The suit of City of Dallas charging violation by appellant of zoning ordinances and maintenance of a public and private nuisance on premises located at 3307 Lemmon Avenue, Dallas, was joined in by twenty-six interveners. Upon jury trial and verdict, judgment was rendered of permanent injunction, from which adverse action appeal is taken.
By comprehensive zoning ordinance of September 1929, the particular area had been designated an apartment district wherein commercial use of property was prohibited. Prior thereto, however, an ice factory had long been in operation on lots 12 and 13 of the premises in question, recognized at the time as a nonconforming use. In August 1944, appellant purchased these lots and old ice plant (which had ceased manufacturing ice about 1939 or 1940), obtaining a permit from the office of City Building Inspector for the operation at the same place of a cold storage plant "including meat storage and curing." In March and April 1946, the building inspector took steps looking to a revocation of aforesaid permit (also a second permit issued to appellant January 1946, for a 35' × 85' × 35' × 35' tile garage building on adjoining lots), and the lawsuit centers around this reversal of action by the named official, the City claiming invalidity of permits, necessitating their revocation; appellant pleading, on the other hand, res adjudicata or binding effect of the original permit on all appellees; that his use of the property was merely the continuance of a valid nonconforming use; estoppel to order revocation, in that vested rights had accrued because of valuable improvements made and eighteen months operation of plant with knowledge of City officials and interveners; that the threatened restriction of defendant's property to an apartment use would constitute a taking without due process of law, etc.; closing with a cross action for injunction as to all adversary parties against further molestation of or interference with his allegedly legal use.
Substance of the jury questions and answers in turn reflect all fact issues raised on behalf of complainants at the trial (1) The processing of meats at defendant's plant causes offensive and obnoxious odors which spread to neighboring properties; (2) processing of meats at defendant's plant causes contamination of the air in the vicinity to such an extent (a) as to substantially impair the comfortable use and enjoyment of near residential properties by occupants thereof; (b) to materially interfere with the comfortable use and occupancy as a home by a person of ordinary habits, tastes and sensibilities of the property of interveners Misses Hemphill, located at 3226 Lemmon, apartment at 3227 and cottage at 3229 Lemmon Avenue; (c) similarly as to the residence property of interveners Thos. G Murnane and wife; (3) operation of said plant requires the customary movement of a large number of trucks and vehicles, in and out, creating loud; noises audible at the properties of other owners in the vicinity; and incidental to the plant operation is an habitual slamming, in opening and closing of building and vehicle doors; creating noises audible at homes and residences in the vicinity; (4) there was no loud talking or noise of grinding sausage at defendant's plant that was audible at neighboring homes and residences; (5) movement of trucks in and out of the plant and their loading and unloading, is accompanied by loud noises, both day and night, audible at homes and residences in the vicinity, of such a nature as materially to interfere with the comfortable use and occupancy as a home by a person of ordinary habits, tastes and sensibilities of the property and residences of interveners Hemphills and Murnanes; (6) raw meat and bones in open trucks are loaded, unloaded and parked at docks of said plant, and visible from residences in the vicinity, including homes of Misses Hemphill and Murnane and wife; (7) but which do not interfere with the comfortable use and enjoyment of the homes of said interveners by persons of ordinary sensibilities; (8) likewise the large advertising sign in front of defendant's plant should have no disagreeable effect on a person of ordinary sensibilities living in the vicinity; (9) operation of defendant's plant causes congestion of vehicular traffic and parking in vicinity of the Lemmon Avenue and Travis intersection; (10) the odors, noises, sights, and congestion of traffic taken together: are of such a nature as to materially interfere with the comfortable use and occupancy as a home by a person of ordinary habits, tastes and sensibilities of the properties and residences owned by the Hemphills and Murnanes; (11) the manufacture of ice on lots 12 and 13 had been abandoned prior to the time said lots were acquired by defendant; the word "abandoned" being defined under said issue 33 as "the giving up or relinquishment of a right."
The court's judgment is quite lengthy, but, pursuant to above jury findings and other evidence recited therein as uncontradicted and presenting no issue of fact, defendant Rosenthal was permanently enjoined from using lots 10 to 16 inclusive, block 1/973, City of Dallas, for any purpose other than permitted in an apartment district under zoning laws; from using lots 11, 12 and 13 for any nonconforming commercial use such as ice manufacture or cold storage; in short, being required to tear down and remove all buildings, machinery, equipment and accessories placed on the ground for meat storage and processing.; the perpetual restraint extending to all foregoing aspects of nuisance and holding invalid and as violative of City ordinances the two building permits in question.
