NOW, THE ONE THAT CAUSES US THE MOST GRIEF IN MOST CITIES IS THE 1987 DECISION OF THE TEXAS LEGISLATURE TO CODIFY [1. CALL TO ORDER] [A. Receive a report, hold a discussion, and provide staff direction regarding the update to the Zoning Ordinance and the Comprehensive Plan Midpoint 2020 update. (Staff Presenter: Tony McIlwain, Director of Development Services)] [00:00:10] THE TEXAS ALCOHOLIC BEVERAGE CODE. PRIOR TO 1987, LOCAL GOVERNMENTS COULD ADOPT REGULATIONS ON THE SALE DISPERSAL LOCATION OF ALCOHOLIC BEVERAGES THAT WERE APPROPRIATE IN THAT COMMUNITY BASED ON THAT COMMUNITY STANDARDS AND BELIEFS. THERE WAS A HUGE ARRAY OF DIFFERENT TYPES OF REGULATION STATEWIDE, VERY LITTLE CONSISTENCY, AND PEOPLE IN THE ALCOHOLIC BEVERAGE BUSINESS DID NOT KNOW WHAT THEIR RIGHTS WOULD BE IN ANY CITY UNTIL THEY GOT THERE AND TRIED TO NEGOTIATE SOME KIND OF DEAL. THEY HAVE AN EXTRAORDINARILY FINE AND WELL-FINANCED LOBBY, AS YOU MIGHT IMAGINE. THEY WENT TO THE STATE LEGISLATURE AND SECURED A COMPLETE REWRITE OF THE TEXAS ALCOHOLIC BEVERAGE CODE, AND THAT ALCOHOLIC BEVERAGE CODE CONTAINS SPECIFIC LANGUAGE THAT PREEMPTS OUR AUTHORITY TO REGULATE UNLESS WE COPY THE SPECIFIC PROVISIONS OF THE CODE. WHEN WE TALK ABOUT DISTANCES OF SALE OF ALCOHOLIC BEVERAGES FROM SCHOOLS OR PARKS, WE DERIVE THAT AUTHORITY UNDER CHAPTER 109 FROM THE CODE ITSELF. THE HOURS OF OPERATION, WHAT WE CAN REGULATE WHEN AND HOW WE CAN REGULATE COMES FROM THE CODE. THE ONLY EXCEPTION IS IF WE HAD A REGULATION IN PLACE PRIOR TO 1987, WE WERE ALLOWED TO KEEP THAT REGULATION IN PLACE WITH NO CHANGE. IF WE MAKE ANY ATTEMPT TO CHANGE IT, IT'S GOT TO MOVE INTO COMPLIANCE WITH THE 1987 TABC LAW. SO THAT IS AN AREA OF PREEMPTION WHERE WE LOST CONTROL. THERE ARE OTHER AREAS OF PREEMPTION WHERE THE STATE HAS COME IN AND AMENDED CHAPTER 211 TO TAKE AWAY MUCH OF OUR AUTHORITY ON REGULATING PAWNSHOPS. THEY NOW HAVE TO BE TREATED AS ANY OTHER RETAIL ESTABLISHMENT. THERE ARE DIFFERENT LEVELS OF LIMITATION ON OUR ABILITY TO CONTROL SIGNAGE, PARTICULARLY INTERSTATE BILLBOARDS. WE HAVE SOME LIMITATIONS ON OUR ABILITY TO EVEN CONTROL ADULT ENTERTAINMENT ACTIVITIES BECAUSE OF PREEMPTION BY THE STATE. THE ONE THAT IS POTENTIALLY MOST CHALLENGING HAS NOT YET BEEN A BIG PROBLEM IN TEXAS, BUT IF THE ECONOMY CONTINUES TO BE DIFFICULT AND HOUSING SHORTAGES CONTINUE TO REMAIN IN PLACE, IT IS LIKELY TO BECOME AN ISSUE OF GREAT CONCERN. THAT'S CHAPTER 1201 OF THE TEXAS OCCUPATION CODE. IT IS THE CRADLE TO GRAVE SET OF REGULATIONS ON MOBILE HOMES AND MANUFACTURED HOUSING, AND IN THE EARLY DAYS WE WERE ABLE TO REGULATE THOSE, HOWEVER THE LOCAL JURISDICTION FELT WAS APPROPRIATE, BUT 1201 HAS LIMITED OUR AUTHORITY. WE HAVE THE ABILITY TO STRONGLY REGULATE MOBILE HOMES, AND THOSE ARE MOBILE HOME TRAILERS BUILT BEFORE THE MID 1980S THAT WERE NEVER SUBJECT TO ANY FORM OF INSPECTION DURING THEIR CONSTRUCTION INSPECTION BY A FEDERAL AGENCY FROM 1987, ODDLY ENOUGH, IT TIED IN WITH THE ALCOHOLIC BEVERAGE CODE YEAR. IT WAS A BUSY LEGISLATIVE YEAR. THEY ADOPTED A SET OF REGULATIONS FOR MANUFACTURED HOUSING. IT'S ESSENTIALLY A MOBILE HOME BUILT AFTER 1987, BUT INSPECTED BY A HUD CERTIFIED INSPECTOR AT LEAST ONE POINT DURING ITS CONSTRUCTION. WHEN THAT REGULATION WENT IN PLACE UNDER 1201, IT ALLOWED CITIES TO REGULATE THEM, BUT REQUIRED THAT THERE BE PROVISIONS AND LOCATIONS WITHIN EACH CITY WHERE MANUFACTURED HOUSING COULD BE LOCATED. YOU COULD NOT PROHIBIT ITS LOCATION IN THE CITY, AND THE FINAL NAIL IN THE COFFIN WAS, THEY ADDED IN A NEW PROVISION THAT SAID MODULAR STRUCTURES ARE TO BE PERMITTED IN ANY LOCATION IN A CITY WHERE A CONVENTIONALLY BUILT HOME COULD BE LOCATED, AND A MODULAR STRUCTURE IS DEFINED AS A FINAL HOUSING UNIT BUILT IN SECTIONS THAT ARE ASSEMBLED ON ITS FINAL PLACEMENT SITE. THUS THE END OF THE TEXT. THERE IS NO SPECIFIC EXPLANATION OF HOW SOPHISTICATED THOSE MODULE UNITS ARE. THINK OF DOUBLE WIDE MOBILE HOMES. DOES THAT FALL WITHIN THE AMBIENT OF THAT REGULATION? NOBODY HAS TESTED IT YET IN COURT, BUT YOU CAN BUILD MODULAR UNITS IN FACTORIES LIKE YOU COULD MANUFACTURED HOUSING AND YOU CAN BRING THEM [00:05:02] TO SITES, AND UNDER 1201, WE HAVE BEEN PREEMPTED FROM REGULATING THAT. SO NOTWITHSTANDING WHAT OUR REGULATIONS ARE, WE CAN LOSE CONTROL. THAT IS AN AREA OF GOVERNMENTAL PREEMPTION, AND WE NEED TO BE AWARE IT'S LURKING OUT THERE. THE NEXT AREA OF PREEMPTION IS WHAT WE CALL SPOT ZONING. YOU'LL HEAR PEOPLE REFER TO THAT, SOMEBODY MAKING A REQUEST FOR A ZONING CHANGE. THIS WOULD BE SPOT ZONING. THAT'S SOMETHING THAT'S DEFINED IN THE CASE LAW. THE CASE EVERYBODY TALKS ABOUT IS THE CITY OF FARR VERSUS AJ TIPPET. IT WAS A CASE IN THE EARLY EIGHTIES DECIDED BY THE TEXAS SUPREME COURT, AND WHAT IT TOLD US IS SPOT ZONING IS A SITUATION WHERE A LOCAL GOVERNMENT DECIDES TO REZONE A PIECE OF PROPERTY INTO A ZONING CATEGORY THAT IS INCONSISTENT WITH THE ZONING OF SURROUNDING PROPERTIES. WITHOUT ANY LOGICAL EXPLANATION FOR A CHANGE IN CIRCUMSTANCE AND OR IN A MANNER INCONSISTENT WITH THE CITY'S COMPREHENSIVE PLAN. IT DOESN'T MATTER ABOUT SIZE, IT CAN BE ONE LOT. IT CAN BE 800 ACRES, BUT IF THE ZONING OCCURS AND IT'S INCONSISTENT WITH YOUR PRIOR PLANNING HISTORY, THEN YOU ARE RUNNING THE RISK OF BEING FOUND TO HAVE ENGAGED IN SPOT ZONING. THE COMPREHENSIVE PLAN IS A CRITICAL ELEMENT OF THIS. WHEN YOU ADOPT A ZONING ORDINANCE, YOU COMMIT TO ZONE IN CONFORMANCE WITH YOUR COMPREHENSIVE PLAN. CHAPTER 211 REQUIRES THAT ZONING BE CONSISTENT WITH THE COMPREHENSIVE PLAN AND CHAPTER 213 OF THE LOCAL GOVERNMENT CODE TELL CITIES HOW THEY ADOPT A COMPREHENSIVE PLAN. THERE IS NOT, ALTHOUGH SOME PEOPLE KIND OF WORRY ABOUT THIS, A REQUIREMENT THAT YOUR ZONING MAP BE ABSOLUTELY A MIRROR IMAGE OF YOUR COMPREHENSIVE PLAN, BUT IT CANNOT BE MATERIALLY INCONSISTENT OR FATALLY OPPOSED TO YOUR COMPREHENSIVE PLAN AS LONG IF YOU'RE MAKING A ZONING DECISION. AS LONG AS YOU CAN EXPLAIN THE ZONING CHANGE AS TO WHY IT IS NOT DESTRUCTIVE OF YOUR COMPREHENSIVE PLAN, COURTS WILL GENERALLY SUSTAIN A CITY'S DECISION, BUT IF YOU'RE EVER FACED WITH A CASE WHERE SOMEONE IS REQUESTING A ZONING CHANGE THAT'S INCONSISTENT WITH THE MASTER PLAN, AND YOU FEEL PRESSURED THAT THIS REALLY SHOULD BE APPROVED. WHAT YOU NEED TO SET OUT IN THE RECORD IS YOUR UNDERSTANDING OF WHAT THE PLAN SAYS AND WHY YOU'RE GOING TO GO AGAINST IT. WHAT THE JUDGES WHO INTERPRET THESE CASES HAVE CONSISTENTLY SAID IS, WE REALLY DON'T GIVE A TINKER'S DAMN ABOUT THE PLAN. WE WANT TO UNDERSTAND THAT THE LEGISLATIVE BODY KNEW IT WAS THERE, THOUGHT ABOUT IT, AND MADE AN INTELLIGENT, INFORMED DECISION TO MOVE AWAY FROM IT , BUT IF YOU IGNORE IT AND DON'T ADDRESS IT, THEN THEY TEND TO [INAUDIBLE] CAPRICIOUS BECAUSE YOU WIN AGAINST YOUR PLAN WITHOUT EVEN EXPLAINING IT. SO DON'T PANIC IF SOMEONE SAYS, WELL, THIS IS INCONSISTENT WITH THE PLAN. WELL, THAT'S A WARNING. IT'S A SPEED BUMP YOU'VE GONE OVER. IT DOESN'T MEAN YOU CAN'T GO THERE. IT MEANS YOU HAD BETTER THINK CAREFULLY AND YOU HAD BETTER ON THE RECORD. EXPLAIN WHAT YOU'RE DOING AND WHY YOU ARE DOING IT. UNDERSTANDING THAT IT'S INCONSISTENT WITH THE PLAN, AND THEN, OF COURSE, AS I ALWAYS SAY, A MOMENT OF CAUTION, IT WOULD BE WISE AT THAT POINT TO, ON THE RECORD TELL THE STAFF TO BEGIN PREPARING AN AMENDMENT CHANGE TO THE PLAN TO ACCOMMODATE THIS NEW REALITY. IF YOU DO THAT AND THE COURT SEES IT, THEY'RE GOING TO GO OK [INAUDIBLE]. THEY CLEARLY KNEW THE PLAN. THEY KNEW WHAT THEY WERE DOING AND THEY'VE TOLD THE STAFF TO CHANGE THE PLAN. YOU DON'T HAVE TO GO THROUGH THE PLAN AMENDMENT AS A MATTER OF LAW BEFORE YOU MAKE THE DECISION, BUT YOU SHOULD CERTAINLY FOLLOW UP TO ENSURE THAT IT'S DONE IN ORDER TO SET THE RECORD STRAIGHT AND BE SURE NO IMPROPER ASSUMPTIONS ARE MADE ABOUT THE PRECEDENTS YOU'RE CREATING. THE NEXT ISSUE IS THAT YOU'LL HEAR PEOPLE REFER TO AS A LIMITATION ON LOCAL GOVERNMENT AUTHORITY IS THE CONCEPT OF CONTRACT ZONING. PEOPLE WILL SAY, OH, YOU CAN'T DO SOMETHING BECAUSE IT FALLS INTO THE WORLD OF CONTRACT ZONING, AND THAT ALWAYS TENDS TO CONFUSE THE PUBLIC WHEN THEY ATTEND THESE MEETINGS HORRIBLY. CONTRACT ZONING REALLY DOESN'T MEAN WHAT THE NAME SEEMS TO IMPLY. [00:10:06] WE ENGAGE IN CONTRACT ZONING IN THE LITERAL SENSE ON A ROUTINE BASIS. THAT'S WHAT A PLANNED UNIT DEVELOPMENT OR PD ZONING DISTRICT IS. IN OUR ZONING STRUCTURE, WE HAVE WHAT WE REFER TO AS A EUCLIDEAN PYRAMID, A HIERARCHY OF USES AT THE VERY TOP OF THE PYRAMID, WE HAVE USUALLY AGRICULTURAL OPEN SPACE. THEN AS WE MOVE DOWN THE PYRAMID, WE HAVE SINGLE FAMILY ESTATE, THEN WE GET