City of Lubbock v. Whitacre

• Decision Date: 03 April 1967
• Docket Number: No. 7676,7676
• Citation: 414 S.W.2d 497
• Parties: CITY OF LUBBOCK et al., Appellants, v. E. M. WHITACRE et al., Appellees. . Amarillo
• Court: Texas Court of Appeals

Page 497

414 S.W.2d 497

CITY OF LUBBOCK et al., Appellants, v. E. M. WHITACRE et al., Appellees.

No. 7676.

Court of Civil Appeals of Texas.

Amarillo.

April 3, 1967.

Rehearing Denied May 8, 1967.

Fred O. Senter, Jr., City Atty., Sam C. Rodehaver, Asst. City Atty., Evans, Pharr, Trout & Jones, E. G. Pharr and Carlton B. Dodson, Lubbock, for appellants.

Anderson, Edwards & Warnick, Hugh Anderson, Lubbock, for appellees.

CHAPMAN, Justice.

This opinion is in lieu of our opinion announced on February 6, 1967.

This is an appeal from a judgment of the trial court holding the City of Lubbock's Ordinances Nos. 4870 and 4870--a, amending the basic zoning Ordinance No. 1695 of the city to be unconstitutional, invalid under Subsection 14--A.1--9 of Section 14--A.1 of such basic zoning ordinance, and invalid for various other reasons. In 1941 the City of Lubbock approved a comprehensive zoning ordinance under the authority of Articles 1011a to 1011j of Vernon's Ann.Texas Revised Civil Statutes. In 1959 that original ordinance was repealed and in lieu thereof Ordinance No. 1695, the present basic zoning ordinance of the city was adopted.

In October 1965 in Zone Case No. 1369 a request was filed by Ray Chapman, Lubbock realtor, on behalf of University Dormitory Development, Inc., Bernard B. Heilprin, and Harold E. Strauss, hereinafter called intervenors, with the Planning and Zoning Commission of such city for a zone change of certain properties situated on the southwest corner of the intersection of 19th Street and College Avenue, extending south one block to the northwest corner of College Avenue and 20th Street, on which they held options to purchase. The proposed improvements consisted of a twelve-story apartment building, which the record indicates was to be utilized principally for housing Texas Tech male students, the campus of such institution being located just across 19th Street, northwest from the intersection.

The city Planning and Zoning Commission recommended to the city council that the request for the zone change be denied. Appeal was made to the city council, and after due notice the matter was heard by the council, resulting in unanimous passage of Ordinance No. 4870 authorizing the issuance of a Specific Use Permit for the private apartment project. Intervenors, having acquired additional options on Lots 16, 17, 18, 19 and the west half of Lot 20 adjoining the zone change area, filed on November 11, 1965, an application which is designated zone case 1369--A amending the 1369 application. Amendatory Ordinance 4870--A was later passed for the stated purpose of clarifying and correcting Ordinance No. 4870 '* * * to more accurately reflect the legislative intent and action of the city council.' It is these ordinances which were under attack in the trial court.

The five fifty-foot lots situated on the southwest corner of 19th Street and College Avenue in the zone change area belong to Texas Technological College Foundation and at the time were zoned to permit banks, retail bakeries, bowling alleys, cleaning and pressing establishments, self-service laundries, office buildings, moving picture theaters, and pool halls. The other lots in the zone change area upon which the above named corporation acquired additional options were at the time zoned R--1, limiting their use to single family residences. Ordinance 4935 under zone case No. 1380, amending Ordinance No. 1695, was also passed by the city council about the same time as the two named ordinances attacked in the trial court. This ordinance changed lots in the adjacent area of Elwood Place Addition to an R--3 zoning district.

Prior thereto Basic Ordinance 1695 had been amended by Ordinance No. 4665, adding thereto Section 8--B to provide regulations intended to encourage higher density, multi-family developments at locations in or near the central part of the city or in the immediate vicinity of population concentrations and activities such as Texas Technological College.

A jury was impaneled to pass upon the controversial facts but during the trial all parties agreed the jury might be dismissed and all issues of fact determined by the court. Judgment was rendered in which the City of Lubbock and Robert Burr were permanently and perpetually restrained and enjoined from issuing a Specific Use Permit for construction of a private apartment project provided for in Ordinances Nos. 4870 and 4870--A and said city and Kimsey Miller were permanently and perpetually restrained and enjoined from issuing a building permit for the construction of any structure of the character of a private apartment project as provided for in the last two named ordinances.

