Legal opin re Auto Repair in HCRobert E. Hager
E-mail: rhager~njdhs.com
February 20, 2004
Mr. Jim Witt, City Manager
City of Coppell
255 Parkway Boulevard
P. O. Box 9478
Coppell, Texas 75019
ATTORNEY-CLIENT
PRIVILEGE COMMUNICATION
RE: Automobile Repair Garages in the "HC" Zonbtg District (Case # PD-199-HC)
Dear Mr. Witt:
Your office has specifically asked our opinion concerning whether Section 12-22-2 and
Section 12-30-9 of the Highway Commercial Zoning District (hereinafter, "HC") which appear
to be in conflict would allow the City Council to consider the application in the above referenced
case. You have also asked us to respond concerning the affect of such conflict where an
applicant seeks to place a use in a Planned Development district in contradiction of Section 12-
22-2 of the Code of Ordinances.
Section 12-3-2 defines the HC-Highway Commercial District as follows:
"HC-Highway Commercial District. This district is intended primarily as
a high intensity area permitting a mixed-use for office, commercial-retail,
and highway oriented uses, such as hotels, restaurants, and Iow and mid-
rise offices, and should be located generally along high-volume
thoroughfares."
Section 12 also states the general purpose and description of the HC Zoning District, specifically
states, in part, as follows:
"The site characteristics for each area should be designed in a manner to
create an attractive appearance from I.H. 635 and S.H. 121, and an
impressive gateway into the community. Because these areas are
designated as major thoroughfare entry points, emphasis has been placed
on building arrangement, setbacks, parking, and landscape treatment,
which are intended to be elements influencing the character of entrance
Jim Witt, City Manager
February 20, 2004
Page 2
into the city. It is the intention of the "highway commercial" zoning
district to create an attractive and unique entrance into the city."
Section 12-22-1 specifies the uses that are appropriate in the HC district which include the
delineated provisions as well as any use permitted in the Office ("O") district, Retail ("R")
district and any use permitted by Special Use Permit under Sections 12-30-7, 12-30-8 or 12-30-9.
The provisions of the use regulations in the "HC" district provide an exception even with a
special use permit under Section 12-22-2, Non-permitted uses, the following:
"For clarity, the following uses, though not limited to the following, are
specifically not permitted uses within the "HC" district even with a
special use permit.
2.
3.
4.
5.
6.
7.
Airport.
Crop production.
Kennels.
Any use requiring outside storage.
Pawn shops.
Seed store.
Used automobile sales or display, repair garages, tire and seat
cover shops, or auto laundries unless incidental to a service station.
Self-storage or mini-warehouses."
All three of the special use sections which are included in "HC" zoning districts contemplate a
gas station or service station use in the "O" district, the "R" district, and the "HC" district and the
same are specifically provided. Automobile repair garages are permitted in the "R" district
under 12-30-8, as well as under "HC" zoning in Section 12-30-9. Thus, those sections seem to
be in conflict with Section 12-22-2.
Under the provision of the Code Construction Act, being § 411.001 of the TEXAS
GOVERNMENT CODE, it is provided that sections that appear to be in conflict should be read in
harmony. Applying this rule of construction, a fair reading would be that the special use permit
provisions and the "R-Retail", "O-Office" and "HC" district use chart is subservient to Section
12-22-2(7) limitation.
However, the complication comes due to the fact that under the Planned Development
("PD") district category, Section 12-27-0 specifically states under the general purpose and
description as follows:
"The planned development district "PD" prefix is intended to provide for
combing and mixing of uses allowed in various districts with
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Jim Win, City Manager
February 20, 2004
Page 3
appropriate regulations, and to permit grown flexibility in the use and
design of land ..... "
As such, the "PD" is actually a separate zoning category as recognized by the ordinance and it
specifically states in Section 12-27-1, Permitted Uses, the following:
"Any non-residential use shall be permitted if such use is specified in the
chapter granting a planned development district ...... "
Thus, it appears that there can be a complete mix of uses in the "PD" district notwithstanding the
provisions of the special use permit in Section 12-30-9 or the constraints as placed in Section 12-
22-2. As a tree "PD", the zoning ordinance provides in Section 12-27-1, in part, development
requirements as follows:
"Development requirements:
Development requirements for each separate PD district shall be
set forth in the Ordinance granting the PD district and may include,
but not limited to; uses, density, lot area, lot width, lot depth,...
and other requirements as the city council and planning and
zoning commission may deem appropriate."
Hence, under this provision for "PD" regulations any use may be permitted in the planned
development district notwithstanding Section 12-22-2. Hence, a "PD" creates a separate
category of zoning and is not merely an "overlay" like a special use permit nor are the special
use permit limitations applicable under the sections quoted in the preceding paragraph.
For these reasons, we are confident that any grant or denial of the "PD" at issue in the
above referenced zoning case can either include or exclude the "automobile repair garage" use or
create additional tailored regulations or other safeguards in order to shield the uses in the "PD"
from neighborhood development.
To summarize our opinion, under straight "HC" zoning the Planning and Zoning
Commission or City Council could not permit an automobile repair garage, except as an
"incidental" use (automobile repair-minor) to a gas station use. The planned development
district may include for consideration not only normal "HC" uses but whatever uses the Planning
and Zoning Commission and the City Council determines is appropriate. Moreover, the City
Council could then provide density, lot area, lot width, lot depth and other restrictions by either
increasing or decreasing normal requirements in order to accommodate the appropriate uses. A
planned development district is a separate zoning category under the ordinance although
traditionally we have incorporated base underlying zoning in the "HC" zoning. The mere fact
that a "PD" has been requested and a "PD" application is being considered, the City Council
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JimWi~, Ci~'Manager
February20,2004
Page 4
could certainly consider the entire breath of special use pemfit uses notwithstanding the
restrictions in Section 12-22-2.
We hope this provides you with the information you need. If you have any questions,
please feel free to contact us at your convenience.
Very truly yours,
NICHOLS, JACKSON, DILLARD,
HAGER & SMITH, LLP
REH/cdb
By:
Original Signed by Robert E. Hager
Robert E. Hager
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