SMALLER, SINGLE FAMILY LOTS, THEN WE GET TO DUPLEXES AND MULTIFAMILY AND THEN LIGHT COMMERCIAL AND THEN HEAVIER COMMERCIAL AND THEN INDUSTRIAL AT THE BASE OF THE PYRAMID, AND PEOPLE, WHEN WE ZONE PROPERTY INTO SPECIFIC DISTRICTS, PEOPLE HAVE A DISTRICT WHERE THEIR PROPERTY IS LOCATED. THEY GO TO OUR ZONING ORDINANCE AND THEY LOOK IN THAT DISTRICT AND SAY, IN THIS ZONING DISTRICT, IT'S SPECIFICALLY SAYS AS A PERFORMANCE STANDARD REQUIREMENT, YOU MUST HAVE A FRONT YARD OF THIS SIZE, A REAR YARD OF THIS SIZE, SIDE YARDS OF THIS SIZE, MAXIMUM BUILDING HEIGHT IS THIS SIZE. FLOOR AREA, TOTAL AMOUNT OF IMPERVIOUS COVERAGE FLOOR AREA IS X. NUMBER OF OFF STREET PARKING SPACES IS Y. IT'S A FIXED SET OF PERFORMANCE STANDARDS. THEY HAVE TO MEET IT OR EXCEED IT IN ORDER TO GET BUILDING PERMITS AND BUILD, BUT IF A DEVELOPER WANTS TO DO SOMETHING NEW AND DIFFERENT AND INNOVATIVE, THEN THEY FILE FOR A PLAN DEVELOPMENT OR PLANNED UNIT DEVELOPMENT ZONING DISTRICT, AND THAT'S ONE OF THOSE LET'S MAKE A DEAL DISTRICTS. THEY COME IN AND SAY, HERE'S MY PLAN, HERE'S MY VISION. SMALLER LOTS MORE OPEN SPACE, MORE LANDSCAPING, WATER FEATURES, YOU KNOW, ARCHITECTURAL CONTROL ON THE STRUCTURES. I WANT TO DO SOMETHING CREATIVE AND DIFFERENT TO TAKE ADVANTAGE OF THE MARKET OR SOME UNUSUAL FACTORS IN THE TOPOGRAPHY OF THE LAND, AND THEY COME IN AND MEET WITH THE STAFF. THEY MAKE THEIR PRESENTATION TO THE PLANNING COMMISSION, WHICH WE'LL TALK ABOUT IN A FEW MINUTES, AND SECURE THEIR RECOMMENDATION AND REPORT TO THE COUNCIL, AND THEN THEY COME TO YOU AND SAY, IF YOU'LL LET US DO A DIFFERENT DEVELOPMENT, WE'RE NOT GOING TO PUT IN THE NORMAL FRONT YARDS AND RAIL YARDS AND SIDE YARDS AND BUILDING HEIGHT. WE'RE GOING TO HAVE DIFFERENT CONFIGURATIONS, BUT WE'RE GOING TO HAVE MORE LANDSCAPING, WE'RE GOING TO HAVE DIFFERENT ARCHITECTURAL ENTRY FEATURES. WE'RE GOING TO DO SOMETHING DIFFERENT THEN THIS IS HOW WE WANT TO DEVELOP IT. IF THE CITY COUNCIL DECIDES THIS IS SOMETHING THAT THEY'RE COMFORTABLE WITH AND THEY LIKE, THEN YOU APPROVE THE DISTRICT, AND THAT IS A SPECIALLY DESIGNED ZONING DISTRICT WITH ITS OWN PERFORMANCE STANDARDS CONTAINED WITHIN IT, AND WHEN THE DEVELOPER COMES FORWARD TO DEVELOP, ALL THE DEVELOPER CAN DO IS BUILD EXACTLY WHAT'S IN THAT PLAN, BUT IT'S A NEGOTIATED DISTRICT; IT'S A CONTRACT. YOU WORKED A DEAL. IF YOU'LL BUILD X, WE'LL GIVE YOU AUTHORITY TO DO THAT. SO CONTRACT ZONING PER SE ISN'T ILLEGAL. THE ILLEGAL TYPE OF CONTRACT ZONING IS A NEGOTIATION IN WHICH YOU COMMIT TO DO SOMETHING AT SOME POINT IN THE FUTURE. WHAT ILLEGAL CONTRACT ZONING IS, IS AN IMPROPER DELEGATION OF YOUR LEGISLATIVE AUTHORITY. NOW, LET ME GIVE YOU THE MOST BANAL UP FRONT CARTOON EXAMPLE OF HOW SOMETHING LIKE THAT HAPPENS. WE BUY LAND 30 YEARS AGO FOR A WATER TOWER, TEN ACRES, AND THEN SUDDENLY WE WAKE UP ONE MORNING AND GO, WE DON'T NEED A WATER TOWER AT THAT SITE, SO IT'S NOT NECESSARY ANYMORE. IT'S WORTH MONEY. LET'S SELL IT AND GET RID OF IT. WE ADVERTISE IT FOR PUBLIC BID. SOMEBODY COMES IN AND SAYS, I'LL GIVE YOU $100,000 FOR THAT SITE BECAUSE IT'S IN A GOOD PLACE, BUT IT'S GOT TO BE ZONED FOR COMMERCIAL PURPOSES AND WE SAY, OKAY, WELL, WE'LL ENTER IN THIS CONTRACT AND SELL YOU THE LAND, COMMITTING AT SOME POINT IN THE FUTURE TO REZONE THE PROPERTY. THAT'S ILLEGAL. YOU CAN'T ENTER INTO A CONTRACT TO DO A FUTURE GOVERNMENTAL ACTION. WE HAVE SITUATIONS AND THEY'RE IN THE CASE BOOKS WHERE THINGS HAVE GONE VERY, VERY BADLY AND PEOPLE HAVE ENDED UP IN BIG TROUBLE, WHERE A DEVELOPER HAS COME IN AND SAID, I WANT TO BUILD 400 APARTMENT UNITS IN THIS DEVELOPMENT AND THE CITY COUNCIL MINUTES REFLECT THAT. THE COUNCIL SAID, WELL, WE CAN'T LIVE WITH THAT. [00:15:02] WE'LL GIVE YOU 100 APARTMENTS HERE, AND THE TRADEOFF IS YOU OWN THIS OTHER LAND UP HERE BY THE BYPASS. WE'LL GIVE YOU THE OTHER COUPLE OF HUNDRED UNITS UP THERE IN THE FUTURE. YOU CAN'T MAKE A COMMITMENT TO DO SOMETHING ELSE. THE TRICK IS YOU CAN MAKE ANY LEGISLATIVE DECISION YOU WANT WITHIN THE PARAMETERS THAT I'VE GIVEN YOU ON A MATTER THAT IS JURISDICTIONAL IN FRONT OF YOU RIGHT NOW. IF WE'VE SENT NOTICE, IF IT'S IN FRONT OF YOU, IF YOU HAVE OPERATIONAL CONTROL OF IT, YOU CAN MAKE A DEAL ON HOW IT'S GOING TO BE DEVELOPED, BUT YOU CAN'T PROMISE TO MAKE A DEAL AT SOME POINT IN THE FUTURE. THE MOST YOU COULD EVER DO IS TO SAY YOU'LL HAVE THE OPPORTUNITY, LIKE ANY CITIZEN, TO REQUEST A REZONING AT SOME POINT IN THE FUTURE. AND WE'LL LOOK AT IT THEN, BECAUSE YOU CAN'T SPEAK FOR WHAT ANOTHER LEGISLATIVE BODY MIGHT OR MIGHT NOT CHOOSE TO DO. THE NEXT CATEGORY, AND PERHAPS THE MOST TROUBLING IN SOME WAYS ON YOUR LIMITATION AND IT'S REALLY THE FINAL ONE I'M GOING TO TALK ABOUT TODAY IS THE EXCLUSIONARY ZONING AREA. IT'S A NEW ISSUE THAT IS EMERGING. IT IS AN ISSUE OF SOME CONCERN TO LOCAL GOVERNMENTS EVERYWHERE AND ONE WE NEED TO BE AWARE OF. EXCLUSIONARY ZONING DEALS WITH THE WONDERFUL WORLD OF HOUSING AND HOW WE DEAL WITH IT, AND IT'S THE REASON THAT TONY AND THE PLANNING STAFF ARE SO CAREFUL ABOUT HOW THEY PRESENT INFORMATION WHEN WE TALK ABOUT HOUSING ISSUES, BECAUSE IT SHOULD BE A RELATIVELY STRAIGHTFORWARD THING, BUT IT CAN BECOME FRAUGHT WITH PERIL IF YOU DON'T THINK ABOUT WHAT YOU'RE DOING AND THE IMPLICATIONS OF THE DECISIONS YOU'RE MAKING. THE EXCLUSIONARY ZONING CONCEPT CAME OUT OF THE STATE OF NEW JERSEY. MOUNT LAUREL IS A SMALL BEDROOM COMMUNITY OUTSIDE OF ATLANTIC CITY. IT IS A HIGH END, VERY HIGH END COMMUNITY WITH LARGE HOMES ON STATELY LOTS WITH LARGE MINIMUM LOT SIZE REQUIREMENTS. THINK OF SOUTH LAKE. THINK OF UNIVERSITY PARK, IT'S SOMETHING LIKE THAT, AND IT HAS A HISTORY OF CATERING TO A VERY WEALTHY, AFFLUENT POPULATION, AND IT IS IN A HIGHLY CONGESTED PORTION OF NEW JERSEY WITH WITH WHERE LAND IS HARD TO FIND AND DEVELOPMENT OPPORTUNITIES ARE LIMITED. MOUNT LAUREL DID HAVE A SET OF DEVELOPMENT REGULATIONS THAT FLAT PROHIBITED APARTMENTS IN THE CITY JUST SAID NO, AND IT REQUIRED A MINIMUM LIKE ONE AND ONE HALF ACRES ON ANY INDIVIDUAL LOT TO BE DEVELOPED IN THE CITY. THE NAACP IN THAT AREA, GOT TOGETHER WITH SOME OTHER INVESTORS AND WENT IN AND BOUGHT SOME ACREAGE AND THEY CAME TO THE CITY AND SAID, WE WANT YOU TO AMEND YOUR ZONING REGULATIONS TO ALLOW US THE OPPORTUNITY TO BUILD NOT A LOW INCOME PUBLIC HOUSING PROJECT, BUT A LOWER MODERATE INCOME APARTMENT PROJECT FOR THE TEACHERS AIDES, THE CERTIFIED NURSING ASSISTANTS, THE ENTRY LEVEL TEACHERS AND POLICE OFFICERS WHO WORK IN THIS AREA AND THIS COMMUNITY THAT CAN'T GET HOUSING ANYWHERE ELSE. EVERYTHING IN HERE COSTS A FORTUNE. PEOPLE NEED AN OPPORTUNITY TO LIVE CLOSE TO WHERE THEY WORK, AND IT'S A REASONABLE REQUEST. WELL, MOUNT LAUREL OBVIOUSLY SAID, NO, WE'RE NOT GOING TO DO THAT. IT'S GOING TO CHANGE THE ESTHETICS. IT'S GOING TO CHANGE THE NEIGHBORHOOD CHARACTER OF OUR COMMUNITY. WE WON'T ALLOW THAT. WELL, NOW, REMEMBER THAT LONG LIST OF ABOUT 14 FACTORS I TOLD YOU ABOUT NEIGHBORHOOD CHARACTER PROTECTING PROPERTY VALUES? IT WOULD SEEM TO BE CONSISTENT, BUT THERE'S A PROBLEM WITH IT. YOU ARE ACTING UNDER COLOR OF STATE LAW. YOU ARE USING THE POWER OF GOVERNMENT TO ADOPT REGULATIONS, AND THE FEDERAL GOVERNMENT SAYS. IN THE FIRST AMENDMENT, CITIZENS HAVE A RIGHT OF ASSEMBLY. THAT MEANS A RIGHT OF FREEDOM OF MOVEMENT. THEY HAVE THE RIGHT TO MOVE AROUND THE NATION AND THE STATES AND DECIDE WHERE THEY WANT TO LIVE AND WHERE THEY WANT TO WORK, AND A GOVERNMENT MAY NOT USE ITS AUTHORITY IN A WAY TO ARBITRARILY DENY ONE OF OUR CITIZENS A FIRST AMENDMENT CONSTITUTIONALLY PROTECTED RIGHT TO SELECT WHERE THEY WILL LIVE AND BUILD THEIR LIVES [00:20:07] , AND THE NAACP CAME FORWARD AND SAID IT'S A LITTLE WORSE THAN THAT BECAUSE WE'VE REVIEWED THE CENSUS STATISTICS, THE BLACK STATISTICS, THE TRACK STATISTICS FOR THIS PARTICULAR PART OF THE METROPOLITAN AREA, AND WE HAVE DIVINED A PATTERN OF IMPACT, AND WHAT IT SHOWS IS WE'RE GOING TO BUILD HOUSING FOR LOWER MODERATE INCOME FAMILIES. 