City of Abilene v. Haynes

• Decision Date: 03 February 1983
• Docket Number: No. 11-82-022-CV,11-82-022-CV
• Parties: CITY OF ABILENE et al., Appellants, v. Bill C. HAYNES et al., Appellees.
• Court: Texas Court of Appeals

Page 928

645 S.W.2d 928

CITY OF ABILENE et al., Appellants, v. Bill C. HAYNES et al., Appellees.

No. 11-82-022-CV.

Court of Appeals of Texas Eastland.

Feb. 3, 1983.

Rehearing Denied Feb. 24, 1983.

Ronald H. Clark, Asst. City Atty., Abilene, for appellants.

Beverly Tarpley, Scarborough, Black, Tarpley & Scarborough, Abilene, for appellees.

McCLOUD, Chief Justice.

This is an appeal of a paving assessment suit by four landowners. ¹ Plaintiff landowners urged that the paving assessments levied against them and their property were invalid because they were arbitrary. ² They further alleged that they were not "abutting" landowners. The trial court ruled that the paving assessments were arbitrary and unenforceable. ³ The City has appealed.

On March 12, 1981, the City Council passed City Ordinance No. 23-1981 assessing each landowner for part of the costs of paving Antilley Road. Prior to the March 12, 1981, ordinance Antilley Road, which is located near the southern edge of Abilene, was a paved two lane roadway approximately 20 to 25 feet wide. On March 12, 1981, the City Council approved the repaving of Antilley Road as a 64 foot wide paved street with curbs and gutters. Each landowner was assessed $13.94 per front foot.

The City contends that there was substantial evidence that each of the landowners' properties would be benefitted by the paving project in an amount equal to or greater than the amount assessed against it. See Tex.Rev.Civ.Stat.Ann. art. 1105b, sec. 9 (Vernon Supp.1982-1983).

The Court in City of Houston v. Blackbird, 394 S.W.2d 159 (Tex.1965) clearly sets forth certain applicable rules in an appeal of a paving assessment:

(1) there is a presumption that the ordinance levying the assessment is valid;

(2) the acts of a city in finding benefits to property and in determining the amount of the benefits because of paving may be set aside and annulled only because they are arbitrary or the result of fraud;

(3) whether the city acted arbitrarily is a question of law.

The question is whether the evidence admitted at the trial court hearing ⁴ establishes that the action of the City Council was arbitrary in determining that the landowners property was benefitted to the extent of $13.94 a front foot. The trial court is not limited to considering only the evidence presented at the City Council hearing. All evidence is to be reviewed and not merely that which supports the ordinance. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (Tex.1946).

The landowners live in either "The Fairways" or the adjoining "Continuation No. 1" of "The Fairways" subdivision. The back of their lots face Antilley Road. There is a six foot fence on their back south boundary line which prevents them from seeing Antilley Road. This six foot fence was a requirement of the City Council for approval of the subdivision. Therefore, the landowners could not have any direct access to Antilley Road from their individual lots because of the fence.

Landowners, Haynes and Cobb, testified that in their opinion the paving and widening of Antilley Road did not benefit their property. A real estate appraiser and a real estate broker also testified that in their opinion the paving did not benefit the landowners' property.

Jimmy Partin III, a real estate appraiser, who testified briefly for the City at the March 12, 1981, City Council meeting, testified at length at the trial. He prepared a written appraisal of each individual property assessed. Partin prepared a "curivilinear analysis," consisting of comparable land sales, which correlated sales from 1972 to the time of trial and from zero dollars per acre to in excess of $16,000 per acre. The curve reflected the increase in property values because of inflation, and also showed how it took "an upswing" after December of 1979, when the Antilley Road paving project was announced. The chart also shows an "upcurving line" after the ordinance was passed on March 12, 1981. Partin testified that the chart reflects that from the time the project was announced to the time the ordinance was passed, the land values "skyrocketed out of sight" along Antilley Road.

Partin also prepared a summary as to each individual property showing the value as of November 30, 1979, the value as of March 12, 1981, the increase in value between November 30 and March 12, the percentage of increase in value, amount assessed, and assessment as percentage of value increase. The chart shows a substantial increase in the value of each of the properties after the announcement of the paving project. Partin's reports and testimony unequivocally reflect his opinion that no assessment exceeded the special benefits to the individual properties and owners because of the paving of Antilley Road. No assessment was greater than the enhanced value of the property resulting from the paving project. Partin stated that it was not even a "close call." He stated, "each property would be enhanced by this main artery that would be placed in this portion of town, of Abilene; all eyes would be there." Partin testified that it would be reasonable to assume that the property will continue to rise in value. He testified that the reports provided a basis for making a reasonable estimate that after March 12, 1981, the paving and widening of Antilley Road would increase the value of the property in an amount equal to or greater than the assessments. Partin disputed that any property had decreased in value because of the paving project.

On cross-examination, Partin stated that in his opinion the announcement of the proposed Antilley Road paving project in 1979 was responsible for about fifty percent of the increase in the value of the properties. He agreed that the construction of the Mall of Abilene and the Fairway Oaks subdivision had a bearing on the increased values.

Partin was cross-examined regarding the effect of the six foot wall and the fact that landowners had no direct access from their individual lots to Antilley Road. Partin, however, clearly testified that the wall or nonaccess did not affect his opinion regarding the enhanced value of landowners' properties because of the paving project. It has been held that denial of access to the street improvement does not make the street nonabutting. See Clements v. City of Corpus Christi, 471 S.W.2d 83 (Tex.Civ.App.--Corpus Christi 1971, writ ref'd n.r.e.). We have found no case which holds that as a matter of law, a city council acts arbitrarily if it finds that abutting property has been enhanced even though the abutting property has no direct access to the improved street. The enhancement issue was not discussed in Clements.

The burden of proof is upon the landowners to show that their assessments are not reasonably supported by substantial evidence. Preponderance of the evidence is not the test. Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (Tex.1958). Judge Reavley in "Substantial Evidence and Insubstantial Review in Texas," 23 SW.L.J. 241 (1969) stated:

A party appealing an administrative decision may have a difficult burden, for "substantial evidence" need not be much evidence. Though "substantial" means more than a mere scintilla or some evidence, it is certainly less than is required to sustain a verdict being attacked as against the great weight and preponderance of the evidence.

The reviewing court may not substitute its judgment for that of the City Council. The test to be applied is announced in Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (Tex.1946) as:

If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside.

After reviewing all the evidence, we hold that the assessments ordered by the City Council were reasonably supported by substantial evidence. The landowners...