Benners v. City of University Park, 5072

• Decision Date: 03 February 1972
• Docket Number: No. 5072,5072
• Citation: 477 S.W.2d 326
• Parties: Ruth Hagaman BENNERS, Independent Executrix of the Estate of Daisy Purnell Simpson, Deceased, Appellant, v. The CITY OF UNIVERSITY PARK and The Board of Adjustment of the City of University Park, Texas, Appellees.
• Court: Texas Court of Appeals

Page 326

477 S.W.2d 326

Ruth Hagaman BENNERS, Independent Executrix of the Estate of Daisy Purnell Simpson, Deceased, Appellant, v. The CITY OF UNIVERSITY PARK and The Board of Adjustment of the City of University Park, Texas, Appellees.

No. 5072.

Court of Civil Appeals of Texas Waco.

Feb. 3, 1972.

Rehearings Denied March 9, 1972.

Fred H. Benners, Dallas, for appellant.

Dick P. Wood, Dallas, for appellees.

HALL, Justice.

In 1925, a retail business building was constructed on parts of Lots 13 and 14, Block F, University Annex Addition, in The City of University Park, Texas. The building and its use for retail business were expressly authorized by the City by written permit. The cost of the construction was $30,000. That land and the building and their use are the subjects of this lawsuit. In 1926, the property was purchased by Cecil L. Simpson, and wife, Daisy Purnell Simpson, at a cost of $35,500.

Until 1929, the City of University Park, Texas, did not have a zoning ordinance. In that year, acting under the authority granted to it in the then newly-enacted enabling statutes ¹ (Articles 1011a--1011j, Vernon's Ann.Tex.Statutes), it adopted a comprehensive zoning ordinance. This ordinance placed the property in question in a district for retail business use. Though the ordinance was amended from time to time, including a comprehensive amendment in January, 1940, the property remained zoned for retail business use until September, 1940.

On September 18, 1940, the City adopted a comprehensive amendatory zoning ordinance. In October, 1952, the City adopted another comprehensive amendatory ordinance. Both ordinances classified the subject property as being in a 'C' two-family dwelling district, and permitted only single-family dwellings or duplexes to be constructed and used in such districts. Both ordinances contained this provision:

'All buildings located in the * * * 'C' Two-Family Dwelling District * * * that are used as a nonconforming use for commercial or industrial purposes at the time of the passage of this ordinance shall be removed or converted and their premises thereafter devoted to uses permitted in the District in which they are located prior to the first day of January, 1965.' ²

Mr. Simpson predeceased Mrs. Simpson. Mrs. Simpson died in 1964, and the plaintiff-appellant, Mrs. Ruth Hagaman Benners, was appointed Independent Executrix of her estate.

On January 6, 1965, the City's Building Inspector ordered plaintiff to comply with the requirements of the 1952 ordinance and discontinue the business use of the property. She appealed the order to the City's Board of Adjustment, seeking a 'variance or exception' to the ordinance so as to permit the continued use of the property for business purposes.

Following a public hearing, the Board of Adjustment denied plaintiff's request for relief.

In the court below, plaintiff sought to have the ordinances of September, 1940, and of October, 1952, declared invalid, and to permanently enjoin the defendant-appellee City from enforcing them, insofar as she might be required thereby to remove the building or discontinue using her property for retail business. By certiorari, she also appealed the ruling of the defendant-appellee Board of Adjustment, and asked that it be set aside.

All of the parties filed motions for summary judgment. The trial court granted the defendants' motion, and affirmed the action of the Board of Adjustment requiring the discontinuance of the nonconforming use. All relief sought by the plaintiff was denied. We reverse and render.

Among other grounds for the relief she sought, plaintiff pleaded in her last amended petition, which she incorporated by reference in her motion for summary judgment, that the enforcement of the ordinances against her property is not necessary for the health, safety, morals or general welfare of the public and 'would constitute an improper and arbitrary exercise of defendant's police power, confiscating plaintiff's property * * * for the alleged benefit of the public' without just compensation, in violation of Art. I, Sec. 17, of the Constitution of Texas, Vernon's Ann.St., and that the ordinances are therefore rendered 'arbitrary, unreasonable and invalid' insofar as they relate to her property. These contentions are brought forward in plaintiff's points of error numbered three, six and seven as grounds for reversal of the trial court's judgment and rendition of judgment for her.

Mrs. Benners concedes in her brief that the Board of Adjustment 'is actually only an incidental party' to this lawsuit, and that the 'predominant issue' in this case is 'the validity of the City's zoning amendments requiring the discontinuance of the business use of appellant's building.'

In their brief, the City and the Board of Adjustment state the 'fundamental question presented by this appeal' to be: 'Can a city, by adopting a reasonable and fair zoning ordinance, require the discontinuance of a nonconforming use after 25 years' notice thereof?'

Since its inception, a primary purpose of zoning has been to reduce nonconformance to conformance as speedily as possible with due regard to the legitimate interests of all concerned. Universally, zoning ordinances (including the two in question in this case) forbid or limit expansion of nonconforming uses and forfeit the right to such uses upon their abandonment or upon substantial damage to or destruction of the improvements housing the use. Though these legislative efforts to eliminate the nonconforming use have been approved by the courts, ³ the uses have survived.

In the search for a more direct and firmer method of dealing with the problem some local legislatures now seek, as the defendant-city in this case has done, to foreclose the right to nonconforming use by giving the user a period of grace during which he is entitled to continue the use and amortize his investment. At the end of the period he is required to discontinue the nonconforming use. It has been said that this approach is the only positive method yet devised for eliminating nonconforming uses. Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363, 366 (1957).

'Generally speaking, the courts have taken one of two basic views on the validity of provisions for the amortization of nonconforming uses. A large number of decisions, mostly recent, from a variety of jurisdictions, support the proposition that amortization provisions are valid if they are reasonable. In a few jurisdictions, however, the courts have taken the position that provisions for the amortization of nonconforming uses are necessarily invalid.' 22 A.L .R.3d 1134, 1138 (1968).

The courts of Texas have indicated that provisions in zoning ordinances for amortization of nonconforming uses are valid if they are reasonable and fair in operation. See City of Corpus Christi v....