City of Corpus Christi v. Allen

• Decision Date: 14 January 1953
• Docket Number: No. A-3636,A-3636
• Citation: 152 Tex. 137,254 S.W.2d 759
• Parties: CITY OF CORPUS CHRISTI v. ALLEN et al.
• Court: Texas Supreme Court

Page 759

254 S.W.2d 759

152 Tex. 137

CITY OF CORPUS CHRISTI v. ALLEN et al.

No. A-3636.

Supreme Court of Texas.

Jan. 14, 1953.

Rehearing Denied March 4, 1953.

I. M. Singer, City Atty., and Wm. R. Anderson, Jr., Asst. City Atty., Corpus Christi, for petitioner.

John J. Pichinson and Norman L. Utter, Corpus Christi, for respondents.

BREWSTER, Justice.

This cause is a consolidation of four suits filed by the City of Corpus Christi, petitioner, against four different defendants, J. W. Allen et al., respondents, seeking to enjoin each (1) from operating an automobile wrecking yard contrary to the provisions of petitioner's zoning ordinance and (2) from operating such yard upon the public sidewalks and street surrounding the yard.

Upon a stipulation of facts, the trial court granted a permanent injunction as prayed by petitioner.

The Court of Civil Appeals reversed the trial court and dissolved the injunction to the extent that it restrained each respondent from operating a wrecking yard but left it undisturbed in so far as it enjoined each 'from trespassing and encroaching upon the sidewalks, public easements and public street areas adjacent to' his place of business. 247 S.W.2d 130. Its action in the latter respect is not complained of here.

Under authority of Arts. 1011a, et seq., Vernon's Ann.Civ.Stats., petitioner passed its first comprehensive zoning ordinance on August 27, 1937, which is amended by ordinances passed on September 5, 1939, March 5, 1942, May 15, 1945, and May 4, 1948. This last ordinance is the one involved in this case.

The parties agree that the uses which respondents were making of their several properties when this suit was filed and which petitioner seeks to enjoin under the ordinance of May 4, 1948, are the same uses which were being made of such properties prior to the passage of petitioner's original ordinance on August 27, 1937, and that 'such uses of the property has been continued, uninterrupted and unextended since that time.'

Each respondent owns lots on Agnes Street, in Corpus Christi, on which he maintains an open-air storage yard and operates his business 'by purchasing wrecked or partially worn out automobiles, which due to their condition are unusable as automobiles and placing them in this unusable condition on these premises in question. Various parts anticipated as being usable are from time to time removed from said vehicles. This would include such items as batteries, tires, radiator grills, chrome trim, carburetors, electrical equipment, wheels and any other part which might be usable on a similar make or model or for some other purpose. These used parts are offered for sale to local garages or to any member of the public who may be an interested buyer. This removal of parts is not done at once, but takes place from time to time as buyers may appear. After all usable parts are removed from the vehicle, the remnant is removed from the property. No scrap paper or rags or other scrap material unrelated to automobiles are handled on defendant's premises. In addition to sales from automobiles, defendants also placed on display at the front of the structure erected on the premises various items such as hub caps and radiator grills for sale. Defendant's yards at present are occupied with automobiles and other motor vehicles in various stages of dismantling with parts of said automobiles lying in various parts of the yard.' On the lots so used by him each respondent has a building which he uses as an office and for other purposes related to his business. The four businesses involved are close together in a comparatively small area on Agnes Street, at Nos. 2224, 2306, 2317 and 2523, respectively.

Under the ordinance in question, the area in which respondents have their businesses is designated as a light industrial district, whereas the ordinance prescribes that automobile salvage or wrecking yards shall be operated only in a heavy industrial district.

Therefore respondents' businesses became what is described in the ordinance as a 'non-conforming use.' The provisions of the ordinance relating to non-conforming use are Sections 1, 2 and 8, of Art. 21. They read as follows:

'Section 1. Non conforming use of land. The non conforming use of land where no building is involved existing at the time of the passage of this Ordinance may be continued for a period of not more than two years from the date of the passage of this ordinance provided that no such non conforming use of land shall in any way be expanded or extended either on the same or adjoining property, and that if such non conforming use of land or any portion thereof is discontinued or changed, any future use of such land shall be in conformity with regulations of the district in which it lies.

'Section 2. Non conforming use of Buildings. Except as otherwise provided in this Article, the non conforming use of a building existing at the time this ordinance becomes effective may be continued, and the use of a non conforming use of the same or more restricted classification, but where such use is changed to a more restricted...