Excerpted from Flower Mound Planning and Zoning Commission minutes of 12/14/09.

Public Hearing to consider an amendment to the Land Development Regulations (LDR 04-09), by amending Section 98-2 (Definitions), Sections 98-952 (Use Classifications), and 98-273 (Agricultural District Specific Uses), to provide for a Centralized Natural Gas Production Facility definition, use regulations, and special use conditions.

Commissioner Webb asked, if they (the commission) recommended against doing this, and Council went along with that, what the outcome would be; and if there would not be any of those types of facilities in town, or whether they might come in through another process anyway and they would have lost a point of control.

Mr. Powell said the Town could not limit a use by not allowing it within the zoning code. For example, some towns had tried to exclude sexually-oriented businesses, or bars or restaurants, as part of their zoning code, but they were not allowed to do that by the courts. They had to allow for those uses that were normally found within a town or city. They could say where they could locate, but they could not exclude them from existence.

Commissioner Webb asked, so if they were not allowed to not allow them, but they were not going to allow them, what would happen then and whether that would leave them in court.

Mr. Lathrom said it did place them in court. Mr. Powell was right on point. They were not allowed to zone uses out of existence or prohibit uses they did not want in their community. For example, with sexually-oriented businesses, they could not prohibit their existence, but they could adopt regulations that allowed them to place reasonable time, of businesses and try to make them not as offensive as they might be without those regulations in place.

Commissioner Webb said, so this was an opportunity to exert some control upon those uses, with the control being the things referenced in the ordinances.

Mr. Powell said if a land use was not in their zoning code, then they were either required to say it was akin to something in the zoning code and treat it similarly to that definition, or they had to create a definition for the land use and say what zoning district it went in. The choices were to allow it by right as a permitted use, which meant that someone only needed a site plan or building permit, or allow it with a specific use permit, which required a public hearing process and review by P&Z and Council......

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