HomeMy WebLinkAboutOrdinance No. 565 CITY OF THE COLONY, TEXAS
ORDImU C NO.
AN ORDINANCE AMENDING THE CODE OF ORDINANCES
OF THE CITY OF THE COLONY, TEXAS, BY AMENDING
SECTION 10 OF APPENDIX A-ZONING RELATING TO
USE OF LAND AND BUILDINGS BY AMENDING SUB-
SECTION 10-900 RELATING TO SPECIFIC USE
PERMITS; PROVIDING TIME LIMIT REQUIREMENTS;
PROVIDING FOR CERTAIN CONDITIONS OF APPROVAL;
REQUIRING COMPLIANCE WITH TIME LIMITS;
PROVIDING A SEVERABILITY CLAUSE; PROVIDING A
PENALTY OF NOT MORE THAN TWO THOUSAND DOLLARS
($2000.00) FOR EACH OFFENSE AND A SEPARATE
OFFENSE SHALL BE DEEMED COMMITTED UPON EACH
DAY DURING OR ON WHICH A VIOLATION OCCURS;
DECLARING AN EMERGENCY AND PROVIDING AN
EFFECTIVE DATE
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF THE COLONY, TEXAS:
Section 1. That Section 10-900 shall be amended by amending
10-903 to read as follows:
"Sec. 10-900 Specific Use Permits.
(10-903) There shall be a time limit of one year imposed as
a condition upon the granting of a specific use permit.
If the use granted by the specific use permit has not been
initiated on the parcel within one year from the date of issuance
of the specific use permit, the specific use permit automatically
terminates and the parcel loses the use permitted by this
specific use permit and only those uses permitted by the current
base zoning shall be permitted; provided, however, the city
council may, after public hearing and recommendation by the
planning and zoning commission, and after conducting a public
hearing as is required for all amendments of Section 24,
authorize an extension of the time that the specific use permit
will continue in force and at the end of that time limit the
specific use permit automatically terminates unless the same
procedures as above are complied with and in which case an
additional extension may be granted.
Should the use as granted by the specific use permit on the
parcel be vacated, the specific use permit shall remain in place
for a period of one year from date of vacation. At the end of
one year from date of vacation, the specific use permit shall
terminate and may only be extended through the above named
procedure. If the permitted use is re-instated within one year
from date of vacation the specific use permit shall remain in
place.
Section 2. This ordinance shall be cumulative of all
other ordinances of the City affecting zoning and shall not
repeal any of the provisions of said ordinances except in those
instances where provisions of those ordinances which are in
direct conflict with the provisions of this ordinance.
Section 8. That the terms and provisions of this ordinance
shall be deemed to be severable and that if the validity of the
zoning affecting any portion of the tract or tracts of land
described herein shall be declared to be invalid, the same shall
not affect the validity of the zoning of the balance of the tract
or tracts of land described herein.
Section 9. Any person violating any of the provisions of
this ordinance shall be deemed guilty of a misdemeanor and upon
conviction thereof shall be fined in a sum not more than Two
Thousand Dollars ($2,000.00) and a separate offense shall be
deemed committed upon each day during or on which a violation
occurs or continues.
Section 10. The fact that the present zoning ordinances and
regulations of the City are inadequate to properly safeguard the
health, safety, morals, peace and general welfare of the
inhabitants of the City creates an emergency for the immediate
preservation of the public business, property, health, safety and
general welfare of the public which requires that this ordinance
shall become effective from and after the date of its final
passage and publication as provided by law, and it is accordingly
so ordained.
PASSED AND APPROVED this ~ day of ~ 1988.
Rick Harris, Mayor Pro-tom
ATTEST:
~~,~!~cks, City Secretary
' Hutchison Boyle Brooks & Dransfield RECEIVED 0CI 2 5 1988
A PROFESSIONAL CORPORATION
3900 FIRST CITY CENTER AUSTIN OFFICE;
DALLAS. TEXAS 75201-4622 moo SAN J^CINTO CENTER TOWN LAKE
AUSTIN, TEXAS 78701-4039
John M. Hill (214) 754-8600 (5~2) 477.4121
(214) 754-8607 October~.9t 1988 DALLkS TELECOPY NUMBER:
(214) 754-0840
Mr. Bill Hall
City Manager
City of The Colony
5151 N. Colony Blvd.
The Colony, Texas 75056
Re: Specific Use Permit Zoning - Sale of Alcoholic
Beverages
Dear Bill:
You have asked us to address the question of whether or
not the City of The Colony, in granting a specific use permit
for the sale of alcoholic beverages, can provide for the
expiration of the permit upon the sale of the property by the
person or business who obtained the permit. It is our opinion
that the grant of a specific use permit for the sale of
alcoholic beverages runs with the land and may not be tied to
~,the person or business entity who obtained the zoning.
