Land Use and Zoning FAQs
Please note that these answers are general in nature, are not intended to address a specific legal question, and do not constitute legal advice.
What is zoning? Zoning is a limitation on height, number of stories, size or other aspect of buildings, the percentage of a lot that may be occupied, the sizes of yards in open spaces, restrictions on population density, and other restrictions on the location and use of buildings and land. Local Government Code, Section 211.003.
What is the purpose of zoning? To promote public health, safety, morals and general welfare.
How is zoning accomplished? The city must first adopt a comprehensive plan, designed to relieve congestion in the streets, secure safety from fire, promote health and general welfare, avoid undue concentration of population, and facilitate the adequate provision of transportation, water, sewers, schools, parks, and other public requirements. The comprehensive plan, and the city itself, is divided into zoning districts wherein each district is uniform for each kind of building in the district, but may vary from district to district in the zoning regulations. In order to adopt zoning for a property, there must be a public hearing following a 15-day notice in a newspaper of general circulation. In addition, the owners of at least 20% of either the area of land covered by the zoning change or within 20 feet of the area covered by the zoning change may protest the zoning or change in zoning, and in that event, a 3/4 vote of the city counsel is required to adopt the zoning or change in zoning of the subject property. Zoning is accomplished by a zoning commission in a home rule city, in which the zoning commission is appointed by the city counsel. The zoning commission makes a recommendation and the city counsel grants, denies, or returns the issue to the zoning commission for further consideration. Before a zoning commission can hear a change in zoning or an original zoning issue, it must send at least 10-days notice of hearing to each property owner within 200 feet of the property to be zoned.
What is a variance? If a property owner wants a zoning designation different (i.e., residential, commercial, industrial, multi-family) from the remaining property within a zone, the owner may seek a variance from the zoning ordinance. A variance may be granted 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. A variance is normally taken before a Board of Adjustment which is appointed by the city counsel with the express purpose of making special exceptions to zoning ordinances and granting variances where appropriate. A 3/4 vote of the Board of Adjustment is required in order to grant a variance.
Is there appeal to district court? A judicial review of a Board of Adjustment decision or commission decision on zoning can be taken by any person aggrieved, or by the city, to the district court in the form of a petition filed within 10 days after the date of the decision at issue. The district court will grant a writ of certiorari to the Board to review the decision. The Board will then assemble all relevant documents in its file relating to the decision, including the application, the protest, and any minutes of its proceedings and forward the same to the district court in a sworn affidavit form as a return on writ of certiorari. The district court has the option of affirming, reversing, or sending the decision to a referee who can make findings of fact and conclusions of law, but, generally, can only review the Board’s decision for legality—it cannot substitute its judgment for the Board’s.