is intended. The Court holds that cities are created for the exercise of governmental functions,but as agencies of the state,they are subject to state control. The Court also overruled a challenge based on illegal delegation of police power,applying the test set forth in Texas Boll Weevel Eradication Found.,Inc.v. Lewellen, 952 S.W.2d 454(Tex. 1997). City of Santa Fe v.Young, 949 S.W.2d 559(Tex.App.—Houston[14`h Dist.] 1997,writ ref d). The City of Santa Fe,a general law city,enforced a non-zoning ordinance regulating the operation of sand pits and quarries within its city limits with permits, setbacks, fencing, studies, etc. The Texas Aggregate Quarry & Pit Safety Act, section 133.001 et seq. of the Texas Natural Resources Code prohibits operation of sand pits within 200 feet of a road or highway and requires safety devices for certain quarries located within hazardous proximity to a public road. The Court applied the rules of Dallas Merchs.&Concessionaires'Ass'n v.City of Dallas,852 S.W.2d 489(Tex. 1993)to reconcile 55 the seemingly conflicting regulations. The Court held that the state preempted the field of regulation for quarries and pits within 200 feet of a road,but not others. Therefore,the City regulation is valid outside that area. E. Other Cases CDC Real Estate, Inc. v. Curtis,No. 06-97-00053-CV, 1997 WL 1049837 (Tex. App.—Texarkana 1997)(not designated for publication). The Court held that the landholder failed to exhaust its administrative remedies with the city before seeking judicial relief,because the landowner did not file an administrative appeal of the city's issuance of the disputed sign permit. Instead,the landowner filed suit in District Court for declaratory judgment to enjoin construction of the sign. The Court held that since the landowner failed to exhaust its administrative remedy, the District Court was without authority to issue the injunction enjoining construction of the disputed sign. Pruitt v.Town of St.Paul,No.05-96-00025-CV, 1997 WL 466526(Tex.App.—Dallas 1997,no writ) (not designated for publication). Pruitt operated a transmission repair business in violation of the zoning ordinance. The town requested an injunction,which was granted by summary judgment,as was a declaration that Pruitt violated the zoning ordinance. The Court overruled the summary judgment based on insufficient evidence, since the town failed to introduce evidence specifically addressing the fact that Pruitt was operating a transmission business after the effective date of the ordinance in question. City of Friendswood v. Strang, 965 S.W.2d 705 (Tex.App.—Houston[1St Dist.]1998,no writ). Strang bought a house in a single family zoned district to operate a personal care facility. After commencing operation of the facility,the City of Friendswood asserted violation of its zoning ordinance and brought charges in municipal court. Subsequently,Strang requested appropriate permits to convert the house to a community home,which is authorized to exist in all residential areas. TEX.HUM.RES. CODE ANN. §123.003 (Vernon 1999). The city refused the permits on the grounds that Strang was operating a business in a residential area in violation of city zoning ordinance. Without the modifications, the house would not qualify as a community home under the state requirements and therefore,would be denied a license by the state. Without the license,the house is not accorded the protection of a community home,and thus would be in violation of the city's zoning ordinance. The Court held that the injunction should be dissolved since Strang testified that 9 elderly persons lived in the house while state law limits the number of residents in a community home to six. TEX.HUM.RES. CODE ANN.§ 123.006(a)(Vernon 1999). The Court acknowledged the"catch-22"situation since they had not been able to make the changes to the house necessary to qualify for a license which, in turn, would protect them against the zoning regulations. However,the testimony that the number or residents exceeded those allowed for a community doomed Strang. It is clear that if only 6 persons resided at the house,the Court would have upheld the injunction. Rossano v. Townsend, 9 S.W.3d 357 (Tex. App.—Houston[14th Dist.] 1999,no pet.). 56 The City of Alvin's charter required a proposed zoning ordinance to be published at least six months before the proposal could be submitted to voters. The City was also required to hold public hearings on proposed ordinances before election. The Townsends alleged that the City's placement of a zoning ordinance on the May 1998 ballot was invalid because the City failed to meet the publication and hearing requirements. The ordinance was approved by the voters.The City argued that the requirements were met because essentially the same ordinance had been placed on a previous ballot after proper notice and hearing. The earlier ordinance was not approved by the voters. The second ordinance had a different name,voting date,the addition of a contained caption,verifying provision,repealer clause and severability clause,but was otherwise the same. Since the proposed ordinance that met the publication and hearing requirements was different from the ordinance at issue,the court held that the publication and hearing requirements for the later ordinance were not satisfied. San Miguel v. City of Windcrest,40 S.W.3d 104(Tex. App.—San Antonio 2000,no pet.). The San Miguels operated a group home for the elderly in their home in a"one-family dwelling"zoning area. The zoning ordinance defined a"family"as "[o]ne or more individuals living together a single housekeeping unit, in which not more than two (2) individuals are unrelated by blood, marriage, or adoption." The city sought temporary and mandatory injunctions prohibiting the group home. The trial court granted injunctions enjoining the operation pending trial and requiring removal of 3 of the elderly residents. The San Miguels claimed the trial court erred in issuing the injunctions. The appelate court upheld the injunctions. Although the city did not plead and prove a probable injury, when a city seeks to enjoin a zoning violation,it does not have to prove the violation would cause injury to the residents nor that the any other legal remedy is adequate. The injury was the violation of the zoning ordinance,and such entitled the City to the equitable relief of the injunction. See City of Fort Worth v. Johnson, 388 S.W.2d 400,402(Tex. 1964). The San Miguels also challenged the issuance of the injunctions for destroying the status quo and resolving the goals of pending litigation without the benefit of a trial. However,the court held that the status quo to be preserved should be the state that existed immediately before the violation, not the status consisting of acts constituting the violation. See Houston Compressed Steel v.State,456 S.W.2d 768,773 (Tex.Civ.App.—Houston[1St Dist] 1970,no writ);State v. Southwestern Bell Tel.Co., 526 S.W.2d 526, 528(1975);Edgewood Indep. Sch.Dist.v.Paiz, 856 S.W.2d 269,270(Tex.App.—San Antonio 1993,no writ). Also,the injunctions did not resolve the goals of pending litigation because the San Miguels' affirmative defenses remained to be addressed at trial. Eller Media Co. v. City of Houston,No. 01-00-0058-CV,2001 WL 1298901 (Tex. App.—Houston [1st Dist.] 2001,no pet.). [To C.amortization upheld] The City of Houston Billboard Ordinance was upheld in the face of constitutional challenges and the claim that it is preempted by state law. The suit specifically sought to avoid the enforcement of the amortization provisions of the ordinance,which preceded state law regulations in that area. The court agreed that the ordinance's requirement for certain non-conforming billboards to be removed after an amortization period was a taking, but disagreed that it was a taking without compensation. The amortization period was sufficient compensation for the taking, citing City of University Park v. 57 Benners,485 S.W. 2d 773 (Tex. 1972),which set forth the rules and rationale for using amortization in the exercise of the government's police power to regulate use of property. The court held that Benners was not pre-empted by the later regulatory taking analysis in Penn Central Transportation Co. v. City of New York,438 U.S. 104(1978). F. Law Reviews/Attorney General Opinions Op. Tex. Att'y Gen.No. SR-062(1997). A city council may not decide variances,only a ZBA. The opinion reviews the basis for a city's power to zone,including the well settled premise that a city has only the power granted to it in the Enabling Act(TEx.LOC.GOV'T CODE ANN.,Chapter 211 Vernon 1999). Further,the opinion notes that it is contrary to that of Mixon§ 9.01. Op. Tex.Att'y Gen.No. JR-002(1997). The Texas Manufactured Housing Standards Act, TEX.REV.CIV. STAT.ANN. art. 5221(f)repealed by Legislature in 1943, preempts city regulation of construction or installation of HUD-Code manufactured housing. A city,however,may determine appropriate location within the city,although it may not exclude them. Further,a city may exclude older,non HUD-Code manufactured housing not already located in the city. Op. Tex.Att'y Gen.No. JC-0142(1999). The Attorney General was asked to interpret the authority of a home rule municipality to restrict residential growth. Specifically, the SMART Growth program of Flower Mound, Texas was questioned. Amicus briefs were filed by the Home&Apartment Builders of Greater Dallas and the Texas Association of Builder. The two specific questions were: • Without an emergency,may a city limit building permits? • If so,may the city differentiate between residential and non-residential permits? The Attorney General opined that a home rule city can do so,subject to constitutional limitations. The justification is based on the following analysis: (i) a home rule municipality has any governmental power that the legislature has not withheld, (ii)growth management plans are not inconsistent with applicable state law, and (iii) there is not statute limiting the "with unmistakable clarity" standard (Dallas Merchs. &Concessionaire's Ass'n v.City of Dallas, 852 S.W.2d 489,490-91 (Tex. 1993)). Constitutional issues were reviewed, but since Attorney General Opinions cannot consider specific factual situations,the Attorney General simply opined that constitutional safeguards must be met,and that a growth management plan is not per se unconstitutional. The summary of the opinion states: "A home rule municipality may implement a growth-management plan that apportions,or"caps," the number of building permits the municipality issues in a specified time period even in the absence of an emergency. The municipality must provide appropriate substantive and procedural due process and the municipality must not apply the growth-management plan to building permit applications filed prior to 58 the adoption of the plan. The denial of a building permit application may constitute an unconstitutional taking for which the municipality must compensate the landowner. A home rule municipality may adopt a growth management plan that limits the number of residential building permits, and not the number of nonresidential permits,the municipality will issue in a given time period. Depending on the circumstances of a given situation,the growth-management plan may implicate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution." Op. Tex. Att'y Gen.No. JC-0425 (1999). The Attorney General was asked whether land regulations in effect when a landowner files an application are locked-in such that a subsequent purchaser of the land is entitled to the rights and benefits of those regulations. Essentially,the petitioner was questioning the limits of vested rights as prescribed in Quick v.City of Austin,7 S.W.3d 109, 131 (Tex. 1998)and Texas Local Government Code, section 245.001(3). The Attorney General opined that the vested rights run with the land if the "project"for which the application was filed remains the same. The Attorney General refrained from defming"project,"and instead stated that the resolution will depend on the facts of the case. The Role of Variances in Determining Ripeness in Takings Action Under Zoning Ordinances and Subdivision Regulations of Texas Municipalities,John Mixon and Justin Waggoner,29 ST.MARY'S LAW JOURNAL L.J. 765 (1998). Zoning guru John Mixon and co-author Justin Waggoner reviewed the conflict between Texas case law requiring a landowner whose rezoning has been rejected to request a variance, when long standing Texas case law does not allow use variances. The article contains a helpful overview of Texas zoning and subdivision law and the role of the Zoning Board of Adjustment(in zoning cases)and the Planning Commission(in subdivision cases)to grant variances. The authors conclude that the current state of the law is illogical and recommend various alternatives,including granting authority to ZBAs to grant use variances or requiring a disenchanted property owner to have an adjudicatory hearing before city council. Restoring Order in Urban Public Spaces, Rob Teir, TEX.REV.OF LAW&POL. 256 (Spring 1998). This article reviews urban quality of life issues, particularly urban camping, sidewalk use and panhandling. IX. DEED RESTRICTIONS AND ZONING A. Deed Restrictions Defined Deed restrictions are private,contractual covenants which limit land use. Deed restrictions are placed on real property by affirmative action of the owner of the real property,for the benefit of that property only,with a typical intent to enhance the value of that real property. Deed restrictions affect subsequent owners of the real property for a stated term,and for any extensions. There are no limitations on the nature of deed restrictions except for compliance with laws and public policies. 59 Private land use restrictions may be imposed upon the real property by any owner of real property,and such restrictions are enforceable by Texas courts. Enforcement of deed restrictions is typically undertaken by classification into one of three categories: 1. those that have an entity, such as a Texas non-profit corporation, established to provide for their enforcement on a long-term basis; 2. those that have no such entity,but which instead rely upon private enforcement by individuals such as,initially,the developer and,later,individual landowners;and 3. those enforced by specially authorized counties and the City of Houston. Deed restrictions are enforceable in the City of Houston. TEX.LOC.GOV'T CODE ANN.§§212.131 et seq.(Vernon 1999& Supp. 2001). Deed restrictions commonly have the following general characteristics: 1. design and construction standards for initial construction within a development; 2. negative covenants which prohibit various types of construction and uses; 3. an assessment mechanism; and 4. creation of a private non-profit corporation as the vehicle for enforcement of the restrictive covenants. B. Comparison of Zoning With Deed Restrictions Laymen often confuse zoning and deed restrictions since both affect the right of a property owner to use their land. Although zoning and deed restrictions do,to some extent,regulate the same rights,they are fundamentally different. This section compares zoning and deed restrictions and their basis,goals, interpretation and enforcement. 1. Basis a. Zoning. The basis for zoning is the police power of a municipality to protect the health, safety and public welfare of the community. This is a legislative power exercised by a governmental entity. b. Deed Restrictions. The basis for deed restrictions is private contract. 2. Goals a. Zoning. The goal of zoning is the protection of the community through regulation of land use by individuals. These are societal goals focusing on the benefit to the whole community,despite the fact that individuals' rights are limited and, in many cases,their property values reduced. 60 b. Deed Restrictions. The goal of deed restrictions is, generally, to enhance the value of property being subdivided by the developer for sale to a number of end users. This focuses on the benefit to the property encumbered without the intent to effect, negatively or positively,adjacent property in any way. 3. Interpretation a. Zoning. Zoning regulations must have a substantial relationship to a community's health, safety, morals and general welfare. Over the years, the subject matter which may be covered by zoning has broadened,although it is still stated that the regulation of aesthetics alone,without other substantive purposes,is not allowed. b. Deed Restrictions. Deed restrictions,as a matter of private contract,can cover any matter which are not illegal or against public policy. The interpretation of deed restrictions under common law was to enforce clearly drafted deed restrictions even though deed restrictions were not favorites of the law. By legislative action,the Texas Legislature now mandates the liberal construction of deed restrictions in order to enforce their intent and has mandated a strong presumption in favor of property owners association's actions in the enforcement and interpretation of deed restrictions. Although the full scope of these actions is not yet clear, it is certain that the burden of defeating deed restrictions enforcement action has become more difficult. 4. Enforcement a. Zoning. Zoning restrictions are typically enforced by municipalities. Violations usually constitute Class C misdemeanors. Many zoning violations are picked up through the building code and the occupancy permitting process. The private cause of action for an individual property owner to enforce a zoning ordinance is limited to situations of"special injury" and standing is rarely granted by the courts. b. Deed Restrictions. Deed restrictions are typically enforced by incorporated property owners associations(once a subdivision is established),and by the developers(while the subdivision is in the development stages). Both have a vested interest in the enforcement of these deed restrictions on behalf of the entire subdivision in order to maintain property values. Private causes of action by individual property owners are allowed since deed restrictions are contractual and the parties are in privity of estate. The City of Houston and Harris County both have statutorily provided rights to enforce deed restrictions. C. The Blurring Of Zoning Law And Deed Restriction Law Zoning law and deed restriction law,although both affecting private land use,come from different ends of the legal spectrum. Nonetheless, recent legislative forays into deed restriction law, and the development of large scale planned developments,have imported a number of zoning law procedures and concepts to deed restriction law. The City of Houston and Harris County now enforce certain deed restrictions,although this could be considered a historic anomaly since Houston has never utilized zoning. The idea that a municipality 61 should enforce private land use covenants implies the municipality's adoption of the deed restrictions being enforced as public policy. In large master planned communities,with extensive deed restrictions and adequate funding through assessments, the property owners' association will take on many characteristics of a municipal government, particularly when enforcing deed restrictions. Section 202.002(a) of the Texas Property Code gives a property owners association's actions a presumption of validity similar to that accorded to a municipality in enforcing deed restrictions. Where deed restrictions in a master planned community are comprehensive and consistent in scope as to a large development,the enforcement goals of the property owners association take on many of the goals of zoning in seeking to benefit the community as a whole,rather than a particular piece of property. Despite these significant developments,it still remains unlikely that either zoning law or deed restriction law will look to the other for legal support in the resolution of legal issues. Although they both impact land use,their basis,basic goals,interpretation and enforcement are fundamentally different from a legal perspective. X. ZONING DUE DILIGENCE When a knowledgeable practitioner advises a client interested in acquiring or developing real property,they must gather background information,evaluate the current zoning status of the property in question and then make recommendations to the client of their alternatives. A. Gathering Information The following information should be obtained to knowledgeably review the zoning status of a particular piece of real property: • Comprehensive plan(and confirmation of whether formally adopted and how adopted[resolution or ordinance]); • Zoning ordinance(and all amendments); • Rules of Zoning and Planning Commission/Zoning Board of Adjustment; • Confirmation that no zoning changes are pending(obtained through City Secretary/Secretary to Planning&Zoning Commission); and • Zoning map. Each of the documents must be confirmed to be the most current before it is adopted. Care should be taken to insure there are no pending changes. B. Current Status A review of the relevant zoning documents(enumerated above)should be conducted to determine the current status of the property. Where the zoning map or ordinance is inconclusive, a determination by the city's planning staff is recommended. If the city planning staff's determination is objectionable, it can be appealed to the Zoning Board of Adjustment(not the Zoning&Planning Commission)for an interpretation. 62 If the current land use is not in compliance with the zoning ordinance,the zoning ordinance should be reviewed to determine what specific rights are provided to pre-existing, non-conforming uses and whether amortization is possible. Where the zoning is objectionable, the Comprehensive Plan should be reviewed to determine if the current zoning is consistent with the Comprehensive Plan. If the zoning is inconsistent,a"spot zoning" objection may be possible. Otherwise,the procedures for rezoning should be reviewed carefully. A letter from the city planning staff confirming the zoning status should be requested when property is to be acquired or developed. However,under most circumstances,the issuance of such a letter will not act to bind the city in the event the letter is incorrect. As a general principal,a city is not bound by the mistakes of its employees, and there cannot arise an estoppel defense to prevent the city from enforcing its duly adopted ordinances. Therefore, blind reliance on a city's zoning letter is not prudent. The city's zoning letter should simply be a written confirmation of facts confirmed by the practitioner or their client. In the event of any ambiguity in the zoning ordinance or map, a formal interpretation by the Zoning Board of Adjustment should be obtained and should be binding upon the city. C. Alternatives If the current zoning status of the property is unacceptable,the practitioner should review with their client the available alternatives. These alternatives may involve rezoning,variance or special exceptions (all discussed at length earlier in these materials). Before selecting the appropriate alternative,the practitioner should contact the chief planning official with the city to review all issues and determine the following: (1) The planning staff's position; (2) Treatment of similarly situated properties in the past(and why); (3) Make-up and philosophy of the Planning&Zoning Commission/Zoning Board of Adjustment on similar issues; (4) Make-up and philosophy of City Council on similar zoning issues; and (5) Current political issues in the city affecting land use decisions. Often city planning staff can provide helpful(although perhaps biased)insights into issues critical to the city. How to avoid dead-end detours, and the proper procedure to achieve zoning objectives exemplify two. City planning staff should never be considered as the only source of information. The chair of the Planning&Zoning Commission and Zoning Board of Adjustment are often helpful and willing to provide assistance. Experienced local engineers, planners, real estate professionals and attorneys should be consulted. 63 It is always critical to determine any overriding philosophy of the city and be sure your zoning request is not contrary to it. Some cities are pro-development with a focus on increasing property taxes,while others focus on increasing sales taxes. Many smaller communities are rabidly anti-multi-family development based on concerns about increased crime and lowering of property values of adjacent single-family neighborhoods. More and more communities are concerned about various environmental issues including trees,landscaping,pervious area and the like. All zoning requests should be couched with a"win-win"context based on the city's Comprehensive Plan and overriding land use/economic development goals. D. Checklist Attached as Exhibit A is a general land use law checklist from an earlier presentation by James L. Dougherty,Jr. and the author which may be useful to spot the full array of land use law issues. 64 11. Miscellaneous Regulatory Authority of Counties-TEx.LOC.GOV'T CODE ANN.,Chapter 240; Counties may regulate the management and use of flood prone areas near the Gulf of Mexico and its tidal waters. This Chapter (renumbered from former Chap. 234) authorizes county regulation to protects McDonald,George and Stephen F.Austin Observatories from light sources which might interfere with their telescopes. 12. Municipal and County Zoning Authority Around Airports - TEx. LOC. GOV'T CODE ANN., Chapter 241; This Chapter authorizes regulation of land uses, types of structures, height of structures and vegetation around public airports in the interest of public safety. A Zoning Commission and a ZBA are provided. 13. Municipal and County Authority to Regulate Sexually Oriented Business, TEx. LOC. GOV'T CODE ANN., Chapter 243; A city,by ordinance, or a county,by order of its Commissioners Court,may adopt regulations regarding sexually oriented businesses as necessary to promote the public health,safety or welfare. The city's authorization is limited to its city limits,with the county having authority outside the city limits.The term"sexually oriented business"is defined as: a sex parlor,nude studio,modeling studio,love parlor,adult bookstore,adult movie theater, adult video arcade, adult movie arcade, adult video store, adult motel, or other commercial enterprise the primary business of which adult video store is the offering of a service or the selling,renting or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer. This Section specifically provides that regulation of sexually oriented businesses is allowed even if the sexually oriented business holds a liquor license regulated by the Texas Alcoholic Beverage Code or contains coin operated machines such that it is regulated or taxed pursuant to TEX.REV. Civ.ANN.ART. 8801 et seq.(Vernon 1999&Supp.2001).The location,density and distance of a sexually oriented business to a school, regular place of religious worship, residential neighborhood(or other specified land use determined by a city or county to be inconsistent with the operation of a sexually oriented business)may be regulated.SWZ,Inc.v.Board ofAdjustment of Fort Worth,985 S.W.2d 268(Tex.App.—Fort Worth 1999,pet.denied).Permitting procedures and fees are authorized. 14. Location of Certain Facilities and Shelters,TEx. LOC. GOV'T CODE ANN., Chapter 244; Correctional&Rehabilitation Facilities: This chapter,which is set for sunset review in 2003,was revised to require public and specific notice posting to the county and city for any correctional or rehabilitation facility prior to construction/operation and to provide an opportunity for local objection. The requirements apply 16 for facilities to be located within 1000'(straight line)of a residential area,primary or secondary school, state park/recreational area or place of worship. The local government must make an affirmative determination by resolution that the proposed location is not in the best interest of the area, within 60 days of the notice and after a public hearing. There are several exceptions, including vested rights to facilities in existence or under construction by September 1, 1997. Homeless Shelters: Also revised in 1999, this section (also set for sunset review in 2003), provides a notice and objection procedure for shelters which follows the criteria described above. This subchapter only applies to cities with a population of 1,600,000 or more. Further,shelters are prohibited within 1000'of another shelter or a primary or secondary school without city consent. 15. Construction of Certain Telecommunications Facilities, TEX.LOC.GOV'T CODE ANN., Chapter 246. Effective September 1, 2001, telecommunication facilities are protected from impervious lot coverage, and sedimentation,retention or erosion regulations unless the regulating body,after a hearing,finds that additional adjacent land to meet the requirements is readily available at market prices. The PUC has enforcement authority. 16. Miscellaneous Regulatory Authority of Municipalities and Counties, TEX.LOC. GOV'T CODE ANN., Chapter 250; Silhouette, skeet, trap, black powder, target, self-defense and similar recreational shooting is protected from actions by governmental officials and private parties if the sport shooting range complies with applicable regulations. Specifically, a nuisance suit is precluded by regulatory compliance. Effective May 10,1999, a City or County regulation of amateur antennas is limited as follows: 1. They may not enact or enforce an ordinance or order that does not comply with the ruling of the Federal Communications Commission in"Amateur Radio Preemption,101 F.C.C.2d 952 (1985)"or a regulation related to amateur radio service adopted under 47 C.F.R. Part 97. 2. Any regulation of placement, screening, or height based on health, safety, or aesthetic conditions must: (1)reasonably accommodate amateur communications; and (2)represent the minimal practicable regulation to accomplish the municipality's or county's legitimate purpose. • Action to protect or preserve a historic,historical,or architectural district is not affected. 17. Neighborhood Zoning Areas-TEX.LOC.GOV'T CODE ANN. 1? 211.021; A city with a population exceeding 290,000 that has adopted a comprehensive zoning ordinance may provide for neighborhood zoning areas. This Section was adopted at the request of Austin, Texas. See Austin City Charter, Section 7.The mayor of the city,with the approval of the City Council,may appoint a neighborhood advisory zoning council for each neighborhood zoning area. 17 The neighborhood advisory zoning council is composed of five citizens who reside in the neighborhood zoning areas and who are appointed for a term of two years. The neighborhood advisory zoning councils provide the Zoning Commission with information, advice and recommendations relating to zoning applications affecting property within the neighborhood zoning area.The neighborhood advisory zoning council conducts public hearings on each zoning application affecting the property in the neighborhood zoning area. At or before the Zoning Commissions hearing on a zoning change application,the neighborhood advisory zoning council shall submit any information,advice and recommendations to the Zoning Commission.The Zoning Commission may not overrule the recommendation of a neighborhood advisory zoning council except upon a three-fourths vote of the members of the Zoning Commission present at the meeting. 18. Tax Increment Financing Act Zoning-TEx.TAX CODE ANN. & 311.010; An interesting statute relating to zoning is hidden in the Tax Code. The Board of Directors of a reinvestment zone created under section 311.010(a)(5)of the Texas Tax Code has the powers to zone set forth in the Enabling Act, if that power is specifically approved by the City Council of the city creating the reinvestment zone. The zoning restriction enacted may continue beyond the termination of the reinvestment zone.The nine member Board of Directors is selected as follows: • the state senator for the zone(or their designee); • the state representative for the zone(or their designee); • one director appointed by each of the school district and county if they participate; and • remaining directors are appointed by the City Council. 19. Revision to Bracketed Laws-House Bill 2810(77th Legislature.2001) All bracketed laws had their population brackets updated based on 2000 census figures. C. Enforcement A city may adopt ordinances to enforce its zoning ordinance,and any person who violates a zoning ordinance is guilty of a misdemeanor punishable by fine,imprisonment,and/or injunctive relief. TEx. Loc. GOV'T CODE ANN. § § 54.001, 211.012 (Vernon 1999 & Supp. 2001). Municipalities have broad authority to seek enforcement of zoning ordinances under Chapter 54 of the Texas Local Government Code. Proof of damage to the city or its residents is unnecessary—a city need show no more than a violation of its zoning ordinance.San Miguel v.City of Windcrest,40 S.W.3d 104, 107- 08 (Tex. App.—San Antonio 2000, no pet.), Maloy v. City of Lewisville, 848 S.W.2d 380 (Tex. App.—Fort Worth 1993, no writ). A city need not prove that its legal remedy is inadequate. San Miguel,40 S.W.3d at 108. Zoning ordinances are almost always enforced by the cities adopting them. However, in limited circumstances,individual citizens may enforce a zoning ordinance. Persons v.City of Fort Worth,790 S.W.2d 865,868(Tex.App.—Fort Worth 1990,no writ);Porter v.Southwestern Pub.Serv.Co.,489 S.W.2d 361,364(Tex.Civ.App—Amarillo 1971,writ ref d n.r.e). An individual citizen must prove "special injury"based on damages other than as a member of the general public. Id. The violation of a zoning ordinance is not a"nuisance per se"unless the condition substantially interferes with or 18 invades the rights of others. Couch v. Davis, No. 14-94-01060-CV, 1996 WL 354739 (Tex.App.—Houston [14 Dist.] 1996 no writ)(not designated for publication). D. Types of City The type of city is important in the powers granted by Texas statute. Some powers are delegated only to home rule cities. 1. Home Rule Cities Most cities with a population of over 5,000 are home rule cities.Home rules cities are chartered pursuant to article 9, section 5 of the Texas Constitution,which provides cities with"full power of local self government". TEX.LOC.GOV'T CODE ANN. § 51.072(2000);see City of Houston v. State ex rel City of West Univ. Place, 142 Tex. 190, 176 S.W. 2d 928, 929(1944), appeal dism'd, 322 U.S.711. A home rule city has all power authorized by its charter to the extent not specifically limited by state law. City of College Station v.Turtle Rock Com.,680 S.W.2d 802, 807(Tex. 1984). Arguably,a home rule city would have the power to zone without the Enabling Act, but case law holds that a city is limited in its zoning power to the rights granted in the Enabling Act. City of San Antonio v.Lanier,542 S.W.2d 232,234(Tex.Civ.App.—San Antonio 1976,writ ref d,n.r.e.). • 2. General Law Cities Most Texas cities with the population of under 5,000,as well as those with 5,000 or more which have not adopted a home rule charter by a vote of its residents, are general law cities chartered pursuant to article IX,section 4 of the Texas Constitution. See TEX.LOC.GOV'T CODE ANN. § 5.001-.003 (Vernon 1999). General law cities are restricted to authority specifically delegated to general law cities by state statute,all other power is reserved by the state. Mayhew v.Town of Sunnyvale, 774 S.W. 2d 284, 294(Tex. App.—Dallas 1989,writ denied). Some state statutes apply only to general law cities or only to home rule cities,although the Enabling Act applies to all cities. Id. at 294. E. Validation Statutes Historically,the legislature routinely passed"validation statutes",which cured all procedural,but no constitutional defects in municipal actions. Leach v. City of North Richland Hills,627 S.W.2d 854 (Tex. App.—Fort Worth 1982, no writ; Mayhew v. Town of Sunnyvale, 774 S.W.2d 284 (Tex. App.—Dallas 1989,writ denied),cert. denied,498 U.S. 1087 (1991). Pre-emption of state statutes is cured by a validation statue. West End Pia, Ltd. v. City of Irving, 22 S.W. 3`d 5 (Tex. App.— Dallas, 1999 writ denied). However,the 1997 legislature failed to pass a validation statute,reportedly the first such failure in sixty-one years. A"permanent"validation statute was passed by the 1999 Legislature.TEX LOC.GOV'T CODE ANN. § 51.003 (Vernon 1999 & Supp. 2001). Any governmental act or proceeding of a municipality is conclusively presumed valid on the third anniversary of the effective date,unless a lawsuit is filled to invalidate the act or proceeding. The following are excluded from validation: • void actions or proceedings, 19 • criminal actions or proceedings, • preempted actions, • incorporation or annexation attempts in another city's ETJ,and • litigated matters. Unlike historic validation statutes, there are no limits on the applicable cities. Included within the actions which could be validated are all failures to follow the Enabling Act or local ordinance procedures, incompatibility with comprehensive plans, spot zoning, and irregularities in appointing zoning officials. See Mixon, at§12.500(3rd ed.). V. SCOPE OF ZONING ORDINANCES A. City Limits Zoning ordinances are effective only within city limits and do not extend to any portion of the extraterritorial jurisdiction of a city. An exception to this statement applies to areas which have been the subject of"limited purpose annexation." See TEx.LOC.GOV'T CODE ANN. § 43.056(Vernon 1999). Austin has utilized limited purpose annexation to extend land use controls over areas which it cannot currently serve with all municipal services. See Austin City Charter Article 1, Section 7. B. Non-Zoning Municipal Ordinance Where a zoning ordinance and other municipal restriction conflict,the most restrictive applies. TEX. LOC.GOV'T CODE ANN. § 211.013 (Vernon 1999& Supp. 2001). C. Deed Restrictions The existence of zoning restrictions on a property does not affect existing deed restrictions. Spencer v. Maverick, 146 S.W.2d 819 (Tex. Civ. App.—San Antonio 1941, no writ); City of Gateville v. Powell, 500 S.W.2d 581 (Tex. Civ. App.—Waco 1973,writ ref d n.r.e.). D. Devaluation of Property to be Condemned A city may not use zoning to intentionally devalue property and gain an advantage as the purchaser of land in condemnation proceedings. Taub v.City of Deer Park,882 S.W.2d 824,827(Tex. 1994). Otherwise,a reduction in value due to zoning is not an unconstitutional taking. Mayhew v.Town of Sunnyvale,964 S.W.2d 922(Tex. 1998). E. State Law Preemption A zoning ordinance cannot conflict with state law on the specific issue involved. A zoning ordinance which tends to regulate a subject matter preempted by a state law is unenforceable to the extent it conflicts with the state law. City of Freeport v.Vndergrifft,26 S.W.3d 680,681 (Tex.app.—Corpus Christi 2000,pet. denied), City of Santa Fe v. Young, 949 S.W.2d 559(Tex.App.—Houston [14th Dist.] 1997,no pet.); Dallas Merchs. & Concessionaires Ass'n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993). Preemption is not automatic for the complete subject area of the state law. Instead,the state law and zoning ordinance may co-exist if any reasonable construction can resolve the apparent 20 conflict. Id. at 491. This is particularly true for home rule cities,and a state law must clearly intend to preempt a subject area sought to be regulated by a home rule city. Id. F. Governmental Uses [Add cite to Yakel] Generally speaking, most governmental entities will not be subject to zoning regulation. See Rohan,Zoning and Land Use Controls, Section 40.03 (Matthew Bender& Co., Inc. 1995)[referred to herein as Rohan]. The Enabling Act exempts state and federal agencies.TEX.LOC. GOV'T CODE ANN. §211.013(c)(Vernon 1999&Supp. 2001). The state of Texas,as well as those entities which derive their powers from the state of Texas,are also exempt from zoning regulation by a home rule city. Austin Indep. School Dist. v. City of Sunset Valley, 502 S.W.2d 670, 672 (Tex. 1973). School districts derive their power from the state and are,therefore,exempt. Id. The exemption as to a school district extends broadly to include not only school buildings,but athletic facilities and bus storage/maintenance facilities as well. Id. at 675. Other governmental entities which specifically derive their authority from the Texas Constitution or state statute should also be exempt. See City of Lucas v.North Tex. Mun. Water Dist.,724 S.W.2d 811 (Tex. App.—Dallas 1986,writ ref d n.r.e.). A city is not bound by its own zoning ordinance when exercising its eminent domain power. City of Lubbock v.Austin,628 S.W.2d 49,50(Tex. 1982). Arguably,this case should extend to all municipal uses. The action of the state or city in violation of a zoning ordinance may not be arbitrary,capricious or unreasonable. Austin Indep. School Dist.,502 S.W.2d at 674;City of Lubbock,628 S.W.2d at 50. Since it is the use,not the ownership,of property which is dispositive for zoning purposes,the fact that a governmental entity is a tenant as opposed to an owner should have no impact on the argument for exclusion from a zoning ordinance. However,the 1999 addition of section 211.013(d)to the Texas Local Government Code clearly mandates application of the Enabling Act to privately owned land and structures leased to a state agency. G. Eminent Domain Some"public service corporations"like railroads,common carrier pipelines and utilities are delegated the power of eminent domain for the purpose of locating their facilities. See section 110.019(b)of the Texas Natural Resources Code for the delegation of eminent domain power to common carrier pipelines. The public policy for delegation of eminent domain is that these"quasi-public"land uses are important to the general public and must have the ability to locate their facilities to effectively provide their services. These public service corporation should be exempt from municipal zoning power when exercising their primary activities. Fort Worth&D.C. Ry. Co. v. Ammons, 215 S.W.2d 407 (Tex. Civ.App.—Amarillo 1948,writ ref'dn.r.e.);Gulf,C.&S.Ry.Co.v.White,281 S.W.2d 441(Tex.Civ. App.—Dallas 1955,writ ref d n.r.e.);see also Missouri Pac.Ry.Co.v.55 Acres of Land,947 F.Supp. 1301 (E.D. Ark. 1996). This is similar to the well-settled law that a landowner cannot object to the location selected by the public service corporation with the power of eminent domain unless that selection is shown to be arbitrary,capricious or unreasonable. One case indicates the burden of proof is on the condemning authority,Porter v.Southwestern Public Service Company,489 S.W.2d 361,363 (Tex.Civ.App.—Amarillo 1971,writ ref d n.r.e.). However,that case is inconsistent with the general condemnation law cited above,as well as the cases addressing conflicts between governmental entities and zoning which all place the burden on the municipality. See Austin Indep. School Dist.v.City of Sunset Valley,502 S.W.2d 670,674(Tex. 1973);City of Lubbock v.Austin,628 S.W.2d 49,50(Tex. 1982). Many public service company facilities simply pass through municipalities without serving them. Besides the dominance of eminent domain over zoning, cases prohibit cities from excluding 21 facilities engaged in intrastate commerce,a description which will likely include any facility accorded the power of eminent domain. City of Brownwood v. Brown Tel. & Tel. Co., 157 S.W. 1163, 1165 (Tex. 1913); City of Arlington v.Lillard, 294 S.W. 829, 830(Tex. 1927). VI.TEXAS ZONING CASE LAW A. Validity of Zoning Generally 1. Basic Issues The basic concept of zoning and the Enabling Act were initially upheld by the Texas Supreme Court in 1934, Lombardo v. City of Dallas, 47 S.W.2d 495 (Tex. Civ. App.—Dallas 1932), af'd,124 Tex 1,73 S.W.2d 475(1934).On numerous occasions,Texas courts have upheld zoning as a valid exercise of the police power of the city to protect the health, safety and public welfare of its citizens. City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43, 66 A.L.R.2d 1289 (1959);Frost v.City of Hillshire Vill.,403 S.W.2d 836(Tex.Civ.App.—Houston[1st Dist.] 1966, writ ref d n.r.e.);Mayhew v.Town of Sunnyvale,774 S.W.2d 284(Tex.App.—Dallas 1989,writ dism'd);see also Shelton v. City of College Station, 780 F.2d 475 (5th Cir. 1986, en banc). 2. Presumption of Validity Since zoning is an exercise of a city's legislative power,zoning ordinances are presumed valid,and courts have no authority to interfere unless the ordinance represents a clear abuse of city discretion. Hunt v.City of San Antonio,462 S.W.2d 536,539(Tex. 1971). Bernard v.City of Bedford,593 S.W.2d 809,811 (Tex.Civ.App.—Fort Worth 1980,writ ref d n.r.e.); Shelton v.City of College Station, 780 F 2d 475,479-83 (5th Cir. 1986, en banc). The party attacking a zoning ordinance bears an extraordinary burden to show that no conclusive or even controversial or issuable fact or condition existed which would authorize the zoning ordinance. Hunt,462 S.W.2d at 539; City of Brookside Vill.v.Comeau,633 S.W.2d 790,793(Tex. 1982),cert.denied,459 U.S. 1087(1982); Shelton, 780 F.2d at 481-83. However, the presumption of validity for an amendatory zoning ordinance disappears if the city spot zones. Hunt,462 S.W.2d at 539. 3. Governmental Functions The exercise of zoning powers by a city, its Zoning Commission and ZBA, is a governmental function. Ellis v.City of W.Univ.Place, 175 S.W.2d 396,398(Tex. 1943);City of Round Rock v. Smith, 687 S.W. 2d 300, 303 (Tex. 1985). Generally,activities carried on by cities pursuant to state requirement or to provide for health,safety and general welfare of the public are considered governmental functions,while all other city activities are considered proprietary functions. City of Corsicana v. Wren, 317 S.W. 2d 516, 522(Tex. 1958).An example of a proprietary function would be street construction and repairs.LeBohm v.City of Galveston, 154 Tex. 192,273 S.W.2d 951,953(1955). The distinction is important since the Texas Tort Claims Act,codified in Chapter 101 of the Texas Civil Practices and Remedies Code, applies to all governmental functions, specifically in the area of zoning,planning and plat approval. TEX.Civ.PRAC. & REM. CODE ANN. § 101.0215 (Vernon 1999& Supp. 2001). The Texas Tort Claims Act limits the exposure 22 of a city to monetary damages under certain circumstances. [Also DR enforcement reduces equitable defense,estoppel,laches,S of L,waiver] 4. Strict Compliance with Statute The provisions of the Enabling Act must be strictly complied with and are necessary for the validity of any zoning ordinance, whether amendatory, temporary or emergency. Mayhew v. Town of Sunnyvale, 774 S.W.2d 284, 293-94 (Tex. App.—Dallas 1989,writ dism'd). However,the lack of a separate, formal comprehensive plan does not invalidate a zoning ordinance, provided the zoning ordinance itself is comprehensive and thus can serve as the comprehensive plan. Id. But should a city have a comprehensive plan, it must follow it in adopting its zoning ordinance. Id.; Appolo Dev.,Inc. v. City of Garland, 476 S.W.2d 365 (Tex. Civ. App.—Dallas 1972,writ ref d n.r.e.);Bolton v.Sparks,362 S.W.2d 946,950(Tex. 1962). Amendments to the zoning ordinance, must be by ordinance not resolution. City of Hutchins v. Prosifka, 450 S.W.2d 829, 832 (Tex. 1970). 5. Purpose of Zoning Ordinances Cities are empowered to regulate by zoning ordinances so as to conserve property values and encourage the most effective use of property throughout the city. Connor v. City of Univ.Park, 142 S.W.2d 706, 712 (Tex. Civ. App.—Dallas 1940, writ ref d). The basic purpose of all restrictive zoning ordinances is to"prevent one property owner from committing his property to a use which would be unduly imposed on the adjoining landowners in the use and enjoyment of their property." Strong v.City of Grand Prairie, 679 S.W.2d 767,768 (Tex. App.—Fort Worth 1984, no writ). Zoning is to promote the welfare of the community rather than to protect the value of individual properties. Galveston Historical Found.v.Zoning Board of Adjustment of Galveston, 17 S.W. 3d 414, 417 (Tex. App.—Houston [1St Dist.] 2000, pet. denied), citing 21$` Century Development Co. v. Watts, 958 S. W. 2d 25, 28 (Ky.Ct.App. 1997). Zoning regulation is a recognized tool of community planning which allows a city, in the exercise of its legislative discretion,to restrict the use of private property. City of Brookside Vill.v.Comeau,633 S.W.2d 790, 792 (Tex. 1982), cert. denied, 459 U.S. 1087 (1982). Zoning ordinances must have a substantial relation to the community's health,safety,morals and general welfare,or they are void. See Coffee City v.Thompson,535 S.W.2d 758,767(Tex.Civ.App.—Tyler 1976,writ ref n.r.e.). Land use is often limited by restrictive covenants in addition to a zoning ordinance. The zoning ordinance does not void restrictions contained in covenants running with the land to limit the use of property. If the restrictive covenant is less restrictive than the zoning ordinance,the ordinance prevails. If the restrictive covenant is more restrictive than the zoning ordinance, the covenant prevails.In either case,the zoning ordinance is valid and enforceable. City of Gatesville v.Powell, 500 S.W.2d 581, 583 (Tex. Civ.App.—Waco 1973,writ ref n.r.e.). 6. Delegation of Zoning Power The enactment or amendment of a zoning ordinance is a legislative act that can be performed only by the City Council,and that authority cannot be delegated to any administrative or advisory officer or board. Southern Nat'l Bank of Houston v. City of Austin, 582 S.W.2d 229, 238 (Tex. Civ. App.—Tyler 1979, writ ref n.r.e.). However, this statement does not apply to Tax Increment 23 Zoning. See TEX.TAX CODE ANN. § 311.010(c)(Vernon 1999&Supp. 2000). This legislative power may not be delegated to a narrow segment of the community by any procedure which allows citizens to prohibit rezoning. See Minton v.Fort Worth Planning Comm'n,786 S.W.2d 563(Tex. App.—Fort Worth 1990,no writ) . In Minton,the court declared unconstitutional the provision in former article 974a,section 5(c)(2) of the Texas Revised Civil Statutes Annotated,which allowed twenty(20%)percent of adjacent property owners to protest a replat in a residential subdivision. If the twenty(20%)percent of neighboring owners objected in the required manner,then the written approval of sixty-six and two- thirds(66-2/3%)percent of affected owners was required.The effect of this provision was to allow a well organized opposition of at least thirty-four(34%)percent of affected property owners to prevent any replatting which was opposed.The court held that platting statutes which prohibit all replatting are unconstitutional. Id. at 565. The Enabling Act does not contain any parallel provision,although a home rule city may adopt an ordinance to require approval by a three-quarter vote of any zoning ordinance which was not recommended for approval by the Zoning Commission. TEX.LOC.GOV'T CODE ANN. § 211.006(Vernon 1999). B. Validity of Specific Zoning 1. Technical Compliance with Enabling Act Challenging the technical compliance of a city with the Enabling Act in adopting an original or amendatory zoning ordinance has rarely been a successful venture. See Gullo v.City of W.Univ. Place,214 S.W.2d 851 (Tex.Civ.App.—Galveston 1948,writ dism'd);City of Bellaire v.Lamkin, 317 S.W.2d 43 (Tex. 1958); City of Brookside Vill. v. Comeau, 633 S.W.2d 790(Tex. 1982); Mayhew v. Town of Sunnyvale, 774 S.W.2d 284 (Tex. App.-1989, writ dism'd). Further, the Texas legislature periodically passed validation statutes curing all substantive defects in the adoption of zoning ordinances by cities.See, e.g., TEx.REV.CN.STAT.ANN. art. 974d-22, §4, arts. 974d-36, 1174a1082 (b), 1174a-12, § 2 (b) (Vernon1990 & Supp. 2001). [Reference permanent validation statute] Validation statutes are remedial and to be liberally construed to cure all defects which are not constitutional in nature. Id. at 296; Murmur Corp. v. Board of Adjustment of Dallas,718 S.W.2d 790,793(Tex.App.—Dallas 1986,writ ref d n.r.e.). However, a validation statute will not give a resolution purporting to amend a zoning ordinance or the effect of an ordinance,City of Hutchins v. Prosifka,450 S.W.2d 829, 933 (Tex. 1970). 2. Challenge of Zoning Ordinance a. General Rules. The Texas Supreme Court set forth the ground rules for challenging a zoning ordinance in City of Pharr v. Tippitt, 616 S.W.2d 173 (Tex. 1981), and City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982), cert. denied, 459 U.S. 1087 (1982), as follows: (i) Zoning is an exercise of a city's legislative powers; (ii) Validity of a zoning ordinance is a question of law,not fact; and 24 (iii) Courts are governed by the rule that if reasonable minds may differ as to whether a particular zoning ordinance has a substantial relationship to the public health,safety, morals or general welfare,then no clear abuse of discretion is shown and the ordinance must stand as a valid exercise of the city's police power; b. A zoning ordinance duly adopted pursuant to the Enabling Act is presumed to be valid,and the burden is on the one seeking to prevent its enforcement,whether generally or as to a particular property,to prove that the ordinance is arbitrary or unreasonable in that it bears no substantial relationship to the health,safety,morals or general welfare of the city; c. The burden on the party contesting a zoning ordinance is a heavy one; d. The test for spot zoning is that the city act arbitrarily, unreasonably, discriminatorily and without any substantial relation to the public health,safety,morals or general welfare.In such event,a zoning ordinance constitutes spot zoning and is void; e. Zoning regulation is a recognized tool of community planning which allows a city, in the exercise of legislative discretion,to restrict the use of private property; and f. Judicial review of a city's zoning actions is necessarily circumscribed as appropriate to the line of demarcation between legislative and judicial functions. A court might not take judicial notice of zoning ordinances attached to an appellate brief. City of Glenn Heights v.Sheffield Dev.Co.,55 S.W.3d 158,162(Tex.App.—Dallas 2001 pet.filed). The ordinances must have been introduced at the trial level. Id. 3. Spot Zoning- Spot zoning involves the singling out of a tract of land for treatment different from that accorded to similar surrounding land without proof of changes in conditions. City of Pharr v. Tippitt, 616 S.W.2d 173, 177 (Tex. 1981). Spot zoning is illegal and invalid because such an amendatory ordinance will not be in accordance with a city's comprehensive plan. See Board of Adjustment of San Antonio v.Leon,621 S.W.2d 431,436(Tex.Civ.App.—San Antonio 1981,no writ). Zoning changes for a small area will be upheld only if changes have occurred that justify treating the area differently from the surrounding land. Hunt v.City of San Antonio,462 S.W.2d 536,539(Tex. 1971);City of Texarkana v.Howard,633 S.W.2d 596,597(Tex.App.—Texarkana 1982,writ ref d n.r.e.). However, spot zoning could be cured by a validation statute. See supra section N.E. in City of Pharr,the Texas Supreme Court set forth four important criteria against which rezonings of specific property matters should be tested. 616 S.W.2d at 177.Regarding these criteria the court stated: It has been suggested that such a statement would help to restrain arbitrary,capricious and unreasonable actions by city legislative bodies;improve the quality of the legislation;assist to eliminate ad hoc decisions and focus the evidence from interested parties upon the real issues. Id. at 176. 25 Based on a footnote citing to numerous law review articles on zoning law at the end of the foregoing statement,it is clear that the court felt it was establishing an important precedent for future zoning cases. The four criteria are as follows: a. Consistency with a comprehensive plan and zoning ordinance should be respected and not altered for the special benefit of one land owner where it may cause a substantial detriment to surrounding property and serve no substantial public purpose; b. Nature and degree of adverse impact on neighboring property are important. Rezoning must be consistent with zoning of the surrounding area,and the more divergent the adjacent zoning the more likely the ordinance may be invalid(i.e. rezoning a portion of a residential area to industrial); c. Suitability of the tract for the use as presently zoned is also a factor. The size, shape and location of a tract may render it unusable as zoned(i.e.a residence surrounded by businesses). Proof of public need or substantially changed conditions supports rezoning;and d. A substantial relationship to the public health, safety, morals or general welfare or to the protection and preservation of historical and cultural areas must exist. The focus is on a substantial public need without regard for the fact that the owner of the rezoned property may benefit. These four criteria are consistent with the factors previously set forth by the Texas Supreme Court. City of Fort Worth v. Johnson, 388 S.W.2d 400, 404 (Tex. 1964). Violation of these criteria constitutes impermissible spot zoning and therefore is invalid. The key to the test is that if spot zoning analysis is applied,the presumption of validity no longer applies. City of Pharr v. Tippitt, 616 S.W.2d at 176. The current status of spot zoning law is confused. To be safe, a rezoning of a small tract must be supported by changed conditions. See City of Texarkana v. Howard, 633 S.W.2d 596, 597 (Tex. App.—Texarkana 1982, writ ref d n.r.e.). No clear test for spot zoning has been established despite the Texas Supreme Court's attempt at clarification in City of Pharr. The current state of Texas spot zoning law has been described as "unworkable and unreliable." Mixon, at §17.05. For a detailed discussion of the history of spot zoning cases in Texas and related commentary, see Mixon, Chapter 14. 4. Use Districts-Traditional zoning focuses on the geographic division of a city into districts and the application of different use regulations in those districts. The Enabling Act specifically allows use regulation. TEX.LOC.GOV'T CODE Arm. §211.003(Vernon 1999). A city has broad discretion to exclude and limit uses. See City of Gatesville v. Powell, 500 S.W.2d 581, 583 (Tex. Civ. App.—Waco 1973, writ red n.r.e.) (upholding residential only districts); Meserole v. Board of Adjustment,City of Dallas, 172 S.W.2d 528,530(Tex. Civ.App.—Dallas 1943,no writ)(proper to exclude laundry and dry cleaning call station from residential area); City of Corpus Christi v. Jones, 144 S.W.2d 388, 397 (Tex. Civ. App.—San Antonio 1940, writ dism'd judgmt. cor.) (prohibiting businesses or industries from residential districts). 26 A city may place municipal buildings in any use district as it deems necessary for the safety,health and general welfare of the public. See City of McAllen v.Morris,217 S.W.2d 875,877(Tex.Civ. App.—San Antonio 1949, writ ref d). However, a city may burden itself with the obligation to comply with its own zoning ordinance. Id.; City of Lubbock v. Austin, 628 S.W.2d 49 (Tex. 1982). Most cities are divided into residential, business and commercial, and industrial districts. Typically,each district is subdivided into more specific use-districts. Traditional zoning ordinances will frequently list the use district from the"higher"most restrictive(i.e.residential)to the"lower" least restrictive (i.e. industrial) and allow all "higher" uses in the "lower" districts. This is "cumulative"zoning. More modern zoning ordinances are more restrictive in uses allowed. The provisions of and not the order in which the classes are listed in the ordinance determines which zoning classification is the most restrictive. See Wallace v. Daniel, 409 S.W.2d 184, 189 (Tex. Civ. App.—Tyler 1966,writ ref d n.r.e.). 5. Planned Development Districts -Zoning ordinances often include planned development districts (also known as Planned Unit Developments or"PUDs"). See Teer v.Duddleston,641 S.W.2d 569, 575 (Tex. App.—Houston [14th Dist.] 1982), 26 Tex. Sup. Ct. J. 544 (July 20, 1983), rev'd on other grounds,664 S.W.2d 702(Tex. 1984). A planned unit development is defined as an"area with a specified minimum contiguous acreage to be developed as a single entity according to a plan [and] containing one or more residential clusters . . . and one or more public, quasi-public, commercial or industrial uses in such ranges of ratios of nonresidential uses to residential uses"as specified in the zoning ordinance. BLACK'S LAW DICTIONARY 1036(6th ed. 1990). 6. Specific Use Permits - Specific use permits provide for a site specific approval of uses contemplated in a zoning ordinance, subject to a determination that the use is appropriate where requested. They are issued legislatively by the zoning commission/city council. Specific use permits are similar in application to a special exception, although the special exception is issued in a quasi-judicial manner by the ZBA. Specific use permits are a valid exercise of zoning authority by a municipality. City of Lubbock v.Whitacre,414 S.W.2d 497,499(Tex.Civ.App.— Amarillo 1967,writ ref d n.r.e.). Amendment to a zoning ordinance by a specific use permit to allow a use not otherwise allowed in that zoning district is not spot zoning. Id. at 502. 7. Laches and Estoppel-The equitable doctrines of estoppel and laches are generally not available against a city in an action challenging enforcement of a zoning ordinance against property owners, because a city is discharging its governmental function in enforcing its zoning ordinance. See Marriott v.City of Dallas,635 S.W.2d 561,564(Tex.App.—Dallas 1982),aff'd,644 S.W.2d 469 (Tex. 1983). 8. Standing-To challenge a zoning ordinance,a party must own real property in the city. Kincaid School,Inc.v.McCarthy,833 S.W.2d 226(Tex.App.—Houston[Pt Dist.] 1992,no writ). A party not listed on the most recent tax rolls of the city at the time for the notice of a zoning ordinance change cannot complain of lack of notice despite actual ownership at the time of the zoning change. Id. Normally, only a city has standing to enforce a zoning ordinance; however, in Porter v. Southwestern Public Service Company, 489 S.W.2d 361 (Tex. Civ. App.—Amarillo 1972, writ ref d n.r.e.),individual citizens successfully challenged a violation of a city zoning ordinance after the city determined the utility was exempt. 27 9. Agreement Concerning Future Zoning Illegal ("Contract Zoning") - No city may enter an enforceable agreement concerning future zoning decisions, and any attempted agreement will be void. City of Pharr v. Pena, 853 S.W.2d 56(Tex.App.—Corpus Christi 1993,writ denied);City of Farmer's Branch v. Hawnco, Inc.,435 S.W.2d 288, 291 (Tex. Civ. App.—Dallas 1968,writ ref d n.r.e.). However,the Property Redevelopment and Tax Abatement Act,in section 312.001 et seq.of the Texas Tax Code,specifically provides that a tax abatement agreement between a city and a property owner may provide for changes to the city's zoning ordinance. TEX.LOC.GOV'T CODE ANN. § 205(b)(5), 312 (Vernon 1999). Even if a city enters into a land use related agreement,all necessary legal requirements to authorize the agreement must be satisfied.A city is not estopped to deny the non-enforceability of an agreement which was not properly entered into, even though it was due to city error. Galveston County MUD No.3 v. City of League City,960 S.W. 2d 875 (Tex. App.—Houston [14th Dist.] 1997, no pet.). A further problem with contract zoning is the fact that municipalities have sovereign immunity to suit for contract claims(unless waived). See City of Houston v.Northwood Mun.Util.Dist.No. 1,No.01-01-00497-CV,2001 WL1447947*6(Tex.App.—Hou[1st Dist]2001)(not designated for publication). 