90% OF THE PEOPLE WHO LIVE IN LOWER MODERATE INCOME HOUSING FALL IN RACIAL MINORITY GROUPS IN THIS PART OF NEW JERSEY. SO YOU'RE ADOPTING A GOVERNMENTAL REGULATION THAT DISPROPORTIONATELY IMPACTS. A LARGE SEGMENT OF THE POPULATION WHOSE RIGHTS ARE CONSTITUTIONALLY PROTECTED. THEY ARE IN A PROTECTED CATEGORY. IF THAT HAPPENS, YOU AS A GOVERNMENT HAVE TO BE ABLE TO COME FORWARD AND SHOW A COMPELLING PUBLIC INTEREST THAT YOU ARE ACHIEVING FOR YOUR LOCAL GOVERNMENT. BY THE REGULATION YOU'VE ADOPTED, AND THE REGULATION HAS TO BE THE LEAST INVASIVE MEANS OF DOING IT, AND THE COURTS THEN GET TO VALUE THE IMPACT ON INDIVIDUAL RIGHTS VERSUS. THE BENEFIT TO THE LOCAL GOVERNMENT. I SUSPECT YOU CAN IMAGINE WHAT HAPPENED IN THE COURSE OF THE INTERROGATION OF THE CITY'S WITNESSES THE ATTORNEYS WERE ABLE TO EXTRACT TESTIMONY TO THE EFFECT THAT YOU CAN BUILD A SAFE, HABITABLE HOME, 800 OR 900 SQUARE FEET THAT COULD MEET THE NEEDS OF A COUPLE, YOU KNOW, FOR 1200 SQUARE FEET. YOU CAN MEET THE NEEDS OF A FAMILY. THOSE CAN GO ON SIX OR 7000 SQUARE FOOT LOTS. WHAT IS THE PURPOSE OF THIS ACRE AND A HALF REQUIREMENT? WHAT IS THE PURPOSE OF NO MULTIFAMILY? THE LOCAL GOVERNMENT COULD NOT PRODUCE A COMPELLING ANSWER, AND THE COURT STRUCK DOWN MOUNT LAUREL ZONING ORDINANCE. THE TERRIBLE PART ABOUT THE EXCLUSIONARY ZONING PUZZLE IS THE COURTS HAVE DECIDED THAT THE WAY TO ADDRESS IT IS TO CUT A SWITCH. IF YOU GET CAUGHT VIOLATING THE EXCLUSIONARY ZONING RULE, THEY DON'T FINE YOU. THEY DON'T SIMPLY APPROVE THAT PROJECT. HISTORICALLY, WHAT THEY DO IS THEY INVALIDATE YOUR ZONING ORDINANCE AND SEND YOU BACK TO START OVER. THINK, HOUSTON, YOU SUDDENLY HAVE NO ZONING REGULATIONS IN PLACE. THIS IS NOT A SCENARIO ANYONE WANTS TO FALL INTO. WE WERE HOPING THAT, OF COURSE, THAT THIS WOULD STAY CONFINED TO THE NORTHEAST AND WE WOULD NOT HAVE TO CONTEND WITH IT, BUT IT QUICKLY WAS PICKED UP BY THE FEDERAL JUDICIARY ACROSS THE NATION AND ABOUT 15 YEARS AGO. NOW, THE CITY OF SUNSET VALLEY, PARDON ME, SUNNYVALE, GOT INTO A PIECE OF LITIGATION WITH A FORMER MAYOR NAMED MR. MAYHEW WE'RE DEVELOPING A PLANNED UNIT DEVELOPMENT JUST EAST OF DALLAS IN SUNNYVALE. AND AS A PORTION OF THAT LAWSUIT, THEY WERE PROPOSING TO BUILD MULTIFAMILY HOUSING. IT WAS STUCK IN FEDERAL COURT FOR A NUMBER OF YEARS, WORKING ITS WAY THROUGH THE SYSTEM, AND WHILE THAT HAPPENED, A AN INTERVENOR NAMED MARY DEWS AND THE DALLAS CHAPTER OF THE NAACP INTERVENED AND BROUGHT AN EXCLUSIONARY ZONING ATTACK ON SUNNYVALE BECAUSE OF THEIR ZONING RESTRICTIONS THAT PROHIBITED APARTMENTS AND LIMITED SMALL LOTS WITHIN THE CITY, AND A VICIOUS BATTLE WENT ON FOR TWO YEARS THROUGH THE COURTS, AND FINALLY, JUDGE JERRY BUCHMEYER, WHO WAS THEN THE SENIOR UNITED STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF TEXAS, WROTE AN OPINION THAT WAS 52 PAGES LONG. IT WAS A LAW REVIEW ARTICLE ON WHY NOT TO VIOLATE THE FAIR HOUSING ACT OR THE EXCLUSIONARY ZONING RULE, [00:25:04] AND HE ISSUED AN ORDER INVALIDATING SUNNYVALE ZONING ORDINANCE. NOW, THE GOOD NEWS IS THEY HAD AN INTENSIVE SET OF PRIVATE OFF THE RECORD NEGOTIATIONS. IN THREE WEEKS LATER, THEY REACHED A SETTLEMENT AND FIXED IT SO THAT THE CITY DID NOT LOSE ITS ZONING ORDINANCE AND THE DEVELOPMENT PROJECTS WENT FORWARD IN A FORM THEY COULD LIVE WITH, BUT IT'S REAL AND IT'S HERE. SO WE ALWAYS NEED TO BE AWARE OF THE HOUSING CONUNDRUM WHEN WE TALK ABOUT ZONING ISSUES NOW BEFORE EVERYBODY PANICS. I ALWAYS HAVE TO DO THIS WITH CITIES. MY GOD, WE'RE ALL FIGHTING ISSUES WITH THE NUMBER OF HOUSING UNITS WE'VE GOT. WE'VE GOT SO MANY APARTMENTS HERE AND WE'VE GOT DUPLEXES HERE. WE'VE GOT SINGLE FAMILY HERE. ARE WE GOING TO BE IN TROUBLE BECAUSE THE LAWYERS BROUGHT THIS UP? NO. AS LONG AS WE ENGAGE IN RESPONSIBLE PLANNING ACTIVITIES, ENSURE AND ENSURE THAT THERE IS A REASONABLE AMOUNT OF DIVERSE HOUSING OPPORTUNITIES PROVIDED FOR OUR CITIZENS, WE DON'T RUN AFOUL OF IT. YOU ONLY GET IN TROUBLE WHEN YOU STAND UP AND SAY, WE'RE NOT GOING TO ALLOW APARTMENTS. WE'RE NOT GOING TO HAVE SMALLER LOTS. AS LONG AS WHAT YOU ARE AUTHORIZING WOULD ALLOW A REASONABLE MIX OF HOUSING OPPORTUNITIES FOR DIFFERENT CITIZENS OR CITIZEN GROUPS WITHIN YOUR COMMUNITY, YOU'RE SAFE, BUT IT ALWAYS MAKES YOU CAREFUL ABOUT HOW WE TALK ABOUT THE HOUSING ISSUES WHEN WE ARE DEALING WITH ZONING QUESTIONS. NOW, THOSE ARE THE BASIC BIG PICTURE THINGS WITH HOW YOU DO ZONING. WHAT YOU NEED TO UNDERSTAND IS ZONING, OF COURSE, IS A POLICE POWER ACT, AND WHEN COURTS REVIEW IT, THEY REVIEW IT TO LOOK AND DETERMINE WHETHER OR NOT A CITY HAS BEEN ARBITRARY OR CAPRICIOUS IN THE DECISIONS THAT IT MADE, HOW IT WENT FORWARD. THEY ALWAYS WANT TO SEE, DO YOUR LOCAL DECISIONS REFLECT THAT YOUR REGULATION IS IN FURTHERANCE OF A COMPELLING PUBLIC INTEREST AND YOU ARE ALLOWING PROPERTY OWNERS THE REASONABLE USE OF THEIR PROPERTY, NOT THE ONE THAT MAKES THEM THE MOST MONEY, BUT A REASONABLE USE THAT DOES NOT DEPRIVE THEM OF ALL ECONOMIC INVESTMENT IN THE PROPERTY. IF YOUR ZONING DECISIONS ARE CHALLENGED, THEN THE COURTS REVIEW THEM UNDER WHAT IS CALLED THE ISSUABLE FACT DOCTRINE, WHICH IS THE CITY ATTORNEY'S BEST AND GREATEST FRIEND. WHAT IT BASICALLY SAYS IS IF THERE WERE FACTS AT ISSUE IN THE DISPUTE UPON WHICH REASONABLE MINDS MIGHT DIFFER, IF THERE WERE ANY FACTS PRESENTED THAT COULD HAVE SUPPORTED THE CITY COUNCIL'S DECISION, THE COURT MUST PRESUME THAT WAS THE BASIS OF THE DECISION, AND THE COURT CANNOT SUBSTITUTE ITS JUDGMENT FOR THE LEGISLATIVE BODY. THAT MEANS CITY WINS 80% OF THE TIME AND IT'S VERY IMPORTANT THAT YOU'RE AWARE OF THE ISSUABLE FACT RULE. NOW I'M GOING TO RESTATE THE OBVIOUS, BUT SOME OF YOU ARE STILL RELATIVELY NEW TO THE CITY COUNCIL BUSINESS, SO I WANT TO BE SURE IT'S CLEAR. YOU HAVEN'T BEEN TO A REALLY BAD ZONING HEARING YET. I'VE BEEN TO SOME THAT ARE NIGHTMARES. I MEAN, THEY START OUT AS PLEASANT GOVERNMENTAL CONVERSATIONS ABOUT THE FUTURE OF THE COMMUNITY, AND OVER ABOUT 3 HOURS THEY DEGENERATE TO WHERE THEY MANIFEST THE MORE SORDID ASPECTS OF A MEDIEVAL BOAR HUNT, AND PEOPLE ARE CALLING EACH OTHER NAMES AND SCREAMING, AND THEY'RE THROWING THINGS AND WAVING SIGNS. IT CAN GET CRAZY BECAUSE ZONING INVOLVES PROPERTY RIGHTS, PROPERTY VALUES, NEIGHBORHOOD CHARACTER, AND PEOPLE GET VERY UPSET ABOUT IT. AS ELECTED OFFICIALS. SOME OF THE SAFETY THINGS YOU NEED TO UNDERSTAND IS LISTEN TO EVERYONE. DON'T PRETEND YOU'RE COMMITTING TO ANY DECISION ANYWHERE UNTIL EVERYBODY'S HAD THEIR OPPORTUNITY TO SPEAK IN THE PUBLIC HEARINGS. AND THEN THIS IS THE HARD ONE FOR YOU AS ELECTED OFFICIALS. IF IT'S REALLY BEEN UGLY, DON'T TALK. GET A MOTION. GET A SECOND AND VOTE ON THE ITEM, WHICHEVER WAY YOU'RE VOTING, AND GET ON TO THE NEXT PIECE OF BUSINESS. WHY? I'M GOING TO GO BACK TO PART OF THE SUNNYVALE CASE BECAUSE IT IS ILLUSTRATIVE OF HOW THIS CAN GO WRONG. [00:30:01] IN ONE OF THE FINAL HEARINGS ON MR. MAYHEW'S PLANNED UNIT DEVELOPMENT, THERE WERE 400 PEOPLE PRESENT AT CITY HALL IN A ROOM THAT WOULD ACCOMMODATE ABOUT 55 PEOPLE BEYOND THE COUNCIL, AND THEY WERE OUT IN THE PARKING LOT AND PEOPLE WERE YELLING AND BEING VERY UNPLEASANT, AND THE MAYOR OPENED THE MEETING AT 5:30 AND IT WENT AND IT WENT AND IT WENT AND IT GOT UP TO ABOUT MIDNIGHT AND EVERYBODY WAS GETTING MORE UPSET, AND THE MAYOR FINALLY SAID, I THINK WE'VE ABOUT COME TO THE END OF THIS. DOES ANYBODY HAVE A MOTION? AND ONE OF THE COUNCIL MEMBERS SAID, MR. MAYOR, I'D LIKE TO MAKE A MOTION AND I'M PARAPHRASING THIS, BUT THIS IS WHAT BASICALLY HAPPENED. HE SAID, BUT BEFORE I MAKE THE MOTION, I WANT TO STATE MY POSITION ON THE RECORD. MR. MAYHEW HAS COME IN IN THIS DEVELOPMENT. IT'S BEEN GOING ON TWO YEARS. WE'VE ASKED FOR SEVEN DIFFERENT CHANGES. HE'S MADE ALL OF THEM. HE'S SPENT OVER HALF A MILLION DOLLARS CHANGING THE ENGINEERING. HE'S AGREED TO BUILD ANOTHER FIRE SUBSTATION. HE'S AGREED TO DEDICATE A SCHOOL SITE TO THE SCHOOL DISTRICT. HE'S ADDING HE'S GIVING US AN AMBULANCE TO GO WITH OUR FIRE SERVICE. HE'S DEDICATING, I THINK IT WAS 38 ACRES OF PARKLAND IN THESE AREAS THAT WE BADLY NEED. HE'S GOING TO FURNISH OUT THE PARK FACILITIES. HE'S DONE EVERYTHING WE'VE ASKED. I THINK HIS DEVELOPMENT WOULD BE A FABULOUS ADDITION TO OUR COMMUNITY. IT WILL MORE THAN CONTRIBUTE MONEY FROM ITS TAX BASE TO COVER ITS COST, AND I THINK IT WOULD BE A JEWEL IN OUR CROWN, BUT I GREW UP IN AMERICA. I GREW UP IN TEXAS. FROM SECOND GRADE ON, WE SAT IN OUR CLASSROOMS AND WE SAID TEACHER WOULD WALK IN AND SAY, YOU ALL WANT TO PLAY SOFTBALL TODAY OR DO YOU WANT TO PLAY KICKBALL? AND WE WOULD HOLD UP HANDS AND VOTE AND WE DID WHAT THE MAJORITY WANTED. I WAS BORN AND RAISED IN THIS TOWN. I GREW UP HERE. I KNOW ALL YOU PEOPLE. I MEAN, YOU'RE MY FAMILY. YOU'RE MY FRIENDS, YOU'RE MY COMMUNITY, AND THE VAST MAJORITY OF YOU HAD MADE IT CLEAR TO ME THAT THIS IS A DISASTER AND YOU DON'T WANT IT, AND I BELIEVE IN REPRESENTATIVE DEMOCRACY, AND SO SINCE YOU JUST DON'T WANT IT, ALTHOUGH I DON'T UNDERSTAND WHY, MAYOR, I VOTE TO DENY THERE WAS A SECOND WITH THE COMPARABLE SPEECH AND THEY VOTED TO NOT TO DENY IT. SHORTLY THEREAFTER, LAWYERS WITH LARGE LEATHER BRIEFCASES ARRIVED IN THE IN THE DISTRICT CLERK'S OFFICE IN DALLAS AND STARTED FILING