Charlestown Homeowners Ass'n, Inc. v. LaCoke

Decision Date28 February 1974
Docket NumberNo. 18254,18254
PartiesCHARLESTOWN HOMEOWNERS ASSOCIATION, INC., Appellants, v. Frank LaCOKE et al., Appellees.
CourtTexas Court of Appeals

Morris I. Jaffe, Wynne, Jaffe & Tinsley, Dallas, for appellants.

H. Louis Nichols, Saner, Jack, Sallinger & Nichols, Jack D. Eades, Clark, West, Kller, Sanders & Ginsberg, Dallas, for appellees.

GUITTARD, Justice.

This appeal concerns the validity of an ordinance of the City of Dallas changing the zoning of approximately thirty-five acres of land from an ordinary residential district to a planned development district for single-family attached dwellings. The suit was filed by neighboring homeowners against Frank LaCoke, the original applicant for the zoning change, and First National Development Company, which subsequently acquired the property and proposed to develop it. Both plaintiffs and defendants filed motions for summary judgment. The trial court overruled plaintiffs' motion and granted defendants' on the ground that the ordinance was shown to be valid as a matter of law. Plaintiffs contend on this appeal that the ordinance is arbitrary and unreasonable as a matter of law and, alternatively, that fact issues are raised in several respects.

THE ORDINANCES

The summary-judgment proof presented by defendants in support of their motion includes certified copies of the Comprehensive Zoning Ordinance of the City of Dallas, the amending ordinance now in question, and an extensive record of proceedings before the City Plan Commission and the City Council. The Comprehensive Zoning Ordinance, enacted in 1965, divides the city into zoning districts for which permitted uses are listed. One of these is a 'planned development district.' The ordinance provides that the City Council, after public hearing and on recommendation of the City Plan Commission, may by ordinance authorize the creation of a 'planned development district' on sites of five acres or more to accommodate various types of development and combinations of developments and that such ordinance shall specify the standards for area and spacing of buildings, site coverage, access, open space, public or private streets or alleys, and the like. The ordinance contains this further statement:

In order to provide flexibility in the planning and development of projects with combinations of uses or of specific physical designs such as . . . housing developments or any similar developments, a PD, Planned Development District is provided. . . . The purposes of the PD, Planned Development District are to achieve flexibility and variety in the physical development pattern of the City, to encourage a more efficient use of open space and to encourage the appropriate use of land.

Such a 'planned development district' was provided for the thirty-five acres of land in question by the amending ordinance under attack in this suit. The conditions governing the development are stated in twenty numbered paragraphs. Use of the land is permitted for single-family attacked dwellings, private community center, private recreational club or area, and accessory uses. All development is required to be in accordance with a development plan referred to in the ordinance. Requirements are made concerning building setbacks, maximum coverage by buildings, minimums for width, depth and area of lots, limitations on height of buildings, and requirements for streets, parking areas, screening, utilities, fire lanes, and common open spaces. A property owners' association is required for maintenance of open areas and other common facilities, and no more than two recreation or service buildings are allowed.

