Bolton v. Sparks

• Decision Date: 21 November 1962
• Docket Number: No. A-8989,A-8989
• Court: Texas Supreme Court
• Parties: W. Thomas BOLTON and Texas & New Orleans Railroad Company, Petitioners, v. W. H. SPARKS et al., Trustees for the General American Oil Company of Texas Retirement Trust, Respondents.

Page 946

362 S.W.2d 946

W. Thomas BOLTON and Texas & New Orleans Railroad Company, Petitioners, v. W. H. SPARKS et al., Trustees for the General American Oil Company of Texas Retirement Trust, Respondents.

No. A-8989.

Supreme Court of Texas.

Nov. 21, 1962.

Rehearing Denied Dec. 19, 1962.

Saner, Jack, Sallinger & Nichols, Jerome Chamberlain, Dallas, for W. Thomas Bolton.

L. P. Bickel, of Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for Texas & New Orleans R. Co.

Jerry N. Jordan, of Turner, Rodgers, Winn, Scurlock & Terry, Dallas, for respondents.

SMITH, Justice.

This suit was brought by W. H. Sparks et al. as trustees for the General American Oil Company Retirement Trust, the owners of property adjoining the right-of-way of the Texas and New Orleans Railroad Company, to enjoin the Railroad and W. T. Bolton from constructing an automobile service station on the Railroad's property. In a trial before the court without a jury, the injunction was denied; on appeal, the Texarkana Court of Civil Appeals reversed and rendered granting the injunction. Sparks v. Bolton, Tex.Civ.App. (1962), 355 S.W.2d 199. For convenience the parties will hereafter be referred to as Sparks, Trust, Bolton, and the Railroad; emphasis will be ours unless otherwise indicated.

The Railroad's right-of-way runs north and south and crosses Lovers Lane, in Dallas, Texas, some 95 feet east of the intersection of Lovers Lane and Central Expressway. Bolton has leased a portion of the railroad right-of-way at the point the right-of-way crosses Lovers Lane, and proposes to construct a filling station thereon. To make room for the station it is contemplated that the single track, now located in the middle of the right-of-way, will be moved 35 feet to the east which will give Bolton a lot fronting 80 feet on Lovers Lane and extending to a depth of 200 feet along the west side of the shifted right-of-way. To the east, and adjacent to the right-of-way, is the property owned by the Trust upon which is located a service station.

In 1917, the first penal ordinance dealing with the zoning of railroad rights-of-way, Chapter 125 of the ordinances of the City of Dallas, was enacted. Section 1 of Chapter 125, referred to as Ordinance 287 provided:

'Sec. 1. That from and after the final passage of this ordinance it shall be unlawful for any person, firm, corporation or association of persons, pursuing the business or occupation of selling fruits, melons, or other commodities, or merchandise of any kind or character, to use or occupy for the purpose of such business or occupation, any part or portion of any railway depot, depot grounds or yards or right-of-way or sidetrack or spur tracks of any railway company within the corporate limits of the City of Dallas; providing, however, this ordinance shall not apply to persons having or holding by lease or contract any concession, right or privilege to occupy and use any certain part or portion of any passenger railway depot in said city for the purpose of conducting a business therein and of vending of fruit, melons or other merchandise or commodities.'

Section 4 of the original ordinance states:

'Sec. 4. The fact that there now exists no adequate ordinance prohibiting such nuisances and trespasses creates an urgency and an emergency for the immediate preservation of the public peace, health and safety requiring that this ordinance take effect at once, and it is accordingly so ordained that this ordinance shall take effect from and after its passage, approval and publication an authority in such cases is made and provided.'

In 1929, the City of Dallas adopted a Comprehensive Zoning Ordinance which zoned the entire city into districts, and regulated the use of property in such districts. In 1941, the Comprehensive Zoning Ordinance was included in the 1941 Code of Civil and Criminal Ordinances of the City of Dallas as was Ordinance 287 which became Chapter 125.

In August of 1958, Bolton and the Railroad submitted a preliminary plat to the City Planning Commission to secure approval of the subdivision and platting of the right-of-way. On September 4, 1958, the plan was disapproved. On September 29, 1958, the City Council passed Ordinance No. 7792 which attempted to vest in the City Council the power to pass on proposed platting of railroad rights-of-way which had not been abandoned for railroad use.