10. Construction of Zoning Ordinance The following rules apply when construing a zoning ordinance provision: • Generally,the rules applicable to statutes apply • Give effect to the enacting body's intent • Give first preference to the language of the provision,but not so literally as to read it out of context • Then consider context • Then consider the consequences of the interpretation • Avoid interpretations which are absurd or create surplusage • Interpretation is a question of law,so the reviewing court is not bound the administrative body's interpretation,although that interpretation may be given some weight if the court is in doubt. Wende v. Board of Adjustment of San Antonio, 27 S.W. 3d 162, 170 (Tex. App—San Antonio 2000,pet. granted). C. Validity of ZBA Decision 1. Procedure. The ZBA's decision on an appeal,variance, special exception or other matter can be challenged by petition to a court of record to review the ZBA's decision by writ of certiorari. TEX. LOC.Gov'T CODE ANN.§211.011 (Vernon 1999). The court may reverse or affirm wholly or in part and modify the decision reviewed. §211.011. The right to appeal a ZBA decision is limited exclusively to writ of certiorari under section 211.011. Reynolds v.Haws,741 S.W.2d 582,584 (Tex.App.—Fort Worth, 1987,writ denied). As an alternative to writ of certiorari,the property owner may independently challenge the validity of the zoning ordinance rather than seeking a variance from its provisions. City of Amarillo v. Stapf, 101 S.W.2d 229,234(Tex. Comm'n. App. 1937,judgmt. adopted). [add remand] If an aggrieved party decides to appeal an order of the ZBA by requesting a writ of certiorari,they have 10 days after the notice of decision to file suit. TEx.LOC. GOV'T CODE ANN. § 211.011 (Vernon 1999);Reynolds,741 S.W.2d at 584. The aggrieved party must establish compliance with 28 this requirement in order to be entitled to appeal. Fincher v.Board of Adjustment of Hunters Creek Vill., 56 S.W. 3d 815, 817 (Tex. App.—Houston [1st Dist.] 2001, no pet.). The former characterization of the ten day period as"jurisdictional"is incorrect,rather it is an issue for the parties to raise on the merits.Id. (citing Dubai Petroleum Co.v.Kazi, 12 S.W.3d 71,76-77(Tex. 2000)). The ZBA itself is an indispensable party and must be named as a defendant, even if individual members of the ZBA are served and answer.Id. at 587. When the petition names all members of the ZBA in their official capacities without specifically naming the board as an entity, this defect is curable and petitioner may amend petition to include board after expiration of the statutory 10 day period for filing a writ of certiorari. Pearce v.City of Round Rock,992 S.W.2d 668 (Tex. App.—Austin 1999,pet. denied). 2. Standing. The following parties may appeal to the ZBA:(i)a person aggrieved by the decision,or (ii) any officer,department,board, or bureau of the municipality affected by the decision, other than a member of a governing body sitting on a ZBA under TEX. LOC. GOV'T CODE ANN. § 211.008(g)(Vernon 1999). In order to have standing to appeal an order,requirement,decision,or determination made by an administrative official,the appealing party must demonstrate unique injury or harm to himself other than as an aggrieved member of the general public. Texans to Save the Capitol,Inc.v.Board Adjustment of Austin, 647 S.W.2d 773, 775 (Tex.App.—Austin 1983, writ ref d n.r.e.); Galveston Historical Found. v. Zoning Bd. of Adjustment of Galveston, 17 S.W.3d 414,416-7(Tex.App.—Houston[1st Dist.]2000,pet.denied). Standing does not require establishing a direct link between a party's activities and the ZBA's decision,or that a harm had already occurred.Residents in the same zoning district are aggrieved and therefore have standing. Id. at 418. An adjacent city is aggrieved if the decision adversely affects it different than the general public. Wende v.Board of Adjustment of the City of San Antonio,27 S.W. 3d 162, 167 (Tex.App.—San Antonio 2000,pet. granted). 3. Limitations on ZBA Action.The ZBA is an administrative,fact finding,quasi judicial body. It is empowered to grant variances or exceptions from the zoning ordinance,but it cannot be delegated the legislative function of the City Council with regard to its zoning ordinance. The ZBA is only authorized to ameliorate exceptional instances which,if not relieved,could endanger the integrity of a zoning plan. Thomas v.City of San Marcos,477 S.W.2d 322,324(Tex. Civ.App.—Austin 1972, no writ); Swain v. Board of Adjustment of Univ. Park, 433 S.W.2d 727, 735 (Tex. Civ. App.—Dallas 1968, writ ref'd n. r. e.), cert. denied, 396 U.S. 277, reh'g denied, 397 U.S. 977 (1970). A ZBA must act within its specifically granted authority. West Tex.Water Refiners,Inc. v.S&B Beverage Co.,915 S.W.2d 623,626(Tex.App.—E1 Paso 1996,no writ). If the ZBA acts outside its specifically granted authority,it is subject to a collateral attack in district court,which suit is not governed procedurally by TEX.LOC.GOV'T CODE ANN. §211.011 (Vernon 1999). Id. For example,if a board grants a special exception that is not a conditional use expressly provided for under the ordinance, then the board has exceeded its authority to act rather than merely exercising its power legally. S&B Beverage Co.,915 S.W.2d at 627. The ZBA has no power to grant zoning exceptions or variances that amount to a zoning ordinance amendment. If the approval of a"specific use permit"constitutes a zoning ordinance amendment, the City Council is the only body that may approve or disapprove such a permit. See Op. Tex. Att'y. Gen.JM-493 (1986). 29 4. Variances. A variance is authorized where the zoning ordinance does not permit any reasonable use,not merely to accommodate the highest and best use of the property. See Board of Adjustment of San Antonio v. Willie, 511 S.W. 2d 591, 594 (Tex. Civ. App.—San Antonio 1974,writ ref d n.r.e.). The ZBA must find the existence of a"hardship"in order to grant a variance. TEX.LOC. GOV'T CODE ANN. §211.009(Vernon 1999). Where a variance is denied,the applicant will not later be allowed to ask for an interpretation that the variance is not required in order to eliminate the 10 day deadline for appealing the variance denial. Fincher v.Board of Adjustment of Hunters Creek Vill., 56 S.W. 3d 815, 816(Tex. App—Houston[1 st Dist.] 2001,no pet.). 5. Special Exceptions. A variance is distinguished from a special exception in that,in the case of a variance, a literal language of the zoning regulations is disregarded. In the case of a special exception,"the conditions permitting the exception are found in the zoning regulations themselves." Moody v. City of Univ. Park, 278 S.W.2d 912, 919 (Tex. Civ. App.—Dallas 1955, writ ref n.r.e.). 6. Nonconforming Uses. A ZBA may, by city ordinance, have jurisdiction to adjudicate non- conforming uses under a city's zoning ordinance. See Huguley v.Board of Adjustment of Dallas, 341 S.W.2d 212,216(Tex.Civ.App.—Dallas 1960,no writ). There existed no statutory basis for ZBA jurisdiction over non-conforming uses until the 1993 amendment of Texas Local Government Code, section 219.009. The ZBA may determine whether a non-conforming use existed on the owner's property when it was annexed to the city. Id. The ZBA does not have discretion to grant a non-conforming use where none previously existed. See Board of Adjustment, City of San Antonio v.Nelson, 577 S.W.2d 783, 785 (Tex. Civ. App.—San Antonio 1979,writ ref n.r.e.), aff'd, 584 S.W.2d 701 (Tex. 1979). 7. Rules for Writ of Certiorari. a. A legal presumption exists in favor of the ZBA's decision. Board of Adjustment of Piney Point Vill. v. Amelang, 737 S.W.2d 405, 406 (Tex. Civ. App.—Houston [14th Dist.] 1987, writ denied);Southwest Paper Stock,Inc.v.Zoning Bd.of Adjustment,980 S.W.2d 802,804(Tex. App.—Fort Worth 1998,pet. denied). b. The burden of proof to establish its illegality rests upon the contestant. Swain v. Board of Adjustment of Univ. Park, 433 S.W.2d 727, 731 (Tex. Civ. App.—Dallas 1968, writ ref n.r.e),cert.denied,396 U.S.277,reh'g denied,397 U.S.977,(1970);Southwest Paper Stock., Inc. 980 S.W.2d at 804. c. "If the evidence before the court as a whole is such that reasonable minds could have reached the conclusion that the Board of Adjustment must have reached, . . . the order must be sustained." McDonald v.Board of Adjustment of San Antonio, 561 S.W.2d 218,220(Tex. Civ.App.—San Antonio 1977,no writ). d. The review of the decision of a ZBA is not a trial de novo where facts are established,but is based on whether the ZBA abused its discretion. City of Lubbock v. Bownds, 623 S.W.2d 752, 755-56 (Tex. App.—Amarillo 1981,no writ);Amelang,737 S.W.2d at 406, Southwest Paper Stock,Inc,980 S.W.2d at 804; SWZ,Inc.v.Board of Adjustment of Fort Worth,985 S.W.2d 268,270(Tex.App.—Fort Worth 1999,writ denied). 30 e. The court must not substitute its judgment for the ZBA's. Amelang, 737 S.W.2d at 406; Southwest Paper Stock,Inc, 980 S.W.2d at 804. f. The only question which can be raised is the legality of the ZBA decision. Amelang, 737 S.W.2d at 406; Southwest Paper Stock,Inc,980 S.W.2d at 804. g. The court should make its decision on the legality of the ZBA's decision based on the materials retained in response to the writ of certiorari and any testimony received. Amelang, 737 S.W.2d at 406, Southwest Paper Stock,Inc., 980 S.W.2d at 804. h. The legality of a ZBA's denial is a question of law. Southwest Paper Stock,Inc.,980 S.W.2d at 804. i. As a question of law,whether a ZBA decision should be upheld is appropriately determined by summary judgment. Amelang, 737 S.W.2d at 406; Southwest Paper Stock, Inc., 980 S.W.2d at 804. The foregoing rules incorporate the"abuse of discretion"rule,which was adopted by the Texas Supreme Court in City of San Angelo v. Boehme Bakery, 190 S.W. 2d 67(Tex. 1945)and Nu- Way Emulsion,Inc. v. City of Dalworthington Gardens, 610 S.W.2d 562 (Tex. Civ. App.—Fort Worth), writ red per ceriam, 617 S.W.2d 188 (Tex. 1981). See also SWZ, Inc. v. Board of Adjustment of Fort Worth, 985 S.W.2d 268 (Tex. App.—Fort Worth 1999,pet. denied). Some Court of Appeals apply the"substantial evidence"rule,requiring a factual basis for the ZBA's decision,whereas the"abuse of discretion"standard only inquires whether the ZBA's decision is arbitrary and unreasonable,whether or not evidence exists. See Pick-N-Pull Auto Dismantlers v. Zoning Board of Adjustment of Fort Worth,45 S. W. 3d 337, 340(Tex.App—Fort Worth 2001, pet.denied)(court cites the"abuse of discretion"rule,but applies the"substantial evidence"rule), Board of Adjustment of Corpus Christi,860 S.W.2d 622,625-6(Tex.App.—Corpus Christi 1993, writ denied)(court discusses the conflict). This conflict is fully reviewed in Mixon, § 11.516. In Wende v. Board of Adjustment of the City of San Antonio, 27 S.W.3d 162 (Tex. App.—San Antonio 2000,pet.granted),the court applied non zoning law applicable in mandamus actions to determine whether a ZBA abused its discretion,citing Walker v. Packer, 827 S.W.2d 833 (Tex. 1992).Walker held that an abuse of discretion occurs if a decision is so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. at 839. The court specifically rejected the "substantial evidence"rule.Wende,27 S.W.3d at 167. The court considered a ZBA,as a quasi- judicial body,to be subject to the same limitations as a trial court being reviewed in a mandamus actions. Id. The ZBA abuses it discretions if it incorrectly analyzes or applies the law. Id. Only in the area of factual determinations will the reviewing court not substitute its own judgement. Id. The court must determine whether mixed issues are more fact than law. Id. In Wende, the appellate court held that the trial court misapplied the zoning ordinance and remanded the matter for further action consistent with the appellate court's decision. This case give the aggrieved party more room for success on appeal. It may also result in more cases being remanded to the trial court for further action as the appellate court may determine that the trial court misinterpreted or misapplied the law. [interpretation case-contrast to varied spec.ex.cases] 31 D. Non-Conforming Uses 1. Definition. A non-conforming use is a use that lawfully precedes adoption or application of zoning regulations that prohibit the use and continues to exist. Wende v. Board of Adjustment of San Antonio,27 S.W.3d 162, 169(Tex.App.—San Antonio 2000,pet.granted);City of Jersey Vill.v. Texas No. 3 Ltd., 809 S.W.2d 312, 313 (Tex.App.—Houston [14`h Dist.] 1991,no writ). The use must have commenced before the zoning ordinance,mere intent is insufficient. Wende,27 S.W.3d at 169. Acquiring(whether by buyer or leasing)property in contemplation of future use is insufficient.Id. Preparation(permits,planning,surveying,testing,etc.)for a use is insufficient. Id. at 171. A previous use,since discontinued is insufficient.Id. Construction commencing after notice of annexation is too late. Id. 2. Right to Continue. A non-conforming use lawfully existing prior to enactment of a zoning ordinance has vested rights to continue in existence so long as the structures and uses are not nuisances and are not harmful to public health,safety,morals or welfare. City of Corpus Christi v.Allen,254 S.W.2d 759, 761 (Tex. 1953). For a proposed project to have common law vested rights in Texas,it must satisfy the following: • permit for construction has been issued; • the owner have expended substantial funds;and • reliance by the owner was in good faith. Id.; Brown v. Grant,2 S.W.2d 285 (Tex. Civ.App.—San Antonio 1928,no writ). In addition to the common law vested rights,most zoning ordinances specifically provide for the continuation of pre-existing nonconforming uses. 3. Elimination is Lawful. One of the objectives of zoning regulations is to ultimately eliminate non- conforming uses. City of Garland v.Valley Oil Co.,482 S.W.2d 342,346(Tex.Civ.App.—Dallas 1972,writ ref dn.r.e.),cert.denied,411 U.S.933(1973),aff'd on remand,499 S.W.2d 333(Tex. Civ.App.—Dallas 1973,no writ);Murmur Corp.v. Board of Adjustment of Dallas, 718 S.W.2d 790,797(Tex.App.—Dallas 1986,writ ref n.r.e.). Zoning ordinances requiring termination of non-conforming uses under reasonable conditions(usually an amortization period)are permissible under a city's police power. Property owners do not acquire a constitutionally protected right in property uses once they have commenced or in zoning classifications once they are made. Benners v.City of Univ.Park,477 S.W.2d 326,329(Tex.Civ.App.—Waco 1973),rev'd on other grounds, 485 S.W.2d 773, 780 (Tex. 1972), appeal dism'd, 411 U.S. 901, reh'g denied, 411 U.S. 977 (1973). Most zoning ordinances prohibit: • the expansion or intensification of non-conforming uses; • their replacement/reconstruction/relocation; and • continuation after a specified period of non use(i.e.,abandoned). However,the"diminishing asset doctrine"applies to quarries to allow excavation of all of the land owned as of the date of non conformance,even if only a portion was being excavated at that time. Wende v.Board of Adjustment of San Antonio,27 S.W.3d 162, 172-73 (Tex.App.—San Antonio 2000,pet. granted). 32 4. Amortization. Amortization of non-conforming uses is allowed. See Board of Adjustment of Dallas v.Winkles, 832 S.W.2d 803 (Tex.App.—Dallas 1992,writ denied)(clearing setting forth the right to amortize and general rules applicable). The concept of amortization is to allow the owner of a non-conforming use to operate that use for the period of time necessary to allow the owner to recover its investment. Winkles, 832 S.W.2d at 806. At the end of the amortization period, the owner is forced to either conform to the provisions of the zoning ordinance or to terminate the use. Amortization is acceptable because the owner does not acquire a constitutionally protected vested right in property use or in zoning classifications. City of Univ.Park v.Benners,485 S.W.2d at 773 (Tex. 1972). [Add cite to Eller v.City of Houston] 5. Statutory Vested Rights-Freeze Law. A vested rights statute was enacted in 1987 to streamline regulatory processes and encourage economic development,and was codified as section 481.141 of the Texas Government Code. The statute "froze" regulation as it was when a project commenced in order to prevent regulatory authorities from changing development rules and standards mid- stream. The vested rights statute was repealed inadvertently by the Texas Legislature in 1997,but has now been reenacted and codified as Chapter 245 of the Texas Local Government Code.The Texas Supreme Court dealt with the effect of the repeal in Quick v.City of Austin, 7 S.W.3d 109(Tex. 1999). When reenacting this statute, the legislature found that the 1997 repeal was, in fact, inadvertent stating: "the repeal of former subchapter I, Chapter 481,Government Code,which became effective September 1, 1997,resulted in the reestablishment of administrative and legislative practices that often result in unnecessary governmental regulatory uncertainty that inhibits the economic development of the state and increases the cost of housing and other forms of land development and often resulted in the repeal of previously approved permits causing decreased property and related values,bankruptcies,and failed projects. The legislature finds that the restoration of requirements relating to the processing and issuance of permits and approvals by local governmental regulatory agencies is necessary to minimize to the extent possible the effect of the inadvertent repeal . . . and to safeguard the general economy and welfare of the state and to protect property rights." Finding and Intent,Section 1 of H.B. 1704(1999 Tex.Sess.Law Serv.Ch. 73 HB 73 Vernon),available at WL TX LEGIS 73 (1999)(amending Chapter 481 of the Texas Government Code). Vested rights granted by the statute are as follows: • A regulatory agency may consider a permit application solely on the basis of the "orders, regulations, ordinances, rules, expiration dates, or other properly adopted requirements" effective when the"original application"is filed. • If there are a series of permits,the application for the first permit in that series triggers the vested rights. • All permits required for the project are considered a single series. Specifically,preliminary plans,subdivision plats,site plans and all other development permits for land covered by preliminary plans or subdivision plats are collectively a single series. 33 • Once a permit is issued,its duration may not be shortened. TEx.Loc.Gov'T CODE ANN. § 245.002 (Vernon 1999& Supp. 2001). The definitions of"permit","political subdivision","project"and"regulatory agency"are broad. TEX.LOC.GOV'T CODE ANN.§ 245.001 (Vernon 1999&Supp.2001);Op.Tex.Att'y Gen.No. JC-0425(2001)(opines that vested rights apply to the"project"and not the owner;therefore,the property retains the vested rights,but only so long as the project remains the same[which factual determination is left to each situation]). In Levy v.City of Plano,No.05-97-00061-CV,2001 WL 13 82520(Tex.App.—Dallas 2001)(not designated for publication)the court held that the filing of a permit application for a project in a city's ETJ does not protect the project from subsequent application of the city's zoning ordinances after annexation. The new statute, in compensation for the two year gap between the statute's repeal and re- enactment,applies to projects"in progress on or commenced after September 1, 1997." TEx.LOC. Gov.CODE ANN. §245.003 (Vernon 1999&Supp.2001).The term"in progress"is generously defined to include any viable development project. TEX. LOC. GOV'T CODE ANN. § 245.005 (Vernon 1999 & Supp. 2001). The replacement statute clarified the legislatures intent that any project,permit,or series of permits protected by the former statute would not be prejudiced by the inadvertent repeal. This provision conflicts with the Texas Constitution provision prohibiting retroactive laws. TEx.CONST.art. 3, § 56(Vernon 1999& Supp. 2001). The statute contains several exceptions to vested rights,specifically including zoning regulations, but only those which do not affect lot dimensions, lot coverage, and building size. TEX. LOC. GOV'T CODE ANN. § 245.004(Vernon 1999&Supp. 2001).Additionally,the statute will allow cities to apply expiration dates on a permit not previously containing one if no effort at progress has resulted towards completion of the project after May 22, 2000 (one year from the effective date). TEX.LOC.GOV'T CODE ANN. § 245.005 (Vernon 1999 & Supp. 2001). Enforcement is limited to mandamus,declaratory judgment or injunction. TEX.LOC.GOV.CODE ANN.§245.006 (Vernon 1999). An owner may not recover damages for a regulatory taking and be granted relief under Chapter 245 and thus have the right to complete the proposed project in the manner originally requested, because the owner made an election of remedies. City of Glenn Heights v. Sheffield Dev.Co.,55 S.W.3d 158, 165(Tex.App.—Dallas 2001,pet.filed). In Glenn Heights,the owner asserted that PUD zoning was a"permit"and a plat filed based on the PUD must be considered under the PUD provisions,not withstanding a later down zoning. 6. Reliance on Improperly Issued Permit Two cases uphold the right of an owner to complete construction of a non conforming structure based on improperly issued building permits. Board of Adjustment of Corpus Christi v.McBride, 676 S.W.2d 705(Tex.App.—Corpus Christi 1984,no writ);Town of South Padre Island v.Cantu, 52 S. W. 3d 287 (Tex. App.—Corpus Christi 2001, no pet.). In both cases, the city issued a building permit for a building based on plans with a non conforming set back. The buildings were substantially completed(75%in McBride and 80%in Cantu). Cantu cited McBride in holding that a ZBA abuses its discretion if it fails to grant a variance when the facts show that a hardship exists and the variance would not adversely affect others. Cantu, id. at 289. The Cantu court rejected 34 the city's argument that any encroachment into a required setback violates public policy and is support of denial of a variance to encroach into the setback. Id.at 291,n.2. These cases provide strong support for an owner seeking a"minor"setback variance where the owner has a building permit,there is little neighbor opposition and the health, safety risks are small. VII. SPECIALLY TREATED LAND USES The following land uses are accorded special treatment due to statute and/or case law: 1. Churches-See City of Sherman v. Simms, 183 S.W.2d 415 (Tex. 1944)(holding that constitutional separation of church and state prevent church sanctuaries from being excluded from residential zoning districts)Church related uses like schools can be regulated. [add cite to other cases] Application of performance standards is acceptable. [add cite] 2. Sexually Oriented Businesses -See N. W. Enterps. v. City of Houston,27 F. Supp. 2d 754 (S.D. Tex.1998) (on reconsideration); Schleuter v. City of Fort Worth 947 S.W.2d 920 (Tex. App.—Fort Worth 1997,writ denied);TEx.Loc.Gov'T.CODE ANN.§243.003(Vernon 1999&Supp.2001)and Section V.D. of this paper. [add cite to court cases] (SOBs have limited protection under the constitutional right to freedom of expression.) 3. Disabled/Handicapped Housing-See Federal Fair Housing Act,42 U.S.C. § 3601 et seq.; City of Cleburne v.Cleburne Living Ctr.,473 U.S.432(1985);Deep E.Tex.Reel MHMRS v.Kinnear,877 S.W.2d 550 (Tex. App.—Beaumont 1994, no writ). (holding that constitutional principles of equal protection and specific statute protect the disabled from discrimination in housing). 4. Community Homes-See TEx.Hum.RES.CODE ANN. § 123.001 et seq.(Vernon 1999);TEX.PROP. CODE Arne.§202.003(b)(Vernon 1999&Supp.2001). A state licensed community home can operate in any residential area, but is limited to six residents. San Miguel v. City of Windcrest, 2000 WL 1153710 (Tex. App.—San Antonio 2000); City of Friendswood v. Strang, 965 S.W.2d 705 (Tex. App.—Houston[1S`Dist.] 1998,no writ). 5. Home Occupation - Some zoning ordinances specifically allow some level of business activity in residential districts. See Pruitt v. Town of St. Paul,No. 05-96-00025-CV, 1997 WL 466526 (Tex. App.—Dallas 1997)(not designated for publication)for definition of a"home occupation"allowed in some areas zoned for single-family residential use. 6. Low Income Housing - See Arlington Heights v. Metro. Hous. Ass'n, 429 U.S. 252 (1977). Exclusionary zoning may also violate a citizen's civil rights under the Federal Civil Rights Act, 42 U.S.C. § 1983, as well as the limitations of the Federal Fair Housing Act,26 U.S.C. § 3601 et seq. [add cite to court cases] 7. Sianage-See Metromedia Inc.v.City of San Diego,453 U.S.490(1981)(recognizing Constitutional protection of free speech); Eller Media Co. v. City of Houston,No. 01-00-0058-CV, WL 1298901 (Tex. App.—Houston [1S` Dist] 2001) (explaining the various protections of commercial signage in Texas while upholding the Houston Sign Code amortization of non-conforming billboards). 35 8. Liquor Sales-See Dallas Merchs.&Concessionaires Ass'n v.City of Dallas,852 S.W.2d 489(Tex. 1993)(holding that State of Texas preempted the field of regulation of liquor serving establishments). 9. Quarries&Pits-See City of Santa Fe v.Young, 949 S.W.2d 559(Tex. App.—Houston [14th Dist.] 1997,no pet.)(holding that Quarry Safety Act preempted the field for regulation of quarries and pits within 200 feet of roads, but not otherwise). In Wende v. Board of Adjustment of the City of San Antonio, 27 S.W.3d 162 (Tex. App.—San Antonio 2000, pet. granted), the court applied the "diminishing asset doctrine" to recognize that, by their nature, quarries involve a unique land use. Therefore,as a non conforming use, they deserve special treatment allowing the expansion of quarry operations to areas owned as of the time the use become non conforming,rather than be limited to the area being excavated at that time. Id. at 172-3. The court cited numerous decisions in other states and noted that this was a case of first impression in Texas.Id. at 173. 10. HUD Code Manufactured Housing-See Texas Manufactured Hous.Ass'n v. City of Laporte,974 F.Supp.602(S.D.Tex.1996)and National Manufactured Housing Construction and Safety Standards Act, 42 U.S.C. § 5401 et seq. (zoning regulations based on location and impact on values upheld, although safety regulation is preempted). A city may exclude HUD code manufactured housing from certain (but not all)residential zoning districts, if based upon locational rather than construction or safety issues. Atty. Gen. Op.No. 97-002, 1997 WL 113946 (February 19, 1997). Ordinances that treat mobile homes and HUD code manufactured homes are pre-empted by the Texas Manufactured Housing Standards Act,Tex.Rev.Civ. Stat.Ann.Art. 5221f(Vernon 1987 and Supp. 2001),which provides that HUD code manufactured homes must be treated separately from mobile homes. City of Freeport v. Vandergrifft,26 S.W.3d 680(Tex. App.—Corpus Christi 2000,pet. denied). 11. Pawnshops-Licensed pawnshops must be an allowed use in at least one zoning district in a city and may not be subject to a specific use permit requirement. TEX.LOC. GOV'T CODE ANN. § 211.0035 (Vernon 1999). 12. Public Uses-Local regulation of uses by public entities(schools,municipal facilities,utility district facilities, etc.) or quasi public entities (railroads, common carrier pipelines, electric lines, etc.) is severely limited. Such uses cannot be excluded,but might be subject to reasonable regulation,such as building codes.Often safety regulation has been preempted by comprehensive state or federal regulation and oversight agencies. See supra section V.5. VIII. RECENT ZONING CASE LAW(1997-2001) The following summaries are intended to contain all Texas zoning cases decided from 1997 through December 17,2001 based on a WESTLAW search. Unpublished opinions were included as their facts, issues or analysis may be of assistance,although they may not be cited for precedential value. A. Constitutional Issues Schleuter v. City of Fort Worth,947 S.W.2d 920(Tex. App.—Fort Worth 1997,pet. denied.). The City of Fort Worth obtained a permanent injunction against a"sports bar"that featured female dancers dressed in"t-back"bottoms and latex pasties,based on the violation of the zoning ordinance banning sexually oriented businesses featuring female dancers with their breasts uncovered within 1000 36 feet of a residential neighborhood. The bar owner claimed the definition of nudity in the zoning ordinance violated the Texas Equal Rights Amendment;TEX.CONST.art. 1 §3a. The zoning ordinance was upheld as: 1. content neutral (the City's predominate concern was to limit the negative secondary effects of sexually oriented businesses); 2. narrowly tailored(it effectively promotes the City's legitimate goals); and 3. proving alternative channels for communication(the bar owner did not prove insufficient alternative sites). Hallco Texas, Inc. v. McMullen County,No. 04-96-00681-CV, 1997 WL 184719 (Tex. App.—San Antonio 1997,no pet.)(not designated for publication). McMullen County's regulation of the placement of solid waste disposal facilities under Texas Health and Safety Code, section 364.112 was upheld in the face of takings, due process, equal protection, statutory vested rights and state preemption arguments. The Court also dismissed a unique argument that summary judgment is an inappropriate means of dealing with complex land use cases which the landowner based on dicta in Mayhew v. Town of Sunnyvale, 774 S.W.2d 284 (Tex. App.—Dallas, 1989,writ denied),cert.denied,498 U.S. 1087(1991)citing the difficulty in using summary judgment in such cases. City of Boerne v.Flores, 521 U.S. 507(1997). Roman Catholic Archbishop Flores applied for a building permit to enlarge a church in Boerne,Texas. Local zoning authorities denied the permit,relying on an ordinance governing historic preservation in a district which,they argued,included the 1923 mission-style church. The Archbishop's suit challenged the ordinance under the Religious Freedom and Restoration Act of 1993 ("RFRA"). The Supreme Court declared the RFRA unconstitutional, in violation of separation of powers, in that Congress specifically sought to overturn Supreme Court precedent by purporting to change the burden of proof in free speech cases. The RFRA goes far beyond remedying or preventing unconstitutional behavior by prohibiting laws such as the zoning ordinance at issue that merely places an incidental burden on religion. N. W.Enterprises.,Inc.v. City of Houston, 27 F. Supp. 2d 754(S.D. Tex. 1998). The City of Houston's expanded sexually oriented business regulatory ordinance was challenged by affected parties. The court's memorandum opinions on cross-motions for summary judgment and for reconsideration are a primer for challenging and maintaining ordinances regulating sexually oriented businesses. Of primary concern to cities is the extensive discussion of the legislative record necessary for a court to uphold such an ordinance under First Amendment attack. The specific statements made and evidence heard during the legislative discussion on each amendment determined whether the court held that the particular section of the ordinance was content-based or content-neutral. This, in turn, determined the standard of review applied to each amendment. Almost all amendments found to be content-neutral were upheld. 37 Houston was not allowed to increase the distances between sexually oriented businesses and protected areas such as schools, churches, residential areas, etc. because the record of committee and City Council meetings on the ordinance did not show that the City Council considered or had reason to believe that the increased distance would reduce secondary effects of such businesses,such as lowering property values,increased crime,or the spread of sexually transmitted diseases. Among many creative challenges,Plaintiffs postulated that the Ordinance was invalid because it was a zoning ordinance passed in conflict with a 1994 amendment to the Houston City Charter mandating that Houston may adopt a zoning ordinance only after the approval of a public referendum. The court held that the locational restrictions in the amendments are not zoning ordinances,because they were not exercised under a comprehensive plan. A few issues remained unresolved via summary judgment. The court determined that the addition of parks to protected land uses was content-neutral, but that a genuine issue of material fact remained regarding the number of permissible sites for adult entertainment that would be available if this amendment were in force. For the same reason, the court reserved judgment on the new formula concerning how multi-family dwellings count toward determining residential areas. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998). In a unanimous decision, Justice Greg Abbott hit all the constitutional issues raised in a "refusal to rezone"case. The landowner loses on every issue except for the holding that the issues are"ripe for adjudication." Facts: Sunnyvale is a lightly developed,general law city with 1 acre minimum lot requirements in its single family zones(originally intended to address septic tank requirements). Mayhew owned 26%of the land in the City available for residential development. Commencing in 1985, Mayhew began meeting with City officials regarding a proposed planned development of his land at a higher density than the 1 unit per acre requirement. In 1986,the City adopted a Comprehensive Plan reflecting an anticipated increase in population from the current 2,000 to 25,000 by 2006,and 30-35,000 by 2016. Contemporaneously, the City amended its zoning ordinance to allow, upon city council approval, planned developments with densities greater than 1 unit per acre. Later in 1996,Mayhew proposed a planned development of between 3,650-5,025 units(3+units per acre). A professional planning and engineering firm retained by the City reviewed the proposal and determined that it satisfied each of the requirements of the City's zoning ordinance, and therefore,recommended approval. After passing a building moratorium, the planning and zoning commission recommended denial. In late 1986, city council appointed a negotiating committee, including two council members, the mayor and the city attorney to work with Mayhew. As a result,there was"tentative"agreement for a 3,600 unit project. However,due to political pressure brought by citizens on the city council,the city council rejected the planned development in January 1987. In March 1987,Mayhew sued the town and the four council members who voted against the request. Mayhew One: In the first Mayhew case, Mayhew v. Town of Sunnyvale, 774 S.W.2d 284 (Tex. App.—Dallas, 1989,writ denied),cert. denied,498 U.S. 1087(1991),summary judgment in favor of the individual council members was upheld,absolving them of any liability for acting in their capacity as council members on the legislative issue of rezoning. The summary judgment rejecting Mayhew's constitutional claims was reversed and remanded for trial. 38 Trial Judgment for Mayhew: Upon remand,the trial court considered all the possible constitutional claims(state and federal procedural due process,substantive due process and equal protection,as well as taking). Mayhew won across the board,being awarded$5,000,000 in damages plus pre judgment interest and attorney's fees,totaling$8,500,000.00. The trial court entered extensive findings of fact and conclusions of law highly favorable for Mayhew and clearly intended to protect the judgment on appeal,to the maximum extent possible. Reversal on Appeal: The Court of Appeals reversed,holding that the constitutional claims were not ripe for review. Town of Sunnyvale v.Mayhew,905 S.W.2d at 234. In a Supplemental Opinion,the Court of Appeals reviewed the merits of the Mayhew claims in light of the Supreme Court's recent decision Taub v.City of Deer Park, 882 S.W.2d 824(Tex. 1994),cert. denied 13 U.S. 1112(1995) and held that the evidence was factually insufficient to support the trial court's judgment for Mayhew. Town of Sunnyvale v. Mayhew,905 S.W.2d at 259-68. Supreme Court Affirmation of Reversal: The Supreme Court addressed each issue in a decision which is a primer for a constitutional challenge in a refusal to rezone case. Mayhew lost on all issues but ripeness of the case for adjudication. Ripeness: The Court applied federal jurisprudence on the issue of ripeness. Mayhew was not required to follow the general rule requiring a request for a variance after the denial of rezoning, or to make reapplication,since the nature of a planned development includes negotiations which can substitute for the variance requirement. Mayhew reapplying with an alternative proposal or requesting a variance was held to have likely been a"futile"act. Taking: Mayhew hit all the right buttons in asserting constitutional claims. Mayhew's claims were reviewed under federal constitutional standards, although the Court declined to hold that federal and state constitutional claims are the same(Texas Constitutional claims may be broader). The Court held that the trial court's attempt to bind the appellate courts with extensive findings of facts and conclusions of law was not binding on the appellate courts since most of the issues were questions of law. The Court applied the requirement that to avoid a regulatory taking(one where there is no physical taking), a regulation must"substantially advance"a legitimate state purpose. The maintenance of the city's existing character and regulating the type and character of its growth was sufficient to uphold the density limitations. The Court proceeded to determine that the denial of the higher density planned development did not either: 1)eliminate all economic viable use;or 2)unreasonably interfere with the land owner's right to use and enjoy its property. The Court spent several pages considering the"investment expectation"of Mayhew and considered the historic use of their property for agricultural purposes, the existence of zoning since 1963 and the retained value of the land for agricultural and low density housing purposes before concluding there was no investment backed expectation which would support a taking judgment. Other Constitutional Claims: Mayhew's substantive due process,equal protection and procedural due process claims were reviewed and quickly rejected. The Court held that"political pressure," which could be a contributing factor to a denied rezoning,does not violate the landowner's substantive due process rights, so long as the City has legitimate government concerns and the denial was rationally related to those concerns(in this case the effects of urbanization on the City). On the equal protection claim,the Court was unconvinced there were other"similarly situated"land owners treated differently, 39 FUNDAMENTALS OF ZONING Reid C.Wilson I. INTRODUCTION A. Scope of Article This article is intended as a general overview of Texas zoning law. Issues relating to subdivisions (addressed in Rick Triplett's following presentation), environmental matters, Americans with Disabilities Act,utility districts, county land use regulation or other quasi-land use restrictions will not be addressed. A broader overview of land use law generally is contained in Development/Land Use Law, James L.Dougherty,Jr.and Reid C.Wilson, 14th Annual Real Estate Law Conference of South Texas College of Law(1998). Section X.D.provides practical tips for identifying land use issues and alternatives in specific transactions. B. Reference Materials The bible of Texas Zoning Law is Texas Municipal Zoning Law(3RD ed. 1999)published by Lexis Law Publishing, Parker Division, Carlsbad, California (referred to herein as Mixon), the only comprehensive analysis of Texas Zoning Law. It was originally authored by University of Houston Law Center Professor John Mixon, but has been substantially reorganized and by James L. Dougherty,Jr. of Houston and Brenda McDonald of Dallas,Texas.Arthur J.Anderson and William S.Dahlstrom,(both of Dallas,Texas)authored Texas Zoning and Land Use Forms (1992),published by Lexis Law Publishing which contains forms and discussions on governmental requests relating to development. C. Acknowledgments The regulatory principles section of this article is taken from a presentation by James L.Dougherty, Jr. and the author to the 14`h Annual Real Estate Law Conference of South Texas College of Law (1998)and is Mr. Dougherty's work product. II. ZONING A. Zoning Defined Zoning is the comprehensive regulation of land use in a city. Although zoning is commonly considered the geographic division of a city into specified use districts, zoning can accomplish much more. In fact,a zoning ordinance is valid without districts limiting land use. Any more specific definition would not fairly represent the flexibility of modern zoning practices. B. History of Zoning The concept of land use control by cities originated in the early 1900's in the industrialized northeast. The adoption of a comprehensive zoning ordinance by the City of New York in 1916 was generally considered the genesis of the zoning movement. In 1921,then Secretary of Commerce Herbert Hoover 1 appointed a zoning advisory committee which prepared the Standard State Zoning Enabling Act(the "Standard Act"). The Standard Act was promptly adopted, with some variation, in most states, including Texas in 1927. Zoning as a permissive exercise of municipal power was validated by the landmark U.S. Supreme Court case of Village of Euclid v.Ambler Realty Company,272 U.S. 365 (1926). Euclid interpreted the Ohio Zoning Enabling Act,a Standard Act variation,and therefore,was considered to validate all Standard Act derivatives. The Texas Supreme Court upheld the Dallas comprehensive zoning ordinance and the Texas Zoning Enabling Act in 1934. Lombardo v. City of Dallas,47 S.W.2d 495 (Tex. Civ. App.—Dallas 1932)ail d, 124 Tex. 1, 73 S.W.2d 475 (1934). Zoning is universally considered to be the primary and most powerful method for the regulation of land use. Almost every city with a population over 5,000 has adopted zoning. Only a handful of cities in the United States with populations over 100,000 do not have zoning. Interestingly,three large cities in Texas, Houston,Victoria and Pasadena,do not have zoning. Houston has long been a case study for both zoning advocates and critics who each assert that its history supports their position. In November 1993, Houston voters narrowly rejected a proposed zoning ordinance. Although other Harris County cities (Baytown, Alvin, Mont Belvieu and Stafford) recently adopted zoning ordinances,Houston looks to remain free of traditional comprehensive zoning. However,Houston now has eighteen(18)Tax Increment Reinvestment Zones. One has implemented zoning and two(2)others are possible candidates for zoning in the future. III. GENERAL REGULATORY PRINCIPLES A. Mandatory Public Procedures Cities must follow intricate procedures when adopting or amending some regulatory ordinances. For example,a hearing must precede the adoption of platting or zoning regulations. See TEX.LOC.GOV'T CODE ANN., Chapters 211 and 212 (Vernon 1999 & Supp. 2001). The Texas Open Meetings Act requires that all city council meetings be posted in advance and,usually, conducted in public. See TEX. GOV'T ANN., Chapter 551 (Vernon 1999 & Supp. 2001). City charters sometimes prescribe additional procedural requirements such as readings and publication. B. Constitutional Reasonableness Under federal and state doctrines of substantive due process,an ordinance may be challenged if it is "arbitrary,""unreasonable,"or"capricious"or if the means selected do not have a real and substantial relation to the objective. Chandler v.Gutierrez,906 S.W.2d 195,202(Tex.App.—Austin 1995,writ denied)(a rational basis will satisfy due process requirements);see also Smith v.Davis,426 S.W.2d 827, 831 (Tex.1968)(mere difference of opinion,where reasonable minds could differ,not sufficient basis for striking down legislation as unconstitutional);Mayhew v.Town of Sunnyvale,964 S.W.2d 922 (Tex. 1998) ("The Town's concerns regarding the urbanization effects of the development are legitimate governmental interests,and the denial of the development application is clearly rationally related to those interests");Hidden Oaks Ltd.v. City of Austin, 138 F.3d 1036(5th Cir. 1998). C. Takings and Damagings Due process clauses prohibit"taking"of private property without due process of law and, in some cases,compensation. U.S.CONST., amends. V and XIV; Sinclair Pipe Line Co.v. State of Texas, 2 322 S.W.2d 58(Tex.Civ.App.—Fort Worth 1959,no writ). In Texas,the state constitution prohibits "damaging"private property as well as takings. TEX. CONST. art. I, §17 (Vernon 1999 & Supp. 2001). 1. State inverse condemnation theory In the 1970's and 1980's,Texas courts developed a state constitutional right allowing recovery of money damages on the theory of"inverse condemnation."It has been applied when government interferes too much with private property rights,without a physical taking. See City of Austin v. Teague, 570 S.W.2d 389 (Tex. 1978) (preservation of a scenic tract by delaying and denying permits for development); Westgate, Ltd. v. State, 843 S.W.2d 448 (Tex. 1992). The 10-year limitations period found in section 16.026 of Texas Civil Practices and Remedies Code applies to an inverse condemnation action,both regulatory and physical takings. Trail Enters., Inc.v. City of Houston,957 S.W.2d 625 (Tex. App.—Houston [14th Dist.]1997,pet. denied). The Supreme Court has clarified when zoning might constitute "inverse condemnation" or a "taking." Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998) (denial of planned development district that would have quadrupled the town's population held not a taking because it did not totally destroy the value of the Mayhews'property or unreasonably interfere with their rights to use and enjoy their property). Mayhew has been applied in two recent cases, City of Glenn Heights v.Sheffield Development Company,Inc.,61 S.W.3d 634(Tex.App.—Waco 2001, pet.filed)(downzoning was a regulatory taking because in unreasonably interfered with owner's rights)and Champion Builders v.City of Terrell Hills,No.04-99-00779-CV,2001 WL 1580484 (Tex. App.—San Antonio 2001, no pet. h.)(revocation of building permit was not a regulatory taking as it was not a land use restriction,and increase of minimum square footage for apartment units was not a regulatory taking because the owner failed to prove unreasonable interference). 2. Federal takings cases Recent federal cases also recognize a federal constitutional right to recover money damages when police power regulations go too far. See First Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987) and Lucas v. South Carolina Coastal Comm'n, 505 U.S. 1003 (1992). Federal doctrine generally requires that a plaintiff prove that the challenged regulation prevents all economically viable uses of the land. See Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036(5th Cir. 1998);City of Monterey v.Del Monte Dunes at Monterey,Ltd.,526 U.S.687 (1999). 3. Exaction cases So-called"exactions"have attracted increased judicial and legislative scrutiny in recent years.An "exaction"usually refers to a requirement that a developer give something to the government as a condition for a land use approval(zoning approval or a plat approval). Common exactions are street rights of way,easements,utility facilities and parks. a. Parkland dedication. A leading Texas case upheld College Station's mandatory parkland dedication ordinance. City of College Station v.Turtle Rock Corp.,680 S.W.2d 802(Tex. 1984). The court emphasized several factors that helped to support the ordinance. For 3 example, the dedicated land (or cash given in lieu of land) had to be used to benefit the dedicator's remaining land. It had to be used for close-by parks,not diverted for use across town. b. Logical nexus test. Under federal cases,exactions have to be logically related to a legitimate governmental purpose. In Nollan v. California Coastal Commission,483 U.S. 825 (1987), the Supreme Court invalidated the exaction of a beach access easement because there was no logical connection between the demanded easement and the alleged governmental purpose to preserve beach scenery. c. Roughly proportional test. A 1994 Supreme Court case holds that an exaction must be at least "roughly proportional" to the impact of the developer's proposed project, and the government bears the burden of proof. Dolan v. City of Tigard,512 U.S. 324(1994); City of Monterey v. Del Monte Dunes at Monterey,Ltd., 526 U.S. 687 (1999). d. Impact fee statute. By statute,Texas has limited the ability of cities to require cash payments in lieu of physical facilities. So-called"impact fees"are restricted by TEX.Loc.GOV'T CODE ANN. § 395 (Vernon 1999). Note that the definition of an impact fee is fairly broad. 4. Ripeness and Exhaustion Federal cases have required plaintiffs to get final decisions from the appropriate state and local governmental bodies before seeking relief in court. Until there is a final decision,the case is not considered"ripe"for federal intervention. City of Monterey v.Del Monte Dunes at Monterey, Ltd., 526 U.S. 687(1999). In Williamson County Regional Planning Commission v.Hamilton Bank, 473 U.S. 172 (1985), the Court required the plaintiff to seek a variance (and possible compensation under state law)before bringing a federal constitutional case. In Hernandez v.City of Lafayette,643 F.2d 1188(5th Cir. 1981),the plaintiff was required to seek re-zoning before suing for relief under the due process clause. In Mayhew v.Town of Sunnyvale,964 S.W.2d 922 (Tex. 1998),the Texas Supreme Court held that a town's denial of a planned development district, after months of negotiations and studies,was"ripe"for review,even though the landowner did not apply for approval of a smaller or less-intense development, but only as an exception to the "general rule" that the landowner must seek a variance. Plaintiffs must exhaust their administrative remedies before suing in state court, at least in those instances when the administrative officers have the power to grant relief. See Thomas v. City of San Marcos,477 S.W.2d 322(Tex.Civ.App.--Austin 1972,no writ);City of Houston v.Kolb,982 S.W.2d 949 (Tex.App.--Houston[14th Dist.] 1999,pet. denied). IV.TEXAS ZONING STATUTES A. Texas Zoning Enabling Act 1. Power to Zone The Texas Zoning Enabling Act-TEX.Loc.GOV'T CODE ANN. §211 et. seq. (Vernon 1999& Supp.2001),(the"Enabling Act")empowers Texas cities to zone. This delegated power from the 4 state is the exclusive authority of a city to zone. City of San Antonio v.Lanier,542 S.W.2d 232, 234(Tex. Civ.App.--San Antonio 1976 writ ref'd,n.r.e.). The Enabling Act does not specifically define zoning, except to state that zoning regulations are for the purpose of: • promoting the public health,safety,morals,or general welfare; and • protecting and preserving places and areas of historical, cultural or architectural importance and significance. TEX.Loc.GOV'T CODE ANN. § 211.001 (Vernon 1999). Zoning may regulate the following: • height; • number of stories; • size of structures; • lot coverage; • open space; • density; • location of structures; • use of structures; construction,reconstruction, alteration and razing of significant structures in "designated" areas of historical,cultural or architectural importance; and • bulk(if a home rule city). TEX.Loc.GOV'T CODE ANN. § 211.003 (Vernon 1999). Zoning regulation must be adopted in accordance with a"comprehensive plan" (undefined) and be designed to address at least one of the following goals: • lessen congestion in the streets; • secure safety from fire,panic,and other dangers; • promote health and the general welfare; • provide adequate light and air; • prevent the overcrowding of land; • avoid undue concentration of population; or • facilitate the adequate provision of transportation,water, sewers, schools,parks, and other public requirements. TEX.LOC.GOV'T CODE ANN. § 211.004(Vernon 1999). Separate zoning districts with different regulations are authorized as follows: • number,shape and size of districts may be determined by the city's governing body; • each district may have regulations regarding the erection, construction, reconstruction, alteration,repair,or use of buildings, other structures and land; • regulations must be uniform in each district,but may vary between districts; and • each district's regulations must be adopted after reasonable consideration of the following: — character of the district, — suitability of the district for particular land uses, — conservation of values,and — encouragement of appropriate land uses. TEX.Loc.GOV'T CODE ANN. §211.005 (Vernon 1999). 5 Once adopted,a City may enforce zoning regulation as follows: • adopting ordinances to enforce zoning regulations; • violation of the Enabling Act or a zoning regulation is a misdemeanor,the violation of which is punishable by fine,civil penalty,and/or imprisonment,as provided by the City; and • injunction to restrain,correct or abate violation. TEX.LOC.GOV'T CODE ANN. § 211.012(Vernon 1999). Various conflicts are addressed in the Enabling Act: • among conflicting governmental regulations,the stricter prevails(i.e.,zoning does not trump conflicting,more restrictive regulations); • "public service businesses"(e.g.common carriers like pipelines)have vested rights protecting existing property made nonconforming by zoning regulation;and • structures under the"control,administration or jurisdiction"of state or federal governments are exempt from zoning regulation(governmental supremacy issue); • however as of 1999,privately owned structures and land leased to a state agency are subject to the Enabling Act. TEX.Loc.Gov'T CODE ANN. § 211.013 (Vernon 1999& Supp. 2001). An entire zoning ordinance may be repealed by referendum as part of a charter election or if specifically authorized under the City's charter. This provision was adopted at the behest of Houston zoning opponents during the 1993 battle over zoning in Houston. TEX.Loc.GOV'T CODE ANN. § 211.015 (Vernon 1999). 2. Zoning Commission The Zoning Commission is a legislative body appointed by the City Council and may have any number of members. The Zoning Commission's authority is limited to the drafting or recommending of the zoning ordinance and amendments(including planned development districts). It has no involvement in interpretation or the granting of variances or special exceptions. TEX. LOC. Gov'T CODE ANN. §§ 211.007, 211.009 (Vernon 1999). The city planning staff(or building inspection department in small cities)handles day to day administration of the zoning ordinance. A home rule city must appoint a Zoning Commission to avail itself of the powers conferred by the Enabling Act. See TEX. LOC. GOV'T. CODE ANN.§ 211.007 (Vernon 1999); Coffee City v. Thompson, 535 S.W.2d 758, 767(Tex. Civ.App.--Tyler 1976,writ ref'd n.r.e.). If a Planning Commission already exists,it may be appointed as the Planning and Zoning Commission. TEx. Loc.GOV'T.CODE ANN. § 211.007(Vernon 1999). General law cities may exercise zoning power without a Zoning Commission through their City Council. TEx.LOC.GOV'T CODE ANN. §211.007(Vernon 1999). A general law city must look to the general law for its authority to exercise municipal powers and must comply with the statutory requirements of general laws,such as the Enabling Act. Mayhew v.Town of Sunnyvale, 774 S.W.2d 284,294(Tex. App.--Dallas 1989,writ denied). When appointed, the Zoning Commission recommends the boundaries of the various original districts and the appropriate regulations to be enforced therein. It has the responsibility of 6 submitting a report reflecting these recommendations to the City Council after the requisite public hearings. The Zoning Commission also has the responsibility of reviewing proposed changes to the zoning ordinance and forwarding its recommendations to the City Council. TEX.LOC.GOV'T. CODE ANN. § 211.006(Vernon 1999);See Dilbeck v.Bill Gaynier,Inc., 368 S.W.2d 804, 808 (Tex.Civ.App.--Dallas 1963,writ ref d n.r.e.). The Zoning Commission is subject to the Texas Open Meetings Act.TEX.LOC.GOV'T.CODE ANN. §211.0075(Vernon 1999). The doctrine of governmental function does not immunize cities from state and federal constitutional attacks on zoning ordinances. Mayhew v.Town of Sunnyvale,774 S.W.2d at 297. However,individual city council members acting on a zoning request are motivated by legislative concerns and are entitled to absolute immunity from personal liability. Id.at 298. [But see Champion Hills] Additionally, council members may not be compelled to testify in an action challenging a zoning ordinance. Id.; In re de la Garza, No. 01-0398, 45 Tex. Sup. Ct. J. 125, 2001 WL 1424507 (Tex. 2001) (applying the holding in In re Perry, 60 S.W.3d 857 (Tex. 2001), which discusses the policy decisions behind legislative immunity). Cities with over 290,000 population may create neighborhood advisory zoning councils of 5 appointed residents each to provide "information, advice and recommendations to the Zoning Commission on zoning regulation changes affecting the neighborhood. Special notice and hearing is required. The Zoning Commission may overrule an adverse recommendation of the neighborhood council only by a 3/4th vote. TEx.Loc.Gov'T.CODE ANN. § 211.007(Vernon 1999). The following section explains the process for initial adoption of an zoning ordinance, or an amendment to an existing ordinance. 3. Zoning Procedures a. Adoption/Amendment of Zoning Ordinances-Procedural requirements for adopting an initial zoning ordinance or amending an existing zoning ordinance are set forth in TEX.LOC.GOV'T CODE ANN. §§ 211.006 and 211.007(Vernon 1999)as follows: (1) Preliminary Report - Zoning Commission. The Zoning Commission considers the proposed change and makes a preliminary report; (2) Public Hearing-Zoning Commission.The Zoning Commission holds a public hearing on the preliminary report, providing written notice to affected property owners and those owning property within 200 feet of the affected property.This may be a joint hearing of the Zoning Commission and the City Council,if it is desirable to consolidate and expedite the zoning process.In addition,notice of the time and place of hearing must be placed in the city's official newspaper or a newspaper of general circulation in the city at least 15 days before the date of the public hearing; (3) Final Report-Zoning Commission.The Zoning Commission must make a fmal report to the City Council; (4) Final Report- City Council Consideration. City Council considers the report from the Zoning Commission; 7 (5) Public Hearing-City Council. The City Council holds a public hearing,providing the same notice as required of the Zoning Commission above. This requirement can be satisfied by the joint public hearing; (6) Right to Modify Procedure-City Council. The City Council has the authority to modify the typical procedures for adopting a zoning ordinance as follows: (a) The requirement for a public hearing for the City Council can be satisfied by a joint public hearing with the Zoning Commission; (b) The City Council of a home rule city can prescribe,by a 2/3rd vote,the type of notice to be given of a public hearing held by it alone or jointly with the Zoning Commission.Those notice requirements will supersede the notice requirements of the Enabling Act; and (c) By ordinance,the City Council may provide that an affirmative vote of at least 3/4ths of all of its members is required to overrule the recommendation of the Zoning Commission that a proposed change be denied. (7) City Council Adoption. The City Council may adopt the zoning ordinance or proposed change to its existing zoning ordinance in the same manner as for any other ordinance, unless written protest by twenty(20%)percent of the owners of the affected property or property located within 200 feet of the affected property is received. In that event, an affirmative vote of at least 3/4ths of all members of the City Council is required. In addition, general law cities may not adopt a zoning ordinance or change to a current ordinance until at least thirty (30) days after the date of notice to affected property owners. (8) General Law Cities. Some general law cities exercise zoning authority without the appointment of a zoning commission and,therefore,the procedure is simplified,although the requirements for notice and hearing continue. 4. Zoning Board of Adjustment The Zoning Board of Adjustment("ZBA")is authorized by the Enabling Act for the purposes of hearing and deciding only the following issues: • appeals from the administrative decisions including interpretations of the zoning ordinance; • "special exceptions"; • "variances"; and • other matters authorized by ordinance. TEX.LOC.GOVT CODE ANN. §§ 211.008 and 211.009(Vernon 1999). Judicial expansion of the ZBA's power has been limited to allowing a ZBA to supervise the phasing out of non-conforming uses. See White v. City of Dallas, 517 S.W.2d 344(Tex. Civ. App.--Dallas 1974,no writ). Legislation enacted in 1993 authorized a city to delegate"other 8 • matters"to a ZBA by ordinance. TEx.LOC.GOV'T CODE ANN. §211.009(a)(4)(Vernon 1999). One city delegates enforcement to its ZBA.Mont Belvieu Code of Ordinances Sec. 25-96. a. Organization The ZBA is organized as follows: • The board is appointed by the governing body of the city. • The board is composed of at least 5 members. • Members serve two year terms,with vacancies filled for the remaining term. • Each member of the governing body may be authorized to appoint 1 member and remove that member for cause,after a public hearing on a written charge. • A city,by charter or ordinance may provide for alternative members,to sit in place of regular members when requested to do so by the mayor or city manager. • All cases must be heard by at least 75% of the ZBA members (4 out of the typical 5 members). • The ZBA may adopt rules pursuant to an ordinance authorizing it to do so. • The presiding office may administer oaths and compel attendance of witnesses. • All meetings shall be public. • Minutes shall be maintained reflecting each member's vote and attendance. • Minutes and records must be immediately filed and are public. • The governing body of a Type A municipality may act as its ZBA. TEx.LOC.Gov'T CODE ANN. § 211.008 (Vernon 1999). Major cities(effective 2001,those with1,180,000 population or more)may create multiple panels,each of which has the powers of the ZBA.TEx.LOC.Gov'T CODE ANN. §211.014 (Vernon 1999 and Supp.2001). This was originally adopted in 1993 to facilitate the zoning of Houston,then anticipated to be implemented in 1994. b. Interpretation - The city staff(generally a building official at the permitting stage) makes initial interpretations of the zoning ordinance. Where that interpretation is challenged, the ZBA hears and resolves the disputes. TEX.LOC.GOVT CODE ANN.§211.009(a)(1)(Vernon 1999). Appeal of an administrative official's decision to the ZBA is pursuant the following procedures set forth in section 211.010 of the Texas Local Government Code: • The appeal may be brought by a person"aggrieved"by the decision or the city(through an officer,department,board or bureau). • Notice of appeal must be filed with the ZBA within a "reasonable" period after the decision(as determined by the ZBA's rules). A 30 day period for appeal was upheld in Fincher v. Hunters Creek Village 56 SW.3d 815, 817 (Tex. App.—Houston [1st Dist.] 2001,no pet.). • The administrative official whose decision is appealed must immediately forward to the ZBA the papers constituting a record of the action on appeal. • The ZBA sets a"reasonable"time for a hearing and provides notice to the public and the parties. • The appealed decision is automatically stayed pending ZBA action, except in the event of"imminent peril"to life or property certified by the administrative official, in which 9 event the ZBA must affirmatively issue a restraining order after a hearing with notice and "due cause"shown. • The ZBA shall decide the appeal within a"reasonable"period. The Zoning Commission and City Council have no involvement in interpreting the Zoning Ordinance. c. Special Exceptions-Special exceptions modify the normal restrictions of the zoning ordinance on a site specific basis, subject to action by the ZBA. The specific language of the zoning ordinance which allows the special exception will govern the limitations on the ZBA in granting and conditioning the special exception. Any specified type of use which is to be allowed by the Board of Adjustment under certain conditions expressed in the ordinance is a "special exception." West Tex.Water Refiners,Inc.v.S&B Beverage Co.,915 S.W.2d 623, 627(Tex.App.