City of Dallas v. Fifley

• Decision Date: 01 June 1962
• Docket Number: No. 16099,16099
• Citation: 359 S.W.2d 177
• Parties: CITY OF DALLAS et al., Appellants, v. Archie FIFLEY et al., Appellees.
• Court: Texas Court of Appeals

Page 177

359 S.W.2d 177

CITY OF DALLAS et al., Appellants, v. Archie FIFLEY et al., Appellees.

No. 16099.

Court of Civil Appeals of Texas, Dallas.

June 1, 1962.

Rehearing Denied June 29, 1962.

H. P. Kucera, City Atty., and N. Alex Bickley, Ted P. MacMaster and Arthur Schroeder, Jr., Asst. City Attys., Dallas, for appellants.

McKool & McKool and Neil Williams, Dallas, for appellees.

WILLIAMS, Justice.

One of appellees, The Southland Corporation, brought this suit in the nature of a writ of certiorari under the provisions of Art. 1011g, Vernon's Ann.Civ.St. against the City of Dallas, the Chief Building Inspector of the City of Dallas, and the Board of Adjustment of the City of Dallas, challenging the legality of the decision of the Board of Adjustment of the City of Dallas on December 12, 1961, sustaining prior decision of the Building Inspector denying a certificate of occupancy of certain property in the City of Dallas known as 11814 HILLCREST AVENUE. It was the contention of The Southland Corporation that the property in question had previously been used as a drive-in grocery and that it had the right to continue such use as a nonconforming use under the Zoning Ordinance of the City of Dallas. Following introduction of evidence, including all testimony, both oral and documentary, previously introduced before the Board of Adjustment, the trial court, in a non-jury trial, concluded that The Southland Corporation as lessee, and Archie Fifley, as the owner of the property, and lessor, had a nonconforming use of the premises in question and that the Board of Adjustment, the Building Inspector, and the City of Dallas, had acted arbitrarily, capriciously and unreasonably in denying a certificate of occupancy of the property. The judgment reversed the decision of the Board of Adjustment and ordered a mandatory injunction issue directing the issuance of a certificate of occupancy. From this judgment appellants appeal contending, in their first and second points of error, that the trial court erred in substituting its judgment for that of the Board of Adjustment since the record reveals that the decision of the Board of Adjustment was supported by substantial evidence, and that the trial court erred in holding that the plaintiffs had a nonconforming use for a drive-in grocery on the property in question.

The history of the subject matter of this suit, as revealed by the evidence, reaches back to 1951. The tract of land in question was unimproved and located in an undeveloped area outside the City Limits of the City of Dallas when purchased in 1951 by Archie Fifley, one of appellees herein. In 1951 Fifley entered into a lease agreement with The Southland Corporation to lease said company the north 105 feet of this tract. The lease provided that a building was to be built by the owner but that it was to be paid for by lessee. The building was constructed by Mr. Fifley and The Southland Corporation occupied it and began the operation of a drive-in grocery in the early part of 1952. This drive-in grocery was operated by The Southland Corporation until the early part of 1953 when it was discontinued because the neighborhood growth did not justify the operation of the same. According to Mr. Dodds, agent of The Southland Corporation, the store was operated a little over a year. He said: 'We had anticipated a faster neighborhood growth there than actually prevailed and I think operation ceased in the spring of the following year, which would be 1953.' After the store was discontinued in 1953 it was never reopened as a grocery store, said nonuse extending over a period of approximately eight and one-half years. During this period of time The Southland Corporation did continue to pay the rental under the lease agreement. Said lease agreement contained no option to renew, and therefore, by its terms would have expired January 31, 1962. At the time The Southland Corporation ceased the operation of the drive-in grocery in 1953 it removed from the premises the mechanical equipment and furnishings, including the compressors for refrigeration and all signs advertising the property as a drive-in grocery. Certain built-in equipment, including shelving, was left in the building.

On April 26, 1954, approximately one year after The Southland Corporation had ceased operation, the City of Dallas annexed this property and immediately upon such annexation and property took a temporary classification for single family dwelling houses pending permanent zoning by the governing body of the City of Dallas. Thereafter on November 25, 1955 a permanent Zoning Ordinance was enacted by the City imposing a zone for R-One acre single family dwelling purposes, which is a residential classification. Following the annexation the building in question remained vacant and deteriorated, there being testimony that such state of deterioration was such that the glass window panes were broken, the paint was chipped and peeling, and the building was generally in a state of disrepair and nonuse.

