Dateline: November 6, 2003

Board's zoning variance may violate state law

By Roger Estlack, Clarendon Enterprise

The Clarendon Board of Aldermen may have violated the law last week with a 2-1 vote to allow a zoning variance.

“What they did [last week] was spot zoning, and that is illegal in the State of Texas,” City Administrator Sean Pate said.

City Attorney James Shelton would not comment on the issue.

Clarendon resident Sue Leeper came to the October 28 meeting with proposal to build a 16-unit assisted living center on three lots behind her house at 621 S. Taylor Street.

Leeper requested a variance because her property is in the Residential One Zone, which primarily restricts buildings in that area to single-family houses, two-family houses, duplexes, apartment houses, and multiple-family dwellings.

An assisted living center is considered a business of a medical nature and is therefore not allowed in that part of the city under the zoning ordinance.

Alderman Michael Tibbets said he had no problem with Leeper’s request and moved to allow the variance with a second by Alderman Tommy Hill. Tibbets and Hill voted for the measure, and Alderman Bobbie Kidd voted no.

Alderman Janice Knorpp was out of town, and Mayor Pro-tem Mark White was presiding in the absence of Mayor Tex Selvidge, who was ill.

Kidd said he thought the way the city handled Leeper’s request was improper.

“If you have a problem with the ordinance, you change the ordinance,” he said. “You don’t just ignore the ordinance.”

 Kidd said he wasn’t against having an assisted living center built in the city but said the zoning ordinance needs to be upheld.

 “I don’t know why we have to have a fixation with codes and zones,” Tibbets said. “Houston doesn’t have zoning, and they’re prosperous. We have zoning, and we’re not prosperous.”

Tibbets also said he wants the city to consider doing away with all zoning.

Following a call to the Texas Municipal League, Pate this week said no building permit would be issued because the board’s action was not binding.

The administrator said Clarendon’s zoning ordinance does not allow for variances to be given, and certain procedures have to be followed to change the ordinance, including publishing notice, informing neighbors, and holding a public hearing, none of which was done.

Former Clarendon board consultant Colby Waters of the Panhandle Regional Planning Commission agreed with Pate and also said last Tuesday’s action was illegal.

Waters said there are two ways of making an exception to a zoning ordinance. The first is a variance, which is given when a certain property doesn’t meet space or set back requirements but otherwise will be used as the zone intends.

The second is spot zoning, which allows a property to be used in manner prohibited by the zone. And that, Waters said, is illegal under state law.

Waters also agreed the zoning ordinance could be changed but said due process procedures would have to be followed. He cautioned against repealing Clarendon’s zoning laws and said other small Panhandle – namely White Deer and Claude – wish they had zoning.

“People put a significant investment in their property; and when things are not zoned, it can devalue other property,” he said. “You can have a $150,000 home with a detail shop or a feedlot across the street.”

Pate also expressed concern about repealing the zoning laws, saying, “The purpose of zoning is to protect citizens.”

The administrator agreed with Alderman Kidd’s assertion that the city needs an assisted living center, but he thinks other properties should be available which are in the correct zone.