update…my councilman went down in a pile of flames five months later after sending me this email below….(Meth) Mel Leblanc resigned after admitting to buying meth from a known prostitute…so when he says co-existing with gas wells is safe…would you believe him?
Folks here is the response by my Councilman….
“I will not be responding to this at my Town Hall meeting, nor will I ask to put a restriction on any drilling activity. In fact, I want Truman drilled ASAP.
Arlington City Council, District 1
On Sat, Sep 10, 2011 at 8:46 PM, Kim Feil wrote:
Good evening Councilman LeBlanc, please be prepared to respond to the content of this email and defend how the City Councils in Arlington (and in Ft Worth) are allowing these waivers. I will be asking for your response at the Town Hall Meeting in particular in reference to how the Chesapeake Truman drill site in our precinct is evidently illegal and ask you to put a restriction on their next phase of activity.
Sincerely, Kim Feil
“(c) A well may not be drilled in the thickly settled part of the municipality..”
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Sent: Saturday, September 10, 2011 7:26 PM
Subject: GRANTING GAS DRILLING WAIVERS – CONTRARY TO STATE LAW
Fort Worth City Council
I object to the City Council continuing the practice of granting
waivers in matters of gas drilling. The City Council does not have
the authority to grant waivers according to State Statute.
On July 9, 2011, I presented the reason the City Council is not
authorized to grant waivers. In the Attorney General Opinion JM-1069, Jim Mattox stated “In our opinion, the governing body of a municipality that has adopted a comprehensive zoning plan cannot–consistent with the regulatory statutes–act as a zoning board of adjustment pursuant to a local ordinance, nor may members of the governing body be appointed to serve on a separate board of adjustment. See generally City of Pharr v. Tippit, 616 S.W.2d 173 (Tex.1981).”
As you will note it stipulates, nor may members of the governing body be appointed to serve on a separate board of adjustment. When the City Council grants a waiver it is acting as a separate body.
The attorney General in his Opinion JM 1069 explains, “The statute plainly evidences the will of the Legislature to grant the power to the board of trustees to select and appoint an official board of equalization of assessments to be composed, not of themselves, but of other qualified and suitable persons.”
The Fort Worth City Attorneys Office replied in a document to me stating that gas drilling is not regulated under the Comprehensive Zoning Plan. However, there was no supporting evidence as to how that was determined or why gas drilling locations are not considered by the Comprehensive Zoning Plan as dictated by State Law.
I contend their conclusion incorrect. The City Of Fort Worth, as a Home Rule City, is allowed to adopt a Comprehensive Zoning Plan by State Law and in doing so, certain actions must be taken, including the formation of a Zoning Board of Adjustment. There is no provision in the statute allowing a private company being excluded from the Comprehensive Zoning Plan without legislative approval, and there is none.
The City does not have the authority to ignore State Statue or to pick and choose the parts of a Comprehensive Plan it wants to abide by. There is nothing in State Law that makes it optional.
I am attaching AG Opinion JM 1069 for you to read again.
At the Council meeting on July 9th, I requested an Attorney General Opinion be sought if there is any doubt as to the meaning of this Opinion. That apparently was not done as there is an item on the current Council agenda by a gas drilling company requesting another waiver.
The City Council was provided the Attorney Generals Opinion clearly stating it may not act as a separate board. I have also attached a copy of Local Government Code 211 relating to Zoning. I find nothing in Local Code 211 that contradicts AG Opinion JM-1069.
I have provided reasons why it is improper for the City Council to grant waivers in gas drilling matters with Attorney General Opinions and Local Government Codes to support my allegations. If it is felt I am incorrect in my beliefs, it would be appropriate for the City to provide me with equally supporting documents of Attorney General Opinions and Local government Code rules that support an otherwise position.
I would also suggest getting an Attorney General Opinion regarding the method Fort Worth (and Arlington) is allowing gas drilling in all zoning districts in a manner that is apparently unrestricted in those zoning areas. This would include allowing gas wells in what constitutes heavily settled areas and allowing gas drilling in areas where the Comprehensive Zoning plan only allows certain development, except for gas drilling, while not allowing other development because it doesn’t meet the requirements of the Comprehensive Zoning Plan. In most cases, these have applied to small parcels of land and therefore created “SPOT ZONING” or an equivalent action, an illegal action.
On the surface this practice may appear to be only harmful to the surrounding area, but it is also illegal too. It is called Spot Zoning and the City has no authority to ignore the Comprehensive Zoning Plan. I reference Pharr V. Tippett.