—El Paso 1996,no writ). An example would be the allowance of church use within a residential district, provided that appropriate safeguards to protect the residential character of the area are included within the proposed development plan. Special exceptions should be limited to noncontroversial issues where site specific review is necessary before allowing a particular use. d. Variances-Variances allow deviation from the literal terms of the zoning ordinance if(1)not contrary to the public interest,and(2)due to the special conditions of the property involved, literal enforcement of the zoning ordinance would result in an unnecessary hardship. TEX. LOC. GOV'T CODE ANN. § 211.009 (Vernon 1999); Economic hardship alone is not sufficient reason to grant a variance. Southland Addition Homeowner's Ass'n v. Board of Adjustment of Wichita Falls,710 S.W.2d 194, 195(Tex.App.--Fort Worth 1986,writ ref d n.r.e.). In Texas, variances have generally been restricted by case law to height, area and setback issues and specifically may not modify use regulations. City of Amarillo v. Staff, 129 Tex. 81, 101 S.W.2d 229, 234 (Tex. Comm'n App. 1934, opinion adopted). For example, an apartment may not be allowed in a single family district, but the side yard setback of an apartment may be modified where specific facts (such an unusual property shape)make it an unusual hardship to require literal compliance and the proposed alternative is consistent with the intent of the zoning ordinance. A recent case held that preservation of trees on a building site qualified as a special circumstance supporting a building set back variance. Southland Addition Homeowner's Ass'n, 710 S.W.2d at 195. e. Authority. The ZBA can reverse or affirm, wholly or in part, or modify the order, requirement,decision or determination that is appealed to it. TEX.LOC.GOV'T CODE ANN. §211.009(Vernon 1999). A concurring vote of 75%(typically 4 out of 5)of the members of the ZBA is necessary to reverse the appealed administrative official's decision or to decide in favor of the applicant on a variance or special exception. TEx.LOC.GOV'T CODE ANN. § 211.009(Vernon 1999). [Remand too] f. Appeal of ZBA Decision. Appeal of the decision of the ZBA is by writ of certiorari pursuant to the following procedures set forth in TEx.LOC.GOV'T CODE ANN. § 211.011 (Vernon 1999). • The city (through an officer, department, board or bureau) a taxpayer or a person "aggrieved"by a decision of the ZBA may appeal that decision; 10 • The appeal is to a district court, county court or county court at law; • The plaintiff presents a verified petition stating that the ZBA's decision is illegal and specifying the grounds of the illegality; • The petition must be presented within 10 days after the date that the ZBA's decision is filed in the ZBA's office; • The court receiving the petition issues a writ of certiorari to the ZBA,specifying a date (at least 10 days in the future)when the contestant's attorney must be provided with a verified statement reflecting all material facts upholding the ZBA's decision together with appropriate documents (which need not be originals, but may be certified or sworn copies); • The writ of certiorari does not stay the proceedings on the decision under appeal, but, upon application and notice to the ZBA,the court may grant a restraining order if due cause is shown; • After the return of the writ of certiorari is received by the court and the contestant's attorney,the court may determine if testimony is necessary,and whether testimony may be taken by an appointed receiver. See Hagood v.City of Houston,982 S.W.2d 17(Tex. App.--Houston [1st Dist.] 1998, no pet.) for discussion of the contestant's right to present evidence;and • The court may reverse or affirm, in whole or in part, or modify the decision that is appealed. The court may reverse the ZBA's decision if the court determines that the facts are such that the board,as fact finder,could have reached only one decision,but abused its discretion in reaching the opposite conclusion. See City of South Padre Island v. Cantu,52 S.W.3d 287,291(Tex.App.—Corpus Christi 2001,no pet.)(citing City of San Angelo v.Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67,71 (Tex. 1945)). The court may also remand the cast to the ZBA for further actions taking into consideratin the courts judgement. Wende v.Board of Adjustment of San Antonio,27 S.W.3d 162, 173 (Tex.App.—San Antonio 2000,pet. granted). g. Quasi-Judicial Nature of ZBA. Courts have disagreed over whether a ZBA is a quasi-judicial or quasi-legislative body. See Shelton v.City of College Station,780 F.2d 475,479(5th Cir. 1986) (Nine judge majority decision held the ZBA's decision on a variance was quasi- legislative[p.479-83]while a five judge dissent claimed the action was quasi-judicial[p.486- 90]), Board of Adjustment of Dallas v.Winkles, 832 S.W.2d 803, 805 (Tex. App.--Dallas 1992,writ denied)(ZBA actions are quasi-judicial),Board of Adjustment of Corpus Christi, 860 S.W.2d 622,625(Tex.App.—Corpus Christi 1993,writ denied). Dispite the Fifth Circuit position,most appellate courts agree that the ZBA is quasi-judicial. See Galveston Historical Found. v. Zoning Bd. of Adjustment of Galveston, 17 S.W.3d 414, 416 (Tex. App—Houston[1st Dist.] 2000,pet.denied). h. Disqualification of ZBA Member. The test for disqualification of a ZBA member from a vote is whether the member has an "irrevocably closed mind." Shelton, 780 F.2d at 486. In Shelton,the fact that a ZBA member was also a member of a church which actively opposed a variance before the ZBA(which was denied)did not require the disqualification of the ZBA member. Id. i. Immunity from Suit. The members are a ZBA are immune from suit arising out of the performance of discretionary duties in good faith within their scope of authority. Champion 11 Builders v.City of Terrell Hills,No.04-99-00779-CV,2001 WL 1580484*4(Tex.App.—San Antonio 2001,no pet.h.). However,the officials are personally liable for their negligence if bad faith is shown and the 4 traditional negligence elements a re established: (1) duty, (2) breach of that duty,(3)proximate cause,and(4)actual damages. Id. The interpretation of an ordinance is discretionary. Id. Good faith is determined objectively such that the officials actual, subjective belief is irrelevant.Id. at*6.A reasonable official standard is applied.Id. Negligence is not the same as bad faith and a negligent official acting in good faith is immune. Id. The issue of good faith is a fact question for the jury.Id. If an official acted in bad faith, the fact that there may be a hypothetical,legitimate rationale for their action will not prevent liability. Id. at*7. B. Special Zoning Statutes The Texas Local Government Code contains a number of quasi-zoning statutes under Title 7, "Regulation of Land Use,Structures,Businesses and Related Activities,"which are in addition to the Enabling Act(Chapter 211).The use of these statutes does not require a municipal zoning ordinance adopted pursuant to the Enabling Act. See SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1278 (5th Cir. 1988). These specific"zoning"statutes are summarized below. 1. Moratorium on Property Development-TEX.LOC.GOV'T CODE ANN. Sections 212.131 et.seq.; In 2001,the legislature adopted limitations on development moratoria. TEX.LOC.GOV'T CODE ANN. § 212.131 et. seq. (Vernon Supp. 2001). The limits apply only to moratoria imposed on property development(new construction on vacent land)affecting only residential property(zoned "or otherwise authorized"for single familyor multi-family use). TEX.Loc.GOV'T CODE ANN. §212.131-.132(Vernon Supp.2001). A moratorium does not affect vested rights under TEX. Loc.GOV'T CODE ANN.CHAP.245 (Vernon 1999) or common law. TEX.Loc.GOV'T CODE ANN. § 212.138 (Vernon Supp. 2001). The limits include the following: • Required public hearings with notice • Limits on when temporary moratoria may commence • Deadline for action on a proposed moratorium • Required findings in support of the need for the moratorium • Limitation of moratorium to situations of shortage of(i)essential public services(defined as water,sewer,storm drainage or street improvements),or(ii)"other public services,including police and fire facilities" • The moratorium automatically expires after 120 days from adoption,unless extended after a public hearing and specified findings. • A mandatory waiver process with a 10 day deadline for a city decision(vote by the governing body)from the date of the city's receipt of the waiver request. TEX.LOC.Gov'T CODE ANN. §212.133-.137(Vernon Supp. 2001). 2. Municipal Authority to Enforce Deed Restrictions - TEX. LOC. GOV'T CODE ANN. Sections 212.131 et.seq.; In 2001,the legislature moved former TEX.Loc.Gov'T CODE ANN.CHAP.230(Vernon 1999) to the Subdivision Act as Sections 212.131 et. seq(thus conflicting with the numbering of the foregoing Moratorium provision. 12 A city with(i)an ordinance requiring uniform application and enforcement of Section 211.131 et. seq.,and(ii)either(a)no zoning,or(b)over 1,500,000 population, may enforce deed restrictions affecting the use, setback, lot size or type and number of structures by suit to enjoin or abate a violation and/or seeking a civil penalty.TEx.LOC.Gov'T CODE ANN. § 212.131-.137(Vernon Supp. 2001). [Cite the City case] The legislature added a provision stipulating that deed restriction enforcement is a governmental function. TEX.LOC.Gov'T CODE ANN. §212.137(Vernon Supp. 2001). This addition is significant,since cities acting in a governmental function are not typically subject to equitable defenses such as laches,waiver,estoppel. Those type of defense are the most typical defenses asserted in a deed restriction case by the defendant. With the granting of the governmental function veil of protection, an otherwise unzoned city which fully enforces the authority granted in Section 212.131 et. seq. has, effectively, zoned itself into 2 zones: (i) the residential zone,where residential use is required,as well as the related performance standards of setback,lot size,and type or number of structures,and(ii)the other zone,with no such regulation. With the governmental function mantle,enforcement of residential deed restrictions will become more automatic, as the majority of deed restriction case law supporting defendants become irrelevant. That enforcement becomes, effectively,the same as judicial enforcement of zoning. Municipal attorneys enforcing residential deed restrictions will analogize to zoning caselaw for precedent relating to enforcement rights. A city may enact an ordinance requiring that notice of these rights be given to the owners of deed restrictive property. TEX.LOC.GOV'T CODE ANN. §212.135(Vernon supp.2001);see City of Houston Code of Ordinances Sections 10.551 et. seq. In order to help city staff discover the existence of deed restrictions,the submission for a commercial building permit requires a certified copy of any deed restriction affecting the subject property. This same obligation applies to any subdivider of property, whether commercial or otherwise, and to any person who proposes to perform substantial repair, or remodel a commercial building located within a subdivision or to convert a single family residence into a commercial building. 3. Municipal Comprehensive Plans-TEx.LOC.GOV'T CODE ANN. Chapter 213; In 1997,the legislature adopted Texas Local Government Code,Chapter 219,which specifically authorized cities to adopt a comprehensive plan for the long-range development of the city. In 2001,this chapter was renumbered as Chapter 213. The content and design of the plan,and its relationship to the city's development regulations is within the city's discretion to determine,either by charter or ordinance. A comprehensive plan may be adopted or amended as follows: • public hearing with opportunity for public testimony and submission of written evidence; • review by the Zoning Commission and city staff; • additional requirements may be established by the city, and must be followed; • existence of other plans,policies or strategies does not preclude adoption or amendment of a comprehensive plan; • the map relating to a comprehensive plan shall contain the following statement: 13 "A COMPREHENSIVE PLAN SHALL NOT CONSTITUTE ZONING REGULATIONS OR ESTABLISH ZONING DISTRICT BOUNDARIES." 4. Municipal Regulation of Housing and Other Structures-TEX.Loc.GOV'T CODE ANN.,Chapter 214; The section was substantially reorganized in 2001 by using it as a gathering point for various scattered statutes relating to city regulation of housing. Cities are authorized to establish building lines(i.e. setback lines)along streets(formerly Chapter 213). The provisions of former Chapter 214 were strengthened in 2001. Retained in new Chapter 214, these provisions provide cities broad power to regulate dangerous structures.The city must adopt an ordinance with minimum standards which provide for notice and public hearing. Dangerous structures may be ordered to be removed or demolished. A non-profit organization with the demonstrated record of rehabilitating residential properties may be appointed as a receiver for dangerous structures should the owners not appear. Plumbing,sewers and swimming pools may be regulated. Liens may be assessed and foreclosed. Energy conservation measures can be required. In the event of natural disaster,rent control can be adopted by ordinance,if approved by the Texas Governor. See Texas Local Government Code,section 54.044,added in 2001,for non-criminal alternative enforcement procedures which allow a hearing officer to impose penalties, cost and fees(no limits set). By failing to appeal(a frequent occurrence in these hearings),the defendant is deemed to admit liability. Appeal to the municipal court is required to be perfected within 31 days(similar to the 10 requirement for writ of certiorari appeal from a ZBA decision). In 2001,the legislature mandated the statewide adoption(with appropriate local modifications) of the International Residential Building Code and the National Electrical Code. This action addressed building industry concerns with different building codes in different jurisdictions. 5. Municipal Regulation of Businesses and Occupations- TEX.LOC.GOV'T CODE ANN., Chapter 2 Cities may regulate a wide array of activities,some relating to land use such as tanneries,stables, slaughterhouses,animal breeding,markets and amusement shows. 6. Regulation of Signs by Municipalities-TEX.LOC.GOV'T CODE ANN., Chapter 216; Cities may require the relocation,reconstruction or removal of any sign within its limits or extra- territorial jurisdiction, subject to compensation or amortization. A home rule city may license, regulate,control or prohibit the erection of signs or billboards by its charter or ordinance,subject to the specific provisions of Section 216, within its territorial limits and extra-territorial jurisdiction. 7. Municipal Regulation of Nuisances and Disorderly Conduct - TEX. Loc. Gov'T CODE ANN., Chapter 217; 14 Cities are authorized to define and prohibit"nuisances"(not defined). General law cities may do so within their territorial limits,while home rule cities may do so within their territorial limits and 5,000 feet outside those limits. 8. County Zoning Authority-TEx.LOC.Gov'T CODE ANN., Chapter 231; Counties are provided various levels of zoning authority in the following geographical areas:Padre Island,Amistad Recreation Area,Navy/Coast Guard facilities near certain lakes, around Lake Tawakoni and Lake Ray Roberts,around Lake Allen Henry and Post Lake,the El Paso Mission Trail Historical Area,and around Lake Sommerville. Some provisions,such as those applicable to Padre Island and the El Paso Mission Trail, emulate the Enabling Act, while others are significantly more restricted in scope. 9. County Regulation of Housing and Other Structures -TEX.LOC.GOV'T CODE ANN., Chapter 233; The section was substantially reorganized in 2001 by using it as a gathering point for various scattered statutes relating to county regulation of housing and structures. Coastal counties adjacent to another county with a population of 2,500,000 (i.e. Galveston County)may require the repair or removal of bulkheads or other shoreline protection structures it determines to be dangerous(former Chap.239). The owner is then assessed for the cost and the assessment is secured by a lien on the property. Violation is a Class C misdemeanor. Counties are authorized to establish building and setback lines outside city limits(former Chap. 233). However,setback lines adopted by a city to be effective within that city's extra-territorial jurisdiction will supersede those adopted by a county. 10. County Regulation of Businesses and Occupations-TEX.LOC.GOV'T CODE ANN.,Chapter 234; In 1993,the legislature granted counties the power to establish visual aesthetic standards for the following problematic uses: • auto wrecking and salvage yards, • junkyards,recycling businesses, • flea markets, • demolition businesses,and • outdoor resale businesses. Existing businesses are to be granted a reasonable time to comply,not to exceed 12 months. The county may sue for a civil penalty(limited to$50 per day initially,but increasing to $1000 per day after 30 days)(formerly Chap.238). Counties may also regulate slaughterhouses(former Section 240.061, et. seq.) 15 Thelma A. Gilliam, TRMC, CMC From: Bruce Watkins <bruce @watkinslawhouston.com> Sent: Monday, January 14, 2019 3:44 PM To: Thelma A. Gilliam, TRMC, CMC Cc: Susan Sample; Mardi Turner; Bob Higley; Kellye Burke; Kevin Boyle; Alan Petrov; M. Christopher Peifer; Debbie Scarcella Subject: Joint Public Hearing Jan. 14, 2019, on AT&T zoning request Attachments: 2017 Comprehensive Plan (Adopted May 22 2017).pdf; Fundamentals of Zoning, Reid C. Wilson, Wilson, Cribbs, Goren & Flaum, P.C., University of Texas Law CLE, 6th Annual Conference, Land Use Planning Law, 2002.pdf; City of Pharr v. Tippitt, 616 S.W.2d 173 (Tex., 1981) (1).pdf Ms. Gilliam, Three more documents for inclusion in the record of this evening's joint public hearing please: 1. The City's Comprehensive Plan adopted May 22, 2017; 2. An excellent 2002 paper by AT&T's counsel which includes discussions regarding required strict compliance with statutes, including the requirement that zoning ordinances must follow the city's comprehensive plan (page 23), spot zoning and the criteria against which re-zoning of a specific property for the benefit of a single property owner must be assessed (pp. 25-26), planned development districts defined as necessarily including "one or more residential clusters" (p. 27), standing required to challenge a zoning ordinance (p. 27), and the rules and procedures governing the writ of certiorari appeals from Zoning Board of Adjustments decisions, such as Case No. 2016-51800, in which AT&T and the City ZBA are parties, (pp. 30-31). 3. The opinion of the Texas Supreme Court in the case of City of Pharr v. Tippitt, 616 S.W.2d 173 (Tex.1981) which is discussed in the spot zoning portion of Mr. Reid's paper described above, and attached, which includes, inter alia,the following relevant statements of the Court: "First:A comprehensive zoning ordinance is law that binds the municipal legislative body itself. Art. 1011c. ....The law demands that the approved zoning plan should be respected and not altered for the special benefit of the landowner when the change will cause substantial detriment to the surrounding lands or serve no substantial purpose ....The duty to obey the existing law forbids municipal actions that disregard not only the pre-established zoning ordinance, but also long-range master plans and maps that have been adopted by ordinance" Id. at 176,177, (emphasis added) "The term, "spot zoning", is used in Texas and most states to connote an unacceptable amendatory ordinance that singles out a small tract for treatment that differs from that accorded similar surrounding land without proof of changes in conditions." Id. at 177 Best regards, Bruce Watkins 4220 Ruskin City of West University Place, Texas 77005 bruce@watkinslawhouston.com (713) 222-6837 1 �t af,Y rt '.. - f 'A..1 ' ^rr sue, y„.Ili p J'l'llL " 0. as wY 1c' 4k a qy + M ',iii. 4 4 r °' k ..yy € -7---... X ,( f Fj, j{([ {j�',yf fj�.�� + F{ ki tit�" p� z 'L # �' (T `.,� 1 t t (f'!' +1pf*�(V. '*(() (��l�°'�,ilj� 1 1 4i p, kw x � nq WEST y/ i ♦ E *! ,, 4. � a.,". t Fri ai' Y+w+u*iyi .,..: -:, y . '� tt� � stk B�K • 4 .. MA W'§yr+. «kk.A ''� 3 ;'„ l ,� City of HE West University NISIVIE Place .... . . ...... . d May 22, Adopted 2017 KENDIG----.) KEAST D 1415 Highway 6 South-Suite D-100 i Sugar Land,TX 77478 I Phone:281.242.2960 C O L L A 8 O R A T I V E June 12,2017 Mr.M.Christopher Peifer City Manager-City of West University Place 3800 University Boulevard West University Place,Texas 77005 Dear Chris: We are pleased to submit this final version of the newly updated City of West University Place Comprehensive Plan, as adopted by City Council on May 22, 2017. The updated plan document was prepared in accordance with our Professional Services Agreement with the City. The plan update process enabled the City's Zoning and Planning Commission(ZPC) to fulfill its responsibility under the City Charter to "recommend to the Council plans for the physical development of the city." This includes considerations involving land use and housing, transportation, public infrastructure and facilities, and parks and recreation, among others. The updated plan also provides essential support for the City's zoning and other development regulations as Texas Local Government Code Chapter 211 specifies that"zoning regulations must be adopted in accordance with a comprehensive plan."The new plan: • Reinforces key planning themes and priorities of local officials and residents, including: protecting West U's primarily residential character, managing external influences on an enclave city (e.g., traffic,nearby redevelopment, storm drainage),emphasizing the safety of pedestrians and cyclists,and preserving Town Center as a community focal point and gathering place,anchored by West University Elementary. • Reflects community and leadership input obtained through a series of small-group discussion sessions (October 2016);a community-wide public meeting and related online survey that drew 110 responses (October-November 2016); and six work sessions with the ZPC(September 2016-March 2017),which culminated in a joint public hearing before the Council and ZPC(April 2017)prior to plan adoption. • Includes background and statistics that provide a snapshot of West University Place as it was in 2016, and relative to the time of the last plan update in 2000 (an Existing City Report included in this binder also highlights community accomplishments since 2000, and ongoing and new opportunities and challenges for the years ahead). On behalf of our firm, we sincerely appreciated this further opportunity to lend our professional skills and experience to your ongoing community planning efforts.We look forward to seeing the continued enhancement of West University Place in the years ahead. Respectfully submitted, KENDIG KEAST COLLABORATIVE A. t^-.t..QQ, Gary Mitchell,AICP President www.kendigkeast.com Elk Grove,CA 1 Sturgeon Bay,WI ( Sugar Land,TX ACKNOWLEDGEMENTS West University Place Comprehensive Plan City Council Susan Sample Mayor Bob Kelly Mayor Pro Tern Burt Ballanfant Councilmember Brennan Reilly Councilmember Mardi Turner Councilmember Zoning and Planning Commission Richard Wilson Chair Michael McEnany Vice Chair David Kuykendall Secretary John Cutrer Member Bob Higley Member Mac Jensen Member Mimi Tsai Member City Staff M. Christopher Peifer City Manager Alan Petrov City Attorney Thelma Gilliam City Secretary Dave Beach Public Works Director Debbie Scarcella City Planner Community Planning Consultant Ken dig Keast Collaborative Bret C. Keast,AICP Owner I CEO Gary Mitchell,AICP President (Project Manager) Luis Niunez Senior Associate Janis Burall,AICP Senior Associate Thanks Also To... Individual residents, property owners, business owners and others who participated in and contributed their insights and ideas to the City's comprehensive planning process. KENDIG MAST ACKNOWLEDGEMENTS(May 2017) C O L L A B O R A T I V E TABLE OF CONTENTS West University Place Comprehensive Plan As Codified in Appendix D, City Code of Ordinances Article I. -Purpose 1 of 6 Section 1.01. -Introduction. 1 of 6 Section 1.02. -Mission Statement. 1 of 6 Article II. - Historical 1 of 6 Article III. - Demographics 2 of 6 Section 3.01.-Population Trends. 2 of 6 Article IV. - Land Use 2 of 6 Section 4.01. -Single-Family Residential. 2 of 6 Section 4.02. -Non Single-Family Residential. 3 of 6 Section 4.03. -Parks and Open Space. 3 of 6 Section 4.04. -Zoning Ordinance. 3 of 6 Article V. -Peripheral Development 3 of 6 Section 5.01. -General. 3 of 6 Section 5.02. -Signs. 4 of 6 Article VI. -Traffic 4 of 6 Section 6.01.-General. 4 of 6 Section 6.02. -Maintenance. 4 of 6 Article VII. Public Utilities&Facilities 4 of 6 Section 7.01. -General. 4 of 6 Section 7.02. -Lighting. 4 of 6 Section 7.03. -Sidewalks. 4 of 6 Section 7.04. - Facilities. 5 of 6 Article VIII. -Town Center 5 of 6 Section 8.01.-General. 5 of 6 Section 8.02. -Town Center Commercial District. 5 of 6 Article IX.-Local Public Institutions& Places of Worship 5 of 6 Section 9.01. -General. 5 of 6 Section 9.02. -West University Elementary. 5 of 6 Article X. -Recycling& Energy 6 of 6 Existing City Report Supplement to Comprehensive Plan Community Accomplishments 1 of 19 Physical Characteristics and Context 3 of 19 Illustration: Nodes 5 of 19 Illustration: Districts 6 of 19 Illustration: Paths 7 of 19 Illustration: Edges 8 of 19 Key Numbers for West University Place 10 of 19 Other Essential Statistics for West University Place 12 of 19 Key Opportunities and Challenges 14 of 19 II KENDIG KEAST TABLE OF CONTENTS(May 2017) C O L L A 8 O R A T I V E APPENDIX D-COMPREHENSIVE PLAN As adopted by City of West University Place Ordinance No. 2033, passed on second and final reading May 22, 2017. Article I. -PURPOSE Section 1.01.- Introduction. The Comprehensive Plan, hereafter referred to as the "Plan," is designed to promote the general health, safety, and public welfare of the residents of West University Place. Its purpose is to guide the long-range development of the City and good government. The Plan is a policy document to be used as a framework for implementing community goals and objectives and a guide for decisions involving capital improvements, zoning and subdivision matters, neighborhood safety, community appearance, regulatory issues and other matters of similar importance. Unless otherwise specified by the City Charter, the relationship between this Plan and the City's various development regulations is defined by separate ordinance. That ordinance, which is codified in Chapter 1 of the City's Code of Ordinances, also provides standards for determining the consistency required between this Plan and development regulations and establishes procedures for adopting and amending a comprehensive plan. Section 1.02.- Mission Statement. Inasmuch as the City is almost completely developed and most of its land area is devoted to single- family residential uses, the Plan's goal is to maintain and encourage the traditional single-family residential character of West University Place as a friendly, safe, economically stable and attractive community. It is also intended to minimize any adverse effects of non-residential development and uses. Maintaining a strong sense of neighborhood and community are fundamental priorities, as is preserving the mature tree canopy that is a signature element of the community's character and image. Crime prevention and residential security should remain a prime focus of municipal government. To the extent it can, the City should also safeguard the community against external factors that can affect residents' quality of life, such as intensive development and redevelopment in adjacent jurisdictions, major street and infrastructure projects by other public agencies, and lingering blight removal and revitalization needs in the vicinity of West University Place. Article II. -HISTORICAL West University was created from an area of swamp land west of Rice University off Old Spanish Trail. In 1912, the governor of Tennessee, Ben Hooper, bought 750 acres for a community of country homes outside the City of Houston. The area was advertised as an exclusive neighborhood, but it was not initially popular. Most of the first residents were families who moved to Houston so the men could work at Rice University as professors. Many publications advertised West University Place as an attractive cozy neighborhood. Development began in the early 1920's. The area was described by many as a virtual treeless prairie. In the Second Addition of West University Place, the builder tried to make the area seem more prestigious by naming the streets after colleges and universities. Many of the original homes were two-story structures, small cottages, and bungalows. A rural-like atmosphere derived from numerous fruit, flower and vegetable gardens. West University Place was incorporated in 1924 with approximately 40 families. Incorporation brought higher taxes, a city hall, fire station, street improvements with curbs and gutters, and organized police and fire protection. As a Home Rule Charter city, the municipality has a Council-Manager form of government. Since the 1980's, West University Place has experienced significant private urban development. Many of the original bungalows and cottages have been replaced with large two-story custom-built homes. ADOPTED May 22,2017 Page 1 of 6 Article III. -DEMOGRAPHICS Section 3.01.- Population Trends. (a) The population of West University Place was greatest in the 1950's when the count peaked a bit over 17,000. A low of 12,010 was reached in the 1980's. The last census count in 2010 showed 14,787 residents and 5,548 housing units. Demographic Indicators for West University Place(2000-2015) Median Age 19 Age 65 Year Population Age or Less or More 2015 15,400 42.4 30.9% 11.0% (estimated) 2000 14,211 39.3 31.2% 7.6% SOURCE:U.S.Census Bureau,Texas State Data Center,Houston-Galveston Area Council. (b) This Plan recognizes that, as a largely built-out community, West University Place will not show any significant gains in population or housing units in the years ahead. In fact, there could be fewer single-family homes in the future if more buyers choose to purchase and consolidate adjacent lots for additional space and yard area. Census 2010 reported 5,548 housing units in the city, and as of October 2016, the City showed approximately 5,500 active residential water accounts. As part of its regional growth forecast through 2040, the Houston-Galveston Area Council (H-GAC), the regional planning agency for the Houston metropolitan area, projects that West University Place will have 15,588 residents in 2020, relative to a 2015 estimate of 15,400 residents as indicated in the Existing City Report for this Plan. For the later decades, H-GAC projects that West University Place will just surpass the 16,000 mark in 2030 (16,012), as part of the ongoing growth trajectory of the entire Houston area, but will then fall back to nearly 15,000 by 2040 (15,034). If the housing quantity in the city varies little, as expected, then a key indicator to watch will be persons per household to account for the relatively minor fluctuations in total population. Related factors behind such variations can include ebbs and flows in the rate of family formation, family sizes, turnover in two-person senior households and one-person widower households over time, and the extent of young adults and/or seniors living for a time with other family. Article IV. -LAND USE Section 4.01.-Single Family Residential. (a) As the community's first generation single-family detached garage residences become a smaller share of the housing stock, the City should encourage the preservation, maintenance and, where possible, the enhancement of such homes through targeted ordinance provisions that provide reasonable relief from typical zoning standards without compromising protection of adjacent residential properties. (b) The City should continuously monitor the density, placement, quality and nature of any new residences, replacement residences and additions to insure consistency and compatibility to existing development. The City should preserve existing mature trees and pervious land surfaces on lots as prescribed by the City's development regulations. (c) Single-family residential districts must be protected from commercial and non-single family uses. Buffering, visual screening and noise control should be required between residential districts and both non single-family residential and commercial land use. (d) Ingress and egress to higher intensity land uses should be designed so that non-local traffic will be discouraged from passing directly through single-family residential districts. ADOPTED May 22,2017 Page 2 of 6 (e) No areas zoned and developed as single-family residential development should be rezoned for any other use or type of redevelopment. Section 4.02. - Non Single-Family Residential. (a) Non single-family residential development, in the form of medium to higher density cluster development, may only be permitted on the periphery of the City or in areas properly zoned. (b) The general orientation of non single-family residential land use should recognize the sensitive relationship to its abutting residential district. (c) All uses adjacent to single-family residential districts must be properly buffered, screened and regulated as to parking, height, density and noise control. Section 4.03. - Parks and Open Space. The City parks and recreation areas generally contribute to the health, safety, property values and well-being of the residents. The City should continue to adhere to its then current Parks and Open Space Master Plan along with an ongoing maintenance plan that serves the needs of the residents. The City should evaluate future opportunities to acquire additional land within the city limits as it becomes available. Among the priority considerations for the Traffic portion of this Plan should be safety enhancements for children and adults who cross major streets to go to and from City parks. Section 4.04.-Zoning Ordinance. (a) The City's zoning ordinance shall serve as the regulatory resource for the development of all land use and other general physical development considerations. By careful and consistent application of the zoning ordinance, the City shall seek to preserve and enhance property values while preserving the traditional single-family residential character of the community and quality of life for its residents. (b) The existing zoning ordinance should be periodically reviewed and amended as necessary. (c) Zoning ordinances shall be complementary to the building code standards. (d) Unless otherwise specified in the City Charter, the relationship between this Plan and the City's various development regulations, including the zoning ordinance, is defined by separate ordinance. See Section 1.01, above. Article V. - PERIPHERAL DEVELOPMENT Section 5.01. -General. (a) The City should encourage the maintenance and upgrading of existing structures and ensure high quality, compatible development and redevelopment in peripheral areas of the City as elaborated in item (b), below. The periphery of the City not located on major thoroughfares (as well as Bissonnet Ave. within the City) is zoned for single-family use and should remain as such. (b) The peripheral area zoned for non single-family, commercial use should not be expanded. Commercial uses which are compatible with close proximity to single-family residential neighborhoods and are appropriately buffered, screened and regulated as to parking, height, density and noise control may be allowed. Signs and lighting should be restricted to prevent visual pollution. Zoning procedures, such as planned development districts, should be considered as a tool to encourage redevelopment. Factors relevant to a peripheral property should include: major thoroughfare traffic characteristics, historic use, adjacent residential properties, size, ingress and egress, the nature of the existing development on the major thoroughfare, and all other factors that might negatively impact single-family residential uses. (c) The City should consider ways to encourage and support the redevelopment of peripheral areas. It should also coordinate with the Cities of Houston and Southside Place regarding the major thoroughfares within those jurisdictions. ADOPTED May 22,2017 Page 3 of 6 Section 5.02. -Signs. (a) The City's boundaries should continue to be clearly identified with distinctive street signs to visually distinguish the City of West University Place from the cities of Houston, Bellaire, and Southside Place. (b) All signs should be strictly regulated to prevent visual pollution. Article VI. -TRAFFIC Section 6.01.-General. West University Place experiences local traffic, congestion and personal safety issues that stem, in part, from its position as an enclave City amid the increasingly populous and intensively developed central area of Houston. The City should continue to encourage the separation of pedestrian and vehicular traffic in the existing roadway system and safe walking and biking practices. Since new roadways are unlikely, the City should monitor, assess and make recommendations relating to traffic flow including pedestrian, bicycle and related safety issues, especially in Town Center around West University Elementary, as well as other key streets and intersections across the community. Section 6.02. - Maintenance. Street and road maintenance and repair should have constant high priority. Repairs should be done efficiently, with a minimum of discomfort and inconvenience to residents, and coordinated with management of infrastructure projects. Article VII.-PUBLIC UTILITIES& FACILITIES Section 7.01. - General. As an enclave City, West University Place has only partial control of its storm water management, which ultimately depends on the downstream capacity of drainage channels and receiving waters managed by other public agencies. Within the city limits, the City should closely monitor drainage matters to encourage the efficient evacuation of storm water so as not to affect neighboring lots. No new development should be allowed within the City unless the required public utilities needed to support such proposed development are in place. The City is encouraged to explore innovative ways to conceal, as in the case of personal wireless service facilities, satellite communication appliances, and solar arrays, and to have disused wires removed from utility poles and relocate utilities underground where feasible so as to minimize impact upon City streetscape and public ways. In all aspects of its capital projects and maintenance programs, the City should consider "green infrastructure" design methods and Low Impact Development practices where appropriate and cost effective. Section 7.02.- Lighting. The City completed the Streetlight Project in 2009 which installed approximately 2,000 streetlights throughout the City with a focus on providing safer vehicular and pedestrian movement. Maintenance of this investment and possible enhancements to the lighting remains a focus going forward. Section 7.03.-Sidewalks. The City completed the Sidewalk Master Plan which installed sidewalks throughout the community to create a more pedestrian-friendly environment. Maintenance of this investment remains the focus going forward. ADOPTED May 22,2017 Page 4 of 6 Section 7.04. - Facilities The City should continue to utilize and maintain its municipal land and facilities in accordance with its then current Facilities Master Plan to ensure efficient operations and flexibility for future adjustments or expansion. Article VIII. -TOWN CENTER Section 8.01. -General. Approximately a 25-acre area which includes West University Elementary, the City's administration building and related facilities, West University Baptist Church, Harris County Library Branch, West University Methodist Church and the retail area on Edloe constitute the Town Center. Most interaction between residents occurs in this area through municipal functions, educational activities, shopping, religious activities/programs and youth sports. Much of the small town atmosphere so prized by residents of the City derives from the interactions in the Town Center. The Town Center is a mixed use area, containing government, education, religious, recreation and retail uses. The Town Center and its existing uses should be preserved and enhanced, especially the valued green space and athletic fields around West University Elementary given their importance to community interaction and Town Center aesthetics. Expansion should be allowed only where appropriate so as to preserve a positive impact on the residential area, based upon an individual consideration of the particular expansion. As part of enhancing Town Center as a community focal point, opportunities for more public art installations within Town Center should be pursued as appropriate. Section 8.02.-Town Center Commercial District. (a) It is expected that businesses in the Town Center Commercial (TCC) zoning district will continue to provide services to the local market for the foreseeable future. Property owners will be able to continue operation under the Prior Nonconforming Use Exception, subject to compliance with all applicable requirements of the zoning ordinance, or may redevelop in accordance with the latest zoning regulations. The City should monitor land uses, business operations, and parking patterns in the TCC and periodically evaluate the positive and/or negative impacts of the TCC on residential property values in the City in order to determine whether further amendments to the zoning regulations applicable to the TCC are warranted. (b) The City should make usual and necessary capital improvements to support incremental or complete redevelopment in the TCC. Article IX. -LOCAL PUBLIC INSTITUTIONS& PLACES OF WORSHIP Section 9.01.-General. Residents of the City support and enjoy many local public institutions and places of worship. Official City policies should recognize their value and benefits. Needed upgrades to aging buildings should be encouraged while avoiding residential encroachment and adverse effects on nearby homes. Section 9.02.-West University Elementary. Due to its size and location in the Town Center, and its popularity with residents and as a draw for prospective residents, the City should encourage the enhancement of West University Elementary in both its physical facilities and quality of educational experience. The City should exercise all possible efforts to encourage H.I.S.D. to maximize resource allocation to West University Elementary. ADOPTED May 22,2017 Page 5 of 6 Article X. -RECYCLING &ENERGY As a community that prides itself on aggressive recycling and energy conservation program efforts, the City should continue to encourage and facilitate the systematic collection of renewable materials. The City should establish policies to implement environmental measures. ADOPTED May 22,2017 Page 6 of 6 EXISTING CITY REPORT West University Place Comprehensive Plan The purpose of the Existing City Report is to summarize current community planning issues and trends in West University Place. This is intended as context for the Comprehensive Plan update process, as well as a basis for determining priority items to be addressed through the plan update. The report is based on: Discussions with City Council and the City's Zoning and Planning Commission during September- October 2016. Community input obtained through an initial public meeting (on October 13), a series of three informal small-group discussion sessions with interested residents (on October 18), and an online survey available to residents on the City website from mid-October through the end of November. Review of the City's previous Comprehensive Plan from 2000 and other background study completed by the City's community planning consultant, Kendig Keast Collaborative (KKC). Community Accomplishments Through early discussions with the City's elected officials and the Zoning and Planning Commission, the following list was compiled of community accomplishments since the 2000 Comprehensive Plan. The second column in the table indicates where these topics were mentioned in the 2000 Comprehensive Plan, if at all: Accomplishments Link to 2000 Comprehensive Plan Reconstructed streets* Section 7.01, General (under Article VII., Public Utilities) Sidewalk improvements* Section 7.03, Sidewalks Section 8.02(b),Town Center Retail District Better street lighting* Section 7.02, Lighting Section 8.02(b),Town Center Retail District Ongoing zoning administration for Section 4.01, Single Family Residential protection of residential areas Section 4.02, Non Single Family Residential Section 4.04,Zoning Ordinance Section 5.01, General (under Article V., Peripheral Development) Article VIII.,Town Center Upgraded parks and recreational facilities* Section 4.03, Parks and Open Space Recreation Center Not mentioned specifically. Improvements to City facilities* Section 8.01, General (under Article VIII., Town Center) Town Center streetscape Section 8.02(b),Town Center Retail District KENDIG KEAST 1.'rwGLV 1JAV i�G�T EXISTING CITY REPORT(11.07.16) I Page 1 of 19 C O t L A B O R A T I V E Accomplishments Link to 2000 Comprehensive Plan Series of three bicycle/pedestrian bridges Section 8.02(b),Town Center Retail District across Poor Farm Ditch to Edloe Street (indirect link in terms of overall pedestrian/bicycle access to Town Center) Tree canopy preservation through Section 7.03,Sidewalks(passing reference regulatory and urban forestry measures related to sidewalk projects) (and a 25+year run as a Tree City USA) West University Elementary(ongoing Section 8.01, General (under Article VIII., community and HISD support) Town Center) Section 9.02, Education Facilities Blight removal and HISD school campus Not mentioned specifically. improvements along Stella Link Road (near West University Place but to the south within the City of Houston) * Items with asterisks were also cited by community survey respondents. The City's planning consultant suggested several more items for the list: Ongoing, significant investments in upgrades to and rebuilds of single-family homes that further bolster overall property values in the community. Commercial renovations that have occurred along Kirby Drive (e.g.,Village Place center, Potbelly's restaurant) and are viewed as successful, beneficial additions to the community. Securing establishments like Tiny's No. 5, Little Matt's and a Whole Foods Market(plus other upscale grocers in the vicinity)that are a good fit for the "West U" culture. The community's ability to maintain the highest possible Insurance Services Office (ISO) rating, through the efforts of the City's Fire and Public Works departments, which benefits property owners through reduced insurance rates.As of 2016, West University Place was one of only 60 cities nationwide and 18 in Texas that have a "1" rating on the ISO scale—among some 48,000 U.S. cities rated by ISO. The 2000 Comprehensive Plan largely provided policy statements and general direction for the City's development regulations, capital improvements planning and other relevant City functions and initiatives. The following items are more specific outcomes that were identified as community priorities in the 2000 Comprehensive Plan: Updated Parks and Open Space Master Plan (2015) as Comprehensive Plan Section 4.03, Parks and Open Space, stated, "The City should develop and adhere to a master park and maintenance plan that serves the needs of citizens." Updates and amendments to aspects of the City's zoning regulations addressing all forms of development other than single-family detached housing (adopted by City Council in March 2015), as Comprehensive Plan Section 4.04(b), Zoning Ordinance, stated, "The existing zoning ordinance should be frequently reviewed and amended as necessary."Other interim updates are considered and adopted, as appropriate. The Town Center Ad Hoc Committee Report(January 2011), despite some later controversy and ongoing community debate, did flow from Comprehensive Plan Section 8.02(a),Town Center 1111 ) KENDIG KEAST EXISTING CITY REPORT(11.07.16) I Page 2 of 19 C O L L A B O R A T I V E Retail District,which stated, "Techniques to encourage and support redevelopment should be explored."This process ultimately led to some of the zoning ordinance amendments adopted in 2015,as cited above. Further study and amendment efforts(e.g., related to Town Center parking requirements)were ongoing at the time of this Comprehensive Plan update process. Physical Characteristics and Context As part of assessing the physical scenario for community planning in West University Place, the project consultants prepared a series of diagrams that focus on five core elements as identified by Kevin Lynch, a renowned urban planner and keen observer of effective community design: 1. Nodes: Significant destinations or activity centers that attract people and generate outbound trips. 2. Districts: Identifiable areas within a community set apart by a distinct character. People sense they are entering/leaving a district as they move along paths. Nodes and/or landmarks are often focal points within districts. 3. Paths: Routes by which residents and visitors reach destinations and/or move across and through a community. Paths are an important part of a community's"skeleton." 4. Edges:A distinct physical break point within or at the perimeter of a community. Edges are sometimes barriers that disrupt community cohesion. Incompatible "edge conditions" are a key focus of urban planning and zoning. 5. Landmarks: Visual elements that draw the eye and help to orient residents and visitors. A community may become known for one or a few key landmarks. Some are landmarks because they are unique, some because of their size and visibility, and some for both reasons. Diagrams associated with the first four of these five elements are included on the series of fold-out pages that follow. Workshop discussions with the City's Zoning and Planning Commission (ZPC) confirmed that West University Place has few high-profile landmarks, especially of the type that would catch the eyes of individuals from some distance outside the community. However, ZPC members noted that elevated water storage towers bearing the City logo draw some attention to the community (e.g., at the southeast corner of Westpark Drive and Wakeforest Avenue, where the City's elevated tower is in prominent view of traffic along Interstate 69/US 59 and nearby areas, and another elevated tower just south of Bellaire Boulevard near the Edloe Street intersection). The City's Recreation Center is also highly visible to passersby along Bellaire Boulevard. ZPC members identified West University Elementary as probably the most notable landmark structure internal to the city. f '^., ..:. S r .. - .. `^k° y a p •!r -mow_, i •`.' Westward view along Westpark Drive,showing a West University Place elevated water storage tower highly visible within central Houston. [Source:Google Maps Street View,www.google.com/maps,accessed November 4, 2016.] KENDIG KEAST EXISTING CITY REPORT(11.07.16) I Page 3 of 19 C O t t A $ O a A T l V E [This Page Intentionally Blank] l�ls KEAST EXISTING CITY REPORT(11.07.16) I Page 4 of 19 C O t 1 A B O R A T ! V E - I • This diagram highlights example nodes of activity within West University Place(blue symbols). lJ - Zoning and Planning Commission s members also identified the cluster Buffalo Commercial of religious uses along Bissonnet D - Street west of Buffalo Speedway as Allusion another busy node. E west U ti wµ Also highlighted are external nodes jpa ( ¢' } "-" and notable developments just ` outside of the community(red t r wesla an 4 h i symbols)that are amenities for S West residents(e.g.,Rice Village(. �' '- 'ti - ' However,in combination,they also (°` °, ' ,• `�' - • I f r?- - 1 t}}} -- reflect the increasing intensification r ' 1 S t i. . .. ''' ' ,... ., of development and E 3.i ,f t t � _ redevelopment within central Vlouston✓' that makes West U L ' t ' ! resident s value even more their eir 1," i r r u, l , I relatively low-intensity community ity ij t ! a 1f1fe4 st �1.1!ver}Sll Y Place ,_ Rice Village setting. S- ( , - -t TOWN-CENTER: ,I 4 - � , ' ., ,,>West 0-Elementatty Colonial iSarklPoal 1 >Sports y �' t , ...a . _> Edloe'commercial. # I t .`City facilities , k a •, .>Places+of-Worship >Vlfest U library Whole. No - ec Cenci° _ enter 'St. Mark's E.pt iSt. o'pat ` t t_. Alexan Southside Southside Place Circle Crain Square Kelsey-Seybold Clinic KE VDIG KEAST TXIST,NC,!ITV REPORT/II 0,Is:I P;ig,5 o IR CallA11011Arl VI 1 This diagram highlights that Town D - � , Center is the only true district within West University Place—but an essential community gathering place valued by residents. Also highlighted is a portion of the S Kirby Drive corridor,at the northeast corner of the city,where commercial development on the 1w z; west side of Kirby within West U i y r and on the east side within the City -,. .. f• d t. } t:- "- of Houston frames this busy street.•R . ^y- ' Klrby The point was made that,aside •,; Commercjal from West U's blue street signs, I »-- , , -. - - there is little else to distinguish West U from Houston for passersby , -;, ° '•-' ' t on Kirby Drive not aware of the _ � t� C -`Plumb , jurisdictional boundary. r A c, k i - The 2000 Comprehensive Plan,in {$` •^ - j Article V,Peripheral Development, I i . . .r '` ivi�i E^51��1„ t;'S't y_` ace _tw. stated,"The City's boundaries e111 y 3 should be clearly identified to S ..;- 'S 4.. T,. 4 f 1 } . visually distinguish the City of West fbWYt' G'IiQI' Cr University Place from the cities of 3T° t` Houston,Bellaire,and Southside I -' # - _ r Place„ 1 i • t , R' KENDIG KEAST , f%iStiN(i 11111,REPORT ltt O)tbl 1 P;iµcof 5 19 t! P The aerial image underlying this diagram highlights that West University Place residents A experience both the benefits and downsides of a community with a classic"gridiron"street pattern. T - On the one hand,a grid system B1550flnet St provides to disperse traffic and H provides many options—or paths_ l� ,• a r 1"" ♦♦ for moving about the community and reaching destinations. L 1 V -'.- + ! t i - However,this pattern also provides -' a" ;' trf numerous links to the local street et network at West U's edges,which I-- -... '- _ i '- 1 ! Q fosters some amount of cut- . f "' - 3-- �. - }T _ through traffic and contributes to j,.f „_I' t,,,. <,-. y.' 4'} ...x , # _..'. a1 security and residents' dcrime 4 <a ' "`a ' } concerns. t ( _ •, ' ° , Three major arterials are at West • "I {{{ V _ F U's edges and provide pathways to -d other central Houston destinations: d - i Q - - 1 ^ Rice - _ , 1 Bissonnet Street on the north, rrl_ -. ` 5f3 Rice Blvd. 1 ! (2)Kirby Drive on the east,and _ ', I e.;,x 4 (3)Bellaire/W.Holcombe ,. ..1;!:: t Orr ! s ,u-'- ... •.r i Boulevard o i c B n the south. University blvd ' w Wesleyan Street and especially■` g • ` .1 t ? - 1 ,t 1 Buffalo Speedway provide paths for a,. '' i^ V I• 4 I '- r - ® north-south traffic within and , ro s� , through T„ , "C3 t ( rough the community. h h ' } _' i Rice and University boulevards are v ` 4 �"�' '0 t ( }. ■", s- the most significant east-west t,. ■ (, t 2 Ll l f paths within the city,particularly ;�` ■ - ,. between Town Center and the Rice P ) t r 4✓ /If :"f"<°' ',I.� - Village area to the east.Various s y �� d other streets can be highlighted as v 4 } both internal paths and potential n -I' ' - Vu .1 Blvd - magnets for cut-through traffic,but W Holcombe Blvd West Point,College,Auden and #„ Wakefores[are highlighted on the diagram. 1�C�lV�IV 1Vs�57 EXISTING❑TV RFPOR1(II 07 1611 Pap 7of19 1 1 .•�,1 This diagram highlights physical features that,in some cases,create a.. ,,y -ice'. t !r ,- r .., • edges which reinforce West U's jurisdictional limits but,in other cases,establish edges within the community. GThe external edges include: 1.N '" - • The major streets highlighted as E . . outbound and inbound paths on the previous diagram(Bissonnet, Kirby and Bellaire/Holcombe). s - ?r The railroad and utility corridor • on the west side. • The southern portion of Poor .. . .. � � � -< � .- Farm Ditch that is the shared . -'-. jurisdictional boundary with - L j.: Southside Place. ) .. • Lot lines to the west of Auden " - I Street,south of Town Center, -, $.,-, �, --�.�'•} that are on the jurisdictional �1-Z- t�l ate? C7U_./.t''It ;: (. boundary with Southside Place =ey„ (rear lot lines in Southside and side lot lines in West U). v _ r t.3..:':', r - - , Academy Street north of Bissonnet y�,k "_ is another external edge as homes L,, M .yye ' along the west side in West U are in "T V j close proximity to the rear of the n.:S. a u�l .1"-. •; r% -, large Weslayan Plaza retail center. •— _ a.;-.- 4J ;y a Buffalo Speedway and Weslayan i-r E, j., E - ` , t/1 Street are internal edges due to the 1.,D 1 ,.- J RI - ,' traffic volumes they carry. d•+ -11" ra Ai' Green arrows indicate locations where edges are overcome to some extent,such as where: Q - - ` ' • Both West U and Houston have �;' single-family homes at the top of N the West U"chimney'and "s T--- d +«, •Ilaire Blvd V(Holcombe Blvd across Kirby north of Holcombe. m • Three ped/bike bridges provide , ,.,;. _�* ,,*t=,•w"; links over Poor Farm Ditch. tK>NDIC,FAST exis'■'. r1v REPORT(ti,n,f®)1a".Pr,of14 11;740 r., 36,720 it t t 17,520 so,“leV,1 Se W'c Akbaris BO. <, tc+"'" .i. i* iitmisi Rd 3,150 i,C"..,..L'.,T.t.,i_i""• LA j. % 47. a. i ". Scrtctel OW t Suttiet ti - Statset tom 0 t t'tt .i,.1 y, .(. ii. rtittton it -, „oft ', Nottingham St ,% • tzeitttgil it E - ts-- Q...)., i RoexotitNA St A fto Pd Ristinhood I ., , teretv St 2 bloe„Aa St &owing 5c •tt e -.. Ttsvjiry SE t 7 44- t Arttald St Trifilytvy SI. I t y'" teciS Tatiglei'it ' itT4‘e V's - Mackie Si Caedge St Pi...trt SC w,- rti t f Lat.:::SI :v.; oth.", /Georgetown it ; Boticilvi Si t Rite 04t1 "'OT t - Ricci Shid -,'": It Rice IStot 'I 9 7,■-fk,s3',41 , trtalt04 St 131.34C L114940 ' ,,,,?(') 5,850 6,190 Amh*""I'm Lo ' Actrottictit St T ;• t; ,lr,volliy Blvd. , tirtgirtctitty tliit 5,990 / itiaketotate Rd 12,650 I .., g Porritiv-ton i...y Vryth, Doke St R- ,, 1 ,, Noting t-ri Spar;c t .., tiooptv St ' Outictri Si t 1; I-At ishms Walt a, AcIdim sisliartoiti Si ict- '4 irti Rititibtite,t St 7 Watt,itii i',1 .c. ti •'' - C.rotelittcy it tit..,-kri wi.,,,Dt il 1 to tAtittemt.it Once'ST §, ' , i 1 t 2,7100,,,,,,5, Cso neipt St ; Artwrkle St SoutIvittr blvd , q NOey St It "E 1., iiiis te iP,,;,t,i'c,c.i' Waccivirtivth Si Dactsitt St ili c.4.1,6t 60 , C ascw. 1,32. 0 32,070 4,880 880 4.f. ...• t t Bivd T W 14okorytt*Bhid 15W1a,ro Witt s, With regard to paths,the illustration above shows 24-hour traffic counts at selected locations in and around West University Place as collected by the Texas Department of Transportation (newest available counts from 2012 at green symbol locations;counts collected by the City of Houston at blue symbol locations are not included as they were from 2006). It is hoped that future traffic count efforts will include locations along Buffalo Speedway given the volume of traffic it carries through the city. [SOURCE: Houston Regional Traffic Count Map, Houston-Galveston Area Council, http://ttihouston.tamu.edu/hgac/trafficcountmap/TrafficCountMap.html,accessed October 13, 2016.] N ' 111 KENDIG KEAST EXISTING CITY REPORT(11.07.16) I Page 9 of 19 COLLABORATIVE ,' { (pad } t ] 11. $ 1 '' '' 1 L 1 .¢. .. .A . - fill ._ f (it -- f . ) _ 1 - --- _, _ - I - :. -° _ € _-I 1. I--- i._...: .-f _C m I : ; f Fft i i ..r..;....., 3 -M g -�a I' f i. 1.. F k 1- - ---- 4 1 1k 1. -.:7--------:-E7-7,-- I , = ,, d]; .I _ _ ITS # 1 _- 1.---1 1._. f . - - .. 4 M ._ 1 i . [ l =)I h Zi ; • f l ( , - . 1 f .J -.... l y x 4aw.a., .�wr . r f — , - _, y a I I I 111114,i,1 I,I,1 N.1111,1,I i..1$Vii Subdivision and Zoning Map 1 I 0 r:7 °�� With regard to edges,the City's official map of zoning districts illustrates the various district boundary locations where other types of land use abut single-family residential neighborhoods(e.g., blue commercial areas relative to light yellow and tan residential areas),as well as where differing intensities of residential use are near one another (e.g., peripheral districts other than light yellow and blue that are near Bissonnet on the north, Kirby on the east, and West Holcombe on the south). Red dashed lines were added in two locations to: (1)highlight the overall scope of the Town Center area(including educational and civic uses and places of worship),and (2)to indicate where single-family home lots abut the Recreation Center site at the city's southwest corner.The zoning map may be viewed and explored in more detail via the Planning Division page on the City's website. [SOURCE:City of West University Place, http://westutx.gov/DocumentCenter/View/638,accessed October 13, 2016.] Key Numbers for West University Place 15,400 The estimated population of West University Place in 2015. This number is based on an average of population estimates from three sources: (1)the U.S. Census Bureau, (2)the Texas Demographic Center, where the State Demographer is based (at the University of Texas at San Antonio), and (3) the Houston- Galveston Area Council (H-GAC), the regional planning agency for the Houston metropolitan area. The individual estimates are shown below in Figure 1, Population Estimates, 2000-2015, along with the Census year population counts for 2000 and 2010. 1� KENDIG KEAST EXISTING CITY REPORT(11.07.16) I Page 10 of 19 �If C O L L A B O R A T I V E FIGURE 1: Population Estimates,2000-2015 Census 2000(April 2000) 14 11 Census 2010(April 2010) 1 ,787 Houston-Galveston Area Council (2015) >R; 14.739 Texas Demographic Center(January 2015) 15 730 US Census Bureau(July 2015) 15,741 13,000 13,500 14,000 14,500 15,000 15,500 16,000 SOURCES: Regional Growth Forecast:2015-2040,Houston-Galveston Area Council,May 2016. Texas Demographic Center(University of Texas at San Antonio),Population Estimates and Projections Program(May 2016 release). Annual Estimates of the Resident Population:April 1,2010 to July 1,2015(May 2016 release).U.S.Census Bureau, Population Division. 42.4 The median age of West University Place residents in 2015. This is notably higher than the statewide median age of 33.9 years and the national median of 37.4 years. The community's median age as of Census 2000 was 39.3 years. As of 2015, the share of the population age 19 or younger was 30.9 percent, which was little changed from 31.2 percent in 2000. However, the senior population age 65 or older had increased from 7.6 percent of the local population in 2000 to 11 percent in 2015. Across all of Harris County, as of 2015, the population age 19 or younger was nearly identical to West University Place at 30.3 percent. However, the senior population age 65 or older countywide was somewhat lower at 8.7 percent, relative to 11 percent locally. SOURCE: U.S.Census Bureau,2010-2014 American Community Survey 5-Year Estimates. 