PETITIONS. JUDGMENTS WERE RETURNED AGAINST THOSE COUNCIL MEMBERS IN THE MILLIONS OF DOLLARS RANGE BECAUSE. THEY OPENED THEIR MOUTHS AND THEIR BRAINS FELL OUT. THERE WERE SO MANY REASONS THEY COULD HAVE SAID NO. DURING THE COURSE OF THAT MULTI HOUR PUBLIC HEARING, PEOPLE TALKED ABOUT TRAFFIC. THEY TALKED ABOUT THE INABILITY OF THE STREETS TO HANDLE IT. THEY TALK ABOUT THE YEARS OF DISRUPTION BEFORE ALL THESE NEW FACILITIES WOULD COME ONLINE. THEY TALKED ABOUT OVERWHELMING THE SCHOOLS FOR YEARS BEFORE THE NEW SCHOOL COULD BE BUILT. THEY HAD A MILLION REASONS WHY, BUT WHAT THEY PUT ON THE RECORD WAS A STATEMENT OF AN IMPERMISSIBLE REASON TO DENY IT. THE ISSUABLE FACT DOCTRINE SAYS IF THERE ARE FACTS AT ISSUE UPON WHICH REASONABLE MINDS MIGHT DIFFER, IF ANY OF THE FACTS SUBMITTED WOULD HAVE SUPPORTED THE CITY'S DECISION, YOU HAVE TO PRESUME THAT WAS THE BASIS OF THE DECISION, BUT IF YOU OPEN YOUR MOUTH AND START EXPLAINING THINGS, IT CAN COME BACK TO BITE YOU. IF IT WAS A CONTENTIOUS, DIFFICULT PUBLIC HEARING AND PEOPLE TALKED ABOUT ALL KINDS OF THINGS, YOU NEED TO UNDERSTAND ONE THING. THE PEOPLE ON THE LEFT SIDE OF THE ROOM WHO WANT IT TO HAPPEN ARE GOING TO THINK YOU'RE THE DEVIL IF YOU DON'T AGREE TO IT. THE PEOPLE ON THE RIGHT SIDE OF THE ROOM WHO DON'T WANT IT TO HAPPEN ARE GOING TO THINK YOU'RE THE DEVIL IF YOU DO LET IT HAPPEN. WHEN I WAS A YOUNG ARMY OFFICER A MILLION YEARS AGO, WE HAD OLD EQUIPMENT AND WE HAD THESE FUNNY, ANGRY SERIES RADIOS, AND HE HAD A SWITCH. HE HAD TO TURN IT ON TO TALK AND HE HAD TO TURN IT ON TO RECEIVE, AND IF IT WAS ON RECEIVE, HE COULDN'T TALK, AND IF IT WAS ON TALK, YOU COULDN'T RECEIVE. IF YOU HAVE A REALLY CONTENTIOUS PUBLIC HEARING WHERE EVERYBODY'S DRAWING LINES IN THE S AND THEY'VE ALL STAKED OUT THEIR WILLIAM TRAVIS PART IN THE SAND, THEY'RE NOT NECESSARILY LISTENING, AND WHEN YOU'RE MAKING THE VOTE UP HERE, EXPLAINING YOURSELF FREQUENTLY WILL GET YOU IN MORE TROUBLE THAN IT WILL GET YOU OUT OF. [00:35:02] EXPLAIN IT TOMORROW AT THE GROCERY STORE, THE DRY CLEANERS, THE BOWLING ALLEY, BUT NOT IN A LIVE MICROPHONE AT THE COUNCIL MEETING, BECAUSE THAT'S WHERE IT COUNTS, AND WHEN YOU START EXPLAINING, YOU TEND TO TAKE AWAY THAT DELICIOUS HAZE OF COVERAGE THAT THE ISSUE OF FACT DOCTRINE GIVES YOU. SO THAT'S SOMETHING I WANT YOU ALL TO BE AWARE OF. IT'S IMPORTANT TO YOU PERSONALLY, BECAUSE, AS I SAID, ZONING IS A POLICE POWER ACTION. THAT MEANS WHETHER WE LIKE IT OR NOT, IT FALLS UNDER THE CONTROL AND THE AMBIENT OF THE KLU KLUX KLAN CONTROL ACT OF 1869, WHICH WE CALL 42 USC 1983. THE FEDERAL CIVIL RIGHTS ACT, WHICH SAYS ANY PERSON WHO ACTING UNDER STATE LAW WHO DEPRIVES ANOTHER OF A CONSTITUTIONALLY PROTECTED RIGHT OR PROPERTY INTERESTS SHALL BE ANSWERABLE THEREFORE IN MONEY DAMAGES. THIS IS A STATE ENABLING ACT CHAPTER 211. YOU ARE ACTING UNDER STATE LAW. YOU ARE SUBJECT TO REVIEW BY A FEDERAL COURT. IF SOMEONE BELIEVES THEY CAN PROVE THAT WHAT YOU DID WAS A VIOLATION OF THEIR RIGHTS BEYOND YOUR AUTHORITY. SO IT'S TERRIBLY IMPORTANT THAT YOU STAY CONNECTED TO WHAT YOU ARE ACTUALLY DOING WHEN YOU REVIEW ZONING CASES. ALAN, CAN I ASK A QUESTION? YES, MA'AM. YOU PROBABLY NEED A DRINK OF WATER ANYWAY. [CHUCKLING] SO IF THEY HADN'T OPENED THEIR MOUTH ON THAT CASE AND KIND OF GAVE THE ARGUMENT FOR THE OTHER SIDE AND STILL VOTED NO, THEY WOULD HAVE BEEN OK. THEY'D HAVE BEEN FINE. THEY'D HAVE BEEN BULLETPROOF BECAUSE THE COURT WOULD HAD TO HAVE ASSUMED THAT SOMEBODY IN THAT MULTI-HOUR HEARING SAID SOMETHING THAT JUSTIFIED THE COUNCIL'S VOTE. NOW, PLEASE DON'T TAKE THIS AS ME TELLING YOU NOT TO ASK QUESTIONS THAT YOUR JOB IS TO ASK QUESTIONS TO TRY AND ELICIT INFORMATION, BUT WHEN YOU'RE FORMULATING YOUR FINAL DECISION, UNLESS YOU ARE ABSOLUTELY ROCK SOLID, CERTAIN, YOU KNOW WHAT YOU'RE DOING, DON'T VENTURE OUT INTO A COMPLICATED EXPLANATION OF WHY YOU'RE GOING TO VOTE A CERTAIN WAY. IT'S ALWAYS BEST TO SAY, I HAVE LISTENED CAREFULLY AND ATTENTIVELY TO EVERYONE WHO SPOKE. I HAVE READ THE STAFF MATERIALS. I REALLY DEEPLY APPRECIATE EVERYBODY'S INVOLVEMENT AND COMMITMENT OF THEIR TIME AND ENERGY TO BE HERE BUT BASED ON MY UNDERSTANDING OF THE SITUATION, I JUST FEEL COMPELLED TO MOVE YES OR NO, AND THAT'S IT. DON'T CHIP AWAY AT WHAT YOU'VE GOT. WHAT YOU WANT TO BE IS A GLASS SPHERE THAT NOBODY CAN GET TO ONCE IT'S OVER, BECAUSE THIS KIND OF ROLE AS AN ELECTED OFFICIAL DOESN'T MAKE YOU FRIENDS WHEN YOU GET INTO COMPLEX LAND USE ISSUES , BUT YOU'VE GOT TO UNDERSTAND, THE RULES ARE SCARY. ONE OF THE PROVISIONS IN CHAPTER 211, WHICH ALWAYS, I GUESS, SURPRISES SOME FOLKS? THE FIRST TIME THEY EVER LEARNED ABOUT IT IS THERE CANNOT BE A REFERENDUM ON A ZONING CASE. A CITY CAN HOLD A REFERENDUM ON WHETHER OR NOT TO HAVE ZONING AS AN ORDINANCE, WHETHER WE HAVE ZONING IN THE CITY OR NOT. YOU CANNOT HAVE A VOTE ON AN INDIVIDUAL CASE BECAUSE THE COURTS HAVE SAID IT'S A BALANCING OF PUBLIC PURPOSE WITH PRIVATE PROPERTY INTERESTS AND THE SAFEGUARDS OF REQUIRING PUBLIC HEARINGS AND THE OPPORTUNITY TO HAVE INFORMATION PRESENTED IN A PUBLIC SETTING TO COMPLY WITH THE OPEN MEETINGS RULES TRANSCENDS ANY RIGHT FOR PEOPLE TO VOTE ON SOMETHING. SO YOU ALWAYS HAVE TO UNDERSTAND YOU'RE DEALING WITH PRIVATE PROPERTY INTERESTS AND THOSE HAVE DOLLAR FIGURES ATTACHED TO THEM. NOW, I WANT TO JUMP--I KNOW I'VE USED UP A BUNCH OF TIME AND I GOT TO ASK ONE THING. YES, SIR. AFTER THE COUNCIL MEETING, THE GUY GOES OUT, EVERYTHING'S FINE, BUT HE HAS A DISCUSSION WITH HIS FRIENDS. IS THAT ADMISSIBLE? IT IS NOT ADMISSIBLE. THE ONLY THING THAT WILL GET US IN TROUBLE IN FEDERAL COURT IS WHAT YOU SAY WHEN YOU'RE UP HERE PERFORMING YOUR DUTIES. THIS IS WHAT I CALL THE POWER RANGER SPEECH. I KNOW YOU'VE HEARD THIS BEFORE, BUT LET'S REMEMBER IT. YOU GOT ELECTED TO AN OFFICE. IT'S AN IMPORTANT OFFICE. YOU PERFORM AN ESSENTIAL FUNCTION, BUT INDIVIDUALLY, OTHER THAN THE MAYOR, YOU HAVE NO AUTHORITY TO DO ANYTHING OR TO SPEAK FOR ANY PURPOSE OR ANY DECISION. THE MAYOR HAS SOME SPECIAL AUTHORITY FOR MARTIAL LAW AND CRAP LIKE THAT'S UNIQUE TO THAT POSITION, BUT YOU ALL ARE JUST SPEAR CARRIERS. [00:40:08] UNTIL YOU WALK IN HERE. ON THE DAY WHEN A MEETING HAS BEEN CALLED AND PROPERLY NOTICED AND THE MAYOR WRAPS THE GAVEL DOWN AND IT'S THE POWER RANGER DEAL WHERE THE TEENAGERS RUN TOGETHER AND TOUCH THE RING, BOOM! THERE'S A HUGE EXPLOSION AND ALL OF YOU ARE IN TIGHT LATEX SUITS AND YOU GET TO MAKE DECISIONS AND SPEAK FOR THE GOVERNMENT, BUT UNTIL THAT HAPPENS, YOU DON'T HAVE AUTHORITY. THAT'S WHY IF YOU GO OUT LATER AND YOU GO FOR COFFEE LATER THAT NIGHT AND SAY, GOD, I THOUGHT THIS WAS THE DUMBEST THING THAT EVER HAPPENED. I DON'T KNOW WHAT'S GOING ON. YOUR OPINION IS JUST CONVERSATION. YOU WEREN'T ACTING IN YOUR GOVERNMENTAL ROLE. YOU'RE ACTING IN YOUR GOVERNMENTAL ROLE WHEN YOU'RE IN HERE TALKING IN FRONT OF THE MICROPHONE. THAT'S WHY IT'S SO CRITICAL. NOW, PROCEDURAL STUFF, REAL QUICK. IT TAKES ONLY A FEW SECONDS HERE. YOU UNDERSTAND, BECAUSE WE'RE HOME RULE CITY, WE ARE REQUIRED TO HAVE A PLANNING AND ZONING COMMISSION. IF WE WERE GENERAL RULE CITY, WE WOULDN'T HAVE TO, BUT WE HAVE TO HAVE A PLANNING AND ZONING COMMISSION IF WE ARE GOING TO MAKE A CHANGE TO OUR ORDINANCE THAT WILL AFFECT INDIVIDUAL PROPERTIES OR PROPERTY RIGHTS, THEN THE CASE HAS TO BE SUBMITTED TO THE PLANNING AND ZONING COMMISSION FOR THEIR CONSIDERATION. THEY ARE BOUND BY THE OPEN MEETINGS ACT, JUST AS YOU ARE. THERE HAS TO BE AN AGENDA POSTED 72 HOURS IN ADVANCE. IT HAS TO INDICATE THE LOCATION OF THE MEETING. IT HAS TO INDICATE THE TOPICS THAT ARE GOING TO BE DISCUSSED, AND YOU YOU GO THROUGH THE HEARING AT THE PLANNING AND ZONING COMMISSION MEETING. THE COMMISSION CAN IMPOSE TIME LIMITS, JUST LIKE THE COUNCIL CAN ON PRESENTATIONS TO SOME OF YOU, YOU'LL THINK, WELL, IS THAT ALWAYS FUN? MAYBE I WANT TO HEAR MORE. NO, NO, YOU REALLY DON'T. OVER TIME, YOU'LL LEARN THIS. SOME OF YOU KNOW, A BILLION YEARS AGO, WHEN I HAD ALL OF MY HAIR, I WAS A YOUNG LAWYER AND I GOT APPOINTED TO THE FORT WORTH PLANNING COMMISSION, AND I DID THAT FOR SIX YEARS AND WAS THE CHAIRMAN THE LAST TWO YEARS ON IT AND WE WOULD START MEETING AT 930 ON WEDNESDAY MORNING AND WE GENERALLY FINISHED AT 5:15 IN THE AFTERNOON. ENDLESS CASES COMING FORTH HAD A LOT OF STUFF GOING ON AND PEOPLE WILL TALK AND TALK AND TALK AND THEY WON'T FOCUS THEIR THOUGHTS, AND THE COURTS HAVE COME TO RECOGNIZE IT'S IMPORTANT FOR YOU TO BE ABLE TO GET THE PUBLIC BUSINESS DONE, AND SO THE COURTS SAY IT'S REASONABLE FOR GOVERNMENTAL ENTITIES TO SET TIME LIMITS ON INDIVIDUAL