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ASKINS & ARMSTRONG, P.C. ATTORNEYS AT LAW 702 W. FAIRMONT PARKWAY P. O. BOX 1218 lA PORTE, TEXAS 77572-1216 KNOX W. ASKINS JOHN D. ARMSTRONG CLARK T. ASKINS TELEPHONE 281 471-188S TElECOPIER 281 471-2047 E-MAil: kwaskins@aol.com iohn-a@swbell.net ctaskins@swbell.net May 9,2005 Mayor and City Council City Hall City of La Porte RE: Imposition of conditions on rezone of ChemQuest property Dear Mayor and Council: You have asked our office to render a legal opinion on whether it would be permissible for the city to grant a zoning classification change request to ChemQuest, from R-2 Residential to General Commercial, subject to specified conditions or covenants relating to the use of the property. Under the La Porte Zoning Ordinance (Chapter 106 of the City Code), there is no provision for the attachment of conditions or covenants to rezone requests. Rather, each zoning classification carries with it specifically enumerated uses, including permitted uses, conditional uses, and accessory uses, all of which relate exclusively to that particular zoning classification. The sections establishing these uses do not allow for the placement of extra conditions by the Zoning Commission or City Council, as part of the zone change request. The theory behind the Zoning Ordinance is that a decision on establishing or subsequently changing a zoning classification should relate to general factors concerning all land of the same zoning type, and that the governing body will be guided by the permitted and non-permitted uses already established in the ordinance (as well as the Land Use Map and the Comprehensive Plan), and not the particular needs of the applicant. Council is charged with considering only what is the highest and best use of the property at issue, based on the existing, allowable uses under the present zoning classification and the proposed zoning classification. Of more importance is the fact that Texas law disallows "contract zoning", which is defined as a bilateral agreement between a governing body and the applicant for a zone change, with the government promising and becoming contractually bound to make the rezone change in exchange for the applicant promising and being contractually bound to do or refrain from certain activities on the property. The rational for the prohibition of contract zoning is that legislative bodies are precluded from bargaining, selling or contracting away their police power, and as such are considered