8.4% The share of Asian residents in West University Place as of 2015. This is the most notable change in racial composition since 2000, when the Asian share was 4.7 percent. The White population share has decreased from 92.4 percent in 2000 to 87.5 percent in 2015, and all other categories remain roughly the same. Additionally, the share of residents who identify themselves as being of Hispanic or Latino origin was 5.9 percent as of 2015. Growth in this population segment has been significant in recent decades in many parts of the nation and across Texas, where the Hispanic or Latino origin percentage was 38.2 percent as of 2015. Shown below in Figure 2, Race Composition of Population, 2010-2014, is the broader racial composition in West University Place over this recent five-year period (persons who identify as being of Hispanic or Latino origin may fall into one or more racial categories). OURCE:U.S.Census Bureau,2010-2014 American Community Survey 5-Year Estimates. It (al) d KENDIG KEAST EXISTING CITY REPORT(11.07.16) I Page 11 of 19 C O L L A B O R A T I V E FIGURE 2: Race Composition of Population, 2010-2014 Some Other Race, Two or More Races, 0.9% 2.2% American Indian or Alaska Native,0.2% Asian, 8.4% Black or African American,0.8% White,87.5% $6,185,974,556 The total appraised value of all property in West University Place in 2016. The City's Year 2000 budget document stated that total assessed value was $1.73 billion at that time, up from $1.57 billion in 1999. While inflation has to be factored in, the newest figure above the $6 billion mark was cited by various community leaders and residents as a key indicator of the value that continues to accrue in the city from new and renovated residential properties, as well as from other commercial and civic investments. SOURCE:Finance Department,City of West University Place. Other Essential Statistics for West University Place Compiled below in Table 1, Community Indicators for West University Place Relative to Harris County, are other numbers that capture the unique nature of the community and its residents, especially when compared to the same indicators for all of Harris County. TABLE 1:Community Indicators for West University Place Relative to Harris County West University Place Harris County Mean Travel Time to Work= 18.1 minutes 27.7 minutes Work at Home =7% 3.2% Employed in Management, Business,Science 34.5% and Arts Occupations=76.9% Median Household Income=$207,429 $53,822 High School Graduate or Higher=99.1% 79.1% Bachelor's Degree or Higher=88% 29% Graduate or Professional Degree=50.2% 10.3% i1T11 IKENDIG KEAST EXISTING CITY REPORT(11.07.16) I Page 12 of 19 C O t l A 9 0 R A T E V E West University Place Harris County Dwellings Built Since 1980=61% 52.7% Dwellings Built Before 1950=32.2% 14.6% Single-Family Detached Dwellings 57.4% =94.5%of all dwellings Owner-versus Renter-Occupied Dwellings 55.7% =87.5% Average Household Size in Owner-Occupied 3.07 Dwellings=2.84 Median Value of Owner-Occupied Dwellings $133,400 =$815,700* *82.3%valued at$500,000 or higher. 8.1%valued at less than$300,000. Moved Into Dwelling Since 2000=59.2% 75.8% Dwelling Units with 3 or More Vehicles 17.2% = 24.1% SOURCE:U.S.Census Bureau,2010-2014 American Community Survey 5-Year Estimates. KENI7IG 1�AST T��, EXISTING CITY REPORT(11.07.16) I Page 13 of 19 C O t t A R O R A T I V E Key Opportunities and Challenges From the means of leadership and community input to date cited at the beginning of this report, itemized below are the community planning topics mentioned most often through these discussions. The table also captures associated opportunities and challenges expressed for each item. Topic Opportunities Challenges Town Center(TC) > Still the best opportunity—and > Those who value West U venue—for maintaining a "small Elementary,sports activities and town atmosphere" in West U civic/recreational facilities but do (and those who enjoy the feel and not like commercial in the TC mix vibrancy of the area even when it is (and are willing to drive outside the busy). city for most shopping needs, and do > Those who do prefer to have some not see it as a tax base need as in small-scale, community-oriented other cities). and contemporary restaurants and > Those who prefer a smaller footprint shops available within the city and for the Edloe commercial area (and accessible by bike or on foot—with other areas)than exists now—or no appropriate limits for residential commercial at all through a phased protection and quality that matches transition to low-density residential West U's residential quality. or park use overtime. > Those who see the Edloe scenario > Those who do not want to attract as the best opportunity to leverage more non-residents into the walkability in West U and apply the community(to restaurants whether City's zoning"to manage reasonable high-end or fast food,shopping, redevelopment at an appropriate places of worship,etc.)—"if you scale" amid homes—"could see a make it too fancy..." farmers market there with our > Those concerned about an aging and demographics, and a small parking potentially no longer viable structure at one end or in the commercial area in the center of the middle"to overcome the parking community,which could lead to issue. vacancy and/or blight in the years > Those who call for a "balancing of TC ahead (only certain buildings/ pressures"and support for properties upgraded to date)— businesses and places of worship "what would you put there,or zone that are valuable parts of the it for, instead?" community and need to upgrade > Those who see church growth as their structures and properties. a particular challenge for West U > Potential to address housing needs if growth means residential of residents in their senior years in encroachment, and who want the TC area if the economics work to see public process and church- ("age-in-place"opportunity versus community interaction when having to leave city) — difficult proposals have to be "development community would decided on. love to do senior housing in West U > Differing perceptions of TC traffic as they have nearby," but also some and parking"problems,"their concern if senior housing is too sources, and best and viable ways to dense, rental versus ownership, resolve them. and if it adds to parking pressures. KEN DIG DIG KEAS 1 EXISTING CITY REPORT(11.07.16) I Page 14 of 19 C O L L A B O R A T I V E > Suggestion of using more of TC footprint for West U Elementary expansion given its popularity and limited capacity—but warning by others that sports fields are sacrosanct and need to maintain green space in TC. Peripheral Commercial > No voices speaking against the > Concerns about any commercial Development current Comprehensive Plan policy renovations or upgrades that would of prohibiting any expansion beyond amount to intensification of the use current areas of commercial use on the same site—"the challenge of (especially along Kirby Drive), making it new again without making although some question whether it bigger." residential use fronting on Kirby still > But also concerns about"semi- makes sense. derelict"commercial properties in > Clear resident support for zoning some edge locations around West U protections that limit impact of (and difficulty of getting variances commercial uses on nearby needed for feasible renovation)— residential (e.g., driveway location, "Want commercially-zoned property adequate parking, screening, litter to be developed and competitive ... control),although desire to see want them all to be successful better definition of allowed including Town Center." commercial uses. > Those who view it as a matter of Recognition that ongoing land value and economics and/or for improvements to residential the market to determine (has to properties"will take care of itself," make financial sense for the while there is more opportunity to business owner to upgrade or the grow the tax base through upgrades property owner to redevelop the to nonresidential properties,which site, as well as to stay in business at would fund better public services current location in the meantime). and capital projects. > Need to maintain sight visibility for drivers in all cases, including on older sites that have not redeveloped. Residential Protection > Those who prefer that West U > Those who prefer no further housing and Zoning Policies remain and stand apart as "the only development other than detached truly single-family residential single-family residential and would community in central Houston." like to see even some current Potential for somewhat lesser townhome areas converted to density even in single-family single-family homes where possible. detached residential areas when > Perceptions by some that zoning multiple lots are purchased and enforcement could be stepped up. combined for more yard area. > Concerns about home maintenance, especially where senior residents live in older homes,which goes beyond zoning and leaves some wanting ways to help seniors who have lived in West U a long time. ._........ ,�,.. KEN DIG,111 IKENDIG KEAST EXISTING CITY REPORT(11.07.16) I Page 15 of 19 C O L L A Ø O R A T I V E Gradual Loss of > Opportunities to do more through > Those who view it as a matter of Original Housing Stock zoning and historic/landmark land value and economics, and/or preservation tools as other cities and for the market to determine. parts of the country with older > Those who see it as a worthy goal, housing do. but not practical (too difficult for > Opportunity for more open/green builders to do rehabilitation,too space from properties with older expensive a proposition for homes that are not worth younger/older people who would maintaining(as owners pass away). benefit from a small home size). > Those who cite physical factors > Those concerned about over- (proliferation of"McMansions"with regulating and driving people away less architectural character and from West U ("the character is from variation, more and higher privacy the people now versus the charm of fences than in past, loss of tree older homes"). cover) as contributing to a reduced > Those who believe well-maintained sense of community and smaller homes add to the character neighborhood compared to earlier of the city but are concerned by years living in West U. inadequate maintenance of some older homes. Traffic and Safety > Potential installation of high-visibility > Those concerned about increasing (i.e., solid painted,flashing light) traffic in and around the community, crosswalks at key points along busy but recognition by others of general Buffalo Speedway, especially at or traffic volume and congestion near Sunset Boulevard for safer increases with ongoing population navigation to/from Wier Park. growth and development across > Potential installation of a fourth Houston. bicycle/pedestrian bridge across > Those concerned about cut-through Poor Farm Ditch,this one south of traffic,especially by motorists Town Center to provide a link wanting to avoid congestion on between West U and Southside Weslayan and Buffalo Speedway, Place. and the extent of West U streets > Those who want West U to continue easily accessible to non-resident to appear and project itself as an traffic—to the point of considering open community rather than street closures or traffic diverters. "walled" or"gated,"and with > Those not overly concerned about recognition that street closures and traffic issues but wanting to ensure traffic calming measures too often that emergency vehicles can reach just shift speeding and traffic their destinations promptly. problems to another location. > Those concerned about additional > Opportunity for more public traffic generated by the student education on safe walking/biking headcount at West U Elementary practices and risk reduction, as well (with later confirmation that the as better homebuyer notification of school is limited to five temporary traffic and parking realities in some classroom buildings since 2013,for a areas of West U. period of five years,with review by > Opportunities to enhance walking the City's Zoning Board of and biking even more in West U and Adjustment and Building Standards get people outdoors. Commission). 1/► KENI� G I KEAST EXISTING CITY REPORT(11.07.16) I Page 16 of 19 1� C O t L A B O R A T i Y E > Comments about residents who choose not to use sidewalks and enjoy walking in streets as part of "small town feel." On-Street Parking > Suggestions to explore methods > Narrowness of some City streets. used in Southside Place and other > Partly due to lifestyle changes— cities to restrict or clear curb parking more vehicles per household today periodically(e.g.,for street cleaning, relative to years past, and also trash/recycling collection, etc.). bigger vehicles, plus more delivery > Recognition by some of the "mixed vehicles with growth of online blessing" of on-street parking for its retailing. traffic calming benefit—unless the > More vehicles parked on the street street is too narrow to begin with. when homeowners use their garage space for other purposes. > Lack of consensus during previous City attempts to craft potential solutions. Storm Water > Opportunities to incorporate "green > Mention of periodic street flooding Management infrastructure" and Low Impact and the lack of improvements to (beyond certain areas Development(LID)techniques into Poor Farm Ditch relative to drainage with greater issues) future improvements and improvements seen in the City of management methods. Houston. But recognition by others that local drainage depends on downstream conveyances and ultimate receiving waters (i.e., Brays Bayou)that are overloaded during major storm events in the area. Library > No voices speaking against the value > Limited ground area for expansion, of a local community library—need plus ever-present parking needs. more community input on the long- > Only partial City control as a public term direction for it. facility and service provided through > Opportunity for"a much better cooperation with Harris County. library" in a better building to suit > Residents impressed with upgrades today's technology and needs, made to nearby City of Houston including the potential for a library branches and want the same. redeveloped facility on the same site that houses both the library and community center functions without disrupting nearby residential properties. t41 KENDIG KEAST EXISTING CITY REPORT(11.07.16) I Page 17 of 19 C O L L A B O R A T I V E > Differing opinions on how far to go Crime and Security > Strong agreement about wanting to Diffe g p g of Residents see crime prevention and residential with technological measures such as security remain a prime focus of City security cameras in public areas. government in the years ahead. > West U residents enjoy the advantages of their location within central Houston, but West U is also relatively close to multiple freeways, is accessible to external vehicular traffic from many directions, and has distinct socioeconomic differences from some nearby areas of Houston. More Intensive > Those who prefer to"let Houston > Consensus that additional traffic in Development and have the multi-family development" the area is a primary concern of Redevelopment in the so West U can maintain its single- more intensive land use in areas of Vicinity family residential focus. Houston near West U. > Recognition by some that various > Concern about nearby areas at risk new or upgraded developments just of further deterioration in southwest outside the City are "Class A" Houston. products and contribute to area- wide property values versus having older properties and potential blight nearby. > Even more value placed on maintaining a "small town feel" and sense of community in West U. Other topics or concerns mentioned less frequently, but of note, include: Ongoing preservation of trees as an integral characteristic of West U, particularly with the continuing trend of larger homes on relatively small lots. Ongoing maintenance and repair of City streets to protect and prolong the major capital investment made. Needed street and sidewalk upgrades in remaining areas not on par with improvements made in most of the city. Issues and needs addressed in more depth by two other specialized plans of the City: (1) Parks and Open Space Master Plan (need for more park space on the east side of the community; considering support of a potential dog park within the unused Westpark right- of-way, between Wakeforest and Buffalo Speedway,which is outside of West U but closer than other dog park options for residents to use and enjoy). (2) Facilities Master Plan (make best use of City-owned properties and configure and operate City facilities efficiently and cost-effectively, need more ground area to have flexibility for future). The need to revisit the City's current zoning districts, standards and definitions to ensure they are consistent with current and projected conditions in the community(e.g.,to limit"heavy" commercial uses and "auto-intensive" uses). h:ENDIG KEAST EXISTING CITY REPORT(11.07.16) ( Page 18 of 19 C O L L A B O R A T I V E The potential for"wi fi" in public areas. Opportunities for more public art in West U. The need for recycling receptacles and not just trash cans at City parks. The prospect of merging the cities of West University Place and Southside Place to gain economies of scale in public service provision and given similar property tax rates at present. 1 } KEN DIG KEAST EXISTING CITY REPORT(11.07.16) ( Page 19 of 19 C O l l A B O R A T I V E FUNDAMENTALS OF ZONING Reid C. Wilson Wilson, Cribbs, Goren& Flaum,P.C. Houston, Texas ©All rights reserved 2002 University of Texas Law CLE 6th Annual Conference Land Use Planning Law February 7-8,2002 TABLE OF CONTENTS INTRODUCTION 1 A. Scope of Article 1 B. Reference Materials 1 C. Acknowledgments 1 II. ZONING 1 A. Zoning Defined 1 B. History of Zoning 1 III. GENERAL REGULATORY PRINCIPLES 2 A. Mandatory Public Procedures 2 B. Constitutional Reasonableness 2 C. Takings and Damagings 2 IV. TEXAS ZONING STATUTES 4 A. Texas Zoning Enabling Act 4 B. Special Zoning Statutes 12 C. Enforcement 18 D. Types of City 18 E. Validation Statutes 19 V. SCOPE OF ZONING ORDINANCES 20 A. City Limits 20 B. Non-Zoning Municipal Ordinance 20 C. Deed Restrictions 20 D. Devaluation of Property to be Condemned 20 E. State Law Preemption 20 F. Governmental Uses 20 G. Eminent Domain 21 VI. TEXAS ZONING CASE LAW 21 A. Validity of Zoning Generally 21 B. Validity of Specific Zoning 24 C. Validity of ZBA Decision 28 D. Non-Conforming Uses 31 VII. SPECIALLY TREATED LAND USES 34 VIII. RECENT ZONING CASE LAW(1997-2001) 36 A. Constitutional Issues 36 B. Zoning Board of Adjustment 45 C. Vested Rights/Non-conforming Uses/Estoppel/Limitations 49 D. Preemption/Delegation 54 E. Other Cases 55 F. Law Reviews/Attorney General Opinions 58 IX. DEED RESTRICTIONS AND ZONING 60 A. Deed Restrictions Defined 60 B. Comparison of Zoning With Deed Restrictions 60 C. The Blurring Of Zoning Law And Deed Restriction Law 61 X. ZONING DUE DILIGENCE 62 A. Gathering Information 62 B. Current Status 62 C. Alternatives 63 D. Checklist 64 Appendix A 65 Thelma A. Gilliam, TRMC, CMC From: Bruce Watkins <bruce @watkinslawhouston.com> Sent: Monday, January 14, 2019 3:44 PM To: Thelma A. Gilliam, TRMC, CMC Cc: Susan Sample; Mardi Turner; Bob Higley; Kellye Burke; Kevin Boyle; Alan Petrov; M. Christopher Peifer; Debbie Scarcella Subject: Joint Public Hearing Jan. 14, 2019, on AT&T zoning request Attachments: 2017 Comprehensive Plan (Adopted May 22 2017).pdf; Fundamentals of Zoning, Reid C. Wilson, Wilson, Cribbs, Goren & Flaum, P.C., University of Texas Law CLE, 6th Annual Conference, Land Use Planning Law, 2002.pdf; City of Pharr v. Tippitt, 616 S.W.2d 173 (Tex., 1981) (1).pdf Ms. Gilliam, Three more documents for inclusion in the record of this evening's joint public hearing please: 1. The City's Comprehensive Plan adopted May 22, 2017; 2. An excellent 2002 paper by AT&T's counsel which includes discussions regarding required strict compliance with statutes, including the requirement that zoning ordinances must follow the city's comprehensive plan (page 23), spot zoning and the criteria against which re-zoning of a specific property for the benefit of a single property owner must be assessed (pp. 25-26), planned development districts defined as necessarily including "one or more residential clusters" (p. 27), standing required to challenge a zoning ordinance (p. 27), and the rules and procedures governing the writ of certiorari appeals from Zoning Board of Adjustments decisions, such as Case No. 2016-51800, in which AT&T and the City ZBA are parties, (pp. 30-31). 3. The opinion of the Texas Supreme Court in the case of City of Pharr v. Tippitt, 616 S.W.2d 173 (Tex.1981) which is discussed in the spot zoning portion of Mr. Reid's paper described above, and attached, which includes, inter alia, the following relevant statements of the Court: "First:A comprehensive zoning ordinance is law that binds the municipal legislative body itself. Art. 1011c. ....The law demands that the approved zoning plan should be respected and not altered for the special benefit of the landowner when the change will cause substantial detriment to the surrounding lands or serve no substantial purpose ....The duty to obey the existing law forbids municipal actions that disregard not only the pre-established zoning ordinance, but also long-range master plans and maps that have been adopted by ordinance" Id. at 176,177, (emphasis added) "The term, "spot zoning", is used in Texas and most states to connote an unacceptable amendatory ordinance that singles out a small tract for treatment that differs from that accorded similar surrounding land without proof of changes in conditions." Id. at 177 Best regards, Bruce Watkins 4220 Ruskin City of West University Place,Texas 77005 bruce @watkinslawhouston.com (713) 222-6837 1 r , K y yam, r+y�yuj _ fi �a e r r i * i , i "0,t1.,411.-•N--4-2-7,-A I •�M1�R�'♦� r' +I�E.•^�h.�1�1..r/�, ,�,� ...,ww.a:. ''t, `-'!"'''',�y � �-1.••,.. •r ' ,�,_. �:. _____- - ' t' � ,, 4'✓ .1F I .7 # ma —x � y '',.,''''4;•''' , , , 4`4.1•:. :..;%,:r..■<,,,i,„..,:. , :5+,-,,,,, ..,,,,,,F+4,+.1.,+.,-;i1'7.-0.4,4:1° ' muNICIPAL BUILDING 4. . ' , , ,_ J 1 N i d E R S I Y i" " , ,„,,„ , ..„ ..„ — � ,F,Ag\ A:.,:ir,,, ':'•4,:,:f.•, ' ' -1:!'t,P,,,,,',.*:',- , , • . r ' t, x x '..; �yP ' t 4" fir, - rt ., . y „ *. a i gr ''.3 «w.i,a:,.�a �� .&'a '�'..„ 3a ar;:."k a” , .wt":+ry ,� ,,�,�,�rv' °' '�..°'�§ *°+� .��w `" i` °#«•" �"�y ��+°� ry ''7 .m s^'�a.�' N µ ,sc`.`W'�`.. :... ar a. ... 'fi� ,,.,'� ga ' ii:',"',,,,,, 111 0 City of a West University' . ,pRE H .. N. „ Iv , . , : . Place ' Adopted May 22, 2017 • t-, ) c) KENDIG KEAST 1415 Highway 6 South-Suite D-100 I Sugar Land,TX 77478 I Phone:281.242.2960 C O L L A B O R A T I V E June 12,2017 Mr.M.Christopher Peifer City Manager-City of West University Place 3800 University Boulevard West University Place,Texas 77005 Dear Chris: We are pleased to submit this final version of the newly updated City of West University Place Comprehensive Plan, as adopted by City Council on May 22, 2017. The updated plan document was prepared in accordance with our Professional Services Agreement with the City. The plan update process enabled the City's Zoning and Planning Commission(ZPC) to fulfill its responsibility under the City Charter to "recommend to the Council plans for the physical development of the city." This includes considerations involving land use and housing, transportation, public infrastructure and facilities, and parks and recreation, among others. The updated plan also provides essential support for the City's zoning and other development regulations as Texas Local Government Code Chapter 211 specifies that"zoning regulations must be adopted in accordance with a comprehensive plan."The new plan: • Reinforces key planning themes and priorities of local officials and residents, including: protecting West U's primarily residential character, managing external influences on an enclave city (e.g., traffic,nearby redevelopment, storm drainage),emphasizing the safety of pedestrians and cyclists,and preserving Town Center as a community focal point and gathering place,anchored by West University Elementary. • Reflects community and leadership input obtained through a series of small-group discussion sessions (October 2016);a community-wide public meeting and related online survey that drew 110 responses (October-November 2016); and six work sessions with the ZPC (September 2016-March 2017),which culminated in a joint public hearing before the Council and ZPC(April 2017)prior to plan adoption. • Includes background and statistics that provide a snapshot of West University Place as it was in 2016, and relative to the time of the last plan update in 2000 (an Existing City Report included in this binder also highlights community accomplishments since 2000, and ongoing and new opportunities and challenges for the years ahead). On behalf of our firm,we sincerely appreciated this further opportunity to lend our professional skills and experience to your ongoing community planning efforts.We look forward to seeing the continued enhancement of West University Place in the years ahead. Respectfully submitted, ,: KENDIG KEAST COLLABORATIVE Gary Mitchell,AICP President ii www.kendIgkeast.corn Elk Grove,CAI Sturgeon Bay,WI I Sugar Land,TX ACKNOWLEDGEMENTS West University Place Comprehensive Plan City Council Susan Sample Mayor Bob Kelly Mayor Pro Tern Burt Ballanfant Councilmember Brennan Reilly Councilmember Mardi Turner Councilmember Zoning and Planning Commission Richard Wilson Chair Michael McEnany Vice Chair David Kuykendall Secretary John Cutrer Member Bob Higley Member Mac Jensen Member Mimi Tsai Member City Staff M. Christopher Peifer City Manager Alan Petrov City Attorney Thelma Gilliam City Secretary Dave Beach Public Works Director Debbie Scarcella City Planner Community Planning Consultant Ken dig Keast Collaborative Bret C. Keast,AICP Owner I CEO Gary Mitchell,AICP President (Project Manager) Luis Nunez Senior Associate Janis Burall,AICP Senior Associate Thanks Also To... Individual residents, property owners, business owners and others who participated in and contributed their insights and ideas to the City's comprehensive planning process. 7)4 KENDIG KEAST ACKNOWLEDGEMENTS(May 2017) C O L L A B O R A T I V E Thelma A. Gilliam, TRMC, CMC From: Bruce Watkins <bruce @watkinslawhouston.com> Sent: Monday, January 14, 2019 1:43 PM To: Thelma A. Gilliam, TRMC, CMC Cc: Susan Sample; Mardi Turner; Bob Higley; Kellye Burke; Kevin Boyle; Alan Petrov; M. Christopher Peifer; Debbie Scarcella Subject: Joint Public Hearing of City Council and Zoning and Planning Commission on zoning changes requested by AT&T Attachments: Agreed Motion for Continuance, Sept. 11, 2017, Case 2016-51800, SWBTdbaAT&T v ZBAWestU.pdf; Agreed Motion for Continuance, Jan. 9, 2018, Case 2016-51800, SWBTdbaAT&T v ZBAWestU.pdf; Agreed Motion for Continuance, April 28, 2017, Case 2016-51800, SWBTdbaAT&T v ZBAWestU.pdf; Agreed Motion for Continuance, April 20, 2018, Case 2016-51800, SWBTdbaAT&T v ZBAWestU.pdf; ADR Report, Case 2016-51800, SBTdbaAT&TvZBAWestU, Feb. 15, 2018.pdf; Motion for Continuance, Nov. 19, 2018, Case 2016-51800, SWBTdbaAT&TvZBAWestU.pdf; Docket Control Order, Dec. 5, 2018, Case 2016-51800, SWBTdbaAT&TvZBAWestU.pdf Ms. Gilliam, Attached are certified copies under seal purchased today from the Harris County District Clerk's Office. These are documents filed by counsel for the Plaintiff and Defendant, in Case No. 2016-51800, styled Southwestern Bell Telephone Co. dba AT&T Southwest et al. v. The Zoning Board of Adjustments of The City of West University Place, Texas, including: 1. Agreed Motion for Continuance filed April 28, 2017; 2. Agreed Motion for Continuance filed September 11, 2017; 3. Agreed Motion for Continuance filed January 9, 2018; 4. ADR Report filed February 15, 2018; 5. Agreed Motion for Continuance filed April 20, 2018; 6. Motion for Continuance (joint) filed November 19, 2018; 7. Docket Control Order issued December 5, 2018. I request that these documents be included in the official record of the Joint Public Hearing of the City Council and the Zoning and Planning Commission which is scheduled for this evening. I can also bring the physical hard copies of these documents to present to you during the joint public hearing if necessary. Please advise. Best regards, Bruce Watkins 4220 Ruskin City of West University Place,Texas 77005 bruce @watkinslawhouston.com (713) 222-6837 1 9/11/2017 3:50 PM Chris Daniel-District Clerk Hams County Envelope No. 19355357 By:janel gutierrez Filed:9/11/2017 3:50 PM CAUSE NO. 2016-51800 SOUTHWESTERN BELL § IN THE DISTRICT COURT OF TELEPHONE COMPANY D/B/A § AT&T SOUTHWEST,AT&T § DATACOMM,AT&T TEXAS § v. § THE ZONING BOARD OF § HARRIS COUNTY,TEXAS ADJUSTMENTS OF THE CITY OF § WEST UNIVERSITY PLACE, TEXAS § § 127TH JUDICIAL DISTRICT AGREED MOTION FOR CONTINUANCE Because both Plaintiff and Defendants need additional time for settlement discussions, Southwestern Bell Telephone Company D/B/A AT&T Southwest, AT&T DataComm, and AT&T Texas ("Plaintiff') and The Zoning Board of Adjustments of the City of West University Place,Texas("Defendants") file this Agreed Motion for Continuance as follows: 1. This case is presently set for trial during the two week period beginning November 6, 2017. 2. Plaintiffs counsel and Defendant's counsel are currently in settlement discussions and believe a resolution can be reached but a resolution will require action by the City Planner and potentially the Zoning Board of Adjustment. 3. The City Planner has been dealing with life threating health issues and has been 0 out of the office for months. The City Planner has not returned to the office and in her absence the City Attorney has not been able to issue an interpretation to resolve the issues. 0 4. The parties seek a continuance to allow them to continue settlement discussions to attempt to resolve this dispute without undue cost and expense for the parties and with minimal E imposition on the resources of the Court. C3 N 5. This Motion for Continuance is not sought solely for purposes of delay, but so that justice may be done and for purposes of judicial economy. 6. Plaintiff requests a continuance of at least four (4) months from the present trial setting of November 6, 2017. 7. Additionally, Plaintiff requests that certain deadlines in the Docket Control Order be extended by a similar four(4) months: a. Plaintiff's designation of experts: 9/11/17 to 1/11/18; b. Defendant's designation of experts: 11/23/17to 3/23/18; c. ADR Report: 01/15/18 to 05/15/18; e. Dispositive Motions and Pleas: 2/12/18 to 06/12/18; f. Discovery Period Ends: 2/12/18 to 06/12/18; g. Challenges to Expert Testimony: 01/15/18 to 05/15/18; and h. Pleadings: 1/22/18 to 05/22/18. WHEREFORE, Plaintiff and Defendants pray that the trial of this matter be continued for a period of not less than four (4) months from the present setting of November 6, 2017 and that the 7 deadlines set forth in Paragraph 7 above be similarly reset as set forth above and for such other and further relief to which the Parties may show themselves justly entitled. 0 0 N 0 c� c a 8 7 z 0) 7 U 0 ^c7 0) 0) U Respectfully submitted, WILSON, CRIBBS &GOREN, P.C. By: . l$r i Cook State Bar No. 04732500 2500 Fannin Street Houston,Texas 77002 Tel: (713)222-9000 Fax: (713)229-8824 hf000k@weglaw.net ATTORNEYS FOR PLAINTIFFS JOHNSON PETROV LLP Alan P. Petrov State Bar No. 15852900 2929 Allen Parkway, Suite 3150 Houston,Texas 77019 Phone: (713)489-8977 Fax: (713)358-3530 apetrov @'oltnsonpetrov.cotn, ATTORNEYS FOR DEFENDANT O bA N E z t O U CERTIFICATE OF SERVICE On this % day of +;2017, a true and correct copy of the foregoing was forwarded to all counsel of re ord via certified mail, return receipt requested and/or via e-filing to the following: Alan P. Petrov Johnson Petrov LLP 2929 Allen Parkway, Suite 3150 Houston,Texas 77019 apetrov(?a iohnsonpetrov.com /s/H. Fred Cook H. Fred Cook O L.; E z 1) y 0 y HA ..,...cam'': I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this January 14, 2019 Certified Document Number: 76592305 Total Pages: 4 CV\4444H13441 P*--)" Marilyn Burgess,DISTRICT CLERK HARRIS COUNTY,TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support @hcdistrictclerk.com 1/9/2018 2:02 PM Chris Daniel-District Clerk Harris County Envelope No.21705874 By:CAROL WILLIAMS Filed: 1/9/2018 2:02 PM CAUSE NO. 201651800 SOUTHWESTERN BELL § IN THE DISTRICT COURT OF TELEPHONE COMPANY D/B/A § AT&T SOUTHWEST,AT&T § DATACOMM,AT&T TEXAS § § v. § HARRIS COUNTY,TEXAS § THE ZONING BOARD OF ADJUSTMENTS OF THE CITY OF § WEST UNIVERSITY PLACE,TEXAS § 127111 JUDICIAL 1}ISTRICT AGREED MOTION FOR CONTINUANCE Because both Plaintiff and Defendants need additional time for settlement discussions, Southwestern Bell Telephone Company D/B/A AT&T Southwest, AT&T DataComm, and AT&T Texas ("Plaintiff") and The Zoning Board of Adjustments of the City of West University Place,Texas("Defendants") file this Agreed Motion for Continuance as follows: t. This case is presently set for trial during the two week period beginning March 5, 2018. 2. Plaintiff's counsel and Defendant's counsel are currently in settlement discussions and believe a resolution can be reached but that resolution will require action by the City Planner and potentially the Zoning Board of Adjustment. Both parties have been working to set a mediation before Glenn (Pat) Patterson, but absences by various officials for health issues have • ° delayed these efforts. euo 3. Specifically, The City Planner has been dealing with life threating health issues and has been out of the office for months and counsel for Defendant has had serious health issues cr t` in the interim. i.: a� t. The parties seek a continuance to allow them to continue settlement discussions to z 4) U 0 6) ti. 4) U attempt to resolve this dispute without undue cost and expense for the parties and with minimal imposition on the resources of the Court. Further, a continuance may promote judicial economy in that the cost of depositions and other discover may be avoided until present efforts at settlement are concluded. 5. This Motion for Continuance is not sought solely for purposes of delay, but so that justice may be done and for purposes of judicial economy. 6. Plaintiff'requests a continuance of at least two (2) months from the present trial setting of March 5,2018. 7. Additionally, both parties request that certain deadlines in the Docket Control Order be extended as follows: a. Plaintiffs designation of experts: 2/12/18; b. Def'endant's designation of experts: 3/12/18; c. A.DR Report: 2/15/18; d. Dispositive Motions and Pleas: 3/12/18 c. Discovery Period Ends: 4/6/18; f. Challenges to Expert Testimony: 3/23/18;and g. Pleadings: 4/6/18. WHEREFORE, Plaintiff and Defendants pray that the trial of this matter be continued for ° a period of not less than two (s) months from the present setting of March 5, 2018 and that the 7 N bn a deadlines set forth in Paragraph 7 above be similarly reset as set forth above and for such other and further relief to which the Parties may show themselves justly entitled. O Respectfully submitted, WILSON,CRIBBS &GOREN, P.C. By• � _ H. Fred Cook State Bar No. 04732500 2500 Fannin Street Houston,Texas 77002 Tel: (713)222-9000 Fax: (713)229-8824 hfeo►k )vcLIlaw.net ATTORNEYS FOR PLAINTIFFS JOHNSON PETROV LLP By: _-._z, .•-Z- - �� Alan P. Petrov - _-.__.-°� State Bar No. 15852900 2929 Allen Parkway,Suite 3150 Houston,Texas 77019 Phone: (713)489-8977 Fax: (713) 358-3530 apet3�ov(rr jtslt�t onpetrov.com ATTORNEYS FOR DEFENDANT 0 cobq N O N i; E z 0 0 w- 4) U CERTIFICATE OF SERVICE On this 9th day of January, 2018, a true and correct copy of the foregoing was forwarded to all counsel of record via certified mail, return receipt requested and/or via e-filing to the following: Alan P. Petrov Johnson Petrov LLP • 2929 Allen Parkway, Suite 3150 Houston, Texas 77019 apetrov@johnsonpetrov.com /s/H. Fred Cook H. Fred Cook STATE OF TEXAS COUNTY OF HARRIS VERIFICATION BEFORE ME,the undersigned on this day personally appeared H. Fred Cook and stated the following: "My name is H. Fred Cook. I have been a licensed attorney in the State of Texas since 1982 and am capable of making this verification. I have read the Agreed Motion for Continuance. The facts stated therein are within my personal knowledge as developed from my representation of Plaintiffs herein and are true and correct." 'H. Fre s Cook o Y(/ SWORN TO AND SUBSCRIBED BEFORE ME, on this // day of January,2018. on a en en °` a (6) ti Vird Notary Public in and for the s `aiary r�tPatic.Slueoficaos ceMb ,w State of T E X A S i.; O FRplres:01/1402 01t 8 z 8 0 0 o N t U HAiE,,). ( ( ) I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this January 14, 2019 Certified Document Number: 78093773 Total Pages: 4 CITY\ 41%/117%*4‘ 6141 Marilyn Burgess,DISTRICT CLERK HARRIS COUNTY,TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support @hcdistrictclerk.com 4/28/2017 3:21:11 PM Chris Daniel-District Clerk Hams County Envelope No. 16735315 By:CAROL WILLIAMS Filed:4/28/2017 3:21:11 PM CAUSE NO. 2016-51800 SOUTHWESTERN BELL § IN THE DISTRICT COURT OF TELEPHONE COMPANY DB/A § AT&T SOUTHWEST,AT&T § DATACOMM,AT&T TEXAS § v. § THE ZONING BOARD OF § HARRIS COUNTY,TEXAS ADJUSTMENTS OF THE CITY OF § WEST UNIVERSITY PLACE, TEXAS § § 127TH JUDICIAL DISTRICT AGREED MOTION FOR CONTINUANCE Because both Plaintiff and Defendants need additional time for settlement discussions, Southwestern Bell Telephone Company D/B/A AT&T Southwest, AT&T DataComm, and AT&T Texas ("Plaintiff') and The Zoning Board of Adjustments of the City of West University Place, Texas("Defendants")file this Agreed Motion for Continuance as follows: 1. This case is presently set for trial during the two week period beginning November 6, 2017. 2. Plaintiff's counsel and Defendant's counsel are currently in settlement discussions and believe a resolution can be reached but a resolution will require action by the City Planner and potentially the Zoning Board of Adjustment. 3. The City Planner has been dealing with life threating health issues and has been ° out of the office for months. 4. The parties seek a continuance to allow them to continue settlement discussions to attempt to resolve this dispute without undue cost and expense for the parties and with minimal imposition on the resources of the Court. a 5. This Motion for Continuance is not sought solely for purposes of delay, but so • that justice may be done and for purposes of judicial economy. 6. Plaintiff requests a continuance of at least four (4) months from the present trial setting of November 6, 2017. 7. Additionally, Plaintiff requests that certain deadlines in the Docket Control Order be extended by a similar four(4) months: a. Plaintiffs designation of experts: 5/10/17 to 9/11/17; b. Defendant's designation of experts: 7/10/17 to 11/23/17; c. ADR Report: 09/06/17 to 01/15/18; e. Dispositive Motions and Pleas: 10/02/17 to 2/12/18 f. Discovery Period Ends: 10/02/17 to 2/12/18; g. Challenges to Expert Testimony: 9/06/17 to 1/15/18; and h. Pleadings: 9/25/17 to 1/22/18. WHEREFORE, Plaintiff and Defendants pray that the trial of this matter be continued for a period of not less than four (4) months from the present setting of November 6, 2017 and that the 7 deadlines set forth in Paragraph 7 above be similarly reset as set forth above and for such other and further relief to which the Parties may show themselves justly entitled. •tr O bq a. 00 E z c) U O F.. `c Respectfully submitted, WILSON, CRIBBS & GOREN, P.C. By: H. red Cook State Bar No.04732500 2500 Fannin Street Houston, Texas 77002 Tel: (713) 222-9000 Fax: (713)229-8824 hfcook @wcglaw.net ATTORNEYS FOR PLAINTIFFS JOHNSON PETROV LLP By: a #1 :A Alan P. Petrov State Bar No. 15852900 2929 Allen Parkway, Suite 3150 Houston,Texas 77019 Phone: (713)489-8977 Fax: (713) 358-3530 apetrov@johnsonpetrov.com ATTORNEYS FOR DEFENDANT 0 bA C1 r- E z E U 0 'O a) U CERTIFICATE OF SERVICE On this,gav day of , 2017, a true and correct copy of the foregoing was forwarded to all counsel of re rd via certified mail, return receipt requested and/or via e-filing to the following: Alan P. Petrov Johnson Petrov LLP 2929 Allen Parkway, Suite 3150 Houston, Texas 77019 apetrov @j ohnsonpetrov.com /s/H.Fred Cook H. Fred Cook 0 a. cq t- o oe 8 c U O N N U i/I��i ls..fi TRRR • AI •ra• � ••• I,Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this January 14. 2019 Certified Document Number: 74879961 Total Pages: 4 644/‘ Marilyn Burgess,DISTRICT CLERK HARRIS COUNTY,TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support @hcdistrictclerk.com 4/20/2018 2:14 PM Chris Daniel-District Clerk Hams County Envelope No.24051740 By:CAROL WILLIAMS Filed:4/20/2018 2:14 PM CAUSE NO. 201651800 SOUTHWESTERN BELL § IN THE DISTRICT COURT OF TELEPHONE COMPANY D/B/A § AT&T SOUTHWEST,AT&T § DATACOMM,AT&T TEXAS § v. § HARRIS COUNTY,TEXAS THE ZONING BOARD OF § ADJUSTMENTS OF THE CITY OF § WEST UNIVERSITY PLACE,TEXAS § 127TH JUDICIAL DISTRICT AGREED MOTION FOR CONTINUANCE Because Plaintiff and Defendant have reached a tentative settlement and need additional time to comply with governmental requirements to affect their proposed amicable resolution, thereby avoiding the expense and disruption of additional litigation, Southwestern Bell Telephone Company D/B/A AT&T Southwest, AT&T DataComm, and AT&T Texas ("Plaintiff') and The Zoning Board of Adjustments of the City of West University Place, Texas ("Defendant") file this Agreed Motion for Continuance as follows: 1. This case is presently set for trial during the two week period beginning June 18, 2018.. 2. Plaintiff and Defendant took part in a mediation before Glenn (Pat) Patterson on January 28, 2018. As a result of that mediation, the parties have entered into a tentative 0 settlement. Nevertheless, consummation of the settlement requires various governmental Cs ct a. submissions and rulings which will prevent the parties from completing the settlement prior to N the end of September of 2018. 3. Specifically, the settlement allows for Plaintiff to submit a new zoning request E and a special exception to resolve the controversy. The City procedures will require time for 0 0 U consideration of the proposal(s) prior to approval. Inasmuch as approval of these submissions will require a substantial amount of time to consummate the settlement, the parties request additional time to conduct discovery after September 30 and that trial be reset until February of 2019. 4. The parties seek a continuance to allow them to continue settlement discussions to attempt to resolve this dispute without undue cost and expense for the parties and with minimal imposition on the resources of the Court. Further, a continuance may promote judicial economy in that the cost of depositions and other discovery may be avoided until present efforts at settlement are concluded. 5. This Motion for Continuance is not sought solely for purposes of delay, but so that justice may be done and for purposes of judicial economy. 6. The parties request a continuance until February of 2019. 7. Additionally, both parties request that certain deadlines in the Docket Control Order be extended as follows: a. Plaintiff's designation of experts: 9/14/18; b. Defendant's designation of experts: 10/12/18; c. Dispositive Motions and Pleas: 12/12/18 d. Discovery Period Ends: 12/12/18; C°, e. Challenges to Expert Testimony: 11/29/18; and to m a. f. Pleadings: 1/15/19. te N 7 to WHEREFORE, Plaintiff and Defendants pray that the trial of this matter be continued c until at least February of 2019and that the 6 deadlines set forth in Paragraph 7 above be similarly I z reset as set forth above and for such other and further relief to which the Parties may show 0 O -o 0 4; a, U themselves justly entitled. Respectfully submitted, WILSON, CRIBBS & GOREN, P.C. BY' H. Fred Cook r State Bar No. 04732500 2500 Fannin Street Houston,Texas 77002 Tel: (713)222-9000 Fax: (713)229-8824 hfcook@wcglaw.net ATTORNEYS FOR PLAINTIFFS JOHNSON PETROV LLP By: .�1►_,,,,,, Alan P. Petrov State Bar No. 15852900 2929 Allen Parkway, Suite 3150 Houston,Texas 77019 Phone: (713) 489-8977 Fax: (713) 358-3530) apetrov @ johnsonpetrov.coin ATTORNEYS FOR DEFENDANT 0 bA 00 00 V7 E z E U 0 N 4: U CERTIFICATE OF SERVICE On this D day of April, 2018, a true and correct copy of the foregoing was forwarded to all counsel of record via certified mail, return receipt requested and/or via e-filing to the following: Alan P. Petrov Johnson Petrov LLP 2929 Allen Parkway, Suite 3150 Houston, Texas 77019 acetrov@johnsonpetrov.com /s/H.Fred Cook H. Fred Cook STATE OF TEXAS COUNTY OF HARRIS VERIFICATION BEFORE ME,the undersigned on this day personally appeared H. Fred Cook and stated the following: "My name is H. Fred Cook. I have been a licensed attorney in the State of Texas since 1982 and am capable of making this verification. I have read the Agreed Motion for Continuance. The facts stated therein are within my personal knowledge as developed from my representation of Plaintiffs herein and are true and correct" i H. Frei Cook o SWORN TO AND SUBSCRIBED BEFORE ME,on thisatU day of April, 2018. co I.. 4,,, �;, PATTI BIRD�..�..' ' i f I ;/��o� Notary Public cc ' STATE OF TEXAS I Notary Public in and for the I 'or of 1CIY ID#8505646 My Comm. •.Dec.14,2018 I State of TEXAS O 'C . ,. . !! • 0 ° a • 0* I,Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this January 14,2019 Certified Document Number: 79583428 Total Pages: 4 C1Y\g'"1"..441‘ 641 Marilyn Burgess,DISTRICT CLERK HARRIS COUNTY,TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid.If there is a question regarding the validity of this document and or seal please e-mail support @hcdistrictclerk.com 2/15/2018 1:56 PM Chris Daniel-District Clerk Harris County Envelope No.22554537 By:CAROL WILLIAMS Filed:2/15/2018 1:56 PM CAUSE NO. 2016-51800 SOUTHWESTERN BELL § IN THE DISTRICT COURT OF TELEPHONE COMPANY DB/A § AT&T SOUTHWEST,AT&T § DATACOMM,AT&T TEXAS § v. § HARRIS COUNTY, TEXAS THE ZONING BOARD OF § ADJUSTMENTS OF THE CITY OF § WEST UNIVERSITY PLACE, TEXAS § 127TH JUDICIAL DISTRICT ADR REPORT Pursuant to the Order Granting Agreed Motion for Continuance and the deadlines contained herein, Plaintiff and Defendant present this ADR Report and would report to the Court as follows. 1. The Plaintiffs attended mediation on or about January 28, 2018 before Honorable Glenn("Pat")Patterson.A settlement was reached at that mediation. 2. Unfortunately, because Defendants are governmental entities, the process necessary to fulfill the settlement will consume approximately nine (9) months, which is well beyond the present trial setting of June 18,2018. 3. In order to allow this settlement to be implemented, the parties will be filing an Agreed Motion for Continuance with new docket control dates in the near future. WHEREFORE, Plaintiff and Defendants pray that this court accept their ADR Report and that both parties have such other and further relief, both in general and special, at law and equity, to which they may show themselves justly entitled. Respectfully submitted, WILSON,CRIBBS &GOREN,P.C. a. By: /s/H. Fred Cook H.Fred Cook TBN: 04732500 2500 Fannin Street ° Houston,Texas 77002 Tel: 713-222-9000 Fax: 713-229-8824 z hfcook @wcglaw.net ATTORNEYS FOR PLAINTIFFS U O 0 U CERTIFICATE OF SERVICE On this /5t of February, 2018, a true and correct copy of the foregoing was forwarded to all counsel of record via certified mail, return receipt requested and/or via facsimile and email to the following: Alan P.Petrov Johnson Petrov LLP 2929 Allen Parkway, Suite 3150 Houston,Texas 77019 apetrov @johnsonpetrov.com /s/ H.Fred Cook H.Fred Cook 4-. 0 tn oetN a C' c C 0 z E 7 U 0 'O N v HAR4o, . J�1••• * I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this January 14. 2019 Certified Document Number: 78619671 Total Pages: 2 Marilyn Burgess,DISTRICT CLERK HARRIS COUNTY,TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support @hcdistrictclerk.com 11/19/2018 11:50 AM Chris Daniel-District Clerk Harris County Envelope No.29129123 By CAROL WILLIAMS Filed: 11/19/2018 11:50 AM CAUSE NO. 201651800 SOUTHWESTERN BELL § IN THE DISTRICT COURT OF TELEPHONE COMPANY D/B/A § AT&T SOUTHWEST,AT&T § DATACOMM,AT&T TEXAS v. § HARRIS COUNTY, TEXAS § THE ZONING BOARD OF § ADJUSTMENTS OF THE CITY OF § WEST UNIVERSITY PLACE,TEXAS § 127TH JUDICIAL DISTRICT MOTION FOR CONTINUANCE COME NOW Plaintiff Southwestern Bell Telephone Company d/b/a AT&T Southwest, AT&T DataComm, and AT&T Texas ("Plaintiff")and The Zoning Board of Adjustments of the City of West University Place, Texas (herein after, "Defendant" or"City') and file this Motion for Continuance and would show, as follows: 1. This case is presently set for trial during the two-week docket beginning January 21,2019. 2. Per an agreement reached between the Parties at mediation, Plaintiff has submitted a new zoning request and a special exception to resolve the issues giving rise to the above-captioned lawsuit. The City procedures require formal consideration of the submitted zoning request and special exception by the City Council. The City Council is expected to consider Plaintiffs' requests at a hearing in early 2019("Hearing"), 3. Sometime after the Hearing, the City will issue a report regarding its findings and set forth its rulings regarding Plaintiffs' requested zoning request and special exception. 4. The parties seek a continuance to allow them the time necessary to review the forthcoming City report on the Hearing, conduct such discovery as may be necessary, including I) UU ` 0 -a {00200144.doc2 1 U U U depositions of fact and expert witnesses, engage in future, possible settlement negotiations, and, if necessary,prepare for trial. 5. Based on the foregoing, the Parties respectfully request that the Court remove this matter from the two-week docket beginning January 21, 2019 and continue the matter until at least June 2019. 6. The Parties further request that the Court enter a new docket control order, including new deadlines for discovery and dispositive motions. 7. This motion is not sought for the purposes of delay, but so that justice may be done. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs and Defendants pray that the trial of this matter be continued until at least June of 2019, the Court issue a new docket control order in connection with the new trial setting, and for all other relief to which the Parties may be entitled. Respectfully submitted, WILSON, CR1BBS&GO: , P.C. JOHNSON. R.ETROV L.L . By - B :_ I-I. Fred ook Alan P. Petrov State Bar No. 04732500 State Bar No. 15852900 o hfcook@weglaw.com apetrovai johnsonnetrov.com N Sara M. Prasatik 2929 Allen Parkway, Suite 3150 State Bar No. 24088251 Houston, Texas 77019 a. sprasatik(«4wcglaw.com Tel: (713)489-8977 2500 Fannin Street Fax: (713)358-3530 Houston,Texas 77002 Tel: (713)222-9000 Fax:(713)229-8824 ATTORNEYS FOR PLAINTIFFS ATTORNEYS FOR DEFENDANT c E U U (00200144.doc2 CERTIFICATE OF SERVICE I hereby certify that on A 1 h 4zol g' a true and correct copy of the foregoing was served according to the Texas Rules f Civil Procedure on all counsel of record,as follows: VIA E-SERVICE Alan P. Petrov Johnson Petrov LIP 2929 Allen Parkway, Suite 3150 Houston,Texas 77019 • apetrov(ii johnsonpetrov.com _.._-..••��" • Sara . rasatik STATE OF TEXAS COUNTY OF HARRIS VERIFICATION BEFORE ME, the undersigned on this day personally appeared Sara M. Prasatik and stated the following: "My name is Sara M. Prasatik. I have been a licensed attorney in the State of Texas since 2013 and am capable of making this verification. I have read the Motion for Continuance. The facts stated therein are within my personal knowledge as developed from my representation of Plaintiffs herein and are true and correct." Sara . Prasatik SWORN TO AND SUBSCRIBED BEFORE ME,on this nbV 1 vim ,2018. M —_ 4r O M a, Nota+►+0'ublic in and for the a, State of Texas ;Oi .6...i KAYLEEN E. MURPHY =2- ° Notor=_a ; Y Public,State of rexos ri =.;;;;.,, .: My Commission Expires "��M,��'' June 16, 2019 Date Commission Expires z s U O Ca l00200144.doc2 1 'O cu w^ U -''i!••� HAR� . Wit: I, Marilyn Burgess, District Clerk of Harris County, Texas certify'that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this January 14, 2019 Certified Document Number: 82654859 Total Pages: 3 04.44watplg2,1_78. LelY\ Marilyn Burgess,DISTRICT CLERK HARRIS COUNTY,TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support @hcdistrictclerk.com Case No. 201651800 DCORX * IN THE DISTRICT COURT OF SOUTHWESTERN BELL TELEPHONE CO vs. HARRIS COUNTY, TEXAS THE ZONING BOARD OF ADJUSTMENT * 127th JUDICIAL DISTRICT DOCKET CONTROL ORDER The following docket control order shall apply to this case unless modified by the court. If no date is given below, the item is governed by the Texas Rules of Civil Procedure. 1. JOINDER. All parties must be added and served, whether by amendment or third party practice, by this date. THE PARTY CAUSING THE JOINDER SHALL PROVIDE A COPY OF THIS DOCKET CONTROL ORDER AT THE TIME OF SERVICE. 2. EXPERT WITNESS DESIGNATION. Expert witness designations are required and must be served by the following dates. The designation must include the information listed in Rule 194.2(f). Failure to timely respond will be governed by Rule 193.6. (a) 03/18/19 Experts for parties seeking affirmative relief. (b) 04/15/19 All other experts. 3. STATUS CONFERENCE. Parties shall be prepared to discuss all aspects of the case, including ADR, with the court on this date. TIME: Failure to appear will be grounds for dismissal for want of prosecution. 4. DISCOVERY LIMITATIONS. The discovery limitations of Rule 190.2, if applicable, or otherwise of Rule 190.3 apply unless changed below: (a) Total hours per side for oral depositions. (b) Number of interrogatories that may be served by each party on any other party. 5. ALTERNATIVE DISPUTE RESOLUTION. (a)05/15/19 By this date the parties must either (1)file an agreement for ADR stating the form of ADR requested and the name of an agreed mediator, if applicable; or (2) set an objection to ADR. If no agreement or objection is filed, the court may sign an ADR order. (b) ADR conducted pursuant to the agreement of the parties must be completed by this date. 6. 06/10/19 DISCOVERY PERIOD ENDS. All discovery must be conducted before the end of the discovery period. Parties seeking discovery must serve requests sufficiently far in advance of the end of the discovery period that the deadline for responding will be within the discovery period. Counsel may conduct discovery beyond this deadline by agreement. Incomplete discovery will not delay the trial. 7. DISPOSITIVE MOTIONS AND PLEAS. Must be heard by oral hearing or submission. (a) If subject to an interlocutory appeal, dispositive motions or pleas must be heard by this date. (b)06/10/19 Summary judgment motions not subject to an interlocutory appeal must be heard by this date. (c) Rule 166a(i) motions may not be heard before this date. 8. 05/15/19 CHALLENGES TO EXPERT TESTIMONY. All motions to exclude expert testimony and evidentiary challenges to expert testimony must be filed by this date, unless extended by leave of court. cn 9. 06/03/19 PLEADINGS. All amendments and supplements must be filed by this date. This ci order does not preclude prompt filing of pleadings directly responsive to any timely filed pleadings. 10. M Parties shall be prepared to discuss all aspects of trial with the court on this date. TIME: Failure to appear will be grounds for dismissal for want of prosecution. 11. 07/15/19 TRIAL. If not assigned by the second Friday following this date, the case will be reset. SIGNED 11.1-11.11....11111.11111-111-111.111111•111111111.11.11111. ° H. FRED COOK 2500 FANNIN ST R. K. SANDILL HOUSTON TX 77002-9116 4732500 Judge, 127TH DISTRICT COURT 1 Date Generated 12/05/2018 JCVO02D rev.10272014 O C) bq 00 • oo N oo 00 6.. N E z U O A 'O N U Case No. 201651800 DCORX * IN THE DISTRICT COURT OF SOUTHWESTERN BELL TELEPHONE CO * HARRIS COUNTY, TEXAS vs. * THE ZONING BOARD OF ADJUSTMENT * 127th JUDICIAL DISTRICT DOCKET CONTROL ORDER The following docket control order shall apply to this case unless modified by the court. If no date is given below, the item is governed by the Texas Rules of Civil Procedure. 1. JOINDER. All parties must be added and served, whether by amendment or third party practice, by this date. THE PARTY CAUSING THE JOINDER SHALL PROVIDE A COPY OF THIS DOCKET CONTROL ORDER AT THE TIME OF SERVICE. 2. EXPERT WITNESS DESIGNATION. Expert witness designations are required and must be served by the following dates. The designation must include the information listed in Rule 194.2(f). Failure to timely respond will be governed by Rule 193.6. (a) 03/18/19 Experts for parties seeking affirmative relief. (b) 04/15/19 All other experts. 3. STATUS CONFERENCE. Parties shall be prepared to discuss all aspects of the case, including ADR, with the court on this date. TIME: Failure to appear will be grounds for dismissal for want of prosecution. 4. DISCOVERY LIMITATIONS. The discovery limitations of Rule 190.2, if applicable, or otherwise of Rule 190.3 apply unless changed below: (a) Total hours per side for oral depositions. (b) Number of interrogatories that may be served by each party on any other party. 5. ALTERNATIVE DISPUTE RESOLUTION. (a)05/15/19 By this date the parties must either (1) file an agreement for ADR stating the form of ADR requested and the name of an agreed mediator, if applicable; or (2) set an objection to ADR. If no agreement or objection is filed, the court may sign an ADR order. (b) ADR conducted pursuant to the agreement of the parties must be completed by this date. 6. 06/10/19 DISCOVERY PERIOD ENDS. All discovery must be conducted before the end of the discovery period. Parties seeking discovery must serve requests sufficiently far in advance of the end of the discovery period that the deadline for responding will be within the discovery period. Counsel may conduct discovery beyond this deadline by agreement. Incomplete discovery will not delay the trial. 7. DISPOSITIVE MOTIONS AND PLEAS. Must be heard by oral hearing or submission. (a) If subject to an interlocutory appeal, dispositive motions or pleas must be heard by this date. (b)06/10/19 Summary judgment motions not subject to an interlocutory appeal must be heard by this date. (c) Rule 166a(i) motions may not be heard before this date. 8. 05/15/19 CHALLENGES TO EXPERT TESTIMONY. All motions to exclude expert testimony and evidentiary challenges to expert testimony must be filed by this date, unless o extended by leave of court. 9. 06/03/19 PLEADINGS. All amendments and supplements must be filed by this date. This order does not preclude prompt filing of pleadings directly responsive to any timely filed pleadings. oc 10. Parties shall be prepared to discuss all aspects of trial with the court on this date. TIME: Failure to appear will be grounds for dismissal for want of prosecution. QJ -Q 11. 07/15/19 TRIAL. If not assigned by the second Friday following this date, the case will be reset. SIGNED •1111111111111111111-111•11-1411111111'111111P111111.11.9. p° ALAN PETER PETROV 2929 ALLEN PKWY STE 3150 R. K. SANDILL HOUSTON TX 77019-7126 15852900 Judge, 127TH DISTRICT COURT 2 Date Generated 12/05/2018 JCV002 D rev.10272014 0 rr ao cct P. 00 00 00 M oo N ) z C U 0 b N U • *•'" * HAlto? .7► G • U y• tt I,Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this January 14. 2019 Certified Document Number: 83238458 Total Pages: 4 P*-* clY\ 6141 Marilyn Burgess,DISTRICT CLERK HARRIS COUNTY,TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support @hcdistrictclerk.com Thelma A. Gilliam, TRMC, CMC From: Bruce Watkins <bruce @watkinslawhouston.com> Sent: Monday, January 14, 2019 12:50 PM To: Thelma A. Gilliam, TRMC, CMC Cc: Susan Sample; Mardi Turner; Bob Higley; Kellye Burke; Kevin Boyle; Alan Petrov; M. Christopher Peifer; Debbie Scarcella Subject: FW: settlement of Case 2016-51800, Southwestern Bell Telephone Company et al. v. The Zoning Board of Adjustments of the City of West University Place, Texas; in the 127th Judicial District Court, Harris County, Texas Attachments: 00197922.pdf Ms. Gilliam, I am forwarding to you the attached Settlement Agreement between the parties entered into on January 30, 2018, in Case No. 2016-51800, styled Southwestern Telephone Co. dba AT&T Southwest as Plaintiff and The Zoning Board of Adjustment of West University Place, in the 127th Judicial District Court, Harris County,Texas, along with the email exchange below dating in June and July of last year between me and City Attorney Alan Petrov in which I had requested and obtained from him the copy of the Settlement Agreement. I request that the attached Settlement Agreement, and the below email exchange, be included in the record of the Public Hearing scheduled for this evening on AT&T's current application to rezone its property at the corner of Ruskin and Academy streets. I can also hand to you hard copies of these documents during the hearing this evening if you prefer. Please advise. Best regards, Bruce Watkins 4220 Ruskin City of West University Place, Texas 77005 bruce@watkinslawhouston.com (713) 222-6837 office From:Alan Petrov [mailto:apetrov @johnsonpetrov.com] Sent: Friday,July 13, 2018 1:24 PM• To: Bruce Watkins<bruce @watkinslawhouston.com> Cc:Thelma A. Gilliam, TRMC<tgilliam @westutx.gov> Subject: RE: settlement of Case 2016-51800, Southwestern Bell Telephone Company et al. v.The Zoning Board of Adjustments of the City of West University Place,Texas; in the 127th Judicial District Court, Harris County,Texas Bruce, sorry, I completely forgot until Thelma reminded me. Attached is the agreement from our mediation. As you can see, even though it was styled a Settlement Agreement (basically because that was the form being used by the mediator) it was really simply an agreement to abate, which has now become moot. Thanks,Alan JOHNSON PETROV LLP ATTORNEYS AT LAW 1 ALAN P. PETROV MANAGING PARTNER JOHNSON PETROV LLP 2929 ALLEN PARKWAY, SUITE 3150 HOUSTON,TEXAS 7701911 713.489.8977 OFFICE II 713.358.3530 FAx APETROV@JOHNSONPETROV.COM THIS TRANSMISSION (AND/OR THE DOCUMENTS ACCOMPANYING IT) MAY CONTAIN CONFIDENTIAL INFORMATION BELONGING TO THE SENDER WHICH IS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF YOU ARE NOT THE INTENDED RECIPIENT,YOU ARE HEREBY NOTIFIED THAT ANY DISCLOSURE, COPYING,DISTRIBUTION OR THE TAKING OF ANY ACTION IN RELIANCE ON THE CONTENTS OF THIS INFORMATION IS UNAUTHORIZED AND STRICTLY PROHIBITED.IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR,PLEASE IMMEDIATELY NOTIFY THE SENDER. From: Bruce Watkins [mailto:bruce@watkinslawhouston.com] Sent: Thursday, July 05, 2018 3:49 PM To: Alan Petrov Subject: RE: settlement of Case 2016-51800, Southwestern Bell Telephone Company et al. v. The Zoning Board of Adjustments of the City of West University Place, Texas; in the 127th Judicial District Court, Harris County, Texas Alan, Have you been able to find a copy of the written memorandum setting out the matters agreed upon at mediation with AT&T which you were going to send to me? Bruce Watkins From: Bruce Watkins Sent: Friday,June 22, 2018 12:49 PM To: 'Alan Petrov' <apetrov@johnsonpetrov.com> Subject: RE: settlement of Case 2016-51800, Southwestern Bell Telephone Company et al. v.The Zoning Board of Adjustments of the City of West University Place,Texas; in the 127th Judicial District Court, Harris County,Texas Alan, my deepest and most sincere condolences for your loss of your father. My father passed away in 1985 and I still miss him almost every day. I would like to visit with you about this matter whenever convenient after you get back into your office and have a few minutes. I could come by your office if that would be convenient. Best regards, Bruce Watkins From:Alan Petrov [mailto:apetrov @johnsonpetrov.com] Sent: Friday,June 22, 2018 12:37 PM To: Bruce Watkins<bruce @watkinslawhouston.com> Subject: Re: settlement of Case 2016-51800, Southwestern Bell Telephone Company et al. v.The Zoning Board of Adjustments of the City of West University Place,Texas; in the 127th Judicial District Court, Harris County,Texas Mr. Watkins, I apologize for the delay in responding but my father passed away in Dallas and I have been out of town dealing with his funeral and related family matters. 