Agenda No. 7.
CITY COUNCIL MEMORANDUM
| City Council Meeting: | November 14, 2023 |
| Department: | Planning & Community Development |
| Subject: | Ordinance 23-S-78: Consider amendments to Part III of the Schertz Code of Ordinances, Unified Development Code (UDC) to Article 5, Section 21.5.4 Zoning Change/Zoning Map Amendment. Final Reading (B.James/L.Wood/S.Haas) |
BACKGROUND
As stated in the Unified Development Code (UDC), City Council from time to time, on its own motion, or at the recommendation of City staff amend, change, or modify text in any portion of the UDC to establish and maintain stable and desirable development. It is generally considered good practice to periodically review and update the development regulations due to changing conditions, community goals, and/or State and Federal regulations.
Currently, the zone change process begins when the city or an applicant requests a zone change for a property. The City of Schertz UDC Section 21.5.4.C, in conformance with the State of Texas Local Government Code (LGC) then requires a public hearing. The City of Schertz UDC stipulates that the first public hearing is heard by the Planning and Zoning Commission where a recommendation is made to City Council. City Council then has two readings on the zone change request with the first reading being a public hearing as well. The final reading is not a public hearing, but in the event the action on the first reading was not unanimous, it could be a discussion item.
Before the public hearing is scheduled for a Planning and Zoning Commission meeting, State law requires that public hearing notifications be sent to property owners within 200-feet of a proposed zone change. UDC section 21.5.4.C.2.a calls these notifications "Written Notices". These notices are mailed to said property owners at least 10 days before the Planning and Zoning Commission hearing. On these public hearing notices there are options to vote "in favor of", "neutral to", or "opposed to" the zone change request. Then the property owners may return these notices either by mail, e-mail, or in-person to have their votes counted.
The votes that are "opposed to" are considered protest votes. These votes are critically important for the City Council readings as the LGC has a threshold that, once crossed, requires a 3/4 majority vote to approve the zone change. This rule is often called the "super-majority" rule. UDC Section 21.5.4.E.1. states the following:
The UDC follows the specific requirements laid out in the LGC when counting votes. However, neither the LGC nor the UDC has stipulations for cut-off dates. In practice, this means that these notices can be turned in all the way up to the point of the meeting. Also, with three separate readings in regard to the zone change, property owners have the opportunity to change their vote in-between these meetings. This can potentially create a difficult situation for staff, citizens, and applicants to keep track of protest votes and more importantly, to properly account for the super-majority threshold.
Lastly, there is often confusion around rental properties, and properties that have recently been sold. Rental tenants may receive a mailed notice, but the LGC explicitly states that only the surrounding property owners (not tenants) votes are counted. Also, the LGC states that the "most recently approved municipal tax roll", is used to determine property ownership. In practice, the city uses the County Appraisal District to determine mailing addresses and in consultation with the city attorney, this is an acceptable practice.
Proposed Amendments:
Staff is proposing amendments to UDC Section 21.5.4.E. by adding two subsections to the end of this section in order to help with these potential issues. The first portion of these proposed amendments will be Section 21.5.4.E.3. In this subsection staff is proposing to explicitly state the process in which property ownership is determined, what happens in the event there are discrepancies in the ownership, and clearly stating that tenants and lessees are not counted per state law. The language proposed is as followed:
3. In determining property ownership under section 21.5.4.E.1 above, the property owner shall be the owner as indicated on the most recently approved municipal tax roll, unless the property has been bought or sold since the last approved municipal tax roll. The City Manager or his/her designee determines property ownership in the above-mentioned municipal tax roll from the County Appraisal District.