In October of 1958, Bolton re-submitted his application for a building permit, and a request for approval of the proposed subdivision to the City Planning Commission which again did not give approval; however, under the provisions of Ordinance No. 7792, the application, along with a recommendation that the platting of the subdivision be disapproved, was referred to the City Council. Disregarding the recommendation, the City Council approved the application subject to certain revision being made, and directed that the details be worked out with the City Planning Engineer. On May 11, 1959, the final platting of the subdivision of the right-of-way was filed with the City Planning Commission, and on June 22, 1959, the issuance of the building permit was authorized by the City Council. ¹

Sparks asserts and the Court of Civil Appeals agreed that since the City Council took control of the approval of platting under the guise of the invalid ordinance No. 7792, the area in question has never been platted as a building lot under the provisions of Article 974a, § 3 ² of Vernon's Annotated Civil Statutes. Sparks contends that since there has been no platting, no utilities can be connected to the building under the provisions of Article 974a, § 8 ³ of Vernon's Annotated Civil Statutes, and that the construction of such service station was properly enjoined on this basis.

The evidence establishes that the final plat was filed in the City Plan Office on May 11, 1959, and that no action was taken thereon within 30 days. This fact is certified to bt the Chairman of the City Planning Commission. It is Bolton's contention that under such facts the plat is approved as a matter of law. We agree with Bolton, the Statute so provides. See Article 974a, § 3, supra.

At the Council meeting on June 22, 1959, Ordinance 59-2858, which provided for the temporary or emergency zoning of railroad rights-of-way and the repeal of Ordinance No. 7792, was proposed. This began a series of steps leading to the enactment of Ordinance No. 8143 which, if valid, would result in the site in question being zoned for residential use. ⁴ Automobile service stations are not authorized in such areas.

The next Council meeting was held on July 6, 1959; at that meeting a new Ordinance, No. 59-3102, was proposed as a substitute for Ordinance No. 59- 2858. Thereafter, suggestions and changes were made in Ordinance No. 59-3102, and at a public hearing on July 20, 1959, Ordinance No. 8143 was presented. The rules were suspended, and Ordinance No. 8143 passed that same date; it repealed Ordinance 7792, superseded Ordinance No. 59-3102, and sought to amend existing classifications under the Comprehensive Zoning Ordinance. ⁵

The City Council has the power to provide for the manner in which regulations and zoning districts shall be determined, established and enforced, amended or changed. However, no action of the City Council in this regard shall become effective until after a public hearing held after 15 days published notice. Article 1011d, Vernon's Annotated Civil Statutes; the provisions relative to notice and hearing expressly apply to all changes or amendments or ordinances, Article 1011e, Vernon's Annotated Civil Statutes. The City Council may avail itself of the powers conferred by the statute only after receiving recommendations from the City Planning Commission, and the sending of 10 days written notice of all public hearings on proposed changes in classification to all owners of property affected by the proposals, and to all owners of property located within 200 feet of any property affected thereby. Article 1011f, Vernon's Annotated Civil Statutes, see 1961 amendment.

The evidence establishes that these statutory requirements were not met in the passage of Ordinance No. 8143. For example, public hearings were held at 14-day intervals; June 22, 1959; July 6, 1959; and July 20, 1959. Further, Sparks admits that no notice of the proposed ordinance and amendments was given in compliance with Articles 1011d and 1011f. The trial court held that Ordinance 8143 is invalid and could not be admitted in evidence; the Court of Civil Appeals disagreed.

Sparks contends that under the Comprehensive Zoning Ordinance it was not contemplated that railroad rights-of-way should be zoned, and that the enactment of Ordinance No. 8143 was not such a 'change of classification' as to require that written notice be given in accordance with the provisions of Article 1011f. Sparks further asserts that ordinances enacted on an emergency or temporary basis need not comply with the provisions of Articles 1011d, 1011e and 1011f. We reject these contentions.

Chapter 165, § 2 of the Comprehensive Zoning Ordinance divides the city into use districts, and provides that the boundaries of these districts are to be shown on a Zoning Map which is expressly made a part of the ordinance. ⁶ Railroad rights-of-way are approved for every district created. See: Comprehensive Zoning Ordinance, Art. 165-3; § 7; Articles 165-4, § 1 through Article 165-8, § 1. This is no indication that railroad rights-of-way are not zoned; but rather indicates that the rights-of-way assume the zoning classification of the various districts through which they run. That this is so, is clearly indicated in the preamble of Ordinance No. 8143. ⁷

The Zoning Map indicates that the property in question is within an area zoned C-1 (Commercial), and under the provisions of the ordinance, a filling station is an authorized use in Commercial areas. ⁸ It is our conclusion that at the time of the enactment of Or...