Referral of Amendment to Chapter 14, Sec. 13.20(e)(3)(B)(ii–iii) – Zoning Protest Procedures

[Paul Roberts]

Colleagues,

Attorney General Opinion No. KP-0498 (Aug. 29, 2025) clarifies that under Texas Local Government Code §211.006(d), property owners within 200 feet of a proposed zoning change may file a valid protest regardless of city-limits or municipal tax-roll status.

The City’s current ordinance, Chapter 14, Section 13.20(e)(3)(B)(ii–iii), limits protest rights and land area calculations to properties “within the municipal limits of the City of Lago Vista,” which is inconsistent with the AG opinion. A redline amendment has been prepared striking that language so our code aligns with state law and our zoning actions remain legally defensible.

Because amendments to Chapter 14 require a P&Z recommendation, I am placing an item on our October 2 Council agenda to refer the proposed amendment (Sec. 13.20(e)(3)(B)(ii–iii)) to P&Z for review and recommendation. Council Member Rob Durbin is my second for placing this referral on the agenda.

 

[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 background for context. This is not intended to direct P&Z’s work, but simply to ensure that Council and Commission members alike understand the framework we are working within.

1. State Law Framework

• Texas Local Government Code §211.009 gives Boards of Adjustment authority to:
  
  1. hear appeals of administrative decisions,
  2. decide special exceptions when the ordinance provides them,
  3. authorize variances when unnecessary hardship exists, and
  4. hear other matters expressly delegated by ordinance.
• A variance always requires a hardship showing. A special exception does not by default, but the ordinance must supply clear criteria for the BOA to apply.

2. Lago’s Current Ordinance

• Section 11.20 (variances) is aligned with state law and requires hardship findings.
• Section 11.60 (special exceptions) provides some standards, but in the area of height the criteria are minimal. In practice, the burden largely shifts to neighbors to show harm, rather than the applicant having to show why relief should be granted.

3. The Legal Concern

• Case law (e.g., Leon, Knapp) shows that courts often apply variance-style analysis even when a city labels relief a “special exception.”
• If our ordinance does not provide clear and sufficient criteria, BOA decisions are more vulnerable to challenge.
• Council is responsible for adopting the standards. Without them, BOA risks acting as a “super-council,” making zoning policy case-by-case instead of applying rules set by ordinance.

4. The Path Forward

• The question for P&Z is not whether special exceptions exist—they clearly do under state law. The real question is whether Lago’s ordinance provides enough guidance to BOA, particularly on height, and whether those criteria are strong enough to withstand legal scrutiny.
• Council’s referral is intended to give P&Z the opportunity to review and recommend amendments that clarify:
  
  • When hardship is required,
  • What criteria apply to height requests, and
  • How to ensure BOA findings are supported by legally sound standards adopted by Council.

In Summary
This isn’t about removing authority from the BOA. It’s about ensuring Council has provided clear, defensible rules so that the BOA can do its job with confidence and its decisions are legally sound.

 

[Paul Roberts]

Apologies, my response was intended for a different thread and subject matter.