Office of the Attorney General
State of Texas
July 7, 1989
Honorable John F. Perry
Hopkins County Courthouse
Sulphur Springs, Texas 75482
Opinion No. JM 1069
Re: Composition of municipal
zoning board of adjustment (RQ-
Dear Mr. Perry:
You have asked whether the governing body of a home rule city,
which has adopted a comprehensive zoning plan pursuant to the
enabling statutes now codified in chapter 211 of the Local
Government Code, may, by local ordinance, designate itself to act as
a zoning board of adjustment.
It has been suggested that such an arrangement would violate article
II, section 1, of the Texas Constitution, the “separation of powers”
provision, but we conclude that it is unnecessary to reach the
constitutional question. The statute authorizing cities to create zoning
boards of adjustment itself prevents the governing body of a city from
acting as the zoning board of adjustment, in our opinion.
The power of cities to enact comprehensive zoning plans is
circumscribed. See Mixon, Texas Municipal Zoning Law, s 1.09 at 1-
21 (issue 3-1988). In Bolton v. Sparks, 362 S.W.2d 946 (Tex.1962),
the Texas Supreme Court said:
The courts of this State have held ordinances and amendments to
ordinances invalid where the express, mandatory provisions of our
zoning statute have not been complied with…. Municipal ordinances
must conform to the limitations imposed by the superior statutes, and
only where the ordinance is consistent with them, and each of them,
will it be enforced.
362 S.W.2d at 950. When the statutes conferring zoning authority
upon cities d irect that action be taken in a certain way, it may be
performed in no other ma nner. See Smart v. 370 S.W.2d 245
(Tex.Civ.App.–Texarkana 1963, no writ). And the legislature may
restrict such actions as it sees fit. See Coffee City v. Thompson, 535
S.W.2d 758 (Tex.Civ.App.-Tyler 1976, writ ref’d n.r.e.); Lawton v.
City of Austin, 404 S.W.2d 648 (Tex.Civ.App.–Austin 1966, writ
ref’d n.r.e.). Cf. City of Brookside Village v. Comeau, 633 S.W.2d
790 (Tex.), cert. denied, 459 U.S. 1087 (1982) (no comprehensive
Local Government Code section 211.008 reads:
(a) The governing body of a municipality may provide for the
appointment of a board of adjustment. In the regulations adopted
under this subchapter, the governing body may authorize the board of
adjustment, in appropriate cases and subject to appropriate conditions
and safeguards, to make special exceptions to the terms of the zoning
ordinance that are consistent with the general purpose and intent of
the ordinance and in accordance with any applicable rules contained
in the ordinance.
(b) A board of adjustment must consist of five members to be
appointed for terms of two years. The appointing authority may
remove a board member for cause on a written charge after a public
hearing. A vacancy on the board shall be filled for the unexpired term.
(c) The governing body, by charter or ordinance, may provide for the
appointment of four alternate board members to serve in the absence
of one or more regular members when requested to do so by the
mayor or city manager. An alternate member serves for the same
period as a regular member and is subject to removal in the same
manner as a regular member. A vacancy among the alternate members
is filled in same manner as a vacancy among the regular members.
(d) Each case before the board of adjustment must be heard by at least
(e) The board shall adopt rules in accordance with any ordinance
adopted under this subchapter. Meetings of the board are held at the
call of the chairman and at other times as determined by the board.
The chairman or acting chairman may administer oaths and compel
the attendance of witnesses. All meetings of the board shall be open
to the public.
(f) The board shall keep minutes of its proceedings that indicate the
vote of each member on each question or the fact that a member is
absent or fails to vote. The board shall keep records of its
examinations and other official actions. The minutes and records shall
be filed immediately in the board’s office and are public records.
On the face of section 211.008,
it does not appear mandatory
that a city appoint a board of adjustment. The use of “may” in
subsection (a) suggests that the appointment of such a board is
discretionary, although the case of Sams v. Dema, 316 S.W.2d 165
(Tex.Civ.App.–Houston 1958, writ ref’d n.r.e.), indicates that a city
attempting to enforce a comprehensive zoning plan without a board of
adjustment may be mandamused to provide one. See also City of
Amarillo v. Stapf, 101 S.W.2d 229 (Tex.1937); Mixon, Texas
Municipal Zoning Law, s 1.19 at 1-26 (issue 3-1988).
