03-17-1983 (City Council) Minutes SPECIAL COUNCIL MEETING
MARCH 17, 1983
8:30 P.M.
The Wylie City Council met in special session on March 17, 1983, at 8:30 P.M.
in Council Chambers at City Hall . Mayor Squires presided. A quorum was
present and notice of the meeting had been posted for the time and manner
required by law. Those in attendance were Mayor Squires, Mayor Pro-Tem William
Martin, Council members Harold Eavenson, Geline Dodd, Reta Allen, and Percy
Simmons, City Manager Lee Vickers, City Secretary Sarah Connelly, Chief of Police
Royce Abbott, Larry Jackson, legal counsel for the City, Harold and Carol Spence,
Al Kittner, Bob O' Donnell , Melvin St. John, Ed Collins, Harry Tibbals, Richard
Parker, Bryant Barry, Don Kreymer, Randall Gaston, Henry Martinez, Elida Martinez,
Mark Martinez and John Martinez.
Consider disannexation of 43.401 acre tract of land, Richard D. Newman Survey,
located at south end of Martinez Lane. Mayor Squires requested that Mr Larry .
Jackson's brief to the Council on this matter be made part of the minutes. Mr.
Bob O'Donnell , attorney for developers, advised Council that at the end of meeting
of March 14, 1983, due to the disagreement between the two attorneys he, Mr.
O' Donnell , had filed in McKinney with Judge Roach a suit for Declaratory Judgement.
After discussion on this matter Councilman Martin made request for a caucus
between Council and Mr. Jackson, seconded by Councilman Simmons. All in favor.
Mayor Squires suggested a brief executive session to confer with legal counsel .
On motion by Councilman Martin, seconded by Councilman Simmons, it was voted to
go into executive session in accordance with Article 6252-17, Section 2e to -- ,
discuss legal matters.
Meeting was called back into open session at 9:45 P.M. by Mayor Squires.
Councilman Eavenson made this motion:
"I make a motion that the zoning application of Melvin St. John
be brought back to the Council from the Planning and Zoning
Commission and that it be advertised for a Public Hearing before
City Council on April 8, 1983, so that this Council can dispose
of it. The meeting will be at 6:00 P.M. at City Council Chambers
and that due notice be published in the official newspaper at
least 15 days prior to hearing."
Seconded by Councilwoman Dodd, all in favor.
Councilman Simmons made motion to adjourn. Cou oman Allen seconded, all in
favor.
w� .
'ob: 't, ?"'Squires, Mayor
AT EST:
ah Connelly, Acting City cretary
SANER, JACK, SALLINGER & NICHOLS
ALFRED SALLINGER ATTORNEYS AND COUNSELORS AT LAW R.E.L.SANER(1671-1938)
H. LOUIS NICHOLS JNO.C.SANER(1874-1948)
LAWRENCE W.JACKSON 1200 REPUBLIC NATIONAL BANK BUILDING
TIM KIRK DALLAS,TEXAS 75201
ROBERT L.DILLARD TM
ROBERT 0.HEMPHILL (2I4)742-5464
ROBERT E.HAGER
PETER G.SMITH W.H.JACK
ROBERT L.DILLARD,JR.
OF COUNSEL
March 16, 1983
Mr. Lee Vickers,
City Administrator,
• P.O. Box 428,
Wylie, Texas 75098
Re: Zoning Application of Melvin St. John
Dear Mr. Vikers:
We have reviewed the Notices and Minutes of the various meetings involved
in the abovementioned Zoning Application in order to answer the following questions of
the Council:
Question:
Has the City Council of the City of Wylie availed itself of the powers
conferred by the Zoning Act (Articles 1011A through 1011J Vernon's Ann. Civ. St. by
appointing a Planning and Zoning Commission?
We answer this question in the affirmative. Ordinance 79-26 provides for
the creation of a Planning and Zoning Commission composed of seven (7) members.
Question:
Is the Zoning Appllication in question a zoning change or is it the first
request for the establishment of boundaries of an original district with a permanent
zoning classification?
The St. John application is an application to establish for the first time
an original boundary district with a permanent zoning classification. Therefore, the
application is not for a change of zoning and Article 1011e has no application. The
City's Compreshensive Zoning Ordinance Section 7-100 states that all territory hereinafter
annexed to the City shall be temporarily classified in the "A" agricultural district until
permanent zoning classifications are given the area by the City Council after public
hearing. Our opinion here is based upon the holding in the case of Appolo Development,
Inc. vs City of Garland 476 S. W. 2nd 365.
Question:
When the Zoning Application reaches the City Council for final adoption of an
ordinance to grant the zoning change requested what vote will be required to adopt the
ordinance?
The ordinance can be adopted by a majority vote of the Council Members
present and voting on the ordinance. The provisions of Article 1011e dealing with
"changes" of zoning would not be applicable under any circumstance to require a three-
fourths vote in order to adopt the ordinance. This opinion is based upon the Court's
decision in the Appolo case.
Question:
May the City Council take action on the zoning question prior to its
receiving a report from the Planning and Zoning Commission and does the report have
to be in the form of a recommendation?
The City Council, having adopted and appointed a Planning and Zoning
Commission pursuant to Article 1011f has brought itself within the provisions of the
zoning statues. The City, therefore, must follow the process which includes a proper
hearing before the Planning and Zoning Commission, a report from the Planning and
Zoning Commission to the City Council and a proper hearing before the City Council.
By proper hearing is meant a hearing conducted after notice as is required by statute.
Article 1011f (b) states that if a Zoning Commission is appointed, it shall recommend
the boundaries of the various "original districts" -- that such Commission shall make
a preliminary report and hold public hearings before submitting its final report and the
City Council shall not hold its public hearings or take action until it has received the
final report of the Commission. It is our opinion that the report of the Planning and
Zoning Commission need not be in the form of a recommendation. A report by the
Commission of a tie vote on a Motion to recommend approval of the zoning, as was
made by the Planning and Zoning Commission would have been enough to give the City
Council authority to act. However, it appears from the record that the City Council
did not hold its public hearing but merely sent the matter back to the Planning and
Zoning Commission.
It is our opinion that before the City Council can act on the Zoning application
it must hold a public hearing after giving 15 days notice by publication, at which time
the ordinance to approve the zoning may be passed by majority vote of the members of
the City Council present and voting.
I hope that this answers your question, if not, please do not hesitate to
call me.
Very truly yours,
SANER, JACK, SALLINGER & NICHOLS
By
Lawrence W. J ckso
LWJ/vdj