Discussion Post – Variances, Special Exceptions, and BOA Authority | Oct 2, 2025 Agenda, Referral to P&Z

[Paul Roberts]

Colleagues,

Since our October 2 agenda includes referral of amendments to Chapter 14 (variance and special exception procedures) to the Planning & Zoning Commission, I want to provide some context. This is not intended to direct P&Z’s work, but simply to clarify the issues so both Council and Commission members understand what’s at stake.

1. State Law Framework

• Texas Local Government Code §211.009 authorizes BOAs to:
  
  1. hear appeals of administrative decisions,
  2. decide special exceptions when the zoning ordinance provides them,
  3. authorize variances where hardship is shown, and
  4. hear other matters the ordinance assigns.
• A variance always requires hardship. A special exception does not, but only if the ordinance supplies specific criteria that BOA must apply.

2. Lago’s Current Ordinance

• Section 11.20 (variances) is aligned with state law and hardship findings.
• Section 11.60 (special exceptions) includes limited criteria, but in the case of height, those criteria are minimal. In practice, this shifts the burden onto neighbors to show harm rather than requiring the applicant to meet substantive standards.

3. Perspectives in Play

• Some, like former P&Z Chair Tom Monahan, emphasize the form: special exceptions and variances are distinct tools, and hardship should not be imported into Section 11.60. State law and TML guidance support that distinction.
• Our City Attorney, Brad Bullock, emphasizes the substance: Lago’s ordinance currently gives BOA too little guidance. Without stronger standards, BOA risks functioning as a “super-council,” effectively making zoning policy case-by-case. That makes its decisions more vulnerable to legal challenge.
• Both perspectives can be true: special exceptions are valid, but they must be backed by robust, ordinance-defined criteria.

4. The Path Forward

• The referral to P&Z is not about eliminating special exceptions. It’s about ensuring that when BOA considers them, they are applying clear, legally defensible standards set by Council.
• Whether P&Z recommends adding hardship or strengthening other criteria, the ultimate goal is the same: protect the integrity of BOA decisions and ensure they withstand legal scrutiny.
  

In Summary
The real issue is not form (variance vs. special exception), but substance (the adequacy of our criteria). Council must set those standards so that BOA can do its job with confidence, without appearing to legislate case by case.

 

[Norma Owen]

Appreciate the added context, Councilor Roberts. Thank you.

 

[Paul Prince]

Thank you for raising this and for the background discussion Councilor Roberts. I agree with the need to have P&Z address this situation and make a recommendation to Council.

Before my 5 years serving on City Council I was a member of P&Z where we spent more time considering "Height Special Exception" requests than just about all other topics combined. In recent times this decision has been moved to the BoA. In both cases, the Commission (formerly P&Z and now BoA) made the decision to grant (or deny) the Special Exception request without further review by Council. What I routinely hear reflects two opposing points of view on this topic.
1. Some citizens argue that they followed Zoning height requirements and it is inappropriate for a neighbor to get to build above the zoning allowed height just because they know the process well enough to ask.
2. The opposing view (always supported by the applicant and sometimes by their neighbors) is that property owners should be allowed to build what they want as long as it doesn't materially harm their neighbors.

I personally feel height exceptions have too frequently been granted ("given out like candy" I've heard someone say), making our Zoning height rules almost irrelevant. The current two part test is:
1. building above the standard "by-right" height should not adversely impact neighbors views more than building to the by-right would.
2. building above the "by-right" is not architecturally inconsistent with the neighborhood.

These are problematic for several reasons. Both shift the burden away from the applicant to prove harm as noted above by Mr. Roberts. Questioning architectural consistency implies that the original zoning height somehow is not an architectural precedent. Furthermore architectural consistency has been argued (in my observation) to say either: if anyone else did it it's okay, or if many of the lots aren't built yet there is nothing to compare to.

I'm struggling to think of conditions or metrics we could put in to approve this exception that are fair, do not force neighbors to prove a negative, and can be consistently applied. For that reason I lean towards removing special exception language for height and make it a standard variance request. I'm interested to see what the P&Z proposes.