The next proposed subsection to UDC 21.5.4.E. will establish deadlines for returning Written Protest. The new deadlines will stipulate that these protest votes must be turned in by noon the Friday before the first reading of City Council. This gives staff time to account for the protest votes to determine if the super-majority threshold has been reached, and to prepare the necessary reports. Staff is then proposing a second deadline of noon the Friday before the second reading as well. This gives more time for the surrounding owners to submit their votes on the request; this also provides an opportunity for a property owner to change their vote if they so decide. Staff also mentions that only the most recent returned vote is counted and what happens in the event of a holiday. The proposed language is as follows:
4. The following deadlines apply to the receipt and calculation of written protest:
Currently, the zone change process begins when the city or an applicant requests a zone change for a property. The City of Schertz UDC Section 21.5.4.C, in conformance with the State of Texas Local Government Code (LGC) then requires a public hearing. The City of Schertz UDC stipulates that the first public hearing is heard by the Planning and Zoning Commission where a recommendation is made to City Council. City Council then has two readings on the zone change request with the first reading being a public hearing as well. The final reading is not a public hearing, but in the event the action on the first reading was not unanimous, it could be a discussion item.
Before the public hearing is scheduled for a Planning and Zoning Commission meeting, State law requires that public hearing notifications be sent to property owners within 200-feet of a proposed zone change. UDC section 21.5.4.C.2.a calls these notifications "Written Notices". These notices are mailed to said property owners at least 10 days before the Planning and Zoning Commission hearing. On these public hearing notices there are options to vote "in favor of", "neutral to", or "opposed to" the zone change request. Then the property owners may return these notices either by mail, e-mail, or in-person to have their votes counted.
The votes that are "opposed to" are considered protest votes. These votes are critically important for the City Council readings as the LGC has a threshold that, once crossed, requires a 3/4 majority vote to approve the zone change. This rule is often called the "super-majority" rule. UDC Section 21.5.4.E.1. states the following:
- If a proposed zoning change or zoning map amendment is protested in accordance with this section, the proposed change must receive, in order to take effect, the affirmative vote of at least three-fourths (¾) of all members of the City Council according to LGC, Local Government Code § 211.006(d). The protest must be written and signed by the owners of at least twenty percent (20%) of either:
a. The area of the lots or land covered by the proposed zoning change or zoning map amendment; or
b. The area of the lots or land immediately adjoining the area covered by the proposed zoning change or zoning map amendment and extending 200 feet from that area.
The UDC follows the specific requirements laid out in the LGC when counting votes. However, neither the LGC nor the UDC has stipulations for cut-off dates. In practice, this means that these notices can be turned in all the way up to the point of the meeting. Also, with three separate readings in regard to the zone change, property owners have the opportunity to change their vote in-between these meetings. This can potentially create a difficult situation for staff, citizens, and applicants to keep track of protest votes and more importantly, to properly account for the super-majority threshold.
Lastly, there is often confusion around rental properties, and properties that have recently been sold. Rental tenants may receive a mailed notice, but the LGC explicitly states that only the surrounding property owners (not tenants) votes are counted. Also, the LGC states that the "most recently approved municipal tax roll", is used to determine property ownership. In practice, the city uses the County Appraisal District to determine mailing addresses and in consultation with the city attorney, this is an acceptable practice.
Proposed Amendments:
Staff is proposing amendments to UDC Section 21.5.4.E. by adding two subsections to the end of this section in order to help with these potential issues. The first portion of these proposed amendments will be Section 21.5.4.E.3. In this subsection staff is proposing to explicitly state the process in which property ownership is determined, what happens in the event there are discrepancies in the ownership, and clearly stating that tenants and lessees are not counted per state law. The language proposed is as followed:
3. In determining property ownership under section 21.5.4.E.1 above, the property owner shall be the owner as indicated on the most recently approved municipal tax roll, unless the property has been bought or sold since the last approved municipal tax roll. The City Manager or his/her designee determines property ownership in the above-mentioned municipal tax roll from the County Appraisal District.
a. If a property has recently been purchased and the County Appraisal District has not updated their public records to reflect the now current property owner, the new property owner must submit proof of ownership with their written protest to demonstrate ownership for the protest to be counted under section 21.5.4.E.1.
b. In the event of a conflict in property ownership, the City Manager or his/her designee shall determine who the owner of the property is for the purposes of calculating written protest.