2 With respect to your question, the only"Settlement" was an agreement to a continuance in the case in order to allow AT&T an opportunity to make their request for a zoning change since they had the right to do that at any time anyway and if the change was accepted, the appeal would become moot. There was no agreement that any change would be approved and if not approved, the case would simply pick back up. Not really a settlement in my opinion, but we did use that term in the filing with the court which I have regretted ever since as it has fostered the numerous conspiracy theories that continue to circulate. In any event, we did have a hand written document stating the above and I will locate a copy for you when I am back in the office next week. Alan P. Petrov, Managing Partner Johnson Petrov LLP 2929 Allen Parkway, Suite 3150 Houston,Texas 77019 Phone: 713-489-8977 Fax: 713-358-3530 On Jun 21, 2018, at 3:29 PM, Bruce Watkins<bruce @watkinslawhouston.com>wrote: Mr. Petrov, I would appreciate the courtesy of a response from you to my email to you of June 14 (see below). Bruce Watkins 4220 Ruskin City of West University Place,Texas 77005 Bruce K. Watkins Watkins & Watkins 24 Greenway Plaza, Suite 1710 Houston,Texas 77046 (713) 222-6837 office (713) 206-6166 cell Fax (713) 222-7519 bruce@watkinslawhouston.com <image001.jpg> The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above.This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient,you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: Bruce Watkins Sent:Thursday,June 14, 2018 1:08 PM To: 'apetrov @westutx.gov' <apetrov @westutx.gov> Subject: settlement of Case 2016-51800, Southwestern Bell Telephone Company et al. v. The Zoning 3 Board of Adjustments of the City of West University Place,Texas; in the 127th Judicial District Court, Harris County,Texas Dear Mr. Petrov, I am a resident of the City of West University Place, residing with my family at 4220 Ruskin Street for the last 26 years. The ADR Report filed by counsel for the Plaintiffs in the above referenced case on February 15, and the Agreed Motion for Continuance filed by the parties on April 20, and the ADR Report, state, variously,that "[a] settlement was reached at ... mediation" on January 28, 2018, and that the "tentative settlement" for its consummation "requires various governmental submissions and rulings which will prevent the parties from completing the settlement prior to the end of September of 2018". Can I assume that this settlement agreement, or"tentative settlement",the latter of which terms I construe to mean perhaps a conditional settlement, was reduced to writing in some form? If the settlement, conditional,tentative, or otherwise,was reduced to some form of written memorandum other writing, I respectfully request to see a copy of the settlement agreement if you would be so kind as to provide it. Thank you in advance. Best regards Bruce Watkins 4220 Ruskin bruce@watkinslawhouston.com (713) 222-6837 4 CAUSE NO. 1_0 IL - `.i Iccoo 45`'r"• h W.( a ` 1 t� j-Q (1.1e,(9 l § IN THE DISTRICT COURT OF V § V. § HARRIS COUNTY,TEXAS (1Lo,(lc2>;,/ 1► ? § ( JUDICIAL DISTRICT SETTLEMENT AGREEMENT On the&4h day of , ,, ,, 2018, the parties (and their respective counsel) assembled at the law office of Glenn W. Patte ion, Jr. for the purpose of mediation upon the following terms and conditions: ag(t.2 -k kKc, (taws 'S c. 46 1 4(1,0 tin UJct J 1. The parties a settle all claims and c:ntroversies between them, asserted and assertable in this case. S e t h s 1 ckl l .tom C ''^ ce,li b u'! 1.� (�., mater b. 1 C. d. 3. The above-styled . d numbered case shall be xresulued-by- d,,�-..Q- .- �ia�✓�ti b 51/1011 I?t./ w\x-- ovy. ) Hw CV •R-� ec „ {j ( 1a :.,,. �"' A . r 4I♦ er tab.' . ,, - • to A 4 . I I IA' < �c-♦ tom, b. •.✓ ! !A. . °' o I i4 ! 1 _ 1 _ 1 610 i t ,‘'U,in;t„N �' — t- tnn `rl4•b,`4- - 4. --`he parties agree to rlease and dischar ach other and their agents, employees, and attorneys from all claims, demands or suits, known or unknown, fixed or contingents, liquidated or unliquidated, whether or not asserted in the above case, as of this'date, arising from or related to the events and transactions which are the subject matter of this case,except for: 5. Each of the undersigned parties warrants and represents the other (i) that such party has the authority to enter into this settlement and (ii) that the claims, suits, rights, and/or interests which are the subject matter hereto are owned by the party asserting the same. o. Att• s for shall deliver d - of any further settlement documen • the other parties within da•. of the date hereof. The parties agree to ooperate with each other in the drafting d execution of such additional documen as are reasonably requested or require• o implement the terms and spirit of this •►_ eement. Notwithstanding such additio • documents, the undersigned parties con i .1 that this agreement is a settlement a:. -ement as contemplated under Section 15'.+ 1 of the Texas Civil Practice and ' -medies Code. Closing of the settlement shal ake place within days after the 2 1 * I. Loa sAt- 14-111 01 Wit 4 6 tot. _ w I i I iv,1,,L Pi•1,- re.v.Q.,,,,,)‘ ..... P40-k 5- fw 't?)4 4 _r") I. 471 L i-46/1 Tfi..t fk r _E),, I') ,___ co fle.e3 • A •• . -• .c. 1.41.--- is—et,— ii,JC...5— 41-...eL 444 4.-: CIA, s+r,,-(-4-A._ - - -. .. r - L 1 1 ---t- ts 4 ift. zov,a4 AT i I Will rzloe.fr 4,, 5rs.e.ril g?..._f4,117-1«.- , . -4i-wie, 44. 0 sit 4 . 11-3ii‘t v,.. 1:::)%. 'B. ...._____. I. . vv+ rya 4...e by .6mkr_tc,.... it, ka .s.1 1__. _ ___ _ - _ I''' ) 5 704 4,....e_4167,,, iS ex.eprrsice -1-Gip. 1-4 ti.c..,t- or I i i itAle I 43 VN IS 6.-, w I*L. p rki,:‘,8A,ut 1 a WI _.(14ftan E.41 0 ti I iefkl._ -1141 v.- 1 4L14,4 ---rte 3 4- CAST:" ti et_44.--.0.__ ___J___...tar.__41.46•._Y_1:-.'".-.!_m:_-__Tt_s____ IA.+ tylAvs+.4A lor___V th 8; 4:4..... ) A.. — t 1 ______4 I If ___ ( r A— - j_. _ . i tt West University Place, TX Code of Ordinances Page 33 of 105 )1,1,t1114 A Private green See Notes 1 and 2 space School (other) X X X X X X X X See See Note 9 Note 3 Utility or A See Note 1 service use. See Art. 8 . PWSF use. A or SE See PWSF Schedule. See Note 1 Commercial Light X See X X X X X See See Article 8 commercial Note Notes regarding 5 6 certain and sexually 11 oriented businesses. Medium X See X X X X X X commercial Note 5 All other uses X X X X X X X X a,,,,,t r*t aCiill I a 4/O" 1�^ ,r�c.-A'"1 Us , U y ,wri vwvsevsl.��rs Note 5. ParkingiUse ' 2. The ZBA may issue a special excep 'on to authorize parking of motor vehicles in connection with nearby commercial activities, upon approval by the ZBA of the types of vehicles, design of parking facilities(including landscaping, paving, lighting, fences or walls, signs, etc.)and curb cuts all of which may be included as site-specific conditions of the special exception. i. Q,,,,t, -14.4 1%110;1,4 N e4N Lire.: Note 6. Light Office Use in PDD-C1. The only commercial use allowed in PDD-C1 is light office use, meaning offices for conducting real estate, insurance and other similar businesses and the offices of the architectural, clerical, engineering, legal, dental, medical and other established and recognized professions, in which only such personnel are employed as are customarily required for the practice of such business or profession. about:blank 6/24/2016 kar-44":5-,-d cat&t Proposed Uses for Parking Lot @ Lots 1-6. Block 25,Collegeview Sec. I 1. Vehicles owned or rented/leased to AT&T and its employees (i.e. not customers) may be parked in the parking lot. 2. Items used by AT&T service technicians in the normal course of providing services to AT&T customers may be carried to and from vehicles daily,except Sunday, between 7 ani and 12 pm. Only 2 wheeled dollies or small 4 wheeled carts are permitted. .01111111)— 3. Trash,litter and materials for recycling may be carried from vehicles to the waste area in the parking lot or to the adjacent commercial buildings. 4. Items in an AT&T service vehicle may be sorted and organized once per month, provided that no more than 15 vehicles may perform this activity at one time, the activity may not extend for longer than 2 hours,and the activity may not occur after 7pm. 5. AT&T employees may carry food for meals and personal items to and from vehicles. 6. AT&T employees may eat food in vehicles. 7. AT&T employees may"cat nap"in vehicles during normal business hours. 8. AT&T employees may use their mobile phones in vehicles. 9. Personal property items in a vehicle may remain in the vehicle while parked. Thelma A. Gilliam, TRMC, CMC From: rhgrossman <rhgrossman @aol.com> Sent: Sunday, January 13, 2019 12:13 PM To: Susan Sample; Mardi Turner; Kellye Burke; Kevin Boyle; Bob Higley; Alan Petrov; Thelma A. Gilliam, TRMC, CMC Subject: The Agenda Packet falsely states that AT&T is "The regulations allow for loading and unloading of the vehicles, inventory and supply of the vehicles and other activities that are normally taken by employees" Attachments: 00.11 Scarcella all incidental uses allowed.pdf; 07.0 HC 160205 1143 Petrov Opines to Sample.pdf; 08.0 HC 160205 Sample to Grossman.pdf; 03.0 November 2015 Formal.pdf; 06.0 zba decision affirm november decision.pdf Council members, The individual that wrote the agenda packet made the false representation that "The regulations allow for loading and unloading of the vehicles, inventory, and supply of the vehicles and other activities that are normally taken by employees". The above statement is not in any ordinance or any ZBA decision although it does acurately represent emails from the Zoning Official, the City Attorney, and the Mayor (all attached). It is an argument that has been heard by the ZBA and rejected in favor of the following from the November 2015 Formal Decision of the Zoning Official as follows: On all six of the northern lots (which comprise the parking area in question), commercial uses are generally normally prohibited by Section 7-10 1, Table 7-1 of the ZO. However, the old Parking Ordinances expressly authorized non-residential parking on those six lots prior to major zoning changes in the 1980's. Ll Table 7-1 indicates that"utility or service use"is allowed. However,the questioned activities are not covered by the definition of that use in Section 2-102 of the ZO. Because Lots 5 and 6 are in the PDD-5F2 District,Table 7-101, Note 5 allows the Zoning Board of Adjustment to issue a special exception to allow non-residential parking on those two lots,subject to conditions. No such special exception has been reported or found. Only the ZBA and State Courts have the authority under Texas Local Government Code 211 to provide interpretations of a Zoning Ordinance. (see https://statutes.capitol.texas.qov/SOTWDocs/LG/htm/LG.211 .htm) Others have the right to their personal opinions but they do not have the right to represent that those opinions as law as a predicate to legislation. The agenda packet statement referenced above. The unappealable February 2016 Decision of the ZBA contradicts the referenced statement. I request that you include this email and attachments in the official record of the hearing of January 14, 2019 regarding the AT&T Application for a re-zoning. Thank you Robert Grossman 1 From:Debbie Scarcella<DScarcella @westutx.gov> To:rhgrossman<rhgrossman @aol.com> Cc:M.Christopher Peifer<CPeifer @westutx.gov>;Clay Chew<CChew @westutx.gov>;Alan Petrov Work<APetrov @publiclaw.com>;Michael Sierra <MSierra @westutx.gov>;Daniel Paripovich<DParipovich @westutx.gov> Subject:RE:ATT issues Date:Fri,Jun 5,2015 9:45 am Mr.Grossman, The following interpretations are based on the decisions of record and applicable sections of the zoning regulations. Any further legal opinions would need to be made via the City Attorney,Alan Petrov. The parking lot was authorized initially by city ordinance and then by a subsequent ZBA decision for"the parking of vehicles owned by the Southwestern Bell Telephone Company[now ATT/Uverse]and/or its employees". The ordinance does not specify whether or not these vehicles are limited in size or use. A second ordinance was enacted that expanded the area and did delineate the types of vehicles that could be parked on the specific lots. Lots 1-6 were designated for use"as a parking lot for the parking of vehicles owned by the Southwestern Bell Telephone Company and/or its employees". Lots 7-10 were limited to"the parking of passenger vehicles. All other vehicles are prohibited." Lots 7-10 are behind the Whole Foods Shopping Center and 1-6 are behind the ATT facility. ATT/Uverse is a Utility or Service Use(a separate use category from commercial)and is allowed in all zoning districts, including residential. Since the parking lot is accessory to this principal use,normal activities facilitating the business process would be authorized as well. The only exception is for vehicle maintenance services in the parking lot. Auto related uses such as servicing and washing of vehicles are considered medium commercial uses and must be authorized by the ZBA through a special exception for medium commercial use. The facility manager,Karen Jones,and her immediate supervisor,Mrs.Martinez,have both been notified that these activities are not authorized on the site at any time. All businesses are required to dispose of their trash/garbage in a dumpster or roll off that is enclosed and secured. Ms.Jones has previously talked to the building official,Clay Chew,regarding building an enclosure for the trash and recyclable cables and other materials that ATT/Uverse recycle. According to Clay,a permit for that has not been applied for. Thank you. Debbie Scarcella City Planner City of West University Place 3826 Amherst,West University Place,TX 77005 Tel 713.662.5893 Fax 713.662.5369 ,,■ F G:1 ATTENTION PUBLIC OFFICIALS: A"reply to all"of this e-mail could lead to violations of the Texas Open Meetings Act. Please reply only to the sender. From: rhorossmanCalaol.com[mailto:rharossman(@aol.com] Sent:Thursday,June 04,2015 3:40 PM To: Debbie Scarcella Cc: M.Christopher Peifer Subject: Re:ATT issues Ms Scarcella: I wish to know the following: Regarding the ATT at the corner of Academy and Ruskin: Does the City of West University Place,COWUP, believe that ATT automotive maintenance, stocking of service vehicles and the storing of trash from the vehicles is not authorized by the exception granted by the City Council and ZBA for the use of this land as a parking lot for parking of vehicles owned by ATT or employees of ATT.(1) Regarding the buildings at 6707 Academy: Does COWUP believe that the use of the building directly adjacent to parking lot to store Uverse materials to be installed by the ATT is not a use permitted by the zoning ordinance as it pertains to this building? *(1) These uses were documented by observations by myself, by Mr Cole and by Sergeant Sierra. Thank you, Robert Grossman 832 877 0158 Petrov is City Atty. Peifer is City Manager. Scarcella is Zoning Official. Sample From: Alan Petrov Work To: Susan Sample Cc: M.Christopher Peifer;Dave Beach;Debbie Scarcella Subject: [BULK]Re:Ctiy Zoning Official choice to ignore City Ordinances and the recent confirmation of the"Formal Decision of the Zoning Official"and to allow ATT prohibited commercial use of the Ruskin Lots Date: Friday,February 05,2016 11:43:52 AM Mayor,at this point the ZBA action is not final and enforceable.The Oder of the ZBA still needs to be prepare and signed and that typically takes a couple of weeks following the ZBA hearing.Then,even after it is signed,it is not final and enforceable because the Applicant,in this case AT&T,has 10 days to appeal.So to say the Zoning Official is not enforcing the Administrative Decision is simply not accurate,the Decision is not even enforceable yet. We spoke with Dave Beach and Debbie about this yesterday and by copy of this email,I am asking Dave to forward to you a timeline of activities of this week,including staffs conversations with Mr.Grossman and Debbie's comments regarding the Administrative Decision.Specifically,it is worth noting that the activity that Mr. Grossman is now complaining about is the loading of supplies into the AT&T vehicles parked on the site.He feels that this makes the parking lot part of a"distribution center".The Administrative Decision addressed the loading dock issue which will be fully enforced.With respect to the loading of individual vehicles.we believe this to be incidental to a narking lot.When the City Council authorized AT&T to park company owned vehicles on the lots, the normal expectation would be that various supplies would need to be loaded into the vehicles from time to time. Or would Mr.Grossman argue that when I walk from my office to my car and I put my briefcase in my car,I am "loading"my car.Such,a position seems illogical and unreasonable. Finally,our office has already reached out to AT&T to ensure timely compliance with the Administrative Decision and be separate email I will forward the update that they gave us.Thanks,Alan Alan P.Petrov,Managing Partner Johnson Petrov LLP 2929 Allen Parkway,Suite 3150 Houston,Texas 77019 Phone:713-489-8977 Fax:713-358-3530 >On Feb 4,2016,at 10:31 AM,Susan Sample<ssample @westutx.gov>wrote: >Please advise. >Susan Sample >Mayor >City of West University Place >3800 University Boulevard,West University Place,TX 77005 >ATTENTION PUBLIC OFFICIALS: >A"reply to all"of this e-mail could lead to violations of the Texas Open Meetings Act. >Please reply only to the sender. >From:Robert Grossman[rhgrossman @aol.com] >Sent:Thursday,February 04,2016 10:05 AM >To:Susan Sample >Subject:Ctiy Zoning Official choice to ignore City Ordinances and the recent confirmation of the"Formal Decision of the Zoning Official"and to allow ATT prohibited commercial use of the Ruskin Lots 7/8/2018 RE:Ctiy Zoning Official choice to ignore City Ordinances and the recent confirmation of the"Formal Decision of the Zoning Official'and to... From: Susan Sample<ssample @westutx.gov> To: Robert Grossman<rhgrossman©aol.com> Subject: RE: Ctiy Zoning Official choice to ignore City Ordinances and the recent confirmation of the"Formal Decision of the Zoning Official"and to allow ATT prohibited commercial use of the Ruskin Lots Date: Fri, Feb 5, 2016 1:15 pm Mr. Grossman, Thank you for your detailed message. Currently the ZBA action is not ripe for enforcement because it is not final (and therefore not enforceable). The order of the ZBA still needs to be prepared and signed and that typically takes a couple of weeks following the ZBA hearing. Even after it is signed, it is not final and enforceable because the Applicant, in this case AT&T, has 10 days to appeal. The Zoning Official is allowed to enforce the Administrative Decision at this time. It appears that activity you've noticed in the last few days is the loading of supplies into the AT&T vehicles parked on the site. The Administrative Decision addressed the loading dock issue which will be fully enforced. With respect to the loading of individual vehicles, the City believes this to be incidental to a parking lot. When the City Council authorized AT&T to park company owned vehicles on the lots, the normal expectation would be that various supplies would need to be loaded into the vehicles from time to time. Finally, the city attorney's office has already reached out to AT&T to ensure timely compliance with the Administrative Decision. Regards, Susan Susan Sample Mayor City of West University Place 3800 University Boulevard, West University Place, TX 77005 0 I ATTENTION PUBLIC OFFICIALS: A"reply to all"of this e-mail could lead to violations of the Texas Open Meetings Act. Please reply only to the sender. From: Robert Grossman [rhgrossman @aol.com] Sent: Thursday, February 04, 2016 10:05 AM To: Susan Sample Subject: Ctiy Zoning Official choice to ignore City Ordinances and the recent confirmation of the "Formal Decision of the Zoning Official" and to allow ATT prohibited commercial use of the Ruskin Lots Mayor Sample The Zoning Official has determined that ATT may continue to load and unload vehicles and perform other commercial activities involving these vehicles on the residential lots 1-6 Block 25 of Collegeview Section 1 at the South East corner of Ruskin and Academy. This action violates the City Zoning Ordinance and the published and confirmed "Formal Decision of the Zoning Official" dated November 11, 2015. I ask that the City Council require the Zoning Official to enforce the ordinance and the decision. https://mail.aol.com/webmail-std/en-us/PrintMessage 1/2 7/8/2018 RE:Ctiy Zoning Official choice to ignore City Ordinances and the recent confirmation of the"Formal Decision of the Zoning Official'.and to... The "Formal Decision of the Administrative Official", published on November 11, 2015 stated that "neither a loading space nor a waste storage area may be located on the (referenced) six lots on the north portion of the site." This ruling is an interpretation of the simple language in Ordinance 932 and 1039 that defined the restriction of use of the referenced lots as follows: "A use that conforms in all respects to the use, lot size, location of main and accessory buildings, frontage, setbacks, and size of main and accessory buildings, in a Single Family Dwelling District..", "may be used for the parking of vehicles owned by the Southwestern Bell Company and/or its employees." On January 28, 2016 the ZBA denied AT&T's appeal of the Decision of the Zoning Official and confirm the decision without modification. Despite the simple clarity of the Ordinances 932 and 1039, that have been incorporated and referenced by every revision of the Zoning Ordinances since 1977, and the unambiguous published and confirmed "Formal Decision of the Zoning Official", the zoning official has determined to take no action such as a citation and fine) to prohibit loading, unloading, or performing other commercial activities involving these vehicles in the subject lots. I request that City Council take appropriate action to require the City Staff to enforce the Zoning Ordinances and incorporated Ordinances 932 and 1039 and prohibit the referenced commercial uses on the subject lots. I hope that the Council will add this issue to the agenda of the earliest meeting allowed by law as these violations have continued for more than a year. Thank you, Robert Grossman 4103 Ruskin 832 877 0158 Attached: Ordinance 932 Ordinance 1039 November 11, 2015, Formal Decision of the Zoning Official https://mail.aol.com/webmail-std/en-us/PrintMessage 2/2 The City of \VCst University Place . 1 A'ci hlyn-hock1 ( in Office of the Administrative Official City of West University Place,Texas ("City") FORMAL DECISION OF THE ADMINISTRATIVE OFFICIAL Address of the building site: 4068 Bellaire Boulevard, 6707 Academy Street and"0"Ruskin Street (Lots 1-6, Block 25 of Collegeview Section 1),City of West University Place,Texas 77005. The building site is shown in the diagram below (not to scale): J ' 4.4r; 403F 4.332 3028 If31 y,.'? 1l3I 4, 12 4'X'4 4.:C4 / / r/ RUSKIN STREET 1C3 r/ ,.,. /II. '11°' i A ' B ilding site F.. w w 'BT COMPANY Z I . . b coweRC� � t J i r W . - 1111' II BELLAIRE BLVD. Owner: SOUTHWESTERN BELL TELEPHONE COMPANY DBA AT&T Southwest, AT&T DataComm, AT&T Texas 208 South Akard Street, Ste 3608 Dallas,Texas 75202 Decisions Requested: (A) Determine whether the following activities in the parking area (which is on the north portion of the building site,adjoining Ruskin) have prior non-conforming status("PNC status") under the Zoning Ordinance: (1)type of vehicles using the parking area, (2)maintenance of vehicles in the parking area, (3)delivery trucks using parking area for deliveries, (4) parking in the street blocking one lane of traffic,(5) lb 1 AO Decision ATT Facility Page 1P PLACES 3800 University Boulevard I West University Place, TX 77005 I www.westutx.gov jJ'II The City of\Vcst University Place MIMI . 1 .A'cv;;h1)od,()O(/ (,in dumpsters and, (6)using part of the parking area for a loading"dock." Accumulation of trash and debris from the vehicles and containers in the parking area are also a concern. (EI) Determine whether the loading area and waste storage area on the building site comply with the Zoning Ordinance. Ordinance Reference: Zoning Ordinance("ZO")of the City of West University Place,Texas, as amended. See Sections 7-101 (Table 7-1) 12-100, 12-101 and 12-202 and various definitions. See, also, City of West University Place Ordinance Nos. 932 and Ordinance 1039,adopted in 1970 and 1975, respectively, which authorized use of Lots 1-6 on the building site for parking("Parking Ordinances"). Administrative Official's Findings& Decisions: Some of the questioned activities are directly regulated by the ZO,and some are not. These are addressed separately,below. Activities Not Directly Regulated by ZO: The ZO does not directly regulate two of the activities in question(parking in the street and accumulation of trash),so they cannot acquire PNC status under the ZO. However,other laws and ordinances may apply. For example: (1) • Thethe Texas Transportation Code and Chapter 46 of the City's Code of Ordinances regulate parking in street areas;and(2)Chapter 42 of the City's Code of Ordinances prohibits some accumulations of rubbish (defined to include"trash"and"garbage")on private property. Because administration and enforcement of those laws and ordinances has been assigned to the Code Enforcement division, they are not addressed in this decision(which is limited to questions arising under the ZO). Activities Directly Regulated By the ZO. The ZO directly regulates most activities on the building site. The building site is split among three different zoning districts. The south part, adjoining Bellaire Boulevard, is in the Commercial "C" District. Four of the lots on the north,adjoining Ruskin,are in the Single Family "SF-3" District, and two are in the Planned Development District-Single Family"PDD-SF2" District (formerly known as the PDD-T116 District). On all six of the northern lots(which comprise the parking area in at:.estion),commercial uses are t:enerallvnormally prohibited by Section 7-101,Table 7-1 of the ZO.1 However,the old Parking Ordinances Table 7-I indicates that"utility or service use"is allowed. However,the questioned activities are not covered by the definition of that use in Section 2-102 of the ZO. Because Lots 5 and 6 are in the PDD-SF2 District,Table 7-101,Note 5 allows the Zoning IAO Decision ATT Facility Page 2 TOP PPttAACES 3800 University Boulevard I West University Place, TX 77005 I www.westutx.gov i 'III 16111 I lie (City of \Vest University Place . 1 .VcikI1lx0Th,Od (;in expressly authorized non-residential parking on those six lots prior to major zoning chances in the 1980's. This presents the key question of whether the questioned activities have PNC status because of the Parking Ordinances. To acquire PNC status,an activity mu:.t have been"constructed or established in conformance with the zoning ordinance(as applicable at the time)." See Section 12-102. Most of the questioned activities were not"constructed or established in conformance,"so they could not have acquired PNC status. The Parking Ordinances only authorized"parking of vehicles owned by the Southwestern Bell Telephone Company and/or its employees." They did not authorize: (i)use by vehicles not cwned by Southwestern Bell Telephone Company or its employees, (ii)maintenance of vehicles, (iii) deliveries,(iv)use of the area for dumpsters or(v)use for any kind of loading"dock." Because these activities were not authorized,they were not"in conformance"with prior zoning ordinance,and they could not have acquired PNC status. They are therefore prohibited by Section 7- 101,Table 7-1. Loading Space; Waste Storage Area. For this building site, Section 10- 104 of the ZO requires that there be"adequate loading space separate and apart from off-street parking spaces." Section 8-105 requires that loading areas and waste storage areas be"surrounded by special screens" (which are fences or walls),and they must be kept"securely closed when not in use." Based on the findings and determination set out above, neither the loading space nor a waste storage area may be located on the six lots on the north portion of the site. Therefore,to bring the building site into compliance,an adequate loading space and any waste storage area would have to be: (i) located on the south portion of the building site (close to the main building)that is zoned Commercial and(ii) "surrounded by special screens"that are kept"securely closed when not in use." Effective Date&Appeals:This decision takes effect on the date it is signed. Persons listed in Section 211.010 of the Texas Local Government Code may appeal this decisior.. Appeals(including the deadline for filing of appeals)are subject to and governed by applicable rules, ordinances and laws, including: (X )Zoning Ordinance, ( X )Chapter 18,Code of Ordinances, ( X)Zoning Board of Adjustment"Rules of Procedure." IMPORTANT: Article II,Section 3 of the Rules of Procedure generally requires that appeals be filed on or before the tenth City business day following the date the Administrative Official"enters an order,ruling,decision,or determination that is the subject of the appeal . . . ." Board of Adjustment to issue a special exception to allow non-residential parking on those two lots,subject to conditions. No such special exception has been reported or found. AO Decision ATT Facility Page 3 Top PLACES �� 3800 University Boulevard West University Place, TX 77005 i www.westutx.gov jjThe City of\Vest University 1)1acc MI/ . I .\'ci;;hhurhood ( in UNLESS APPEALED AS PROVIDED ABOVE,THIS DECISION WILL BECOME FINAL. IF APPEALED,THIS DECISION CAN BE REVERSED, MODIFIED OR AFFIRMED BY THE ZONING BOARD OF ADJUSTMENT. NOTHING IN THIS DECISION CREATES ANY VESTED RIGHT OR PROPERTY RIGHT, BUT INSTEAD,ALL SITES, USES AND ACTIVITIES REMAIN FULLY SUBJECT TO THE REGULATORY AUTHORITY OF THE CITY. Other Administrative Remedies: In addition to the appeals mentioned above,other administrative remedies may apply to matters covered by this decision. These include (1)responding directly to the Administrative Official, in person,by phone,by fax, by email or by ma:.l (see contact information, below);(2)applying to the Board of Adjustment for a variance, special exception or interpretation,as applicable; (3)giving notices under Section 8-112 of the ZO for certain claims based on federal or state law; and(4)applying to the Zoning& Planning Commission or City Council,or both,to add or change applicable regulations. Applications to the Board of Adjustment or Zoning& Planning Commission should be in writing or fax and may be delivered to the Administrative Official(see contact information, below). Applications to the City Council should be in writing and delivered to the City Secretary, 3800 University Blvd.,West University Place,Texas 77005. Members of the public may also address the Board,Commission or Council in person during a meeting. Dates,times and places of meetings of the Board,Commission and Council are posted at 3800 University Blvd., West University Place,Texas • 77005 and on the City's website: http://www.westutx.gov/ . Generally. This decision does not authorize,allow or excuse any violations or failures to comply with the Zoning Ordinance or other laws,ordinances, rules or regulations. Penalties,sanctions and other remedies continue to apply to any such violations and failures to comply. This decision is not an order, but it is a notice of violation as contemplated by Section 54.017,Texas Local Government Code. • CITY OF WEST UNIVERSITY PLACE Date entered: //-10—/S� By: '''l./ . ---tet.-4.--C..4_42-,,_ Administrative Official . 3826 Amherst, West University Place,TX 77005 Phone: 713-662-5839. Fax: 713-662-5369 Email: dscarcella(. westutx.gov Date delivered to owner: 11-1 0-/S Delivered by: A --A"- Additional copies of this decision were delivered as follows: Karen Jones, Facility Manager(by electronic transmission and hand delivered on: ) Robert Grossman (by electronic transmission and hand delivered on: , ) David Cole (by electronic transmission and hand delivered on: ) ma AO Decision ATT Facility Page 4 TOP PLACES 3800 University Boulevard I West University Place, TX 77005 I www.westutx.gov Zoning Board of Adjustment City of West University Place,Texas("City") Docket No: 2015-18 DECISION REGARDING AN APPEAL FROM A DECISION OF THE ADMINISTRATIVE OFFICIAL Address of building site: 4068 Bellaire Boulevard, 6707 Academy and"0"Ruskin Street Legal description of the building site: Lot 1-6,Block 25 of Collegeview,Section 1, in Harris County,Texas. Applicant: Southwestern Bell Telephone Company dba AT&T Southwest; AT&T DataComm; and AT&T Texas Decision Appealed From: Determination of the Administrative Official reeardina the existing businees Activities located in the narkine area adiacent to the AT&T Facility at the corner of Bellaire Boulevard and Academy Street. The site was approved as a parking lot for Southwestern Bell Telephone Company (now AT&T) owned vehicles and the vehicles owned by SWBT employees. The use and location of waste storage areas (garbage and recycling material)and access by non-AT&T vehicles to the "loading dock"are prohibited in the residentially zoned parking area. Notice,Hearing,Determinations, Vote: (X) Notice of hearing was given by: Mail and on-site posting, in accordance with Article 11 of the Zoning Ordinance,by Debbie Scarcella,City Planner of the City. (X) Hearing was held on January 28,2016. (X) Findings and determinations(if any)have been made, as follows:N/A (X) The vote was: 4 in favor, 0 against this decision,and 1 abstained. Decision of the Zoning Board of Adjustment(subject to all applicable appeals): Under and subject to the City's Zoning Ordinance and applicable law, the Zoning Board of Adjustment hereby tak- -- . lowin_ action with regard to the administrative decision referenced above: reverses,i or ( )part (x)Affirms,in(x)whole r ( )part .'• , of er • • .e And,accordingly, the Board makes the correct order,requirement,decision or determination,as follows: An adequate loading space and any waste storage areas must be located on the south portion of the building site (area zoned Commercial) and surrounded by special screens that are kept securely closed when not in use. The parking lot area may not be used for waste storage or for non-ATT owned vehicular access to the loading platform. APPEAL,Page 1 Other Provisions: THIS DECISION APPLIES ONLY TO THE SPECIFIC ITEMS DEFINED ABOVE. IT DOES NOT APPLY TO ANY OTHER ASPECT, USE OR PART OF THE SITE OR STRUCTURE IN QUESTION,NOR DOES IT APPLY TO ANY OTHER ACTIVITY,SITE OR STRUCTURE. TO OBTAIN A RULING FOR ANY OTHER ITEM REQUIRES SEPARATE APPLICATION, NOTICE,HEARING, PROOF AND BOARD FINDINGS. NOTHING IN THIS DECISION IMPLIES THAT ANY SUCH FINDINGS WOULD OR WOULD NOT BE MADE BY THE BOARD. THIS DECISION REMAINS IN EFFECT FOR AN INDEFINITE PERIOD, UNLESS A TEMPORARY OR FIXED PERIOD IS INDICATED ABOVE. THIS DECISION REMAINS SUBJECT TO THE REGULATORY JURISDICTION OF THE CITY. IT MAY BE AMENDED OR REVOKED. THIS DECISION GRANTS NO PROPERTY RIGHT OR VESTED RIGHT OF ANY KIND. Effective Date&Appeals:Subject to any applicable appeals,this decision takes effect on the date it is filed in the Board's office(c/o Secretary of the Zoning Board of Adjustment, 3826 Amherst,West University Place,Texas 77005),unless otherwise indicated above. Any re-hearing of this decision is governed by the rules of the Zoning Board of Adjustment. Any appeals of this decision are subject to and governed by applicable ordinances and laws,including:the Zoning Ordinance and Chapter 211, Tex. Local Government Code. Under Chapter 211,petitions for judicial review must be presented within 10 days after the date this decision is filed in the Board's office. ZONING BOARD OF ADJUSTMENT, CITY ST UNIVERSITY PLACE,TEXA By. all J _ _ Presl' • ficer, oningl •"of Ai i r e t STATE OF TEXAS COUNTY OP HARRIS y r CL I ) This '• as before me on ,`l,`'(' t � (date) by An name as, ;: : cy..,of the Zoning Board of Adjustment of the ity of West University Place, Texas. -2v1/co :% n e iis: 15' 2-1 — ,„ = Notary Public ��� '4ofs�! ",js. ` tis filed in the Board's office on �/ y�f C , anc4 if a mailing list is attac�Ntr� ISIg were mailed to the persons on the list on (N/A. BY 0 Name.' lbebbta _5 ca. rc&/(c Title: e t Cop fez- Se , : APPEAL, Page 2 t fli tom%fi GtCy V1Vilt Scn KATA jont5 Robtrk Thelma A. Gilliam, TRMC, CMC From: rhgrossman <rhgrossman @aol.com> Sent: Saturday, January 12, 2019 12:59 PM To: Susan Sample; Kevin Boyle; Bob Higley; Mardi Turner; apetrovapetrov @westutx.gov; Thelma A. Gilliam, TRMC, CMC Subject: ATT is a self admitted scofflaw. Based on their violations of ordinances in the past, uses on the Ruskin lots should not be expanded. Delivered Mayor and Council to provide factual testimony despite the severe 3 minute time limitations Attachments: 02.0 1970 and 1975 THE LAW Ord 932 1039 Council Minutes &Code defs.pdf; 03.0 November 2015 Formal.pdf; 06.0 zba decision affirm november decision.pdf; 04.0HC excerpt 211 Texas local govenment code 211 Bestver.pdf; 999 211 Texas local govenment code 211 Bestver.pdf The undisputed facts are as follows: 1 . The 1970's Zoning Ordinances 1039 and 932 permitted AT&T to purchase homes on the first 6 blocks from the southeast corner of Ruskin and Academy and convert them to parking lots for parking vehicles owned by AT&T or its employees and no other commercial use. AT&T commuter vehicles parking on the residential streets had created severe traffic problems after AT&T built a building staffed by over 185 office workers on p g Y the only vacant property on its 4068 Bellaire campus. The parking lots did not exist before the ordinances. See 1039 and 932 and excerpts of the City Commission Minutes attached. (full minutes in AT&T current application) 2. From 2014 to 2016 AT&T admits that on the Ruskin Lots, company workers loaded trucks with equipment and supplies that were delivered in bulk to the 6707 Academy building. 3. The November 2015 Formal Decision of the Administrative Official (attached) interpreted ordinances 932 and 1039 as permitting parking and no other commercial use. 4. The November 2015 Formal Decision also states the following. The Ruskin lots were acquired and the parking lots were built as a result of ordinances 932 and 1039. There was never unregulated loading on the lots prior to the ordinances because the lots did not exist before the ordinances - homes were on the lots. AT&T's commercial uses other than parking were always illegal. An illegal use can never attain grandfather status (or achieve legitimacy through "prior not conforming status"). 5. In February 2016, responding to an AT&T appeal of the November Formal Decision, the ZBA affirmed the November 2015 Formal Decision (attached). 6. The ZBA finding was never appealed timely and has become final. Under Texas local government code (211 .009 and 211 attached), there is no authority to contradict or reverse the November 2015 Formal Decision -once it becomes final except by a Federal Court or Federal Law or by the City Council passing a new zoning ordinance voiding or replacing ordinance 1039 and 932. Conclusion: AT&T's statements that they loaded trucks in the lots for forty years prior up through 2016 are the braggadocio of a bully and a scofflaw. AT&T does not respect our ordinances. I request that the City Secretary, the Mayor, and the Council includes this submission in the official record of the proceedings and deliberations related to the January 14, 2019 hearing at Council of the AT&T request for a re-zoning of lots 1-6, Blk 25, Collegeview Section 1 and that this submission be available for any future judicial review. Respectfully submitted. Robert Grossman 832 877 0158 4103 Ruskin 2 ORDINANCE NUMBER 1039 AN ORDINANCE AMENDING ORDINANCE NUMBER 111 OF THE CITY OF fl WEST UNIVERSITY PLACE, TEXAS, BY PERMITTING LOTS 5, 6, 7, . 8, 9 AND 10, BLOCK 25, COLLEGEVIEW FIRST ADDITION, CITY —r OF WEST UNIVERSITY PLACE, TEXAS, TO BE USED FOR PARKING PURPOSES SUBJECT TO VARIOUS RESTRICTIONS; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF WEST UNIVERSITY PLACE, TEXAS: Section 1 . That Section 24C of Ordinance Number 111 of the City of West University Place, Texas.be, and it is hereby amended so that hereafter said Section 24C shall read as follows: "Section 24C. Collegeview First Addition; Block 25, Lots 1-10, Re- strictions. • A. A use that conforms in all respects to the requirements as to the use, lot size, location of main and accessory buildings, frontage, setbacks and size of main and acces- sory buildings, in Single Family Dwelling District Number VIII=A. B. Lots 1 , 2, 3, 4, 5 and 6 may be used as a narking lot for the parking of vehicles owned by the Snuthwpctprn Ra11 Telephone Company and/nr its employees. . Lots 7,. 8, 9 and 10 may be used as a:parking lot for the parking of passen- ger vehicles. All other vehicles are prohibited. When such lots are used for the purposes of parking, no struc- tures of any kind shall be constructed on said lots except as provided in Section:C below. "Passenger" vehicle is defined for the purposes of this Section as any vehicle designed and;used primarily for the transportation of passengers and having a maximum gross vehicular weight of 6,000 pounds. C. The use of said lots as a parking lot shall be conditioned upon compliance with the following regulations, to-wit: 1 . No entrance-exit shall be permitted onto Ruskin Street from Lots 1 , 2, 3, 4, 5 and 6. The size, number and location of curb cuts for entrance-exit onto Ruskin Street and Weslayan Street from Lots 7, 8, 9 and 10 shall require approval of the City Commission upon application by the owners of such lots, if and when such lots are used for parking purposes. 2. A hedge shall be planted and/or an opaque fence or wall constructed with a minimum height of 32' and a maximum height of 42' on the property line bordering Ruskin Street and Weslayan Street and bordering the -1.1 line of any adjacent lots which are not used for park- ing purposes. The type of hedge or wall located on the south line of the lots, if any, shall be subject 1 to the approval of the Chief of the Fire Department. If, in compliance with the aforesaid• provision, the owner of the parking lot desires to erect a masonry wall , such wall shall be constructed in accordance with specifications for "masonry walls" in the Code of Ordinances of the City of West University Place, Texas. 3. There shall be a minimum of two (2) feet from the • property line to the edge. of the parking surface. • 4. All parking area shall be paved with a stabilized all-weather surface, or concrete, provided, however, no concrete :paving shall be placed over existing sanitary sewer and waterlines located in the easement area.. • • 5. Sufficient light shall be provided to adequately illuminate such lots and shall be'of the type which will illuminate the parking lot only. 6. Signs for the pur.pose:of identifying .the property �--, shall not exceed six (6) square feet in area and shall be restricted to locations at entrances and exits and if illuminated shall be a constant-light source and. not to be intermittent or flashing light." Section 2. This ordinance shall be in full force and effect immedia- tely from and after its passage and approval by the Mayor. PASSED AND APPROVED this 26t11 day of May, 1975. Commissioners Voting Aye: All Commissioners Voting No: None ayor ATTEST: ik , , or I _, Assistant City Secretary n PUBLIC HEARING CITY COMMISSION AND ZONING AND PLANNING COMMISSION APRIL 22. 1975 Mr. Hines stated that an application had been filed by Southwestern Bell Telephone Company to rezone Lots 5 and 6, Block 25, Collegeview 1st Addition and the Zoning and Planning Commission had added Lots 7,-8, 9 and 10, Block 25, Collegeview 1st Addition, as part of the property to be rezoned for vehicular parking. Mayor Wallin administered the Oath to Mr. Bill Knight, Mrs . Miriam Israel, Mr. Win Patridge and Mr. Arthur Goldman. Mr. Knight, District Manager, Southwestern Bell Telephone Company, whose home address is 6214 Rutherglen, advised the Commission that adequate parking spaces for employees of Southwestern Bell had been a long standing problem for the company, the city, Police Department and residents of the area. Mr. Knight stated they now have sixty (60) parking spaces on their existing lot, twenty-five (25) spaces in front of the building, twenty (20) spaces on the west side of Academy, and that the new lot construction will provide an additional thirty-five (35) spaces. Mr. Knight further stated that a survey of employees indicated there were 185 of whom drove automobiles to work. The proposed parking lot would be re-vamped to include the existing lot, with new lighting, re-striped and have a curb cut onto Ruskin Street. Mr. Knight advised the Commission that all recommendations by the Fire Chief and Police Chief had been considered in the preparation of plans for the parking lot in hopes that many of the problems encountered in the past might be eliminated. Mrs. Miriam Israel, 5511 Cheltenham, stated that she owned the property at 4003 Ruskin, and that she was in favor of the recommendation, however, she felt some changes should be made in the construction of the proposed parking lot, inasmuch as she thought permitting traffic from the lot onto Ruskin would be dangerous since it was a narrow street, and it was her belief that all traffic should be onto Academy. Motion by Commissioner Stanley, seconded by Commissioner Binig, that the meeting of the City Commission be recessed until 7:00 p.m. , Monday, May 5, 1975. Voting Aye: All Voting Na: None 127 Ordinance 932 Dade 1/2 ORDINANC: N'IMEE.R 93? tiT CRLINANCE .1-U.1ND1NC ORDINACE NUMBER 111 OF THE CITY OF JEST UNIVERSITY PLACE, TEXAS, BY PERMITTING LOTS 1, 2, 3, and LI, BLOCK 25, COLLECE\TIEW FIRST ADDITION., CITY OF WEST UNIVERSITY PLACE, TEXAS, TO BE USED FOR PARKING PORPOSES STBJECT TO VARIOUS RESTRICTIONS; AND PROVIDING AN EFFECT1V2 DATE. BE IT ORDAINED BY THE CITY COMMISSION OF Tii7, CITY OF WEST UNIVER- SITY PLACE. TEXAS: SECTION 1. That Ordinance number ill (.f. tt.e City of West Univer- sity Place, 'lexas, be and it is herebj amended by the adjit n theret, of Section 240, immediately following Section 24P, which ss:1 Section 24C shall read as fr,llows: "Secl-ion 24C. Lots 1, 2, 3 and 4, Block 25, C -llegeview First Addition, City of 'Jest University Place, Texas, shall be usel for the follow- ing purses and no o' ners: A. iA use that cc forms in all respecLs t he reluiremerrs PS to the use, lot size, location of main and accessory build- ings, frontage, setbacks and size of main and accessory build- ings, in Single Family Dwelling District Number VIII-A. B. A parking lot for the ParkinR (DC veh'cles uwded hv Lhe :goutb- wes'ern Bell Telephone Company and or ifs employees and wher used for such purposes no s' ru&ures of any kind shall be constructed on said parking lot , except signs as provided in Section C-(7) of this ordinance. C. The use of said lots as a parking lot shall be conditioned upon compliance with the following regulations, t -wit: (1) No entrances or exits shall Le allowed on the Ruskin Street side of the parking 1 t. Ail entrances and exits shall be on Academy Street. (2) A hedge shall be planted along the entire width of the parking lot on Ruskin Street and along the Academy Stree' side of the parking lot in compliance with Article V, Section 20.72 through and including Section 20.75 of the Code of Ordinances Lf the City of West University Place, Texas (Ordinance number 741) . € Ordinance 932 tc Homo 9/9 (3) An opaque fence or wall shall be constructed on the east property line of Lot 4, beginning at the setback line of Lot 5, which is 20 ft. , preceding south along the east property line of Lot 4, thence west along the south property line of Lot !' and a portion of Lot 3, to its intersection with the cast property line of South- western Bell Telephone Company's existing property, such fence or wall to be a minimum of six (6) feet in height and a maximum of seven (7) feet In height, from ground level. If, in compliance with the aforesaid provision, the owner of the parking lot desires to erect a masonry wall, such wall shall be constructed in accordance with specifications for "masonry walls" in the Code of Ordi- nances of the City of ;lest University Place, Texas. (4) There shall be a minimum of two (2) feet from the property line to the edge of the parking surface. (5) All parking area shall be paved with a stabilized all-weather surface, or concrete, provided, however, no concrete paring shall be placed over existing sanitary sewer and water lines in the reserved twenty (20) foot strip. (i) If light is provided, it shall be of the type which will illuminate the parking lot only. (7) Signs for the purpose of identifying the property shall not exceed six (6) square feet in area and shall be re- stricted to locations at entrances and exits and if illu- minated shall be a constant light source and not to be intermittent or flashing light." SECTION 2. This Ordinance shall be in full force and effect immediately from and after its passage and approval by the Mayor. PASSED AND APPROVED this 26th day of January, l970. Commissioners Voting Aye: All Commissioners Voting No: None la .`ice ATTEST: Assistant City Secretary PUBLIC HEARING CITY COMMISSION AND ZONING AND PLANNING COMMISSION JANUARY 13, 1970 Mayor Ramsey then administered the Oath to all those desiring to be heard. Mr. Howard Burney, District Manager of the MOhawk. Exchange of the Southwestern Bell Telephone. Company, stated the proposed off-street parking for their employees on Lots 1, 2, 3 and 14, Block 25, Collegeview 1st, was to control a long standing problem. He stated they were deeply sympathetic with the residents in the area where Telephone Company employees were parking in front or at the side of their homes causing problems for them, and he felt this was the best possible solution Mr. Hilton stated that he would like Mr. Burney to affirm that the parking lot construction, if permitted, would be used as a parking lot for employees of the Telephone Company during normal working hours and that no houses for "checking in and out": would be constructed. Mr. Burney stated that this was correct. Motion by Mr. Bricker, seconded by Mr. Lott, that the Public Hearing called by the Zoning and Planning Commission be closed. Voting Aye: All Voting No: None Motion by Mr. Hilton, seconded by Mr. Lott, that the Zoning and Planning Commission recommend to the City Commission that the city's zoning ordinance be amended to provide that Lots 1, 2, 3 and 4, Block 25, Collegeview 1st Addition be rezoned for use for parking automobiles owned by employees of the Southwestern Bell Telephone Company. Voting Aye; All Voting No: None Motion by Commissioner Proctor, seconded by Commissioner Scott, that the recommendation of the Zoning and Planning Commission be adopted and the City Attorney be instructed to prepare an ordinance to amend the Zoning Ordinance to rezone Lots 1, 2, 3, and 4, Block 25, Collegeview 1st Addition for use for parking automobiles owned by employees of the Southwestern Bell Telephone Company. Voting Aye: All Voting No: None Upon motion duly made, seconded and carried, by the City Commission and the Zoning and Planning Commission, the meeting was adjourned at 9:08 p.m. maintenance, repair or reconstruction of non-common structures. (7) Building Lines. It includes building lines approved by the Z&PC based upon the specific characteristics of the site and adjoining areas. Building lines may be deeper(or greater)than the otherwise-applicable yard areas.Areas between a building line and the street are designated and regulated as yards(front, side, etc.). (8) Title Block; Restrictions.The title block designates it a "qualified medium-density subdivision" and incorporates the applicable provisions of the Zoning Ordinance and Chapter 74. It must recite that all restrictions on the plat or incorporated into the plat shall "run with the land"and shall be independently enforceable by any person or entity having an interest in property included in the plat (which may include the City)and by any homeowner's association that may be created.Any such enforcement by the City is an additional, alternative remedy for the City. Reside.To live or to intend to live at a place either indefinitely or longer than 42 days. Residential district includes all SF,TH and GR districts and all portions of a PDD rIecigatari primarily fnr residential purposes. Residential purposes(or uses). Ordinary domestic purposes(or uses), not involving any business, commercial, industrial or institutional activity,whether carried on for profit or not. Providing any good or service,or offering to provide it, on or from any premises to or for anyone who does not reside on the same premises in exchange for any money or thing of value,whether demanded or accepted, is a business activity. However, in any proceeding where the presence of a business activity under this ordinance is an issue, it shall be an affirmative defense that the alleged business activity was only an incidental sale or was part of a home occupation, but such an affirmative defense shall not apply to any alleged violation of another ordinance of the City unless the other ordinance so provides. Residential street.Any street, other than a major thoroughfare, abutting a given building site where,within 200 feet in either direction along both sides of the street(measured from the side property lines of the given building site), 51 percent or more of the property fronting on either side of the street is within a residential district. Residential worker.A person who is employed to perform residential services at least 25 hours per week at the same premises where the person resides. Residential services are personal services which are performed for someone who also resides on the premises and which are purely residential in nature(and not income- producing)such as cooking, cleaning,attending children or handicapped persons or maintaining the grounds. Roadway means that portion of a street area improved, designed or ordinarily used for vehicular traffic (excluding private driveways). Rotated corner building site or lot means a corner building site in the SF-1 District which has been "rotated" from one street to the other, such that it has a front street line lying along a street that is different from the street along which the front street line of the original corner lot would lie.The original corner lot is the single subdivided lot on the same corner, as created by the plan recorded in Volume 444, Page 563 of the Deed Records of Harris County,Texas, entitled "Map Showing West University Place, a Part of the A.C. Reynolds Survey, Harris County,Texas." In the SF-1 District, most rotated corner building sites will be oriented north- south, because most of the original corner lots were oriented east-west(except for lots along University Boulevard or Cason Street). Zoning Board of Adjustment City of West University Place,Texas("City") Docket No: 2015-18 DECISION REGARDING AN APPEAL FROM A DECISION OF THE ADMINISTRATIVE OFFICIAL Address of building site: 4068 Bellaire Boulevard,6707 Academy and"0"Ruskin Street Legal description of the building site: Lot 1-6, Block 25 of Collegeview,Section 1, in Harris County,Texas. Applicant: Southwestern Bell Telephone Company dba AT&T Southwest; AT&T DataComm; and AT&T Texas Decision Appealed From: Determination of the Administrative Official reeardine the existinn business activities located in the narkine area adjacent to the AT&T Facility at the corner of Bellaire Boulevard and Academy Street. The site was approved as a parking lot for Southwestern Bell Telephone Company (now AT&T) owned vehicles and the vehicles owned by SWBT employees. The use and location of waste storage areas (garbage and recycling material)and access by non-AT&T vehicles to the "loading dock"are prohibited in the residentially zoned parking area. Notice,Hearing,Determinations, Vote: (X) Notice of hearing was given by: Mail and on-site posting, in accordance with Article 11 of the Zoning Ordinance,by Debbie Scarcella,City Planner of the City. (X) Hearing was held on January 28,2016. (X) Findings and determinations(if any)have been made, as follows:N/A (X) The vote was: 4 in favor, 0 against this decision,and 1 abstained. Decision of the Zoning Board of Adjustment(subject to all applicable appeals): Under and subject to the City's Zoning Ordinance and applicable law, the Zoning Board of Adjustment hereby tak- .- . lowin action with regard to the administrative decision referenced above: reverses,i or ( )part (x) Affirms,in(x)whole r ( )part , of cr . • .e And,accordingly, the Board makes the correct order,requirement,decision or determination,as follows: An adequate loading space and any waste storage areas must be located on the south portion of the building site (area zoned Commercial) and surrounded by special screens that are kept securely closed when not in use. The parking lot area may not be used for waste storage or for non-ATT owned vehicular access to the loading platform. APPEAL,Page 1 Other Provisions: THIS DECISION APPLIES ONLY TO THE SPECIFIC ITEMS DEFINED ABOVE. IT DOES NOT APPLY TO ANY OTHER ASPECT, USE OR PART OF THE SITE OR STRUCTURE IN QUESTION,NOR DOES IT APPLY TO ANY OTHER ACTIVITY, SITE OR STRUCTURE. TO OBTAIN A RULING FOR ANY OTHER ITEM REQUIRES SEPARATE APPLICATION, NOTICE,HEARING,PROOF AND BOARD FINDINGS. NOTHING IN THIS DECISION IMPLIES THAT ANY SUCH FINDINGS WOULD OR WOULD NOT BE MADE BY THE BOARD. THIS DECISION REMAINS IN EFFECT FOR AN INDEFINITE PERIOD, UNLESS A TEMPORARY OR FIXED PERIOD IS INDICATED ABOVE. THIS DECISION REMAINS SUBJECT TO THE REGULATORY JURISDICTION OF THE CITY. IT MAY BE AMENDED OR REVOKED. THIS DECISION GRANTS NO PROPERTY RIGHT OR VESTED RIGHT OF ANY KIND. Effective Date&Appeals: Subject to any applicable appeals,this decision takes effect on the date it is filed in the Board's office(c/o Secretary of the Zoning Board of Adjustment, 3826 Amherst,West University Place,Texas 77005),unless otherwise indicated above. Any re-hearing of this decision is governed by the rules of the Zoning Board of Adjustment. Any appeals of this decision are subject to and governed by applicable ordinances and laws, including: the Zoning Ordinance and Chapter 211, Tex. Local Government Code. Under Chapter 211,petitions for judicial review must be presented within 10 days after the date this decision is filed in the Board's office. ZONING BOARD OF ADJUSTMENT, CITY OF WEST UNIVERSITY PLACE,TEXA Pres f ficer, oningV: of A•j j i ant STATE OF TEXAS COUNTY OF as acknowledged g ...,21.:k4• ( y 4t 4[ � ) This '•. as aclazowled ed before me on ' t C. (date) by An i name �: •• : of the Zoning Board of Adjustment of the ity of ' est University Place, Texas. kV!!co . n ei{pirts: a`1 I F' _ s). 4y = Notary Public lb IrE 000. s;�,.. Os filed in the Board's office on ,Zi/1 L �(� , ana if a mailing list is attadl4vr rittiptg‘were mailed to the persons on the list on (N/A. Name' ebb' _5 co_ rc&l(o Title: e t n e t,-4.41 Cop Leh jam. • APPEAL, Page 2 6 Vt�'i1�n gme,r,Tort—5 R o ha4 cr,hS 04`-- 'l d. (Alt- LOCAL GOVERNMENT CODE TITLE 7. REGULATION OF LAND USE, STRUCTURES, BUSINESSES, AND RELATED ACTIVITIES SUBTITLE A. MUNICIPAL REGULATORY AUTHORITY CHAPTER 211. MUNICIPAL ZONING AUTHORITY SUBCHAPTER A. GENERAL ZONING REGULATIONS Sec. 211.001. PURPOSE. The powers granted under this subchapter are for the purpose of promoting the public health, safety, morals, or general welfare and protecting and preserving places and areas of historical, cultural, or architectural importance and significance. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 211.002. ADOPTION OF REGULATION OR BOUNDARY INCLUDES AMENDMENT OR OTHER CHANGE. A reference in this subchapter to the adoption of a zoning regulation or a zoning district boundary includes the amendment, repeal, or other change of a regulation or boundary. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 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; (5) the location and use of buildings, other structures, and land for business, industrial, residential, or other purposes; and (6) the pumping, extraction, and use of groundwater by persons other than retail public utilities, as defined by Section 13.002, Water Code, for the purpose of preventing the use or contact with groundwater that presents an actual or potential threat to human health. 1 (b) In the case of designated places and areas of historical, cultural, or architectural importance and significance, the governing body of a municipality may regulate the construction, reconstruction, alteration, or razing of buildings and other structures. (c) The governing body of a home-rule municipality may also regulate the bulk of buildings. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 2003, 78th Leg. , ch. 731, Sec. 2, eff. Sept. 1, 2003. Sec. 211.0035. ZONING REGULATIONS AND DISTRICT BOUNDARIES APPLICABLE TO PAWNSHOPS. (a) In this section, "pawnshop" has the meaning assigned by Section 371.003, Finance Code. (b) For the purposes of zoning regulation and determination of zoning district boundaries, the governing body of a municipality shall designate pawnshops that have been licensed to transact business by the Consumer Credit Commissioner under Chapter 371, Finance Code, as a permitted use in one or more zoning classifications. (c) The governing body of a municipality may not impose a specific use permit requirement or any requirement similar in effect to a specific use permit requirement on a pawnshop that has been licensed to transact business by the Consumer Credit Commissioner under Chapter 371, Finance Code. Added by Acts 1991, 72nd Leg. , ch. 687, Sec. 18, eff. Sept. 1, 1991. Amended by Acts 1999, 76th Leg. , ch. 62, Sec. 7.81, eff. Sept. 1, 1999. Sec. 211.004. COMPLIANCE WITH COMPREHENSIVE PLAN. (a) Zoning regulations must be adopted in accordance with a comprehensive plan and must be designed to: (1) lessen congestion in the streets; (2) secure safety from fire, panic, and other dangers; (3) promote health and the general welfare; (4) provide adequate light and air; (5) prevent the overcrowding of land; (6) avoid undue concentration of population; or 2 (7) facilitate the adequate provision of transportation, water, sewers, schools, parks, and other public requirements. (b) Repealed by Acts 1997, 75th Leg. , ch. 459, Sec. 2, eff. Sept. 1, 1997. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg. , ch. 458, Sec. 1, eff. Aug. 28, 1989; Acts 1997, 75th Leg. , ch. 459, Sec. 2, eff. Sept. 1, 1997. Sec. 211.005. DISTRICTS. (a) The governing body of a municipality may divide the municipality into districts of a number, shape, and size the governing body considers best for carrying out this subchapter. Within each district, the governing body may regulate the erection, construction, reconstruction, alteration, repair, or use of buildings, other structures, or land. (b) Zoning regulations must be uniform for each class or kind of building in a district, but the regulations may vary from district to district. The regulations shall be adopted with reasonable consideration, among other things, for the character of each district and its peculiar suitability for particular uses, with a view of conserving the value of buildings and encouraging the most appropriate use of land in the municipality. