City of Bellaire v. Lamkin

Decision Date29 October 1958
Docket NumberNo. A-6678,A-6678
Citation159 Tex. 141,317 S.W.2d 43,66 A.L.R.2d 1289
Parties, 66 A.L.R.2d 1289 CITY OF BELLAIRE, Texas, Petitioner, v. M. A. LAMKIN et ux., Respondents.
CourtTexas Supreme Court

Paul Strong, Houston, for petitioner.

Charles H. Sherman, Jr., Houston, for respondents.

GRIFFIN, Justice.

The petitioner, City of Bellaire, Texas, hereinafter called City is a Home Rule city and under the authority of Articles 1011, 1011a et seq., Vernon's Annotated Civil Statutes, it duly and legally passed a comprehensive zoning ordinance on April 19, 1950. As far as is material in our cause, this ordinance defined a front yard as 'the open space between a building and the street on which it fronts.' Further, the ordinance provided that 'no fence, wall or anything similar shall be permitted in the front yard.' Section 24, Subsection 7 of the said ordinance provides that 'no wall, fence, or other structure shall be erected and no hedge, shrub, tree or other growth shall be maintained on any corner lot within the required front and/or side street yard space so as to cause danger to traffic by obstructing the view.'

Respondents, Mr. and Mrs. Lamkin, own a corner lot in the City. After the effective date of the zoning ordinance, the Lamkins erected a fence thirty inches high in their front yard with a gate approximately in the middle of the fence. This fence consists of 4 X 4 posts sunk in the ground to which posts are nailed three 1 X 6 railings, or strips, with the flat sides against the posts. The front yard fence was set back about 32 feet from the street on which the Lamkins' house faced, and some 40 feet from their house. The Lamkins did not apply to the City for a permit to erect the fence, and, of course, would have received no permit had they applied. After the postholes were dug, but before the posts were inserted therein, a representative of the City came to the Lamkins' home and inquired as to the purpose Lamkin had in digging the postholes. Upon being informed that the Lamkins proposed to erect the fence, this representative informed them they were prohibited from erecting the fence under the zoning ordinance of the City. He also told them the City would not permit the fence to be erected, or to continue in existence, if erected. The Lamkins went ahead and erected the fence claiming they had a constitutional right to do so. Various negotiations were had between the City and the Lamkins seeking to have the fence removed, but no progress was made. Finally, the City filed this suit against the Lamkins for a permanent injunction requiring them to remove the cyclone side fences and this front yard fence. Upon a trial before the Court without a jury, the injunction was denied as to the removal of the cyclone side fences, and granted as to the removal of the fence in the front yard.

The Lamkins appealed to the Court of Civil Appeals which court reversed the judgment of the trial court and rendered for the Lamkins on the ground that the ordinance, as applied to the Lamkins' fence, was unreasonable and that it had no reasonable relationship to public health, safety and general welfare. 308 S.W.2d 70. We reverse the Court of Civil Appeals and affirm the judgment of the trial court.

The application for writ of error by the City was granted. There is no dispute that the City, in the exercise of its police power under statutory authority, including the Home Rule amendment to our Constitution, has authority to promulgate zoning ordinances regulating the use, and, where necessary or appropriate, to prohibit the use of property for certain purposes in aid of the general welfare, safety and public health and morals of the community. Lombardo v. City of Dallas, 1934, 124 Tex. 1, 73 S.W.2d 475; City of San Antonio v. Pigeonhole Parking of Texas, Inc., 1958, Tex., 311 S.W.2d 218; Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016. It is also the law that harmless structures occupations, etc. may sometimes be brought within the regulations or prohibitions of an ordinance in order to abate or destroy the harmful. Lombardo v. City of Dallas, supra: Euclid, Ohio v. Ambler Realty Co., supra.

The City, in passing zoning ordinances, acts in the exercise of its legislative powers, and its ordinances are presumed to be valid. City of Waxahachie v. Watkins, 1955, 154 Tex. 206, 275 S.W.2d 477; Town of Ascarate v. Villalobos, 1949, 148 Tex. 254, 223 S.W.2d 945. The courts have no authority to interfere with the City in the passage and enforcement of its zoning ordinances unless the action of the city is arbitrary and unreasonable. Town of Ascarate v. Villalobos, supra. The courts cannot interfere unless it appears that the ordinance represents a clear abuse of municipal discretion, and the 'extraordinary' burden rests on one attacking the ordinance to show that no conclusive, or even controversial or issuable fact or condition existed which would authorize the governing board of the municipality to exercise the discretion confided to it in the passage of that part of the zoning ordinance under attack.

'This query presents a question of law, not a question of fact, and in deciding it the court should have due regard 'to all the circumstances of the city, the object sought to be attained and the necessity existing for the ordinance.' And if there is an issuable fact as to whether the ordinance makes for the good of the community, the fact that it may be detrimental to some private interest is not material. Edge v. City of Bellaire,...

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