Burford v. City of Austin

379 S.W.2d 671, 1964 Tex. App. LEXIS 2550

• Court: Court of Appeals of Texas
• Decided: May 13, 1964
• Docket: 11189
• Status: Published

Opinions

ARCHER, Chief Justice.

This is an appeal from the judgment of the trial court upholding an amendatory zoning ordinance changing the zoning classification of three adjacent lots from zoning permitting only a single-family or duplex to that permitting an apartment house.

Appellants are home and property owners in the neighborhood or area of the lots and brought this suit seeking a declaratory judgment that the ordinance was invalid and a temporary injunction, which was granted. On the hearing before the court on the merits, the temporary injunction was dissolved and judgment entered denying the relief sought and upholding the validity of the ordinance.

The appeal is predicated on eight points assigned as error and are in effect that the court erred in failing to hold that the ordinance was invalid because such creates a spot zone contrary to the principle; that spot zoning is illegal; that the ordinance was invalid as being arbitrary and unreasonable and not within the authority to zone delegated to cities by Article 1011a, Vernon’s Ann.Civ.St., in that this ordinance failed to further the health, safety, morals, or general welfare of the community and because there is no public need for additional land zoned for apartments or apartment hotels and because Mayor Lester Palmer was legally disqualified to vote for the passage of the ordinance; that the court erred in excluding evidence of the relationship between interested parties because such evidence would have shown the arbitrariness of the action of the council.

The ordinance in question in part reads as follows:

“ORDINANCE NO. 63 0214-B

“AN ORDINANCE ORDERING A CHANGE IN USE AND HEIGHT AND AREA AND CHANGING THE USE AND HEIGHT AND AREA MAPS ACCOMPANYING CHAPTER 39 OF THE AUSTIN CITY CODE OF 1954 AS FOLLOWS: FROM ‘A’ RESIDENCE DISTRICT AND FIRST HEIGHT AND AREA DISTRICT TO ‘B’ RESIDENCE DISTRICT AND SECOND HEIGHT AND AREA DISTRICT ON THREE (3) TRACTS OF LAND FRONTING 218 FEET ON THE WEST RIGHT-OF-WAY LINE OF SALADO STREET AND 218 FEET ON THE EAST RIGHT-OF-WAY LINE OF SAN PEDRO STREET, LOCALLY KNOWN AS 2810-2816 SALADO STREET AND 2811-2817 SAN PEDRO STREET, IN THE CITY OF AUSTIN, TRAVIS COUNTY, TEXAS ; AND SUSPENDING THE RULE REQUIRING THE READING OF ORDINANCES ON THREE SEPARATE DAYS.

“BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF AUSTIN:

“PART 1. Chapter 39 of the Austin City Code of 1954 is hereby amended to change the USE and HEIGHT and AREA designations from ‘A’ Residence District and First Height and Area District to ‘B’ Residence District and Second Height and Area District on the following described property, to-wit:

“Three (3) tracts of land fronting 218 feet on the west right-of-way line of Salado Street and 218 feet on the east right-of-way line of San Pedro Street, beginning at a point 200 feet south of the south right-of-way line of West 28^ Street; and having a depth of 151.66 feet.

* * * * * *

“PART 2. It is hereby ordered that the USE and HEIGHT and AREA maps accompanying Chapter 39 of the Austin City Code of 1954 and made a part thereof shall be changed so as to record the changes ordered in Part 1 of this Ordinance.”

At a regular meeting of the City Council on December 16, 1962, the zoning application involved in this proceeding was heard and action was had as follows:

