City of Dallas v. Lively

• Decision Date: 16 January 1942
• Docket Number: No. 13172.,13172.
• Parties: CITY OF DALLAS et al. v. LIVELY et al.
• Court: Texas Court of Appeals

161 S.W.2d 895

CITY OF DALLAS et al. v. LIVELY et al.

No. 13172.

Court of Civil Appeals of Texas. Dallas.

January 16, 1942.

Rehearing Denied May 1, 1942.

Appeal from District Court, Dallas County; Dick Dixon, Judge.

Suit by Hiram F. Lively, administrator, and others against the City of Dallas and others. From a judgment for plaintiffs, defendants appeal.

Reversed and rendered, with instructions.

H. P. Kucera, City Atty., and A. J. Thuss, R. L. Dillard, Jr., Jon H. Shurette, and Charles E. Long, Jr., Asst. City Attys., all of Dallas, for appellants.

Lively, Dougherty & Alexander, R. D. Hardy, and Paul S. McCarroll, all of Dallas, for appellees.

Percy C. Fewell, of Dallas, amicus curiae.

YOUNG, Justice.

Appellees in this suit urge invalidity of the Dallas zoning ordinance in so far as it applies to their property, in that, the zoning classification of such lot was arbitrary, unreasonable and confiscatory. The jury findings, in substance, were: (1) The reasonable market value of the property in question, if limited to the uses for which it is now zoned (residential district), was $500; (2) reasonable market value thereof, if permitted to be used for purposes of a gasoline filling station (local retail district), was $12,500; (3) that it was not necessary to the peace, health, safety or general welfare of the public to prohibit the use of appellees' property for purposes of a gasoline filling station; (4) that by reason of its shape, size and location, the lot was not suitable for the purpose for which it is now zoned.

Judgment was thereupon rendered, enjoining appellants from enforcing regulations relative to appellees and their property; commanding the defendants to desist and refrain from interfering with the improvement of said premises for a commercial use.

Appellees herein (plaintiffs below) are Hiram F. Lively, administrator, of the estate of G. C. Fuqua, decedent, and three others (heirs of said decedent); appellants being the Dallas City Councilmen, its Building Inspector, City Manager, and members of the Board of Adjustment. It had been alleged and proven by the lot owners that their application to the Plan Commission and City Council, for an amendment of the ordinance and change of their property classification to local retail business, was denied upon hearings; also, that the City Building Inspector had refused application for permit to erect the oil station, on the sole ground that the zoning law prohibited such construction, and appeal to the Adjustment Board had been taken without avail. Appellees' prayer for injunctive relief was alternately for a writ of mandamus to compel from proper officials the issuance of such permit.

The particular lot (described as No. 34, block 3447, situated in the Oak Cliff section of Dallas) is in the shape of a long triangle, 210 feet on the south side, 200 feet on the north or northeast side, 96.6 feet on the west side and 24 feet on the east. Along its south boundary line is Tenth Street Boulevard, a paved and curbed thoroughfare, 115 feet wide, with parkway through the center, separating east and westbound traffic; on the north side is Jefferson Avenue, 100 feet wide, paved except the center part, which is occupied by a double-track street car line, poles and wires, such space separating east and westbound traffic; to the east of lot 34 (adjoining its 24-foot end) is a wide expanse of pavement, indicating the convergence of Jefferson and Tenth Street Boulevard; and coming into such intersection, about 200 feet east of the Fuqua lot, is Rosemont, running north and south. Adjacent to the west is another lot (No. 33) owned by appellees, fronting 50 feet on Tenth Street Boulevard, also extending through to Jefferson. Each of the two cross streets west of and parallel to Rosemont (Waverly and Brighton) deadend at Tenth to the south and Jefferson to the north; the third street to the west (Marlborough) being the next thoroughfare west of Rosemont, crossing both Tenth Street Boulevard and Jefferson. This entire block fronting west, as is seen, on Marlborough, with appellees' land as the extreme eastern tip, has Tenth Street Boulevard abutting on the south and Jefferson Avenue on the north side, both constantly used highways. The lot in suit appears from the exhibits to be of the same size and shape as when platted by the owner of that particular addition in 1913, when it and adjacent property were restricted to residence uses. Such initial and subsequent deed restrictions expired about the year 1933, but prior thereto, the zoning statutes had been enacted, Acts 1927, 40th Leg., Art. 1011a, et seq., Vernon's Ann.Civ.St., under which the Dallas Zoning ordinance (No. 2052), passed in 1929, had again classified the lot for residence uses. From the evidence, it appears that some 25 or 30 years ago, a two-story residence had been built on lot No. 33, with about ten feet over on the premises in question, where G. C. Fuqua had lived until his death; but that such building was uninhabitable at date of trial.

