City of McAllen v. Morris, 11890.
| Citation | 217 S.W.2d 875 |
| Decision Date | 01 December 1948 |
| Docket Number | No. 11890.,11890. |
| Parties | CITY OF McALLEN et al. v. MORRIS et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, 92nd District, Hidalgo County; Bryce Ferguson, Judge.
Suit by Henry C. Morris, Jr., and R. F. Clements against the City of McAllen Texas, and others to enjoin the construction or operation of a fire station on certain land. From a decree in favor of the plaintiffs, defendants appeal.
Decree reversed, injunction vacated, and judgment rendered that plaintiffs take nothing.
Greer, Cox & Patterson, of McAllen, for appellants.
Cox, Dyer & Taylor, of McAllen, for appellees.
This is an appeal from an order permanently enjoining the City of McAllen, its commissioners, city manager and a contractor employed by the City, from constructing or operating a fire station on Lot One and the north forty feet of Lot Two in Block One of the North McAllen Subdivision, said tract of land being owned by the City of McAllen and located on the corner of Hackberry and Tenth Streets in the northern part of said City.
This injunction was obtained by Henry C. Morris, Jr., and R. F. Clements, who own property in the immediate vicinity of the proposed fire station. The basis of the injunction is the allegation that the construction of the fire station would violate the zoning ordinance of the City of McAllen.
Trial was to the court without a jury and the facts are for the most part undisputed. Our analysis of the case differs substantially from that adopted by the trial court, but, as we see it, the controlling question is whether or not the governing body of the City of McAllen in the exercise of its legislative authority may legally provide that the provisions of a zoning ordinance shall not prevent the location of a municipal fire station within the restricted areas designated in said zoning ordinance.
The following appears from the trial court's findings of fact, or is otherwise conclusively shown by the record:
The City of McAllen is a Home Rule City, Article XI, § 5, Texas Constitution, Vernon's Ann.St., Articles 1165-1182f, Vernon's Ann.Civ.Stats., and in 1945 the City Commission of said City adopted a comprehensive zoning ordinance in accordance with the Zoning Enabling Act. Acts 1927, 40th Leg. p. 424, Ch. 283, Articles 1011a to 1011j, incl., Vernon's Ann.Civ.Stats. The ordinance divided the city into a number of zones, with various restrictions applying thereto. The most highly restricted zone was designated as "Residence A", wherein one family residential units only were permitted. The proposed location of the city fire station at the corner of Tenth and Hackberry lies within a "Residence A" zone or district.
Provision is made for a board of adjustment in accordance with the terms of Article 1011g and during the latter part of the year 1947 the City petitioned said board for the allowance of an exception permitting the City to construct and operate said fire station at said location despite the restrictions applying to said "Residence A" district or zone.
One of the five members of the board was disqualified as he had signed a protest against the proposed location of the fire station and one member voted against the granting of the exception. Although the remaining three members of the board of adjustment voted in favor of the City's petition, the exception was not allowed because of the statutory requirement that the concurring vote of four members of the board shall be necessary to effect a variation from the terms of the zoning ordinance. This proceeding before the board of adjustment was taken on December 17, 1947, and no appeal was taken from the board's failure to grant the exception requested by the City.
The City Commission, as the legislative authority of the City of McAllen, after having taken all necessary...
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