“The Planning Director gave a resume of the area and of the changing conditions, and stated after considerable study, the Planning Commission found that ‘BB’ Residence 1st Height and Area was the most suitable zoning for the area. He pointed out development would be slow. This classification was recommended in the Master Plan. MR. A. W. PENN, representing himself and a large group of home owners, opposed the change that would affect a great number of University professors who had built the area up and maintained it. He pointed out the streets were not designed to take care of the type of parking that would result from this development. DR. G. SMITH, Director of Law Science Institute expressed opposition against apartment development, as the area was not a degraded area, and that apartments are not as desirable as some might think. A law student who manages Windsor Oaks and River Oaks Apartments expressed opposition, pointing out many disadvantages to an area by the development of the multi-unit apartments; that those paying $200 monthly had to walk two blocks from their parked cars to their apartment; that tenants were coming and leaving at all hours of the night; and that there were more parties in the big apartment houses than the smaller ones. MR. THEO BELLMONT, representing himself and the Heritage Society opposed the change, stating his protest was on the interior of the area rather than on the boundary street; and if it were changed for multi-apartments, it is the beginning of the end of this neighborhood for these University professors. MRS. C. T. GRAY opposed the change that would permit multi-unit apartments as they are not popular with the tenants or the neighbors. MRS! LEON DONN believed the off-street parking requirements would be inadequate in this area, and suggested that 2i/£ parking spaces should be required. She inquired if easements would be required from those properties on which apartments would be made to widen the street to provide for parking. She asked that the zoning of the area be postponed until after the zoning study now under way is completed. MR. LEO HUGHES asked the Planners of Austin to have more vision, and to keep Austin the unique city that it is by intelligent planning. MR. PENN filed a petition signed by 90% of the property owners, protesting the change, and stating this was a general petition showing the wishes of the people. MRS. CLICK, 3202 West Avenue, opposed the change;, also Mr. C. T. Johnson, who asked a five year waiting period before the change was granted. Opposition was added by MRS. A. W. PENN and J. L. WALL. MRS. JOHN BARROW spoke regarding the Planning Commission’s recommendation and regarding the Austin Development Plan as defined by Mr. Leo Hughes. Mrs. Barrow represented the Friends Meeting of Austin, and stated the zoning to limited apartments would not affect this organization, and stated this apartment development would cover a five to fifteen year period.

“MR, RICHARD BAKER, representing MR. LINDEN JONES in his application at 3113-3117 West Avenue and 709-715 West 32nd, stated Mr. Jones would construct 16 apartment units on this property, and the plans showed from two to three off-street parking spaces per unit. This application had been filed eight months ago, and considerable study had been made, and the ‘BB’ zoning complies with the requirements of .the Master Plan, streets, utilities, uses and density. He stated this area was changing. Mrs. Dorm opposed this individual application, and asked that action on this be postponed also. The Director of Planning, pointed out most of the tracts of land in the area were small, and it would be hard for one to acquire enough tracts on which to build a 50 unit apartment, and the type of apartment development would be of small scale. Mayor Palmer pointed out the advantages of these area studies. After discussion, Councilman Shanks moved that the change to ‘BB’ Residence be granted, as recommended by the Planning Commission. The -motion, seconded by Councilman White, carried by the following vote:

“Ayes: Councilmen Perry, Shanks, White, Mayor Palmer

“Noes: Councilman Armstrong”

An ordinance in conformance with that adopted by the council was enacted with provisions as to regulations.

The record in this case is long, but the material facts are not in dispute except as to the character of the lots and the area or district in which the lots are situated.

We are inserting herein a map of the area from 24th Street on the south to 29th Street on the north, North Lamar on the west 'and Guadalupe on the east.

The area or neighborhood claimed to be affected by the zoning extends from 28th Street on the south and to West 29th Street on the north and bounded by North Lamar on the west and by an alley on the east with some commercial or non-residence property within the area extending to Nueces Street

The chief complaint and we believe the controlling issue in this appeal is that of “Spot Zoning.”

As is to be seen by the map there is no dispute as to the physical facts as to width of streets, presence or absence of sidewalks, but the characteristics of the neighborhood, the need for additional apartments, the effect of the construction of an apartment building on the property is the subject of much testimony.

Any fact issue should be resolved in support of the judgment. Renfro Drug Company v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

A zoning ordinance is an exercise of the legislative power of the City Council and is presumed to be valid. City of Bellaire v. Lampkin, 159 Tex. 141, 317 S.W.2d 43, 66 A.L.R.2d 1289.

An amendatory zoning ordinance is presumed to be valid. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477.

There is an extraordinary burden of proof imposed on those attacking a zoning ordinance.

In the Waxahachie case the Supreme Court stated:

“The courts cannot interfere unless it appears that the ordinance represents a clear abuse of municipal discretion. And the ‘extraordinary burden’ rests on one attacking the ordinance ‘to show that no conclusive, or even controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to exercise the discretion confided to it.’ ” (Emphasis not ours.)

The authority of the courts in interfering with a municipal zoning ordinance is very limited. The proper test to be applied is whether reasonable minds may differ.

“If reasonable minds may differ as to whether or not a particular zoning restriction has a substantial relationship to the public health, safety, morals or general welfare, no clear abuse of discretion is shown and the restriction must stand as a valid exercise of the city’s police power. City of Corpus Christi v. Jones, Tex.Civ.App., 144 S.W.2d 388, error dism., correct judgt. Otherwise expressed by the court in the case just cited, if the issue of validity is fairly debatable courts will not interfere.” Waxahachie v. Watkins, supra.

The facts or particular circumstances are of extreme importance.

“ * * * the controlling considerations are seldom if ever, the same in any two cases. Hence final determination of the validity of the ordinance must turn on the circumstances of each case and the character of the regulations involved. See Annotation in 149 A.L.R., pp. 292, 293.” Waxahachie v. Watkins, supra.