EVIDENCE BEFORE COMMISSION AND COUNCIL

We consider first plaintiffs' contention stated in their second point of error that the trial court erred in granting defendants' motion for summary judgment because no evidence was introduced before the City Plan Commission or the City Council to support a change in zoning. Plaintiffs assume that an amendment to a zoning ordinance is subject to attack on the ground that the Commission did not hear sufficient evidence on which to base its recommendation and that the Council did not hear sufficient evidence on which to base its determination that the zoning should be changed. The assumption seems to be based on Bliss v. City of Fort Worth, 288 S.W.2d 558 (Tex.Civ.App.--Fort Worth 1956, writ ref'd n.r.e.), but that case did not decide the point, since it held only that the defendants, who sought to establish validity of a zoning change by showing on motion for summary judgment that the Council gave it due consideration, failed to show by their affidavits the evidence the Council actually heard. We do not assume that the ordinance must be based on evidence before the Commission and the Council because the city's power to make and amend zoning regulations is a legislative power delegated to the local legislative body by Tex.Rev.Civ.Stat.Ann. arts. 1011a--1011j (Vernon 1963) and the hearing required by article 1011d is legislative rather than judicial in character. Lawton v. City of Austin, 404 S.W.2d 648 (Tex.Civ.App.--Austin 1966, writ ref'd n.r.e.); Krimendahl v. Common Council of City of Noblesville, 256 Ind. 191, 267 N.E. 547 (1971); and Cf. Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (1961). Article 1011d provides for a public hearing 'at which parties in interest and citizens shall have an opportunity to be heard,' and requires publication of notice of such hearing, but it does not require that the evidence at such hearing be sufficient to support the legislative determination. After all citizens who wish to speak have had an opportunity to do so, the City Council, like any other legislative body, may act on its own knowledge of the community and its own appraisal of the public welfare. A court has no authority to interfere unless it finds that the order is clearly unreasonable and arbitrary. The court must consider all the circumstances, not merely the evidence before the Council, and determine as a substantive matter whether reasonable minds may differ as to whether the particular zoning regulation has a substantial relationship to the public health, safety, morals or general welfare. If the evidence before the court reveals an issuable fact in this respect the restriction must stand as a valid exercise of the city's police power. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477, 481 (1955).

Even if an attack could be made on the ground of lack of evidence before the Plan Commission and the City Council, such an attack could not succeed here because the summary-judgment proof shows ample evidence before both bodies to support the change in zoning. The record contains a transcript of the evidence before the City Plan Commission and shows that substantially the same evidence was presented to the City Council. The applicant Frank LaCoke appeared before both the Commission and the Council. He stated that he had been a builder and developer of residential and commercial properties in the North Dallas area for twenty-one years. He explained that the purpose of the change was to permit development of the thirty-five acres of land for single-family attached homes, with approximately eleven acres of green belts, parks and recreational areas, and that the quality of construction would be custom homes selling for $36,000 to $52,000, which he said was compatible with the price range of existing homes in the area. In his opinion, this type of development would represent the highest and best use of the land and would offer home ownership combined with a highly desirable way of life for leisure-oriented home buyers. He said that the projected development was similar to successful and well-accepted planned developments of single-family homes in California, and he presented picture slides showing such a development in California. He explained further that the homes would be built for sale only and that by clustering not more than six homes together and building each on a small lot, typically thirty or thirty-five feet by one hundred feet, only forty-seven percent of the area would be used for home sites and fifty-three percent would be for streets, connected green belts, and park areas. The common areas and the exterior of each house would be maintained by a homeowners' association operated by a board of directors elected by the homeowners. The association would employ a full-time manager, who would contract the work out on a yearly basis. Each owner would be required by state law to contribute his share of the expenses of upkeep of the common areas and the exterior of his home. His family and guests would have use of all recreational facilities, which might be prohibitive in cost to own on an individual basis. The recreational facilities would include a clubhouse with meeting rooms, health club, adult and teenage activity rooms, and would also include swimming pools, tennis courts, and childrens' play areas. In LaCoke's opinion, many families would prefer to live in such a development where they enjoy security, minimal maintenance, proximity of neighbors, and club facilities without abandoning the traditional pride, prestige, and permanency of home ownership.

At the hearings before both the Plan Commission and the Council, opponents of the zoning change were represented by Mr. Morris Jaffe, now counsel for plaintiffs. Their principal objection, as stated by Mr. Jaffe, was that the proposed planned development would bring increased density of population and heavier traffic on the streets of the Melshire Estates addition, where plaintiffs have their homes. He pointed out that under existing residential zoning only seventy to seventy-five homes would be permitted on the thirty-five acres of land in question, but that the proposed planned development would permit two hundred and fifty homes in the same area. Individual homeowners also...

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