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Questions and Answers about Zoning

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The Questions and Answers listed below were derived from a Zoning Informational Meeting held Tuesday, April 3, 2012 and a Special Council Workshop on Zoning that was held Tuesday, April 10, 2012 at the Irene Stern Community Center. 


Zoning Informational Meeting Follow-up Q & A

UPDATED 4/17/2012

Questions Received Prior to the April 17, 2012 Meeting:

1)       Do landowners living the area Zoned for Manufactured Homes have to get a special permit to place a new Manufactured Home on their property?

For property owners residing in the Manufactured Home District placement and replacement of a new model or the addition of other units is granted as a “Use by Right” which means there is no special permit required to place a Manufactured Home in this area.  You can replace or place new Manufactured Homes in this district without any special permitting.  This means that you can place or replace Manufactured Homes as many times as you would like.  The City would still require an electrical permit and plumbing permit to ensure that utilities are correctly installed but there would not be a need for a Special Use or other permit in this Zoning District for Manufactured Homes.

Example: Mrs. Smith has a Manufactured Home on her property located within the Manufactured Home District and she would like to add two new Manufactured Homes to her land; one for her mother and another for son who recently got married.  She could add both if she wanted to in that District without a Special Use Permit. 

If she also wanted to replace her existing home she could do that without a Special Use Permit; and if a year later she decided she didn’t like that model and wanted a new one, she could replace it again without a Special Use permit.

2)       If you live in the Manufactured Home District are you still able to build, maintain or renovate a single family home that is not a Manufactured Home?

Yes. Single family homes, places of worship, safety facilities, parks and recreational facilities are also considered Uses by Right for this Zoning District and would only require the usual Building Permits for such structures as every other area of the City and no Special Use Permit would be required for Single Family Homes in this Zoning District.

3)       Why is Zoning only being applied to “Old Town”?

The Zoning Ordinance will applicable to the entire City, not just “Old Town”.

4)       Why do areas down Bois D’Arc require Zoning, don’t they already have Deed Restrictions?

Some areas along Bois D’Arc do have Deed Restrictions, however much of that area does not, thus the need to zone that area as well.

5)       If I own a single family house or trailer in a Zoning District that is zoned for Commercial or Industrial use will I be forced to move or tear down my house?

Absolutely not; any Nonconforming use is “Grandfathered” (please see below for an explanation on “Grandfathering”) and allowed to continue so long as you own the property and continue using your property for a residence.  If your property is destroyed can you still replace your property through a Specific Use Permit.  If you have a Manufactured Home in such a District you may replace it once voluntarily or as often as you need to if it is destroyed by a disaster.

From the April 10, 2012 Meeting:

1)       What impact will Zoning have on my property valuation and property taxes?

State Law forces the Appraisal Districts to use a standard set of comparable Fair Market Values based on the uses within a neighborhood.  Unfortunately, that means that Zoning has very little impact in most situations and especially in Fulshear’s situation.  The Downtown District has been used for both Residential and Commercial purposes for many, many years, due to that fact; the Appraisal District must take into account the various uses within the neighborhood regardless of how they may be zoned.  This often leads to higher appraisal valuations since on any given block you might find a house next door to a trucking firm, across the street from a business park; or a house used as a business next door to a house used as a residence which lies across the street from another business. Because there is no clear cut definition to what is commercial and residential within this neighborhood, trying to place a traditional label on any given lot might lead to “spot zoning” and forces the Appraisal District to take all uses into account. 

2)       Can’t the City just pass some Ordinances to keep those uses out that we don’t want without going through Zoning?

This City and many others both in Texas and around the County have tried this.  The City does have regulatory Ordinances on the books regarding Sexually Oriented Business and Bars/ Lounges which restrict their location in proximity to Churches, Daycares and Schools; unfortunately if someone met the Statutory guidelines and found property outside of those distance requirements the City would be unable to stop them from using the property for such purposes (the bar Downtown is a perfect example).  Unfortunately State Law and case law from around the Country make it relatively impossible to restrict land use without Zoning.  In fact, the City previously lost a lawsuit to a landowner by trying to enforce a restriction on Manufactured Homes that wasn’t backed by a Zoning Ordinance.