c. The written protest will only be counted if signed by the owner of the property. Written protests from tenants or lessees will not be counted toward the written protest calculations under section 21.5.4.E.1
The next proposed subsection to UDC 21.5.4.E. will establish deadlines for returning Written Protest. The new deadlines will stipulate that these protest votes must be turned in by noon the Friday before the first reading of City Council. This gives staff time to account for the protest votes to determine if the super-majority threshold has been reached, and to prepare the necessary reports. Staff is then proposing a second deadline of noon the Friday before the second reading as well. This gives more time for the surrounding owners to submit their votes on the request; this also provides an opportunity for a property owner to change their vote if they so decide. Staff also mentions that only the most recent returned vote is counted and what happens in the event of a holiday. The proposed language is as follows:
4. The following deadlines apply to the receipt and calculation of written protest:
a. First Reading. Written protest must be received before noon (12pm) on the Friday before the first reading of the proposed zoning change or zoning map amendment ordinance by the City Council, in order to be included in the calculation of written protest described by section 21.5.4.E.1.
b. Second Reading. Written protest must be received before noon (12pm) on the Friday before the second reading of the proposed zoning change or zoning map amendment ordinance by the City Council, in order to be included in the calculation of written protest described by section 21.5.4.E.1.
c. Written protest received prior to the First Reading deadline will also be included in the Second Reading written protest calculation.
d. In calculating the written protest described by section 21.5.4.E.1., only the most recent written protest received prior to the deadline above will be counted per property.
e. In the event a federal, state, or local holiday prevents staff from receiving votes on the Friday before the City Council reading, the deadline will be extended to noon (12pm) on the next business day.
GOAL
To amend the UDC to review and update the development regulations due to changing conditions and community goals in order to establish and maintain sound, stable and desirable development.
COMMUNITY BENEFIT
It is the City's desire to promote safe, orderly, efficient development and ensure compliance with the City's vision of future growth.
SUMMARY OF RECOMMENDED ACTION
Staff recommends approval of Ordinance 23-S-78, amendments to the Unified Development Code (UDC) as proposed and discussed.
The Planning and Zoning Commission met on September 27, 2023, in which they held a public hearing on this item. After discussion on the item the Planning and Zoning commission requested two modifications. One modification was for added clarity as to what is being determined from the "municipal tax roll". As a result, staff added language in the last line of the proposed 21.5.4.E.3 stating that "property ownership" is determined. Also, the Commission wanted to include a provision for how the deadlines are affected by holidays, for which staff included a line in the proposed 21.5.4.E.4.e.
The Planning and Zoning Commission recommended approval with these added modifications with a 7-0 vote.
At the October 17, 2023 regular meeting, City Council voted unanimously to approve the request with a 7-0 vote. City Council had requested modifications to the public hearing notification mailer that staff sends to surrounding properties. This modification does not affect the ordinance itself. The modification relates to the practice of staff, which staff has taken into consideration.
The Planning and Zoning Commission met on September 27, 2023, in which they held a public hearing on this item. After discussion on the item the Planning and Zoning commission requested two modifications. One modification was for added clarity as to what is being determined from the "municipal tax roll". As a result, staff added language in the last line of the proposed 21.5.4.E.3 stating that "property ownership" is determined. Also, the Commission wanted to include a provision for how the deadlines are affected by holidays, for which staff included a line in the proposed 21.5.4.E.4.e.
The Planning and Zoning Commission recommended approval with these added modifications with a 7-0 vote.
At the October 17, 2023 regular meeting, City Council voted unanimously to approve the request with a 7-0 vote. City Council had requested modifications to the public hearing notification mailer that staff sends to surrounding properties. This modification does not affect the ordinance itself. The modification relates to the practice of staff, which staff has taken into consideration.
RECOMMENDATION
Approval of Ordinance 23-S-78
Attachments
- Ord. 23-S-78 with Exhibits
- UDC Section 21.5.4. Zoning Map Amendment - (redlines)
- City Council Presentation Slides