~However, the City could place a time limit on a specific use
permit, at the expiration of which the current property owner
would need to reapply for the zoning.
Under Texas law, a zoning determination relates "solely
to the real estate and not to who owns it or intends to occupy
it." Develo-¢epts. Inc. v. City of Galveston, 668 S.W.2d 790
(Tex. App.-Houston [14th Dist.] 1984, no writ). It is also the
rule in Texas that the issuance of a specific use permit is a
zoning determination (Stearman v, City of Farmers Branch, 355
S.W.2d 541 (Tex. Civ. App.- Dallas 1952, no writ)) and
constitutes an amendment to the comprehensive zoning
ordinance. Nichols v. City of Dallas, 347 S.W.2d 326 (Tex.
Civ. App.-Dallas 1961, writ ref'd n.r.e.). As a zoning matter,
therefore, the grant of a specific use permit relates solely to
the real estate and may not be tied to the owner thereof:
"To the extent that ia zoning permit] is a
grant...it attaches to the land when
exercised, runs with the land, and passes as
an incident thereto on a conveyance of the
land. Under this rule, the successor in
title to an owner who has a vested right
based on substantial construction or work
which took place prior to the amendment of a
zoning act or ordinance succeeds to that
right."
Z0ninq an~ Plannina, 10lA C.J.S. §221.
This is not to say, however, that a limitation may not be
placed on the time in which a special use permit must be acted
upon. In Sherwood Lanes, Inc. v. City of San Anaelo, 511
S.W.2d 597 (Tex. Civ. App.- Austin 1974, writ ref'd n.r.e.),
the City of San Angelo issued a special use permit granting the
right to build a parking lot. The City's zoning ordinance
required that the use granted be acted upon within one (1) year
from the date of the issuance of the permit; otherwise, the
permit would be automatically revoked and of no effect. The
owners of the land failed to construct the parking lot within
the one year period, resulting in the automatic revocation of
the special use permit. When the revocation of the permit was
challenged, the Court concluded that under the terms of the
zoning ordinance the specific use permit was not to become
operative until a parking lot was in fact constructed and
used. Since that never happened within the one year time
period, the permit expired.
The Colony's Zoning Ordinance contains a similar time
limit provision. Under paragraph 10-903, the City Council is
empowered to place a time limit upon the issuance of a specific
use permit. Thus, for example, the Council could provide for a
permit to be automatically revoked if not acted upon within one
,,year from the date of its issuance.
Additionally, the City could place a uniform time limit
(e.g. three years) on a special use permit for the sale of
alcoholic beverages, at or before the expiration of which time
the property owner would be required to apply for a new
specific use permit. At the time of a 'hearing on the
re-application, the Planning and Zoning Commission and City
Council would apply the same standards which had been
previously applied when the permit was granted. Whether the
permit was granted or not, since the property would be rezoned,
the re-zoning procedures set forth in the Zoning Ordinance and
State law would have to be followed. If the permit was not
granted, the City could require that the sale, storage, etc. of
alcoholic beverages be discontinued' within, for example, 30
days following the rezoning, and if not discontinued the
certificate of occupancy would be revoked. Because the City
would be requiring the property owner to seek a re-zoning, the
City might consider reducing or waiving any re-zoning fee. If
adopted, these requirements should be outlined in the
Comprehensive Zoning Ordinance.
As we discussed several days ago, I have enclosed with
this letter a copy of the section relating to specific use
permits from the City of Grapevine zoning ordinance for your
review.
- 2 -
Should you have 'any questions or comments, please do not
hesitate to call.
Sincerely,
HUTCHI~O~KS ~ DRANSFIELD
JMH:ee
0166j
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