Material and undisputed facts antecedent to the instant controversy are these: The old ice factory on lots 13 and 12 was adjacent to the highly embanked MKT right of way and Lemmon Avenue underpass. According to defendant's pleading, before consummating a purchase of the ice factory with its commercial use of more than forty years, he had visited the Dallas City Hall to determine whether the site could be used for his meat processing plant, talking with Assistant Building Inspector Hanson and Assistant City Attorney Dillard. Defendant Rosenthal did not testify at the trial, but, from Hanson's testimony, the application was for a cold
storage plant, ancillary to which was the handling of meat along with usual side lines of sausage-making and meat products — no slaughtering of any kind. Mr. Dillard also testified that the discussion involved a cold storage operation with the making or packing of sausages as an accessory, such activity to be substituted for the nonconforming ice factory use; he advising the two (Hanson and Rosenthal) that cold storage was in the same commercial classification as ice manufacturing; that Inspector Hanson should determine as a fact question whether the old factory owners or successors had a valid nonconforming use of the property; if so, they had a right to change over to cold storage with sausage-making as an accessory, in event Hanson should further determine that such was customarily incident to a cold storage plant; also warning against any use such as would create a nuisance or hazard of smoke, "and that was agreed."
Application was filed and permit issued August 7 (property purchased August 21, 1944), the first application signed by Samuels Company, Packers, reciting in part: "I hereby submit this application for a building permit and certificate of occupancy for (Describe all work to be done, as permit will cover only work applied for) Submit plans in duplicate: Partitions and equipment for cold storage plant * * * Building to be used for (Give all uses to which building is to be put — * * * Cold storage * * * cost of all work to he done under this permit (Include value of all labor and materials) * * * Plumbing Fixtures $600.00 Wiring Fixtures $400.00 Total Cost $4,000.00 * * * I have carefully examined and read the completed application and know the same is true and correct and hereby certify and agree that if a permit is issued, all the provisions of the Building Ordinances and State Laws will be complied with whether herein specified or not. * * *." The forthcoming permit carried the same data, along with these provisions in print: "This permit is issued on the basis of information furnished in the application noted by number hereon, and is subject to property restrictions, provisions of the Building Code, Zoning Ordinances and all other governing ordinances which must be complied with, whether or not herein specified. This permit is subject to cancellation upon notice as provided in the Building Code. * * * Certificate of occupancy is required for all buildings or change in use thereof." On back of defendant's Exhibit 13 (receipt for permit fee) was the printed statement: "Important: Read Building Code carefully before starting work. The permit is granted on the express condition that the building or structure shall conform to the Building and Zoning Ordinances of the City of Dallas and to all deed restrictions. * * * If at any time during construction the extent of the work exceeds the cost or value stated on the application for building permit and further if it exceeds that shown on the plans a new permit shall be taken out before proceeding with such extra work. * * *." Several days afterward, according to Inspector Hanson, defendant requested and witness authorized the words "including meat storage and curing" to be inserted in both application and permit.
Defendant then proceeded to make structural alterations and additions to the ice plant building as shown in exhibits brought up in the record; consisting generally of a one-story covered loading dock on the Lemmon Avenue side, a two-story annex on the west, platforms facing south, boiler room and machine shops; installing on the inside meat coolers, pickle cellar (meat curing) and boning room where the processing is done under refrigeration; sausage kitchen, smoking ovens, high pressure cookers or kettles, etc.; total expenditures on the property purchased being stated by defendant in his pleading at approximately $60,000.
In June 1945, defendant purchased lot 10 on Lemmon Avenue and 14, 15 and 16 to the west, fronting on Carlisle Place; and in January 1946, applied for and obtained permit to erect a 35' × 85' × 35' × 35' eight-inch concrete and tile building on the last numbered lots, to be used as "Garage for Samuels Company Pickup trucks and autos," total cost $1,250, these later papers carrying the same printed
provisions as in the first application and permit already quoted. Testimony on the trial estimated the actual cost of this construction at between $4,000 and $5,000.
