City of El Paso v. Donohue

Citation163 Tex. 160,352 S.W.2d 713
Decision Date03 January 1962
Docket NumberNo. A-8378,A-8378
PartiesCITY OF EL PASO, Petitioner, v. Gene DONOHUE, Trustee, et al., Respondents.
CourtTexas Supreme Court

Travis White, City Atty., El Paso, Robert J. Galvan and John C. Ross, Jr., Assts. City Atty., El Paso, for petitioner.

Kemp, Smith, Brown, Goggin & White, Joseph J. Rey, El Paso, for respondents.

HAMILTON, Justice.

The respondents, Gene Donohue, Trustee, et al., applied to the City Planning Commission of El Paso to have Lots 13 to 32 in Block 30, Woodlawn Addition to the City of El Paso, rezoned from A-3, which is restricted to residences and apartments, to C-4, which provides for commercial construction. The City Planning Commission denied the rezoning application. Respondents appealed to the City Council of El Paso. The City Council denied the application. Respondents then brought suit in the District Court of El Paso County to have the ordinance declared invalid as to respondents' property. That court held that the action of the City in refusing the application was arbitrary and unreasonable, and entered judgment decreeing that the zoning ordinance in so far as it applies to respondents' property in Block 30, Woodlawn Addition to the City of El Paso, El Paso County, is unreasonable, arbitrary and void. From this judgment the City of El Paso prosecuted its appeal to the Court of Civil Appeals, which court affirmed the judgment of the trial court. Tex.Civ.App., 344 S.W.2d 185, 188. The City of El Paso perfected its appeal to this court.

The question before this court is whether under the record in this case there were any issuable facts or conditions which would authorize the City Council of El Paso to exercise its discretion in determining whether or not respondents' property should be rezoned from residential and apartments to business. The trial court and the Court of Civil Appeals have held that the City Council had no discretion in the matter, and held as a matter of law that the ordinance was invalid as to respondents' property. We do not agree with these holdings.

The respondents contend that the property in question under its present zoning, that is, for residences and apartments only, is unsuitable for such purposes, and that under such zoning restriction the property has little or no practical value, which amounts to a confiscation of the property. In support of these contentions the respondents rely on the testimony of a number of real estate and mortgage loan company men.

The real estate men testified in effect that the property is unsuitable for such purposes because of the following conditions and circumstances: Block 308 in which the property in question is located, adjoins Paisano Drive; Paisano Drive is a sixlane, divided thoroughfare which is designed to carry fast traffic, and the speed limit on said drive is forty-five miles per hour for approximately a mile east and a mile west of Block 30; a drainage ditch located some one hundred feet to the southwest of the property at times gives off unpleasant odors; the city sewage disposal plant, which gives off unpleasant odors, is some seven or eight blocks southeast; a baseball park and Washington Park, which has various recretional and amusement facilities, are located nearby; the Cordova Bridge across the Rio Grande into Mexico is some eight or nine blocks south. There are also some five or six nonconforming small businesses located within the area. Directly to the west of Block 30 and across a street is a gasoline filling station and truck stop which is zoned commercial. Some several blocks to the east on Paisano Drive is located the City Coliseum, where various forms of entertainment, including rodeos, from time to time are held.

In the opinion of the real estate witnesses the large volume of traffic which Paisano carried and the speed at which the traffic was allowed to move, the unpleasant odors from the city sewage disposal plant and the drainage ditch, as well as the large crowds gathering at the coliseum and the baseball park, made the area undesirable for residential purposes. They testified that the market value of 25-foot lots in Block 30 was from $500.00 to $750.00 under the present zoning, that if said property were commercially zoned it would be worth from $2500 to $5000 per lot. The mortgage and loan company people testified that the area was unsuitable for individual residences and apartments, and that they would not recommend that loans be made for building under the present zoning.

The city contends that the area is suitable for the purposes for which it is presently zoned and that the zoning of the property in Block 30 for commercial purposes would be detrimental to the residents of the area in question. The city further contends that the zoning of property on Paisano as commercial would cause traffic congestion and would defeat the purpose for which Paisano was built, that is, to facilitate the movement of traffic into the downtown section and out of the downtown section, as well as traffic through the city.

In addition to several witnesses who were residents living near Block 30 testifying that they objected to the rezoning of Block 30 because it would be detrimental to their homes, the city used one witness who had been a member of the City Planning Commission for ten years and was at the time of testifying its chairman. Another witness used was the Director of Planning of the City of El Paso. He had been executive secretary of Walla Walla, Washington, Planning Commission from 1947 to 1952, was a Director of Planning of Spokane County, Washington, from 1952 to 1957, was Planning Director of the Puget Sound Governmental Conference in 1957, and was consultant to a number of cities and to legislative committees of the State of Oregon. The City also used a city building official who had had several years' experience in engineering and design field supervision.

The Chairman of the Planning Commission testified that Paisano Drive was built about ten years previously at a cost of several million dollars for the purpose of relieving the traffic on Alameda Street, which carried U. S. Highway 80 traffic, and was designed to move the traffic rapidly through the city; that to zone property on Paisano as commercial would lead to congestion of traffic and defeat the purpose for which Paisano Drive was built at such a...

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8 cases
  • Mayhew v. Town of Sunnyvale
    • United States
    • Texas Supreme Court
    • 8 Mayo 1998
    ...the facts and circumstances which may affect the property, the community, and the welfare of its citizens. Cf. City of El Paso v. Donohue, 163 Tex. 160, 352 S.W.2d 713, 716 (1962). To satisfy the requirements of procedural due process, then, the Town must only provide notice and an opportun......
  • City of Pharr v. Tippitt
    • United States
    • Texas Supreme Court
    • 13 Mayo 1981
    ...attacking the municipal legislative action is a heavy one. Thompson v. City of Palestine, supra, at 581-82; City of El Paso v. Donohue, 163 Tex. 160, 352 S.W.2d 713 (1962); City of Dallas v. Lively, 161 S.W.2d 895 (Tex.Civ.App. Dallas 1942, writ ref'd). As expressed in Weaver v. Ham, 149 Te......
  • Frost v. Village of Hilshire Village, 14675
    • United States
    • Texas Court of Appeals
    • 19 Mayo 1966
    ...of those facts, and their finding was conclusive and may not be substituted by the finding of a jury.' * * *' In City of El Paso v. Donohue, 1962, 163 Tex. 160, 352 S.W.2d 713, the court 'To uphold the position of the respondents in this case we must hold that there were no controversial or......
  • McWhorter v. City of Winnsboro
    • United States
    • Texas Court of Appeals
    • 12 Junio 1975
    ...property. We do not believe either proposition to be sound when we consider the record as presented to us. City of El Paso v. Donohue, 163 Tex. 160, 352 S.W.2d 713 (1962). Many factors supporting the action of the City Council in approving this amendatory ordinance appear affirmatively in t......
  • Request a trial to view additional results

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