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PD166-CS 980707 (3) NICHOLS, JACKSON, DILLARD, HAGER & SML~ i.L.L.P. UO~E.T L. DILLARD Ill Attorneys & Counselors at Law ROBERT E. HAGER 1800 Lincoln Plaza PETER G. SMITH ~ ~'--'='._~ J, DAVID DODD III "- ~ DAVID M. BERMAN 500 North Akard -- - - . BRUCE A. STOCK~RD Dallas, Texas 75201 ~. ~l~m ,,.. _ ROBERT L. DILLARD, JR. (214) 965-9900 JL ~ 8 H~ LOUIS NICHOLS Fax (214) 965-00]0 i LA~NglE~ICE W. JACKSON E-mail NJDHS ~NJDHS.com ;'~ -~._~ or counsel Jul).' 7, 1998 VIA FACSIMILE 972/304-3570 AND FIRST CLASS MAIL Pert Virtanen Assistant Director of Planning & Community Services City of Coppell 255 Parkway Boulevard P.O. Box 478 Coppell, Texas 75019 RE: Westbury Manor Protest Dear Pert: This will acknowledge receipt of your facsimile transmi3sion including memorandum to Bob Hager regarding Westbury Manor Opposition Petition. Since, Bob Hager is on vacation and because the response should properly be from the City Attorney, we have taken the liberty of responding to your request. You advise that in regard to the Westbury Manor zoning case, that prior to the Planning Commission meeting that the Planning Department received a protest. You further advise that the Department also received one reply to the Department's letter of notification as indicated by the most recently approved tax roll of real property within two hundred feet (200) of the area of the reque~i. You fmther advi~e that you calculated the land areas so that where the tax roil indicated that a signer was a property owner such property was counted, and where the tax roll indicated joint ownership, the property was counted even though only one of the joint property owners had signed. Your calculation showed 21% of the property within two hundred feet (200) was represented by owners, as shown on the tax roll, who had signed in opposition, however, prior to the Council meeting four persons representing three properties withdrew their opposition. reducing the opposition to approximately 18%. In the case of one property representing a little over 1% of the total area, you advise that both joint owners signed in opposition but only one owner withdrew. SS19303 Pert Virtanen July 7, 1998 Page -2- You are concerned that some of the neighborhood residents have challenged your method of calculation. You feel that the Department has been generous in accepting one signature as representing a joint ownership in opposition and having done so, felt justified in accepting one signature as representing a joint ownership withdraw of opposition. Section 211.007(d) of the Texas Local Government Code governs a protest of a zoning change. If a proposed change to a regulation or boundary is protested, in accordance with that Section, the affirmative vote of at least three/fourths of the governing body is required to pass it. The protest must be written and signed by owners of at least twenty percent (20%) of either: (i) the area of the lots or lands covered by the proposed changed: or (ii) the area of the lots or land immediately adjoining the proposed change and extending two hundred feet (200) from that area. In computing the percentage of land area, the area of streets and alleys is included. It is the area of land and not the number or percentage of owners of land which controls the required percentage for a protest. In the case of jointly owned land, the signature of one owner is sufficient for a protest. Since one owner is sufficient for a protest, when multiple owners sign a protest, in order for such land to be excluded from the protest by later withdrawal, all of the owners who previously signed the protest must withdraw. Finally, you may consult the tax roll for purposes of determining property ownership. In Strone v. City of Grand Prairie, 679 S.W.2d 767, 770 (Tex. App.--Fort Worth 1984, no writ), the Court held the intent of the legislature was to permit written protests of proposed zoning changes by owners of the real property lying within 200 feet of the property on which the zoning change is proposed, which ownership is determined from the last approved City tax roll. Thank you for your attention to this matter. If you have any questions in this regard, please do not hesitate to contact me. Ve~ truly yours. NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P. PGS/ttl By: e~ter~ ~'> w/encls. cc: Jim Witt Gary Sieb Robert Hager SS19303 679 S.W.2d 767, Strong v. City of Grand Prairie, (Tex. App.