Nonetheless, though the creation of a board of adjustment may be
discretionary, the word “may” in subsection (a) of the statute cannot
be construed to allow the governing body of a city to itself act as a
board of adjustment if one is not appointed, or to appoint its own
members as board members if such a board is created. Cf. Lauterbach
v. City of Centralia, 304 P.2d 656 (Wash.1956). When the legislature
intended that the governing body of a municipality could exercise the
zoning powers of an appointive commission or board, it plainly so
indicated–as it did with zoning commissions. See Local Gov’t Code s
211.007. Cf. Acts 1979, 66th Leg., ch. 754, at 1869 (source law);
Coffee City v. Thompson, supra (prior law).
Unlike a zoning commission, which merely advises the governing
body prior to the exercise of legislative power by the latter, a zoning
board of adjustment is an administrative appellate body charged with
deciding appeals from the decisions of administrative officials. Local
Gov’t Code s 211.010.
See Mixon, Texas Municipal Zoning
Law, s 8.08 at 8-12 (issue 4-1989). Under the scheme of statutory
comprehensive zoning plans, those aggrieved or affected by an
administrative officer’s voidable decision (including cities) must
exhaust administrative remedies before petitioning a court to remedy
the matter. See City of Dallas v. Gaechter, 524 S.W.2d 400
(Tex.Civ.App.–Dallas 1975, writ dism’d); cf. Austin Neighborhoods
Council, Inc. v. Board of Adjustment of City of Austin, 644 S.W.2d
560 (Tex.App.–Austin 1982, writ ref’d n.r.e.) (ratification of appeal
by city council).
The incongruity of the governing body being at the same time an
appellant and the adjudicator of its own appeal argues strongly against
any supposed legislative intent that the governing body of a city
could, at its election, act as the legislatively contemplated board of
adjustment for the city. Cf. Attorney General Opinion H-117 (1973)
(election commissions; judges). A local ordinance purporting to
authorize such a role for the governing body would seemingly fail the
test of due process of law, which demands an impartial trier of facts.
See Thompson v. Texas State Bd. of Medical Examiners, 570 S.W.2d
123 (Tex.Civ.App.–Tyler 1978, writ ref’d n.r.e.); Martinez v. Texas
State Bd. of Medical Examiners, 476 S.W.2d 400 (Tex.Civ.App.–San
Antonio 1972, writ ref’d n.r.e.).
We conclude that the governing body of a municipality that chooses
not to appoint a separate board of adjustment is not authorized to act
as a de facto board of adjustment itself. Although subsection (a) of
section 211.008 may not mandate the establishment of such a board,
it effectively precludes the exercise of such a board’s powers except
in conformity with statutory requirements.
We also conclude that members of the governing body cannot be
appointed to serve on such a board if one is created. However
uncertain might be the proper reading of subsection (a), there can be
no doubt about the mandatory nature of subsection (b) of section
211.008. It states that a board of adjustment “must consist of five
members to be appointed for terms of two years,” and it authorizes
the appointing authority to remove appointees for cause.
In Ehlinger v. Clark, 8 S.W.2d 666 (Tex.1928), the Texas Supreme
It is because of the obvious incompatibility of being both a member
of a body making the appointment and an appointee of that body that
the courts have with great unanimity throughout the country declared
that all officers who have the appointing power are disqualified for
appointment to the offices to which they may appoint.
8 S.W.2d at 674. Also, in St. Louis Southwestern Ry. Co. of Texas v.
Naples Indep. School Dist., 30 S.W.2d 703 (Tex.Civ.App.–Texarkana
1930, no writ), the court held null and void the appointment by a
school board of themselves as a board of equalization for school
district taxes, saying:
The statute plainly evidences the will of the Legislature to grant the
power to the board of trustees to select and appoint an official board
of equalization of assessments to be composed, not of themselves, but
of other qualified and suitable persons.
30 S.W.2d at 706. See also Attorney General Opinion JM-934 (1988).
In our opinion, the governing body of a municipality that has adopted
a comprehensive zoning plan cannot–consistent with the regulatory
statutes–act as a zoning board of adjustment pursuant to a local
ordinance, nor may members of the governing body be appointed to
serve on a separate board of adjustment. See generally City of Pharr
v. Tippit, 616 S.W.2d 173 (Tex.1981).
The governing body of a city cannot–consistent with the statutes
regulating zoning matters–act as a zoning board of adjustment
pursuant to a local ordinance, nor may members of the governing
body be appointed to serve on a separate board of adjustment.
