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Legal opin re development~ ~ ~ ~4:58 FR NICHOLS JACKSON DILLA4 ~65 00lB TO 57~30470B3 P D~ Robert E. Hager E-mail: rhager~nj dhs.eom NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P. 1800 ~n¢oln Plaza 500 Nort~ Akard Dallas, 'rexa~ 75201 (214) 965-9900 Fax (214) 965-0010 E-null NJDHS @NJDH$.con] ATTORNEY-CLIENT PRIVILEGE COMMUNICATIONS FEB - 9 20O4 Febmary3,2004 Mr. Jim Witt, City Manager City of Coppell 255 Parkway Boulevard P. O~ Box 9478 Coppell, Texas 75019 RE: Development at the Southeast Corner of MacArthur and State Highway J21 Dear Mr. Witt: Plea.se be advised that we have reviewed the staff reports regarding zoning case number SA211, Service Stax, and case number PD-199-HC, Vista Point II, MacArthur Ridge. This development consist of a proposed planned development to allow the placement of auto repair garage, car wash, convenient store and gasoline service station on approximately two (2) acres of property located at the southeast corner of MacArthur Boulevard and S.H. 121 within the corporate limits of the City of Coppell. This application would be a part of overall development at Vista Point II, MacArthur Radge, which not only includes the items listed in the previous zoning case but also approximately 200,000 square feet of office/assembly/warehouse buildings and five retail/restaurant pads on the adjoining property. You have questions concerning the staff's statements with regard to the highway commercial zoning category, and its overall intent, as well as staff's construction of the Zoning Ordinance which currently is applicable to the plarmed development as reflected in the above referenced cases. In reviewing the zoning on this tract of land, the current zoning consists of highway commercial zoned property. As highway commercial property, a special use permit would be required for the placement of a ga~ station on this particular tract of Imad over and above the regular planned development regulations. City of Coppell Code of Ordinances, § 12-22-1 and § 12-30-9. As such, the proposed gas station would require the issuance of a special use permit for that particular use. The Highway Commercial Zoning District specifically provides in Section 12-22-2, Non-Permitted Uses, as follows: FEB 89 ~804 ~4:~0 FR NICHOLS ]~CKSON DILL~4 96~ 00~g TO 9723847063 P.03 Mr, Jim Win February 3, 2004 Page 2 "Sec. 12-22-2. Non-permitted uses. For clarity, the following uses, through not limited to the following, are specifically non permitted uses within the "HC" district even with a special use permit. Used automobile sales or display, repair garages, tire and seat cover shops, or auto laundries [car wash] unless incidental to a service station. The question that then evolves is whethex or not the proposed auto repair garage and car wash are incidental uses or otherwise prohibited under the above quoted section. The word "incidental" is generally defined in its common meaning to mean "in connection with some other thing;" "causal," "secondary or minor." For example, a gas station that had an incidental use would be bays connected to the same building where gas pumps were located in order to affect repair, car wash and other "incidental" uses to the primary use. It does appear from review of the site plan that a free standing building which is ded/eated solely for auto repair, tire and auto part sales and/or a sepaxated car wash facility are not "incidental" to the primary use of the gas station. However, we would point out that there are at least three (3) gas stations in Coppell which have a separate building dedicated to car wash activities. Hence, we probably have a weaker position with regard to the car wash facility than the auto repair and/or auto parts facilities located within the planned development as a separate free standing business. This distinction based on ownership and operator becomes more a factual argument which would review these uses as separate sites and/or lots and whether the use is dedicated solely for that purpose not incidental to the gas station. It would seem that our better position would be as to the auto parts and tire sale facility which appear to be a separate free standing facility operated apart from and not in connection with or "incidental" to the service station is clearly prohibited. The "auto laundry," also known as a car wash, thus becomes a little bit more problematic in terms of its location as well as its operation and whether or not it is an "incidental" use to the service station facility located within the planned development. It is clear that the primary use of the service station which would bring into play the "' ' incidental uses requires a special use permit within this zoning category. Thus, the City Council does maintain a great deal of discretion concerning the placement of the service station at this particular location under the current zoning. Hence, under the current zoning application it does not appear a basis to approve the auto repair feature of the planned development as the application is currently pending. 62365 PEB ~'} 2~84 14:Si FR t~ICHOLS JACP{SOH DILLA4 965 8g10 TO 97238470~3 P.B4 .Mr, 1~rn Witt February 3, 2004 Page ~ It does appear that the Zoning Department's reading of the base zoning for highway commercial, as well as the special use provisions, is accurate. However, we have found a provision in the zoning ordinance which may become ~'oublesome. We specifically bring your attention to Section 12-30-7(23) which indicates a special use permit for an office or retail district includes "incidental retail and service uses." Also see Sec. 12-30-8(27) and 12-30-9(21), Coppell Code of Ordinances. This provision appears not to be defined and does not have any h/story of which we are aware that would allow any type of interpretation of these provisions to preclude the auto garage under the office district. If the special use permit provision includes these incidental uses, these seem to conflict with the provisions of Section 12-22-2 in that the Council could properly consider a zoning application for a zoning accompanied with the "specia/ use permit" for office to include "incidental" uses. We would in all likelihood interpret this p owsion, and the same should be interpreted, to mean incidental to an office use and not incidental to an otherwise retail or highway commercial use. However, we are troubled by the use of that term and would lead to confusion if challenged. We would state that the auto garage/ante parts do not appear to be "incidental" to the gas station itself. Likewise, we are not clear from reviewing the site plan whether these uses would be operated separately or in conjunction with the gas station use. We assume for the purposes of writing this opinion that the gas station, convenience store and car wash are operated under one ownership or operator/owner, and that the auto repair facility and/et lube and tire sales are separate operation or subject to being sepaxated at some point and time and are not an accessory. Based on the site plan, it appears that the store or retail repair or parts operation is a separate and distinctive Use which precludes an incidental treatment. We cannot conclusively determine from the staff repons provided to us and reserve the right to revise out opinion if provided with additional information indicating a different factual determination. In reviewing the staff reports, we have also been able to glean that the "primary image zone" language from the C.I.V.I.C. Report is contained in the staff report and we would remind your office and the City Council that such is not an adopted zoning regulation within the City and that the City Council should limit itself to the zoning ordinances which are in effect. Also, we noted that the outside storage issues of any materials are an issue on this or any other site and we do not express any opinions concerning the staff's concerns with outside storage. We point out that storage issues have traditionally been a problem in retail, commercial and office districts in Coppell, as well as a number of other metropolitan suburb cities. 62365 ~E~ ~ ~804 14:5i FR NICHOLS JACKSON DILLA4 965 0018 TO 97£3847053 Mr. Jim Witt February 3, 2004 Page 4 If you have questions concerning this opinion or have additional information you would like to provide to us, please feel free to call on us at your convenience. Very truly yours, NICHOLS, ~AC.~0N, DILLARD, REH/cdb cc: Mayor and City Council 62365 TOTFtL PP~GE,05 ~*