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MODDY v. City of University Park

278 S.W.2d 912, 1955 Tex. App. LEXIS 2679
CourtCourt of Appeals of Texas
DecidedApril 1, 1955
Docket14929
StatusPublished
Cited by58 cases

This text of 278 S.W.2d 912 (MODDY v. City of University Park) 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
MODDY v. City of University Park, 278 S.W.2d 912, 1955 Tex. App. LEXIS 2679 (Tex. Ct. App. 1955).

Opinion

YOUNG, Justice.

This proceeding was instituted by Moody and nine other resident owners of Lots in University Heights No. 6, an Addition to the City of University Park, pursuant to terms of Art. 101 lg, V.A.C.S., against that municipality, its Board of Adjustment, and Neiman-Marcus Company, seeking to set aside a' permit granted the latter party for development of a free parking area on Lots 10 through 18, Block 78, University Heights No.' 6 Annex, an Addition, in which A. C. Scurlock, another Lot owner, intervened.

On conclusion of the District Court trial, inclusive of evidence adduced before the Board of Adjustment, Judge Hughes discharged the jury and affirmed the action of that agency; filing findings of fact and conclusions of law at instance of plaintiffs; the court overruling exceptions thereto, also their request for additional findings. To such judgment and rulings, the complaining property owners have duly prosecuted an appeal; in general, charging arbitrary, capricious, and unauthorized action on part of the Board in grant of the permit; disqualification of certain Board members; ‘insufficiency’ of 'showing to justify a permit, especially of “hardship”;. and invalidity of ordinance as 'delegating', legislative powers *916 to such municipal Board. Background of the, entire controversy should be first detailed briefly.

The City of University Park is a municipal corporation with revised comprehensive zoning ordinance of date Oct. 20, 1952, under authority of Arts. 1011a through g, V.A.C.S.; also having a duly appointed Board of Adjustment comprised of Ed S. Wesson, Bascom Thomas, Jr., M. B. Lowe, John C. Harris, and Edwin M. Jacobs. Section XVI of the ordinance relates to setup and powers- of the Board incident to enforcement of zoning regulations; providing for public hearings, etc., in . connection with the - following: “2. Variances: The Board of Adjustment shall have the power to authorize upon appeal in specific cases such variance from the terms of this Ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this Ordinance will result in unnecessary hardship, and . so that the spirit of this Ordinance shall be observed, and -substantial justice done. 3. Special exceptions: The Board of Adjustment shall have the power in each specific case after having held a public hearing, when in its judgment it will not ,be contrary to the public, interest and. the , appropriate use of the neighboring property will not be substantially injured, and to relieve or prevent unnecessary hardship, to authorize the following designated special exceptions to the provisions of this Ordinance: * * * (h) Permit the location in any District, except an ‘A’ or ‘B’ District, of a free parking area for passenger motor vehicles, and' commercial vehicles belonging to' the owner of the premises or business," in connection with any use permitted in any District; provided such parking area complies, with the specifications, set forth in subsection ‘i’ hereof.” Subsection (i), requires that: “(I) Such parking area shall be used exclusively for the parking- of passenger motor vehicles, and commercial vehicles belonging to the owner of the premises or business, and for no other use; (2) Such Parking Area shall be a free parking area for temporary parking as distinguished from over-night storage; (3) That portion of the parking area, used for the parking of motor vehicles shall be hard surfaced either with concrete or paving asphalt; (4) No building, nor advertising sign shall be erected or placed on such parking area; except that the owner of such lot may identify it by a sign stating: ‘This lot provided for parking by (Name of Owner).’ (5). Such requirements as to lighting, screening' walls or shrubs, entrances or exits, sidewalks, drainage, and other similar matters for the protection .of neighboring property as may be prescribed by the Board of Adjustment and approved by the City Engineer.”

Appellee> City, a community "primarily” residential (Ordinance, Sec. I,, par. A), is located to the north of the City of Dallas proper. Its layout, however, includes a large suburban shopping center beginning at the southeast corner of Preston Road and Northwest Highway intersection, two wide thoroughfares and main arteries of traffic traversing Dallas County; Preston Road leading to the North and Northwest Highway running, generally, east and west. Said shopping district, known as “Preston Center” or “Varsity Village,” extends over two City blocks, bounded on west and north by the named highways, on the east by Pickwick Lane, with south boundary at Wentwood Drive; the district intersected by Villanova Street- east and west. Nei-man-Marcus Company, a large merchandis- " ing establishment, lies on the southwest side ’of Preston Center, facing Preston Road, also on- Villanova and extends to Wentwood Drive on the south. Across Wentwood Drive is the proposed parking . area (north one-half .of Block 78), separated by an alley from south half of the same Block, where a residential area begins. Along Preston Road to the west of the property here involved and in the City ' of Dallas is located another extensive business district.. The following map accurately portrays the area in question for which Neiman-Marcus has been issued a permit *918 by appellee City for development of a free motor park. (See Footnote 1 ).

*917

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Bluebook (online)
278 S.W.2d 912, 1955 Tex. App. LEXIS 2679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moddy-v-city-of-university-park-texapp-1955.