In sequence and on the dates shown, the following notices were sent to defendant from the office of Dallas Building Inspector: "March 21, 1946. Subject — Building w/o permit Location — 3307 Lemmon Name — Samuels Co. Address — Same You are hereby notified to stop work on garage on which permit was issued in error and is hereby voided and of no effect. Also stop work on 2-story addition to old building which work is being done without a building permit." "April 1, 1946 * * * Dear Sir: We have checked our records and find that you do not have authority to operate a sausage making establishment in connection with your cold storage plant located at the above address. Some time ago we requested that you make an appeal to the Board of Adjustment for permission to operate this business and we must ask you to discontinue at once the making of sausage until such time as this appeal can be heard." Inspector Cummings, a witness, stated in above connection that the stop-order of March 21 was upon advice of the City Attorney, also pursuant to a number of complaints and some doubt as to the legal status of defendant's plant.
On May 20, 1946, defendant made written request of the Dallas City Council for the rezoning of his property from Apartment D Area to first manufacturing district, describing same as "Fronting northeast along Lemmon Avenue a distance of approximately 250 feet south from the MKT Railroad r/wy."; stating that he was "now operating a plant at this location, processing meat, and wish to have property zoned for such use." On May 22, the instant suit was filed, attorneys for appellee City agreeing that the pending application to rezone (which was later denied) should be without prejudice to defendant's rights and defenses in the ensuing court litigation. The City pled fraud and misrepresentation relative to defendant's procurement of these building permits, but issues thereon passed out of the case presumptively for lack of evidence.
No appeal to the Board of Adjustment was made by any of the parties hereto from the building inspector's order directing issuance of the original permit; and by his first series of points, appellant argues insufficiency of the petition for injunction as an attempted collateral attack upon the ruling of an administrative officer without following the statutory procedure of Art. 1011(g), Vernon's Ann.Civ.Stats., reading in part: "Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality affected by any decision of the administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the board, by filing with the officer from whom the appeal is taken and with the board * * *" And cited in support of the plea of res adjudicata thus presented is the case of Washington v. City of Dallas, Tex. Civ. App. 159 S.W.2d 579, by this Court. We do not think the municipality bound by above statutory provision when an act of its building inspector is challenged as void and violative of the zoning ordinance; especially so, in view of its cumulative right of action explicit in Art. 1011(h), viz.: "In case any building or structure is erected, constructed, reconstructed altered, repaired, converted, or maintained, or any building, structure, or land is used in violation ofthis Act or of any ordinance or other regulation made under authority conferred hereby, the proper local authorities of the municipality, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, or use, to restrain, correct, or abate such violation, to prevent the occupancy of said building, structure, or land, or to prevent any illegal act, conduct, business, or use in or about such premises." (Emphasis added.) Obviously the outlined procedure of an appeal to the board of adjustment is confined to matters within the jurisdiction of that body, i. e., a practical administration of the ordinance as written; for neither building inspector nor board of adjustment has the power, by issuance or
approval of a permit, to amend or repeal the ordinance. When the act complained of, therefore, is alleged to be void and wholly unauthorized we have the exceptional situation where either an individual or the municipality may have direct recourse to the courts. City of Amarillo v. Stapf, 129 Tex. 81, 101 S.W.2d 229.
To the merits, appellant argues validity of original permit, in that his plant operation was merely the continuation of a recognized nonconforming use; appellees, on the other hand, answering that the nonconforming use of the premises (ice factory) had been abandoned prior to Rosenthal's purchase, perforce of which the issuance of permit for other than a conforming use (apartment) was void; the secondary question raised being that defendant's purchase and attempted use of the property for purposes other than a business allowable as a nonconforming use (ice factory, cold storage, etc.), constituted an abandonment of the existing nonconformity by operation of law. It is our opinion as a matter of law that there was no abandonment of the prior nonconforming use until effectuated by defendant's own change of operation.
On the issue of abandonment of this ice factory for commercial uses, the testimony of Mr. C. E. Kennemer (a principal officer of the corporation owning title) is controlling. He states that after ceasing to manufacture ice in 1939 or 1940, refrigeration was maintained for storage and sale of ice relayed from other plants, also retailing groceries and perishable foods, doing no retail grocery business there after 1942; that they had removed the old ice plant machinery (obsolete) intending to rebuild a modern plant, when the war came on, making it impossible to get new ice machinery; that he had talked to sales agents representing manufacturers who wouldn't even take the orders; having sold other properties belonging to the corporation, but retaining that owned on Lemmon Avenue, expecting "to develop it if conditions had been favorable"; the only thing preventing development, according to Mr. Kennemer, was the war and ill health on his part. Under well settled principles applicable to zoning laws, it follows conclusively, we think, that the court's issue on "abandonment" was not raised in the testimony Of Mr. Kennemer. "The clear weight of authority is that discontinuance of a non-conforming use results from the concurrence of two factors, (1) the intent to abandon and (2) some overt act or failure to act which carries the implication of abandonment." Wood v. District of Columbia, D.C.Mun.App., 39 A.2d 67, 68; Dorman v. Mayor and City Council, Md.,51 A.2d 658. "It may be stated generally that a mere temporary discontinuance of a prior nonconforming use will not of itself show an abandonment thereof so as to preclude resumption of such use; and this has been held true even though the discontinuance existed over a considerable period of time." 114 A.L.R 991 Annotations. Furthermore, issue 33 (on abandonment) was inconclusive, absent a jury finding on intent to abandon.