3)       So, why are trying to do Zoning now? Fulshear is not that big and we’ve gotten by without until now, why not wait or go through this trouble at this point?

The reality is that currently the area located West of 99/ Grand Parkway, North of FM 1093 and South of I-10 is among the hottest real estate markets in the World.  New home sales and construction in this region outpace much of the rest of the Country by a wide margin and as the local population grows so does the demand for more commercial development. Additionally, developers of various sorts see the emerging market and opportunities for development that this community may not want.  As stated above Zoning is the only truly effective way to guide the development that will accompany the surge in population. 

Also, it should be noted that as the population in our Master Planned Developments (Cross Creek Ranch and Fulshear Creek Crossing) continues to grow at a vigorous pace the vision of preserving the character of Downtown Fulshear may diminish.  For example, Cross Creek Ranch currently has almost twice as many residents as Old Town Fulshear and at full build out will be home to more than 18,000 people.  While many of those residents wish to keep the current character of Fulshear that view may not be shared in the future. In short, the residents of Old Town Fulshear have as much representation and ability guide the development of our town as they are ever going to have and the best way to guide that growth is through Zoning.

4)       Aren’t we too small to have Zoning?

No. The State gives Type A General Law Cities (which is Fulshear’s classification) the ability to have zoning.  Zoning has been done in numerous communities with smaller populations than Fulshear. For example Goliad, Lorena and Shoreacres are all towns with approximately the same or fewer residents as Fulshear that have adopted Zoning.  As stated earlier, the smaller the population, the greater the input residents can have on the regulations and the greater the impact they can have in guiding the development of their community.  If a City waits until it get too large it may be too late to ensure that the development that occurs is of a quality and character that residents truly desire.

5)       Why don’t we hold an election to determine whether or not Zoning goes through?

The Texas Constitution does not allow for binding referendums in Type A General Law Cities.  State Law expressly gives authority for such a decision to the City Council.

6)       Is there a way for the City to restrict the sale of property for commercial use when the surrounding properties are residential?

Cities are not permitted to regulate the sale of real property regardless of proposed use.  The City can regulate how property is used, but only through Zoning. 

7)       What is the actual benefit to Zoning for the individual property owner?

There are numerous benefits but primarily the ability to protect their property from harmful surrounding uses.  Zoning provides the individual property owner with the ability to defend their property through due process for changes of use around them.  Currently the City and property owners in areas not regulated by Deed Restrictions have no means to stop a property being used in a way that might be detrimental to the surrounding properties.  For instance, if a property was sold on the South side of downtown for use as a concrete plant or tattoo parlor there is nothing that the City or adjoining property owners could really do about it.  Zoning does allow for use changes, but ensures that nearby property owners are allowed due process to protect their interests before such a change is made.

8)       What is the impact on Zoning on properties located in the Extra-Territorial Jurisdiction (ETJ) of the City?

In the State of Texas, Municipalities do not have the authority to extend Zoning beyond the City Limits so there is no impact on property located in the ETJ.

9)       There has been a lot of discussion about “Grandfathering” for uses that don’t conform in certain districts, what is “Grandfathering” and where can I find this term in the Ordinance itself?

The term “Grandfathered” or “Grandfathering” is a layman’s term that basically says that a property’s use or structure is allowed to stay in its current state into the future even though it may not be in conformance with Zoning or another Ordinance on the books.  For example, a single family home in an area Zoned Commercial would be a nonconforming use and because the City can’t (nor does is it want) to force the owner to change use that home’s use is considered to be “Grandfathered” and would be allowed to retain its use until it’s use changed or the property’s ownership changed. In this instance, those two occurrences might still not necessitate a change as the property owner may seek a Special Use Permit to retain its use as a single family home.

The legal term equating to “Grandfathering” is a Continuation of Nonconforming Use and can be found in Article VI, Section 1-315 on pages 64 and 65 of the Ordinance.

 

From the April 3, 2012 meeting:

1)       We have a small woodworking business located in the Southern Bois D’Arc section of town, that is to be zoned R-1 Rural Residential; there are no delivery trucks and no heavy customer traffic.  The shop is around 1,600 sq. ft. and has an apartment above. If zoning goes into effect, will we be allowed to keep our small business?

