Burkett v. City of Texarkana

• Decision Date: 28 August 1973
• Docket Number: No. 8178,8178
• Citation: 500 S.W.2d 242
• Parties: Joe W. BURKETT, Jr., Appellant, v. The CITY OF TEXARKANA, Texas, et al., Appellees.
• Court: Texas Court of Appeals

Page 242

500 S.W.2d 242

Joe W. BURKETT, Jr., Appellant, v. The CITY OF TEXARKANA, Texas, et al., Appellees.

No. 8178.

Court of Civil Appeals of Texas Texarkana.

Aug. 28, 1973.

Rehearing Denied Oct. 9, 1973.

Joe W. Burkett, Jr., pro se.

Clayton Hutchins, City Atty., Howard Waldrop, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for appellee.

CHADICK, Chief Justice.

The City of Texarkana, Texas, by action of its City Council rezoned Block 7, Rochelle Heights Addition to the City, from a classification of 'SF--2' (single family residence district) to '2F--2' (two-family dwelling district). The change permitted two-family dwellings (duplex houses) on lots containing a minimum area of 3,000 square feet. Prior to rezoning only single-family residences upon lots having a minimum area of 7,200 square feet had been permitted. The rezoned area is a rectangular platted City block, bounded upon two sides by opened, improved streets and on the other two sides by platted but unopened extensions of existing City streets.

Doctor J. E. Rorie and Joe W. Burkett, Jr., as plaintiffs, instituted a suit in a District Court of Bowie County, naming as defendants the City of Texarkana, its City Council, Mayor, City Manager and Building Inspector. The relief sought was:

'1. That the defendant City of Texarkana, its officers, agents, servants, employees, and attorneys, after hearing, be temporarily enjoined and upon a final hearing hereof, be permanently enjoined from (a) issuing to any person, firm, or corporation, any permit for, or otherwise permitting, any building upon or use of any portion of Block 7, Rochelle Heights, other than as specified in Sec . SF--2, entitled single-family residence district of the Zoning Ordinance of the City of Texarkana, passed and approved on September 14, 1970; and from (b) enforcing or attempting to enforce, in any manner, the provision of its ordinance, passed and approved on January 22, 1973, amending said comprehensive zoning ordinance of September 14, 1970, insofar as that amendment relates to Block 7, Rochelle Heights Addition.

'2. That upon final hearing the said amendatory ordinance can be adjudged to be null and void and of no force or effect.

'3. For cost of suit.

'4. For such other and further relief, special and general, at law or in equity, to which they may show themselves justly entitled.'

A temporary restraining order as prayed by plaintiffs was entered the day suit was filed, and the application for temporary injunction was set in conformity with rules governing such procedures. Prior to the temporary injunction hearing, Superior Realty Company, a partnership, was permitted to intervene as a party-defendant. Following hearing, the trial judge entered a written order denying the temporary injunction and dissolving the restraining order theretofore granted. Only Joe W. Burkett, Jr., has perfected an appeal from such interlocutory order.

Mr. Burkett, a practicing attorney, represented himself in this litigation and filed an informal brief, as permitted by Tex.R.Civ.P. 385(d). The Burkett brief dispensed with formal points of error and argues that the trial court abused its discretion in denying the application for temporary injunction. Whether or not the trial judge abused (misused) his discretion is the question to be resolved in this appeal. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962); Manning v. Wieser, 474 S.W.2d 448 (Tex.Sup.1971). In his brief the appellant appears to undertake the burden of showing (1) that the City had no legal authority regardless of the evidence or other circumstances shown by the record, to make the zoning change in question, and (2) that the evidence of invalidity of the ordinance was of such conclusive nature that the plaintiffs in the trial court were entitled to have, as a matter of law, the temporary injunction prayed for.

That the rezoning change on its face constituted Spot zoning apparently is the basis of the contention that the City had no power whatever to enact the amendatory rezoning ordinance. It has frequently been said that Spot zoning is arbitrary and void. Hunt v . City of San Antonio, 462 S.W.2d 536 (Tex.Sup.1971); Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704 (1950); Barrington v. City of Sherman, 155 S.W.2d 1008 (Tex.Civ.App. Dallas 1941, writ ref'd w.o.m.). However, the term is not a word of art, rather it is descriptive of the process of singling out a small parcel of land for use classification different and inconsistent with that of the surrounding area, for the benefit of the owner of such property and to the detriment of the rights of other property owners. See Rodgers v. Village of Tarrytown, 302 N.Y. 115, 96 N.E.2d 731 (1951); Rathkopf, The Law of Zoning and Planning, 3d Ed. Vol. 1, p. 26--2; 63 Tex.Jur.2d Zoning, Sec. 31. The Hunt, Weaver and Barrington cases, as well as City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955) support this generalization that Spot zoning is arbitrary and void but in each case this question is decided by an examination of the facts in the particular case. On its face, the zoning ordinance does not show it was passed for the benefit of a particular property owner, or in disparagement of the rights of the appellant or other property owners. The evidence will be noticed in subsequent discussions. It is sufficient at...