City of Amarillo v. Stapf

• Decision Date: 03 February 1937
• Docket Number: No. 2042 - 6812.,2042 - 6812.
• Citation: 101 S.W.2d 229
• Parties: CITY OF AMARILLO v. STAPF.
• Court: Texas Supreme Court

101 S.W.2d 229

CITY OF AMARILLO v. STAPF.

No. 2042 - 6812.

Commission of Appeals of Texas, Section A.

February 3, 1937.

Certified Questions from Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by Lowell Stapf against the City of Amarillo. From the judgment rendered, the defendant appealed, and the Court of Civil Appeals certified questions to the Supreme Court.

Questions answered.

Underwood, Johnson, Dooley & Huff, of Amarillo, for appellant.

Morgan, Culton, Morgan & Britain, of Amarillo, for appellee.

S.E. Fish, of Amarillo, for interveners.

GERMAN, Commissioner.

The certificate of the Court of Civil Appeals is quite lengthy, and we think proper answers may be made to the questions propounded from consideration of a condensed statement of the material facts.

The City of Amarillo has adopted a comprehensive zoning ordinance in accordance with the act of 1927, known as chapter 283 of the Acts of the 40th Legislature, and shown as articles 1011a to 1011j, inclusive, of Vernon's Annotated Civil Statutes of Texas. The substantial provisions of the law are set out in the opinion of the Supreme Court in the case of Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.(2d) 475. The zoning ordinance adopted by the governing body of the city is the uniform ordinance which has been adopted within recent years in many of the American states, and the general terms of which are set out in the opinion in the Lombardo Case. The constitutionality of the general ordinance is not questioned, nor is any question raised as to its proper enactment.

The ordinance in question was adopted prior to April, 1932, and, among other districts, created the "first manufacturing district" and the "second manufacturing district," enumerating the various buildings and uses permitted in these districts. In April, 1932, appellee, Stapf, was operating a machine shop at 1211 Lincoln street, immediately across the alley from 1210 Johnson street. Both of these places are within the first manufacturing district created by the zoning ordinance. At that time there was a small foundry located at 1505 Johnson street, also within said first manufacturing district. Apparently the operation of this foundry had been discontinued, because at that time it was about to be sold under bankruptcy proceeding. Appellee conceived the idea that the foundry might profitably be operated in connection with his machine shop, if the same were located near the machine shop, and both were conducted under one management. On April 22, 1932, he requested of the city manager a permit to move the foundry from 1505 Johnson street and to locate same at 1210 Johnson street. The zoning ordinance of the city provides that same shall be administered by the building inspector under the direction of the city manager, in accordance with the provisions of the city charter. The city manager gave appellee a note addressed to the building inspector, which note read as follows: "It is o. k., it seems to me, for a permit to be issued for a foundry at 13th and Johnson Streets." Relying upon this action of the city manager, appellee purchased the foundry at 1505 Johnson street, paying a substantial sum of money therefor, and made arrangements for a lease of the premises at 1210 Johnson street, where he proposed to construct the foundry and store his scrap iron and junk materials. A permit was issued by the building inspector on June 2, 1932. On June 3, 1932, the building inspector canceled this permit, "subject to a hearing before the Appeal Board" to be held on June 18, 1932, and on June 6, 1932, notified appellee in writing of this action, requesting him to appear before the Appeal Board. This action on the part of the building inspector was prompted by a protest which residents in the vicinity of 1210 Johnson street had lodged with him immediately after being advised that the permit had been issued, and by reason of the fact that the building inspector had concluded that the property at 1210 Johnson street was classified as in the first manufacturing district, while the foundry which plaintiff desired to erect properly belonged in the second manufacturing district, as defined by the ordinance.

On June 22, 1932, there was a hearing before the "Board of Adjustment" provided for in the zoning ordinance, having the powers and authority given by article 1011g of the act above mentioned. It appears that the question before the board at that time, as shown by the minutes, was, "where foundries should be located, whether in the first or second manufacturing district; the zoning ordinance does not define where foundries shall be erected." It does not appear that appellee was present at this meeting, but no official action was taken. There was a formal meeting of the board on July 8, 1932, in which appellee participated, and, after a full investigation, the board entered an order as follows: "After considerable discussion it was moved and unanimously carried that foundries be designated in the second manufacturing district in the zoning ordinance, and that a permit be denied for the erection of a foundry at 1210 Johnson Street."

No further action appears to have been taken by any one until January 25, 1933, when the City Commission had a hearing and entered an order as follows: "The purpose of this meeting was for the final decision of the City Commission on whether or not the zoning map should be changed to designate the property at 1210 Johnson Street second manufacturing district instead of first manufacturing district. After consideration it was moved by Commissioner Vernon, seconded by Commissioner Smith, and unanimously carried, that the area under discussion at 1210 Johnson Street should not be changed from its present classification, which is first manufacturing district."

Appellee prosecuted no appeal by certiorari, as provided for in article 1011g of the statute, which article was made a part of the zoning ordinance.

Appellee brought this suit in the district court against the City of Amarillo, its mayor, the city commissioners, and against the building inspector and city manager. The suit was for an injunction to restrain the defendants (appellants) from interfering with appellee in the construction of his building at 1210 Johnson street, and in the operation of a foundry at that place. Briefly, appellee made and is asserting here three contentions:

(a) That, on account of his reliance upon the action of the city manager in advising him that there was no objection to the issuance of a permit for the construction and operation of a foundry at 1210 Johnson street, and his expenditure of money in purchasing the foundry and in obtaining the lease for the property, the building inspector, the Board of Adjustment, and the city and its officials were estopped from revoking the permit issued to him.

(b) That, the permit having been issued by the building inspector, he and the Board of Adjustment were without power to revoke same.

(c) That if for any reason he has in fact no rights under the permit, in so far as the zoning ordinance of the city prohibits the building and use of a foundry at 1210 Johnson street, within said first manufacturing district, such ordinance is unreasonable, arbitrary, and discriminatory, and is void. In connection with this contention he claims that the city permits other buildings and businesses of a less objectionable character to be located within said first manufacturing district.

The district court overruled the plea in abatement filed by the city, predicated upon the proposition that appellee should have prosecuted an appeal from the action of the Board of Adjustment by certiorari, and entered its order directing the city and its officials to permit appellee to construct his foundry at 1210 Johnson street, and restraining them from interfering with appellee in the construction and operation of a foundry at that location.

The Court of Civil Appeals has certified to the Supreme Court the following questions:

"(1) After Stapf had been assured that the permit would be issued, and relying thereon had purchased the foundry and perfected arrangements to lease the lot, and after the permit had been issued, was the attempted revocation thereof illegal and void?

"(2) After the revocation of the permit, was the appellee Stapf required by the zoning law to prosecute his appeal from the action of the city authorities by certiorari to the court or could he institute this independent action?

"(3) Does the statute and the ordinance enacted thereunder invest the Building Inspector and Board of Adjustment with judicial powers in violation of the Constitution?"

We answer the first question in the negative, for two reasons. In the first place, appellee set out in his...