But defendant's purchase and operation of the property for meat processing and curing as an equivalent to the prior nonconforming use, presents, we think, a situation entirely different, resulting in a termination of all uses except in conformity with ordinance; section 9 thereof, "Nonconforming Uses," reading: "Any use of property existing on September 11, 1929 that does not conform to the regulations prescribed in the preceding articles of this chapter shall be deemed a nonconforming use. (2) A nonconforming use may be continued subject to such regulations as to the maintenance of premises and conditions of operation as may, in the judgment of the board of adjustment, be reasonably required for the protection of adjacent property. (3) A nonconforming use shall not beextended, but the extension of a use to any portion of a building which portion was arranged or designed for such nonconforming use on September 11, 1929 shall not be deemed the extension of a nonconforming use. (4) Anonconforming use shall not be changed unless changed to a conforming use. A nonconforming use if changed to a conforming use may not thereafter be changed back to any nonconforming use. For the purpose of this chapter, a use shall be deemed to be changed if changed from the use listed in
one of the numbered paragraphs of articles 165-3, 165-4, 165-5, 165-6, 165-7 or 165-8 of this chapter to a use not listed in such paragraph." (Emphasis ours.) A nonconforming use shall not be "changed," says the ordinance, unless to a conforming use; but that: a shift from one business to another of the same classification is not to be deemed a change in use. "Cold storage plant" is then listed in section 4, Commercial District, along with "ice manufacture" and thus defendant claims validity of permit, arguing that his business is simply the continuance of a like or similar use. But defendant is not engaged primarily in the cold storage of meats; Stewart v. Atlanta Beef Co.,93 Ga. 12, 18 S.E. 981, 44 Am.St.Rep. 119 the refrigeration of meats being merely an incident to his dominant enterprise of meat processing or packing; becoming a new and substantially different use and, from a survey of the Use Districts (Dallas City Code, Art. 165, 3-8), of a different and lower classification. "The underlying spirit of a comprehensive zoning plan necessarily implies the restriction, rather than the extension, of a nonconforming use of land, and therefore to whatever extent the particular act fails to make express provision to the contrary, a condition that the lawful nonconforming use of land existing at the time of the adoption of the ordinance may continue must be held to contemplate only a continuation of substantially the same use which existed at the time of the adoption of the ordinance, and not some other and different kind of nonconforming use which the owner of the land might subsequently find to be profitable or advantageous," In re Botz,236 Mo. App. 566, 159 S.W.2d 367.
The words "continued," "extended," and "changed," of Art. 165-9, Dallas Code (Nonconforming Uses), have not been heretofore the subject of precise definition, but the Standard Form, State Zoning Act, furnished by the Department of Commerce in 1926 (Bassett on Zoning, p. 29), has been uniformly followed as a pattern by legislatures and municipalities. Decisions of other states on nonconforming uses, therefore, are highly persuasive, being generally in accord with the Botz appeal, supra Thus in National Lumber Products Co. v. Ponzio, 133 N.J.L. 95, 42 A.2d 753, 755, it was held, "The nonconforming use must be a continuation of the same use and not some other kind of use." In Steudel v. Troberg,76 Ohio App. 136, 63 N.E.2d 241, 243, the court went on to say: "As we construe the ordinance, a nonconforming use is not deemed `changed' if the use falls within the same subdivision of the use class. * * * If, however, a business not named or recognized in the particular subdivision supplants a business therein named or recognized, such use shall be deemed `changed' and therefore unlawful, unless changed to a higher use." "The present use of a non-conforming building may be continued but it cannot be increased nor can it be extended indefinitely if zoning is to accomplish anything." Selligman v. Von Allmen Bros., 297 Ky. 121,179 S.W.2d 207, 209. See also In re Appeal of Yocom, 142 Pa.Super. 165,15 A.2d 687; DeFelice v. Zoning Board, 130 Conn. 156, 32 A.2d 635, 147 A.L.R. 161; Burmore Co. v. Smith, 124 N.J.L. 541, 12 A.2d 353; McQuillen, Mun.Corp., 2nd Ed., Vol. 3, Notes to Sec. 1034, including 1945 and 1947 supplements.