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 211.006. PROCEDURES GOVERNING ADOPTION OF ZONING REGULATIONS AND DISTRICT BOUNDARIES. (a) The governing body of a municipality wishing to exercise the authority relating to zoning regulations and zoning district boundaries shall establish procedures for adopting and enforcing the regulations and boundaries. A regulation or boundary is not effective until after a public hearing on the matter at which parties in interest and citizens have an opportunity to be heard. Before the 15th day before the date of the hearing, notice of the time and place of the hearing must be published in an official newspaper or a newspaper of general circulation in the municipality. (b) In addition to the notice required by Subsection (a) , a general-law municipality that does not have a zoning commission 3 shall give notice of a proposed change in a zoning classification to each property owner who would be entitled to notice under Section 211.007(c) if the municipality had a zoning commission. That notice must be given in the same manner as required for notice to property owners under Section 211.007(c) . The governing body may not adopt the proposed change until after the 30th day after the date the notice required by this subsection is given. (c) If the governing body of a home-rule municipality conducts a hearing under Subsection (a) , the governing body may, by a two-thirds vote, prescribe the type of notice to be given of the time and place of the public hearing. Notice requirements prescribed under this subsection are in addition to the publication of notice required by Subsection (a) . (d) If a proposed change to a regulation or boundary is protested in accordance with this subsection, the proposed change must receive, in order to take effect, the affirmative vote of at least three-fourths of all members of the governing body. The protest must be written and signed by the owners of at least 20 percent of either: (1) the area of the lots or land covered by the proposed change; or (2) the area of the lots or land immediately adjoining the area covered by the proposed change and extending 200 feet from that area. (e) In computing the percentage of land area under Subsection (d) , the area of streets and alleys shall be included. (f) The governing body by ordinance may provide that the affirmative vote of at least three-fourths of all its members is required to overrule a recommendation of the municipality's zoning commission that a proposed change to a regulation or boundary be denied. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 211.007. ZONING COMMISSION. (a) To exercise the powers authorized by this subchapter, the governing body of a home-rule municipality shall, and the governing body of a general-law municipality may, appoint a zoning commission. The 4 commission shall recommend boundaries for the original zoning districts and appropriate zoning regulations for each district. If the municipality has a municipal planning commission at the time of implementation of this subchapter, the governing body may appoint that commission to serve as the zoning commission. (b) The zoning commission shall make a preliminary report and hold public hearings on that report before submitting a final report to the governing body. The governing body may not hold a public hearing until it receives the final report of the zoning commission unless the governing body by ordinance provides that a public hearing is to be held, after the notice required by Section 211.006(a) , jointly with a public hearing required to be held by the zoning commission. In either case, the governing body may not take action on the matter until it receives the final report of the zoning commission. (c) Before the 10th day before the hearing date, written notice of each public hearing before the zoning commission on a proposed change in a zoning classification shall be sent to each owner, as indicated by the most recently approved municipal tax roll, of real property within 200 feet of the property on which the change in classification is proposed. The notice may be served by its deposit in the municipality, properly addressed with postage paid, in the United States mail. If the property within 200 feet of the property on which the change is proposed is located in territory annexed to the municipality and is not included on the most recently approved municipal tax roll, the notice shall be given in the manner provided by Section 211.006(a) . (c-1) Before the 10th day before the hearing date, written notice of each public hearing before the zoning commission on a proposed change in a zoning classification affecting residential or multifamily zoning shall be sent to each school district in which the property for which the change in classification is proposed is located. The notice may be served by its deposit in the municipality, properly addressed with postage paid, in the United States mail. (c-2) Subsection (c-1) does not apply to a municipality the majority of which is located in a county with a population of 5 100,000 or less, except that such a municipality must give notice under Subsection (c-1) to a school district that has territory in the municipality and requests the notice. For purposes of this subsection, if a school district makes a request for notice under Subsection (c-1) , the municipality must give notice of each public hearing held following the request unless the school district requests that no further notices under Subsection (c-1) be given to the school district. (d) The governing body of a home-rule municipality may, by a two-thirds vote, prescribe the type of notice to be given of the time and place of a public hearing held jointly by the governing body and the zoning commission. If notice requirements are prescribed under this subsection, the notice requirements prescribed by Subsections (b) and (c) and by Section 211.006(a) do not apply. (e) If a general-law municipality exercises zoning authority without the appointment of a zoning commission, any reference in a law to a municipal zoning commission or planning commission means the governing body of the municipality. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by: Acts 2013, 83rd Leg. , R.S. , Ch. 640 (H.B. 674) , Sec. 1, eff. September 1, 2013. Sec. 211.0075. COMPLIANCE WITH OPEN MEETINGS LAW. A board or commission established by an ordinance or resolution adopted by the governing body of a municipality to assist the governing body in developing an initial comprehensive zoning plan or initial zoning regulations for the municipality, or a committee of the board or commission that includes one or more members of the board or commission, is subject to Chapter 551, Government Code, regardless of whether the board, commission, or committee has rulemaking or quasi-judicial powers or functions only in an advisory capacity. Added by Acts 1993, 73rd Leg. , ch. 381, Sec. 1, eff. Aug. 30, 1993. Amended by Acts 1995, 74th Leg. , ch. 76, Sec. 5.95(82) , eff. Sept. 1, 1995. 6 Sec. 211.008. BOARD OF ADJUSTMENT. (a) The governing body of a municipality may provide for the appointment of a board of adjustment. In the regulations adopted under this subchapter, the governing body may authorize the board of adjustment, in appropriate cases and subject to appropriate conditions and safeguards, to make special exceptions to the terms of the zoning ordinance that are consistent with the general purpose and intent of the ordinance and in accordance with any applicable rules contained in the ordinance. (b) A board of adjustment must consitt of at least five members to be appointed for terms of two years. The governing body must provide the procedure for appointment. The governing body may authorize each member of the governing body, including the mayor, to appoint one member to the board. The appointing authority may remove a board member for cause, as found by the appointing authority, on a written charge after a public hearing. A vacancy on the board shall be filled for the unexpired term. (c) The governing body, by charter or ordinance, may provide for the appointment of alternate board members to serve in the absence of one or more regular members when requested to do so by the mayor or city manager. An alternate member serves for the same period as a regular member and is subject to removal in the same manner as a regular member. A vacancy among the alternate members is filled in the same manner as a vacancy among the regular members. (d) Each case before the board of adjustment must be heard by at least 75 percent of the members. (e) The board by majority vote shall adopt rules in accordance with any ordinance adopted under this subchapter. Meetings of the board are held at the call of the presiding officer and at other times as determined by the board. The presiding officer or acting presiding officer may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. (f) The board shall keep minutes of its proceedings that indicate the vote of each member on each question or the fact that a member is absent or fails to vote. The board shall keep records of its examinations and other official actions. The minutes and 7 records shall be filed immediately in the board's office and are public records. (g) The governing body of a Type A general-law municipality by ordinance may grant the members of the governing body the authority to act as a board of adjustment under this chapter. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg. , ch. 126, Sec. 1, eff. Sept. 1, 1993; Acts 1995, 74th Leg. , ch. 724, Sec. 1, eff. Aug. 28, 1995; Acts 1997, 75th Leg. , ch. 363, Sec. 1, eff. Sept. 1, 1997. Sec. 211.009. AUTHORITY OF BOARD. (a) The board of adjustment may: (1) hear and decide an appeal that alleges error in an order, requirement, decision, or determination made by an administrative official in the enforcement of this subchapter or an ordinance adopted under this subchapter; (2) hear and decide special exceptions to the terms of a zoning ordinance when the ordinance requires the board to do so; (3) authorize in specific cases a variance from the terms of a zoning ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of the ordinance is observed and substantial justice is done; and (4) hear and decide other matters authorized by an ordinance adopted under this subchapter. (b) In exercising its authority under Subsection (a) (1) , the board may reverse or affirm, in whole or in part, or modify the administrative official's order, requirement, decision, or determination from which an appeal is taken and make the correct order, requirement, decision, or determination, and for that purpose the board has the same authority as the administrative official. (c) The concurring vote of 75 percent of the members of the board is necessary to: (1) reverse an order, requirement, decision, or determination of an administrative official; 8 (2) decide in favor of an applicant on a matter on which the board is required to pass under a zoning ordinance; or (3) authorize a variation from the terms of a zoning ordinance. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg. , ch. 126, Sec. 2, eff. Sept. 1, 1993; Acts 1995, 74th Leg. , ch. 724, Sec. 2, eff. Aug. 28, 1995. Sec. 211.010. APPEAL TO BOARD. (a) Except as provided by Subsection (e) , any of the following persons may appeal to the board of adjustment a decision made by an administrative official: (1) a person aggrieved by the decision; or (2) any officer, department, board, or bureau of the municipality affected by the decision. (b) The appellant must file with the board and the official from whom the appeal is taken a notice of appeal specifying the grounds for the appeal. The appeal must be filed within a reasonable time as determined by the rules of the board. On receiving the notice, the official from whom the appeal is taken shall immediately transmit to the board all the papers constituting the record of the action that is appealed. (c) An appeal stays all proceedings in furtherance of the action that is appealed unless the official from whom the appeal is taken certifies in writing to the board facts supporting the official's opinion that a stay would cause imminent peril to life or property. In that case, the proceedings may be stayed only by a restraining order granted by the board or a court of record on application, after notice to the official, if due cause is shown. (d) The board shall set a reasonable time for the appeal hearing and shall give public notice of the hearing and due notice to the parties in interest. A party may appear at the appeal hearing in person or by agent or attorney. The board shall decide the appeal within a reasonable time. (e) A member of the governing body of the municipality who serves on the board of adjustment under Section 211.008(g) may not bring an appeal under this section. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended 9 by Acts 1997, 75th Leg. , ch. 363, Sec. 2, eff. Sept. 1, 1997. Sec. 211.011. JUDICIAL REVIEW OF BOARD DECISION. (a) Any of the following persons may present to a district court, county court, or county court at law a verified petition stating that the decision of the board of adjustment is illegal in whole or in part and specifying the grounds of the illegality: (1) a person aggrieved by a decision of the board; (2) a taxpayer; or (3) an officer, department, board, or bureau of the municipality. (b) The petition must be presented within 10 days after the date the decision is filed in the board's office. (c) On the presentation of the petition, the court may grant a writ of certiorari directed to the board to review the board's decision. The writ must indicate the time by which the board's return must be made and served on the petitioner's attorney, which must be after 10 days and may be extended by the court. Granting of the writ does not stay the proceedings on the decision under appeal, but on application and after notice to the board the court may grant a restraining order if due cause is shown. (d) The board's return must be verified and must concisely state any pertinent and material facts that show the grounds of the decision under appeal. The board is not required to return the original documents on which the board acted but may return certified or sworn copies of the documents or parts of the documents as required by the writ. (e) If at the hearing the court determines that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take evidence as directed. The referee shall report the evidence to the court with the referee's findings of fact and conclusions of law. The referee's report constitutes a part of the proceedings on which the court shall make • its decision. (f) The court may reverse or affirm, in whole or in part, or modify the decision that is appealed. Costs may not be assessed against the board unless the court determines that the board acted 10 with gross negligence, in bad faith, or with malice in making its decision. (g) The court may not apply a different standard of review to a decision of a board of adjustment that is composed of members of the governing body of the municipality under Section 211.008(g) than is applied to a decision of a board of adjustment that does not contain members of the governing body of a municipality. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1997, 75th Leg. , ch. 363, Sec. 3, eff. Sept. 1, 1997; Acts 1999, 76th Leg. , ch. 646, Sec. 1, eff. Aug. 30, 1999. Sec. 211.012. ENFORCEMENT; PENALTY; REMEDIES. (a) The governing body of a municipality may adopt ordinances to enforce this subchapter or any ordinance or regulation adopted under this subchapter. (b) A person commits an offense if the person violates this subchapter or an ordinance or regulation adopted under this subchapter. An offense under this subsection is a misdemeanor, punishable by fine, imprisonment, or both, as provided by the governing body. The governing body may also provide civil penalties for a violation. (c) If a building or other structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained or if a building, other structure, or land is used in violation of this subchapter or an ordinance or regulation adopted under this subchapter, the appropriate municipal authority, in addition to other remedies, may institute appropriate action to: (1) prevent the unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, or use; (2) restrain, correct, or abate the violation; (3) prevent the occupancy of the building, structure, or land; or (4) prevent any illegal act, conduct, business, or use on or about the premises. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. 11 Sec. 211.013. CONFLICT WITH OTHER LAWS; EXCEPTIONS. (a) If a zoning regulation adopted under this subchapter requires a greater width or size of a yard, court, or other open space, requires a lower building height or fewer number of stories for a building, requires a greater percentage of lot to be left unoccupied, or otherwise imposes higher standards than those required under another statute or local ordinance or regulation, the regulation adopted under this subchapter controls. If the other statute or local ordinance or regulation imposes higher standards, that statute, ordinance, or regulation controls. (b) This subchapter does not authorize the governing body of a municipality to require the removal or destruction of property that exists at the time the governing body implements this subchapter and that is actually and necessarily used in a public service business. (c) This subchapter does not apply to a building, other structure, or land under the control, administration, or jurisdiction of a state or federal agency. (d) This subchapter applies to a privately owned building or other structure and privately owned land when leased to a state agency. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1999, 76th Leg. , ch. 476, Sec. 1, eff. June 18, 1999. Sec. 211.014. PANEL OF BOARD OF ADJUSTMENT. (a) This section applies only to a municipality with a population of 500,000 or more. (b) A board of adjustment shall consist of one or more panels of at least five members each to be appointed for terms of two years. If more than one panel of the board is appointed, the board consists of the regular members of all of the panels. The board may adopt rules for the assignment of appeals to a panel. (c) If the board consists of more than one panel, only one panel may hear, handle, or render a decision in a particular case. A decision of a panel of the board on a case constitutes the decision of the board. (d) Meetings of a panel of the board are held at the call of 12 the presiding officer of the panel and at other times as determined by the panel or the board. (e) A panel of a board of adjustment: (1) has the powers and duties that a board of adjustment has under Sections 211.008, 211.009, 211.010, and 211.011; and (2) is to be treated as a board of adjustment for purposes of the requirement imposed by Section 211.008(d) . Added by Acts 1993, 73rd Leg. , ch. 126, Sec. 3, eff. Sept. 1, 1993. Amended by Acts 2001, 77th Leg. , ch. 402, Sec. 12, eff. Sept. 1, 2001; Acts 2001, 77th Leg. , ch. 669, Sec. 73, eff. Sept. 1, 2001. Amended by: Acts 2005, 79th Leg. , Ch. 24 (S.B. 177) , Sec. 1, eff. May 9, 2005. Sec. 211.015. ZONING REFERENDUM IN HOME-RULE MUNICIPALITY. (a) Notwithstanding other requirements of this subchapter, the voters of a home-rule municipality may repeal the municipality's zoning regulations adopted under this subchapter by either: (1) a charter election conducted under law; or (2) on the initial adoption of zoning regulations by a municipality, the use of any referendum process that is authorized under the charter of the municipality for public protest of the adoption of an ordinance. (b) Notwithstanding any procedural or other requirements of this chapter to the contrary, the governing body of a home-rule municipality may on its own motion submit the repeal of the municipality's zoning regulations, as adopted under this chapter, in their entirety to the electors by use of any process that is authorized under the charter of the municipality for a popular vote on the rejection or repeal of ordinances in general. (c) The provisions of this chapter shall not be construed to prohibit the adoption or application of any charter provision of a home-rule municipality that requires a waiting period prior to the adoption of zoning regulations or the submission of the initial adoption of zoning regulations to a binding referendum election, or both, provided that all procedural requirements of this chapter for 13 the adoption of the zoning regulation are otherwise complied with. This subsection does not apply to the adoption of airport zoning regulations under Chapter 241. (d) Notwithstanding any charter provision to the contrary, a governing body of a municipality may adopt a zoning ordinance and condition its taking effect upon the ordinance receiving the approval of the electors at an election held for that purpose. (e) The provisions of this section may only be utilized for the repeal of a municipality's zoning regulations in their entirety or for determinations of whether a municipality should initially adopt zoning regulations, except the governing body of a municipality may amend, modify, or repeal a zoning ordinance adopted, approved, or ratified at an election conducted pursuant to • this section. (f) The provisions of this section shall not authorize the repeal of: (1) an ordinance approving land-use regulations adopted under the provisions of this chapter by a board of directors of a reinvestment zone under the authority of Section 311.010(c) , Tax Code; or (2) an ordinance approving airport zoning regulations adopted under Chapter 241. Added by Acts 1993, 73rd Leg. , ch. 126, Sec. 4, eff. Sept. 1, 1993. Amended by: Acts 2007, 80th Leg. , R.S. , Ch. 190 (S.B. 1360) , Sec. 1, eff. May 23, 2007. Sec. 211.016. ZONING REGULATION AFFECTING APPEARANCE OF BUILDINGS OR OPEN SPACE. (a) This section applies only to a zoning regulation that affects: (1) the exterior appearance of a single-family house, including the type and amount of building materials; or (2) the landscaping of a single-family residential lot, including the type and amount of plants or landscaping materials. (b) A zoning regulation adopted after the approval of a residential subdivision plat does not apply to that subdivision 14 until the second anniversary of the later of: (1) the date the plat was approved; or (2) the date the municipality accepts the subdivision improvements offered for public dedication. (c) This section does not prevent a municipality from adopting or enforcing applicable building codes or prohibiting the use of building materials that have been proven to be inherently dangerous. Added by Acts 2003, 78th Leg. , ch. 524, Sec. 1, eff. Sept. 1, 2003. Sec. 211.017. CONTINUATION OF LAND USE IN NEWLY INCORPORATED AREAS. (a) A municipality incorporated after September 1, 2003, may not prohibit a person from: (1) continuing to use land in the area in the manner in which the land was being used on the date of incorporation if the land use was legal at that time; or (2) beginning to use land in the area in the manner that was planned for the land before the 90th day before the effective date of the incorporation if: (A) one or more licenses, certificates, permits, approvals, or other forms of authorization by a governmental entity were required by law for the planned land use; and (B) a completed application for the initial authorization was filed with the governmental entity before the date of incorporation. (b) For purposes of this section, a completed application is filed if the application includes all documents and other information designated as required by the governmental entity in a written notice to the applicant. (c) This section does not prohibit a municipality from imposing: (1) a regulation relating to the location of sexually oriented businesses, as that term is defined by Section 243.002; (2) a municipal ordinance, regulation, or other requirement affecting colonias, as that term is defined by Section 2306.581, Government Code; (3) a regulation relating to preventing imminent 15 destruction of property or injury to.persons; (4) a regulation relating to public nuisances; (5) a regulation relating to flood control; (6) a regulation relating to the storage and use of hazardous substances; (7) a regulation relating to the sale and use of fireworks; or (8) a regulation relating to the discharge of firearms. (d) A municipal ordinance or rule in conflict with this section is void. Added by Acts 2003, 78th Leg. , ch. 279, Sec. 1, eff. Sept. 1, 2003. Renumbered from Local Government Code, Section 211.016 by Acts 2005, 79th Leg. , Ch. 728 (H.B. 2018) , Sec. 23.001(66) , eff. September 1, 2005. Sec. 211.018. CONTINUATION OF LAND USE REGARDING MANUFACTURED HOME COMMUNITIES. (a) In this section, "manufactured home," "manufactured home community," and "manufactured home lot" have the meanings assigned by Section 94.001, Property Code. (b) The governing body of a municipality may not require a change in the nonconforming use of any manufactured home lot within the boundaries of a manufactured home community if: (1) the nonconforming use of the land constituting the manufactured home community is authorized by law; and (2) at least 50 percent of the manufactured home lots in the manufactured home community are physically occupied by a manufactured home used as a residence. (c) For purposes of Subsection (b) , requiring a change in the nonconforming use includes: (1) requiring the number of manufactured home lots designated as a nonconforming use to be decreased; and (2) declaring that the nonconforming use of the manufactured home lots has been abandoned based on a period of continuous abandonment of use as a manufactured home lot of any lot for less than 12 months. 16 (d) A manufactured home owner may install a new or used manufactured home, regardless of the size, or any appurtenance on a manufactured home lot located in a manufactured home community for which a nonconforming use is authorized by law, provided that the manufactured home or appurtenance and the installation of the manufactured home or appurtenance comply with: (1) nonconforming land use standards, including standards relating to separation and setback distances and lot size, applicable on the date the nonconforming use of the land constituting the manufactured home community was authorized by law; and (2) all applicable state and federal law and standards in effect on the date of the installation of the manufactured home or appurtenance. (e) A municipality that prohibits the construction of new single-family residences or the construction of additions to existing single-family residences on a site located in a designated floodplain may, notwithstanding Subsection (b) , (c) , or (d) , prohibit the installation of a manufactured home in a manufactured home community on a manufactured home lot that is located in an equivalently designated floodplain. Added by Acts 2017, 85th Leg. , R.S. , Ch. 741 (S.B. 1248) , Sec. 1, eff. September 1, 2017. SUBCHAPTER B. ADDITIONAL ZONING REGULATIONS IN MUNICIPALITY WITH POPULATION OF MORE THAN 290,000 Sec. 211.021. ADDITIONAL ZONING REGULATIONS. (a) The governing body of a municipality with a population of more than 290,000 that has adopted a comprehensive zoning ordinance under Subchapter A may, by ordinance, divide the municipality into neighborhood zoning areas after a public hearing on the matter at which parties in interest and citizens have an opportunity to be heard. Before the 15th day before the date of the hearing, notice of the time and place of the hearing must be published in an official newspaper or a newspaper of general circulation in the municipality. 17 (b) The mayor of the municipality, with the approval of the governing body, may appoint a neighborhood advisory zoning council for each of the neighborhood zoning areas. Each zoning council must be composed of five citizens who reside in the neighborhood zoning area. A zoning council member is appointed for a term of two years. (c) Each neighborhood advisory zoning council shall provide the zoning commission with information, advice, and recommendations relating to each application filed with the zoning commission for zoning regulation changes that affect property within that neighborhood zoning area. (d) On the filing of a zoning change application with the zoning commission, the zoning commission shall provide the appropriate neighborhood advisory zoning council with a copy of the application. The zoning council shall conduct a public hearing on the application and must publish notice of the time and place of the hearing in an official newspaper or a newspaper of general circulation in the municipality before the 10th day before the date of the hearing. (e) At or before the zoning commission's hearing on the zoning change application, the neighborhood advisory zoning council shall submit to the zoning commission any information, advice, and recommendations relating to that application that the zoning council considers proper. The zoning commission may not overrule a recommendation of the zoning council with respect to the disposition of the application unless at least three-fourths of the members of the zoning commission who are present at the meeting vote to overrule the recommendation. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. SUBCHAPTER C. REGULATION OF COTTAGE FOOD PRODUCTION OPERATIONS Sec. 211.031. DEFINITIONS. In this subchapter, "cottage food production operation" and "home" have the meanings assigned by Section 437.001, Health and Safety Code. Added by Acts 2013, 83rd Leg. , R.S. , Ch. 653 (H.B. 970) , Sec. 7, eff. September 1, 2013. 18 Sec. 211.032. CERTAIN ZONING REGULATIONS PROHIBITED. A municipal zoning ordinance may not prohibit the use of a home for cottage food production operations. Added by Acts 2013, 83rd Leg. , R.S. , Ch. 653 (H.B. 970) , Sec. 7, eff. September 1, 2013. Sec. 211.033. ACTION FOR NUISANCE OR OTHER TORT. This subchapter does not affect the right of a person to bring a cause of action under other law against an individual for nuisance or another tort arising out of the individual's use of the individual's home for cottage food production operations. Added by Acts 2013, 83rd Leg. , R.S. , Ch. 653 (H.B. 970) , Sec. 7, eff. September 1, 2013. 19 "1' he City of\Vest University Place . t A'ci hborl1 ocl On- Office of the Administrative Official City of West University Place,Texas ("City") FORMAL DECISION OF THE ADMINISTRATIVE OFFICIAL Address of the building site: 4068 Bellaire Boulevard, 6707 Academy Street and"0"Ruskin Street (Lots 1-6, Block 25 of Collegeview Section 1),City of West University Place,Texas 77005. The building site is shown in the diagram below (not to scale): I'4' 4I)3F 4032 87213 1013 4.;,4) 1p1. 1'I2 44)(, 4E4 / r/ — RUSKIN STREET ICJ 1 2 3 V / .g. A _ . . , IBiJdingsite i_ w w z CERVI ,� w} - - z 1111 . _ BELLAIRE BLVD. Owner: SOUTHWESTERN BELL TELEPHONE COMPANY DBA AT&T Southwest, AT&T DataComm, AT&T Texas 208 South Akard Street, Ste 3608 Dallas,Texas 75202 Decisions Requested: (A) Determine whether the following activities in the parking area (which is on the north portion of the building site,adjoining Ruskin) have prior non-conforming status("PNC status") under the Zoning Ordinance: (1)type of vehicles using the parking area, (2)maintenance of vehicles in the parking area, (3)delivery trucks using parking area for deliveries, (4) parking in the street blocking one lane of traffic, (5) lir 1 AO Decision ATT Facility Page 1P PLACES my 3800 University Boulevard I West University Place, TX 77005 1 ww.westutx.gov f� w VII "fl City (�0II T t Uni�-crsit�v Place . 1 .\'ci;;hborlu'x. I(,gin IMF dumpsters and, (6) using part of the parking area for a loading"dock." Accumulation of trash and debris from the vehicles and containers in the parking area are also a concern. (B) Determine whether the loading area and waste storage area on the building site comply with the Zoning Ordinance. Ordinance Reference: Zoning Ordinance("ZO")of the City of West University Place,Texas, as amended. See Sections 7-101 (Table 7-1) 12-100, 12-101 and 12-202 and various definitions. See, also, City of West University Place Ordinance Nos. 932 and Ordinance 1039, adopted in 1970 and 1975, respectively, which authorized use of Lots 1-6 on the building site for parking("Parking Ordinances"). Administrative Official's Findings & Decisions: Some of the questioned activities are directly regulated by the ZO, and same are not. These are addressed separately, below. Activities Not Directly Regulated by ZO: The ZO does not directly regulate two of the activities in question(parking in the street and accumulation of trash), so they cannot acquire PNC status under the ZO. However, other laws and ordinances may apply. For example: (1) Thethe Texas Transportation Code and Chapter 46 of the City's Code of Ordinances regulate parking in street areas; and (2) Chapter 42 of the City's Code of Ordinances prohibits some accumulations of rubbish (defined to include"trash"and"garbage") on private property. Because administration and enforcement of those laws and ordinances has been assigned to the Code Enforcement division, they are not addressed in this decision(which is limited to questions arising under the 70). Activities Directly Regulated By the ZO The ZO directly regulates most activities on the building site. The building site is split among three different zoning districts. The south part, adjoining Bellaire Boulevard, is in the Commercial "C" District. Four of the lots on the north, adjoining Ruskin, are in the Single Family "SF-3" District, and two are in the Planned Development District-Single Family "PDD-SF2" District (formerly known as the PDD-T116 District). On all six of the northern lots(which comprise the parking area in question), commercial uses are generallynormally prohibited by Section 7-101,Table 7-1 of the ZO.' However, the old Parking Ordinances 1 Table 7-1 indicates that"utility or service use"is allowed. However,the questioned activities are not covered by the definition of that use in Section 2-102 of the ZO. Because Lots 5 and 6 are in the PDD-SF2 District,Table 7-101,Note 5 allows the Zoning (AO Decision ATT Facility Page 2 PLACES 3800 University Boulevard I West University Place, TX 77005 1 www.westutx.gov ' ILL!' The City of \Vcst University Place I .A'ci-hlb()r/100(!(;in expressly authorized non-residential parking on those six lots prior to major zoning changes in the 1980's. This presents the key question of whether the questioned activities have PNC status because of the Parking Ordinances. To acquire PNC status,an activity must have been"constructed or established in conformance with the zoning ordinance(as applicable at the time)." See Section 12-102. Most of the questioned activities were not"constructed or established in conformance,"so they could not have acquired PNC status. The Parking Ordinances only authorized"parking of vehicles owned by the Southwestern Bell Telephone Company and/or its employees." They did not authorize: (i)use by vehicles not awned by Southwestern Bell Telephone Company or its employees, (ii)maintenance of vehicles,(iii) deliveries, (iv)use of the area for dumpsters or(v)use for any kind of loading"dock." Because these activities were not authorized,they were not"in conformance"with prior zoning ordinance,and they could not have acquired PNC status. They are therefore prohibited by Section 7- 101,Table 7-1. Loading Space; Waste Storage Area. For this building site, Section 10- 104 of the ZO requires that there be"adequate loading space separate and apart from off-street parking spaces." Section 8-105 requires that loading areas and waste storage areas be"surrounded by special screens" (which are fences or walls),and they must be kept"securely closed when not in use." Based on the findings and determination set out above, neither the loading space nor a waste storage area may be located on the six lots on the north portion of the site. Therefore, to bring the building site into compliance,an adequate loading space and any waste storage area would have to be: (i) located on the south portion of the building site (close to the main building)that is zoned Commercial and(ii) "surrounded by special screens"that are kept"securely closed when not in use." Effective Date& Appeals:This decision takes effect on the date it is signed. Persons listed in Section 211.010 of the Texas Local Government Code may appeal this decision.. Appeals(including the deadline for filing of appeals)are subject to and governed by applicable rules,ordinances and laws, including: ( X )Zoning Ordinance, ( X )Chapter 18,Code of Ordinances, ( X)Zoning Board of Adjustment"Rules of Procedure." IMPORTANT: Article I1,Section 3 of the Rules of Procedure generally requires that appeals be filed on or before the tenth City business day following the date the Administrative Official"enters an order,ruling,decision,or determination that is the subject of the appeal . . . ." Board of Adjustment to issue a special exception to allow non-residential parking on those two lots,subject to conditions. No such special exception has been reported or found. AO Decision ATT Facility Page 3 ?OR PLACES 3800 University Boulevard I West University Place, TX 77005 I www.westutx.gov .110-4110 jj� "l'hc City of\Vest University Place IMF . l Ncitihhorhtxxl (;in UNLESS APPEALED AS PROVIDED ABOVE,THIS DECISION WILL BECOME FINAL. IF APPEALED,THIS DECISION CAN BE REVERSED, MODIFIED OR AFFIRMED BY THE ZONING BOARD OF ADJUSTMENT. NOTHING IN THIS DECISION CREATES ANY VESTED RIGHT OR PROPERTY RIGHT, BUT INSTEAD,ALL SITES, USES AND ACTIVITIES REMAIN FULLY SUBJECT TO THE REGULATORY AUTHORITY OF THE CITY. Other Administrative Remedies: In addition to the appeals mentioned above, other administrative remedies may apply to matters covered by this decision. These include (1)responding directly to the Administrative Official, in person,by phone, by fax, by email or by ma:.l (see contact information, below);(2)applying to the Board of Adjustment for a variance, special exception or interpretation, as applicable; (3)giving notices under Section 8-112 of the ZO for certain claims based on federal or state law; and(4)applying to the Zoning& Planning Commission or City Council,or both, to add or change applicable regulations. Applications to the Board of Adjustment or Zoning& Planning Commission should be in writing or fax and may be delivered to the Administrative Official(see contact information, below). Applications to the City Council should be in writing and delivered to the City Secretary,3800 University Blvd., West University Place,Texas 77005. Members of the public may also address the Board,Commission or Council in person during a meeting. Dates,times and places of meetings of the Board,Commission and Council are posted at 3800 University Blvd., West University Place,Texas 77005 and on the City's website: http://www.westutx.gov/. Generally. This decision does not authorize,allow or excuse any violations or failures to comply with the Zoning Ordinance or other laws,ordinances,rules or regulations. Penalties, sanctions and other remedies continue to apply to any such violations and failures to comply. This decision is not an order, but it is a notice of violation as contemplated by Section 54.017,Texas Local Government Code. CITY OF WEST UNIVERSITY PLACE Date entered: //—10-7 S By: Administrative Official 3826 Amherst, West University Place,TX 77005 Phone: 713-662-5839. Fax: 71 3-662-5369 Email: dscarcella(awestutx.gov • Date delivered to owner: 11-1 0-/5. Delivered by: -�- '`" ' ce��� Additional copies of this decision were delivered as follows: Karen Jones, Facility Manager(by electronic transmission and hand delivered on: ) Robert Grossman (by electronic transmission and hand delivered on: . 1 David Cole(by electronic transmission and hand delivered on: ) AO Decision ATT Facility Page 4 TOP PLACES 1 3800 University Boulevard West University Place, TX 77005 I www.westutx.gov records shall be filed immediately in the board's office and are public records. (g) The governing body of a Type A general-law municipality by ordinance may grant the members of the governing body the authority to act as a board of adjustment under this chapter. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg. , ch. 126, Sec. 1, eff. Sept. 1, 1993; Acts 1995, 74th Leg. , ch. 724, Sec. 1, eff. Aug. 28, 1995; Acts 1997, 75th Leg. , ch. 363, Sec. 1, eff. Sept. 1, 1997. Sec. 211.009. AUTHORITY OF BOARD. (a) The board of adjustment may: (1) hear and decide an appeal that alleges error in an order, requirement, decision, or determination made by an administrative official in the enforcement of this subchapter or an ordinance adopted under this subchapter; (2) hear and decide special exceptions to the terms of a zoning ordinance when the ordinance requires the board to do so; (3) authorize in specific cases a variance from the terms of a zoning ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of the ordinance is observed and substantial justice is done; and (4) hear and decide other matters authorized by an ordinance adopted under this subchapter. (b) In exercising its authority under Subsection (a) (1) , the board may reverse or affirm, in whole or in part, or modify the administrative official's order , requirement, decision, or determination from which an appeal is taken and make the correct order, requirement, decision, or determination, and for that purpose the board has the same authority as the administrative official. (c) The concurring vote of 75 percent of the members of the board is necessary to: (1) reverse an order, requirement, decision, or determination of an administrative official; 8 (2) decide in favor of an applicant on a matter on which the board is required to pass under a zoning ordinance; or (3) authorize a variation from the terms of a zoning ordinance. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg. , ch. 126, Sec. 2, eff. Sept. 1, 1993; Acts 1995, 74th Leg. , ch. 724, Sec. 2, eff. Aug. 28, 1995. Sec. 211.010. APPEAL TO BOARD. (a) Except as provided by Subsection (e) , any of the following persons may appeal to the board of adjustment a decision made by an administrative official: (1) a person aggrieved by the decision; or (2) any officer, department, board, or bureau of the municipality affected by the decision. (b) The appellant must file with the board and the official from whom the appeal is taken a notice of appeal specifying the grounds for the appeal. The appeal must be filed within a reasonable time as determined by the rules of the board. On receiving the notice, the official from whom the appeal is taken shall immediately transmit to the board all the papers constituting the record of the action that is appealed. (c) An appeal stays all proceedings in furtherance of the action that is appealed unless the official from whom the appeal is taken certifies in writing to the board facts supporting the official's opinion that a stay would cause imminent peril to life or property. In that case, the proceedings may be stayed only by a restraining order granted by the board or a court of record on application, after notice to the official, if due cause is shown. (d) The board shall set a reasonable time for the appeal hearing and shall give public notice of the hearing and due notice to the parties in interest. A party may appear at the appeal hearing in person or by agent or attorney. The board shall decide the appeal within a reasonable time. (e) A member of the governing body of the municipality who serves on the board of adjustment under Section 211.008(g) may not bring an appeal under this section. Acts 1987, 70th Leg. , ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended 9 by Acts 1997, 75th Leg. , ch. 363, Sec. 2, eff. Sept. 1, 1997. Sec. 211.011. JUDICIAL REVIEW OF BOARD DECISION. (a) Any of the following persons may present to a district court, county court, or county court at law a verified petition stating that the decision of the board of adjustment is illegal in whole or in part and specifying the grounds of the illegality: (1) a person aggrieved by a decision of the board; (2) a taxpayer; or (3) an officer, department, board, or bureau of the municipality. (b) The petition must be presented within 10 days after the date the decision is filed in the board's office. (c) On the presentation of the petition, the court may grant a writ of certiorari directed to the board to review the board's decision. The writ must indicate the time by which the board's return must be made and served on the petitioner's attorney, which must be after 10 days and may be extended by the court. Granting of the writ does not stay the proceedings on the decision under appeal, but on application and after notice to the board the court may grant a restraining order if due cause is shown. (d) The board's return must be verified and must concisely state any pertinent and material facts that show the grounds of the decision under appeal. The board is not required to return the original documents on which the board acted but may return certified or sworn copies of the documents or parts of the documents as required by the writ. (e) If at the hearing the court determines that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take evidence as directed. The referee shall report the evidence to the court with the referee's findings of fact and conclusions of law. The referee's report constitutes a part of the proceedings on which the court shall make its decision. (f) The court may reverse or affirm, in whole or in part, or modify the decision that is appealed. Costs may not be assessed against the board unless the court determines that the board acted 10 1/14/2019 AT&T Request for Rezoning WEST UNIVERSITY PLACE CURRENT ZONING MAP OF AT&T FACILITY I I RUSKIN STREET • Legend FrLsidential SF-1 Residential SF-2 1 or,Ri /4 Residential SF-3 Townhouse District 11 2 ill'i POD-Th 3 [ 1 POD-SF 1 I i H I w M PDD POO W -raip_ , POD-SF 2 I CO IIII POD-Bellaire Offic WIRT COMPANY District First General Residential GR-1 Second General Z R es dential GR-2 < I Cii'iMitERCiAl I oi+ Commerical ----1 4 Ord Mo 6651 CT),, : g'r:1:45.5"74:'3::1461 15) Lu • Ord 1.40 677 9 ON Old 922 9 Ord No 292 10 1:66644 of&du•1141 • I 11 CC:::::=i= 13 Ord No 517 1 1/14/2019 AREA MAP FOR PROPOSED REZONE lets 30 lots 5-6 Lots)-10 Currera 2orvirsg: SF3 PDD-SF2 000-512 Use Permitted: SF Detached Same Same Other Uses Prohibited: Yes Same Same Waal 1309 Permitted by Special Lacect Nigh Density Same Same tot Dimemions Same Same Same Setbacks Same Same Same Parking Permitted Yes-Note 1 Yes-Note 2 Yes-Note 2 Yes-Note 2 Note 1: Yez Nole 3 Ord 932- + Lots 11 allows pokeng 3009,0, .0.0ofa0,Wes owned by Southwestern eta relep rove camp.,,,..d.m 6732 emp.Yee ow hnusedlprsc','"," s : 1 { � ' ! 11 of any kind shod be mndnted an d pnrk gpt",,P. Y sgro as prrwded See C{]IMM .tunas_ ,i 1 !234 5 6 78 91( :ca..—reQme WON.,tren9. Note 2: I f - {. i __, ,m.I0.39 tots 1 1 WO 16 mak be 000 as lwkag 0or 5o9M3estem''' C099000090/9.000000 WO:-10m 0Y be ued a 94.4.g ,, passnger vehchs 1. �.' CosMmans repdredsROfied s:reenur9. ' to-)4 ATT j I FEDELIS/ c Notes: West 71.010.Ordinances I, WHOLE FOODS j �kn93� 1 ��.m� a I I I, a errepttwr to sorbs„ pah.55 of morns vhicte,3.090- I... tunwrth nenri vrl Iry ..wn°pprw.,W,,w " QJ VI IDs 4 thr opts rtrkersokk des,0jp000910.099 I,. I. /9dudvybndsm tt r0 Wh^an.f lees 9 wRs, 6.9d aROjwn ease a6 da I .de-weerxnaaSFtra.tartee,pe., own 4062 I, 4004 1943-IBA reaffirmed OM.1039,pho IS srmnirg er'11111111pialklikkaiN rktw x000 M flit WNW - trowNonfor boding dock. 2001-20A Specuf.551 1 n to agave,lot to+leers across parking tot to bacrr0 001. CoMC,aa'repnred srecif�a,oeert.g. I -__. WEST UNIVERSITY PLACE CURRENT ZONING OF AT&T FACILITY yfW`6rs'+6 ,s �Ng. t* R k 5x Ff k r Std k ! A !+r+kliiil•wa t r s a '- PDD Sf2 Subject to F m ,+ r, dk r k Ord r, ac o 932 and e f .!•.a' rr A Y" i '4 103° I e d. ` d^ t _ . ! SF-3 Subject to .nom I. �. �, fit! . _.. Ord.No.932 and 14,1,s, [+ , 1039 ",e, e-.-.• 6. die F,nds Mark A-^e,11[ ees- a t'l It , 1 I ,°mile" I P Ai I ! I , w li .c . ' 1' `r , ., Y 2 1/14/2019 Concerns Responses • "Incidental Use"is too broad/ambiguous- Deleted • Buildings could be permitted- Prohibited • Large trucks could be permitted- Trucks may not exceed 2 axles(no 18 wheelers) • If AT&T sold its facility,other C-Commercial uses could be supported by the Parking Lot- Only AT&T vehicles(or its employees) permitted.Only vehicles related to telecommunication business(and employees)permitted.Primary use of lots remains residential • A Special Exception could be erroneously issued- Special Exception deleted Authorized parking lot uses,and limits incorporated directly in PDD SF3 • Timing- Only 7am-7pm M-Sat.for uses other than parking* *minor,limited exceptions set forth in ordinance text—See Notes 12&13 Concerns Responses • City light and noise restrictions might not apply- Specified to apply • No maintenance standard- Added, including required monthly landscaping service • Signage could be installed- Prohibited* • Access to Ruskin possible- Prohibited • Parking on Ruskin and Cason possible- Prohibited* • Driving on Ruskin and Cason possible- Prohibited* • Access should be from Academy via Bellaire- Required* *minor, limited exceptions set forth in ordinance text—See Notes 12& 13 3 1/14/2019 Note 12 • Note 12. Parking Lot Use PDD-SF3. PDD-SF3 may be used for: — (i) parking, loading and unloading and sorting/inventory of contents of vehicles, trucks and vans (2 axels maximum) owned by AT&T and/or its employees only, as part of the telecommunications business only, limited to 7am-7pm Monday-Saturday except related to services to medical facilities, due to customer medical emergencies or catastrophic events (storms, terrorist events, etc.), or parking only, which may occur at other times, — (ii) vehicles temporarily required for repairs/construction relating to the adjacent building under common ownership, limited to the term of a valid City building permit, — (iii) no use (non-use is not abandonment), and — (iv) any use permitted by a current special exception. Note 12 — Washing, refueling and mechanical services are prohibited, but minor emergency repairs (flat tire, dead battery, out of fuel, etc.) are permitted. — Transporting personal items (including food)to and from vehicles and adjacent building under common ownership, and transporting trash, litter and materials to and from vehicles and waste storage areas is permitted. — Resting and phone calls are permitted within vehicles. — Structures are prohibited, unless permitted by a current special exception. — The parking lot shall comply with City Code, including light and noise restrictions applicable to residential areas. 4 1/14/2019 Note 12 — The existing solid walls and gates, and the landscaping outside the walls must be maintained in good condition. — Monthly landscaping services are required. — No exterior signage is permitted, except as required by law. Note 12 — Parking lot use on any lot in PDD-SF3 shall terminate upon: (i) independent sale of the lot, or (ii) sale of all of AT&T's facility on Bellaire/Academy to an entity not in the telecommunications business. Merger of AT&T into another entity in the telecommunication business will not terminate the parking lot use. 5 1/14/2019 Note 12- Additions/Offer • Sat. am start to 8am • Loading/unloading limited to manual 2 wheel dollies/hand trucks or 4 wheel carts • IF desired: Existing Ruskin wall to be relocated to be inline with existing Whole Foods Ruskin wall, creating approx. 10' of green space Note 13 • Note 13. Access/Parking Limits in PDD-SF3 during Parking Lot Use. The following limitations apply to Parking Lot use: — (i) access is prohibited from the parking lot to Ruskin St., — (ii) parking/driving of vehicles owned by AT&T and/or its employees is prohibited on Ruskin St. and Cason St., except for residents/invited guests, and temporarily while providing telecommunication services to residents on those streets, and — (iii) access to/from the parking lot shall be from Bellaire Blvd. via Academy St. to the parking lot, except temporarily while providing telecommunication services to residents on those streets. 6 1/14/2019 1 Mohawk Service Area ki View inside of facility (the crew room) r e.k 7 j ' ,litd, r a ■ r 1/14/2019 Inside of facility/Loading Dock Door :i.iiif 1,E� / / Inside of facility/Secured CPE area nixm N, r , n 4411, 1 .� "..fit �3p' A J 8 1/14/2019 12' X 24' secured CPE area ` ` ° I. t f // / s'''''''''''—i CPEs on Pallet "zvs. 9 1/14/2019 Staging area ., � s J ` Tech's Spaces Y " " v, C 4 17i -: i F °�tt 3 42 v , ,, k. tg, ■ a 10 1/14/2019 Parking Lot View from Loading Dock ,,:,.',., I . I :' '•''12 IIII,I11721.r.'';:r.•f':'''''..' ' 1.1:::-'''''''' '''''''''!4',''' : ' • • Parking Lot View from Loading Dock Ramp {9n' , . !arA ,. N art ' 11 1/14/2019 m Lo Parking Lot view fro ading Dock ,-.40.4,4;0.,,,,,,. ,, - # , .,,, ,,,,,,p,,,, � caw ta t _., ......., , ..,:."**2 t Loading Dock View from Parking Lot Area in "C" zone , l3,k, e� 4 Cq t. TM gym. 12 1/14/2019 Loading Dock View from Parking Lot Area in "C" zone a Parking Lot View from 2nd Story of Ruskin Home 0.b" ^,L..� w- # f +13v.y7. ..- b .,.,_ db _ :.ate 'A4;0. 13 1/14/2019 AT&T Supply Truck (18 wheelers are prohibited) F; w � F Orr:77 46: 3r$„Lin ° �: : ke ks ,a. .E ` ''„ ?." t a "" 1 ..fit. .. .... ;, ____ A-S.,',:.,,:-.' -..w m . _ ,Cy: d x...w ��pp�7 a Nr E � t, i 3 'S',C �jav �? - - a.K uN", '. Service Vehicle Type 1 '�'�� yw;s,, fit a v , ,,,,,,_.t„''Ad A. d� .y 1. • -V A x�l� „ . '�� � ° cY Llv.„1„, ,,,,, am e ... pay rri I. 1 : r 14 1/14/2019 Service Vehicle Type 1 n W 111.4 j Service Vehicle Type 1 'y ,. ,.1. :CY` tom • 15 1/14/2019 Service Vehicle Type 2 4 .. b .. .' : C 4 Service Vehicle Type 2 FSL113; 16 1/14/2019 Service Vehicle Type 2 • 1117 , =.4Sivr.k. .4111111 Service Vehicle Type 3 - � �A 17 1/14/2019 Service Vehicle Type 3 Service Vehicle Type 3 4,1 �T � a 18 1/14/2019 Hand dolly for loading/unloading ifi r N . - -- i I, ----,,., it .., Nf - I Hand dolly with supplies III \ 1 19 1/14/2019 Loading/Unloading Process .me Loading/Unloading Service Vehicle ! q 20 1/14/2019 Loading/Unloading Service Vehicle c • f F it it ,` VaIbridge Summary—Hams County Appraisal District(HCAD)Market Values HCAD Ma ekes Value Data Aaera 595,51M9.2 1998 3373 128720 330365 369l 5323 98 872% 333273 „•73% 0..93,.St,Mdv 1939 3907 321807 • 529102 907% 5317,56 915% 532759 113: 3 19 94020.09 Mods 7999 3716 325392 • 3303.97 597% 333120 152% 333550 •.30% • The unit of comparison is price per square foot of building area.All block totals herein exclude vacant lots and homes constructed prior to 1985. • The Neighboring Blocks are inclusive of 100 tax accounts in proximity to the subject.The Ruskin St.5 Blocks include 3800-4200 Ruskin St. • 2015 o Subject Arm:5281.06 put o Ruskin St.-S Blocks:5266.81 psf(5.07%difference) o Neighboring Blocks:$283.92 psf(1.02%difference • 2019 o Subject Area:$302.68 psf o Ruskin St.-5 Blocks:5291.02 psf(3.85%difference) o Neighboring Blocks:$307.97 psf(1.74%difference • 2017 o Subject Arm:$329.08 psf o Ruskin St.-5 Blocks:$317.66 psf 1347%difference) o Neighboring Blocks:5331.20 psf(0.64%difference • 2018 o Subject Area:$334.76 psf o Ruskin St.-5 Blocks:5327.59 psf(2.15%difference) o Neighboring Blocks:$335.50 psf(022%difference) Conclusion: The differences noted above are statisboalty insignificant. The data indicates similar rates of appreciation and no impairment in value due to the parking and loading operation in the AT&T facility. 21 1/14/2019 4, Valbridge MAP 1-SUBJECT AREA ---- , 1 1 I 1 i 1 I I ) ' I I I i 1 1 1 t i I I I 1 r 3 i r /-- I 1 --- - / 1 I I 1 3 1 1 I 1 1 1 1 11 I 1 1 1 1 ---1 \ i 1 i 1 1 I / 1 I SUIDECT \ 1 t ' --. -- 1 1 I I I ■ t- i t 1 1 r I 1 I i 1 1 I i I i ' I I - - 1 I , i , , , , I i ■ __.——-- ' )Valbridge Section 1-Subject HOW Market Data The following table presents the historical ad valorem tax assessment for each property in the 4000 Block of Ruskin Street The table also includes 4103 Ruskin Street which is located at the southwest corner of Ruskin Street and Academy Street.This property is across Academy Street from the primary entrance to the AT&T parking lot T.Sdeb le S.1.44.41.818.1141. ) Kg,.9849853 3995 948..99.r. 5)8 ,)93,) 4 1, SI 0.183.158 52.18 53 17 44) 8,411 51,17, 1314 33 SI 31.35,3 15433, ) AIL,8.134394 05)3441.3.11 8. ....11 1.543 13440...14 19 4,95 19317. 1.413.319 S13.133.3. SA.. SI III 3P 131.3.2 4 4,3 8341,311 )3135 134 l..13 4 3. 181. 2-es Pea s, t3.,s sso2,13 1.1141.35 11831S. 1.11)94 S43.. 13131. 5 4191111,41,13 885 1..9.03915 V. RSV 33 5. SI 6.. .1.133 SI ft.. 5..4. 1.1.11.1 5.1.38. 11 OP OM SAS 34. 4 •18319.,338» (355 3.8.89, P. .. 1,8 S4312.1 P8.115 .11870.2.431 5.54.111 S1177.2813 S.111 PIK= 113315 7 oats 34.334.353 .1 3.998.4.9341 s. 3488 1,3 S.3., P.S131) PS,487 .13 A 11141.1111 SLY.00 SI MOM' S.:, 8 484 13 3/83.33 )45 3..19.34 PS -14314 139)3 9 443 1815,31 12.). $911 IQ SM. 1.1.14 1181. 131.43.18 ',43131) 9.. S..13,13 0.338 11 02,4. 185 2.74 SY 12.1. SW 09 SI.. SSW.) 1S339.3.11/11 S318. 131833 3 13311 1.33,3157 0....91 S.;Pe 1,1111 S■70398 SUL, SI OG Al, 1,3 9. ■•■••••= 11811011 UR. SOO./ 73•La HAKIM Ulf.a8 ft WASS 1.01, .......,....■.1...,■............ r.... ltamos1...swi la Wag=M.O. a/. •■■■Csys.....■•HIM 57104 .12 Pa.. OS,T..... .438.483)13.8.3 sna am stsroaa .5.10 S.959 22 1/14/2019 I'I MAP 2-RUSKIN 5 BLOCKS I j I t 1 , 1 1 � i I I I 1 } j 1 i 1 I i v.5la ''`'' k� I i wMecr l \ 1 i I --I j I 1 { 41W 61ako}_ 3 _'alRUakrol ___. ____..� \ ` ! ! II I-- t f i 1 I j I .,1 ,,,ii bridge Section 2-HCAD Market Values- all of Ruskin Street Karns County Appraisal Disbst Men9et Yatues-RmkIn street 43800-4200 Mocks 01 Rrrsklnt 6(076 Marne vl N O .OICAO Year 8103. Number 57,001 0,467770 Ewa SA(511 2010 2016 0017 7..6 3800 Mack of 0460 9 Manage a: 2002 3,363 Avg TOtat 5920,693 1959,615 61,039,653 S1,090,955 Avg PS: $277.57 529/02 5316.11 $333.53 Parted Increase: - 4.99% 467% 551% 3900 Mark of Ruskin 6 Averages: 2003 3,636 Avg.Iota! 6854,638 5933,172 51,031,988 51 133,386 Avg P9: 5236.88 0260.05 5286.06 5314,09 Percent Increase. - 9.78% 1003% 938% 4000 Mock d Ruskin 10 Averages 1998 3,373 Avg Tdat 5935,068 51306015 51,098,978 51,121,656 7tt0des 4193 An.N6e St Avg PT: 5281.06 6302.68 332988 5334.76 Percent Increase - 733% 8.98% Pig% 4100 Mock of(LA k7,, 17 Averages 1996 3,795 Avg Tata! 5991 255 61 112,753 51,201 727 01,222,742 Avg Pg, 6261,96 6297.63 532059 532615 qttizin an0me tget,T 20,5 and assessed n 2Ti6 Percent Increase. - 13.62% 7.71% 1.74% 4200 Mock of 074607• 10 Averages 19% 3,871 Avg Taat 51,038,436 51,137,190 51,283,925 51,261,194 Avg PT: 5276.57 530331 533643 532961 '-Oradea hmeb:1r u.2081270 Oaar,6n2,016404(M!) Percent Increase. - 9.67% 10.92% -239% TotaWAverages Pal Runde St 52 Averages 1999 3,607 Avg Tata! 5948,018 51,031,241 51,131,254 51,166326 Avg Pg: 5266.81 529142 5317.66 5327.59 Percent Increase. - 947% 9.15% 3.13% 23 1/14/2019 1 Va to r The data contained in the previous table is restated in the following graph. Section 2 HCAD Market Value History of Ruskin Street $400.00 $350.00 $300.00 $250.00 $200.00 $150.00 'ul $100.00 sn $50.00 11: q a� 4000 Block 3800 block 3900 block 4100 block 4200 block Subject 1112015 ■2016 w 2011 ■2018 MAP 3-NEIGHBORING BLOCKS If Ii , r _ - I i I I �,I I I w• _ __— __ erar 1 \ I I 1, 1 24 • 1/14/2019 Valbridge Subject and Neighboring Blocks Data $400.00 $350.00 $300.00 $250.00 $200.00 — ---- $150.00 __________•--- $100.00 $50.00 $0.00 2015 2016 2017 2018 •Subject ■Neighboring Blocks Traffic Impact Analysis: Zero impact—Proposed PD-SF2 compared to parking only. Maximum Hypothetical Analysis: Assumptions: a. No Parking Lot today, and new Parking Lot added b. All 67 spaces filled and emptied in each of AM and PM Peak Hour Minimal impact Not reflective of likely actual usage, but a test of a hypothetical maximum possible usage Intersection performs at acceptable level of service 25 1/14/2019 . 195. 0 €i 1 i ' ' 4,,,,,,,,),<",..04114 ., .- '' I � I i ■ i ti I Courtesy of AT&T Archives and History Center 1955 . a F-- -- ,i_l___--,,,— 2.--:-.„„.,.., � q��_ � ,., .1 _ . . ... ., .. t . alp 4 ril- ,...., ,,MADISON MODn k __ - .N Hb lWnnkgAoneRroymr ',�` a.., .,„:„.,,,.,k,i n .._ ,�. . .- r as s:: YR �� i 41 t I m'eY„wt. '/ � k�•EKI$Y)Y�YYWW�' - .y�M`4 "fir Courtesy of AT&T Archives and History Center 26 1/14/2019 1955 l • OOO a „: • „ • • .. ...., ,„, emu_. Courtesy of AT&T Archives and History Center 1970 g C t 'f 4 , MOHAWK 6¢4 I4tp,ra Courtesy of AT&T Archives and History Center 27 • 1/14/2019 WEST UNIVERSITY PLACE CURRENT ZONING OF AT&T FACILITY ,1,,,, iiis , :4_,A164., Iliiiit, PDC ¢ Ord No.932 and ,�s g /c ,r , F ' '' a! 1039 f t „ ,w.. - SF-3 Subject to ' a r Ord.No.932 and y ! 1 4 t, �� g �"� ' i ,a III I 28 City Council Meeting—January 14,2019 5. Public Comments This is an opportunity for citizens to speak to Council relating to agenda and non-agenda items. If the topic the speaker wishes to address is on the agenda, the speaker can either speak at this time or defer his/her comments until such time the item is discussed. Speakers are advised that comments cannot be received on matters which are the subject of a public hearing once the hearing has been closed. Public comments must be kept relevant to the subject before the Council. The presiding officer shall rule on the relevance of comments. Persons making irrelevant, personal, impertinent, or slanderous remarks may be barred by the presiding officer from further comment before the Council during the meeting. Speakers are required to register in advance and must limit their presentations to three minutes each. 6. Bank Depository Contract Matters related to a resolution awarding a contract to JPMorgan Chase Bank to be the City's bank depository. Recommended Action: Approve resolution awarding the banking service contract to JPMorgan Chase Bank. Mr. Harrison Nicholson, Treasurer[see Agenda Memo 6] 7. Consent Agenda All Consent Agenda items listed are considered to be routine by the City Council and will be enacted by one motion. There will be no separate discussion of these items unless a Council member requests in which event the item will be removed from the Consent Agenda and considered in its normal sequence on the agenda. A. City Council Minutes Approve City Council Action Minutes of December 10, 2018, December 18, 2018, December 19, 2018, and December 24, 2018. Recommended Action: Approve Minutes. Ms. Thelma Gilliam, City Secretary[see Action Minutes] 8. City Manager Position Matters related to discussion and possible appointment of a city manager. Recommended Action: Discuss and take any desired action. City Council 9. It's Time Texas Matters related to the It's Time Texas Community Challenge, an 8-week competition that mobilizes communities and others toward the common goal of transforming the community's health. Mayor Susan Sample 10.Adjourn In compliance with the Americans with Disabilities Act, if you plan to attend this public meeting and you have a disability that requires special arrangements, please contact City Secretary Thelma Gilliam at 713.662.5813 at least 24 hours prior to the meeting so that reasonable accommodations can be made to assist in your participation in the meeting. The Council Chambers is wheel chair accessible from the west entrance and specially marked parking spaces are available in the southwest parking area. Special seating will be provided. I certify that the attached notice and agenda of items to be considered by the West University Place City Council on January 14, 2019 was posted on the Municipal Building bulletin board on January 11, 2019 at approximately 2:00 o'clock p.m. L /ry1 (SEAL) Thelma illia TR C, CMC, City Secretary AGENDA MEMO BUSINESS OF THE CITY COUNCIL CITY OF WEST UNIVERSITY PLACE,TEXAS AGENDA OF: January 14,2019 AGENDA ITEM: 4 DATE SUBMITTED: January 14,2019 DEPARTMENT: Public Works Debbie Scarcella, City Dave Beach,Public Works PREPARED BY: Planner PRESENTER: Director; Richard Wilson,ZPC Chair SUBJECT: Joint Public Hearing to Consider a Rezoning Application from ATT ATTACHMENTS: Preliminary Report and Ordinance Calling for a Joint Public Hearing EXPENDITURE REQUIRED: N/A AMOUNT BUDGETED: N/A ACCOUNT NO.: N/A ADDITIONAL APPROPRIATION REQUIRED: N/A ACCOUNT NO.: N/A EXECUTIVE SUMMARY The application by the property owner,AT&T(Southwestern Bell), is to rezone six abutting lots that have been developed as parking for the main ATT structures fronting on Bellaire Boulevard and Academy. The lots are located along Ruskin Street at the corner of Academy and Ruskin. The applicant is asking to rezone the lots from Single Family (Detached) 3 (SF3) and Planned Development District-Single Family 2 (PDD-SF2) to a newly created Planned Development District-Single Family 3 (PDD-SF3). PDD-SF3 specific regulations are also included with the rezoning request. The site was originally developed as single family residential. There were 10 abutting lots that fronted on Ruskin Street. In 1970, four of the lots (One through Four)were granted a special exception for use as parking for Southwestern Bell (SWBT)vehicles and the vehicles in use by SWBT employees. There were restrictions associated with the special exception as to plantings, fencing, lighting, etc. Additional lots (Five through Ten) were included in a second special exception in 1975. The underlying zoning designation for lots Five through Ten has remained residential,but subsequent zoning ordinance amendments and zoning map adoptions have at different times changed to townhome ("Ruskin Townhome District") and eventually to the current PDD-SF2 designation. Lots One through Four have remained in the SF3 District. The proposed PDD-SF3 District has the same restrictions and requirements as the SF3 District. Both only allow residential use, have the same setbacks and height and area restrictions, curb cut and driveway restrictions, etc. The proposed language authorizes the use of the parking area when ATT or a similar telecommunications company is occupying the abutting site. This authorization is by right and does not require additional approvals. The regulations allow for loading and unloading of the vehicles, inventory and supply of the vehicles and other activities that are normally taken by employees. The proposed language would prohibit signage and commercial style lighting and limit hours of operation. They require an opaque fence,landscaping and gates. If the property is not occupied by ATT or a similar telecommunications company, the use of the property reverts to single-family(detached)use. The Zoning and Planning Commission will possibly hold a meeting immediately after the public hearing and on January 17 at 6:15 pm to consider the comments from the public hearing and possibly consider a final report. 