Bliss v. City of Fort Worth
| Decision Date | 24 February 1956 |
| Docket Number | No. 15683,15683 |
| Citation | 288 S.W.2d 558 |
| Parties | Frank C. BLISS et al., Appellants, v. CITY OF FORT WORTH et al., Appellees. |
| Court | Texas Court of Appeals |
Taylor & Rumph, and Frank Taylor, Fort Worth, for appellant.
R. E. Rouer, Robert R. Goodrich, G. Gordon Whitman, John Gano, Earl C. Morgan and S. G. Johndroe, Jr., Fort Worth, for appellee City of Fort Worth.
Christopher & Bailey, and M. Ward Bailey, Fort Worth, for appellee Allen J. Mallory.
Jack Ray, Fort Worth, for appellee V. O. Cox.
Tilley, Hyder & Law and Robert Hobbs, Fort Worth, for appellee Charles P. Hargis.
Crocker & McDonald and Toy Crocker, Fort Worth, for appellee Lester E. Crocker.
Lattimore & Lattimore and Hal M. Lattimore, Fort Worth, for appellees D. C. Whitehall and E. R. Whitehall.
Appellants, Frank C. Bliss, A. M. Smith, Jr., Y. E. Lewis, James Childress, W. L. Deubler, J. L. Rumfield, R. D. Witter, Don Thomason, Joe Parker, L. H. Armstrong, Jr., James W. Gilmore, O. D. Thompson, Gayle S. Crawford, Weldon B. Abbott, and James E. Howe, sued appellees, City of Fort Worth, Charles P. Hargis, Allen J. Mallory, E. R. Whitehall, D. C. Whitehall, V. O. Cox, and L. E. Crocker, to set aside and to enjoin the enforcement of a zoning ordinance of the City which changed the zoning classification of certain lands from residence to commercial classification; to enjoin the City from issuing building permits in accordance with the changed classification; to enjoin the appellees from using the lands for commercial purposes; to enjoin appellees from violating the terms of certain deed restrictions on lands in the area affected by the challenged ordinance; and for a declaratory judgment establishing the validity of the deed restrictions and decreeing the rights of the parties thereunder. Appellants, J. E. Cunningham, Frank E. Morton, F. A. Malden, Glenn L. Boldt, W. W. Blalock, Al Fletcher, T. R. Bishop, B. D. Mathews, C. E. Mabry, C. E. Braswell, O. H. Spradley, Jr., Clarence Graves, Sam J. Chatman, Jr., and John H. Shannon, intervened as parties plaintiff and adopted as their pleadings the original petition of the original plaintiffs. An amended petition was filed by the original plaintiffs and the interveners, which constituted appellants' pleading when the subsequent proceedings were had.
All of the defendants filed motions for summary judgment, and affidavits and exhibits were filed in support of the grounds therefor. Appellants filed an opposing affidavit, and, on a hearing, all motions for summary judgment were sustained.
Appellants alleged that they each owned lands within two hundred feet of the lands which were rezoned; that the questioned ordinance was an amendment of a comprehensive zoning ordinance, and was void on the ground that it was not based upon substantial evidence; that it constituted spot zoning not pursuant to a comprehensive plan; that it was arbitrary, capricious, and unreasonable; that it bore no substantial relation to the public health, morals, or general welfare; that it tended to create rather than to prevent the overcrowding of the land; that it was calculated to destroy rather than to conserve the value of property; that it interfered with and destroyed the most appropriate use of the land; that it created rather than lessened congestion; that there had been no substantial increase in population and no material change in the affected area as to use of property since the City Council, after thorough study of the area following out the comprehensive zoning plan, zoned for commercial use some of the neighboring area; that the portion zoned for commercial use prior to the enactment of the challenged ordinance is adequate for the commercial needs of the area for many years to come; and that such ordinance would create an island of commercial property in the midst of a residential district.
The motion for summary judgment filed by E. R. Whitehall and D. C. Whitehall was sworn to by Hal M. Lattimore, their attorney. Exhibits were attached, as well as supporting affidavits executed by D. C. Whitehall, E. S. Birdsong, City Secretary-Treasurer of the City of Fort Worth, and A. R. McConnell, Director of Planning of the City of Fort Worth. The other appellees adopted the motion for summary judgment filed by E. R. Whitehall and D. C. Whitehall, together with the affidavits and exhibits attached thereto.
Birdsong's affidavit merely stated that the lands involved in the suit were situated within the corporate limits of the City of Fort Worth, and that he deposited in the mails notices of the hearing of the petitions for the changes of zoning classifications. McConnell's affidavit described the situation with respect to classifications existing in the area at the time of the passage of the questioned ordinance. The exhibits included a copy of the challenged ordinance and other matters relating to building restrictions, and maps showing the area with respect to prior existing zoning conditions and the changes effected by the ordinance. If the verified motion for summary judgment is considered as an affidavit to show the nonexistence of issues of fact, it cannot aid us here, as we think the fact allegations of the motion are not essential to the disposition of the appeal, and the assertions that the rezoning is 'not spot zoning' and that the area zoned for commercial use by the ordinance was 'an island of land zoned for residential purposes in the midst of property zoned for Commercial E' appear to be conclusions of law and fact, and are as emphatically denied by appellants.
Whitehall's affidavit stated that he attended the session of the Zoning Commission when that body was considering the applications for the changes in the zoning classifications; that 'extensive arguments were heard and evidence taken;' that at such hearing, appellants 'presented lengthy arguments as to why the zoning change should not be granted, all of which arguments and evidence was patiently listened to by the members of the Zoning Commission;' that 'various members of the Zoning Commission asked questions of the witnesses and persons appearing before it regarding the nature of the uses to which the land was presently put * * * and inquired of the experts who appeared, the conditions to be expected with regard to the population, of growth, traffic, the needs of a commercial shopping center and as to the existence of residential dwellings within the area sought to be re-zoned;' that he attended the session of the City Council when the challenged ordinance was considered and adopted; and that 'all of the matters raised by the plaintiffs were presented to the Council by way of argument and by way of questions from the councilmen themselves and by way of discussion among the councilmen.'
Appellants' opposing affidavit was executed by appellant Bliss, in which it was asserted that there had been no substantial change in the conditions which obtained at the time the comprehensive zoning ordinance was passed by the council; that no substantil increase in the population of the area had taken place; that there had been no substantial change in the use of the property in the area since the comprehensive zoning ordinance was passed; that the ordinance constitutes spot zoning, and was arbitrary and unreasonable; that it was not based on substantial evidence to justify the change; that it had no substantial relation to public health, safety, morals, or general welfare; that it would be detrimental to the interests of appellants and is designed to serve only appellees' private interests; and that appellants purchased or improved their property in the area for residential use in reliance upon the building restrictions and the then existing zoning ordinances.
Article 1011a, R.C.S., Vernon's Ann.Civ.St., is as follows: 'For the purpose of promoting health, safety, morals, or the general welfare of the community, the legislative body of cities and incorporated villages is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.'
Article 1011c, R.C.S., is in part as follows: ...
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