Aside from above considerations, the jury verdict and establishment of common law nuisance, if supported by testimony, likewise forms a basis of the restraint imposed by judgment on defendant's plant as maintained; unless the noise, smoke, sights and odors (as found by the jury) can be eliminated from its operation. These findings further relegate defendant's business to the uses incident to either a first or second manufacturing district.
Defendant denied in effect all charges of nuisance and, without narration of testimony thereon from interveners (living along Lemmon Avenue in the same or adjacent blocks), we find competent evidence in support of issues One to Thirty-two — the jury answers thereto being as herein-above indicated.
The objection made to form of these issues, because not including all twenty-six interveners as a class, is overruled. Any one of these complainants could have maintained the action on proof of special
injury; 31 Tex.Jur., p. 450. "One who has sustained damage peculiar to himself from a common nuisance has a cause of action, although a like injury has been sustained by numerous other persons." Haney v. Gulf, C.
S. F. Ry. Co., 3 Willson Civ. Cas.Ct.App., §§ 278, 279. Neither did the court err in refusal of defendant's requested issues (twelve in number), they involving matters either (1) evidentiary, or (2) the negative of given issues, or (3) becoming questions of law under the whole record as we view it. Refused issue 37, for example, requests a finding on whether or not the property in question is suitable for apartment use; based on allegations that a zoning ordinance classifying the area for apartment use and a later Council action refusing to rezone for light manufacturing, were arbitrary, unreasonable, having the effect of confiscation of defendant's property. The area, intersected by a high railway embankment, is otherwise occupied by residences on the south; immediately to the north on Lemmon Avenue beyond the tracks being two small business places; also Turtle Creek Lake and Lee Memorial Park. It is well settled that attacks upon zoning laws and ordinances of a City Council in the particulars complained of, (whether reasonable or arbitrary), involve matters for the court and not the jury to determine. City of University Park v. Hoblitzelle, Tex. Civ. App. 150 S.W.2d 169; City of Dallas v. Lively, Tex. Civ. App. 161 S.W.2d 895; Edge v. City of Bellaire, Tex. Civ. App. 200 S.W.2d 224, (writ refused).
Other refused issues relate to knowledge by plaintiff and interveners of, and their acquiescence in, the substantial improvements made by defendant on the lots between August 1944 and March 1946, when permit was revoked. The defense of equitable estoppel is thereby interposed, in that issuance of permit, following a full disclosure of the use to be made of the premises, reliance on the permit in the making of improvements, and long operation of business without complaint by City or interveners, resulted in vested rights of which he could not be deprived by the attempted revocation. It is proper to note here that appellant's reliance on the original permit for his heavy investment thereafter made in property improvements, was not altogether warranted by its terms. His 1944 application estimated total cost of partitions and equipment at $4,000, permit to cover only work applied for; the printed matter on permit receipt stating that if costs or value of construction work exceeded the amount shown on application "a new permit shall be taken out before proceeding with such extra work"; providing further (in face of permit) that all construction shall be subject and conform to the building and zoning ordinances of the City. Art. 165-18 (City Code) provides: "(1) No building hereafter erected or structurally altered shall be used, occupied or changed in use until a certificate of occcupancy and compliance shall have been issued by the building inspector, stating that the building or proposed use of a building or premises complies with the building laws and the provisions of these regulations. (2) Certificates of occupancy and compliance shall be applied for coincident with the application for a building permit and shall be issued within 10 days after the erection or structural alteration of such buildings shall have been completed in conformity with the provisions of these regulations. * * *" No certificate of occupancy ever issued, but, notwithstanding the contingencies just suggested, expenditures were made of at least $60,000, thereby demonstrating (1) that many of the costly steps taken by defendant were at his own risk; Selligman v. Von Allmen Bros., 297 Ky. 121, 179 S.W.2d 207; and (2) that his right of use even under an entirely valid permit remained inchoate rather than vested or fixed, until issuance of certificate of occupancy.
