GRANTING GAS DRILLING WAIVERS – CONTRARY TO STATE LAW

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.
 
Mel LeBlanc
Arlington City Council, District 1
817-469-8525″

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

TEX LG. CODE ANN. A§ 253.005 : Texas Statutes – Section 253.005: LEASE OF OIL, GAS, OR MINERAL LAND
“(c) A well may not be drilled in the thickly settled part of the municipality..”
Texas Administrative Code, Title 30,  Part 1, Chapter 101, Subchapter A,
Rule 101.4, Environmental Quality, Nuisance
No person shall discharge from any source whatsoever one or more
air contaminants or combinations thereof, in such concentration and
of such duration as are or may tend to be injurious to or to adversely
affect human health or welfare, animal life, vegetation, or property, or
as to interfere with the normal use and enjoyment of animal life, vegetation,
or property.

To op-out from blind copied emails, hit the reply button and request on the subject line or in the subject text. Feedback is encouraged.
Ask your driller if they use http://lamnipipe.com/Home.html for a less radioactive flow back.

Sent: Saturday, September 10, 2011 7:26 PM
Subject: GRANTING GAS DRILLING WAIVERS – CONTRARY TO STATE LAW
9/10/11
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.

Jim Ashford

—————————————————————–

Office of the Attorney General

State of Texas

July 7, 1989

Honorable John F. Perry

County Attorney

Hopkins County Courthouse

Sulphur Springs, Texas 75482

Opinion No. JM 1069

Re: Composition of municipal

zoning board of adjustment (RQ-

1626)

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

zoning plan).

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

four members.

(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.

(Emphasis added.)

On the face of section 211.008,

[FN1]

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).

[FN2]

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).

[FN3]

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.

[FN4]

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.

[FN5]

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.

[FN6]

In Ehlinger v. Clark, 8 S.W.2d 666 (Tex.1928), the Texas Supreme

Court said:

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).

SUMMARY

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,

Jim Mattox

Attorney General of Texas

Mary Keller

First Assistant Attorney General

Lou McCreary

Executive Assistant Attorney General

Judge Zollie Steakley

Special Assistant Attorney General

Rick Gilpin

Chairman, Opinion Committee

Prepared by

Bruce Youngblood

Assistant Attorney General

Footnotes

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

ref’d).

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

commission.

….

(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

official:

(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.

Texas OAG home page

 

 

Opinions & Open Government

Advertisements

About Kim Triolo Feil

Since TX Statute 253.005 forbids drilling in heavily settled municipalities, I unsuccessfully ran for City Council Seat to try to enforce this. Since Urban Drilling, our drinking water has almost tripled for TTHM's. Before moving to Arlington in 1990, I lived in Norco’s “cancer alley”, a refinery town. It was only after Urban Drilling in Arlington did I start having health effects. After our drill site was established closest to my home, the chronic nosebleeds started. I know there are more canaries here in Arlington having reactions to our industrialized airshed (we have 55-60 padsites of gas wells). Come forward and report to me those having health issues especially if you live to the north/northwest of a drill site so I can map your health effects on this blog. My youtube account is KimFeilGood. FAIR USE NOTICE: THIS SITE MAY CONTAIN COPYRIGHTED MATERIAL THE USE OF WHICH HAS NOT ALWAYS BEEN SPECIFICALLY AUTHORIZED BY THE COPYRIGHT OWNER. MATERIAL FROM DIVERSE AND SOMETIMES TEMPORARY SOURCES IS BEING MADE AVAILABLE IN A PERMANENT UNIFIED MANNER, AS PART OF AN EFFORT TO ADVANCE UNDERSTANDING OF THE SOCIAL JUSTICE ISSUES ASSOCIATED WITH EMINENT DOMAIN AND THE PRIVATIZATION OF PUBLIC INFRASTRUCTURE (AMONG OTHER THINGS). IT IS BELIEVED THAT THIS IS A 'FAIR USE' OF THE INFORMATION AS ALLOWED UNDER SECTION 107 OF THE US COPYRIGHT LAW. IN ACCORDANCE WITH TITLE 17 USC SECTION 107, THE SITE IS MAINTAINED WITHOUT PROFIT FOR THOSE WHO ACCESS IT FOR RESEARCH AND EDUCATIONAL PURPOSES. FOR MORE INFORMATION, SEE: HTTP://WWW.LAW.CORNELL.EDU/ TO USE MATERIAL REPRODUCED ON THIS SITE FOR PURPOSES THAT GO BEYOND 'FAIR USE', PERMISSION IS REQUIRED FROM THE COPYRIGHT OWNER INDICATED WITH A NAME AND INTERNET LINK AT THE END OF EACH ITEM. (NOTE: THE TEXT OF THIS NOTICE WAS ALSO LIFTED FROM CORRIDORNEWS.BLOGSPOT.COM)
This entry was posted in Uncategorized and tagged , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s