Yes, your business is protected in a couple of ways. First any use in place prior to the adoption of zoning is “Grandfathered” and a non-conforming use may continue so long as you own the property and do not change the use.  Furthermore, your business as described meets the definition of a “Home Occupation” under the Ordinance and would qualify for a Special Use Permit if you transferred the property, stopped/ restarted the use or enlarged the shop.  “Home Occupations” as defined in the Ordinance are allowed in both the R-1 and R-2 zones. Please reference that definition in the Ordinance and if you still have questions please contact us at City Hall.

2)       I live in the Proposed Downtown District and have cattle (3 head) on my property.  I was approached by an individual and told that when zoning came into effect that I would either have to sell my cattle since they were a business or sell my house and move. Is this true?

This is absolutely not true.  The Downtown District was specifically created to preserve the uses as they are currently in place and allow those uses to continue into the future; while at the same time allowing the owner of the property the flexibility to change use if they so desired in the future.  You and your heirs will be allowed to continue keeping cattle on your property as long as you care to.  The Downtown District and the R-1 Districts are intended to protect Fulshear’s heritage and a large part of that heritage is ownership and maintenance of livestock.

3)       Is there a limit to the number of times that you can replace a Manufactured Home in the R-1 District?

Yes, depending on the circumstances.  If you are replacing the unit for the sake of upgrading or improvement then you may only replace that Manufactured Home one time.  If you are replacing the unit because it was damaged or destroyed as the result of a tornado, fire, meteor strike or other natural disaster then the unit may be replaced as many times as necessary.

4)       Are there any special rules or regulations pertaining to agriculture in the R-1 District?

No. Although we do ask that if you keep livestock that you keep it on your side of the fence. As stated in the response to Question 2, the purpose of the R-1 and DD Zones is to protect Fulshear’s rural charm and character which includes our agricultural heritage.

5)       Can someone buy land in the R-1 District and place a manufactured home on the property?

No. As currently drafted the Zoning Ordinance would not allow for the placement of a new Manufactured home in the R-1 Zone.  If there is a Manufactured Home on land purchased in the R-1 Zone it may be replaced one time voluntarily and multiple times if the original is lost to a disaster. The overwhelming consensus of residents in the proposed R-1 Zone is that they did not want Manufactured Housing in that zone, thus the restriction.

6)       What happens to agriculture (use) that is currently in the DD?

Please see the response to Question 2; in short that use may be maintained.

7)       Can you replace an existing Manufactured Home in the C-1 Commercial District, even if it is not damaged?

Yes, as stated above owners of Manufactured Housing are allowed to make one, and only one voluntary replacement of their home in any Zoning District of the City as provided under the Texas Occupations Code.  In the case of disaster they may make as many replacements as necessary in any Zoning District as well.

8)       Can areas that are already Zoned be Re-Zoned as something else in the future?

Yes, the Ordinance and State law lay out a mechanism which allows for Re-Zoning properties in the future.  The Ordinance is meant to be a “living document” that allows for changes to meet the current and future needs of the City.

9)       How or what do I have to do to add on to or expand my existing Manufactured Home (without buying a new one)?

Under the current Ordinances the owner of the property needs to apply for a Building Permit with the permit office and then proceed with the expansion.  Under the proposed Zoning Ordinance an expansion would only be allowed if the Manufactured Home lay within an area Zoned as Manufactured Housing/ Manufactured Housing Park.

10)   I was told that under the Zoning Ordinance my family would no longer be able to hold barbecues or cook outs in our yards. Is this true?

That is absolutely not true.  You will always have the right to hold a cook out or barbecue with your family on your property.  The only time that might be restricted is in the case of severe drought and the County’s issuance of a burn ban restricting open flames.  There is nothing in the Zoning Ordinance which would preclude you hosting your family cook out on the premises of your property.

11)   I have been told that under the Zoning Ordinance that I cannot sell produce, firewood or other things from my front yard. Is this true?

Under the initial drafting of the Ordinance, this is true. However, Council is considering the removal of this provision from the Ordinance and allowing such use. Updated: this provision has been modified to allow stands and sales with a Special Use Permit.

