Phillips Addition-CS 780929 SANER,~IACK,SALLINGER ~,, NICHOLS
ATTORNEYS AND COUNSELOI~5 AT ~W
DALLAS ,TEXAS 75~01
September 29, 1978
Mr. Jim Elium
City Administrator
P. O. Box 478 ..
Coppell, Texas 75019
Re: Zoning Opinion
Dear Jim:
You have asked me to give you an opinion concerning a specific fact situation
involving a zoning question. The facts I am to consider are as follows:
A citizen, who is also a member of the City Council, owns a
tract of land, a small portion of which is zoned commercial and
the remainder zoned residential. The property is heavily pitted
as a result of a sand and gravel mining operation which took
p]aee many years ago and prior to the present ownership. The
owner states that the high walls of the gravel pit pose a problem
which affects the entire neighborhood and that the property
cannot be put to residential use without first doing extensive
dirt moving and leveling on the property. The owner proposes
to commence this reclamation project which will involve the
digging, moving and removal of sand and gravel. Most of the
sand and gravel which will be removed at one point on the
property will be replaced at other points on the property, so as
to eventually level the property in a manner suitable for
residential construction. However, a considerable quantity of the
material to be removed will not be needed and the owner proposes
to se]] this excess material to help pay the cost of the overall
reclamation project.
The question presented is whether or not the owner will require a zoning
change,' and if so, what type of zoning change would be required.
If the property owner was not going to sell any of the sand and gravel
removed from the property, there would be no question as to his right to accomplish
his project without further ~.oning change. However, if it is determined that his
operation is a commercial sand and gravel busirmss, he would have to seek a zoning
change as the mining of sand and gravel is prohibited in both commercial and residential
districts. This is a question of fact which must be determined based upon all of the
facts concerning the project.
It is my understanding that the property owner has filed an application with
the city requesting first that the city make a determination as to whether or not a
zoning change is necessary, and if necessary, that he be granted a temporary Specific
Use Permit which will allow the mining of sand and gravel on the property for a
specific period of time after which the property would be rezoned to its original
residential classification.
Therefore, it is my opinion that the Planning and Zoning Commission sho,,l~
first make a determination as to whether or not, un~e~ L,f~ (~.T_~ l~resented b.,y the
applicant, the p~oposeci activity constit'utes the mining of sand and gravel sufficient
to require a ~-oning change. This determination should be handled as a part of the
applicant's zoning change request and after proper public hearing as in the case of a
zoning change. If the Planning and Zoning Commission determines that a zoning change
is not required, they would forward this recommendation to the City Council for a
final determination as in' the case of ~ reguJar zoning change. If the ?lanning and
Zoning Commission determines that a zoning change is necessary, they can proceed to
make their determination and recommendation tp the council in the usual manner.
After reviewing the zoning ordinance, I find that if a zoning change is
required, the property would have to be given an "I-l" District Classification subject
to a Specific Use Permit for sand and gravel excavation under Item Il{ of Section
12-100 of the Comprehensive Zoning Ordinance.
This Specific Use Permit could be given a time Umit after which the city,
on its own initiative, could rezone the property back to its original zoning classification.
This back zoning of the property to its original classification would not
take place automatically. The right to continue the Specific Use would automatically
end, but it would require the usual public hearings before the Planning and Zoning
Commission and City Council and the passage of an ordinance in order to reclassify
the property from its WI-l" Classification to its original Residential Classification. This
back zoning of the property could be initiated by the city without the request or
joinder of the property owner.
It is my understanding that if a zoning change is necessary, the owner has
voluntarily agreed that he would place deed restrictions upon the property s~ that
during the time the property is zoned "I-l", no other "I-l" Use could be undertaken
except the use granted by the Specific Use Permit. It is important that this offer
to deed restrict the property come as a voluntary jester on the part of the owner.
The reason for this is a very technical aspect of zoning law which stated basically,~
that nwhere a city negotiates for the placement of deed restrictions or requires deed
restrictions as a condition to the granting of zoning, the zoning will be considered
'contract zoning' which might place a cloud on the validity of the zoning change? In
this instance, since the owner has already volunteered to place such deed restrictions
on the property, the request could be handled in such a way so as to prohibit other
~I-l" Classification Uses.
The fact that the owner is a City Councilmember should h~ve no bearinl~
on t~he m~.~}.er e~pt' ina, when the matter comes before the bit>, Council, he wouf~
be asquahfied from votine on the matter.
If you have any further questions, please give me a call.
Very truly .yours,
SANER, J,..ACK, SALLINGEP~& NICHOLS