-Fort Worth 1984) Page 1 *767 679 S.W.2d 767 Basic purpose in all restrictive zoning ordinances is to prevent one property owner from committing his Bill STRONG, Appellant, property to a use which would be undulv imposed on v. adjoining landowners in use and enjoyment of their CITY OF GRAND PRAIRIE, Texas, Appellee. properD'. No. 2-84-075-CV. 3. ZONING AND PLANNING Court of Appeals of Texas, 414 .... Fort Worth. 414III Modification or Amendment 414III(B) Manner of Modif3'ing or Amending Nov. 7, 1984. 414k196 Objections and protests. Tex. App. 2 Dist. 1984. Landowner, whose zoning change request had been Petition opposing landowner's application for a denied by ci.ty council because it did not receive a zoning change to allow him to use his property as a three-fourths favorable vote, brought suit seeking cemetery was not legally insufficient simply because injunctive relief and declaratory, judgment permitting it described the petitioners as owning property him to use his property as a cemetery. The 134th within 200 feet of "Lots 11 and 12" instead of lots Judicial District Court, Dallas County, Joe Burnett, 12 and 13, where the petition correctly referred to J., denied relief, and landowner appealed. The the requested zoning change for lots 12 and 13. and Court of Appeals, Jordan, J., held that: (1) written the signed petition listed the names of the protesting petition opposing the zoning change application was owners, their street addresses, and the legal not legally insufficiem merely because petitioners description of their respective properties which described themselves as property owners within 200 indicated that the petitioners were objecting to the feet of "Lots 11 and 12" rather than Lots 12 and 13; rezoning of lots 12 and 13 and that they were within (2) court did not err in admitting imo evidence a the area described by statute for protesting the letter from a property owner asking that her name zoning change. Vernon's Ann. Texas Civ. St. art. be added to the list of objecting property owners; 101 le. and (3) court did not err in excluding streets in determining base area from which the protest area 4. ZONING AND PLANNING (g:=643 was calculated. 414 .... 414X Judicial Review or Relief Judgmem affirmed. 414X(C) Scope of Review 414X(C)2 Additional Proofs and Trial De 1. DECLARATORY JUDGMENT (~::~393 Novo 118A .... 414k643 Admissibility of evidence. 118AIII Proceedings Tex. App. 2 Dist. 1984. 118AIII(H) Appeal and Error Trial court did not err in admitting into evidence a 118Ak392 Appeal and Error letter from a property owner asking that her name 118Ak393 Scope and extem of review in be added to the list of property owners objecting to general, landowner's application tbr a zoning change to allow Tex. App. 2 Dist. 1984. his property to be used as a cemeteD,, even though Trial court's findings of fact and conclusions of the letter allegedly did not memion or otherwise law in action seeking a declaration that landowner be identify any particular petition, where the letter permitted to use his property as a cemetery were clearly stated the property owner's opposition to the conclusive and Court of Appeals was bound to rezoning of the particular lots at issue for cemetery presume that there was sufficient evidence to use. support the findings and the judgment based thereon. 5. ZONING AND PLANNING 2. ZONING AND PLANNING ~::'2 414 .... 414 .... 414X Judicial Review or Relief 414I In General 414X(C) Scope of Review 414k2 Purpose. 414X(C)1 In General Tex. App. 2 Dist. 1984. 414k624 Matters or evidence considered. Copyright (c) West Group 1998 No claim to original U.S. Govt. works 679 S.W.2d 767, Strong v. City of Grand Prairie, (Tex. App.-Fort Worth 1984) Page 2 Tex. App. 2 Dist. 1984. numerator, is 20%. Vernon's Ann. Texas Civ. St. Paper attached as exhibit in brief of landowner, art. 101lc. who alleged that trial court improperly excluded streets in determining base area from which could be 9. ZONING AND PLANNING made regarding protests his application for a zoning 414 .... permit to use his property as a cemetery, was not 414III Modification or Amendment evidence that would support a judgmem in 414III(B) Manner of Modi~:ing or Amending landowner's favor based upon his contention that, if 414k196 Objections and protests. the streets had been included in the formula for Tex. App. 2 Dist. 1984. determining the base area from which to protest Written protests of proposed zoning changes may could be received, required percentage of specified be made by the owners of "real propers'" lying property owners had not signed the protest petition, within 200 feet of the property on which the zoning where the paper purported to be from the testimony change is proposed, which ownership is to be of an expert witness at trial. Vernon's Ann. Texas determined from the last approved city tax roll. Civ. St. art. 101lc. Vernon's Ann. Texas Civ. St. arts. 101lc, 101If. 6. ZONING AND PLANNING ~196 *768 Paul Leech, Grand Prairie, for appellant. 