City of Dallas v. Dallas Merchants & Concessionaires Ass'n

823 S.W.2d 347, 1991 Tex. App. LEXIS 3238, 1991 WL 290500
CourtCourt of Appeals of Texas
DecidedDecember 23, 1991
DocketNo. 05-91-00449-CV
StatusPublished
Cited by6 cases

This text of 823 S.W.2d 347 (City of Dallas v. Dallas Merchants & Concessionaires Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Dallas v. Dallas Merchants & Concessionaires Ass'n, 823 S.W.2d 347, 1991 Tex. App. LEXIS 3238, 1991 WL 290500 (Tex. Ct. App. 1991).

Opinion

OPINION

STEWART, Justice.

The City of Dallas appeals from a declaratory judgment and injunction granted by the trial court on the ground that City Ordinance 19694, which zones the location of alcohol-related businesses in the South Dallas/Fair Park area, is unconstitutional. See Tex. Const, art. XI, § 5. The trial court found that the Ordinance was preempted by and in conflict with the Texas Alcoholic Beverage Code.1 In five points of error, the City contends that the trial court erred in: (1) finding the Ordinance in conflict with the Code; (2) failing to find that the Texas Legislature validated the Ordinance; (3) allowing Texas Package Store Association to intervene; (4) finding that Texas Package Store Association had standing to challenge the Ordinance; and (5) failing to require a supersedeas bond under Texas Rule of Appellate Procedure 47(f). We sustain the first point. Accordingly, we reverse and render.

FACTUAL BACKGROUND

In 1968, the Dallas City Council divided the City into thirty-four communities. From 1968 to 1972 it conducted studies and formulated plans for every community except the South Dallas/Fair Park Community (the Community). In 1986, the Council initiated the South Dallas/Fair Park Land View Study. Consultants studied the Community and met with Community leaders, residents, and business people to determine how to improve the quality of life for Community residents. The consultants concluded that the Community had been neglected for so long that it needed comprehensive economic development and housing plans to stabilize the Community.

Based on their studies, the consultants developed the South Dallas/Fair Park Neighborhood Preservation and Economic Development Plan. The Plan sets forth findings and recommendations on all aspects of housing, economic development, and zoning in the Community. One of the specific findings was that an excessive concentration of alcohol-related businesses exists throughout the Community.2 Alcohol sales in 1986 were about $48 million, although Community residents could support sales of only about $4 million. This indicated that the vast majority of customers were from outside the Community. The concentration of alcohol-related businesses created problems of crime, drinking on the premises, litter, loitering, public intoxication, urinating in public, and harassment of children and elderly residents.

The Plan proposed housing and economic development programs for the Community, which included a comprehensive zoning scheme aimed to develop, over-all single-family land use and zoning area boundaries for a predominantly residential community. The Plan recommended the addition of D-l Liquor Control Overlays3 to all nonresidential areas within 300 feet of residentially [351]*351zoned properties not located on a freeway service road or other specified road. In a D-l overlay area, a business may not sell alcoholic beverages unless a specific use permit (SUP) has been granted by the Council. The goal of this proposal was to control and to ultimately reduce the number of alcohol-related businesses in the Community. In February 1987, the Council passed a resolution adopting the Plan.

On September 30, 1987, the Council passed the Ordinance, creating new zoning categories for the Community in accordance with the Plan. The Ordinance imposes the D-l overlay on certain areas of the Community and exempts certain areas that generally are outside of and do not affect the residential areas of the Community.

The Ordinance provides in part:
Any presently legal use or structure that does not conform to the use regulations or development standards applicable to its new zoning district classification established by this ordinance shall be a nonconforming use or structure, as the case may be, and shall be governed by the provisions in CHAPTER 51A relating to nonconforming uses and structures as they presently exist and as they may be amended in the future.

Pursuant to section 51A-4.704(a)(l) of the Dallas Development Code, any person may request that the Board of Adjustment establish a termination date for a nonconforming use. Upon receiving such a request, the board must set a termination date for the nonconforming use under a plan whereby the owner’s actual investment in the structure prior to the time that the use became nonconforming can be amortized within a definite period. An alcohol-related business rendered nonconforming by the Ordinance has the following options: (1) stop selling alcoholic beverages and become a conforming use; (2) continue operating as a nonconforming use until an application requesting termination is filed with the Board; (3) obtain a SUP from the Council; or (4) move to an exempted area of the Community.

On October 12, 1988, the Council approved Resolution 883306, which sets forth the guidelines for evaluating SUP applications for the sale or service of alcoholic beverages in areas of the Community affected by the D-l overlay. The SUP guidelines include the following specific criteria:

(1) The business must be located on a major or secondary thoroughfare with no vehicular access to minor residential streets.
(2) The orientation of the business should be to the major or secondary thoroughfare with no direct frontal exposure to neighboring residential properties.
(3) Businesses not located on major thoroughfares should be separated from the nearest liquor-related business by a distance of at least 1,000 feet.
(4) The business shall not be located within 1,000 feet of any public or private school, church, daycare center, neighborhood serving park or community center, or adjacent to any residentially zoned property or to any residential use.

The Council, in its discretion, can grant a SUP to a business that fails to meet the guidelines. At the time of trial, no SUP had been granted to any of the alcohol-related businesses affected by the Ordinance, and about 300 alcohol-related businesses had been noticed for termination proceedings before the Board.

On June 25, 1990, Dallas Merchants and Concessionaires Association and individuals doing business in the Community filed this lawsuit against the City.4 In their original petition and application for injunction, Merchants sought a declaratory judgment that the Ordinance conflicts with sections 109.31 through 109.33 and Title 6 of the Code and, therefore, is unconstitutional pursuant to article XI, section 5 of the Texas Constitution. See Tex. Const, art. XI, § 5 (no ordinance shall contain any provision inconsist[352]*352ent with the constitution or general laws of Texas). It sought injunctive relief to prevent the City from terminating alcohol-related businesses as nonconforming uses pursuant to the Ordinance. In their supplemental petition, Merchants contended that the Ordinance violated section 109.57 of the Code by discriminating against alcohol-related businesses based solely on the fact that they are licensed to sell alcoholic beverages and by imposing a more stringent set of restrictions on them.

On July 20, 1990, the trial court issued a preliminary injunction prohibiting the City from entering or enforcing any of the Board’s termination orders issued pursuant to the Ordinance.

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823 S.W.2d 347, 1991 Tex. App. LEXIS 3238, 1991 WL 290500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-dallas-v-dallas-merchants-concessionaires-assn-texapp-1991.