11\- " REZONE PROCESS West University Place The following is the process(steps)that are followed by the City when an application to rezone a property is received: Step 1: Zoning and Planning Commission(ZPC)holds a meeting to consider the applicant's request for a rezone 1. At the meeting the following will happen: a. The applicant will present their request for the ZPC(there is no time limit,but within reason), b. The public will be invited to comment(time limit of 3 minutes per speaker). i. Public comments submitted at this meeting will not be part of the official public record. 2. Possible outcomes at this meeting: a. The ZPC wants to hold additional meetings, b. The ZPC refuses to take action or rejects the application,or c. The ZPC prepares a preliminary report recommending a joint public hearing be held with the City Council for the purpose of soliciting public input.(proceed to step 2) Step 2: ZPC presents their preliminary report recommending a joint public hearing between the ZPC and City Council. 1. Then ZPC will present their preliminary report for the City Council's consideration. a. The public and applicant will be able to comment during the visitor's portion or during the agenda items. i. Comments submitted during this time are not part of the official public record. 2. After hearing the ZPC and public comments,the City Council can take the following actions: a. Request the ZPC to review further, b. Reject the report,or c. Accept the report and call for joint public hearing to receive information on the application at a later date.(proceed to step 3) Step 3: Hold a joint public hearing with the ZPC and City Council. 1. At this joint public hearing the following will happen: a. Receive presentation from the applicant(there is no time constraints(within reason)on the applicants presentation), b. (time limit of 3 minutes per speaker). 2. After the presentation and public comments,the Council and ZPC have the option to leave the public hearing open or close it. a. If public hearing is kept open: i. Public comments can still be received as part of the public record, ii. The issue would be remanded back to the ZPC to issue a final report.(proceed to step 4) b. If public hearing is closed: i. No more public comments accepted for the official public record, ii. The issue would be remanded back to the ZPC to issue a final report.(proceed to step 4) Step 4: ZPC will hold an additional meeting(s)while working on the final report. 1. If the ZPC left the public hearing open:(if closed proceed to#2) a. Public comments/information will still be accepted as part of the official public record, 2. Close the public hearing(if open)or if the public hearing was previously closed: a. The ZPC will consider the application based upon the information that is part of the official public record in making their final determination. 3. Once the ZPC has completed their review of the application: a. Present Final report with recommendation(s)to the Council. (proceed to step 5) Step 5: ZPC will present their final report to the City Council. 1. The ZPC will present their final report to the City Council. 2. If the City Council left the public hearing open: a. Public comments/information will be accepted as part of the official record,etc., b. After hearing all public comments,the City Council would close the public hearing. 3. The City Council would complete one of the following after reviewing the ZPC final report and public record: a. Send issue back to the ZPC further review, b. Accept the ZPC's final report(recommendation), i. If the recommendation was to grant the rezone that would need to be approved on two separate readings. c. Reject the report,or d. Take no action on the report. " ATT REZONE APPLICATION West University FACT SHEET Place January 2019 Summary of Application: ATT submitted an application to rezone 6 of its lots along the 4000 Block of Ruskin from Single Family 3 (SF3) and Planned Development District Single Family 2(PDD-SF2)to Planned Development District Single Family 3(PPD-SF3). Existing Zoning Proposed Zoning Lots 1—4 SF3 PDD-SF3 Lots 5—6 PPD-SF2 PDD-5F3 Summary of Uses Currently Allowed&Proposed Uses: Uses currently allowed on Lots 1—6: (by previous ordinances&Zoning Board of Adjustment(ZBA)decisions) • Parking for ATT owned vehicles. • Parking for ATT employees personal vehicles. • Access loading dock on ATT's adjacent commercial property. • No access for not-ATT vehicles or large 18-wheelers. • Provide screening and opaque gates along the Academy side of the site(ATT constructed a brick fence and solid gates in lieu of the existing wrought iron fence and gates). • Limits on lighting, signage, noise, and required plantings that must be maintained. No structures allowed, except a ZBA approved trash/recycling enclosure on Lots 5&6. Uses proposed on Lots 1—6:(if the current ATT rezone request is approved) • All of the above,plus • Allow for the loading, unloading and the inventory of the vehicles, trucks and vans (maximum of a 2-axle vehicles owned by ATT or employees). • Limit the loading,unloading and the inventory of the vehicles,trucks and vans from 7 AM—7 PM on Monday through Saturday. (Some exception for extreme&catastrophic events repairs to the building, etc.) • Vehicle repairs are prohibited, but minor emergency repairs are permitted (flat tire, dead battery and out of fuel). • Transporting personal items, including food to and from vehicles and the adjacent building owned by ATT. • Transporting trash, litter and materials to and from vehicles and waste storage area. • Resting and phone calls are permitted within vehicles. • Vehicles owned by ATT may not park or drive on Ruskin Street, except when providing telecommunication services to residents on those streets. • Access to and from the parking lot will be from Bellaire Blvd. via Academy Street, except when providing telecommunication services to residents on those streets. SITE MAP ON PAGE 2 ATT Rezone Request Fact Sheet Page 2 January 2019 Site Map: ® 0,1 co v. — .{....- C C C) CD (N CO 's1" C) CD (N CO 'Sr Rtiskin - „..- ✓ `71” 'I' NT CDCDCDOCDCDCDCDCDCD Cr) in r '71' 'sr 'Sr "Sl" e-- e- 0) a) CO CO Ruskin St , n -,--- N- ce) Air Re ,!rung L._ ,a3 6720 , -- 1-- 0 0 jr „ / +iwned.• 7,..p, .7 :::, ,,,,,-- 1 3 4 5/6 i 11,:hole,r. de / " iy// ''" Shop,: g Centey- '` 672! A. , i_ • ed ATT m. t Cotrip,a6 , ISO 4a21 sow A - ) CNJ g - ,---. , ATT Co Main Whole Foods +-a Bldg. CD Shopping Center c'1') (Commercial co ›,.. Lot). C 6723 (-c ›, • -• o e e E c 6727 —4 613 Li ltS „Cu to ...... ti Cu mco-t 14.) ca`.3 (71 4- RI c-,,c,...---.) I .0,). 0) 0) ce) re) Ziti . . . .. .. a . .a...............•11■1■•■■••••■■•MIEN I...•111111111IM/MO SIM CNN I.M.IMIIMIR•1■01 MN Bellaire Blvd ..: 4 —"'",,. 1.-- 0,4,, # 4', f • .0,6q 1. el . ,-. . . p , * ilk l' . . 0 c' ....1, ' 4r. e* Lot raf- 6 it'll" it ,•(-. 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L i :,,, ,•1: ira, JGCLIA ,„,ft...1 .4.. ,..IT I R.41 _164011 1 -Al 2 City of West University Place Harris County, Texas Ordinance No. AN ORDINANCE CALLING A JOINT PUBLIC HEARING ON A PROPOSAL TO AMEND THE ZONING ORDINANCE AND CODE OF ORDINANCES OF THE CITY OF WEST UNIVERSITY PLACE, TEXAS SO AS TO CREATE A NEW THIRD SINGLE FAMILY PLANNED DEVELOPMENT DISTRICT (PDD-SF3) AND CHANGE THE ZONING DISTRICTS FOR A CERTAIN BUILDING SITE LOCATED AT THE CORNER OF THE INTERSECTION OF ACADEMY AND RUSKIN STREET (LOTS 1-6, BLOCK 25, COLLEGEVIEW SECTION ONE) BY INCLUDING THOSE LOTS IN THE DISTRICT; ADD LANGUAGE ESTABLISHING THE DISTRICT SPECIFIC REGULATIONS; PRESCRIBING PROCEDURES AND NOTICES; CONTAINING FINDINGS AND OTHER PROVISIONS RELATING TO THE SUBJECT; AND DECLARING AN EMERGENCY. WHEREAS, the Zoning and Planning Commission ("Z&PC") of the City of West University Place, Texas ("City") has submitted a preliminary report on a proposal to amend the zoning ordinance of the City, as last reformatted and re-adopted by Ordinance No. 1672, adopted March 12, 2001, and as amended thereafter ("Zoning Ordinance"); and WHEREAS, the preliminary report also proposes an amendment to the Code of Ordinances of the City including the creation of a new zoning district classification; a zoning district change for the building site located at the corner of the intersection of Academy and Ruskin Street, more fully described as Lots One through Six of Block Twenty-five out of the Collegeview Section One Subdivision of Harris County, Texas; language that will establish district specific regulations; and zoning district map change. WHEREAS, the Z&PC's preliminary report is attached to this ordinance as Exhibit A and made a part of this ordinance by reference; and WHEREAS, the City Council desires to call a joint public hearing on such proposal; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST UNIVERSITY PLACE: Section 1. The City Council hereby calls a joint public hearing before the City Council and Z&PC on the proposal described in Exhibit A. Unless rescheduled, the hearing shall be held in the Council Chamber of the Municipal Building, 3800 University Boulevard, West University Place, Texas 77005 during the City Council meeting set to begin at 6:30 p.m. on . The hearing may be recessed and continued to the City Council meeting set to begin at 6:30 p.m. on at the same place, unless rescheduled. The City Manager may reschedule either date and time, or both, to accommodate other pending matters, but the rescheduled date(s) and time(s) may not be later than 30 days past the later of the two dates set by this ordinance. Section 2. The purpose for the hearing is to provide an opportunity for parties in interest and citizens to be heard in relation to the proposal described in Exhibit A. Section 3. The procedures for adoption of the proposal shall be as follows: (1) notice as required by this ordinance, (2) hearing as called by this ordinance, (3) report by the Z&PC, and (4) vote by the City Council on the question of adoption. The procedures for enforcing the proposal shall be as set out in the existing Zoning Ordinance. The proposal described in Exhibit A is hereby submitted and re-submitted to the Z&PC for its consideration. Section 4. The City Secretary shall give notice of such hearing as prescribed by this section. The notice shall be in substantially the form set out in Exhibit B, which is attached and made a part of this ordinance by reference. The notice shall be published in the City's official newspaper (or another newspaper of general circulation in the City) at least once on or before the 16th day preceding the date of the hearing. In addition, the notice shall be mailed to the persons on the mailing list for the City Currents newsletter. The notices shall be deposited in the United States mail on or before ninth day preceding the date of the hearing, properly addressed with postage prepaid. Alternately, the notices may be included within the newsletter or with utility bills or may be separate. The City Council specifically approves giving combined notice of two or more hearings in a single notice document, as this would save money and also provide better information about the full scope of possible amendments to all interested persons. Section 5. The City staff is authorized to make all necessary arrangements for the hearing and to assist the Zoning and Planning Commission and the City Council. Section 6. If any word, phrase, clause, sentence, paragraph, section or other part of this ordinance, or the application thereof to any person or circumstance, shall ever be held to be invalid or unconstitutional by any court of competent jurisdiction, the remainder of this ordinance and the application of such word, phrase, clause, sentence, paragraph, section or other part of this ordinance to any other persons or circumstances shall not be affected thereby. All ordinances and parts of ordinances in conflict herewith are hereby repealed to the extent of the conflict only. Section 7. The City Council officially finds, determines and declares that sufficient written notice of the date, hour, place and subject of each meeting at which this ordinance was discussed, considered or acted upon was given in the manner required by the Open Meetings Law, Chapter 551, Texas Government Code, as amended, and that such meeting has been open to the public as required by law at all times during such discussion, consideration and action. The City Council ratifies, approves and confirms such notices and the contents and posting thereof. Section 8. Because the proposal to amend the Zoning Ordinance is vitally important and should be considered at the earliest possible date, a state of emergency is declared requiring that this ordinance be read and adopted finally at this meeting. Accordingly, this ordinance shall be adopted finally on first reading and shall become effective immediately upon adoption and signature. PASSED, APPROVED, ADOPTED AND SIGNED on , 20 . Attest/Seal: Signed: City Secretary Mayor Recommended: City Manager Approved as to legal form: City Attorney Exhibit A Zoning & Planning Commission City of West University Place, Texas 3800 University Boulevard West University Place, Texas 77005 September 13, 2018 Honorable Mayor & Members of the City Council City of West University Place 3808 University Boulevard Houston, Texas 77005 Subject : Preliminary report on a request to amend the Zoning Ordinance and Code of Ordinances, including the Zoning District Map of the City of West University Place, Texas ("City") by establishing a new Third Single Family - Planned Development District (PDD-SF3) in the Third Single Family (Detached) (SF3) District. To the Honorable Mayor & Members of City Council: The Zoning & Planning Commission of the City submits this, its preliminary report, on the subject proposal, for the assistance of the Council as well as other interested persons . Scope of Proposal . The purpose of this proposal is to amend the Zoning Ordinance and Zoning District Map by changing the zoning district designation of the building site located at the corner of the intersection of Academy and Ruskin Street, more fully described as Lots One through Six in Block Twenty- five of the Collegeview Section One subdivision. This request by the property owner, AT&T (Southwestern Bell) , is to rezone six abutting lots that have been developed as parking for the main ATT structure fronting on Bellaire Boulevard. The site was originally developed as single family residential. There were 10 abutting lots that fronted on Ruskin Street . In 1970, four of the lots (One through Four) were granted a special exception for use as parking for the then Southwestern Bell (SWBT) vehicles and the vehicles in use by the SWBT employees. Five years later in 1975, a second exception was granted for parking of vehicles on Lots Five through Ten, restricting Lots Seven through Ten to passenger vehicles only. There were restrictions associated with the special exception as to plantings, fencing, lighting, etc . The underlying zoning designation for lots Five through Ten has remained residential, but subsequent zoning ordinance amendments and zoning map adoptions have at different times changed to townhome "Ruskin Townhome District" and eventually to the current PDD-SF2 designation. Lots One through Four have remained in the SF3 Disrict. The proposal is to create a new third single family planned development district (PDD-SF3) that includes lots 1-6 of block 25 . The proposal includes language (See Attachment 1 to this report) that establishes single family district three regulations as the underlying regulations. Two notes to Table 7-1 will allow for the existing parking lot as long as the property is owned by ATT or a similar telecommunications company. The proposal will allow ATT owned vehicles access and will allow for the loading and unloading of these vehicles . It will also allow for the inventory and supply of equipment to those vehicles as well as access to the vehicles for various employee activities . The proposal limits hours of operation, entry and exit for certain streets, prohibits signage, other structures, and requires fencing and landscaping. Conforming language in certain chapters is included. Preliminary Recommendation. Subject to further review following public hearing, the Commission recommends that the City Council call a joint public hearing to consider this matter. The Commission invites all interested persons to participate in the joint public hearing. The Vote. The vote on approval of this report was as follows: Wilson, McEnany, Cutrer, Johnston and Brantley voted "aye;" Tsai and Jensen voted "no; " none absent . Respectfully submitted: ZONING AND PLANNING COMMISSION OF THE CITY OF WEST UNIVERSITY PLACE, TEXAS r ' By � .. a 4 (L2A-AtrA"\ For the Commiss Attachment 1 West University Place Zoning Ordinance—Proposed PDD-5F3 General Rule:This table prescribes the minimum dimensions for building sites, by District. ("DU" means "dwelling unit.") Exceptions/Special Rules: (1) See Table 5-1 PDD Schedules for planned development districts. (2)See special notes in table. (3) The Z&PC may establish different dimensions by approving a plan, plat or replat(see Article 5). PDD- PDD- PDD- PDD- PDD- PDD- PDD- PDD- PDD- Item Measurement SF1 SF2 SF3 TH1 TH2 TH4 TH5 TH7 Cl Old building sites (before October Width, 50 ft. N/A SO ft. 24, minimum 1987) See Notes 1 and 2 Depth, 100 ft. N/A N/A minimum Area, 5,000 5,000 2,000 sq.ft. per DU minimum sq.ft. sq.ft. New building sites (on or after Width, October 75 ft. N/A 50 ft. minimum 24, 1987) See Note 3. Depth, 110 ft. N/A N/A minimum Area, 8,250 5,000 minimum sq.ft. 2,000 sq. ft. per DU sq.ft. Note 1. 4,500 Square Foot Exception . A structure may be located on an old building site with at least 40 feet of width and at least 4,500 square feet of total area, if the building site: (i)was improved with a principal building in existence on the 1987 effective date or for any period of twenty consecutive years prior to the 1987 effective date, under circumstances where there was no additional land used for the building site, and (ii)was created by subdivision plat and not made smaller thereafter except to provide public right of way or to accommodate physical encroachments, or as specifically allowed by Article 5. Note 2. 4,300 Square Foot Exception. A structure may be located on an old building site with at least 40 feet of width and at least 4,300 square feet of total area, if the building site: (i)was created by subdivision plat approved by the city council or the Z&PC, (ii) has not been made smaller thereafter for any reason. Note 3. Certain Re-Subdivisions After October 24, 1987. A subdivided lot in a SF-1, SF-3 or GR- 1 District may be further subdivided to produce a building site with less than seventy-five(75) feet of width or less than one hundred ten (110)feet of depth if all applicable procedures under state law and the City's ordinances, rules and regulations are followed and one of the following three sets of circumstances is present: (A)All portions of the subdivided lots are added to adjoining subdivided lots. (B)The number of lots is not increased, and all resulting lots have: (i) a depth greater than or equal to the depth of the shallowest lot before the re-subdivision, and (ii) a width greater than or equal to the width of the narrowest lot before the re-subdivision; provided that no resulting lot is irregularly shaped (unless it was so shaped before the re- subdivision). (C)A portion of the subdivided lot is needed for City use or utility or service use. TABLE 7-1 General Rule:Within each District: uses marked "A" are allowed, uses marked "SE" are allowed only to the extent authorized by a special exception (see Note 3), and uses marked "X" are prohibited. Table 7-1 Exceptions/Special Rules: (1) See PDD Schedules for planned development districts. (2) See special rules noted in table.The ZBA is authorized to issue all special exceptions mentioned in this Table. Use PDD- PDD- PDD- PDD- PDD- PDD- PDD- PDD- Specific Use PDD-CI Category SF1 SF2 SF3 TH1 TH2 TH4 TH5 TH7 Single-family A See Notes 1 and 7 Residential A (detached) A See Single-family X See Notes A See Note 1 A See Note 1 X (attached) Note 8 1 and 7 Other X X X X X X X X X residential Park, A See Notes 1 and 3 playground, or community Public and center A See Notes 3 Semi-Public (public), school and 4 (public), place of worship Private green See Notes 1 and 2 space School (other)See X X X X X X X X X See Note 3 Note 9 Utility or A See Note 1 service use. See Art. 8 . PWSF use. A or SE See PWSF Schedule. See Note 1 Commercial See Article 8 regarding See See certain Light See X Notes X X X X X Notes 6 commercial Note 5 sexually and 11 oriented 12 & 13 businesses. Medium See X X X X X X X commercial Note 5 All other uses X X X X X X X X X Note 1. High-density occupancies in SF District. High-density occupancies are allowed in SF Districts only to the extent authorized by a special exception. The ZBA may issue such a special exception if it finds and determines that the occupancy is a use that is (i) accessory to a lawful primary use and (ii) reasonably compatible with nearby sites and their uses (in addition to any other findings and determinations required for a special exception). Note : A previously-issued special exception that authorized a use with a high-density occupancy is sufficient to comply with this note. Note 2. Private Green Space. Vineyards, gardens, landscaping, private playgrounds and other similar uses that are predominantly pervious, vegetated and non-commercial are allowed in all districts. Unless otherwise authorized by a special exception, the only structures allowed are fences, playground equipment and landscaping structures (e.g., low, retaining walls, borders, etc.). The ZBA may issue a special exception to authorize other structures. The special exception shall include a site plan specifying and limiting allowable structures. If so ordered by the ZBA, the site plan controls over any other ordinance to the contrary. However, the site plan may not specify yards (or"setbacks")different from those otherwise required, unless the ZBA finds that the different yards are: (i) necessary for efficient use of the available space and (ii) compatible with nearby sites and their uses. The special exception may allow accessory structures without a principal building. Note 3. Accessory Uses and Structures. In the indicated districts, the ZBA may issue a special exception to authorize additional uses and structures, if the ZBA finds and determines that each additional use and structure is: (i) accessory to a lawful primary use and (ii)compatible with nearby sites and their uses. The special exception may include a site plan identifying and limiting such uses and structures. Note 4. Park, Playground, Etc. In the C District, a park, playground or community center may be privately or publicly owned. Note 5. Parking Use in PDD-SF2. The ZBA may issue a special exception to authorize parking of motor vehicles in connection with nearby commercial activities, upon approval by the ZBA of the types of vehicles, design of parking facilities (including landscaping, paving, lighting,fences or walls, signs, etc.)and curb cuts, all of which may be included as site-specific conditions of the special exception. Note 6. Light Office Use in PDD-C1. The only commercial use allowed in PDD-C1 is light office use, meaning offices for conducting real estate, insurance and other similar businesses and the offices of the architectural, clerical, engineering, legal, dental, medical and other established and recognized professions, in which only such personnel are employed as are customarily required for the practice of such business or profession. Note 7. Garden-style use in PDD-TH4 . "Garden-style"single family detached use is allowed in PDD-TH4 if authorized by a site plan meeting the requirements of Ordinance No. 1560, adopted October 12, 1998, which is continued in effect for the original site plan and for amendments and replacements of that plan. Such a site plan, after approval by ordinance in accordance with Article 14, controls over any provision elsewhere in this ordinance. Note 8. Attached dwellings in PDD-SF3. Any existing attached dwellings which complied with the former Schedule PDD-TH3 (Browning Townhouse PDD)at the time of their construction have PNC status, under and subject to Article 12 of this ordinance. The minimum width for interior side yards for such dwelling units is zero where there is an existing common wall (or existing continuously-abutting separate walls) along the property line, in either case with a four-hour fire rating or better. The minimum number of parking spaces is two per dwelling unit, and additional guest parking is not required, notwithstanding other provisions of this ordinance or any special exception issued under this ordinance. Note 9. School(other) . A special exception may authorize this use on sites wholly within the C District or partially within the C District and partially within another district. Note 10. Uses in TCC. The only uses allowed in TCC are retail, light office use, and food service use. TCC does not allow for residential use of any kind, bars or club uses, entertainment venues, sexually oriented businesses, auto-intensive uses, gambling establishments, surgical or emergency clinics, or any medium commercial uses. Note 11. Hours of operation. In the C, TCC and PDD-C1 districts, hours of operation for commercial uses shall not unreasonably impact the residential character of adjoining residential districts. All operations, including deliveries and other outdoor activity, shall comply with the City's noise regulations; see Chapter 54 of the Code of Ordinances. All commercial garbage and trash collection activities shall comply with Chapter 38 of the Code of Ordinances. Note 12. Parking Lot Use in PDD-SF3. PDD-SF3 may be used for(i)parking, loading and unloading and sorting/inventory of contents of vehicles, trucks and vans (2 axels maximum)owned by AT&T and/or its employees only, as part of the telecommunications business only, limited to 7am-7pm Monday-Saturday except related to services to medical facilities, due to customer medical emergencies or catastrophic events (storms, terrorist events, etc.), or parking only, which may occur at other times, (ii) vehicles temporarily required for repairs/construction relating to the adjacent building under common ownership, limited to the term of a valid City building permit, (iii) no use (non-use is not abandonment), and (iv) any use permitted by a current special exception. Washing, refueling and mechanical services are prohibited, but minor emergency repairs(flat tire, dead battery, out of fuel, etc.)are permitted. Transporting personal items(including food)to and from vehicles and adjacent building under common ownership, and transporting trash, litter and materials to and from vehicles and waste storage areas is permitted. Resting and phone calls are permitted within vehicles. Structures are prohibited, unless permitted by a current special exception. The parking lot shall comply with City Code, including light and noise restrictions applicable to residential areas. The existing solid walls and gates, and the landscaping outside the walls must be maintained in good condition. Monthly landscaping services are required. No exterior signage is permitted, except as required by law. Parking lot use on any lot in PDD-SF3 shall terminate upon: (i) independent sale of the lot, (ii)sale of all of AT&T's facility on Bellaire/Academy to an entity not in the telecommunications business. Merger of AT&T into another entity in the telecommunication business will not terminate the parking lot use. Note 13. Access/Parking Limits in PDD-SF3 during Parking Lot Use. The following limitations apply to Parking Lot use: (i) access is prohibited from the parking lot to Ruskin St., (ii)parking/driving of vehicles owned by AT&T and/or its employees is prohibited on Ruskin St. and Cason St., except for residents/invited quests, and temporarily while providing telecommunication services to residents on those streets, and (iii)access to/from the parking lot shall be from Bellaire Blvd. via Academy St. to the parking lot except temporarily while providing telecommunication services to residents on those streets. TABLE 7-2 General Rule: No part of any structure may be located within a part of a building site included within a yard defined, by District, in this table. ("N/A" means the rule does not apply.)Exceptions/Special Rules: (1) Structures may be located in Table 7-2 yards to the extent allowed by the Projections Schedule. (2) See special rules noted in table. (3) See PDD Schedules for Planned Development Districts. (4) See additional setbacks in the PWSF Schedule. Measureme PDD- PDD- PDD- PDD- PDD- PDD- PDD- PDD- PDD- Item nt SF1 SF2 SF3 TH1 TH2 TH4 TH5 TH7 CI 20 feet if the building site depth is 110 feet or less; 25 feet if the Distance building site depth is 20 ft. 5 ft. Front from front more than 110 feet but 10 ft. See Note 7. (Mercer (Bellaire yard street line. not more than 125 feet; Street) Blvd.) 30 feet if the building site depth is more than 125 feet.See Note S . Distance Interior from side Greater of 10%of 20 ft. 5 ft.See Notes 4.1 and 4.2.See (south side property building site width or 5 N/A Note 7. property yard line (each feet.See Note 2. side). line) Street Distance Greater of 10%of 10 ft. See side from side building site width or 5 10 ft.See Note 7. yard street line. ft.See Notes 2, 6 . (Bissonnet) Note 8. Distance 10 ft. 20 ft. 5 ft. (west Rear from rear See 20 ft.See Note See yard property 20 ft.See Note 1. See Note 1. property Note 8. Note 1. line) line. 1. Distance 10 ft. SF from 20 ft. See 20 ft.See Note See Buffer- nearest part N/A See N/A Note 7. Note 8. yard of an SF Note 7. 7. District Note 1. Through Lots or Building Sites or Rear Through Lots or Building Sites. If a lot or building site extends all the way through a block so that the front and rear both abut a street area, there is no rear yard. The site is a "through" or"rear through" lot or building site, and is considered to have two front yards, one at each street frontage. Front yard (setbacks) shall be as provided in Table 7-2. Exception: If the site is "flag" shaped or irregular, the "flag" portion shall have the same setback as the adjoining building sites fronting that street. Note 2. Narrow Site "3/7"Exception. Alternate side yard areas apply to a building site meeting all four of the following criteria: (A) The building site is less than 55 feet wide. (B)The use is single- family(detached) use. (C) Outside the rear yard, no main wall surface of any building is closer than 10 feet to any main wall surface of a "prior building" on another building site (unless there are "prior buildings"on both sides, each within seven feet of the property line, in which case the minimum separation from a "prior building" is eight feet). A"prior building" is a building in existence, under construction or covered by a current building permit when a building permit is issued for the subsequent building. (D)The owner has designated alternate side setback areas in a form approved by the administrative official and in accordance with all of the following criteria: (1) Minimum setback, interior: 3 feet. (2) Minimum setback, street side: 5 feet. (3) Minimum setbacks, both sides combined: greater of 10 feet or 20% of the building site width. (4) On each side, the setback is uniform in width along its entire length. See Table 7-5a regarding "alternating driveway" rule. Note 3. Rotated Corners. For rotated corner building sites (SF-1 District only), the minimum side street yard width is: (i) 10 feet if the building site width is 65 feet or less, (ii) 10 feet plus the distance by which the width of the building site exceed 65 feet, if the building site width is more than 65 feet but less than 75 feet, (iii)20 feet if the building site width is 75 feet or more but less than 100 feet, or(iv)for building sites 100 feet wide or more, the side street yard width is determined by the same rules as the front yard depth, except that the "depth" of the building site is measured from the side street line. Note 4.1. Common Walls. In the TH, GR-2, C, and all PDD-TH districts, the ZBA may issue a special exception for a zero-width side yard, but only upon application by both property owners and only if the special exception is conditioned upon the construction and maintenance of a common wall or continuously abutting separate walls (in either case with a four-hour fire rating or better) along the property line. See, also, Note 7, below, for QMDS. Note 4.2. Common Walls in New Townhouse Construction. In all PDD-TH districts, where new townhouses are concurrently constructed on two or more abutting building sites along a block face, zero-width side yards are allowed by right wherever a common wall or continuously abutting separate walls will be constructed and maintained (in either case with a four-hour fire rating or better)along the property line. On each building site that contains the end townhouse in a row of attached townhouses on abutting sites, the interior side yard requirement, or the street side yard requirement for a corner site, shall apply along the side property line where a common wall or continuously abutting separate walls will not be constructed. See, also, Note 7, below, for QMDS. Note 5. Major Thoroughfares. The ZBA may issue a special exception for a front yard less than 30 feet deep abutting a major thoroughfare, if the front yard prescribed is at least 10 feet deep, and if the special exception requires the greatest practicable amount of pervious area in the front yard. Note 6. Special Exception. The ZBA may prescribe a different street side yard by special exception relating to frontage. See Article 8. Note 7. Yards In QMDS. In a QMDS, yards are only required around the perimeter of the subdivision and are designated by the subdivision plat. See definition of QMDS. Standard projections into QMDS yards are allowed per the Projections Schedule. In addition: (a) Front yard (GR-1 or GR-2 Only): A principal building with an internal access garage may project as close as 10 feet to the street area if, in the projecting part: (a)there is a first-floor porch or with at least 80 sq. ft. of floor space (open or screened)and no dimension smaller than seven feet; (b) above the porch or court, no more than half the usable floor space is enclosed (coverings and other floor space, including open or screened porches, are allowed above all the porch or court); (c)the cornice height does not exceed 27 feet; (d) there are no more than 2.5 stories; and (e)there is no garage space. (b) Front yard: Bay windows, canopies and balconies at least 18 inches above grade may project up to 24 inches beyond the principal building. Steps and handrails may project up to 30 inches beyond the principal building. (c) Rear Yard and SF Bufferyard. Buildings up to 10 feet high (measured from finished grade to top of roof plate) may project, but not closer than 10 feet to the property line. Note 8. Yards in PDD-C1. In PDD-C1, the yards and street lines are as follows, notwithstanding other provisions of this ordinance: (i)The rear yard is the area within 20 feet of the rear property line (the line farthest from Bellaire Blvd.) of any building site, and for this purpose, the said rear property line shall be not in excess of 120 feet from the north right-of-way line of Bellaire Blvd. Exception: The rear yard upon Lot 2, Block 35, Colonial Terrace Addition (also known as the south 140 feet of Tract 9, Cambridge Place) is the area within 40 feet of the rear property line of said lot, said rear property line being located 140 north of the north right-of-way line of Bellaire Blvd. (ii)The street side yard is the area within ten feet of any side street line where the street area is 50 feet or less in width, or within five feet of any side street line where the street area is more than 50, but less than 70, feet wide. (iii) The front yard is the area within five feet of the front street line (which is the common boundary with Bellaire Boulevard). Any area outside of a building line established by ordinance or by recorded plat is considered part of the corresponding yard. Note 9. Yards in TCC. In TCC, the front street line is designated as the common boundary of the building site and the Edloe Street street area. For building sites with a side street along Rice Boulevard, the side yard shall be zero feet. For building sites with a side street line along University Boulevard, the side yard shall be five feet. The rear yard may be reduced by any future reduction in the width of the utility easement along the Poor Farm Ditch. TABLE 7-3 General Rule: Every building site must have the minimum open and pervious areas shown, by District, in this table. ("N/A" means the rule does not apply.) Table 7-3 Exceptions/Special Rules: (1) See PDD Schedules for planned development districts. (2)See special rules noted in table. (3) See the Projections Schedule for details about calculating open and pervious areas. PDD- PDD- PDD- PDD- PDD- PDD- PDD- PDD- PDD- Item Measurement SF1 SF2 SF3 TH1 TH2 TH4 TH5 TH7 C1 Front yard, Open N/A N/A minimum 60%. area percentage. Rear yard, minimum 60%.See Note 1. N/A N/A percentage. See Note 6. Entire building site, minimum 40% 25% N/A percentage. Front yard, Pervious minimum 50% 50%See Note 2. N/A area percentage Entire building site, minimum 24% 15% N/A percentage Landscaping Required, except for SFD uses on building sites with 5,000 sq. ft.or more.See strips Notes 3 and 5. For SFD uses on building sites with 5,000 sq.ft. or more,there must be at least one qualified tree in the front yard or in the adjacent street area. For all other uses, each qualified tree required by this ordinance or Chapter 82 of Qualified trees the Code of Ordinance must be located within a contiguous and reasonably compact pervious area containing at least 25 sq.ft. However, additional or better pervious area may be required to comply with Chapter 82. Pervious In a QMDS only, pervious pavement is allowed to be used for all vehicular pavement areas, and part of it may count as pervious area.See Note 4. Each parking area containing 21 or more parking spaces must contain Parking areas, interior pervious areas in "island" or"peninsula" configurations aggregating interior in area at least two square feet for each parking space. Note 1. Rear Yard Adjacent to Non-SF. The ZBA may issue a special exception to reduce the requirement for open area in a rear yard in a SF District to not less than 40%, if the rear yard abuts a non-SF District. Note 2. Pervious Area in QMDS. Front yard minimum pervious area requirement in a QMDS is 40%., or 30%for a front yard in a QMDS "low-impact motor court." Note 3. Landscaping Strips . Vegetated pervious areas required as follows: (a) minimum five feet wide adjacent to each street area (or 3.5 ft. if located in front of a fence or wall at least 3.5 feet high), and (b) minimum 18 inches wide to separate each paved vehicular area from a fence or subdivision or replat boundary. Exception: Strips are not required along alleys or where they must be crossed by sidewalks or driveways. Strips along street areas must have live, evergreen shrubs (maximum spacing is 3.5 ft.)and live qualified trees under Chapter 82 of the Code of Ordinances (maximum spacing is 20 ft.). The administrative official may approve different spacing for shrubs or trees, upon a showing that(i)the spacing is allowed by standard urban forestry criteria for the particular species and location and (ii)the spacing will comply with Chapter 82. The ZBA may issue a special exception to allow a landscaping strip to be located in whole or in part within a street area, if the ZBA finds that the particular landscaping will, in all probability, be allowed to remain intact for at least 50 years and that it can be maintained and will function as well as a strip located completely on private property. Note 4. Pervious Pavement. In a QMDS, the area of the holes or gaps (if actually pervious) counts toward pervious area requirements(but no more than 30% out of any area with pervious pavement may count). Note 5. Visual Buffer Zone. In TCC, along the east edge of each property a landscaped buffer zone shall be established consisting of trees, shrubs, and other durable vegetation adequate to minimize the transmittal of light and provide a visual buffer between a use in TCC and adjacent SF district properties. Evergreen shrubs shall be planted to form a continuous hedge with no gaps. Shrubs shall be hardy species that will withstand freezing temperatures. The plants shall be at least 18 inches in height as measured from the surrounding soil line and shall have a maximum 18 inch width at the widest portion when planted. Shrubs shall be capable of growth to not less than 48 inches in height when measured from the surrounding soil line and shall form a continuous hedge within three annual growing seasons. Shrubs shall be maintained at a height that does not interfere with overhead utility lines. Trees planted in the buffer zone shall not interfere with overhead utility lines. Note 6. Old Stock Housing. The ZBA may issue a special exception to reduce the open area requirement in the rear yard, if the ZBA determines: (i)the reduction is reasonably necessary to preserve or protect old stock housing as it then exists or as it may be proposed to be remodeled or expanded (up to a total gross floor area, for all buildings on the site, that does not exceed the greater of 3,400 square feet or 200% of the gross floor area of all the buildings on the site when the principal building was built, before 1980); and (ii)there will be no substantial adverse impact upon nearby properties. TABLE 7-4a General Rule: Every building site,garage space and related structure must conform to the applicable regulations shown, by District, in this table. ("N/A" Table 7-4a means the rule does not apply.) Exceptions/Special Rules: (1) See special rules noted in table. (2) See Article 9 regarding Planned Development Districts. (3) See Note 1 regarding special exceptions. PDD- PDD- PDD- PDD- PDD- PDD- PDD- PDD- PDD- Item Regulation SF1 SF2 SF3 TH1 TH2 TH4 TH5 TH7 Cl Minimum 2.0 (1.0 per DU for old stock housing); each must Garage Garage be enclosed or semi-enclosed parking Minimum 2.0 per DU; must be space, in and adjoin a driveway. N/A spaces.See enclosed. general Maximum 1.0 per 2,225 of Article 10. building site area, not to exceed 4.0. Minimum garage 10 feet wide, 20 feet deep (for 10 feet wide, 20 feet deep (for each parking each required garage parking N/A required garage parking space). space space). dimensions Garage See Article 10 Maneuvering doors or N/A area openings Prohibited unless: (i)the garage door is set back ten feet or more from the front yard, and Door or (ii)there is only open area opening above the driveway for at least (May affect eligibility as QMDS.See g seven feet inward from the definitions ) N/A facin front in Article 2. street line. front yard, and (iii)any structure above the driveway (and within ten feet of the front yard) must be cantilevered or suspended from the building (no special posts or vertical supports being allowed). Prohibited unless: (i)the garage door is set back ten feet or more from the side street line, and (ii)there is only open area above the driveway for 10 at Door or least seven feet inward from opening the side street line, and (iii) any (May affect eligibility as QMDS.See N/A facing side structure above the driveway definitions in Article 2. ) street line (and within ten feet of the side street line) must be cantilevered or suspended from the building (no special posts or vertical supports being allowed). Garage Max. 600 sq. ft. GFA in any Limit on non- accessory accessory building containing N/A N/A garage space buildings garage space. Note 1. Special Exceptions . The ZBA may issue a special exception for a parking area, garage or driveway in another location or with a different design than prescribed by this table, if it finds that: (i) the other location or design will not unreasonably interfere with available light and air and will not significantly alter access for fire-fighting and similar needs; (ii) the other location or design will prevent the destruction of a qualified tree; (iii) in the case of the remodeling of a principal building, the location requested is the same location as an existing parking area, garage or driveway; or(iv) the location or design requested is necessary for safety considerations. TABLE 7-4b General Rule: Every structure must conform to the applicable regulations shown, by District, in this table.("N/A" means the rule does not apply.) Table 7-4b Exceptions/Special Rules: (1) See special rules noted in table. (2)See Article 9 regarding Planned Development Districts. PDD- PDD- PDD- PDD- PDD- PDD- PDD- Item Regulation SF1 SF2 SF3 PDD-TH1 TH2 TH4 TH5 TH7 PDD-C1 Maximum Dwelling One plus units number per One, plus one AQ 17.5 per acre.See Note 9. one AQ building site 100%for all Maximum dwelling Framed area, area as a 100%. types all buildings percentage 80% See other 100%.See Note 4. N/A on a building of building Note 4. than TH; site site area 125%for TH.See Note 4. Length or Maximum width, any horizontal N/A 130 feet.See Note 3. N/A building dimension Exterior Must be of equal grade and quality, all sides.See materials, Type N/A Section 8-104. any building. A four-hour firewall, or its equivalent, must separate Separation Fire-rated N/A adjoining dwelling units.See Notes 3 and 5. See also of DU's wall Note 10(PDD-TH7 only) SF privacy Applies.See Note 8. See also Note 10 See Note 8. N/A N/A protection (PDD-TH7 only) Accessory Maximum buildings number per N/A 3 N/A See Article building site 10 regarding garage Height, 25 ft. 35 ft.See space. maximum Note 2. Stories, 2 and one-half 3 N/A maximum Height, 35, 25 in rear yard. maximum, in 35.See Notes 1 and 7. 35 Principal See Note 1 feet buildings Minimum 1,600 gross floor 1,400 each DU 1,200 each DU each 1,300 area, square feet DU Width, feet (min,), N/A 16, each DU N/A outside to outside Height and N/A screening of rooftop See Note 11. Applies mechanical equipment Note 1. Antennas and Chimneys. Roof-mounted radio or television antennas on a principal building in a residential district may project up to four feet above the roof. The maximum height of chimneys attached to a principal building is the greater of 35 feet or four feet above the roof. Note 2. Height In C District. In the C District, no part of any structure (except a fence) may be higher than the horizontal distance from that part to the nearest part of an SF District. Note 3. Building Detail, TH, PDD-TH and GR Districts. To separate buildings, there must be open area at least five feet wide maintained so that firefighters with hoses could pass through. Note 4. Framed Area In QMDS. Allowed square footage for a given building site is calculated by multiplying the allowable percentage by(a)the building site's area plus (b)an allocated part of any common use areas in the same QMDS (e.g., access easements, private streets, alleys, reserves, etc. that are not part of a building site). The allocated part is proportional to the building site's area divided by the area of all building sites in the same QMDS. Note 5. Building Code. Separation requirements are in addition to other requirements of building codes and other ordinances. See Code of Ordinances. Note 6. Height in GR-1, GR-2. Principal buildings in GR-1 or GR-2 Districts may be three stories high, but subject to the lower height limits prescribed for projecting spaces. See Table 7-2, Note 7. Note 7. Certain Projecting Buildings . Special height rules apply to buildings projecting into yards. See Tables 7-2 and 7-6. Note 8. SF privacy protection . On a building site where this applies, there may not be a direct sight line from any"third-floor viewpoint" to any point in an "SF privacy zone."A"third-floor viewpoint" is any viewpoint on a"third-floor area" at eye level (six feet) or lower. A"third-floor area" is any floored area (indoors or outdoors)where the floor is 18 feet or higher. The"SF privacy zone" includes every point: (i)within 100 feet of the third floor viewpoint in question, (ii) on a building site in an SF District, and (iii) below 20 feet in height. See Figure SFP. Note 9. Calculation of DU's Per Acre . In a QMDS only, the total number of DU's is divided by the total acreage of the QMDS to calculate the number of DU's per acre. Note 10. Spacing of Dwelling Units in PDD-TH7. Except where dwelling units are separated by common walls, the minimum distance between dwelling units shall be as follows: (i) No part of any dwelling unit may be closer than five feet to another dwelling unit. (ii) No window may be closer than 50 feet to a facing window to living space in another dwelling unit. (iii) Neither eaves nor balconies may be closer than 40 feet to a facing window to living space in another dwelling unit. (iv) Neither windows to living space nor balconies may be closer than 20 feet to any facing wall of another dwelling unit. Note 11. Rooftop Mechanical Equipment. In the C, TCC and PDD-C1 districts, any rooftop mechanical equipment, whether new or replacement equipment, shall be accommodated within the maximum building height limit and shall be fully screened from off-site and street area views through design and materials consistent with the overall design and colors of the principal building. This may include use of sloped roofs, a low parapet wall or other architectural elements that conceal flat roof areas where mechanical equipment is mounted, provided that all such building features comply with and do not project above the maximum building height limit. Note 12. Building Placement and Maximum Height in TCC. In TCC, the following height restriction shall apply: (i) Principal buildings shall be located in the front 60 feet of the building site and shall be limited to 2 stories and 35 feet in height, including any rooftop mechanical equipment. (ii)Accessory structures shall be located in the rear 70 feet of the building site and shall be limited to 35 feet in height, including any rooftop mechanical equipment. (iii)Any rooftop mechanical equipment, whether new or replacement, shall be fully screened from off-site and street area views through design and materials consistent with the overall design and colors of the principal building. This may include use of sloped roofs, a low parapet wall or other architectural elements that conceal flat roof areas where mechanical equipment is mounted, provided that all such building features comply with and do not project above the maximum building height limit. Note 13. Street Level Orientation in TCC. In TCC, the first floor of all buildings shall be at grade level. Elevated structures with open areas or parking below the second floor are not permitted. Table 7-5a General Rule: Every building site,vehicular area and related structure must conform to the applicable regulations shown, by District, in this table. Table 7-5a ("N&A" means the rule does not apply.) Exceptions/Special Rules : (1)See special rules noted in table. (3)See Article 9 regarding Planned Development Districts. (3)See Note 7 regarding special exceptions. (4)See Article 10. PDD- PDD- PDD- PDD- PDD- PDD- Item Regulation PDD-SF1 PDD-SF2 PDD-SF3 TH1 TH2 TH4 TH5 TH7 C1 Off-street Depends on land use, layout, etc.See this Table, Table 7-4a, and Article 10 parking (including maneuvering areas, design requirements, "same site"rule, yards, spaces and street areas, loading spaces, etc.). parking Number, areas location, Other size, design regulations apply;see, e.g. Article 10 Grouping or Not allowed, except in a QMDS platted parking reserve serving two or more sharing. DU's. But see Note 2. Use of Parking spaces for non-SFD uses may only be used for motor vehicle parking. parking See Note 3. areas Maneuvering See Article 10. areas Minimum 20 ft,via public or private street,to each principal building and each DU (or Emergency width to an adjacent open area accessible to firefighters and equipment). Other accessway See Note 1. regulations also apply, e.g,fire code. Driveways Minimum For SFD use: nine ft. and private width For non-SFD residential use: 10 feet, or 17 feet if two-way and serving three streets See Note 1. or more DU's. Other regulations Maximum For SFD use: (i) Driveway serving any single-bay garage: 12 feet. (ii) Driveway apply;see, width (in in a front yard serving rear garage or side-facing garage: 12 feet. (iii) e.g. Article front yard or Driveway in side street area of a corner site serving a side-facing garage with 10. street area) three or more bays: 30 feet; (iv) Any other driveway: 20 feet. For other See Note 1. residential uses: 24 ft. (or 35 feet if connecting to a major thoroughfare). For all other uses: 30 feet(or 35 feet if connecting to a major thoroughfare). For non-SFD uses: 160 feet, driving distance to the nearest street area, Maximum measured along centerline from farthest end point.A longer driveway is length allowed if there is an approved turnaround or second means of egress, or if the driveway is platted as part of the common area in a QMDS. Route, See Note 6 N&A location For non-SFD uses: There must be at least 40 feet between the "inside" apron Spacing edges (at their narrowest points) of driveways serving the same building site. For SFD use: Hard-surfaced or pervious pavement required for each required Required driveway and parking space;twin "ribbons" of pavement are permitted. For Pavement type all other uses: Reinforced concrete,with curbs and drains required for all See Note 4. vehicular areas. Exceptions: (i)See Table 7-3 (pervious pavement) and Note 4, below. (ii) See Article 10 regarding "overhang." Markings; For non-SFD uses: Parking spaces must be clearly marked on the pavement, Required wheel and wheel stops are required.See Note 12. stops. type Curb cuts For SFD use: Maximum one per designated building site abutting the street. Other Number For non-SFD uses: Maximum one per 50-ft. segment of street line.See Note regulations S. apply; see, e.g. Four feet (for aprons) plus the maximum driveway width allowed. Each curb Article 10 cut must be confined to the part of the street area that directly abuts the Max. width and building site(s) served.See Note 1. per 50-ft. Chapter 70 segment of of the Code street line o f Ordinances. Forbidden See Chapter 82 of the Code of Ordinances. Visibility structures, triangles plants and other things Note 1. Width measurement methods . Minimum driveway width refers to unobstructed vehicular access path and,for non-SFD use, pavement. Maximum driveway width refers to maximum width of pavement in a front yard or street area, excluding complying curb cut aprons. Maximum curb cut width refers to the width of the driveway plus aprons, measured at the edge of the roadway. Note 2. Grouped or shared parking . Article 10 also provides for a special exception, in certain circumstances. Note 3. Parking exclusivity(non-SFD uses) . Required parking spaces must be kept open, readily accessible and used for parking only, with no sales, dead storage, display, repair work, dismantling or servicing of any kind. Required guest parking spaces must be kept open and reserved for that use only. Note 4. Pavement. The ZBA may issue a special exception to allow other materials if it finds that they will provide equal or better durability. Note 5. Curb cuts. The ZBA may issue a special exception for additional curb cuts. Exception: The Administrative Official may authorize additional curb cuts for a corner site when in compliance with the requirements for two curb cuts for circular driveways specifically allowed by Chapter 70 of the Code of Ordinances. These additional curb cuts are not prohibited and do not require a special exception. Note 6. Route;Alternating Driveways . Each driveway must connect garage space to the street by the most direct route. On narrow sites where alternate side yard areas apply(see "Yards" table), the following special restrictions also apply: (A) there must be a driveway located as nearly as practicable to one side of the site; (B)the side is determined in accordance with the established driveway pattern for the block face in question, if there is such a pattern; and (C) if there is no such pattern, and if there is an adjacent driveway on one adjoining building site but not the other, the driveway must be on the side farthest from the adjoining driveway. Exceptions: (i)this paragraph does not prohibit circular driveways specifically permitted under another ordinance of the City, and (ii) a driveway may be curved or moved away from the most direct route to the extent reasonably necessary to avoid destroying or seriously injuring a tree. Note 7. Special Exceptions . The ZBA may issue a special exception for a parking area, garage or driveway(or other maneuvering area) in another location or with a different design than prescribed by this ordinance, if it finds that: (i)the other location or design will not unreasonably interfere with available light and air and will not significantly alter access for fire-fighting and similar needs; (ii)the other location or design will prevent the destruction of a qualified tree; (iii) in the case of the remodeling of a principal building, the location requested is the same location as an existing parking area, garage or driveway; or(iv)the location or design requested is necessary for safety considerations. Note 8. Curb Cuts in PDD-TH1 . (i) If a building site abuts both Bellaire Boulevard and another street, then all vehicular access shall be from the other street, and no more than two curb cuts shall be allowed. However, in the case of the development of Lots 6, 7, 8, 9 and the east ten feet of Lot 10, Block 1, Kent Place Addition, if Lot 6 is included in the same building site or in a joint development with the other lots, vehicular access shall be limited to one curb cut on Mercer Street. (ii) If a building site abuts only Bellaire Boulevard, vehicular access shall be limited to two curb cuts. Note 9. Curb Cuts in PDD-TH5. (i) If a building site abuts both Academy and Bissonnet, no curb cuts on Bissonnet and no more than two curb cuts on Academy are permitted. (ii) If a building site abuts only Bissonnet, there may be no more than two curb cuts. Note 10. Driveways in PDD-TH7. Cul-de-sac driveways in PDD-TH7 may not exceed 50 feet in length, or 200 feet if a terminus is provided with dimensions adequate for turning. Note 11. Curb Cuts in PDD-TH2. (i) If a building site abuts both Kirby Drive and another street, there may be one curb cut on Kirby Drive and on each other abutting street. (ii) If a building site abuts only Kirby Drive, vehicular access shall be limited to two curb cuts. Note 12. Curbs as Wheel Stops. Curbs may be used as wheel stops. Area outside a curb-wheel stop counts toward minimum parking space dimensions if actually usable as "overhang"and not needed for maneuvering area. TABLE 7-5b General Rule: Every structure must conform to the applicable regulations shown, by District, in this table. ("N/A" means the rule does not apply.) Table 7-5b Exceptions/Special Rules: (1) See special rules noted in table. (3) See Article 9 regarding Planned Development Districts. PDD- PDD- PDD- PDD- PDD- PDD- PDD- PDD- PDD- Item Regulation SF-1 SF-2 SF3 TH1 TH2 TH4 TH5 TI-17 C1 Maximum number Swimming per One.See Note 1. See Note 2. pools building site Maximum number Tennis One (may only be a private per courts tennis court).See Note 1. building site All 25 feet. But see "Buildings"table for certain building height limits. 