Very truly yours,
Attorney General of Texas
First Assistant Attorney General
Executive Assistant Attorney General
Judge Zollie Steakley
Special Assistant Attorney General
Chairman, Opinion Committee
Assistant Attorney General
FN1. The Local Government Code was enacted in 1987 as a
nonsubstantive recodification of existing law. Acts 1987, 70th Leg.,
ch. 149, s 51, at 1308. The prior law for chapter 211 was found in
articles 1011a through 1011m, V.T.C.S. Section 211.008 was derived
from former article 1011g, V.T.C.S., which referred not to the
“governing body of a municipality” but, rather, to the “local
legislative body” of a home rule city or of a general law municipality.
See Acts 1971, 62d Leg., ch. 742, s 1, at 2385. The courts have often
identified zoning boards of adjustment as “quasi-judicial” or
“administrative” bodies. See Murmur Corp. v. Board of Adjustment of
City of Dallas, 718 S.W.2d 790 (Tex.App.–Dallas 1986, writ ref’d
n.r.e.); Board of Adjustment of City of San Antonio v. Nelson, 577
S.W.2d 783 (Tex.Civ.App.–San Antonio 1979, writ ref’d n.r.e.), 584
S.W.2d 701 (Tex.1979); Washington v. City of Dallas, 159 S.W.2d
579 (Tex.Civ.App.–Dallas 1942, writ ref’d); 52 Tex. Digest 2d
Zoning and Planning s 355 (1984). See also City of Amarillo v.
Stapf, 101 S.W.2d 229 (Tex.1937) (powers of board adjustment).
FN2. Whether the word “may” in a statute is permissive or obligatory
depends in great measure on the intent and object of the legislature in
making the enactment. It means “must” when the intent is that the
public have an interest in having the act done (or a claim de jure that
the power be exercised). See Rains v. Herring, 5 S.W. 369
(Tex.1887); Kleck v. Zoning Bd. of Adjustment of the City of San
Antonio, 319 S.W.2d 406 (Tex.Civ.App.–San Antonio 1958, writ
FN3. Section 211.007 reads in part:
(a) To exercise the powers authorized by this subchapter,
the governing body of a home-rule municipality shall, and
the governing body of a general-law municipality may,
appoint a zoning commission. The commission shall
recommend boundaries for the original zoning districts and
appropriate zoning regulations for each district. If the
municipality has a municipal planning commission at the
time of implementation of this subchapter, the governing
body may appoint that commission to serve as the zoning
(e) If a general-law municipality exercises zoning authority
without the appointment of a zoning commission, any
reference in a law to a municipal zoning commission or
planning commission means the governing body of the
municipality. (Emphasis added.)
FN4. Subsection (a) of section 211.010 provides:
(a) Any of the following persons may appeal to the board
of adjustment a decision made by an administrative
(1) a person aggrieved by the decision; or
(2) any officer, department, board, or bureau of
the municipality affected by the decision.
FN5. There are listed in Mixon, Texas Municipal Zoning Law s 8.01,
several cases that apparently assumed–without holding–that entities
other than boards of adjustment could perform functions that the
enabling act delegates to the board. Several of them were decided
prior to the Texas Supreme Court’s decision in Bolton v. Sparks,
supra. None directly addressed the issue here. See Cleburne Living
Center, Inc. v. City of Cleburne, 726 F.2d 191 (5th Cir.1984), aff’d in
part and vacated in part, 473 U.S. 432 (1985); Fountain Gate
Ministries, Inc. v. City of Plano, 654 S.W.2d 841 (Tex.Civ.App.–
Dallas 1983, writ ref’d n.r.e.); Slater v. City of River Oaks, 330
S.W.2d 892 (Tex.Civ.App.–Fort Worth 1959, no writ); Dunaway v.
City of Austin, 290 S.W.2d 703 (Tex.Civ.App.–Austin 1956, writ
ref’d n.r.e.); Congregation Comm. v. City Council, 287 S.W.2d 700
(Tex.Civ.App.–Fort Worth 1956, no writ). As observed in 22 Texas
Practice 233 (Singer, Municipal Law and Practice s 502), “The
language of the statute seems to contemplate that a board [of
adjustment] separate from the city council will be appointed.”
FN6. Subsection (b) does not specify that the governing body of the
municipality itself must be “the appointing authority,” but in any case
“the appointing authority” cannot appoint members of the governing
body to the board of adjustment. The power of the governing body of
the city to control or alter by ordinance the conditions under which
“the appointing authority” (whoever it may be) exercises the
appointive power effectively eliminates members of the governing
body as valid appointees. See Attorney General Opinion JM-386
(1985); 67 C.J.S. Officers s 23 at 269.
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