By referring to the map it is apparent that the “area”, “neighborhood” or district is surrounded by non-residential developments.

The area immediately adajacent called “A” Residence District consists of approximately 25 lots and is bounded on the south by West 28th Street, on the west by San Pedro Street, on the north by West 28J4 Street and on the east by Rio Grande Street. There are, of course, other lots adjacent to the above area.

As we have said there was much testimony by witnesses for appellants and appel-lees as to the nature of the area, distances from the University and need for apartment housing. Testimony was given as to the development of the area as a whole and that there had been no new residences built in many years. Among those testifying were Hoyle Osborne, City Director of Planning, who considered the change to be spot zoning and recommended that the change be disapproved by the Council and specifically testified as follows:

“Q. Now, in the terminology of the planning profession, what is meant by the term ‘spot zone.?’

“A. Spot zone covers the following areas generally: One, that it be a departure from a comprehensive or general zoning plan for the community. Secondly, that it may be for a relatively small area generally surrounded by another larger area of a different zone. Third, that it might possibly confer either a special benefit to the particular individual owner or piece of property, or it might incur or impose certain specialized restrictions as opposed to that of the surrounding area. Fourth, that it is not specifically for the public welfare and benefit, as opposed to possibly a specific private or individual interest. Fifth, that it tends to depart from the conditions that are usually set out in this case in the State enabling legislation and in the City of Austin Zoning Ordinance concerning such matters as traffic and the ability of streets to carry this traffic, the provision of off-street parking, the provision of utilities, the provision of municipal services, the other items that are listed within the State enabling legislation and in the Zoning Ordinance as to the intent and purpose of the Zoning Ordinance. And generally the spot zoning will contain several or virtually all of these conditions in a rather marked sense, a noticeable sense.

“Q. State whether in your opinion as a planner the rezoning of the Wire property constituted spot zoning.

“A. Yes, it did.”

Ross Jacobs, a civil engineer working exclusively in the municipal field, testified as follows:

“Q. Mr. Jacobs, I ask you the question again: In your opinion does rezoning of the Wire property to ‘B’ Second Height constitute spot zoning?

“A. In my opinion, it does not.

“Q. Why, sir?

“A. Because of its nearness to similar zoning on the south, which was existing at that time, just below 28th Street.”

Marvin Springer, a witness for appellees, a city planner in Dallas, Texas, testified as follows:

“Q. All right, sir. Now, state in your opinion as an expert whether you believe the zoning of the Henry Wire property from ‘A’, First Height and Area, to ‘B’, Second Height and Area, is spot zoning.

“A. Taking into consideration the neighborhood area which we are concerned with here, the Land Use Plan which has been adopted by the City of Austin, the pattern of changes which have occurred over this period of time, which are generally consistent with that plan, I would not so consider this a spot zoning.

******

“Q. State whether or not in your opinion the zoning of the Henry Wire property is consistent with the Land Use Plan attached to the Master Plan.

“A. I would so interpret it, yes, sir.”

Appellants cite as controlling on the question of “Spot Zoning” the case of Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704, decided in 1950, five years before the case of Waxahachie v. Watkins, supra.

We do not believe that facts and circumstances in the Weaver v. Ham case are the same as in the instant case.

We believe that the Waxahachie v. Watkins case is controlling in our disposition of the instant case.

We do not attribute significance to the fact that Mayor Palmer, an employee of Mr. Drake, and who voted for the passage of the ordinance, constituted a legal disqualification of Mayor Palmer; and that the special exception to the allegations in plaintiffs’ petition setting up the alleged legal disqualification of Mayor Palmer was properly sustained.

A zoning ordinance represents an exercise of the legislative power of the city governing body and is not subject to attack grounded on the motives of a council member. Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945; City of San Antonio v. Fetzer, Tex.Civ.App., 241 S.W. 1034, error refused.

Appellants have cited a number of cases, some out of state and some in state cases in support of their position that Mayor Palmer was legally disqualified, such as Aldom v. Borough of Roseland, 42 N.J.Super. 495, 127 A.2d 190 (1956); State ex rel. La Crosse v. Averill, Tex.Civ.App., (1937) 110 S.W.2d 1173, writ refused; Moody v. City of University Park, Tex.Civ.App., 278 S.W.2d 912, error refused, n. r. e.

We have not set out in any detail the testimony as to the nature and usage of the property, believing that there is no serious factual dispute, and that the maps offer a fair presentation, but do note that the last .building permit for a single family dwelling to be constructed in the area was issued in .1951, about 11 years prior to the enactment of the zoning ordinance in question.

The judgment of the trial court is affirmed.

Affirmed.