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First United-CS 971022 NICHOLS. JACKSON, DILLARD. HAGER & SMITH. L.L.P. Attorneys & Coun.,,elors at Law I~AWRENCE W. JACKSON 1800 Lincoln Plaza JOHN F. ROEHM III ROBERT L. DILLARD III 5(X) North Akard JENNIFER R. DIETZE ROBERT E. HAGER JASON C. MARSHALL PETER G. SMITH Dallas, Texa~ 7520 I DAVID M. BERMAN ( 214) 965-9900 BRUCE A STOCKARD F;.Ix I _314) 965-0010 ROBERT L DILLARD. JR H. LOUIS NICHOLS OF COUNSEL October 22. 1997 Ken Griffin City Engineer/Assistant City Manager City of Coppell 255 Parkwav Boulevard P.O. Box 478 Coppell. Texas 75019 Re: [.sage of new or innovative products Dear Ken: We have reviewed your memorandum dated October 10. 1997. with regard to the above subject. Your question appears to be what mechanism can the City use to allow a new or innovative product on a limited basis. In the example you use in your memorandum, an alternative surface to that required by the subdivision regulations would be used tbr an off-street parking lot. Thc subdivision regulations provide, in Appendix "C' Section I F..1.j that parking lots public use shall be constructed of a minimum of five inches of concrete on a prepared "lime or cement modified" subgrade with adequate surfhce drainage. To use thc type of product you describe in your memorandum, the developer xvould have to secure a variance from the City Council. Given the definition of variance in the subdivision regulations, this would appear to be very difficult. However. it is one way that a new or innovative product could be used by a developer. Its use might be very risky to thc dc~,'cl,~er ~.f he wet..~ renu/red to replace the area after a year or some other authorized time. Since the subdivision regulations are not part of the zoning ordinance, the Board of Adjustment would have no jurisdiction to grant a variance. If the specific requirement involved is in the zoning ordinance, the Board of Adjustment would have jurisdiction over a variance request. However. as you state in your memorandum, it appears that the only.' general reason for use of a new or innovative product would be financial. As vou know. there is no property hardship involved where the only reason to grant a variance is a financial one. Therefore. the Board of Adjustment would not be authorized to grant a variance to the zoning ordinance. October 22, 1997 Page 2 The subdivision ordinance requires the developer to submit a letter requesting any variances along with his preliminal? plat. I believe that that would be the best time to review any potential use of new or innovative products which might be different than permitted by the subdivision regulations. If the regulation is contained in the zoning ordinance, another alternative would be to provide for the granting of a special exception by the Board of Adjustment. The Board has authority to hear and decide special exceptions to the terms of a zoning ordinance when the ordinance requires the Board to do so. This would require an amendment of the zoning ordinance to outline the exact criteria that would be necessary to authorize the Board to grant a special exception. Again, this appears to be very difficult to word generally enough to allow a variety of new or innovative products while at the same time making it specific enough to be valid against allegations of vagueness and an unlawful delegation of legislative authority. I believe that delegation to the City Engineer of the ability to allow a new or innovative product to be field tested, on condition that it be reconstructed if it is not performing as anticipated, would be a very risky delegation of legislative authority. \Ve would probably not recommend such a direct delegation. I believe the same thing can be accomplished as a variance to the subdivision regulations but I am doubtful that many developers would want to take the risk that they might have to redo something later on. Also. the idea of what it takes to "perform as anticipated" is very vague and would be very difficult to assess and enforce as you suggest. Another alternative would be to amend the subdivision regulations, the zoning ordinance or other applicable ordinances to permit the experimental product on a very limited basis, with definite technical specifications and time limitation. I hope this gives you some ideas about how the City can permit new or innovative products not currently allowed by applicable ordinances. I would be happy to discuss it with you in more detail at any time. Very truly yours, NICHOLS, JACKSON, DILLARD, HAGER & SMITH. L.L.P. Robert L. Dillard. III RkDimmf 13237 NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P.