City of Hutchins v. Prasifka

• Decision Date: 18 February 1970
• Docket Number: No. B--1702,B--1702
• Citation: 450 S.W.2d 829
• Parties: CITY OF HUTCHINS, Texas, Petitioner, v. Frank J. PRASIFKA et al., Respondents.
• Court: Texas Supreme Court

Page 829

450 S.W.2d 829

CITY OF HUTCHINS, Texas, Petitioner, v. Frank J. PRASIFKA et al., Respondents.

No. B--1702.

Supreme Court of Texas.

Feb. 18, 1970.

Saner, Jack, Sallinger & Nichols, B. Robert Baker, Dallas, for petitioner.

McKenzie & Baer, Joe E. Vaughan and Allen Joe Fish, Dallas, for respondents.

GREENHILL, Justice.

The plaintiffs, Frank, Louis and Jerry Prasifka, instituted this action to enjoin the City of Hutchins from interfering with their use of 44 acres of hand within the city. The city filed a cross-action to enjoin the Prasifkas from using their property in violation of a zoning ordinance.

Trial was to the court without a jury which resulted in a judgment that all parties take nothing. Findings of fact and conclusions of law were filed. Both the city and the Prasifkas appealed. ¹ The Court of Civil Appeals reversed the trial court's judgment and, in effect, rendered judgment for the Prasifkas. 422 S.W.2d 879. That court rested its judgment upon what it considered to be the validation by the legislature of a resolution of the city council.

There are three main problems here:

(1) The city council zoned the city by Ordinance. Later it purported to amend the ordinance by a Resolution. Question: may a city zoning ordinance be amended by a resolution?

(2) After the adoption of the Resolution, the legislature enacted a general validating act which will later be discussed herein. Question: what is the effect of the validating act?

(3) Is the city, in any event, estopped to enjoin the Prasifkas from using the property for 'heavy manufacturing' purposes?

Out holdings are (1) that the zoning classification of an area of a city, having been enacted by ordinance, could not be changed by resolution; (2) that the general validating act did not change the resolution into an ordinance or give the resolution the force in law of an ordinance; and (3) that the city is not estopped.

The findings of fact of the trial court are set out in full in the opinion of the Court of Civil Appeals. A few additional facts will be set out under the estoppel point to be discussed later herein. As pertinent to this first point, the findings of fact are:

In 1958, the city adopted a comprehensive zoning ordinance which classified the area in question as 'residential.' In 1965, the city council enacted another comprehensive zoning ordinance; and in it, the land in question retained its classification as 'residential.' The 1965 ordinance also provided that 'the governing body may from time to time enact, supplement, or change by Ordinance the boundaries of the districts or the regulations herein established.'

On November 7, 1966, the city council, upon the recommendation of the city planning commission, passed a resolution to reclassify the plaintiffs' (Prasifkas') tract from residential to manufacturing. The reclassification of the Prasifka tract to manufacturing was erroneously made on the map maintained in the city hall. No ordinance was enacted changing the classification from residential to manufacturing. The Prasifkas purchased the tract in question on or about September 18, 1967, after being advised by the city secretary that the zoning classification (manufacturing) shown on the map was correct so far as she knew. The Prasifkas relied solely on the map which designated the tract as manufacturing. On or about September 18, 1967, the mayor, who was on unfriendly terms with the Prasifkas, advised the city council and the plaintiffs that he did not consider the map then on display as accurate with respect to the Prasifka tract and that such tract was still classified as residential. After September 18, 1967, the Prasifkas made application to the council to change the classification of the tract to manufacturing, but no further action was taken. The comprehensive ordinance contains a penalty for its violation.

We turn to the first question: may the comprehensive zoning ordinance be changed by a resolution? We read the cases to answer the question in the negative. The early case of City of San Antonio v. Micklejohn, 89 Tex. 79, 33 S.W. 735 (1895), holds that a public office (superintendent of public works) established by ordinance could not be abolished by resolution. The Court pointed out some of the distinctions between the functions of ordinances and resolutions. Its conclusion was that:

'* * * It takes a law to repeal a law. The act which destroys should be of equal dignity with that which establishes. A resolution proper is not a law. (citation omitted) A legislative body may in that form (by resolution) express an opinion, may govern its own procedure within the limitations imposed upon it by its constitution or character, and, in case it have ministerial functions, may direct their performance; but it cannot adopt that mode of procedure in making laws where the power which created it has commanded that it shall legislate in a different form. * * *

'* * * There is therefore an essential difference between an Ordinance of the city of San Antonio and a Resolution of its council.'

