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141 ~ ofSanA1arcos OFFICE MEMORANDUM TO: Members of th City Council 1M: Tom Akins, Ci y Attorney SUBJECT: Ralph Gonzales' Application for Re-Zoning DATE: May 13, 1974 Proposal of Entering Deed Restrictions RE: Prohibiting Sale of Alcoholic Bever-. a es During School Hours Ir Gentlemen and D . Craddock: your packet for t night's Council Meeting was a proposal by Mr. Ralph Gonzales that deed r strictions be placed upon the subject land which would restrict the sale of alcoholic beverages during school hours. There have been several questio s raised concerning the feasibility of this proposal and its legality. Tpis memorandum is written in the hope that some of these questions can be answered to your satisfaction. The method of restri possibility and coul its effectiveness wo xestrictions are dra the property. There ting sales proposed by Mr. Gonzales is a very real serve as a restriction against the property. However, ld be determined by the manner in which the deed ted and by the scope of the restriction placed against are a couple of questions that need to be answered: I Will it be a tru deed restriction in that it is a covenant that runs with the land? If the restriction and covenant does not run with the land, for what period of time will the agreement be enforceable? Who will be empo ered to enforce the terms of the deed restriction? What method of e forcement will be available to those holding the power of enforcement? 3) 4) These questions point to some of the problems that would need to be solved I" such an agreement or compromi. se was agreeab 1 e to the parti es invo lved. - is my personal opinion that giving the City power to enforce such an agreement would be ndesirable in that the proper enforcement should lie with abutting prope ty owners or the Board of Trustees of the school district. While the City Council may consider the existence or non-existence of deed restrictions in making a decision in regard to zoning, the Council should be aware of the fact that a decision predicated solely upon the existence or non-existence of a deed restriction can not stand. This is particularly true w en taken in light of my recent memorandum stating that a City Council woul not have the power to zone by agreement, contract, or covenant. Thus, this further re-enforces my opinion that the City should not be given the po er to enforce a deed restriction should one be agree- able to the parties involved. 1-,00