Agenda - Planning Commission - 07/10/2008

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Zoning Bulletin ration was one in which one lot was on the street and the second lot was behind the first with access to the street by a long driveway. In such a corr6.guration,the driveway would appear from above to re- semble a flagpole, and the rear lot would appear to be the flag atop the pole. ' In June 2000, Howeth submitted preliminary plat applications to the city's planning and zoning commission (the Commission). Howeth relied on ~ 16-38 of the city's zoning ordinance for approval of the flag lot corr6.guration. Section 16-38 provided that "unless un- avoidable, key or flag shaped lots shall not be permitted." Howeth argued that the subdivision of the land was impossible without flag shaped lots and therefore should be permitted. Much of the hearing on the preliminary plat applications focused on the meaning of the term "unavoidable" in ~ 16-38. The Commission deferred a ruling on the application so that the city's attorney could research the mean- ing of "unavoidable." On July 15, 2000, Howeth sought certificates of no action from the Commission. Howeth argued that the Commission failed to act timely on its June preliminary plat applications. Texas law (Tex. Loc. Gov't Code Ann. ~ 212.009(a)) provided that: "The municipal au- thority responsible for approving plats shall act on a plat within 30 days after the date the plat is filed. A plat is considered approved by the municipal authority unless it is disapproved within that period." The city's attorney denied Howeth's request for automatic approval of the plat applications. He said that ~ 212.009 did not apply to pre- liminaryplats. On August 2, 2000, the Commission continued the hearing on Howeth's preliminary plat applications. The city's attorney reported that the term "unavoidable" was not defined in the ordinance. He also said that no case law or legislative history shed light on its mean- ing. He advised that there were two reasonable definitions of "un- avoidable": (1) that development of the land was otherwise impos- sible; or (2) that subdivision of the land was otherwise impossible. The first interpretation would require denial of the preliminary plat applications because the lots could be developed with one home per property. The second interpretation would allow approval of the pre~' liminary plats because neither of the two properties could be subdi- vided into anything but flag lots without violating the city's length and width requirements for lots. The city's attorney further advised the Commission that it was in their discretion to decide what "unless avoidable" meant. 10 70