Section 14--A.1 of the City of Lubbock's basic zoning ordinance No. 1695 is titled 'Specific Use Permits.' It provides that the city council, after public hearing and proper notice to all parties affected, after recommendation from the Planning and Zoning Commission, and numerous other provisions may authorize the '* * * location of any of the following uses in the specified districts.' Among those is 14--A.1--9 reading: 'Private apartment projects on a minimum site of two and one-half acres or on one block of street frontage, whichever is smaller in a district.' Construction of Section 14--A.1--9 presents one of the legal problems to be later discussed.

The case is before us upon fifty-seven points of alleged error. Appellants, under their first Statement of Facts, Argument and Authorities group thirty-eight of their various points. Under Points 1 and 2; 6 through 9, 12, 17, 18, 22, 28, 30, 33--36 and 44 they challenge the holding of the trial court to the effect that the zoning was an arbitrary and unreasonable abuse of the city's discretion; a violation of the police powers was detrimental to the private interest of the parties surrounding the areas, and that the zoning bore no substantial relationship to the general health, safety, morals or general welfare of the community.

The trial court made thirty-two pages of original findings of fact and conclusions of law and an amendment thereto, additional findings, and also refused certain requests for additional findings.

The use of the type permit here under consideration; i.e., a Specific Use Permit, to amend a comprehensive zoning ordinance has been recognized and approved by the courts of Texas. Stearman v. City of Farmers Branch, 355 S.W.2d 541, (Tex.Civ.App.--Dallas, 1962, writ ref'd n.r.e.); Clesi v. Northwest Dallas Imp. Ass'n, 263 S.W.2d 820 (Tex.Civ.App.-Dallas, 1953, writ ref'd n.r.e.).

Even with the rapid growth of some of the cities of Texas and the resulting escalation of zoning controversies, the controlling questions are rarely, if ever, the same in any two cases. However, the courts of Texas have established some basic legal principles we believe applicable here that appear to have been consistently adhered to by the appellate courts. Among these principles are the following:

1. Courts should not interfere with such actions of the city council unless it appears that the ordinance represents a clear abuse of discretion, and an extra-ordinary burden rests on the one attacking the ordinance. "* * * to show that no Conclusive, or even Controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to exercise the discretion confided to it.' City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955).

2. 'The presumption of validity accorded original comprehensive zoning applies as well to an amendatory ordinance.' City of Waxahachie v. Watkins, supra. See also Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704 (1950) and Clesi v. Northwest Dallas Imp. Ass'n, supra.

3. 'In either case the courts have no authority to interfere unless the change is clearly unreasonable and arbitrary.' City of Waxahachie v. Watkins, supra.

4. "If the question is fairly debatable as to whether the zoning ordinance is arbitrary and unreasonable and has no substantial relation to public health, safety, morals, or general welfare, the court will not interfere." City of Corpus Christi v. Jones, 144 S.W.2d 388, 398 (Tex.Civ.App.--San Antonio, 1940, writ dism'd, jdgmt corr.).

5. 'Since it is an exercise of the legislative power of the city's council, the ordinance must be presumed to be valid.' City of Waxahachie v. Watkins, supra.

6. Whether appellees met their burden to show there were no controversial or issuable facts which would authorize a city council to exercise its discretion in the manner here complained of presents a question of law, not of fact, and in deciding it the court should have due regard '* * * to all circumstances of the city, the object sought to be attained and the necessity for the ordinance.' City of Waxahachie v. Watkins, supra.

7. '* * * if there is an issuable fact as to whether the ordinance makes for the good of the community, The fact that it may be detrimental to some private interests is not material.' City of Waxahachie v. Watkins, supra, citing Edge v. City of Bellaire, 200 S.W.2d 224, 227 (Tex.Civ.App.--Galveston, 1947, writ ref'd n.r.e.). (Emphasis added.)

It is common knowledge in this 7th Supreme Judicial District that Lubbock has rapidly increased its population in recent years, of which we may take judicial knowledge. The evidence shows Texas Tech had doubled in its number of students in the last ten years before trial and Mr. Pennington, Vice-President of Business Affairs at the school, testified there is at present insufficient housing for students; that the Board of Directors had established a policy of inviting private capital to erect off-campus housing; that the institution does not believe it can construct sufficient housing for its students; that if the school continues its present growth there will be 25,000 students by 1968, 35,000 by 1975 and 36,700 by 1978. The last estimate was projected by the Coordinating Board of the Texas College and University...