The property in the vicinity of appellees', or plaintiffs', lot is shown to be devoted to residence uses, due, presumably, to original deed restrictions and the subsequent zoning classification here under attack; the major changes wrought by time, and the steady development of the City to the west, being the establishment of an oil station at the general intersection of Tenth Street Boulevard, Jefferson and Rosemont Streets in 1929, prior to passage of aforesaid ordinance. (The business just described, it is proper to note, was the subject matter involved in Scott v. Champion Building Co., 28 S.W.2d 178, where this court first sustained comprehensive zoning). Additional changes begin about 100 feet back of lot 33 and along the southeast line of Jefferson Avenue, consisting first of apartments over garages, and, farther along, various business houses up to the intersection of Marlborough Street, where appears a retail business district. West of the Magnolia oil station just mentioned, and facing Tenth Street Boulevard in the vicinity of plaintiffs' lot, are residences; a similar situation exists beyond lot 33, west to Marlborough; while across Jefferson, are residences facing intersecting streets already named, viz: Waverly and Rosemont.

The zoning ordinance of appellant municipality divided all property within its confines into six use districts, appellees' lot being classified as "B" (dwelling); and prohibiting the erection or alteration of any building, except in conformity with the use regulations prescribed for the particular district. Appellees were thereby restricted under Sec. 3 to dwelling district uses, and, so far as important here, to one-family or two-family dwellings. The further provisions of Sec. 11 require a minimum fore and rear yard depth of 25 feet; and in no case, less than a front yard depth of 10 feet to the street line. Section 5 (local retail district) expressly permitted construction of gasoline filling stations; and under authority further granted by the ordinance, the City Council could change district boundaries by first submitting the proposal to the City Plan Commission for recommendation and report. Public hearings followed and, unless the proposed change be approved by the Plan Commission, or in case of protest by a percentage of adjacent property owners, a favorable action on any such amendment must receive a three-fourths vote of the Council. The City's Board of Adjustment, authorized by Art. 1011g, Vernon's Ann.Civ.St., and local ordinances, also has power to grant exceptions in case of unnecessary hardship on affected property, but not to the extent of altering district lines.

Appellees' sole complaint, of course, is the alleged disastrous effect of the particular zoning classification on their property, which the City Council, functioning in its governmental capacity, has refused to correct; and the evidence, physical facts and conditions are arrayed as demonstrating conclusively an arbitrary, unreasonable exercise of appellants' police power, to the extent of confiscation. It is argued that mixed questions of law and fact are presented, involving their rights, which the jury findings have settled; the only question before this court being sufficiency of the evidence to support said verdict and consequent judgment.

Plaintiffs' principal testimony was adduced from reputable real estate men, none living, however, in the vicinity under examination. All testified to facts from which the jury could reasonably have based its widely diverse valuation of the same lot, if available for a commercial purpose, in contrast to a residence use. Appellees' witnesses further stated, in substance, that the operation of a filling station on the lot would not affect adjoining property valuations, with no increase of traffic or fire hazards, or other disturbance of the neighborhood peace and quiet; and considering the angular shape of the lot, offsets required in building regulations, its narrow limits abutting on the three well traveled streets above named, that any improvement thereof for residence use would be wholly unprofitable. On the other hand, it was elicited from a witness for appellees upon cross examination, that the lot could be utilized for a single or two-family dwelling; while city witnesses, neighborhood residents, voiced the opinion generally that an oil station on the Fuqua lot would accentuate noises, vehicular congestion and traffic hazards; that the increase of artificial lights, due to night operation of the station, would be a further annoyance, and that all these factors would tend to affect adversely the value of their property. It has been judicially determined that such business constitutes a fire hazard. Scott v. Champion Bldg. Co., supra; Lombardo v. City of Dallas, Tex.Civ. App., 47 S.W.2d 495, affirmed, 124 Tex. 1, 73 S.W.2d 475.

Appellees concede the ordinance to be, in its general aspects, valid;...