35 ft. structures Height, See See, also, maximum Note 3. Article 8. Note 1. Tennis Courts., Swimming Pools in SF Districts . Each tennis court in a SF District must: (i) be a private accessory structure for a single building site, (ii) be used for residential purposes only, (iii) be open to the sky, but enclosed and screened to a height of at least eight feet on all sides, and (iv) never be lighted for play. Each swimming pool in an SF District must be a private accessory structure for a single building site and used for residential purposes only. Note 2. Swimming Pools, Tennis Courts In TH Districts . The ZBA may issue a special exception for a tennis court or a swimming pool if the ZBA finds that the proposed facility will not create a drainage or noise problem and will not cause a significant increase in traffic on nearby streets. Tennis courts and swimming pools must comply with the tennis court and swimming pool regulations in the SF Districts, but may serve commonly-platted or restricted sites. See Note 1. Note 3. Height in C District. In the C District, no part of any structure (except a fence) may be higher than the horizontal distance from that part to the nearest part of an SF District. Note 4. Utility Poles. An ordinary utility pole owned by a franchisee of the City may be up to 43 feet high, if the administrative official certifies that the additional height is necessary to separate wires of different voltages and capacities from each other and from the ground, applying standard technical codes and utility safety guidelines. Exhibit B NOTICE OF PUBLIC HEARINGS The Zoning & Planning Commission and the City Council of the City of West University Place, Texas ("City") will hold joint public hearings in the Council Chamber of the Municipal Building, 3800 University Boulevard, Houston, Texas 77005 during the City Council meeting set to begin at 6: 30 PM on . Each hearing may be recessed and continued to the City Council meeting set to begin at 6:30 p.m. on , at the same place. The purpose for the hearing is to provide an opportunity for parties in interest and citizens to be heard in relation to proposal (s) to amend the City's Zoning Ordinance, as follows: Scope of Proposal. The purpose of this proposal is to amend the Zoning Ordinance and Zoning District Map by changing the zoning district designation of the building site located at the corner of the intersection of Academy and Ruskin Street, more fully described as Lots One through Six in Block Twenty-five of the Collegeview Section One subdivision. This request by the property owner, AT&T (Southwestern Bell) , is to rezone six abutting lots that have been developed as parking for the main ATT structure fronting on Bellaire Boulevard. The proposal is to create a new third single family planned development district (PDD-SF3) that includes lots 1-6 of block 25. The proposal includes language that establishes single family district three regulations as the underlying regulations. Two notes to Table 7-1 will allow for the existing parking lot as long as the property is owned by ATT or a similar telecommunications company. The proposal will allow ATT owned vehicles access and will allow for the loading and unloading of these vehicles. It will also allow for the inventory and supply of equipment to those vehicles as well as access to the vehicles for various employee activities. The proposal limits hours of operation, entry and exit for certain streets, prohibits signage, other structures, and requires fencing and landscaping. Conforming language in certain chapters is included. A full copy of the proposal is located at www.westutx.gov. Additional details on the proposal (s) as well as the Zoning Ordinance are all available for public inspection in the Municipal Building, 3800 University Boulevard, Houston, Texas 77005. The proposed changes to the Zoning Ordinance would apply generally within the City, and any person interested in such matters should attend the hearings. The proposal (s) may be adopted only after notice and P Y hearing and would control over anything inconsistent in the current Zoning Ordinance. Date: /s/ Thelma Gilliam, City Secretary Traffic Impact Analysis AT&T Lot Rezoning Application Prepared for Submittal to: City of West University Place on Behalf of Wilson Cribbs Goren and AT&T Prepared By: Stevens Technical Services, Inc. Texas Registration #F-13097 _. •4 ,v ,tool lel � 1 ROMA G.ST VE ■ 1 .,�. lq� 100354 �i STEVENS TECHNICAL 1 OA- <�CENSEQ,.��a�. tx`�� `. ECG- January 10, 2019 TABLE OF CONTENTS I. BACKGROUND AND ASSUMPTIONS 2 II. STUDY PURPOSE 3 III. EXISTING CONDITIONS 4 A. Roadway Network 4 B. Existing Traffic Volumes 4 C. Traffic Operations 4 IV. EVALUATION OF PROPOSED CONDITIONS (2018) 7 A. Proposed Traffic Volumes(2018) 9 B. Proposed Conditions Traffic Operations 11 V. CONCLUSIONS 11 LIST OF TABLES Table 1. Existing Traffic Volumes at the Intersection of Academy St and Bellaire Blvd 4 Table 2. Level of Service Thresholds 6 Table 3. MOEs for Existing Conditions at Intersection of Academy St and Bellaire Blvd 6 Table 4. Proposed Conditions Traffic Volumes at the Intersection of Academy St and Bellaire Blvd 9 Table 5: Delay and LOS at Intersection of Academy St and Bellaire Blvd—Proposed Conditions 11 LIST OF FIGURES Figure 1. Location of Parking Lot 3 Figure 2. Existing Traffic Volumes 5 Figure 3.Picture of AT&T Supply Vehicle 7 Figure 4.Picture of Service Vehicle Type 1 8 Figure 5.Picture of Service Vehicle Type 2 8 Figure 6.Picture of Service Vehicle Type 3 9 Figure 7.Proposed Conditions Traffic Volumes 10 APPENDICES Appendix A. Turning Movement Counts Reports Appendix B. Synchro Reports 1 I. BACKGROUND AND ASSUMPTIONS AT&T has submitted a rezoning application with the City of West University Place(the City)regarding its Parking Lot on Lots 1-6,Block 25,Collegeview Section One, requesting the following zoning change: • Creation of a new zone PDD-SF3; • Lots 1-4 from SF3/Parking Lot to PDD SF3;and • Lots 5-6 from PDD SF2/Parking Lot to PDD SF3. These 6 lots are the AT&T Parking Lot(shown in Figure 1),located at the southeast corner of Ruskin Street and Academy Street. As part of this application, the City requested a traffic study be completed and submitted to the City to document the impacts of rezoning in the surrounding area. Based on various decisions/agreements between the City and AT&T,several restrictions are applicable for the Parking Lot and AT&T vehicles and were assumed to be in force by AT&T for the purposes of this study. These assumptions are: • Parking Lot will have no structures, • Parking Lot will not have any entrance and exit along Ruskin Street, • AT&T vehicles will not travel along Ruskin street and Cason Street unless servicing residents along those streets, • The only entrance to and exit from the Parking Lot is along Academy street via the intersection of Bellaire Blvd with Academy Street, • No 18 wheelers will use the Parking Lot, • Currently there is minimal use of the Parking Lot as such for existing conditions analysis, we are assuming it to be vacant. As a result of these restrictions,the impact of AT&T vehicles entering and exiting the Parking Lot is limited to the intersection of Bellaire Blvd and Academy Street. li 2 .� .v. d .n'" g.l W °' tea. .J�f" '"� ;+fl•Ny`'S`?uR."� • 1[ "x`aR.�a" ?t�.w d'! !�. `.'^,.R.i. o 4 w ' s.rpt .k,,;', ,,, *,-"" ,‘' 4i.,, ‘-' 6; iii° - s. a a �+^� , %lot " > ,... r ,, aa - i # I tq4 I;,,. r .. — ., i 10 4).4 a q a g .0,0.1),!:4"1, ^ t 1 �s� Figure 1.Location of Parking Lot II. STUDY PURPOSE This study is a requirement of the application for rezoning to the new PDD SF 3 district. However,since the area is already a parking lot and already used for a parking lot,which use is permitted under the existing zoning,there is no impact of the proposed PDD SF3. The only difference between current zoning"Parking Lot"and the proposed PDD SF3 is permitted loading/unloading and sorting of inventory of AT&T service vehicles within the existing parking lot. That change causes no impact to the traffic operations on the surrounding street network and intersections. However,AT&T has asked for a review of the impact under a hypothetical assumption that parking is not permitted in the existing parking lot. This report addresses that hypothetical issue and documents the existing conditions and evaluates the impacts of AT&T vehicles use of the Parking Lot on the weekday AM and PM peak hour operations at the nearby intersection of Academy Street with Bellaire Blvd. 3 III. EXISTING CONDITIONS A. Roadway Network Academy Street is a two-lane undivided roadway between Bellaire Blvd and Ruskin Street. Intersection of Ruskin Street with Academy Street is a stop-controlled T-intersection,while intersection of Academy Street with Bellaire Blvd is a signalized intersection. B. Existing Traffic Volumes 24 hour Turning Movement Counts (TMCs) were obtained for the intersection of Academy Street and Bellaire Blvd, Academy Street and AT&T Parking Lot Gate, Academy Street and Ruskin Street on Wednesday November 14,2018. In addition,existing 24 hour counts for the Parking Lot driveway located along Academy Street were collected the same day. The AM and PM peak hour counts for the study intersection of Academy Street and Bellaire Blvd are shown in Table 1 and Figure 2. TMC reports are included in Appendix A. Currently the AT&T Parking Lot is not being used by AT&T based on both information provided by AT&T and analysis of volume data collection at AT&T Parking Lot Gate. Table 1. Existing Traffic Volumes at the Intersection of Academy St and Bellaire Blvd Approach Peak Hour EB WB NB SB Left Thru Right Left Thru Right Left Thru Right Left 1 hru Right AM(7:30 to 0 1168 146 37 1034 4 233 14 145 6 13 1 8:30 am) PM(5 to 6 pm) 4 1022 122 110 1519 7 124 8 75 13 40 7 C. Traffic Operations The intersection of Academy Street and Bellaire Blvd was evaluated to determine the existing conditions traffic operations. The analysis was performed using Synchro 9.2. The measures of effectiveness(MOEs) used were Level-of-Service(LOS)and vehicular delay. The thresholds for LOS are defined by the type of traffic control,such as signalized versus unsignalized,as summarized in Table 2.The average control delay per vehicle is estimated for each approach as well as for the entire intersection. 4 %AY.* CD CD J 2/ - 1 ( 1 ( 1 0 i 1 1 , L____________I .H Z XL,N 41 ..., CD D J1 o S tt.,D o-n - M N O O Z , " `" = r '11f II,. Niti. D 3 L' r Table 2. Level of Service Thresholds Control Delay(sec/veh) Level-of-service(LOS) Signalized Intersection Unsignalized Intersection A 0-10 0-10 B >10-20 >10-15 C >20—35 >15—25 D >35—55 >25—35 E >55—80 >35—50 F >80 >50 The delay and LOS results for the existing conditions at the study intersection are listed in Table 3. Synchro reports are included in Appendix B. Table 3. MOEs for Existing Conditions at Intersection of Academy St and Bellaire Blvd Approach Peak Hour EB WB NB SB MI Delay LOS Delay LOS Delay LOS Delay LOS Delay LOS AM(7:30 to 19.7 B 12.2 B 23.7 C 21.9 C 17.4 B 8:30 am) PM(5 to 6 pm) 17.3 B 11.3 B 22.9 C 24.1 C 14.6 B The analysis indicated the study intersection is operating at acceptable LOS under existing conditions. 6 IV. EVALUATION OF PROPOSED CONDITIONS(2018) Proposed conditions for this unique traffic impact study were developed for a hypothetical scenario to demonstrate the most impact of the full use of the Parking Lot (67 parking spaces total) on the study intersection. The scenario assumes that 67 AT&T technician vehicles will arrive in the AM peak hour, conduct some business for a very short duration, and all 67 vehicles will leave during the same AM peak hour. The same activity was assumed for the PM peak hour such that 67 vehicles will arrive at the Parking Lot and all 67 vehicles will leave the Parking Lot during the PM peak hour. To develop proposed conditions for this hypothetical scenario, STS also gathered information from AT&T regarding the type of vehicles expected to use the Parking Lot. This information is summarized below. 1. Based on information provided by AT&T, one box truck(24')per week for supply(Figure 3).For traffic analysis and design purposes(as per AASHTO Green Book—A Policy on Geometric Design of Highways and Streets), this single unit truck will be classified as heavy vehicle. Traffic composition along the street network used for analysis included 2%heavy vehicles to account for occasional trucks in the traffic stream. " r '+�x ''';‘,„N' w , ', err n ;aA , ' if ' - r r ,,,,,,,%.! , , A '4* �� yn r,� p '"y ''4, ' r3P� p j, , n 'u rte t fit - ;�3�' l� . . ,t-'4,,, _ �� �� s. lc ' l" ' Figure 3.Picture of AT&T Supply Vehicle 2. In addition, AT&T provided information on vehicle types most commonly used by AT&T as service vehicles. These vehicles are shown in Figure 4 thru Figure 6 below. For the purposes of traffic analysis and design, AASHTO Green Book—A Policy on Geometric Design of Highways and Streets defines passenger vehicle as follows-"the passenger-car class includes passenger cars 7 of all sizes, sport/utility vehicles, minivans, vans, and pick-up trucks". Based on this definition of AASHTO for passenger vehicles, STS assumed AT&T service vehicles to be passenger vehicles used for commercial purposes. M � fl r y M.1 Figure 4.Picture of Service Vehicle Type 1 AT3? �' as A a! S Figure 5.Picture of Service Vehicle Type 2 8 �`c1 ...31 4 Allat E:417 )7L $ : 1 r -_ Figure 6.Picture of Service Vehicle Type 3 A. Proposed Traffic Volumes (2018) Vehicles entering and exiting the AT&T Parking Lot in the proposed hypothetical scenario were distributed proportionally to SB,EB,and WB directions based on existing traffic volume and then added to the existing volumes for the AM peak hour and PM peak hour. The traffic volumes for the proposed conditions are shown in Table 4 and in Figure 7. Table 4.Proposed Conditions Traffic Volumes at the Intersection of Academy St and Bellaire Blvd Approach Peak Hour EB WB NB SB Left Thru Right Left Thru Right Left Thru Right Left Thru Right AM(7:30 to 32 1168 146 37 1034 30 233 23 145 38 18 31 8:30 am) PM(5 to 6 pm) 30 1022 122 110 1519 43 124 13 75 38 46 43 9 , I 1 CD 1 CD l n r ) r O 1 1 1 I J ,at t.s,,,,,,0,- i .,,,,,, A IC9 / CD a®p Jl O A ifl `N D JlAT Z D - < r°oZ abG< Z 'IT. Ili rr N -- 10° 3m .6; _ 3c @ a B. Proposed Conditions Traffic Operations The intersection of Academy Street and Bellaire Blvd was evaluated to determine the traffic operations for proposed conditions. The delay and LOS results for the two scenarios at the study intersection are listed in Table 5. Synchro reports are included in Appendix B. Table 5: Delay and LOS at Intersection of Academy St and Bellaire Blvd—Proposed Conditions Approach Peak Hour EB WB NB SB All Delay LOS Delay LOS Delay LOS Delay LOS Delay LOS AM(7:30 to 21.2 C 20.3 C 25.2 C 18.2 B 21.3 C 8:30 am) PM(5 to 6 pm) 18.5 B 15.0 B 23.0 C 26.7 C 17.3 B V. CONCLUSIONS STS conducted a traffic impact analysis for the AT&T Parking Lot Rezoning Application submitted to City of West University Place. The rezoning application is requesting changes to the allowable activities (loading/unloading) in the parking lot, and as such no new trips are expected on the surrounding street network.As a result of the rezoning,there is no impact to the traffic operations on the surrounding network. However, since based on traffic volumes data collected and information provided by AT&T, the Parking Lot is currently vacant, STS analyzed the impact of a proposed condition.The proposed condition assumes 67 vehicles(equal to the full capacity of the parking lot)will be entering,and all 67 vehicles will be leaving the parking lot during each of the AM and PM peak hours. The analysis results show that delay for proposed conditions (full use of parking lot) increased by 3.9 seconds per vehicle in the AM peak hour and 2.7 seconds per vehicle in the PM peak hour as compared to existing conditions (zero use of parking lot). In summary, the intersection of Academy Street at Bellaire Blvd will experience very minor increase in vehicle delay due to the proposed hypothetical full use of the parking lot as compared to the existing conditions and will still operate at an acceptable level of service. 11 Appendix A Turning Movement Counts Reports gRaillgtagic eaunting, Sc_ 1506 Festival Drive Houston, Texas 77062 888-315-6141 File Name : academy at ruskin am Site Code : 1 Start Date : 11/14/2018 Page No : 1 Groups Printed-Autos-Heavy vehicles-Pedestrians none Ruskin Academy Ruskin From North From East From South From West Start Time Left Thru Right Peds App.Total Left I Thru Right I Peds I App.Total Left Thru Right Peds App.Total Left I Thru I Right I Peds I App.Tow Int.Total 06:00 AM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 06:15 AM 0 0 0 0 0 3 0 0 3 0 0 0 0 0 0 0 0 0 0 3 06:30 AM 0 0 0 0 0 1 1 0 2 0 0 0 0 0 0 1 0 0 1 3 06:45 AM 0 0 0 0 0 1 0 0 1 1 0 1 0 2 0 1 2 0 3 6 Total 0 0 0 0 0 5 1 0 6 1 0 1 0 2 0 2 2 0 4 12 07:00 AM 0 0 0 0 0 1 0 0 1 0 0 2 0 2 0 1 5 0 6 9 07:15 AM 0 0 0 0 0 4 1 0 5 1 0 1 0 2 0 2 4 0 6 13 07:30 AM 0 0 0 0 0 0 1 0 1 0 0 1 0 1 0 1 0 0 1 3 07:45 AM 0 0 0 0 0 5 1 1 7 3 0 2 0 5 0 2 1 0 3 15 Total 0 0 0 0 0 10 3 1 14 4 0 6 0 10 0 6 10 0 16 40 08:00 AM 0 0 0 0 0 1 3 0 4 1 0 2 0 3 0 1 2 0 3 10 08:15 AM 0 0 0 0 0 1 2 2 5 1 0 0 0 1 0 1 3 0 4 10 08:30 AM 0 0 0 0 0 4 0 0 4 0 0 4 0 4 0 5 1 0 6 14 08:45 AM 0 0 0 0 0 2 2 0 4 2 0 1 0 3 0 0 0 0 0 7 Total 0 0 0 0 0 8 7 2 17 4 0 7 0 11 0 7 6 0 13 41 Grand Total 0 0 0 0 0 23 11 3 37 9 0 14 0 23, 0 15 18 0 33 93 Apprch% 0 0 0 0 62.2 29.7 8.1 39.1 0 60.9 0 0 45.5 54.5 0 Total% 0 0 0 0 0 24.7 11.8 3.2 39.8 9.7 0 15.1 0 24.7 0 16.1 19.4 0 35.5 Autos 0 0 0 0 0 23 11 0 34 9 0 14 0 23 0 15 18 0 33 90 %Autos 0 0 0 0 0 100 100 0 91.9_ 100 0 100 0 100 0 100 100 0 100 96.8 Heavy vehicles 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 v Heavy vehicles 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Pedestrians 0 0 0 0 0 0 0 3 3 0 0 0 0 0 0 0 0 0 0 3 %Pedestrians 0 0 0 0 0 0 0 100 8.1 0 0 0 0 0 0 0 0 0 0 3.2 none Ruskin Academy Ruskin From North From East From South From West Start Time Left Thru I Right Peds App Total Left I Thru Right Peds I App Total Left I Thru I Right I Peds I App.Total Left Thru I Right I Peds I App.rota Int.Total I Peak Hour Analysis From 06:00 AM to 08:45 AM-Peak 1 of 1 Peak Hour for Entire Intersection Begins at 07:45 AM 07:45 AM 0 0 0 0 0 5 1 0 1 7 3 0 2 0 5 0 2 1 0 3 15 08:00 AM 0 0 0 0 0 1 3 0 0 4 1 0 2 0 3 0 1 2 0 3 10 08:15 AM 0 0 0 0 0 1 2 0 2 5 1 0 0 0 1 0 1 3 0 4 10 08:30 AM 0 0 0 0 0 4 0 0 0 4_ 0 0 4 0 4 0 5 1 0 6 14 Total Volume 0 0 0 0 0 11 6 0 3 20 5 0 8 0 13 0 9 7 0 16 49 App.Total 0 0 0 0 55 30 0 15 38.5 0 61.5 0 0 56.2 43.8 0 P H F .000 .000 .000 .000 .000 .550 .500 .000 .375 .714 .417 .000 .500 .000 .650 .000 .450 .583 .000 .667 .817 q cauintU, gG, 31c Festival Drive Houston, Texas 77062 888-315-6141 File Name : academy at ruskin am Site Code : 1 Start Date : 11/14/2018 Page No : 2 none Ruskin Academy Ruskin From North From East From South From West Start Time Left I Thru I Right I Peds I App.Total Left Thru I Right I Peds I App Total Left I Thru I Right I Peds App.Tots Left Thru I Right I Peds I App.Toted Int.Total Peak Hour Analysis From 06:00 AM to 08:45 AM-Peak 1 of 1 Peak Hour for Each Approach Begins at: 08:00 AM 07:45 AM 07.45 AM 08:30 AM +0 mins. 0 0 0 0 0 5 1 0 1 7 3 0 2 0 5 0 1 0 0 1 +15 mins. 0 0 0 0 0 1 3 0 0 4 1 0 2 0 3 0 1 2 0 3 +30 mins. 0 0 0 0 0 1 2 0 2 5 1 0 0 0 1 0 1 5 0 6 +45 mins. 0 0 0 0 0 4 0 0 0 4 0 0 4 0 4 0 2 4 0 6 Total Volume 0 0 0 0 0 11 6 0 3 20 5 0 8 0 13 0 5 11 0 16 App.Total 0 0 0 0 55 30 0 15 38.5 0 61.5 0 0 31.2 68.8 0 PHF .000 .000 .000 .000 .000 i .550 .500 .000 .375 .714 .417 .000 .500 .000 .650 .000 .625 .550 .000 .667 q1At5fpceaatia , Sic u Festival Drive Houston, Texas 77062 888-315-6141 File Name : Academy at Ruskin Midday Site Code : 1 Start Date : 11/14/2018 Page No : 1 Groups Printed-Autos-Heaver vehicles-Pedestrians none Ruskin Academy Ruskin From North From East From South From West Start Time Left I Thru I Right I Peds I App Total Left I Thru I Right I Peds I App Toil Left I Thru 1 Right I Peds I App @a, Left I Thru I Right I Peds I Apo.Total Int.Totes 11:00 AM 0 0 0 0 5 2 0 0 7 1 0 4 0 / 5 0 0 0 0 12 11:15 AM 0 0 0 0 2 1 0 0 3 6 0 4 0 10 0 2 0 2 15 11:30 AM 0 0 0 0 3 0 0 0 3 2 0 1 0 3 0 1 1 2 8 11:45 AM 0 0 0 0 4 3 0 0 7 1 0 3 2 6 0 0 0 0 13 Total 0 0 0 0 14 6 0 0 20 10 0 12 2 24 0 3 1 4 48 12:00 PM 0 0 0 0 2 1 0 0 3 0 0 1 0 1 0 2 0 2 6 12:15 PM 0 0 0 0 ', 2 1 0 0 3 2 0 3 0 5 0 1 2 3 11 12:30 PM 0 0 0 0 1 5 0 0 6 0 0 7 0 7 0 0 0 0 13 12:45 PM 0 0 0 0 5 4 0 0 9 3 0 2 0 5 0 2 0 2 16 Total 0 0 0 0 10 11 0 0 21 5 0 13 0 18 0 5 2 7 46 01:00 PM 0 0 0 0 4 3 0 1 8 2 0 6 0 8 0 0 1 1 17 01:15 PM 0 0 1 1 1 5 0 0 0 5 3 0 2 0 5 0 1 1 2 13 01:30 PM 0 0 0 0 4 4 0 0 8 1 0 1 0 2 0 3 1 4 14 01:45 PM 0 0 0 0 4 2 0 0 6 2 0 0 0 2 0 1 1 2 10 Total 0 0 1 1 17 9 0 1 27 8 0 9 0 17 0 5 4 9 54 Grand Total 0 0 1 1 41 26 0 1 68 23 0 34 2 59 0 13 7 20 148 Apprch% 0 0 100 60.3 38.2 0 1.5 39 0 57.6 3.4 0 65 35 Total% 0 0 0.7 0.7 27.7 17.6 0 0.7 45.9 15.5 0 23 1.4 39.9 0 8.8 4.7 13.5 Autos 0 0 0 0 40 25 0 0 65 23 0 33 1 57 0 13 7 20 142 %Autos 0 0 0 0 97.6 96.2 0 0 95.6 100 0 97.1 50 96.6 0 100 100 100 95.9 Heavy vehicles 0 0 0 0 1 1 0 0 2 0 0 1 0 1 0 0 0 0 3 %Heavy vehicles 0 0 0 0 2.4 3.8 0 0 2.9 0 0 2.9 0 1.7 0 0 0 0 2 Pedestrians 0 0 1 1 0 0 0 1 1 0 0 0 1 1 0 0 0 0 3 %Pedestrians 0 0 100 100 0 0 0 100 1.5 0 0 0 50 1.7 0 0 0 0 2 none Ruskin Academy Ruskin From North From East From South From West Start Time Left®� Peds Mi�®��Peds Peds Peds PM Int.Total ' Peak Hour Analysis From 11:00 AM to 01:45 PM-Peak 1 of 1 Peak Hour for Entire Intersection Begins at 12:45 PM 12:45 PM 0 0 0 0 0 5 4 0 0 9 3 0 2 0 5 0 2 0 0 2 16 01:00 PM 0 0 0 0 0 4 3 0 1 8 2 0 6 0 8 0 0 1 0 1 17 01:15 PM 0 0 0 1 1 5 0 0 0 5 3 0 2 0 5 0 1 1 0 2 13 01:30 PM 0 0 0 0 0 4 4 0 0 8 1 0 1 0 2 0 3 1 0 4 14 Total Volume 0 0 0 1 1 18 11 0 1 30 9 0 11 0 20 0 6 3 0 9 60 %App.Total 0 0 0 100 60 36.7 0 3.3 45 0 55 0 0 66.7 33.3 0 P H F .000 .000 .000 .250 .250 .900 .688 .000 .250 .833 .750 .000 .458 .000 .625 .000 .500 .750 .000 .563 .882 g Rlht a anting ) tic 1 06 Festival Drive Houston, Texas 77062 888-315-6141 File Name : Academy at Ruskin Midday Site Code : 1 Start Date : 11/14/2018 Page No : 2 none Ruskin Academy Ruskin From North From East From South From West Start Time Left®MI Peds PENIEE102110, Peds reillnlinaMEMI Peds rouragnzioni Peds I,,t.Total Peak Hour Analysis From 11:00 AM to 01:45 PM-Peak 1 of 1 Peak Hour for Each Approach Begins at: 12:30 PM 12:45 PM 12:15 PM 12 45P +0 mins. 0 0 0 0 0 5 4 0 9 2 0 3 0 5 0 2 0 0 2 +15 mins. 0 0 0 0 0 4 3 1 8 0 0 7 0 7 0 0 1 0 1 +30 mins. 0 0 0 0 0 5 0 0 5 3 0 2 0 5 0 1 1 0 2 +45 mins. 0 0 0 1 1 4 4 0 8 2 0 6 0 8 0 3 1 0 4 Total volume 0 0 0 1 1 18 11 1 30 7 0 18 0 25 0 6 3 0 9 r APP.Total 0 0 0 100 60 36.7 3.3 28 0 72 0 0 66.7 33.3 0 PHF .000 .000 .000 .250 .250 .900 .688 .00 .250 .833 .583 .000 .643 .000 .781 .000 .500 .750 .000 .563 qtAt5fpc Cau ntin , Sic 1 Festival Drive Houston, Texas 77062 888-315-6141 File Name : academy at ruskin pm Site Code : 1 Start Date : 11/14/2018 Page No : 1 Groups Printed-Autos-Heavy vehicles-Pedestrians none Ruskin Academy Ruskin From North From East From South From West Start Time Left I Thru Right I Peds I Apo Totes Left Thru Right Peds App Total Left I Thru I Right Peds I App Total Left Thru I Right I Peds I App Total Int.Total 04:00 PM 0 0 0 0 0 8 3 0 0 11 8 0 0 0 8 0 0 1 0 1 20 04:15 PM 0 0 0 0 0 3 2 0 0 5 2 0 1 0 3 0 0 2 0 2 10 04:30 PM 0 0 0 0 0 5 5 0 0 10 3 0 3 0 6 0 1 4 0 5 21 04:45 PM 0 0 0 0 0 4 6 0 0 10 7 0 4 0 11 0 1 1 0 2 23 Total 0 0 0 0 0 20 16 0 0 36 20 0 8 0 28 0 2 8 0 10 74 05:00 PM 0 0 0 0 0 9 3 0 1 13 2 0 5 0 7 0 3 1 0 4 24 05:15 PM 0 0 0 0 0 8 1 0 0 9 4 0 1 0 5 0 1 0 0 1 15 05:30 PM 0 0 0 0 0 9 8 0 0 17 2 0 3 0 5 0 0 0 0 0 22 05:45 PM 0 0 0 0 0 11 4 0 0 15 2 0 3 0 5 0 2 3 0 5 25 Total 0 0 0 0 0 37 16 0 1 54 10 0 12 0 22 0 6 4 0 10 86 06:00 PM 0 0 0 0 0 5 7 0 0 12 3 0 1 0 4 0 0 2 0 2 18 06:15 PM 0 0 0 0 0 3 1 0 0 4 4 0 4 0 8 0 1 1 0 2 14 06:30 PM 0 0 0 0 0 5 3 0 0 8 2 0 1 0 3 0 1 2 0 3 14 06:45 PM 0 0 0 0 0 3 4 0 0 7 0 0 0 0 0 0 1 2 0 3 10 Total 0 0 0 0 0 16 15 0 0 31 9 0 6 0 15 0 3 7 0 10 56 Grand Total 0 0 0 0 0 73 47 0 1 121 39 0 26 0 65 0 11 19 0 30 216 Apprch% 0 0 0 0 60.3 38.8 0 0.8 60 0 40 0 0 36.7 63.3 0 Total% 0 0 0 0 0 33.8 21.8 0 0.5 56 18.1 0 12 0 30.1 0 5.1 8.8 0 13.9 Autos 0 0 0 0 0 71 47 0 0 118 39 0 26 0 65 0 11 18 0 29 212 %Autos 0 0 0 0 0 97.3 100 0 0 97.5 100 0 100 0 100 0 100 94.7 0 96.7 98.1 Heavy vehicles 0 0 0 0 0 2 0 0 0 2 0 0 0 0 0 0 0 1 0 1 3 %Heavy vehicles 0 0 0 0 0 2.7 0 0 0 1.7 0 0 0 0 0 0 0 5.3 0 3.3 1.4 Pedestrians 0 0 0 0 0 0 0 0 1 1 0 0 0 0 0 0 0 0 0 0 1 Pedestrians 0 0 0 0 0 0 0 0 100 0.8 0 0 0 0 0 0 0 0 0 0 0.5 none Ruskin Academy Ruskin From North From East From South From West Start Time Left®MI Peds®01,Peds Peds ENTIPMEENIMI Peds Int.Total Peak Hour Analysis From 04:00 PM to 06:45 PM-Peak 1 of 1 Peak Hour for Entire Intersection Begins at 05:00 PM 05:00 PM 0 0 0 0 0 9 3 0 1 13 2 0 5 0 7 0 3 1 0 4 24 05:15 PM 0 0 0 0 0 8 1 0 0 9 4 0 1 0 5 0 1 0 0 1 15 05:30 PM 0 0 0 0 0 9 8 0 0 17 2 0 3 0 5 0 0 0 0 0 22 05:45 PM 0 0 0 0 0 11 4 0 0 15 2 0 3 0 5 0 2 3 0 5 25 Total Volume 0 0 0 0 0 37 16 0 1 54 10 0 12 0 22 0 6 4 0 10 86 %App.Total 0 0 0 0 68.5 29.6 0 1.9 45.5 0 54.5 0 0 60 40 0 P H F .000 .000 .000 .000 .000 .841 .500 .000 .250 .794 .625 .000 .600 .000 .786 .000 .500 .333 .000 .500 .860 qtiKggzc Drive Houston, Texas 77062 888-315-6141 File Name : academy at ruskin pm Site Code : 1 Start Date : 11/14/2018 Page No : 2 none Ruskin Academy Ruskin From North From East From South From West Start Time Left®1MI Peds ENNIMEMNIMI Peds !1!MMO®E)1 Peds lNTlM®l 'L't!Peds l01.Tel Peak Hour Analysis From 04:00 PM to 06:45 PM-Peak 1 of 1 Peak Hour for Each Approach Begins at: 04:00 PM 05:00 PM 04:30 PM 04:15 PM +0 mins. 0 0 0 0 0 9 3 0 1 13 3 0 3 0 6 0 0 2 0 2 +15 mins. 0 0 0 0 0 8 1 0 0 9 7 0 4 0 11 0 1 4 0 5 +30 mins. 0 0 0 0 0 9 8 0 0 17 2 0 5 0 7 0 1 1 0 2 +45 mins. 0 0 0 0 0 11 4 0 0 15 4 0 1 0 5 0 3 1 0 4 Total Volume 0 0 0 0 0 37 16 0 1 54 16 0 13 0 29 0 5 8 0 13 App.Total 0 0 0 0 68.5 29.6 0 1.9 55.2 0 44.8 0 0 38.5 61.5 0 P H F .000 .000 .000 .000 .000 .841 .500 .000 .250 .794 .571 .000 .650 .000 .659 .000 .417 .500 .000 .650 qK5pcCuttia41c 1 Festival Drive Houston, Texas 77062 888-315-6141 File Name : site 2 academy at at & t driveways am Site Code : 2 Start Date : 11/14/2018 Page No : 1 Groups s Tin ed-Autos Academy AT&T driveways Academy I none From North From East From South From West Start Time Left Thru r Right I Peds App Total Left I Thru Right I Peds App Total Left Thru Right Peds A..Total Left Thru I Right I Peds App Total Int.Total I 06:00 AM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 06:15 AM 0 0 0 0 0 0 0 0 0 0 i 0 0 0 0 0 0 0 0 0 0 0 06:30 AM 0 0 0 0 0 0 0 0 0 O 0 0 0 0 0 0 0 0 0 0 0 06:45 AM 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 0 0 0 0 0 1 Total 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 0 0 0 0 0 1 07:00 AM 1 0 0 0 1 0 0 0 0 01 0 0 1 0 1 0 0 0 0 0 2 07:15 AM ' 0 0 0 0 0 1 0 0 0 1 0 0 0 0 0 0 0 0 0 0 1 07:30 AM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 , 0 0 0 0 0 0 07:45 AM 2 0 0 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2 Total 3 0 0 0 3 ' 1 0 0 0 1 0 0 1 0 1 0 0 0 0 0 5 08:00 AM ' 0 0 0 0 0 0 0 0 0 0 ' 0 0 0 0 0 0 0 0 0 0 !, 0 08:15 AM 0 0 0 0 0 1 0 0 0 1 0 0 0 0 0 0 0 0 0 0 1 08:30 AM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 08:45 AM 0 0 0 0 0_ 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Total 0 0 0 0 O i 1 0 0 0 1 0 0 0 0 0 0 0 0 0 0 1 Grand Total 3 0 0 0 3 2 0 0 0 2 0 0 2 0 2 I 0 0 0 0 0 1 7 Apprch% 100 0 0 0 100 0 0 0 0 0 100 0 0 0 0 0 Total% 42.9 0 0 0 42.9 1 28.6 0 0 0 28.6 0 0 28.6 0 28.6 I 0 0 0 0 0 Academy AT&T driveways Academy none From North I From East Left Thru From Right S uth From West Start Time Left Thru Right Peds I A. Total Left Thru Right Peds I App miai I App Total Left I Thru I Right I Peds I App rotas Int.Total Peak Hour Analysis From 06:00 AM to 08:45 AM-Peak 1 of 1 Peak Hour for Entire Intersection Begins at 07:00 AM 07:00 AM 1 0 0 0 1 0 0 0 0 0 0 0 1 0 1 0 0 0 0 0 2 07:15 AM 0 0 0 0 0 1 0 0 0 1 0 0 0 0 0 0 0 0 0 0 1 07:30 AM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 07:45 AM 2 0 0_ 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2 Total volume 3 0 0 0 3 1 0 0 0 1 0 0 1 0 1 0 0 0 0 0 5 %App.Total 100 0 0 0 100 0 0 0 0 0 100 0 0 0 0 0 PHF_,.375 .000 .000 .000 _.375 .250 .000 .000 .000 .250 .000 .000 .250 .000 .250 .000 .000 .00.0 .000 .0001 .625 • J`�Cl.l1ZJ� e a untingc, ,tic 1506 Festival Drive Houston, Texas 77062 888-315-6141 File Name : site 2 academy at at & t driveways am Site Code : 2 Start Date : 11/14/2018 Page No : 2 Academy AT&T driveways Academy none From North From East From South From West Start Time Left Thru I Right I Peds App.Total Left I Thru I Right Peds App ToP6 Left Thru Right I Peds i App Total Left Thru Right Peds I App.Total Int.Total Peak Hour Analysis From 06:00 AM to 08:45 AM-Peak 1 of 1 Peak Hour for Each Approach Begins at: 07:00 AM 08:30 AM 08.15 AM 08:00 AM +0 mins. 1 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 +15 mins. 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 +30 mins. 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 0 0 0 0 0 +45 mins. 2 0 0 0 2 1 0 0 0 1 0 0 1 0 1 0 0 0 0 0 Total Volume 3 0 0 0 3 1 0 0 0 1 0 0 2 0 2 0 0 0 0 0 App.Total 100 0 0 0 100 0 0 0 0 0 100 0 0 0 0 0 P H F .375 .000 .000 .000 .375 .250 .000 .000 .000 .250 .000 .000 .500 .000 .500 .000 .000 .000 .000 .000 q1K5gzc Cauntingc, tic 1 Festival Drive Houston, Texas 77062 888-315-6141 File Name : Site 2 Academy at AT & T driveways Midday Site Code : 2 Start Date : 11/14/2018 Page No : 1 Groups Printed-Autos Academy AT&T driveways Academy none From North From East From South From West Start Time Left Thru I Right LPeds I App Total Left-r Thru Right I Peds I App Taal Left I Thru I Right I Peds I App Total Left Thru I Right Peds I App.Total int.Total I 11:00 AM i 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 0 0 0 0 0 1 11:15AMI 2 0 0 0 2 2 0 0 0 2 0 0 1 0 1 0 0 0 0 0 5 11:30AM1 II 0 0 0 0 0 2 0 0 0 2 0 0 0 0 0 0 0 0 0 0 2 11:45 AM I 0 0 0 0 0 1 0 0 0 1 0 0 0 0 0 0 0 0 0 0 1 Total 2 0 0 0 2 5 0 0 0 5 0 0 2 0 2 0 0 0 0 0 9 12:00 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 12:15 PM 0 0 0 0 0 1 0 1 0 2 0 0 0 0 0I 0 0 0 0 0 2 12:30 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 12:45 PM 0 0 0 0 0 1 0 0 0 1 0 0 0 0 0 0 0 0 0 0 1 Total 0 0 0 0 0 2 0 1 0 3 0 0 0 0 0 0 0 0 0 0 3 01:00 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 1 0 01:15 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 01 0 0 0 0 0 0 01:30 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ' 0 0 0 0 0 0 01:45 PM 1 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 Total 1 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 Grand Total 3 0 0 0 3 7 0 1 0 8 I 0 0 2 0 2 0 0 0 0 0 13 Apprch% 100 0 0 0 87.5 0 12.5 0 0 0 100 0 0 0 0 0 Total% 23.1 0 0 0 23.1 53.8 0 7.7 0 61.5 0 0 15.4 0 15.4 0 0 0 0 0 Academy AT&T driveways Academy none From North From East From South From West Start Time Left Thru ;Right Peds meal Left Thru 1 Ri•ht Peds A.Total Left I Thru RighLPeds App Total ; Left'Thru I Right 1 Peds I App.TO Int.Total I Peak Hour Analysis From 11:00 AM to 01:45 PM-Peak 1 of 1 Peak Hour for Entire Intersection Begins at 11:00 AM 11:00 AM 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 0 0 0 0 0 1 11:15 AM 2 0 0 0 2I 2 0 0 0 2 0 0 1 0 1 0 0 0 0 0 5 11:30 AM 0 0 0 0 0 2 0 0 0 2 0 0 0 0 0 0 0 0 0 0 2 11:45AM 0 0 0 0 0 1 0 0 0 1 0 0 0 0 0 0 0 0 0 0 1 Total volume I 2 0 0 0 2 5 0 0 0 5 0 0 2 0 2 0 0 0 0 0 9 %App.Total i 100 0 0 0 ! 100 0 0 0 0 0 100 0 0 0 0 0 _- - -_— PHF±_250__000 .000 .000 .250 , .625 .000 .000 .000 .625 .000 .000 .500 .000 .000 00 .500 .000 .000 .000 .000 , .450 qtit5qpc Gauntuty, 31c Festival Drive Houston, Texas 77062 888-315-6141 File Name : Site 2 Academy at AT & T driveways Midday Site Code : 2 Start Date : 11/14/2018 Page No : 2 Academy AT&T driveways Academy none From North From East From South From West Start Time Left I Thru I Right I Peds App Total Left I Thru i Right I Peds App Total Left I Thru I Right I Peds I App.Total Left I Thru I Right I Peds App Total ant.Total Peak Hour Analysis From 11:00 AM to 01:45 PM-Peak 1 of 1 Peak Hour for Each Approach Begins at: 11:00AM 11:00AM 1100 AM 11:00AM +0 mins. 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 0 0 0 0 0 +15 mins. 2 0 0 0 2 2 0 0 0 2 0 0 1 0 1 0 0 0 0 0 +30 mins. 0 0 0 0 0 2 0 0 0 2 0 0 0 0 0 0 0 0 0 0 +45 mins. 0 0 0 0 0 1 0 0 0 1 _0 0 0 0 0 0 0 0 0 0 Total Volume 2 0 0 0 2 5 0 0 0 5 0 0 2 0 2 0 0 0 0 0 App.Total 100 0 0 0 100 0 0 0 0 0 100 0 0 0 0 0 P H F .250 .000 .000 .000 .250 .625 .000 .000 .000 .625 .000 .000 .500 .000 .500 .000 .000 .000 .000 .000 gRamgtaffic eaanting, tic 1 6 Festival Drive Houston, Texas 77062 888-315-6141 File Name : Site 2 Academy at AT & T driveways PM Site Code : 2 Start Date : 11/14/2018 Page No : 1 Grouss Printed-Autos Academy AT&T driveways Academy none From East From From North I F m South From West Start Time Left Thru I Right I Peds APP Total Left IThru ! Right Peds npp Toy EIMI Thru fRight I Peds I App Total i Left I Thru I Right I Peds I app Total ant.Total 04:00 PM 0 0 0 0 0 ' 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 04:15 PM 0 0 0 0 0 , 0 0 0 0 0 0 0 0 0 01 0 0 0 0 0 0 04:30 PM 0 0 0 0 0 1� 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 04:4 0 0 0 0 0 0 0 0 0 0 I Total 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 } _ 0 0 0 0 0 0 05:00 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 I 0 0 0 0 0 0 05:15 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 . 0 0 0 0 0 0 05:30 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 05:45 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Total 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 06:00 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 06:15 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 06:30 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 01 0 0 0 0 0 0 06:45 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 01 0 0 0 0 0 0 Total 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 !I 0 0 0 0 0 0 Grand Total 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Apprch% 0 0 0 0 I 0 0 0 0 0 0 0 0 1 0 0 0 0 Total �� Pe PP it L_ ATF driveways Academy Peds s I Left I Thru Right I South Left Thru r Ri.htN Peds a..Total lot.Total ' From North Start Time Left[Thru Right Peds 'I A Total eft Thru • Right Peds App ro�a ght Peds APP Total �� Peak Hour Analysis From 04:00 PM to 06:45 PM-Peak 1 of 1 Peak Hour for Entire Intersection Begins at 04:00 PM 04:00 PM 0 0 0 0 0 ' 0 0 0 0 0 0 0 0 0 01 0 0 0 0 0 0 04:15 PM 0 0 0 0 0 ' 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 04:30 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 04:45 PM 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Total Volume 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 A..,Total 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 P H F .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 qa /i'cqic Cu ntin , S1stival Drive Houston, Texas 77062 888-315-6141 File Name : Site 2 Academy at AT & T driveways PM Site Code : 2 Start Date : 11/14/2018 Page No : 2 Academy AT&T driveways Academy none From North From East From South From West Start Time Left®M Peds MI�®� Peds ��Peds Peds int.Total Peak Hour Analysis From 04:00 PM to 06:45 PM-Peak 1 of 1 Peak Hour for Each Approach Begins at: 04:00 PM 04:00 PM 04'.00 PM 04:00 PM +0 mins. 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 +15 mins. 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 +30 mins. 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 +45 mins. 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Total Volume 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 APP.Total 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 P H F .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 .000 qKffaffZcCuwunçt, hc 1 Festival Drive Houston, Texas 77062 888-315-6141 File Name : site 3 academy at bellaire am Site Code : 3 Start Date : 11/14/2018 Page No : 1 Groups Printed-Autos-Heavy vehicles-Pedestrians Academy Bellaire Blvd Academy Bellaire Blvd From South From West From North From East Start Time Left Thru Ri.ht Peds mml Left Thru Ri.ht Peds ...Tom Left!Thru Ri.ht Peds • .Toted Left Thru Ri.ht Peds ,•.Total Int.Total 06:00 AM 4 0 7 0 11 0 151 3 1 155 0 0 0 0 0 1 54 1 0 56 222 06:15 AM 3 1 11 0 15 0 222 7 0 229 1 0 0 0 1 1 70 0 0 71 316 06:30 AM 9 0 28 1 38 0 239 6 0 245 0 1 0 1 2 1 97 1 0 99 384 06:45 AM 16 1 30 0 47 0 251 11 0 262 2 0 3 1 6 4 104 1 0 109 424 Total 32 2 76 1 111 0 863 27 1 891 3 1 3 2 9 7 325 3 0 335 1346 07:00 AM 24 1 37 0 62 1 294 17 0 312 3 4 1 1 9 2 158 0 0 160 543 07:15 AM 57 2 43 0 102 0 273 17 0 290 7 1 3 0 11 5 188 5 0 198 601 07:30 AM 57 3 34 1 95 0 345 22 0 367 1 1 0 0 2 11 277 0 2 290 754 07:45 AM 58 6 37 1 102 0 287 37 1 325 2 6 0 0 8 6 265 1 0 272 707 Total 196 12 151 2 361 1 1199 93 1 1294 13 12 4 1 30 24 888 6 2 920 2605 08:00 AM 54 3 35 2 94 0 282 51 0 333 1 3 0 1 5 15 254 2 4 275 707 08:15 AM 64 2 39 1 106 0 254 36 0 290 2 3 1 2 8 5 238 1 2 246 650 08:30 AM 26 1 37 1 65 2 294 20 1 317 2 2 1 3 8 7 228 4 1 240 630 08:45 AM 30 0 19 0 49 0 270 18 0 288 1 0 0 0 1 11 181 2 1 195 533 Total 174 6 130 4 314 2 1100 125 1 1228 6 8 2 6 22 38 901 9 8 956 2520 Grand Total 402 20 357 7 786 3 3162 245 3 3413 22 21 9 9 61 69 2114 18 10 2211 6471 Apprch% 51.1 2.5 45.4 0.9 0.1 92.6 7.2 0.1 36.1 34.4 14.8 14.8 3.1 95.6 0.8 0.5 Total% 6.2 0.3 5.5 0.1 12.1 0 48.9 3.8 0 52.7 0.3 0.3 0.1 0.1 0.9_ 1.1 32.7 0.3 0.2 34.2 Autos 399 20 352 0 771 3 3104 242 0 3349 22 21 9 0 52 68 2059 18 0 2145 6317 %Autos 99.3 100 98.6 0 98.1 100 98.2 98.8 0 98.1 100 100 100 0 85.2.98.6 97.4 100 0 97 97.6 Heavy vehicles 3 0 5 0 8 0 58 3 0 61 0 0 0 0 0 1 55 0 0 56 125 Heavy vehicles 0.7 0 1.4 0 1 0 1.8 1.2 0 1.8 0 0 0 0 0 1.4 2.6 0 0 2.5 1.9 Pedestrians 0 0 0 7 7 0 0 0 3 3 0 0 0 9 9 0 0 0 10 10 29 %Pedestrians 0 0 0 100 0.9 0 0 0 100 0.1 0 0 0 100 14.8 0 0 0 100 0.5 0.4 Academy Bellaire Blvd Academy Bellaire Blvd From South From West From North From East Start Time Left I Thru I Right I Peds App.Total Left Thru I Right 1Peds I App.Total Left I Thru I Right I Peds I App.Telsl Left I Thru I Right I Peds I App.Total Int.Total Peak Hour Analysis From 06:00 AM to 08:45 AM-Peak 1 of 1 Peak Hour for Entire Intersection Begins at 07:30 AM 07:30 AM 57 3 34 1 95 0 345 22 0 367 1 1 0 0 2 11 277 0 2 290 754 07:45 AM 58 6 37 1 102 0 287 37 1 325 2 6 0 0 8 6 265 1 0 272 707 08:00 AM 54 3 35 2 94 0 282 51 0 333 1 3 0 1 5 15 254 2 4 275 707 08:15 AM 64 2 39 1 106 0 254 36 0 290 2 3 1 2 8 5 238 1 2 246 650 Total volume 233 14 145 5 397 0 1168 146 1 1315 6 13 1 3 23 37 1034 4 8 1083 2818 App.Total 58.7 3.5 36.5 1.3 0 88.8 11.1 0.1 _26.1 56.5 4.3 13 . 3.4 95.5 0.4 0.7 PHF .910 .583 .929 .625 .936 .000 .846 .716 .250 .896 .750 .542 .250 .375 .719 .617 .933 .500 .500 .934 .934 gNahtgtaffic eauntingc, tic 1 06 Festival Drive Houston, Texas 77062 888-315-6141 File Name : site 3 academy at bellaire am Site Code : 3 Start Date : 11/14/2018 Page No : 2 Academy Bellaire Blvd Academy Bellaire Blvd From South From West From North From East Start Time Left ®4elu� Peds �®4ulu! Peds Peds Peds Int.Total Peak Hour Analysis From 06:00 AM to 08:45 AM-Peak 1 of 1 Peak Hour for Each Approach Begins at: 07:30 AM 07:15 AM 07:00 AM 07:30 AM +0 mins. 57 3 34 1 95 0 273 17 0 290 3 4 1 1 9 11 277 0 2 290 +15 mins. 58 6 37 1 102 0 345 22 0 367 7 1 3 0 11 6 265 1 0 272 +30 mins. 54 3 35 2 94 0 287 37 1 325 1 1 0 0 2 15 254 2 4 275 +45 mins. 64 2 39 1 106 0 282 51 0 333 2 6 0 . 0 8 5 238 1 2 246 Total volume 233 14 145 5 397 0 1187 127 1 1315 13 12 4 1 30 37 1034 4 8 1083 App.Total 58.7 3.5 36.5 1.3 0 90.3 9.7 0.1 43.3 40 13.3 3.3 3.4 95.5 0.4 0.7 PHF .910 .583 .929 .625 .936 .000 .860 .623 .250 .896 .464 .500 .333 .250 .682 .617 .933 .500 .500 .934 gRaditgtagic eauntincC, 3 c 1506 Festival Drive Houston, Texas 77062 888-315-6141 File Name : site 3 academy at bellaire midday Site Code : 3 Start Date : 11/14/2018 Page No : 1 Groups Printed-Autos-Heavy vehicles-Pedestrians Academy Bellaire Blvd Academy Bellaire Blvd From South From West From North From East Start Time Left Thru I Right I Peds App Total Left Thru I Right I Peds f App.Total Left Thru Right I Peds I App.Total Left I Thru I Right I Peds App Total Int.Total 11:00 AM 20 1 22 0 43 2 179 14 0 195 2 4 0 1 7 17 213 0 0 230 475 11:15 AM 26 4 15 0 45 5 211 17 0 233 0 1 0 0 1 17 251 1 0 269 548 11:30 AM 26 1 8 0 35 1 226 16 0 243 1 3 3 0 7 16 223 2 0 241 526 11:45 AM 21 1 19 0 41 0 206 23 0 229 0 4 2 0 6 20 244 2 0 266 542 Total 93 7 64 0 164 8 822 70 0 900 3 12 5 1 21 70 931 5 0 1006 2091 12:00 PM 20 1 28 2 51 0 236 17 0 253 3 0 2 0 5 22 248 0 0 270 579 12:15 PM 30 2 14 1 47 1 217 18 1 237 4 5 0 2 11 21 227 0 1 249 544 12:30 PM 27 2 16 0 45 0 212 24 0 236 2 1 0 0 3 18 248 3 0 269 553 12:45 PM 15 2 20 1 38 1 240 20 0 261 0 4 0 0 4 14 239 6 0 259 562 Total 92 7 78 4 181 2 905 79 1 987 9 10 2 2 23 75 962 9 1 1047 2238 01:00 PM 28 2 15 0 45 0 249 26 0 275 1 3 1 0 5 23 260 5 0 288 613 01:15 PM 22 2 15 3 42 2 220 21 0 243 3 5 2 0 10 15 244 2 0 261 556 01:30 PM 19 1 13 0 33 1 234 19 1 255 0 0 0 0 0 22 246 4 0 272 560 01:45 PM 31 1 13 0 45 1 199 12 0 212 2 2 1 0 5 18 276 3 0 297 559 Total 100 6 56 3 165 4 902 78 1 985 6 10 4 0 20 78 1026 14 0 1118 2288 Grand Total 285 20 198 7 510 14 2629 227 2 2872 18 32 11 3 64 223 2919 28 1 3171 6617 Apprch% 55.9 3.9 38.8 1.4 0.5 91.5 7.9 0.1 28.1 50 17.2 4.7 7 92.1 0.9 0 Total% 4.3 0.3 3 0.1 7.7 0.2 39.7 3.4 0 43.4 0.3 0.5 0.2 0 1 3.4 44.1 0.4 0 47.9 Autos 281 20 193 0 494 14 2576 218 0 2808 18 31 11 0 60 217 2845 27 0 3089 6451 %Autos 98.6 100 97.5 0 96.9 100 98 96 0 97.8 100 96.9 100 0 93.8 97.3 97.5 96.4 0 9.7.4 97.5 Hesvy vehicles 4 0 5 0 9 0 53 9 0 62 0 1 0 0 1 6 74 1 0 81 153 %Heavy vehicles 1.4 0 2.5 0 1.8 0 2 4 0 2.2 0 3.1 0 0 1.6 2.7 2.5 3.6 0 2.6 2.3 Pedestrians 0 0 0 7 7 0 0 0 2 2 0 0 0 3 3 0 0 0 1 1 13 %Pedestrians 0 0 0 100 1.4 0 0 0 100 0.1 0 0 0 100 4.7 0 0 0 100 0 0.2 Academy Bellaire Blvd Academy Bellaire Blvd From South From West From North From East Start Time Left I Thru I Right I Peds I App.Total Left I Thru I Right I Peds I App Total Left I Thru i Right I Peds App Total Left Thru I Right Peds I App Total inc rotas Peak Hour Analysis From 11:00 AM to 01:45 PM-Peak 1 of 1 Peak Hour for Entire Intersection Begin at 12:45 PM 12:45 PM 15 2 20 1 38 1 240 20 0 261 0 4 0 0 4 14 239 6 0 259 562 01:00 PM 28 2 15 0 45 0 249 26 0 275 1 3 1 0 5 23 260 5 0 288 613 01:15 PM 22 2 15 3 42 2 220 21 0 243 3 5 2 0 10 15 244 2 0 261 556 01:30 PM 19 1 13 0 33 1 234 19 1 255 0 0 0 0 0 22 246 4 0 272 560 Total Volume 84 7 63 4 158 4 943 86 1 1034 4 12 3 0 19 74 989 17 0 1080 2291 %App.Total 53.2 4.4 39.9 2.5 0.4 91.2 8.3 0.1 21.1 63.2 15.8 0 6.9 91.6 1.6 0 P H F .750 .875 .788 .333 .878 .500 .947 .827 .250 .940 .333 .600 .375 .000 .475 .804 .951 .708 .000 .938 .934 gRa.II c5 c ffic Cauntingc, tic 1506 Festival Drive Houston, Texas 77062 888-315-6141 File Name : site 3 academy at bellaire midday Site Code : 3 Start Date : 11/14/2018 Page No : 2 Academy Bellaire Blvd Academy Bellaire Blvd From South From West From North From East Start Time Left I Thru Right I Peds I App.Tubb Left Thru I Right I Peds I App.Total Left Thru [Right I Peds I App.Total Left I Thru I Right I Peds I App.Total int.Total Peak Hour Analysis From 11:00 AM to 01:45 PM-Peak 1 of 1 Peak Hour for Each Approach Begins at: 11'45 AM 12'.45 PM 11:30 AM 01:00 PM +0 mins. 21 1 19 0 41 1 240 20 0 261 1 3 3 0 7 23 260 5 0 288 +15 mins. 20 1 28 2 51 0 249 26 0 275 0 4 2 0 6 15 244 2 0 261 +30 mins. 30 2 14 1 47 2 220 21 0 243 3 0 2 0 5 22 246 4 0 272 +45 mins. 27 2 16 0 45 1 234 19 1 255 4 5 0 2 11 18 276 3 0 297 Total volume 98 6 77 3 184 4 943 86 1 1034 8 12 7 2 29 78 1026 14 0 1118 App.Total 53.3 3.3 41.8 1.6 0.4 91.2 8.3 0.1 27.6 41.4 24.1 6.9 7 91.8 1.3 0 PHF .817 .750 .688 .375 .902 .500 .947 .827 .250 .940 .500 .600 .583 .250 .659 .848 .929 .700 .000 .941 • • qmaitiggage counting, tl c 1506 Festival Drive Houston, Texas 77062 888-315-6141 File Name : Site 3 Academy at Bellaire PM Site Code : 3 Start Date : 11/14/2018 Page No : 1 Groups Printed-Autos-Head vehicles-Pedestrians Academy Bellaire Blvd Academy Bellaire Blvd From South From West From North From E-st Start Time Left Thru Ri.ht Peds ;.Total Left Thru Ri.ht Peds ,..Total Left Thru Ri•ht Peds ,,.Total Left Thru Ri•ht Peds ..Total int.Totai 04:00 PM 51 4 25 1 81 0 239 45 1 285 2 7 1 1 11 22 380 4 3 409 786 04:15 PM 43 2 19 2 66 0 252 38 2 292 2 5 0 1 8 20 376 1 2 399 765 04:30 PM 30 1 18 3 52 3 251 28 0 282 5 9 0 0 14 27 374 4 0 405 753 04:45 PM 26 6 24 3 59 2 221 35 0 258 3 6 3 0 12 25 349 6 1 381 710 Total 150 13 86 9 258 5 963 146 3 1117 12 27 4 2 45 94 1479 15 6 1594 3014 05:00 PM 35 1 17 1 54 1 236 33 2 272 2 14 3 1 20 31 386 2 1 420 766 05:15 PM 32 4 24 0 60 1 282 32 2 317 4 6 1 1 12 26 357 1 1 385 774 05:30 PM 23 1 22 2 48 2 266 33 0 301 2 7 1 0 10 28 409 3 2 442 801 05:45 PM 34 2 12 1 49 0 238 24 0 262 5 13 2 0 20 25 367 1 1 394 725 Total 124 8 75 4 211 4 1022 122 4 1152 13 40 7 2 62 110 1519 7 5 1641 3066 06:00 PM 28 2 19 0 49 0 236 27 0 263 2 7 1 1 11 30 356 4 0 390 713 06:15 PM 25 2 16 0 43 3 212 37 0 252 6 7 1 0 14 26 334 2 1 363 672 06:30 PM 25 1 17 3 46 4 206 21 1 232 3 5 1 0 9 23 248 0 1 272 559 06:45 PM 18 0 12 1 31 0 160 17 0 177 0 5 2 0 7 25 259 2 1 287 502 Total 96 5 64 4 169 7 814 102 1 924 11 24 5 1 41 104 1197 8 3 1312 2446 Grand Total 370 26 225 17 638 16 2799 370 8 3193 36 91 16 5 148 308 4195 30 14 4547 8526 Apprch% 58 4.1 35.3 2.7 0.5 87.7 11.6 0.3 24.3 61.5 10.8 3.4 6.8 92.3 0.7 0.3 Total% 4.3 0.3 2.6 0.2 7.5 0.2 32.8 4.3 0.1 37.5 0.4 1.1 0.2 0.1 1.7 3.6 49.2 0.4 0.2 53.3 Autos 369 26 224 0 619 15 2745 368 0 3128 35 90 16 0 141 307 4135 30 0 4472 8360 %Autos 99.7 100 99.6 0 97 93.8 98.1 99.5 0 98 97.2 98.9 100 0 95.3 99.7 98.6 100 0 98.4 98.1 Heavy vehides 1 0 1 0 2 1 54 2 0 57 1 1 0 0 2 1 60 0 0 61 122 Heavy vehicles 0.3 0 0.4 0 0.3 6.2 1.9 0.5 0 1.8 2.8 1.1 0 0 1.4 0.3 1.4 0 0 1.3 1.4 Pedestrians 0 0 0 17 17 0 0 0 8 8 0 0 0 5 5 0 0 0 14 14 44 %Pedestrians 0 0 0 100 2.7 0 0 0 100 0.31 0 0 0 100 3.4 0 0 0 100 0.3 0.5 Academy Bellaire Blvd Academy Bellaire Blvd From South From West _ From North From East Start Time Left I Thru I Right Peds I App.Total Left I Thru I Right f Peds App Total Left Thru I Right Peds App Toted Left I Thru I Right I Peds I App Total Int.Tmai Peak Hour Analysis From 04:00 PM to 06:45 PM-Peak 1 of 1 Peak Hour for Entire Intersection Begins at 05:00 PM 05:00 PM 35 1 17 1 54 1 236 33 2 272 2 14 3 1 20 31 386 2 1 420 766 05:15 PM 32 4 24 0 60 1 282 32 2 317 4 6 1 1 12 26 357 1 1 385 774 05:30 PM 23 1 22 2 48 2 266 33 0 301 2 7 1 0 10 28 409 3 2 442 801 05:45 PM 34 2 12 1 49 0 238 24 0 262 5 13 2 0 20 25 367 1 1 394 725 Total Volume 124 8 75 4 211 4 1022 122 4 1152 13 40 7 2 62 110 1519 7 5 1641 3066 %App.Total 58.8 3.8 35.5 1.9 0.3 88.7 10.6 0.3 21 64.5 11.3 3.2 6.7 92.6 0.4 0.3 P H F .886 .500 .781 .500 .879 .500 .906 .924 .500 .909 .650 .714 .583 .500 .775 .887 .928 .583 .625 .928 .957 III gRadttihaffic GaunUing, tic 1506 Festival Drive Houston, Texas 77062 888-315-6141 File Name : Site 3 Academy at Bellaire PM Site Code : 3 Start Date : 11/14/2018 Page No : 2 Academy Bellaire Blvd Academy Bellaire Blvd From South From West _ From North From East Start Time Left f Thru Right I Peds App.Tow Left Thru Right I Peds A,Total Left I Thru I Right I Peds I App.Total Left I Thru I Right I Peds ron.Tmr Im.Tot I Peak Hour Analysis From 04:00 PM to 06:45 PM-Peak 1 of 1 Peak Hour for Each Approach Begins at: 04:00 PM 05:00 PM 05:00 PM 05:00 PM +0 mins. 51 4 25 1 81 1 236 33 2 272 2 14 3 1 20 31 386 2 1 420 +15 mins. 43 2 19 2 66 1 282 32 2 317 4 6 1 1 12 26 357 1 1 385 +30 mins. 30 1 18 3 52 2 266 33 0 301 2 7 1 0 10 28 409 3 2 442 +45 mins. 26 6 24 3 59 0 238 24 0 262 5 13 2 0 20 25 367 1 1 394 Total volume 150 13 86 9 258 4 1022 122 4 1152 13 40 7 2 62 110 1519 7 5 1641 App.Total 58.1 5 33.3 3.5 0.3 88.7 10.6 0.3 21 64.5 11.3 3.2 6.7 92.6 0.4 0.3 P H F .735 .542 .860 .750 .796 .500 .906 .924 .500 .909 .650 .714 .583 .500 .775 .887 .928 .583 .625 .928 Appendix B Synchro Reports Lanes, Volumes, Timings Timing Plan: AM - 2018 5: Academy Street & Bellaire Boulevard 12/28/2018 Lane Group EBL EBT EBR WBL ''We . ll NBL NBT NBR SBL SBT SBR Lane Configurations vi +11. 11 4fl 4 r 4+ Traffic Volume(vph) 0 1168 146 37 1034 4 233 14 145 6 13 1 Future Volume(vph) 0 1168 146 37 1034 4 233 14 145 6 13 1 Ideal Flow(vphpl) 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 Storage Length(ft) 80 0 80 0 0 0 0 0 Storage Lanes 1 0 1 0 0 1 0 0 Taper Length(ft) 25 25 25 25 Lane Util.Factor 1.00 0.91 0.91 1.00 0.91 0.91 1.00 1.00 1.00 1.00 1.00 1.00 Ped Bike Factor 1.00 1.00 0.98 1.00 Frt 0.983 0.999 0.850 0.994 Flt Protected 0.950 0.955 0.986 Satd. Flow(prot) 1863 4991 0 1770 5079 0 0 1779 1583 0 1824 0 Flt Permitted 0.950 0.723 0.906 Satd.Flow(perm) 1863 4991 0 1770 5079 0 0 1347 1558 0 1676 0 Right Turn on Red Yes Yes Yes Yes Satd.Flow(RTOR) 23 1 156 1 Link Speed(mph) 35 35 30 30 Link Distance(ft) 880 795 614 462 Travel Time(s) 17.1 15.5 14.0 10.5 Confl.Peds.(#/hr) 1 8 5 3 Peak Hour Factor 0.93 0.93 0.93 0.93 0.93 0.93 0.93 0.93 0.93 0.93 0.93 0.93 Adj.Flow(vph) 0 1256 157 40 1112 4 251 15 156 6 14 1 Shared Lane Traffic(%) Lane Group Flow(vph) 0 1413 0 40 1116 0 0 266 156 0 21 0 Enter Blocked Intersection No No No No No No No No No No No No Lane Alignment Left Left Right Left Left Right Left Left Right Left Left Right Median Width(ft) 18 18 0 0 Link Offset(ft) 0 0 0 0 Crosswalk Width(ft) 16 16 16 16 Two way Left Turn Lane Headway Factor 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Turning Speed(mph) 15 9 15 9 15 9 15 9 Number of Detectors 1 2 1 2 1 2 1 1 2 Detector Template Left Thru Left Thru Left Thru Right Left Thru Leading Detector(ft) 20 100 20 100 20 100 20 20 100 Trailing Detector(ft) 0 0 0 0 0 0 0 0 0 Detector 1 Position(ft) 0 0 0 0 0 0 0 0 0 Detector 1 Size(ft) 20 6 20 6 20 6 20 20 6 Detector 1 Type Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Detector 1 Channel Detector 1 Extend(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Detector 1 Queue(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Detector 1 Delay(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Detector 2 Position(ft) 94 94 94 94 Detector 2 Size(ft) 6 6 6 6 Detector 2 Type Cl+Ex Cl+Ex Cl+Ex Cl+Ex Detector 2 Channel Detector 2 Extend(s) 0.0 0.0 0.0 0.0 Turn Type Prot NA Prot NA Perm NA Perm Perm NA AT&T Traffic Study 12/11/2018 Existing Volumes Synchro 10 Report Stevens Technical Services Page 1 1 Lanes, Volumes, Timings Timing Plan: AM - 2018 5: Academy Street & Bellaire Boulevard 12/28/2018 At Lane Group EBL EBT EBR WBL WBT WBR NBL NBT NBR SBL SBT SBR Protected Phases 7 4 3 8 2 6 Permitted Phases 2 2 6 Detector Phase 7 4 3 8 2 2 2 6 6 Switch Phase Minimum Initial(s) 3.0 10.0 3.0 10.0 5.0 5.0 5.0 3.0 3.0 Minimum Split(s) 9.0 22.0 9.0 22.0 11.0 11.0 11.0 9.0 9.0 Total Split(s) 9.0 57.0 14.0 62.0 49.0 49.0 49.0 49.0 49.0 Total Split(%) 7.5% 47.5% 11.7% 51.7% 40.8% 40.8% 40.8% 40.8% 40.8% Maximum Green(s) 3.0 51.0 8.0 56.0 43.0 43.0 43.0 43.0 43.0 Yellow Time(s) 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 All-Red Time(s) 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 Lost Time Adjust(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Total Lost Time(s) 6.0 6.0 6.0 6.0 6.0 6.0 6.0 Lead/Lag Lag Lag Lead Lead Lead-Lag Optimize? Vehicle Extension(s) 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 Recall Mode None Min None Min Min Min Min None None Walk Time(s) 5.0 5.0 Flash Dont Walk(s) 11.0 11.0 Pedestrian Calls(#/hr) 1 8 Act Effct Green(s) 29.0 6.7 35.4 20.5 20.5 20.5 Actuated g/C Ratio 0.42 0.10 0.51 0.29 0.29 0.29 v/c Ratio 0.68 0.24 0.43 0.67 0.28 0.04 Control Delay 19.7 42.5 11.1 34.2 5.8 21.9 Queue Delay 0.0 0.0 0.0 0.0 0.0 0.0 Total Delay 19.7 42.5 11.1 34.2 5.8 21.9 LOS B D B C A C Approach Delay 19.7 12.2 23.7 21.9 Approach LOS B B C C Intersection Summary Area Type: Other Cycle Length: 120 Actuated Cycle Length:69.7 Natural Cycle:60 Control Type:Actuated-Uncoordinated Maximum v/c Ratio:0.68 Intersection Signal Delay: 17.4 Intersection LOS:B Intersection Capacity Utilization 61.1% ICU Level of Service B Analysis Period(min)15 Splits and Phases: 5:Academy Street&Bellaire Boulevard t02 (-03 -0'04 4- f 0/ 06 03 AT&T Traffic Study 12/11/2018 Existing Volumes Synchro 10 Report Stevens Technical Services Page 2 Lanes, Volumes, Timings Timing Plan: PM - 2018 5: Academy Street & Bellaire Boulevard 12/28/2018 14- 4 4\ t , 1, 4/ Lame Group EBL EBT EBR WBL WBT WBR NBL NBT NBR SBL SBT SBR Lane Configurations ) it vi +I 4 r 4 Traffic Volume(vph) 4 1022 122 110 1519 7 124 8 75 13 40 7 Future Volume(vph) 4 1022 122 110 1519 7 124 8 75 13 40 7 Ideal Flow(vphpl) 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 Storage Length (ft) 80 0 80 0 0 0 0 0 Storage Lanes 1 0 1 0 0 1 0 0 Taper Length(ft) 25 25 25 25 Lane Util.Factor 1.00 0.91 0.91 1.00 0.91 0.91 1.00 1.00 1.00 1.00 1.00 1.00 Ped Bike Factor 1.00 1.00 0.98 1.00 Frt 0.984 0.999 0.850 0.985 Flt Protected 0.950 0.950 0.955 0.989 Satd.Flow(prot) 1770 4993 0 1770 5079 0 0 1779 1583 0 1812 0 Flt Permitted 0.950 0.950 0.693 0.906 Satd.Flow(perm) 1770 4993 0 1770 5079 0 0 1291 1557 0 1660 0 Right Turn on Red Yes Yes Yes Yes Satd.Flow(RTOR) 21 1 136 5 Link Speed(mph) 35 35 30 30 Link Distance(ft) 880 795 614 462 Travel Time(s) 17.1 15.5 14.0 10.5 Confl. Peds.(#/hr) 4 5 4 2 Peak Hour Factor 0.96 0.96 0.96 0.96 0.96 0.96 0.96 0.96 0.96 0.96 0.96 0.96 Adj.Flow(vph) 4 1065 127 115 1582 7 129 8 78 14 42 7 Shared Lane Traffic(%) Lane Group Flow(vph) 4 1192 0 115 1589 0 0 137 78 0 63 0 Enter Blocked Intersection No No No No No No No No No No No No Lane Alignment Left Left Right Left Left Right Left Left Right Left Left Right Median Width(ft) 18 18 0 0 Link Offset(ft) 0 0 0 0 Crosswalk Width(ft) 16 16 16 16 Two way Left Turn Lane Headway Factor 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Turning Speed(mph) 15 9 15 9 15 9 15 9 Number of Detectors 1 2 1 2 1 2 1 1 2 Detector Template Left Thru Left Thru Left Thru Right Left Thru Leading Detector(ft) 20 100 20 100 20 100 20 20 100 Trailing Detector(ft) 0 0 0 0 0 0 0 0 0 Detector 1 Position(ft) 0 0 0 0 0 0 0 0 0 Detector 1 Size(ft) 20 6 20 6 20 6 20 20 6 Detector 1 Type Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Detector 1 Channel Detector 1 Extend(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Detector 1 Queue(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Detector 1 Delay(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Detector 2 Position(ft) 94 94 94 94 Detector 2 Size(ft) 6 6 6 6 Detector 2 Type Cl+Ex Cl+Ex Cl+Ex Cl+Ex Detector 2 Channel Detector 2 Extend(s) 0.0 0.0 0.0 0.0 Turn Type Prot NA Prot NA Perm NA Perm Perm NA AT&T Traffic Study 12/11/2018 Existing Volumes Synchro 10 Report Stevens Technical Services Page 1 Lanes, Volumes, Timings Timing Plan: PM - 2018 5: Academy Street & Bellaire Boulevard 12/28/2018 Lane Grbup EBL EBT EBR WBL WBT WBR NBL NBT NBR SBL SBT SBR Protected Phases 7 4 3 8 2 6 Permitted Phases 2 2 6 Detector Phase 7 4 3 8 2 2 2 6 6 Switch Phase Minimum Initial(s) 3.0 10.0 5.0 10.0 5.0 5.0 5.0 5.0 5.0 Minimum Split(s) 9.0 22.0 11.0 22.0 11.0 11.0 11.0 11.0 11.0 Total Split(s) 11.0 57.0 27.0 73.0 36.0 36.0 36.0 36.0 36.0 Total Split(%) 9.2% 47.5% 22.5% 60.8% 30.0% 30.0% 30.0% 30.0% 30.0% Maximum Green(s) 5.0 51.0 21.0 67.0 30.0 30.0 30.0 30.0 30.0 Yellow Time(s) 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 All-Red Time(s) 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 Lost Time Adjust(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Total Lost Time(s) 6.0 6.0 6.0 6.0 6.0 6.0 6.0 Lead/Lag Lag Lag Lead Lead Lead-Lag Optimize? Vehicle Extension(s) 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 Recall Mode None Min None Min Min Min Min None None Walk Time(s) 5.0 5.0 Flash Dont Walk(s) 11.0 11.0 Pedestrian Calls(#/hr) 4 5 Act Effct Green(s) 5.1 23.9 9.3 34.2 11.8 11.8 11.8 Actuated g/C Ratio 0.08 0.39 0.15 0.56 0.19 0.19 0.19 v/c Ratio 0.03 0.60 0.42 0.55 0.55 0.19 0.19 Control Delay 34.5 17.2 32.5 9.8 34.7 2.1 24.1 Queue Delay 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Total Delay 34.5 17.2 32.5 9.8 34.7 2.1 24.1 LOS C B C A C A C Approach Delay 17.3 11.3 22.9 24.1 Approach LOS B B C C Intersection Summary Area Type: Other Cycle Length: 120 Actuated Cycle Length:60.6 Natural Cycle:45 Control Type:Actuated-Uncoordinated Maximum v/c Ratio:0.60 Intersection Signal Delay: 14.6 Intersection LOS:B Intersection Capacity Utilization 61.8% ICU Level of Service B Analysis Period(min) 15 Splits and Phases: 5:Academy Street&Bellaire Boulevard ts 1 02 (-o3 4 I • 06 F 08 07 AT&T Traffic Study 12/11/2018 Existing Volumes Synchro 10 Report Stevens Technical Services Page 2 Lanes, Volumes, Timings Timing Plan: AM - 2018 5: Academy Street & Bellaire Boulevard 12/28/2018 Lane Group EBL EBT EBR WBL WBT WBR NBL NBT NBR SBL SBT SBR Lane Configurations '1 444 '9 14+1 4 r 4+ Traffic Volume(vph) 32 1168 146 37 1034 30 233 23 145 38 18 31 Future Volume(vph) 32 1168 146 37 1034 30 233 23 145 38 18 31 Ideal Flow(vphpl) 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 Storage Length(ft) 80 0 80 0 0 0 0 0 Storage Lanes 1 0 1 0 0 1 0 0 Taper Length(ft) 25 25 25 25 Lane Util.Factor 1.00 0.91 0.91 1.00 0.91 0.91 1.00 1.00 1.00 1.00 1.00 1.00 Ped Bike Factor 1.00 1.00 0.98 0.99 Frt 0.983 0.996 0.850 0.952 Flt Protected 0.950 0.950 0.957 0.978 Satd.Flow(prot) 1770 4991 0 1770 5058 0 0 1783 1583 0 1725 0 Flt Permitted 0.950 0.950 0.680 0.782 Satd.Flow(perm) 1770 4991 0 1770 5058 0 0 1267 1558 0 1380 0 Right Turn on Red Yes Yes Yes Yes Satd.Flow(RTOR) 22 4 156 26 Link Speed(mph) 35 35 30 30 Link Distance(ft) 880 795 614 462 Travel Time(s) 17.1 15.5 14.0 10.5 Confl.Peds.(#/hr) 1 8 5 3 Peak Hour Factor 0.93 0.93 0.93 0.93 0.93 0.93 0.93 0.93 0.93 0.93 0.93 0.93 Adj.Flow(vph) 34 1256 157 40 1112 32 251 25 156 41 19 33 Shared Lane Traffic(%) Lane Group Flow(vph) 34 1413 0 40 1144 0 0 276 156 0 93 0 Enter Blocked Intersection No No No No No No No No No No No No Lane Alignment Left Left Right Left Left Right Left Left Right Left Left Right Median Width(ft) 18 18 0 0 Link Offset(ft) 0 0 0 0 Crosswalk Width(ft) 16 16 16 16 Two way Left Turn Lane Headway Factor 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Turning Speed(mph) 15 9 15 9 15 9 15 9 Number of Detectors 1 2 1 2 1 2 1 1 2 Detector Template Left Thru Left Thru Left Thru Right Left Thru Leading Detector(ft) 20 100 20 100 20 100 20 20 100 Trailing Detector(ft) 0 0 0 0 0 0 0 0 0 Detector 1 Position(ft) 0 0 0 0 0 0 0 0 0 Detector 1 Size(ft) 20 6 20 6 20 6 20 20 6 Detector 1 Type Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Detector 1 Channel Detector 1 Extend(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Detector 1 Queue(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Detector 1 Delay(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Detector 2 Position(ft) 94 94 94 94 Detector 2 Size(ft) 6 6 6 6 Detector 2 Type Cl+Ex Ci+Ex Cl+Ex Cl+Ex Detector 2 Channel Detector 2 Extend(s) 0.0 0.0 0.0 0.0 Turn Type Prot NA Prot NA Perm NA Perm Perm NA AT&T Traffic Study 12/11/2018 Proposed Condition Synchro 10 Report Stevens Technical Services Page 1 Lanes, Volumes, Timings Timing Plan: AM - 2018 5: Academy Street & Bellaire Boulevard 12/28/2018 J -+ c & 4\ I* i* 4 ,, 4/ Lane Group EBL EBT EBR WBL WBT WBR NBL NBT NBR SBL SBT SBR Protected Phases 7 4 3 8 2 6 Permitted Phases 2 2 6 Detector Phase 7 4 3 8 2 2 2 6 6 Switch Phase Minimum Initial(s) 3.0 10.0 3.0 10.0 5.0 5.0 5.0 3.0 3.0 Minimum Split(s) 9.0 22.0 9.0 22.0 11.0 11.0 11.0 9.0 9.0 Total Split(s) 12.0 55.0 14.0 57.0 51.0 51.0 51.0 51.0 51.0 Total Split(%) 10.0% 45.8% 11.7% 47.5% 42.5% 42.5% 42.5% 42.5% 42.5% Maximum Green(s) 6.0 49.0 8.0 51.0 45.0 45.0 45.0 45.0 45.0 Yellow Time(s) 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 All-Red Time(s) 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 Lost Time Adjust(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Total Lost Time(s) 6.0 6.0 6.0 6.0 6.0 6.0 6.0 Lead/Lag Lag Lag Lead Lead Lead-Lag Optimize? Vehicle Extension(s) 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 Recall Mode None Min None Min Min Min Min None None Walk Time(s) 5.0 5.0 Flash Dont Walk(s) 11.0 11.0 Pedestrian Calls(#/hr) 1 8 Act Effct Green(s) 8.3 29.6 6.8 30.3 22.1 22.1 22.1 Actuated g/C Ratio 0.12 0.41 0.09 0.42 0.31 0.31 0.31 v/c Ratio 0.17 0.68 0.24 0.54 0.71 0.27 0.21 Control Delay 38.9 20.8 44.3 19.4 36.3 5.6 18.2 Queue Delay 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Total Delay 38.9 20.8 44.3 19.4 36.3 5.6 18.2 LOS D C D B D A B Approach Delay 21.2 20.3 25.2 18.2 Approach LOS C C C B Intersection Summary Area Type: Other Cycle Length: 120 Actuated Cycle Length:72 Natural Cycle:60 Control Type:Actuated-Uncoordinated Maximum v/c Ratio:0.71 Intersection Signal Delay:21.3 Intersection LOS: C Intersection Capacity Utilization 61.5% ICU Level of Service B Analysis Period(min) 15 Splits and Phases: 5:Academy Street&Bellaire Boulevard t02 1r03 X04 I ■ 06 08 07 AT&T Traffic Study 12/11/2018 Proposed Condition Synchro 10 Report Stevens Technical Services Page 2 Lanes, Volumes, Timings Timing Plan: PM - 2018 5: Academy Street & Bellaire Boulevard 1 12/28/2018 f -I c '- k. 4\ t l' * • 1 Lane Group L EBT EBR WBL WBT WBR NBL NBT NBR SBL SBT SBR Lane Configurations ' +1'l " +ft+ 4 r Traffic Volume(vph) 30 1022 122 110 1519 43 124 13 75 38 46 43 Future Volume(vph) 30 1022 122 110 1519 43 124 13 75 38 46 43 Ideal Flow(vphpl) 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 Storage Length(ft) 80 0 80 0 0 0 0 0 Storage Lanes 1 0 1 0 0 1 0 0 Taper Length(ft) 25 25 25 25 Lane Util.Factor 1.00 0.91 0.91 1.00 0.91 0.91 1.00 1.00 1.00 1.00 1.00 1.00 Ped Bike Factor 1.00 1.00 0.98 1.00 Frt 0.984 0.996 0.850 0.954 Flt Protected 0.950 0.950 0.957 0.985 Satd.Flow(prot) 1770 4993 0 1770 5060 0 0 1783 1583 0 1742 0 Flt Permitted 0.950 0.950 0.707 0.855 Satd.Flow(perm) 1770 4993 0 1770 5060 0 0 1317 1557 0 1512 0 Right Turn on Red Yes Yes Yes Yes Satd.Flow(RTOR) 21 5 136 21 Link Speed(mph) 35 35 30 30 Link Distance(ft) 880 795 614 462 Travel Time(s) 17.1 15.5 14.0 10.5 Confl. Peds.(#/hr) 4 5 4 2 Peak Hour Factor 0.96 0.96 0.96 0.96 0.96 0.96 0.96 0.96 0.96 0.96 0.96 0.96 Adj.Flow(vph) 31 1065 127 115 1582 45 129 14 78 40 48 45 Shared Lane Traffic(%) Lane Group Flow(vph) 31 1192 0 115 1627 0 0 143 78 0 133 0 Enter Blocked Intersection No No No No No No No No No No No No Lane Alignment Left Left Right Left Left Right Left Left Right Left Left Right Median Width(ft) 18 18 0 0 Link Offset(ft) 0 0 0 0 Crosswalk Width(ft) 16 16 16 16 Two way Left Turn Lane Headway Factor 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Turning Speed(mph) 15 9 15 9 15 9 15 9 Number of Detectors 1 2 1 2 1 2 1 1 2 Detector Template Left Thru Left Thru Left Thru Right Left Thru Leading Detector(ft) 20 100 20 100 20 100 20 20 100 Trailing Detector(ft) 0 0 0 0 0 0 0 0 0 Detector 1 Position(ft) 0 0 0 0 0 0 0 0 0 Detector 1 Size(ft) 20 6 20 6 20 6 20 20 6 Detector 1 Type Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Cl+Ex Detector 1 Channel Detector 1 Extend(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Detector 1 Queue(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Detector 1 Delay(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Detector 2 Position(ft) 94 94 94 94 Detector 2 Size(ft) 6 6 6 6 Detector 2 Type Cl+Ex CI+Ex Cl+Ex Cl+Ex Detector 2 Channel Detector 2 Extend(s) 0.0 0.0 0.0 0.0 Turn Type Prot NA Prot NA Perm NA Perm Perm NA AT&T Traffic Study 12/11/2018 Proposed Condition Synchro 10 Report Stevens Technical Services Page 1 Lanes, Volumes, Timings Timing Plan: PM - 2018 5: Academy Street & Bellaire Boulevard 12/28/2018 Lane Group EBL EBT EBR WBL WBT WBR NBL NBT NBR SBL SBT SBR Protected Phases 7 4 3 8 2 6 Permitted Phases 2 2 6 Detector Phase 7 4 3 8 2 2 2 6 6 Switch Phase Minimum Initial(s) 3.0 10.0 5.0 10.0 5.0 5.0 5.0 5.0 5.0 Minimum Split(s) 9.0 22.0 11.0 22.0 11.0 11.0 11.0 11.0 11.0 Total Split(s) 14.0 57.0 25.0 68.0 38.0 38.0 38.0 38.0 38.0 Total Split(%) 11.7% 47.5% 20.8% 56.7% 31.7% 31.7% 31.7% 31.7% 31.7% Maximum Green(s) 8.0 51.0 19.0 62.0 32.0 32.0 32.0 32.0 32.0 Yellow Time(s) 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 All-Red Time(s) 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 Lost Time Adjust(s) 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Total Lost Time(s) 6.0 6.0 6.0 6.0 6.0 6.0 6.0 Lead/Lag Lag Lag Lead Lead Lead-Lag Optimize? Vehicle Extension(s) 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 Recall Mode None Min None Min Min Min Min None None Walk Time(s) 5.0 5.0 Flash Dont Walk(s) 11.0 11.0 Pedestrian Calls(#/hr) 4 5 Act Effct Green(s) 6.3 26.7 9.8 34.9 14.0 14.0 14.0 Actuated g/C Ratio 0.10 0.40 0.15 0.53 0.21 0.21 0.21 v/c Ratio 0.19 0.59 0.44 0.61 0.52 0.18 0.40 Control Delay 38.5 18.0 36.8 13.4 34.6 1.7 26.7 Queue Delay 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Total Delay 38.5 18.0 36.8 13.4 34.6 1.7 26.7 LOS D B D B C A C Approach Delay 18.5 15.0 23.0 26.7 Approach LOS B B C C Intersection Summary Area Type: Other Cycle Length: 120 Actuated Cycle Length:66.3 Natural Cycle:45 Control Type:Actuated-Uncoordinated Maximum v/c Ratio:0.61 Intersection Signal Delay: 17.3 Intersection LOS:B Intersection Capacity Utilization 62.9% ICU Level of Service B Analysis Period(min)15 Splits and Phases: 5:Academy Street&B ellaire Boulevard ir t02 • o3 . lob 08 07 AT&T Traffic Study 12/11/2018 Proposed Condition Synchro 10 Report Stevens Technical Services Page 2