It is our opinion, however, that issuance of the August 1944 permit was unauthorized because violative of a zoning ordinance, the principle invoked under the facts of City of Corpus Christi v. Jones, Tex. Civ. App.144 S.W.2d 388, being equally applicable here. See also 9 Am.Jur., p. 204; City of Amarillo v. Stapf, supra; Edge v. City of Bellaire, Tex. Civ. App. 200 S.W.2d 224, (writ refused); and City of San Angelo v. Deutsch, 126 Tex. 532,
91 S.W.2d 308, 310, where the court said: "* * * The rule that a city is not estopped by the mistakes or unauthorized or wrongful acts of its officers or agents is thus stated in Ruling Case Law: `No estoppel can grow out of dealings with public officers of limited authority, and the doctrine of equitable estoppel cannot ordinarily be invoked to defeat a municipality in the prosecution of its public affairs because of an error or mistake of, or because of a wrong committed by, one of its officers or agents which has been relied upon by a third party to his detriment. * * *'"
But if we be mistaken in above conclusion, the suit of appellees is also for abatement of a nuisance. Manifestly, defendant's operation, even under a valid permit, would not justify the creation or maintenance of a nuisance. Missouri, K. T. Ry. Co. v. Mott, 98 Tex. 91, 81 S.W. 285, 70 L.R.A. 579; defendant's plea, on this phase of the instant proceeding, having simply the effect of a general denial.
Defensive evidence was likewise to the effect that no condition of nuisance existed; but without narration of testimony we believe that appellees are undoubtedly entitled to relief on this phase of the litigation, the specific jury findings sufficiently establishing a nuisance in fact. Neither does defendant offer any alternatives in changes of operational methods whereby the objectionable features, as found, might be eliminated. While courts are slow to interfere by injunction in the conduct of a business enterprise, full restraint must necessarily follow the establishment of a nuisance when the elements constituting the nuisance appear inseparable from its operation. We are assuming for the moment that appellant's activities are but the continuation of a valid nonconforming use in an effort to render applicable the well settled doctrine that where a legal business is conducted in such a manner as to constitute a private nuisance, such may be abated, but the injunction would ordinarily be limited to the practices that create the nuisance; and that it is only where such business cannot be conducted in any manner at the place where situated without becoming a substantial injury to adjoining property owners, that the enterprise itself will be enjoined. See 39 Am. Jur., sec. 172, pp. 444, 445 and footnotes.
Appellant in reiterated points calls attention to more severe provisions of the court's mandate, tantamount in effect to a confiscation of his property, viz.: (1) Tearing down and removal of the two-story annex and boiler room and restoration of structure as of August 7, 1944; (2) removal of incompleted garage building, or use of lots 12 to 16, except for garage incidental to an apartment district; (3) from further operating a nonconforming use on the other lots, such as ice factory, cold storage, etc. These drastic recitals would appear but the logical result of a violation of zoning (operation of prohibited business in apartment district); but the command to restore the old factory structure is seen to be wholly gratuitous, in view of the court's conclusion of Kennemer's previous abandonment of any non-conforming use.
Otherwise we have diligently examined, but without success, all analogous cases in search of an available remedy for the unfortunate position occupied by defendant and his business in reliance upon a building permit later determined to be void and unauthorized. In the exercise of its police power (a governmental function) appellee City undertook a revocation of both permits, the suit involving (1) violation of zoning laws, Art. 1011, 1011h, and (2) abatement of a condition of nuisance, Art. 1015(11); and, as has already been held, the municipality is not precluded from establishing these grounds of action by plea of equitable estoppel; City of Corpus Christi v. Jones, and City of Amarillo v. Stapf, supra; Godson v. Town of Surfside, 150 Fla. 614, 8 So.2d 497. While an unauthorized permit may not be arbitrarily revoked where the owner has incurred material expense on the good faith of it, as a general rule such an instrument "has none of the elements of a contract and may be changed or entirely revoked, even though based on a valuable consideration, if it becomes necessary to revoke it in the exercise of the police power." 43 C.J., p. 349; 9 Am.Jur., p. 204. Undoubtedly under the present facts and circumstances, the dilemma in which defendant has been
placed is a most unhappy one: his losses, from any viewpoint, arising from acts and conditions that, in turn, create no grounds of legal redress; in short, damages without legal injury.
However, as paragraphs 1 to 4, and 7 to 15, inclusive, afford to appellees adequate relief on both phases of their litigation, all of paragraph 6 and that part of paragraph 5 ordering a mandatory tearing down, removal and destruction of buildings appurtenant to lots 11, 12 and 13, lots 14 to 16, block 1/973, are deemed unnecessarily oppressive; and such designated provisions are hereby deleted and stricken from said final judgment. Otherwise, but as above modified, the judgment under review is affirmed.
On Motion for Rehearing.
Rehearing denied.