TR9303-CS 930405 NICHOLS, JACKSON, KIRK & DILLARD, L.L.P.
LAWRENCE w. JACKSON Attorneys & Counselors at Law JOHN F. ROEHM III
TIM KIRK 1800 Lincoln Plaza CHRISTINA A. MELTON
ROBERT L. DILLARD III 500 North Akard
PETER (3. SMITH Dallas, Texas 75201
DAVID m. BERMAN (214) 954-3333 H. LOUIS NICHOLS
BRUCE A. STOCK^RD Facsimile (214) 954-3884 oF COUNSEL
April 5, 1993
Mr. Kenneth M. Griffin FACSIMILE TO 393-0948
City Engineer
City of Coppell
P.O. Box 478
Coppell, Texas 75019
Re: Proposed Perimeter Facility Agreement
Dear Ken:
Pursuant to your request, the undersigned reviewed the proposed Perimeter
Facility Agreement and provide the following opinion.
It is our opinion that the proposed Perimeter Facility Agreement is unenforceable
since it seeks to indirectly collect the substandard roadway fees prohibited by Chapter
395 of the Local Government Code. First, the preamble of the proposed Agreement
improperly attempts to make the construction of the proposed improvement a prerequisite
to the approval of the plat. As we previously advised, the City should not withhold the
plat for filing until the substandard roadway fees are paid. There is simply no
consideration for the Agreement since the City may not require the owner to construct
the improvements or pay the substandard roadway fees, and thus the recital that the
developer is relieved of the responsibility of the immediate construction is of no legal
effect. More importantly, agreeing to construct the road or to pay the City a sum of
money equal to the proposed construction cost is the same as the assessment of an
impact fee, which the City may not lawfully require, since the substandard roadway fee
ordinance is not in accordance with Chapter 395 of the Local Government Code.
Delaying the requirement until the roadway is improved does not in any way lessen the
illegality of the collection of the substandard roadway fee.
Mr. Kenneth M. Griffin
April 5, 1993
Page 2
In summary we do not recommend the City use the proposed Perimeter Facility
Agreement since it is not supported by consideration and seeks to indirectly impose an
unlawful impact fee. If you have any questions in this regard please do not hesitate to
contact me.
Very truly yours,
NICHOLS, JACKSON, KIRK & DILLARD
PGS\mts
AGGO3E18