PRESENTATIONS TO ENSURE THAT EVERYBODY CAN GET HEARD AND YOU CAN GET THE BUSINESS DONE WITHIN A REASONABLE WINDOW OF TIME. YOU CAN'T GIVE THEM A PERIOD SO SHORT THAT THEY CAN'T MAKE A MEANINGFUL COMMENT, BUT YOU DON'T HAVE TO GIVE THEM ALL THE TIME IN THE WORLD. IN THE CASES WHERE PEOPLE HAVE LITIGATED THIS, THE TIME FRAMES RUN FROM 3 MINUTES TO 7 MINUTES ARE CONSIDERED TO BE REASONABLE, BUT YOU NEED TO PICK A TIME AND APPLY THAT RULE TO EVERYONE. WHEN A CASE COMES FORWARD, THE APPLICANT COMES FIRST AND PRESENTS THEIR CASE. NOW, AS A GENERAL RULE, CITIES DO NOT APPLY THE CLOCK TO THE APPLICANT. THE REASON IS THE APPLICANT HAS AN OBLIGATION AND DUTY TO FULLY OPEN THEIR CASE. THEY HAVE TO EXPLAIN THE WHOLE PROJECT BECAUSE IF THEY DON'T, YOU WON'T UNDERSTAND WHAT THEY'RE DEALING WITH AND THE AUDIENCE WHO'S PRESENT WON'T KNOW WHAT'S BEING PRESENTED OR HOW TO ACT OR WHAT QUESTIONS TO ASK. SO THEY ARE GIVEN THE OPPORTUNITY TO FULLY PRESENT THEIR CASE. AFTER THAT, SOME CITIES ALLOW THOSE WHO ARE IN FAVOR TO SPEAK AND THEN OPPOSE TO SPEAK. SOME PEOPLE JUST TAKE THEM IN WHATEVER ORDER THEY COME, BUT YOU THEN GIVE EVERYBODY WHO WANTS TO BE HEARD AN OPPORTUNITY TO APPEAR BEFORE THE P&Z, AND AT THE END OF IT, WHEN EVERYONE'S SPOKEN, THEN YOU GIVE THE APPLICANT AN OPPORTUNITY FOR A BRIEF, NOT UNLIMITED BRIEF REBUTTAL. WHY ARE THEY A MORE EQUAL PIG? BECAUSE THEY ARE THE ONLY ONE IN THE ROOM WITH A DUTY OR BURDEN OF JUSTIFYING A CHANGE IN THE STATUS QUO. THE STATUS QUO IS WHAT THE CURRENT ZONING IS. THAT'S IT. IT'S PRESUMED VALID. THE APPLICANT SAYS IT NEEDS TO BE CHANGED. HE PITCHES HIS CASE. EVERYBODY SPEAKS. HE SPEAKS LAST TO ANSWER ANY QUESTIONS THAT HE CAN. IT'S LIKE IN A CIVIL CASE, THE PLAINTIFF GETS TO DO THE FINAL REBUTTAL BECAUSE THEY ARE THE ONES IN THE ROOM WHO HAVE A BURDEN TO PROVE SOMETHING NO ONE ELSE DOES. WHEN THE PLANNING COMMISSION IS FINISHED, THEY THEN FORWARD A RECOMMENDATION AND REPORT TO THE CITY COUNCIL. NOW YOU KNOW THE RULES. WE SEND A LETTER NOTICE AT LEAST TEN DAYS IN ADVANCE OF THE PUBLIC HEARING TO PROPERTY OWNERS WITHIN 200 FEET. IT'S KIND OF A STANDARD RULE. [00:45:01] THE CITY COUNCIL PUBLISHES A NOTICE IN A NEWSPAPER OF GENERAL CIRCULATION AT LEAST 15 DAYS OUT. NOW, THERE ARE SOME PROVISIONS TO DO IT BY POSTING ON WEBSITES AND EMAIL, BUT NONETHELESS, WE GIVE NOTICE OF A PUBLIC HEARING. WE RECEIVE THE REPORT FROM THE PLANNING COMMISSION AND THEN CONDUCT THE SAME KIND OF PUBLIC HEARING UNDER THE SAME OPEN MEETINGS ACT RULES, AND AT THE END OF THAT HEARING, THE COUNCIL WILL THEN VOTE TO MAKE A DECISION ON WHETHER OR NOT TO APPROVE A ZONING CHANGE , AND ANY DECISION YOU MAKE IS PRESUMED VALID UNLESS IT CAN BE SHOWN TO BE ARBITRARY OR CAPRICIOUS OR TO VIOLATE ONE OF THOSE NO NOS THAT I LISTED THAT THEY WOULD HAVE TO CHALLENGE IN COURT. SO IT'S A PRETTY STRAIGHTFORWARD PROCESS TO GET YOU WHERE YOU NEED TO BE, BUT YOU NEED TO REMEMBER IT'S IMPORTANT TO ALLOW ANYONE WHO BELIEVES THEY ARE AFFECTED THE OPPORTUNITY TO BE HEARD AND TO PRESENT THEIR POSITION, AND THE ONE THING I WILL ENCOURAGE ALL OF YOU TO DO, I THINK YOU ARE USUALLY VERY GOOD ABOUT THIS, BUT I'M JUST GOING TO SAY IT FOR THE RECORD IN ALL SETTINGS, WHETHER YOU'RE AT THE GROCERY STORE, WHETHER YOU'RE AT THE BARBERSHOP, WHEREVER YOU ARE, NEVER TAKE THE POSITION THAT YOU'VE ALREADY DECIDED THE ANSWER TO A CASE YOUR PARTY LINE NEEDS TO BE. I'M AN ELECTED OFFICIAL. I HAVE SWORN AN OATH TO FOLLOW THE LAWS OF THE STATE. AND THAT MEANS I WILL ATTEND THE MEETINGS AND THE PUBLIC HEARINGS. I WILL HEAR WHAT EVERYONE HAS TO SAY. SO THEY'VE HAD AN OPPORTUNITY TO PRESENT THEIR PITCH TO ME, AND I WILL NOT MAKE A FINAL DECISION UNTIL THAT'S HAPPENED. NOW IT'S OKAY. IT'S NOT A HARM THING TO SAY. I'M NOT PREDISPOSED TO LOOK HAPPILY ON ANY MORE INDUSTRIAL DOWN IN THIS AREA. I'M NOT SURE I UNDERSTAND WHY WE WOULD DO THAT, BUT THEN YOU FOLLOW UP WITH BUT I HAVEN'T MADE A FINAL DECISION. I HAVEN'T HEARD EVERYBODY'S FULL INFORMATION, BUT GOING THROUGH THE DOOR, I'M JUST NOT REALLY SURE THAT SOUNDS LIKE A SMART THING TO ME. THAT'S NOT A PROBLEM. JUST DON'T LEAVE THE IMPRESSION YOU HAVE STOPPED LISTENING AND YOU'VE CUT OFF PUBLIC INPUT. NOW LET'S TALK ABOUT JUST BEFORE I HIT THE BRIEFLY ON SUBDIVISION, THE REGULATORY TAKING DANGERS. YOU HAVE ENORMOUS AUTHORITY IN ZONING. YOU CAN ADOPT ZONING REGULATIONS, AS I SAID, FOR ALL THOSE REASONS, AND THEY ARE APPLICABLE WITHIN THE CITY AND PROPERTY OWNERS HAVE TO COMPLY WITH THEM TO MAKE IT TO GET A BUILDING PERMIT AND MOVE FORWARD. ALTHOUGH YOU HAVE THE RIGHT TO REGULATE, YOU NEED TO RECOGNIZE SOMETIMES REGULATION CAN GO SO FAR IT BECOMES A TAKING AND THE FEDERAL COURTS ARE WRITING THE HYMNAL ON THAT WE ALL HAVE TO PAY ATTENTION TO. IT STARTED IN ABOUT 1970 IN CALIFORNIA WHEN A GENTLEMAN NAMED MR. [INAUDIBLE] DECIDED TO BUY FIVE ACRES OF LAND IN THE SAN FRANCISCO BAY AREA TO BUILD APARTMENTS ON. IT WAS IN THE LITTLE TOWN OF TIBURON, WHICH IS RIGHT THERE ON THE BAY AND THE CITY REZONED IT; IT WAS ZONED MULTIFAMILY. THE CITY REZONED IT TO SINGLE FAMILY. INSTEAD OF GETTING TO BUILD 50 APARTMENT UNITS, HE COULD BUILD FIVE HOMES. HE WAS VERY UPSET AND SUED THEM, BUT THE FEDERAL COURT SAID, DOESN'T WORK. ZONING IMPLEMENTS A COMPELLING STATE INTEREST TO PRESERVE LAND DEVELOPMENT VALUES AND PROTECTS THE PUBLIC HEALTH, SAFETY AND WELFARE, AND IT SUPPORTS COMPELLING STATE INTEREST AND IT DID NOT DEPRIVE THE PROPERTY OWNER OF ALL ECONOMICALLY VIABLE USE OF THE LAND COULD STILL USE IT. SO THAT TELLS US WHAT WE HAVE TO DO ON BASIC REGULATIONS, BUT THEN WE GET TO THINGS LIKE THE NOLAN CASE . NOLAN VERSUS CALIFORNIA COASTAL CORPORATION, YOU MAY REMEMBER ON THE PACIFIC COAST HIGHWAY, THE FAMOUS HIGHWAY ONE, THAT THEY THEY SHOOT ALL THE COMMERCIALS ON WHERE PEOPLE DRIVE THROUGH, ALL YOUNG AND BEAUTIFUL, AND THEY'RE IN SPORTS CARS AND THEY'RE WEAVING THEIR WAY UP THE PASSES, LOOKING OUT OVER THE OCEAN. IT'S A GREAT SETTING AND IT'S A GREAT ADVERTISING VEHICLE IN ORDER TO PRESERVE THAT FOR FUTURE GENERATIONS, AND THE COFFERS OF THE STATE OF CALIFORNIA, CALIFORNIA ADOPTED A COASTAL HIGHWAY MAINTENANCE ACT THAT CREATES A COASTAL CORPORATION, AND IT IMPOSES REGULATIONS ON THE WATER SIDE OF THAT HIGHWAY TO ENSURE THAT THOSE VIEWS AND THOSE VISTAS ARE THERE AND EVERYTHING'S WONDERFUL. MR. NOLAN OWNED A SMALL BEACH BUNGALOW THERE THAT HIS FAMILY HAD HAD FOR YEARS ON THE OCEAN SIDE, AND HE WOKE UP ONE MORNING AND SAID, I'M ABOUT TO RETIRE. I WANT TO TEAR THE BUNGALOW DOWN AND BUILD A NICE HOUSE HERE, AND HE APPLIED TO THE CORPORATION FOR A PERMIT TO GO FORWARD, AND THEY SAID NO, AND THE REASON THEY SAID NO IS ON EITHER SIDE OF HIS PROPERTY. THERE WAS A PUBLIC BEACH DOWN THERE ON THE WATER AND THEY SAID, WE WILL ONLY GIVE YOU A PERMIT IF YOU WILL AGREE ON YOUR BEACHFRONT CALIFORNIA YOU OWN TO THE [00:50:09] WATER, UNLIKE THE STATE OF TEXAS. YOU NEED TO DEDICATE TO US A PEDESTRIAN EASEMENT CONNECTING THE TWO BEACHES DOWN THERE SO THAT PEOPLE CAN ENJOY MORE BEACH OPPORTUNITY. WELL, WHAT I DIDN'T TELL YOU IS MR. NOLAN IS A RETIRED LAWYER WHO WAS CANTANKEROUS BY NATURE, AND HE SAID, I'M NOT BUYING THAT. THAT JUST DOESN'T MAKE SENSE WHY I WOULD NEED TO DO THAT, AND HE TOOK HIM TO FEDERAL COURT AND IT WORKED ITS WAY UP TO THE SUPREME COURT, AND THE SUPREME SAID, YOU KNOW, ALL THIS SOUNDS GREAT, BUT THERE'S A PROBLEM WITH YOUR REGULATIONS CALIFORNIA. YOU'RE MISSING WHAT'S CALLED ONLY A LAWYER WOULD COME UP WITH THIS PHRASE AN ESSENTIAL NEXUS, AND FOR THOSE OF US WHO ARE SORT OF SLOW, LIKE ME, THAT MEANS A LOGICAL CONNECTION BETWEEN THE REGULATION YOU'RE ENFORCING AND WHAT YOU'RE ASKING THIS POOR DEVIL TO DO. THEY SAID THE REGULATION UNDER WHICH YOU'RE OPERATING IS TO PROTECT THE VIEW FROM THE HIGHWAY TO THE WATERS BELOW , BUT YOU'RE TELLING HIM HE'S UP HERE ON THIS BLUFF AND HIS BLUFF IS LIKE 50 FEET UP AND IT'S 300 YARDS FROM THE WATER. YOU'RE TELLING HIM HE'S GOT TO GIVE A PEDESTRIAN EASEMENT DOWN THERE AT WATER LEVEL SO YOU CAN PROTECT THE CAR VIEW UP HERE. THERE'S NO LOGICAL CONNECTION BETWEEN WHAT YOU'RE REQUIRING HIM TO DO AND THE AUTHORITY UNDER WHICH YOU'RE OPERATING. THIS IS CALLED BLACKMAIL, AND SO THEY SIDED FOR MR. NOLAN AND SAID GOVERNMENTS DID ATTEMPT TO REGULATE TOO MUCH, ARE GOING TO BE IN TROUBLE AND YOU BETTER PAY ATTENTION. THE OTHER ISSUE THAT CAME UP WAS THE LUCAS CASE THAT TALKED ABOUT HOW, YOU KNOW, YOU'VE GONE WAY TOO FAR. THE LUCAS FAMILY BOUGHT TWO ONE ACRE LOTS ON A BARRIER ISLAND OFF SOUTH CAROLINA. CAROLINA HAS A COASTAL COMMISSION, NOT A CORPORATION, TO REGULATE DEVELOPMENT