"An ordinance is a rule of the city"

Regular Meeting
Tuesday, August 8, 2006

VIII. Public Hearings

C. Consideration of an appeal of the Design Review Board’s decision to deny part of a Design Study application for exterior alterations to an existing residence located on the west side of San Antonio between 11th & 12th Avenues. The appellant is Michael Batori and the property owners are Jerry and Cindy Johnston.

Council Member ROSE moved to grant the appeal, overturn the decision of the Design Review Board, allowing for a 5’3” front fence clad with stone and additional skylights, seconded by Council Member BETHEL and carried by the following roll call:

AYES: BETHEL, HAZDOVAC, ROSE
NOES: CUNNINGHAM, McCLOUD
ABSENT: NONE
ABSTAIN: NONE



During City Council deliberations on the above agenda item, the following verbal exchanges occurred:

Mayor McCLOUD: “Council, we have a zoning ordinance which states 3 feet maximum for a fence, a wall and that this limit shall not be altered by the Design Review Board or the Planning Commission and I’m sure it means Council. We cannot vote against our own city ordinances.”

Councilman ROSE: “Actually we can.”

Councilman BETHEL: “We do all the time.”

Councilman ROSE: “And we do all the time. And because it does not include the Council, the Council is perfectly capable of approving it and should.”

City Attorney FREEMAN: “I have to differ with you. An ordinance is a rule of the city. If the City Council wishes to amend the ordinance, that’s one thing, but there is no provision in the ordinance for granting exceptions or doing anything else to it...because it is an ordinance, if you do approve this, what I would recommend is we take a look at the ordinance, in terms of revising the ordinance to be consistent with this decision and in additional because of the Design Guidelines regarding skylights, we probably ought to take a look at those as well to incorporate some of the comments that have been made this evening so that again everyone is treated the same throughout the city.”

Councilman ROSE: “I respectfully disagree with your legal opinion. As you know, there is a well recognized provision in the law that says if you include 1 or 2 items and exclude a third, then the third is indeed excluded. The ordinance does not include the City Council. The City Council has in fact the right to override the finding of the lower boards and I hope that we’ll do so.”

City Attorney FREEMAN: “Excuse me, but it does have the ability to do that but it is an ordinance. And an ordinance can only be changed by another ordinance, not be a motion of the City Council or a resolution of the City Council…The ordinance is the law of the city. The City Council does not have the ability to go beyond the ordinance. If the City Council wishes to change the ordinance or develop other findings on this application, such as, there is an existing fence there, and you’re not creating a new fence, perhaps some type of replacement, you can come up with certain findings to do that, but you can’t just simply say that because we have an ordinance that says 3’ you can now build one 5’. You don’t have the ability to do that, as a Council, without amending the ordinance.”

Councilman ROSE: “I respectfully disagree. I think we can do what we just did. And I think we can just do it by saying there is an existing fence and we’re just putting additional clad on it and it’s perfectly acceptable.”

City Attorney FREEMAN: “Again, if you develop findings, such as what you have just indicated, you can do that. That’s correct; you’re not changing the ordinance. But the motion as it was previously stated did not incorporate those kinds of things in it. And you would need to articulate them so that...”

Councilman ROSE: “I just did.”

City Attorney FREEMAN: “O.K. That’s fine...You can’t just change an ordinance by granting an appeal.”


COMMENT: While Councilman Rose’s zealous advocacy for “green architecture” and aesthetics is noteworthy, his attitude that Council Members can cavalierly vote against the city’s ordinances is disturbing. Members of the public must have confidence that its elected representatives respect the law, as City Attorney Freeman stated, “The ordinance is the law of the city,” and not abuse their position by substituting their subjective, zealous opinions for an accurate interpretation of the ordinances as written, on a case-by-case basis.