12)   Does the Zoning allow for Multi-family Housing?

Yes, there is a specific zone allowing for Multi-Family Housing and even a mapped zone for such use in the Northeast part of the Cross Creek Ranch development.  Such housing may also be allowed in a Planned Use Development.  Additionally, a property owner in the Downtown District may also apply for a Special Use Permit to develop Multi-Family Housing within that Zoning District.  In other Zoning Districts such housing is prohibited and would require a Re-Zoning of that property to allow such housing.

13)   How are Deed Restrictions affected by Zoning?

Deed Restrictions and Zoning are often confused, as both seek to define and control land use.  Deed Restrictions represent a private covenant between landowners restricting use and are a matter of Civil Legal concern.  Zoning is derived from the City’s police power to protect, life and welfare and are a matter of both Civil and potentially Criminal Legal concern.  Essentially, the two work in concert to add an additional layer of protection the owners and users of property within those areas affected by both.  The Zoning Ordinance will not relieve any land owner of their contractual obligations under Deed Restrictions, nor will it void those Deed Restrictions currently in place.

14)   Which are more restrictive Deed Restrictions or Zoning?

It all depends on the Deed Restrictions in effect for each neighborhood, some may be more restrictive than Zoning and some may be less restrictive than Zoning.  In any case or question, Common Law in Texas holds that the more restrictive guidelines hold sway and serve as the basis for making a determination about a property’s use.

15)   Are there Architectural Limitations included in the Zoning for the Commercial or other properties?

Currently there are no Architectural Design Limitations or Requirements in the Zoning Ordinance as drafted.  There may be future consideration given to such requirements but at this time the Ordinance only addresses land use and certain screening requirements.

16)   What are the guidelines for Sexually Oriented Businesses?

This is obviously an area of great interest and concern.  Like Multi-Family Housing and Manufactured Housing, State Law does not allow the City to simply bar such development entirely.  Instead, the State does allow the City to restrict such develop by Zoning and in the case of Sexually Oriented Businesses through specific Regulation and Permitting in addition to Zoning. 

In accordance with the Texas Local Government Code, Chapter 243, the City Council adopted Ordinance No. 2011-1053 Regulating Sexually Oriented Businesses in October 2011. The Zoning Ordinance as drafted would restrict such development solely to those areas Zoned I-1 Industrial.  If such a business wished to set up shop in Fulshear they would have to locate within that Zoning District and go through the Regulatory and Permitting process outlined in the aforementioned Ordinance.

17)   If someone is building a home would they be allowed to place an RV or temporary home on the site in the R-1 Zone while construction is ongoing?

As currently drafted the proposed Zoning Ordinance allows for the placement of “a Manufactured Home on a temporary basis for the duration of the construction of a residential, commercial or industrial subdivision or project.”  The Council will be considering a version of the Ordinance that would allow for Recreational Vehicles for such use as well.

18)   How does the METRO Line affect Zoning?

The METRO Line is treated the same way as any other Public use or Governmental property and is considered a Community Facility.  Otherwise, there is no impact on the Zoning Ordinance.

19)   If you have a large piece of land in the R-1 Zone and you wish to subdivide the property, how small can you make the lots?

The Ordinance in its current form allows for a minimum of one acre lots in the R-1 Zoning District; which would in turn mean that would be the smallest lot size.  However, several of the neighborhoods located within the R-1 Zoning District have Deed Restrictions requiring larger acreages as the minimum lot size.  As stated above, the more restrictive document controls therefore a property owner in this area would be wise to consult their Deed Restrictions to ensure they understood the minimum lot size prior to attempting a subdivision of their property.

20)   What impact does Zoning have on Low Income Housing?

Depending on the type of development the impact would be minimal.  If the development was geared to construct Single Family Homes on Single Lots, such development could occur in any of the Residentially Zoned areas, Manufactured Housing Park Zoned areas or the Downtown District depending on the minimum lot size.  If the development was intended to be a Multi-Family development then they would be restricted to an area Zoned for Multi-Family properties or in the Downtown District with a Special Use Permit.