ON BARRIER ISLANDS BECAUSE HURRICANES COME THROUGH AND DO HORRIBLE THINGS OVER THERE, AND SO THERE'S SOME NEED TO PROTECT WHAT'S GOING ON. EVERYBODY AGREED THAT'S A LEGITIMATE PUBLIC PURPOSE. THEY HAD ONE OF THEIR HORRIBLE STORMS AND EVERYBODY RETHOUGHT THE REGULATIONS, AND SO THEY CAME IN AND ADOPTED SOME NEW LAND USE REGULATIONS AND THEY SAID, YOU CAN'T BUILD ALMOST BARRIER ISLANDS ANYMORE. AND MR. LUCAS SAID, I PAID $1 MILLION FOR TWO ONE ACRE LOTS HERE. WHAT DO YOU MEAN? I CAN'T USE THEM FOR ANYTHING. THEY SAID, OH, YOU CAN GO OUT THERE ANYTIME YOU WANT TO ON THE WEEKENDS AND PITCH A TENT AND CAMP, BUT YOU CAN'T BUILD ANY STRUCTURES OUT THERE, AND SO THAT MADE ITS WAY INTO THE FEDERAL JUDICIARY AND UP TO THE SUPREMES, AND THEY SAID, LOOK, THE STATE CLEARLY HAS A COMPELLING PUBLIC HEALTH, SAFETY AND WELFARE INTEREST TO STOP DEVELOPMENT OF THE BARRIER ISLANDS BECAUSE IT'S DESTROYING THE BARRIER ISLANDS AND THEY'RE NOT PROTECTING THE COAST , BUT IF YOU TAKE ALL ECONOMICALLY VIABLE USE OF THE PROPERTY, THAT'S INVERSE CONDEMNATION. YOU'VE TAKEN THE PROPERTY FOR PUBLIC PURPOSES. YOU CAN'T DO THAT. SO THEY RULED FOR MR. LUCAS, AND WE LEARNED IF YOUR GOVERNMENT REGULATION GOES SO FAR AS TO TAKE ALL REASONABLE USE OF THE PROPERTY, IT'S A TAKING, YOU CAN REGULATE, BUT YOU'RE GOING TO PAY FOR IT. THE LAST CASE OF NOTE IS THE DOLAN CASE, AND WE HAVE A COMPANION HERE CALLED STAFFORD, BUT THE DOLAN CASE WAS THE FUN ONE THE SUPREMES DEALT WITH. DOLAN VERSUS TIGARD WAS A SITUATION WHERE THE DOLAN FAMILY OWNED A HARDWARE STORE AND MOSTLY SOLD PLUMBING PRODUCTS, AND IT WAS A LONG STREET IN THE VILLAGE OF THE GUARD, AND THEY WANTED TO EXPAND, JUST ADD SOME MORE SQUARE FOOTAGE, AND THEY WENT IN TO GET THE PERMIT AND THE CITY DO ITS DEVELOPMENT BOARD SAID, NO, WE'LL ONLY GIVE YOU THE PERMIT IF YOU HELP INSTALL A BIKE WAY, A BIKE PATH AROUND THE FRONT OF YOUR PROPERTY AND GIVE US SOME MORE AREAS FOR STORMWATER MOVEMENT ALONG THE REAR OF YOUR PROPERTY. AND THEY SAID, WE'RE NOT SUBDIVIDING, WE'RE NOT ZONING, WE'RE JUST GETTING A BUILDING PERMIT TO ADD A COUPLE OF THOUSAND MORE SQUARE FEET. WE'VE GOT THIS HUGE TRACT. WELL, THE TOWN WOULD NOT AGREE TO IT. IT MADE ITS WAY TO THE SUPREME COURT. THIS IS THE ONE WHERE WE TALK ABOUT WHERE WE TALK ABOUT PROPORTIONAL RESPONSIBILITY. IN THE DOLAN CASE, THE SUPREME COURT CAME BACK AND SAID, LOOK, YOU CAN ONLY REQUIRE A DEVELOPER TO BUILD, DEDICATE, CONSTRUCT OR FUND AN AMENITY, A FACILITY, A THING THAT IS ROUGHLY PROPORTIONAL TO THE DEMAND FOR THAT THING CREATED BY THAT DEVELOPMENT, AND YOU HAVE TO HAVE AN INDIVIDUALIZED, FACT BASED STUDY ON EACH PROPOSED PROJECT TO DETERMINE WHAT THAT IS. [00:55:10] YOU CAN'T JUST MAKE THIS CRAP UP, AND THE LAWYER FOR THE CITY SAID, BUT IT SERVES A PUBLIC PURPOSE, AND ONE OF THE SUPREME COURT JUSTICES SAID, YOU MEAN SOMEBODY'S GOING TO BUY A TOILET IN DOLANS AND WALK OUT AND GET ON A BICYCLE AND RIDE IT AWAY? YOU'RE MAKING HIM GIVE A BICYCLE TRAIL THAT YOU HAVEN'T SHOWN ANY LOGICAL REASON FOR THIS. SO WE LEARN SOME NEW TAKINGS LAW. ANY TIME YOU IMPOSE A REQUIREMENT ON A DEVELOPER, YOU HAVE TO FAIRLY AND INTELLIGENTLY BE ABLE TO EXPLAIN WHY THAT DEVELOPMENT IS GENERATING THE COSTS OR THE CONCERNS THAT JUSTIFY THE IMPOSITION OF THIS REQUIREMENT. SO THAT'S WHY WE ALL LOOK VERY CAREFULLY WHEN WE BRING REGULATIONS TO YOU, TO BE SURE AT STAFF LEVEL THAT WE KNOW THERE IS JUSTIFICATION TO DO THIS. IT GOT PICKED UP IN TEXAS LAW, THREE SESSIONS BACK NOW IT'S FOUND IN CHAPTER TWO 12.904 OF THE LOCAL GOVERNMENT CODE AND IS A ROUGH PROPORTIONALITY REQUIREMENT IN TEXAS. WE LIKE TO CALL IT THE ENGINEER CIVIL ENGINEERS FULL EMPLOYMENT ACT BECAUSE THEY HAVE TO CERTIFY THAT A PARTICULAR IMPROVEMENT, A ROADWAY EXPANSION, A WATERLINE INCREASE, SOMETHING OF THAT NATURE IS NECESSARY ON THAT PROJECT BEFORE WE CAN REQUIRE IT, AND IF WE REQUIRE MORE THAN THAT, THEN WE HAVE TO PAY THE OVERSIZING CHARGES ON THAT. NOW I'VE BEAT YOU TO DEATH ON ZONING. I'VE GOT WAY TOO LONG. I WANT TO COVER VERY BRILLIANTLY THE INTRO TO SUBDIVISION. THAT'S ANOTHER DAY. WE'LL TALK ABOUT ALL THE NUANCES OF SUBDIVISION, BUT I WANT YOU TO UNDERSTAND THE DIFFERENCE. LAND USE REGULATION IS CHAPTER 211. IT IS A SUBJECTIVE DISCRETIONARY LEGISLATIVE PROCESS. YOU HAVE ENORMOUS FREEDOM TO MAKE DECISIONS ABOUT WHAT YOU THINK IS IN THE BEST INTEREST OF THE CITY. THE NEXT TOPIC FOR FUTURE DISCUSSION IS SUBDIVISION REGULATION, WHICH WE'RE GOING TO TALK ABOUT TODAY, BUT IS LAND DESIGN. IT DOES NOT DEAL WITH USE PER SE. IT DEALS WITH HOW YOU LAY OUT LOTS, BLOCKS, ALLEYS, EASEMENTS, HOW YOU INSTALL THE PUBLIC INFRASTRUCTURE, WHAT KIND OF PUBLIC INFRASTRUCTURE IS INSTALLED. IN 1964, THE TEXAS SUPREME COURT TOLD US IN SAN ANTONIO VERSUS MCCORMICK THAT DEVELOPMENT IS A PRIVILEGE, NOT A RIGHT. IN ORDER TO HAVE THE RIGHT TO DEVELOP, YOU HAVE TO BE ABLE TO SHOW THAT YOU'VE INSTALLED THE REQUISITE INFRASTRUCTURE AND COMPLIED WITH APPROPRIATE REGULATIONS TO ENSURE IT WOULD BE SAFELY AND FUNCTIONALLY DEVELOPED. SO CITIES ARE GIVEN THE AUTHORITY TO ADOPT SUBDIVISION REGULATION ORDINANCES. OUR PLANNING AND ZONING COMMISSION HOLDS THE INITIAL HEARING, DRAFT REGULATIONS COME FORWARD, CITY COUNCIL ADOPTS IT, AND WHAT THAT SAYS IS ANYONE WHO DIVIDES ATTRACTIVE LAND INTO TWO OR MORE PARTS FOR PURPOSES OF RESALE AND OR BUILDING DEVELOPMENT OR THE LAYING OUT OF LOTS BLOCKS, ALLEYS, EASEMENTS, WHETHER YOU DO IT BY DEED, BY CONTRACT, BY LEASE, IT'S SUBDIVISION. YOU HAVE TO COMPLY WITH THE REGULATION. WE'RE NOT GOING TO GO INTO ALL THAT TODAY. IT'S TOO LONG, BUT THE CRITICAL THING IS IN CHAPTER 212, UNLIKE CHAPTER 211, THERE IS A SPECIFIC PROVISION THAT SAYS IF A DEVELOPER OR BUILDER SUBMITS A PLAT THAT IS COMPLIANT WITH THE CITY'S SUBDIVISION REGULATION ORDINANCE AS IT CURRENTLY EXISTS, THE BOARD RESPONSIBLE FOR APPROVAL SHALL APPROVE THE PLAT. SUBDIVISION REGULATION IS OBJECTIVE. IT IS NOT DISCRETIONARY IN ANY MANNER. YOU'RE BACK IN THIRD GRADE AND THE TEACHER IS GRADING YOUR PAPER WITH A TEMPLATE AND THEY LAY IT OVER THE PAPER. AND IF YOU'VE GOT AN X IN THE RIGHT BOX, YOU GET CREDIT. IF A DEVELOPER COMES IN AND SUBMITS A PLAT THAT IS FULLY COMPLIANT, YOU HAVE A MINISTERIAL DUTY TO APPROVE IT , AND YOU KNOW THE RULES. YOU HAVE TO ACT ON IT WITHIN 30 DAYS OF ITS FINAL SUBMISSION OR IT IS APPROVED BY OPERATION OF LAW. YOU CAN APPROVE IT, YOU CAN DENY IT, OR YOU CAN CONDITIONALLY APPROVE IT IF YOU DENY IT OR CONDITIONALLY APPROVE IT. YOU HAVE TO SEND THE DEVELOPER A WRITTEN EXPLANATION OF THE BASIS OF THE CONDITIONAL APPROVAL OR THE DENIAL SIDING TO SPECIFIC PROVISIONS OF YOUR [01:00:01] ORDINANCE. SO IT'S A VERY BURDENSOME THING. DEVELOPERS HIRE REGISTERED SURVEYORS AND PROFESSIONAL CIVIL ENGINEERING CONTRACTORS TO DESIGN THEIR PLATS. THEY ARE USUALLY COMPLIANT. THE ONLY TIME WE HAVE FLEXIBILITY IS WHEN THEY NEED VARIANCES. IF THEY ARE NOT FULLY COMPLIANT WITH OUR REGULATIONS, THEN WE HAVE THE AUTHORITY TO DO SOMETHING WITH THEM, BUT IF THEY'RE FULLY COMPLIANT, WHICH TONY IS GOING TO TALK ABOUT IN A LITTLE BIT WHEN WE TALK ABOUT OUR SUBDIVISION ORDINANCE ISSUE TONIGHT, IT'S THE REASON WE DO NOT ENCOURAGE THEM TO COME TO THE CITY COUNCIL. YOU NEED TO BE USING YOUR TIME AND EFFORT WHERE YOUR EXPERTISE AND KNOWLEDGE OF THE COMMUNITY IS IMPORTANT. WE HAVE NO REAL FLEXIBILITY ON SUBDIVISION PLANNING. IT'S ALMOST AN ENGINEERING EXERCISE NOW IF THEIR COMPLIANT WE'RE THERE. YOUR ROLE IN THE SUBDIVISION PROCESS IS TO LOOK AT CHANGES OR AMENDMENTS TO THE SUBDIVISION REGULATION ORDINANCE TO ADDRESS NEWLY EMERGING PROBLEMS OR ISSUES WE HAD NOT PREVIOUSLY ANTICIPATED. BUT ONCE IT'S IN PLACE, IF A DEVELOPER COMES IN AND SUBMITS A PLAT, WE'RE THERE. SOMETIMES AUDIENCE MEMBERS WILL STAND UP IN A PARTICULAR PLATING CASE AND GO, WELL, THIS IS A HORRIBLE THING. CHANGE THE RULES. NO. THE TEXAS LEGISLATURE GAVE US THE GIFT OF CHAPTER 245, WHICH WE REFER TO AS THE VESTED RIGHTS PROVISION IN THE CODE, AND IT SAYS ONCE A DEVELOPER PROPERTY OWNER PUTS THE CITY ON FULL AND FAIR NOTICE OF A DEVELOPMENT PROJECT BY SUBMITTING ANY FORM OF APPLICATION OR PERMIT, THEY VEST THEIR RIGHTS TO PROCEED UNDER THE REGULATION AS IT EXISTED ON THE DAY THEY FILED THE SUBMITTAL. WE CAN'T FIX IT FOR THAT DEVELOPMENT. WE CAN FIX IT FOR FUTURE DEVELOPMENTS IF WE SEE A PROBLEM WITH THE ORDINANCE, BUT ONCE THEY'VE MADE A SUBMITTAL, WE'RE THERE. I KNOW I'VE TAKEN MORE TIME AND WE'VE GOT OTHER PEOPLE TO TALK. I THINK I WILL CLOSE OUT RIGHT NOW AND WE MIGHT WANT TO TALK IN MORE DETAIL ABOUT SUBDIVISION REGULATIONS LATER. DO YOU HAVE ANY SPECIFIC