Boston Chicken-CS 931214 NICHOLS, JACKSON, DILLARD, HAGER & SMITH,
LAWRENCE W. JACKSON Attorneys ~' Cou...-l.~elor~ ~ L~w JOHN F. ROEHM
ROBERT I.. DILLARD III c, '~"l~"H~'&% A. MELTON -
ROBERT E. HAGER [800 Lincoln Plaza ~ ' '-
PETER G. SMITH 500 North Akard ROBERT L. DILLARD. JR.
DASD M. BERMAN H. LOUIS NICHOLS
BRUCE A. STOCKARD Dallas, Texas 73201 oF COUNSEL
(214) 934-3333 , C¢' '
FAX (214) 934-3334
December 14, 1993
pg Jones
ing O~c~a]
ell
P. O. Box
Coppell, Te×~r~ 75019
Re: Roston Chicken Restaurant Par]ting Valance Request
Dear Greg:
Pursuant to your request, the tmders~gued provide the fol]ow~g opinion concerning
whether the Zoning ~oa~d of Adjustment may gra~t a special except]on or va_da~ce to the
parking requirements of the Compreheusive Z~niug Ordinance as they apply to a ~oston
Ckicken Restaurant. For the reasons set forth herein we conclude that the Zoning Board
of Adjustment may grant a va~-iance to the parking requtrcmeut~ upon a showing
unnecessary hardship.
You advise that Boston Chicken Restaurant has requested the ~oning ~oard of
Adjustment grant a special ¢~cept]on or valance to the parking requirements in the
Comprehensive Zoning Ordinance. SpeciFically, the applicant has requested a reduction in
the required number of parking spaces with any additional required park~g to be provided
off-site. Section 3 ~-8 of the Comprehemtv¢ ~oniug Ordinance requires that all parking be
provided on the same lot with the use served, however, Section 3[-8(2) permits not more
than 50% of the required park~g to be located off-site under a joint use/remote parking
agreement.
Tnifia]]y, we note that Sect]on 41-3(3) of the Comprehensive ~on~ng C)rdina~ce
authorizes the Zoni_ng Board of Adjustment to grant special exceptions to the term.~ of the
Comprehensive 7~ouLng Ordinance. Subsection D of that section perm]ts the Board to waive
or reduce the parking requirements in any district whenever the character or use of the
building ts such as to ma]ce tmuecessary the full provision of par~g, or where such
regu]at]ous would impose an u~reasonable hardship upon the use of the lot. Additionally,
Sect]on 4~-3(4) authorizes the ~oard o£ Adjustment to grant variances to the terms of the
Cornpreheu-~ive Zonin§ Ordinance that wi]] not be contrary to the public interest where,
ow~g to special conditions, a LiteraJ enforcement of the provtstous of the Comprehensive
Zoning Ordinance wi]] result in tmuecessary har~hip. A~thoug~ Subsecfiom (A), (B), and
(C) of Section 41-3(4) [tst specific valances or types of valances which a ~oard
Adjustment may grant, the list is not all inclusive. Thus, the 7.oniug Board of Adjustment
December 14, 1993
Page 2
may grant a variance to the Zoning Ordinance, upon the showing of an unnecessary
hardship.
Traditionally, special exceptions are specified uses that the Comprehensive Zoning
Ordinance determines are appropriate and allowed in designated districts, if the Zoning
Board of Adjustment determines that particular placement will not adversely affect the
public and neighborhood interests. Variances, on the other hand, allow owners to depart
from the technical zoning regulations to avoid undue hardship. These departures are not
desirable as a matter of land use policy, and are allowed only because the applicant shows
particular equities against strict enforcement. Special exceptions however are valid uses that
the Comprehensive Zoning Ordinance expressly authorizes in designated districts. Since
special exceptions violate no land use policies and are favored as long as they do not cause
adverse impact to the public, an applicant need not show hardship.
Since, special exceptions relate to uses allowed by a zoning ordinance but specifically
approved by the Board of Adjustment for situational suitability, we conclude that Section
41-3(3) is incorrectly titled "SPECIAL EXCEPTIONS" and is nothing more than a list of
express variances or types of variances that the Board of Adjustment may grant when the
requisite hardship has been shown. As a result, Boston Chicken must show that the literal
enforcement of the parking regulations will result in an unnecessary hardship. A variance
will not be authorized merely to accommodate the highest and best use of the property, nor
to eliminate a financial hardship. A variance should only be granted when the
Comprehensive Zoning Ordinance does not permit any reasonable use of the property.
Accordingly, only if the literal enforcement of the parking regulations will result in an
unnecessary hardship because of the topography or unique characteristics of the property,
should a variance be granted.
Thank you for your attention in this matter. If you have any further questions in this
regard, please don't hesitate to contact me.
Very truly yours,
NICHOLS, JACKSON, DII I.ARD, HAGER & SMITH, LLP.
PGS/jd
'"x'-/-cc Mr. Gary L Sieb
Director of Planning
City of Coppell
P. O. Box 478
Coppell, Texas 75019