City of Fort Worth v. Johnson

• Decision Date: 18 November 1964
• Docket Number: No. A-10154,A-10154
• Citation: 388 S.W.2d 400
• Parties: CITY OF FORT WORTH, Petitioner, v. L. C. JOHNSON et al., Respondents.
• Court: Texas Supreme Court

Page 400

388 S.W.2d 400

CITY OF FORT WORTH, Petitioner, v. L. C. JOHNSON et al., Respondents.

No. A-10154.

Supreme Court of Texas.

Nov. 18, 1964.

S. G. Johndroe, City Atty., Fort Worth, for petitioner.

Campbell & Campbell, Fort Worth, for respondents.

CALVERT, Chief Justice.

The City of Fort Worth brought suit to enjoin L. C. Johnson, La Verne Hurt, and others from using a building owned by Mrs. Hurt as a six-unit apartment house in violation of a City zoning ordinance. Trial was on the prayer for a permanent injunction, and the trial court rendered judgment denying the relief sought by the City. The Court of Civil Appeals has affirmed. 377 S.W.2d 699. We reverse the judgments of the courts below and remand the cause to the trial court for entry of judgment for the City of Fort Worth.

Pursuant to Arts. 1011a-1011k, ¹ the Fort Worth City Council, on November 26, 1952, enacted Comprehensive Zoning Ordinance No. 3011, effective March 1, 1953. Section 4 of the ordinance limits use of property in 'B' Two-Family Districts to one-family and two-family dwellings.

On September 27, 1958, the City granted a permit for the construction of a two-family dwelling on Lot 3, Block 5, Hawkins Scenic Hill Addition to the City of Fort Worth. The owner of the property at that time was D. E. Hansen. Contrary to the permit, the building was completed on January 2, 1959, as a six-unit apartment house. Following completion of the building, the City issued a 10-day notice to the owner of the property to discontinue the use of all but two of the units. Some time following completion of the building, L. C. Johnson acquired the property. Mrs. Hurt purchased the property from him for a valuable consideration on July 14, 1961. Within approximately a week from the date the property was conveyed to Mrs. Hurt, the City Building Inspector notified her that she and her tenants were making use of the property in violation of the zoning ordinance. The violation continued; and in October of 1961, the City instituted this suit to enjoin Johnson, Mrs. Hurt and Mrs. Hurt's tenants from using the building in violation of the City ordinance.

In answer to the City's original petition, defendants pleaded a general denial and that due to laches on the part of the City they would be irreparably damaged should the ordinance be enforced. Trial was before the court. The City prove up and introduced its Comprehensive Zoning Ordinance in evidence, and proved that the property was in a 'B' Two-Family District. It then tendered proof that the structure contained six separate family units, whereupon defendants stipulated that fact and that each unit was occupied by a separate family group. The City then rested its case. The defendants called no witnesses. They did establish by cross-examination of the City's witnesses that from the stand-point of physical appearance the structure would add to improvement of the neighborhood and that off-street parking space was provided for the tenants. The trial court recited in its judgment denying the injunction that the evidence was 'insufficient to entitle plaintiff to the relief requested.'

The Court of Civil Appeals seems to have based its judgment of affirmance on two grounds: (1) because the City failed to prove that use of the structure in violation of the ordinance 'would damage it and its residents in their health, safety, and welfare,' and (2) because Mrs. Hurt acquired the property 'two and one-half years after its completion, for a valuable consideration without notice that it was finished in violation of the permit granted for its construction.' We hold that neither of the grounds affords a sound basis for the judgment.

The first ground is unsound because it fails to take cognizance of the rule, firmly established in this State, that a zoning ordinance, duly adopted pursuant to Arts. 1011a-1011k, is presumed to be valid, and the burden is on one seeking to prevent its enforcement, whether generally or as to particular property, to prove that the ordinance is arbitrary or unreasonable in that it bears no substantial relationship to the health, safety, morals or general welfare of the community. City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43; City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477; Connor v. City of University Park, Tex.Civ.App., 142 S.W.2d 706, writ refused. Adoption of a zoning ordinance by the governing body of a city represents the exercise of a delegated legislative discretion, and enforcement or nonenforcement of the ordinance is not a matter of judicial discretion. City of Snyder v. Cogdell, Tex.Civ.App., 342 S.W.2d 201, no writ history, cited by Respondents, does not hold to the contrary. In that case the City was not seeking to enforce a zoning ordinance. Moreover, denial was of a temporary and not of a permanent injunction. If the evidence is conclusive that a zoning ordinance is arbitrary and unreasonable, generally or as to particular property, it is the duty of the courts to refuse to enforce it; but in the absence of such proof, it is the duty of the courts to enforce it.

The City of Fort Worth made its case for a permanent injunction when it proved that its Comprehensive Zoning Ordinance No. 3011 was duly adopted; that Lot 3, Block 5, Hawkins Scenic Hill Addition to the City is in an area zoned as a 'B' Two-Family District; that the structure in question contained six separate family living units, and that each unit was being used to house a separate family group. Testimony that the physical appearance of the structure was attractive and that off-street parking was provided for the tenants did not establish conclusively that the ordinance was arbitrary and unreasonable if applied to the property.

We consider next the second ground, noted above, for the Court of Civil Appeals' judgment of affirmance. Aside from the fact that there is absolutely no evidence in the record that Mrs. Hurt did not know that the structure was completed in violation of the building permit, absence of such knowledge does not constitute a defense to the suit. Were it otherwise, integrity of all zoning could be destroyed by erecting buildings in violation of permits and...