QUESTIONS I COULD TRY AND TAG WITH NOW? I KNOW YOU'RE TIRED OF HEARING LAWYERS TALK. GENERAL QUESTION NOT NECESSARILY. CAN YOU ELABORATE A LITTLE BIT MORE ON US BEING CONSISTENT FROM PUTTING FORTH A COMPREHENSIVE PLAN WITH A COMPREHENSIVE LAND USE MAP SHOWING CERTAIN USES? WHEN A DEVELOPER BRINGS A USE TO US THAT IS SOMEWHAT CONSISTENT OR VERY CONSISTENT WITH THAT USE, ARE WE DEPRIVED OF ANY DISCRETION AS TO APPROVE OR NOT APPROVE HIS APPLICATION? NO. WHERE YOU'RE TRAPPED IS IF THE ZONING DISTRICT MAP ALREADY WOULD PERMIT THE PROPOSED USE, THEN THEY HAVE ACQUIRED VESTED RIGHTS BECAUSE A ZONING CLASSIFICATION IS ONE OF THE ITEMS THAT VESTS UNDER CHAPTER 245. THE MASTER PLAN IS A POLICY STATEMENT OF THE COUNCIL'S INTEREST OR INTENT. [B. Receive a report and hold a discussion on local government zoning, development, and land use laws and regulations. (Staff Presenter: Allen Taylor, City Attorney)] NOW, THE CITY PLANNING STAFF UNIVERSALLY PROTECTS YOU BY PUTTING LANGUAGE IN THE PLAN THAT SAYS THESE ARE BROAD, GENERAL USE CATEGORIES INTENDED TO ACCOMMODATE CERTAIN TYPES, GENERAL TYPES OR CHARACTERS OF DEVELOPMENT, AND THE CITY WILL BE DESIGNING INFRASTRUCTURE, ROADS, WATER, SEWER, STORM DRAINAGE TO ACCOMMODATE THESE TYPES OF USES. THE CRITICAL FACTOR, WHICH IS WHERE YOU'RE HEADED AND THAT DOES CREATE SOME PROBLEMS IS THE. THE PROBLEM THAT WE RUN INTO ON A DEVELOPER'S REASONABLE INVESTMENT BACKED EXPECTATION WHEN THEY BUY PROPERTY. ONE OF THE REASONS THAT WE DON'T WANT TO BE TOO DETAILED IN OUR MASTER PLANNING ON SOME ISSUES IS WE DON'T WANT A DEVELOPER COMING IN SAYING, WELL, I PAID PREMIUM MONEY FOR THIS PROPERTY BECAUSE ON THE MASTER PLAN IT WAS THE ONLY PART OF THIS AREA WHERE MULTIFAMILY WAS PROJECTED TO BE PERMITTED, AND SO I PAID MULTIFAMILY PRICES FOR IT. WELL, THEN THEY HAVE A LEGITIMATE INVESTMENT BACKED EXPECTATION OF VALUE, AND IF YOU CHANGE ZONING, YOU MAY OR MAY NOT END UP IN A COURTROOM. SEE THAT? BUT IT CASCADES DOWN INTO THE INDIVIDUAL FACTS. THEY ONLY AVAIL THEMSELVES OF THEIR RIGHT. IF THEY INITIATE A DEVELOPMENT APPLICATION, FILE, A PERMIT, FILE, A SUBDIVISION, PLAT FILE, SOMETHING TO ACTIVATE THAT RIGHT UNDER 245. IF THEY DON'T, THEN THEY WEREN'T PROTECTED. THEY'RE NOT PROTECTED UNTIL THEY GIVE THE CITY FULL AND FAIR NOTICE BY FILING SOME TYPE OF DEVELOPMENT APPLICATION, BUT THE MERE FACT IT'S ON THE PLAN DOESN'T [01:05:04] CONFER THE SAME RIGHTS AS A ZONING DISTRICT ALLOCATION WOULD. I THINK THAT MY QUESTION WAS MOSTLY ABOUT STANFORD FARMS. DID WE OVERREACH? DID WE OVERSTEP? OR WERE WE PERFECTLY WITHIN OUR RIGHTS TO DENY THE DEVELOPER'S APPLICATION? THE INFORMATION PRESENTED TO THE COUNCIL AT THE TIME, I BELIEVE, WAS SUFFICIENT TO SUSTAIN AND JUSTIFY THE DECISION THE COUNCIL MADE. IT WAS ALL KEYED ON LOT SIZES AND THERE WERE A LOT OF ARGUMENTS ABOUT THE HISTORY OF STORM WATER ISSUES IN THE AREA, AND HAD THEY BEEN ADEQUATELY ADDRESSED AND THERE WERE AND THE RATIONALE THERE WAS STORM WATER, OF COURSE, AS IS A FUNCTION OF NOT ONLY THE NATURAL RAINWATER AND THE FLOWS HISTORICALLY IN THE CRAFT VERSUS LANGFORD MODEL, BUT ALSO THE AMOUNT OF IMPERVIOUS SURFACE. WHEN YOU HAVE A LOT OF SMALLER LOTS, YOU HAVE MORE ROOFTOPS, FOUNDATIONS, YOU KNOW, MORE IMPERVIOUS SURFACES, MORE STORM WATER TO MANAGE. THOSE QUESTIONS WEREN'T REALLY WELL DEVELOPED, AND THEN WE HAD QUESTIONS ABOUT THE, WHAT, 602 THE ROAD THERE AND WHAT ITS TRAFFIC CAPABILITY WAS. OUR ENGINEERING STAFF SAID IT CAN MANAGE IT, BUT THEY DID ACKNOWLEDGE THERE IS MORE DEVELOPMENT GOING IN ALONG THE ROAD AND IF WE NEED TO MAKE THE IMPROVEMENTS, IT'S GOING TO TAKE TIME TO GET THOSE IMPROVEMENTS IN PLACE AND THERE WILL BE A YAW IN THERE WHEN DEVELOPMENT STARTS BEFORE WE CAN POSSIBLY GET 602 IMPROVED, AND THEN THE PRACTICAL MATTER FOR YOU AS COUNCIL MEMBERS IS YOU EVER SEEN A ROAD CONSTRUCTION PROBABLY THAT GOT FINISHED ON TIME OR THAT DIDN'T DISRUPT EVERYTHING AROUND IT FOR MONTHS AND MONTHS AND MONTHS? YOU KNOW, THERE'S ALWAYS A BASIS TO SAY THERE WERE SOME CONCERNS ABOUT THAT PROJECT AND WE STARTED TALKING ABOUT DIFFERENT OPTIONS IN THE DEVELOPERS WERE VERY HESITANT TO GO VERY FAR ABOUT ACCOMMODATING WHAT WE WERE TRYING TO DO. AT THE END, THEY BROUGHT BACK THE 10,000 SQUARE FOOT LOT PROPOSAL, BUT IT WAS SORT OF AT GUNPOINT AFTER A LOT OF EFFORTS TO GET THEM TO REALIZE WE WERE DEALING WITH SOME SOME ADVERSE SITUATIONS OUT THERE, AND SO I THINK AT THAT POINT, THEY HAD SORT OF EXHAUSTED THEIR GOODWILL. I WASN'T TERRIBLY WORRIED ABOUT US GETTING SUED ON THAT ONE. SO YOU BRING UP A GREAT POINT ABOUT THE DRAINAGE, BECAUSE THAT'S SOMETHING THAT WE'VE TALKED ABOUT A LOT, EVEN WITH BEAR RIDGE WHEN IT CAME. I THINK BEAR RIDGE RIGHT? WHEN IT CAME FORWARD, YOU KNOW, AND IT'S KIND OF THE CHICKEN AND EGG QUESTION BECAUSE ACCORDING TO RULES, IT'S LIKE, OH, THEY DO THE DRAINAGE STUDIES AFTER AFTER. BUT AND WE'VE ALSO DEALT WITH DEVELOPERS WHO DIDN'T FOLLOW THROUGH ON DOING ENOUGH. MAYBE THEY DID JUST ENOUGH, BUT REALLY, TRULY DOING ENOUGH TO AVOID FLOODING OF HOUSES, WHETHER IT'S OUT IN THE ETJ OR IN TOWN, AND WE HEARD A LOT OF ARGUMENTS AS TO POTENTIAL PROBLEMS WITH THAT, AND THAT'S THE WAY I VOTED, YOU KNOW, BECAUSE I BELIEVE, BUT WHY HOW DO WE DEAL WITH THIS DRAINAGE STUFF? THE CRITICAL THING TO REMEMBER IS WHEN A DEVELOPER IS IS WORKING THROUGH THE ZONING. AN ENTITLEMENT TO DEVELOP, BUT THAT'S ONLY HALF OF THE RIGHT. THAT'S THEIR USE RIGHT TO CONDUCT THE USE. THEY CAN'T IMPLEMENT IT UNTIL THEY COME BACK AND FILE A SUBDIVISION PLAT AND ALL THE ENGINEERING CONSTRUCTION AND STUDY DOCUMENTS THAT SUPPORT THAT PLAT. THEY THERE HAVE BEEN NUMEROUS INSTANCES WHERE DEVELOPERS GOT ZONING ON A PIECE OF PROPERTY AND CAME BACK TO DEVELOP IT AND DISCOVERED IT ECONOMICALLY WOULD NOT WORK. YOU HAVE A RIGHT TO DO SINGLE FAMILY HERE, BUT THEN ONCE WE DO THE GROUNDWATER STUDIES, WE ACTUALLY DO THE HYDROLOGY. WE LOOK AT WHAT'S THERE, WE LOOK AT THE FLOW PATTERNS. WE SAY, WELL, YOU'VE GOT 11 ACRES. THREE OF THOSE ACRES HAVE TO BE A DETENTION POND TO HANDLE THE WATER. WE WON'T REACH THAT STAGE TILL WE GET TO SUBDIVISION PLANNING, BUT IN ORDER TO MOVE FORWARD UNDER OUR REGULATION, YOU HAVE TO DEMONSTRATE THAT YOU ARE COMPLIANT WITH 11.086 OF THE TEXAS WATER CODE IN TERMS OF COMPLYING WITH TEXAS RIPARIAN RIGHTS AND WATER LAW. AND SO A DEVELOPER MAY GO, OKAY, I GOT IT ZONED. I'M READY. NO, YOU'VE GOT THE YOU'VE GOTTEN THROUGH THE FIRST TURNSTILE. YOU'RE NOW OUT OF THE OPPORTUNITY TO EXPLAIN TO US THAT IT CAN PHYSICALLY FUNCTION AND OUR ENGINEERING STAFF IS GOING TO SAY, SURE, WE CAN MAKE IT. YOU'VE GOT ENOUGH MONEY. WE CAN TELL YOU WHAT YOU HAVE TO DO TO MAKE IT WORK. YOU'VE GOT TO HAVE A THREE ACRE POND THAT'S 14 FEET DEEP AND YOU'VE GOT TO HAVE SUBMERSIBLE PUMPS THAT ARE PUMPING WATER UP AND DOWN. [01:10:01] IT'S GOING TO COST YOU $8 MILLION TO DO THIS, BUT IT CAN TECHNICALLY BE DONE. SO IT'S NOT BASED ON JUST THE WATER STUDY THAT THEY DO. OH, OUR OUR STAFF WILL COME IN AND DO THEIR THING AS WELL. OUR STAFF WILL LOOK AT THEIR MATERIAL. I DON'T WANT TO MISREPRESENT, BUT OUR STAFF IS GOING TO COMPLETELY RE-ENGINEER IT. THEY'LL LOOK AT IT, AND IF IT'S BEEN DRAWN PROPERLY BY A A LICENSED CIVIL ENGINEER, HOPEFULLY THEY FOLLOWED ALL THE RULES AND THEY HAVE CORRECTLY ADDRESSED THE PROBLEM, BUT OUR OUR PUBLIC WORKS STAFF AND OUR ENGINEERING PEOPLE ARE GOING TO LOOK AT IT TO SAY ON ITS FACE, DOES IT LOOK SUFFICIENT? IF IT DOESN'T, THEN WE'RE GOING TO SAY, NO, YOU'RE GOING TO YOU NEED TO ANSWER THIS QUESTION, THIS QUESTION, THIS QUESTION AND THIS QUESTION, BECAUSE THESE NUMBERS DON'T LOOK LIKE THEY WORK OR OUR EXPERIENCE IN THAT AREA IS NOT CONSISTENT WITH WHAT YOU'RE SAYING IS GOING TO HAPPEN. OUR FOLKS ARE QUITE CAPABLE OF HAVING THOSE CONVERSATIONS AND DO AND WE WORK THINGS OUT, BUT MOST DEVELOPERS WHO GO IN AND TAKE DOWN LAND UNDER CONTRACTS HAVE DONE SOME PRELIMINARY REVIEW THEMSELVES. THEY DON'T GO DO THIS UNLESS THEY'VE DRUG THEIR ENGINEER OUT THERE AND LOOKED AT IT AND SAID, CAN YOU MAKE THE WATER FLOW? CAN I CAN I MAKE THIS WORK? THERE ARE A LOT OF PROJECTS THAT DIE RIGHT AT THAT END, THAT INCEPTION STAGE. WHEN THEY GO OUT AND LOOK AND GO, THIS DOG WON'T HUNT. IT WILL COST US SO MUCH TO MAKE THIS PROJECT WORK. WE CAN'T GET IT OFF THE GROUND. OKAY. THANK YOU. RECENTLY, WE JUST OKAYED THE ABILITY OF OUR COMMITTEES TO RUBBER STAMP APPROVE SITE PLAN. SHE WENT OVER IT AWHILE AGO. DOES THIS MEAN THAT IT MINISTERIAL VOTES IS NOT GOING TO BE COMING TOWARDS COUNCIL ANYMORE? THE IN TERMS OF THE SUBDIVISION, WELL, NOW THE MINISTERIAL VOTES THAT WERE