Local governments, such as a city or county, can dictate to a landowner how the landowner can and cannot use their land. They do this primarily through development codes, zoning codes, and building permit requirements. They do it in the name of the "greater good" for the population as a whole. Individual rights must be sacrificed.

The Dallas/Fort Worth metroplex is a prime example of urban sprawl causing large population growth into suburban areas. Suburbs fight to control that growth with significant restrictions on land that may affect the value of that land. Fort Wort has made headlines with its attempts to annex large amounts of land so it can control more land use, and we at McPherson & Associates, PC, know about that firsthand, having represented landowners involved in those proceedings.

Land use and planning is a unique area of the law. It combines some very technical scientific data and principles, which are very rational and logical, with the emotion and power of local politics. This often results in an extremely convoluted set of sometimes overlapping rules and regulations affecting land use. Negotiating a deal on behalf of landowners requires both knowledge of the law and the ability to work with local government personnel.

COUNTY VS. CITY

The first step in land use and planning is to determine whose rules and regulations govern the land. Land use law is very specific to the location of the property. If the land is in a city, it will be governed by that city's development and zoning codes. If it is outside the city limits, then it will be governed by county rules. Counties have much less power to regulate land use than cities, and so they have fewer regulations. However, this issue is not as simple as city vs. county. There is a third location category, called "extra-territorial jurisdiction."

EXTRA-TERRITORIAL JURISDICTION (ETJ)

Every city in Texas has an extra-territorial jurisdiction, and the size of that jurisdiction depends on the population of the city and the amount of unincorporated land adjacent to the city, as shown in the following table:

This is the amount of land beyond the city's limits that the city can govern to a limited extent. For example, a city may extend its subdivision regulations to its extra-territorial jurisdiction.

The extra-territorial jurisdiction of a city may be further extended into other tracts contiguous to the city limits or its ETJ by agreement with landowners.

OVERLAPPING JURISDICTION

When unincorporated county land is situated close to two cities, it is possible for that unincorporated land to be subject to county regulation, and to each city's ETJ regulations. The law is somewhat in flux regarding how to resolve cases of overlapping jurisdiction, because the Texas state legislature appears to understand the challenges this raises, and is trying to add certainty to this issue. We expect to see additional legislation in 2003.

SUBDIVISIONS

All real property within the State of Texas is subject to the subdivision regulations of some governmental authority. Subdivision occurs every time an owner of a tract of land divides that land into two or more parcels. What constitutes a "division" can be very technical. For example, this may occur by sale or gift that involves the actual transfer of title. However, there are cases that determine a partition of use to be a "division" where no title is transferred. Any landowner thinking about dividing their land must ensure they obtain all necessary approvals of that action. Often, this requires the approval and recording of a plat.

PLATTING

There are development plats, and there are subdivision plats. Development plats are prepared and filed by developers of land within city limits or a city?s extra-territorial jurisdiction. Development plats will typically include roads, sidewalks, utility easements, open space areas, and such. Subdivision plats are much narrower in scope. They will typically include the legal description of the tract being subdivided, showing both the whole tract and the intended subdivisions.

Filing and approval processes for plats are determined by each city's development and subdivision codes. Most of these for Dallas/Fort Worth metroplex area cities are on the web and can be accessed through our commercial real estate links page on our Commercial Real Estate Resource Center.

ANNEXATION

By 1883 the Texas legislature had given cities the ability to expand their corporate limits by annexing adjacent areas. Annexation is used to control land use and to expand the city's tax base. And what is good for the city as a whole can often be bad for the individual landowner.

Fighting annexation to prevent it is rarely successful, and can damage relationships with the city government. We find it is better to use annexation to begin building positive relationships with the city in order to obtain the maximum possible benefits for the client. There are at least two important considerations for landowners to keep in mind when faced with annexation:

In 1999 the Texas legislature changed the annexation process beginning in late 2002, which makes annexations much more difficult, more labor intensive, more expensive, more involved, and if possible, even more contentious than before. (This is one reason Fort Worth is so aggressive in annexing right now.) But cities will still be able to annex.

ZONING FUNDAMENTALS

Zoning is the regulation of land use. It determines what types of businesses can be operated on a tract of land, or if none can be operated, what type of structures can be built, such as single family residential, apartments, commercial, retail or industrial, and a wide array of other restrictions and regulations. New York City is believed to have adopted the first zoning ordinance in 1916. Texas law allows cities to adopt zoning regulations for the purpose of:

• promoting the public heath, safety, morals or general welfare; and
• protecting and preserving places and areas of historical, cultural or architectural importance and significance.

