Agenda - Planning Commission - 08/07/2008

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Zoning Bulletin subdivide the properties separately was to subdivide each property into ' two sub-lots, with one of the subdivided lots on each piece of property having a "flag" configuration. A flag configuration 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 configuration, the driveway would appear from above to resemble a flagpole, and the rear lot would appear to be the flag atop the pole. In June 2000, Howeth submitted prelirriinary plat applications to the city's planning and zoning commission (the Commission). Howeth re- lied on ~ 16-38 of the city's zoning ordinance for approval of the flag lot configuration. Section 16-38 provided that "unless unavoidable, key or flag shaped lots shall not be permitted." Howeth argued that the subdi- vision of the land was impossible without flag shaped lots and therefore should be permitted. Much of the. hearing on the preliminary plat ap- plications 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 meaning of "unavoidable." On July 15, 2000, Howeth sought certmcates 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 authority re- sponsible 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 au- thority ~ess 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 preliminary plats. 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 meaning. He ad- vised that there were two reasonable definitions of "unavoidable"; (1) . that development of the land was otherwise impossible; or (2) that sub- division 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 interpreta- tion would allow approval of the preliminary plats because neither of the two properties could be subdivided into anything but flag lots with- out violating the city's length and width requirements for lots. The city's , attorney further advised the Commission that it wa~ in their discretion to decide what "unless avoidable" meant. The Commission denied the preliminary plat applications. The Com- mission based its decision ill part on its determination that the first of the suggested interpretatio~s of ':unavoidable" was proper. 10 @ 2008 Thomson Reuters/West 34 , -'