414 .... 414III Modification or Amendment R. Clayton Hutchins, City Atty.. Grand Prairie, 414III(B) Manner of Motile:lng or Amending for appellee. 414k196 Objections and protests. Tex. App. 2 Dist. 1984. Betbre TENDER, C.J., and HUGHES and Trial court did not improperly exclude streets in JORDAN, JJ. determining base area from which property owners could protest landowner's application for a zoning OPINION permit to use his property as a cemetery, where trial court found that the required percentage or more of JORDAN, Justice. the owners of both lots and land within 200 feet of landowner's lots had signed the written protest. Appellant Strong, the owner of Lots 12 and 13, Vernon's Ann. Texas Civ. St. art. 101 lc. Block A, Grand Prairie Estates Addition to the City of Grand Prairie, sought a specific use permit for 7. ZONING AND PLANNING ~::'196 use of these two lots as a cemetery. The City 414 .... Council denied the zoning change request because it 414III Modification or Amendment did not receive a three-fourths favorable vote, the 414III(B) Manner of Modi~,ing or Amending vote having been four to three in favor of the 414k196 Objections and protests, change. Strong then filed suit seeking injunctive Tex. App. 2 Dist. 1984. relief and a declaratory judgment permitting him to Property owners entitled to sign zoning change use the property as a cemetery. This relief was protests are same as those entitled to notice of all denied by the trial court. public hearings on proposed zoning changes before city's zoning commission. Vernon's Ann. Texas The appeal is on two points of error. We overrule Civ. St. arts. 101 lc, 101 If. both and affirm the judgment. 8. ZONING AND PLANNING (~:::'196 [I] The case was submitted to the trial court on 414 .... stipulated facts which are not included in the record 414III Modification or Amendment on appeal. The trial court, however, did file 414III(B) Manner of Modif3'ing or Amending findings of fact and conclusions of law and on 414k196 Objections and protests, appeal, these findings of fact are conclusive and we Tex. App. 2 Dist. 1984. are bound to presume that there was sufficient For purposes of written protests filed in regard to evidence to support the findings and the judgment an application for a zoning change, the area of based thereon. Mays v. Pierce, 154 Tex. 487, 281 streets is excluded in determining the base area, or S.W.2d 79, 82 (1955); Catlett v. Catlett, 630 denominator, in which the protest area, or S.W.2d 478, 482 (Tex. App.--Fort Worth 1982, writ Copyright (c) West Group 1998 No claim to original U.S. Govt. works 679 S.W.2d 767, Strong v. City of Grand Prairie, (Tex. App.-Fort Worth 1984) Page 3 ref'd n.r.e.), letter from Solomon, however, does clearly state her opposition to the rezoning of Lots 12 and 13, Block [2] Cities have power to zone property within their A, for cemetery use. This objection is frivolous. limits under TEX.REV.CIV.STAT.ANN. art. Point of error number one is overruled. 101Ia (Vernon Supp. 1984). The basic purpose in all restrictive zoning ordinances is to prevent one Strong next contends, in his second point of error, property owner from committing his property to a that the trial court incorrectly interpreted use which would be unduly imposed on adjoining TEX.REV.CIV.STAT.ANN. art. 10lie. This landowners in the use and enjoyment of their contention is based on the trial court's exclusion of property. Wallace v. Daniel, 409 S.W.2d 184, 189 streets in determining the base area from which the (Tex. Civ. App.--Tyler 1966, writ ref'd n.r.e.), required 207` protest area of art. 1011e is Zoning regulations may be changed, supplemented calculated. Strong insists that the area of streets or repealed, but in case of a written protest against should have been included in the trial court's such change, signed by the owners of 207` or more formula for determining if the required 207`: of the either of the area of the lots or land included in such specified property owners had signed the protest proposed change, or of the lots or land immediately petition. He then argues that if the street area had adjoining the same and extending 200 feet been included that the number of property owners therefrom, such amendment or change shall not be who signed the petition would have been less than effective *769 except by the favorable vote of the necessaD, 207`. three-fourths of all members of the legislative bodv of such municipality. TEX.REV.CIV.STAT.ANN. [5] [6] The only support for appellam's figures and art. 1011e (Vernon Supp.1984). The City Council calculation of the 20% of the landowners is found in of Grand Prairie and the trial court both concluded a paper attached as "Exhibit C" in his brief, which that there ,,,,'ere legally sufficient protests to Strong's purports to be from the testimony of an expert requested zoning change to require a three-fourths witness at the trial. It is obvious that this is not vote of the City Council to approve the request, evidence which would support a judgment in his favor. Moreover, even assuming that his figures as [3] In his first point of error Strong takes the to the 20% of the property owners of the area untenable position that because the objecting including streets were supported by evidence, we property owners, in their written petition opposing would still reject his argument under this point of his zoning change application, described themselves error. as "property owners within two hundred feet of Lots 11 and 12," instead of 12 and 13, in Block A, the TEX.REV.CIV.STAT.ANN. art. 1011e provides petition was legally insufficient and should not have that if 20% or more of the owners either of the lots been considered by the court. We reject this theory or land included in the proposed zoning change area. for two reasons: (1)in the second paragraph of the or of the lots or land immediately adjoining the petition the requested zoning change for lots 12 and proposed change area and extending 200 feet 13, Block A, is correctly referred to; and (2) the therefrom, protest in writing, that a three-fourths signed petition lists the names of the protesting favorable vote of the governing body is required owners, their street addresses, and the legal before any zoning change can be effected. It is description of their respective properties. There is perceived that this statute creates two classes or no question that the objecting property owners were categories of protests against zoning changes by objecting to the rezoning of Lots 12 and 13, Block adjoining property owners: (1) by the owners of A, and were within the area described in art. 101 le 207, or more of the lots or land within the proposed for protesting zoning changes. The trial court so zoning change area itself; and, (2) bv the owners of found in its finding of fact number four. 20% or more of the lots or land immediately adjoining such area and extending 200 feet [4] In his first point of error, Strong also therefrom. complains of the admission of a letter from a property owner, Ruby Solomon, asking that her By its findings of fact the trial court found that name be added to the list of objecting property 20% or more of the owners of both lots and land owners because, he says, her letter does not mention within 200 feet of Lots 12 and 13, Block A, had or otherwise identi~' any particular petition. The signed the written protests. As there was no Copyright (c) West Group 1998 No claim to original U.S. Govt. works 679 S.W.2d 767, Strong v. City of Grand Prairie, (Tex. App.-Fort Worth 1984) Page 4 statement of facts filed with this appeal, we are, as numerator) is 20%, the area of streets is excluded. previously stated, required to accept these findings , of fact. The trial court was only required, under 17] [8] [9] We hold that both of these conclusions art. 10lie, to find that *770. either 20% of the of law are correct, and that a reading of arts. 1011e owners of lots or land were among those protesting, and 101 If together, reveals that the intent of the The trial court also concluded as a matter of law that legislature was to permit written protests of under art. 1011e those who are entitled to sign proposed zoning changes by the owners of "real zoning change protests are the same as those entitled property" lying within 200 feet of the property on to notice by art. 10llf. Article 101lf requires which the zoning change is proposed, which written notice of all public hearings on proposed ownership is to be determined from the last zoning changes before the city's zoning commission to owners "of real property lying within 200 feet of approved city tax roll. the property on which the change in classification is proposed ... as the ownership appears on the last Since street right-of-way is not included on the tax approved city tax roll." rolls, the area of the streets was properly excluded. TEX.REV.CIV.STAT.ANN. art. 1011f (Vernon Supp. 1984). The trial court, also as a ma~ter of Strong's second point of error is overruled. law, concluded that in determining the base area (or denominator) in which the protest area (or The judgment is affirmed. Copyright (c) West Group 1998 No claim to original U.S. Govt. works