OBLIGATED TO OK. AS LONG AS THE COUNCIL HAS DELEGATED THE SPECIFIC AUTHORITY TO THE STAFF TO DO IT. YES, WE'RE ON SOLID GROUND. YOU HAVE DETERMINED THE CONDITIONS UNDER WHICH THEY CAN DO IT. YEAH, WE JUST. OKAY. THEN YOU HAVE THE SECOND READING OF THAT TONIGHT. TONIGHT. OKAY. YEAH. SO THAT'LL, THAT'LL GET US OFF THE HOOK OF KNOWING WHICH IS AT MINISTERIAL AND IN THE THING THAT I WANT THE COUNCIL TO, TO RECOGNIZE AND I KNOW YOU KNOW THIS, BUT I'M BEATING A DEAD HORSE, BUT TRY AND REMEMBER IT. YOU DO THE BEST SERVICE FOR THE CITIZENS WHEN YOU CONCENTRATE ON REPRESENTING THE CULTURE OF THE COMMUNITY. WHAT WHAT ITS FEELING IS, WHAT IT NEEDS, WHAT WORKS HERE. TRY NOT TO GET INTO ARGUMENTS WITH WITH DEVELOPERS OVER TECHNICAL REQUIREMENTS OF CODES OR ORDINANCES. THE STAFF WILL DEAL WITH THAT IF YOU GET INTO AN ARGUMENT ABOUT HOW SOMETHING WILL WORK, DOES IT MEET WITH THE COMPLIANCE OF THE CUBIC SQUARE FEET OF RUN OFF OR HOW MANY CUBIC YARDS OF DETENTION NEEDS TO HAPPEN HERE AT YOUR WEAKEST? YOU NEED TO CONCENTRATE ON THE BIG PICTURE OF WHAT THE COMMUNITY NEEDS. THE EXAMPLE I WILL GIVE THAT JUST MAKES A FOOL OF ME, BUT IT'S THE ONE ALWAYS THAT STUCK WITH ME FOR 40 YEARS. WHEN I CAME BACK FROM THE MILITARY AND PLANE IN SOUTH EAST ASIA, I FINISHED MY MASTER'S IN URBAN PLANNING AND SOME OF YOU KNOW THAT I WAS A CITY PLANNER FOR A NUMBER OF YEARS AND I WAS THE CITY PLANNING DIRECTOR IN THE CITY OF EDINBURGH, VERY, VERY YOUNG AND NEW, AND WE HAD A PLANNING AND ZONING COMMISSION MEETING ON A PARTICULAR DEVELOPMENT IN AN AREA CALLED LAS MILPAS, AND IT WAS AN OLD COLONIAL IN THE EAST SIDE OF TOWN, AND IT WAS QUITE A LARGE AREA, 120 ACRES IN THERE, BUT HAD A LOT OF RAMSHACKLE HOUSING AND POOR ROADS AND NOTHING ELSE. AND WE WERE LOOKING AT A DEVELOPMENT APPLICATION THAT CAME IN AND A LADY HAD COME IN AND REQUESTED PERMISSION TO REZONE A LOT IN THE MIDDLE OF ONE OF THE STREETS INSIDE FOR COMMERCIAL, AND SHE WANTED TO PUT IN A SMALL MOM AND POP MARKET, AND OF COURSE, I'M THIS BRIGHT, YOUNG, SMART GUY OUT OF PLANNING GRADUATE SCHOOL, AND I'M SITTING THERE PREPARING THE REPORTS WITH MY STAFF, AND WE CRANK UP THIS REPORT GOING THIS IS REALLY A BAD IDEA. WE JUST DON'T THINK THIS IS THIS IS GOOD. THE IDEA IS TO PUT COMMERCIAL ALONG THE PERIMETER WHERE THE MAIN ROADS ARE AND PUT RESIDENTIAL INSIDE, AND THIS MAKES SENSE, AND REUBEN AYALA, WHO WAS THE CHAIRMAN OF THE P AND Z, SAID, WE'VE BEEN ADDED A COUPLE OF HOURS. I THINK WE NEED TO TAKE A BREAK. LET'S CALL IT A RECESS FOR 10 MINUTES SO WE CAN TALK, BUT I GOT UP TO GO TO THE LITTLE BOYS AND LITTLE GIRLS ROOM, AND RUBEN MOTIONED TO ME AND SAID, COME ON. WE WALKED OUT THE SIDE DOOR OF CITY HALL AND HE SAID, ALAN, WE NEED TO TALK. YOU ARE A VERY SMART YOUNG MAN WITH A LOT OF HIGH DOLLAR EDUCATION. AND YOU UNDERSTAND ALL THESE THEORIES, BUT LET ME EXPLAIN TO YOU ABOUT HOW THIS COMMUNITY WORKS. LAS MILPAS, 80% OF THE ROADS AREN'T PAVED. [01:15:02] EVERYBODY IN HERE IS BELOW POVERTY LEVEL. THESE ARE RUDIMENTARY LITTLE HOUSES. MOM STAYS AT HOME WITH THE KIDS AND DAD'S OUT WORKING, PICKING FRUIT OR DOING OTHER THINGS. THIS IS NOT DALLAS OR FORT WORTH, SOME OTHER CITY. WHEN LUPI GOES OUT TO HANG LAUNDRY ON THE LINE AND HAS HER DAUGHTER OUT THERE, SHE SAYS, I NEED, YOU KNOW, A DOZEN TORTILLAS FOR DINNER AND I NEED A GALLON OF MILK, AND SHE GIVES HER MONEY. JUST GO DOWN TO [INAUDIBLE] AND GET IT, AND SHE WANTS HER TO WALK IN THE MIDDLE OF THAT SUBDIVISION WHERE ALL THE LADIES ARE OUT THERE HANGING LAUNDRY AND PAYING ATTENTION TO WHAT'S GOING ON, AND THAT CHILD IS UNDER COMPLETE SUPERVISION. THESE ARE MOM AND POP MARKETS THAT ARE COMPLETELY ENCLOSED IN THIS WORLD. THEY DON'T WANT THAT CHILD GOING DOWN TO THE EDGE OF THE DEVELOPMENT WHERE ALL THESE CARS ARE GOING BACK AND FORTH AND THINGS ARE HAPPENING. IT'S A DIFFERENT CULTURE. I WENT. MESSAGE RECEIVED, I TROTTED BACK IN AND REVISED OUR RECOMMENDATION. HE TAUGHT ME A VERY, VERY VALUABLE LESSON FOR ALL THE SMARTS THAT THE PLANNERS BRING TO THE TABLE. YOU GUYS KNOW THE CULTURE OF THE COMMUNITY. WHAT WORKS HERE, WHAT MEANS SOMETHING, HOW IMPORTANT OR PIECES OF OLD TOWN, HOW FAR DOES IT LOGICALLY EXTEND? TONY, AND I CAN'T TELL YOU, WITH ALL OUR FANCY EDUCATION, YOU'VE LIVED HERE, YOU FEEL IT. YOU KNOW WHERE THINGS ARE AND HOW IT WORKS. THAT'S WHAT YOU BRING TO THE TABLE THAT NOBODY ELSE CAN, AND THAT'S WHAT YOU NEED TO CONCENTRATE ON. I JUST HAVE A QUICK QUESTION, IF YOU DON'T MIND. HELP ME ON. WE TALK ABOUT THE RUN OFF AND SO I HAVE A QUESTION AND IT DEALS MORE WITH INVERSE CONDEMNATION. IF WE HAVE, SAY, A PROPERTY UPSTREAM, I'LL USE BEAR RIDGE AS AN EXAMPLE, AND BECAUSE I WAS CONCERNED, MY BIG CONCERN WAS THE WINERY DOWNSTREAM FROM IT. IF BEAR RIDGE WINDS UP HAVING A SUBSTANTIAL AMOUNT OF RUNOFF THAT FLOWS DOWN INTO THE WINERY AND CAUSES THEM NOT TO BE ABLE TO UTILIZE THEIR PROPERTY. AS I UNDERSTAND IT, THAT DEFINITELY FITS THE DEFINITION OF INVERSE CONDEMNATION AND WOULD DENY THEM OF OF THEIR CIVIL RIGHTS AS FAR AS THAT GOES, AND MY MISINTERPRETING THAT. NO, WHAT YOU'RE DOING IS YOU'RE MISSING A CONNECTION. OKAY. THANK YOU. THE CONNECTION IS INVERSE CONDEMNATION IS A GOVERNMENTAL ACTION THAT DOES IT. SEE, THAT'S THE DIFFERENCE IF A GOVERNMENT DOES SOMETHING THAT DOES IT. NOW, REMEMBER, I KNOW WHAT YOU'RE THINKING IS, BUT WE APPROVE THE DEVELOPMENT. EXACTLY. SO WHAT WE DO IS WE APPROVE THE DEVELOPMENT AND OUR SUBDIVISION REGULATIONS AND OUR MATERIALS, OUR COMMUNITY FACILITIES CONTRACT GIVEN TO THE DEVELOPERS SAY YOU WILL CONSTRUCT THE IMPROVEMENTS IN FULL CONFORMANCE WITH OUR REGULATIONS AND STATE LAW RELATING TO STORMWATER MANAGEMENT. LIKE I SAID. COUNCILMAN. IF YOU'VE GOT ENOUGH MONEY, YOU CAN ENGINEER AROUND ANY STORMWATER ISSUE. YOU'VE GOT TO MAKE SURE THAT WHAT WE DO ON OUR END KEEPS THAT FROM HAPPENING. WE DON'T WANT THE CITY TO COME BACK AND WE DON'T WANT AN ATTORNEY COME BACK TO THE CITY AND SAY, YOU KNOW WHAT, YOU WERE LAX IN THE IN THE STORM DRAINAGE PREPARATION. CORRECT. WHAT WE DO IS WE SAY WE'VE GOT GOOD REGULATIONS AND WE ENFORCE THEM, AND DEVELOPERS KNOW THEY HAVE TO BUILD TO THAT STANDARD. NOW, THEY'RE DEVELOPERS THAT CUT CORNERS AND DO THINGS, AND SOMETIMES, GOD FORBID, I HATE THIS, BUT I'VE GOT THREE DIFFERENT LAWSUITS GOING IN THE 48 CITIES WE REPRESENT RIGHT NOW, WHERE AFTER CITIES APPROVED SUBDIVISION PLATS AND DEVELOPMENT, INDIVIDUAL LOT PURCHASING CONTRACTORS OR BUILDERS WHO BOUGHT FIVE OR SIX HOUSES TO BUILD ON WENT IN AND RE-TERRAFORM THE REAR OF THE LOTS BECAUSE THEY WANTED THE LOOK TO BE BETTER, CHANGED ALL THE FLOW AND FLOOD AND EVERYTHING. CITY DIDN'T DO IT. WHAT WE APPROVED WOULD HAVE WORKED. THEY WENT AFTER THE FACT AND CHANGED IT. THAT'S A LEGAL PROBLEM BETWEEN THAT BUILDER WHO BOUGHT THOSE LOTS AND THE PEOPLE WHO ARE GETTING FLOODED. WHAT THE CITY APPROVED WAS COMPLIANT AND THAT'S WHERE WE TRY AND MAKE SURE WE STAY STRAIGHT. THANK YOU. THANK YOU ALLEN. I APPRECIATE IT. I GOT ONE MORE DEAL TO DO AND WE'VE GOT A MEETING AT FIVE, SO WE'RE GOING TO END IT. HANG ON A SECOND. JUST FOR MAYOR AND COUNCIL, I DON'T BELIEVE THERE'S ENOUGH ADEQUATE TIME FOR MISS DUELLO TO COMPLETE HER PRESENTATION. IT IS, HOWEVER, LISTED AGAIN ON THE REGULAR AGENDA THAT STARTS AT 5:30 FOR THE COUNCIL MEETING. SO AT THIS TIME, I GUESS WE COULD MOVE ON. IF YOU DON'T MIND, I COULD MOVE ON TO SECTION THREE AND THEN GO THROUGH THIS. GO AHEAD. SORRY LISA. SECTION THREE IS CITIZEN'S APPEARANCE. OTHER THAN PUBLIC HEARINGS AND ITEMS LISTED ON THE POSTED AGENDA, CITIZENS IN ATTENDANCE WHO DESIRE TO SPEAK TO THE CITY COUNCIL MAY SPEAK DURING THIS TIME. SPEAKERS IN ATTENDANCE. EACH SPEAKER WILL BE ALLOWED 3 MINUTES TO SPEAK AND THEN SPEAKER IS NOT IN ATTENDANCE. [01:20:01] EACH PERSON MUST FILL OUT AN ONLINE SPEAKER CARD AND BE SUBMITTED 30 MINUTES PRIOR TO THE START OF THE MEETING. AT THIS TIME, I HAVE NO SPEAKER CARDS EITHER ONLINE OR IN PERSON FOR THIS MEETING. IS THERE ANYBODY IN THE AUDIENCE THAT WOULD LIKE TO SPEAK TO THE COUNCIL? THERE IS NONE, MAYOR AND COUNCIL THAT MOVES US ON TO SECTION FOUR, RECESS INTO EXECUTIVE SESSION. AT THIS TIME, WE HAVE NO NEED FOR EXECUTIVE SESSION, SO WE HAVE DISPENSED WITH ALL ITEMS. SO, MAYOR, IF YOU WOULD CALL FOR A MOTION AND A SECOND REQUIRING NO VOTE TO ADJOURN TONIGHT'S MEETING. DO I HAVE A MOTION TO ADJOURN. I'LL SECOND. I HAVE A MOTION BY JIMMY AND A SECOND BY WHAT'S HER NAME? TAMARA. PLEASE VOTE. THERE'S NO VOTE ON THIS. YOU'LL JUST. NO, I'M SORRY. WE'RE OUT OF HERE AT 4:42. THANK YOU. THANK YOU. * This transcript was compiled from uncorrected Closed Captioning.