In November 1957 The Southland Corporation permitted the Town North Y. M.C.A. to use the building free of charge as headquarters for the Y.M.C.A. activities in that section of City. The Y.M.C.A. continued to use the property until the time of trial.

In August 1961 The Southland Corporation made application to the Building Inspector for a permit to reopen a drive-in grocery, said application being denied by the Building Inspector. Thereafter, in November 1961 appeal was taken by The Southland Corporation to the Board of Adjustment of the City of Dallas seeking permit to reopen the property as a drive-in grocery. At the completion of the hearing before the Board including the introduction of testimony by all parties who desired to be heard, the Board on December 12, 1961 voted unanimously to deny the permit.

OPINION

Art. 1011g, V.A.C.S. authorizes a Board of Adjustment, prescribes its membership and procedure, and authorizes an appeal from its decisions. As to its power, the statute provides:

'The board of adjustment shall have the following powers:

'1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this Act or of any ordinance adopted pursuant thereto.'

The Comprehensive Zoning Ordinance of the City of Dallas adopted pursuant to the authority of the Zoning Act, Art. 1011a-1011k, V.A.C.S. provides, among other things: (1) A nonconforming use is any that does not conform to the Zoning Ordinance but which was in existence prior to effective date of the Ordiance; (2) Any nonconforming use of land may be continued for definite period of time and subject to regulations as the Board of Adjustment may require for preservation of the adjoining property and the ultimate removal of the nonconforming use, it being the declared purpose of the Ordinance that nonconforming uses be eliminated and required to conform having due regard for the property rights of the persons affected; and (3) it being the declared purpose of the Ordinance that nonconforming uses be eliminated, the Board of Adjustment shall, from time to time on its motion or upon cause presented by interested property owners, inquire into the existence, continuance or maintenance of any nonconforming use. Art. 165-24, Ordinances City of Dallas.

In considering appellants' points of error directed against the action of the trial court in reversing the decision of the Board of Adjustment and in holding that such action of the Board was arbitrary, capricious and unreasonable, we are governed by certain established legal principles:

I. Board of Adjustments when functioning within their jurisdiction pursuant to Statutes comparable to Art. 1011a-1011j, V.A.C.S. act as quasi-judicial bodies. Washington v. City of Dallas, Tex.Civ.App., 159 S.W.2d 579, and there is a presumption of legality with respect to permits, special uses, nonconforming uses and such. A party seeking relief from a decision of the Board of Adjustment relative to nonconforming uses has the burden of proof to establish illegality. Montgomery v. City of Dallas, Tex.Civ.App., 245 S.W.2d 753; McQuillin on 'Municipal Corporations' 3rd Ed.Vol. 8, Secs. 25.327-25.328.

II. The Court in considering the legality on the part of the Board of Adjustment must not put itself in the position of the Board and substitute its findings for that of the Board even though the court concludes that the overwhelming preponderance of the evidence is against the Board's decision. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67.

III. The question is whether or not there is any substantial evidence affording reasonable support for such findings and orders entered thereunder. This is a question of law. Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420; City of Dallas v. Stevens, Tex.Civ.App., 310 S.W.2d 750. If the evidence before the court as a whole is such that reasonable minds could have reached the conclusion that the Board must have reached in order to justify its action, then the order must be sustained . Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 441. (Emphasis ours)

IV. Article 1011g contemplates that the trial court shall consider the Board's verified return into court along with the evidence introduced. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67. The court may refuse to hear any further evidence if the record of the Board's proceedings returned into court supports the findings of them Board as to the existence of a nonconforming use. Rowton v. Alagood, Tex.Civ.App., 250 S.W.2d 264.

These principles of law were reiterated by Justice Thomas of this Court in the case of Huguley v. Board of Adjustment of the City of Dallas, Tex.Civ.App., 341 S.W.2d 212. In that case, Justice Thomas quoting Justice Werlein, in he case of Biddle v. Board of Adjustment, Village of Spring Valley,...