Zoning may regulate the following:

• height of structures
• number of stories
• size of structures
• types of structures
• lot coverage
• open space
• density
• location of structures
• set back lines
• landscape
• buffer zones
• which types of businesses can be operated on which tracts of land

USE DISTRICTS

Zoning ordinances typically establish use districts. Each city has a different set of districts, and places particular uses in different districts. Zoning codes state the uses and structures which are permitted in certain districts automatically, the uses which require special exception review, the uses which require planned development approval, and in some instances the uses which require supplemental standards. There may be some negotiating room as to the definition of the use, and then which district includes a particular use.

THE ZONING COMMISSION

In most cities, the zoning commission is a legislative body appointed by the city council. It may have any number of members. Sometimes it is designated as the "Planning and Zoning Commission" ("P&Z"). The zoning commission recommends zoning districts, rules and regulations to the city council. The zoning commission also reviews proposed changes to the zoning ordinance and sends its recommendations to the city council. All meetings are public.

THE ZONING BOARD OF ADJUSTMENT

The members of a zoning board of adjustment are appointed by the city council. The Board is composed of at least 5 members. All cases must be heard by at least 75% of its members (e.g. 4 out of the typical 5 members). The presiding officer may administer oaths and compel attendance of witnesses. All meetings are public.

A zoning board of adjustment hears and decides only the following issues:

• Typically, city staff (for example, a building official) makes initial interpretations of the zoning ordinance. If the landowner disagrees with that interpretation, the landowner may appeal the decision to the zoning board of adjustment. There are time limits to file any such appeal.

• Special exceptions

  These modify the normal restrictions of the zoning ordinance on a site specific basis. For example, a board of adjustment may approve a church use of land within a residential district. Ideally, special exceptions should be limited to noncontroversial issues, where site specific review is necessary, before allowing a particular use. The zoning board of adjustment's authority to grant special exceptions, and any restrictions on that power, is governed by the zoning ordinance of the particular city.

• Variances

  Variances allow deviation from the literal terms of the zoning ordinance if: (1) not contrary to the public interest; or (2) due to the special conditions of the property involved, literal enforcement of the zoning ordinance would result in an unnecessary hardship. For example, a variance would not be appropriate to allow an apartment in a single family district, but a variance may be used to modify the side yard setback restriction of an apartment where specific facts (such as an unusual property shape) make it an unusual hardship to require literal compliance with the zoning ordinance.

• Other matters authorized by ordinance

  Each city's zoning ordinance may include other matters that are to be considered and decided by a zoning board of adjustment.

• Supervising the phase-out of non-conforming uses

  The courts have expanded the power of a zoning board of adjustment to include supervision of the phase-out of non-conforming uses (see below for more explanation).

WHAT TO DO IF YOU DON'T LIKE THE ZONING BOARD OF ADJUSTMENT'S DECISION

A zoning board of adjustment's decision must be appealed to a district court, county court, or county court at law. The petition must be filed within 10 days after the date that the zoning board of adjustment's decision is filed in its office. The landowner must prove that the zoning board of adjustment's decision is illegal.

NON-CONFORMING ZONING USES

A non-conforming use is a use that lawfully precedes adoption or application of zoning regulations that prohibit the use, and continues to exist after such adoption or application. 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 (subject to certain exceptions).

GRANDFATHERING NON-CONFORMING ZONING USES

Most people seem to believe that if they are using a tract of land a particular way, no city can make them change because their use, which existed prior to a regulation, is automatically "grandfathered." This is simply not true. Most zoning ordinances specifically provide for the continuation of pre-existing nonconforming uses. However, cities do have the legal ability to force a landowner to discontinue a use, and typically use ?zoning amortization? to terminate a particular use.

AMORTIZATION OF ZONING

Property owners do not acquire a constitutionally protected right in property uses once they have commenced or in zoning classifications once they are made. One of the objectives of zoning regulations is to ultimately eliminate non-conforming uses. Zoning ordinances may require termination of non-conforming uses under reasonable conditions (usually an amortization period).

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. At the end of that amortization period, the owner is forced to either conform to the provisions of the zoning ordinance or to terminate the non-conforming use.

FOR MORE INFORMATION

Please visit The McTexLaw Commercial Real Estate Resource Center for more information, articles, and case updates.