An important reason in zoning matters for dealing with changes by Ordinance, especially where, as here, the governing law requires it, is that zoning affects the community, or at least large segments of it, as well as the particular individual. There is good reason for procedural requirements of notice and hearing which are generally required for the adoption of ordinances; and such notice and hearing are generally not required for the adoption of mere resolutions or motions.

One of the most recent holdings on this point is Red Bird Village v. State ex rel. City of Duncanville, 385 S.W.2d 548 (Tex.Civ.App.1964, writ refused), which holds an ordinance may be repealed only by another ordinance and not by resolution or motion. See also City of Panhandle v. Bickle, 31 S.W.2d 843 (Tex.Civ.App.1930, writ dismissed); Harvey v. City of Seymour, 14 S.W.2d 901 (Tex.Civ.App.1929, no writ, by the late Chief Justice Hickman); and Clesi v. Northwest Dallas Improvement Association, 263 S.W.2d 820 (Tex.Civ.App.1953, writ refused, n.r.e.).

These Texas cases appear to be in accord with the rule elsewhere. The rule is stated in 8A McQuillin on Municipal Corporations 164 (3rd Ed. 1965):

'Generally, rezoning of use districts or changes of uses and restrictions within a district can be accomplished only through an amendment of the zoning ordinance, and the amendment must be made in the same mode as its original enactment. * * * Generally, the amendment can be effected only by an ordinance enacted by the municipal legislative body, and not by a mere resolution or order.'

The rule is also stated in the same edition of McQuillin in volume 6, section 21.13.

Our holding is, therefore, that the Resolution purporting to change the zoning classification of the property in question was not effective, that the comprehensive zoning Ordinance could not be changed or amended by Resolution, and that the property in question was still residential under the comprehensive zoning ordinance.

The Validating Act

The opinion of the Court of Civil Appeals dwells on the Power of the legislature to validate the governmental action of cities. The extent of such power is not before us; and it is not necessary to be drawn into a discussion of opinions of other Court of Civil Appeals cited below as to whether the legislature Could validate certain municipal acts or not.

The problem before us, and our holding thereon, is a fairly narrow one: what did the legislature validate?

The statute, codified as Article 974d--12, says in part that the incorporation proceedings of all cities incorporated under the general laws are validated; the boundary lines are validated; and 'all governmental proceedings performed by the governing bodies of all such cities and towns and all officers thereof since their incorporation or attempted incorporation are hereby in all respects validated as of the date of such proceedings.'

We agree with the conclusion of law of the trial court that if there had been any irregularity in the adoption of the 1965 comprehensive zoning ordinance, it was the intention of the legislature that it be cured; and such ordinance was validated.

Similarly, if there had been irregularities in the adoption of the November 7, 1966, resolution, they would be cured, and the resolution was validated. But we see no intention on the part of the legislature to change a resolution (or motion) into an ordinance, or to give every motion or resolution the force and effect of a law as would be the case in the enactment of an ordinance. The resolution was validated as a resolution.

If the law were as contended by the logic of counsel for the Prasifkas, penal laws could be enacted by simple motion or resolution; and if such motions or resolutions were all validated by Article 974d--12, people could be penalized for the violation of motions or resolutions (laws) of which they never heard. There need have been no notice, even to councilmen, no hearing, and no publication of the motion or resolution. Or the city council, on oral motion or resolution quickly passed by voice vote, could enact a provision amending the city's charter; and if the general validating act had the effect of making the resolution into law, the charter would be so amended. We cannot ascribe to the legislature any such intention. Accordingly we hold that the resolution of November 7, 1966, purporting to change the zoning classification from residential to heavy manufacturing was not 'validaged' into an ordinance. Such resolution could not amend the comprehensive zoning ordinance of 1965; and the land was still legally zoned 'residential.'

Estoppel

Under the above holdings, we would reverse the judgment of the Court of Civil Appeals. Under such circumstances, we must examine the brief of the Prasifkas, the prevailing party in the Court of Civil Appeals, to determine whether there is another ground upon which the...