City of San Angelo v. Boehme Bakery

• Decision Date: 17 October 1945
• Docket Number: No. A-520.,A-520.
• Parties: CITY OF SAN ANGELO v. BOEHME BAKERY et al.
• Court: Texas Supreme Court

190 S.W.2d 67

CITY OF SAN ANGELO v. BOEHME BAKERY et al.

No. A-520.

Supreme Court of Texas.

October 17, 1945.

Rehearing Denied November 21, 1945.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Certiorari by Mary L. Boehme and others, operating under the trade-name of Boehme Bakery, to review a decision of the Board of Adjustment of the City of San Angelo denying to them, under a residential zoning ordinance, a permit to extend a nonconforming use. A judgment adverse to plaintiffs was reversed and cause remanded by Court of Civil Appeals, 185 S.W.2d 601, and the City of San Angelo brings error.

Judgment of Court of Civil Appeals reversed and that of District Court affirmed.

Olin Blanks, of San Angelo, for petitioner.

Kerr & Gayer and Louis D. Gayer, all of San Angelo, for respondents.

HICKMAN, Justice.

In 1940 the City of San Angelo enacted a comprehensive zoning ordinance under the provisions of an act of the 40th Legislature, ch. 283, being Articles 1011a to 1011j, inclusive, of Vernon's Statutes. For many years prior thereto a bakery known as Boehme Bakery, owned by Mrs. Mary L. Boehme and others, had been in operation in the city. When the boundaries of the zones were established this bakery fell within a residential zone and therefore became a nonconforming use. The owners of the bakery filed an application with the city engineer for a permit to construct a garage 45 feet by 62 feet adjoining the bakery to the rear and opening upon an alley, and also a boiler room and tool shed 40 feet by 20 feet adjoining the bakery on another side, both additions being on property owned by Mrs. Boehme. Their application was denied by the city engineer and on appeal to the board of adjustment the order was affirmed. Thereafter this suit was timely filed under the provisions of Article 1011g to review the decision of the board. In the trial court relief was denied, but on appeal the Court of Civil Appeals reversed the trial court's judgment and remanded the cause to that court with instructions that it grant "appropriate relief". 185 S.W.2d 601.

Mrs. Boehme and others filed this suit in the district court challenging the legality of the order of the board of adjustment on the ground, among others, that the board abused its discretion in denying their application. The members of the board answered, assigning their reasons for refusing the permit. The minutes of the board, made a part of the return, disclose that the permit was denied "based upon the objection by the property owners who will be affected by extension of her business". The return recited:

"That in addition to the grounds set forth in the minutes above mentioned the plaintiffs' application was denied for the following additional reasons:

"1. That plaintiffs by their application sought to extend their bakery into an `A', or dwelling, district contrary to the provisions of Section 3 of the above mentioned zoning ordinance and under the terms of said ordinance and the laws of the State of Texas the Board had no authority to grant their application.

"2. That the portion of the City of San Angelo where plaintiffs' bakery is located is predominantly residential and that any extension of plaintiffs' bakery which is a nonconforming use would adversely affect the value of such properties and render them less desirable for residential purposes.

"3. That the garage building and other addition which plaintiffs seek permission to erect are not essential to the maintenance of their business."

The trial court heard evidence and, at the request of respondents, filed findings of fact and conclusions of law. One such finding was as follows: "That upon a hearing in this Court the evidence was overwhelmingly in favor of the granting of the permit and if the Court had felt that the matter was discretionary with him he would have granted the permit except for the conclusions of law."

Upon the request of the city additional findings of fact were filed, among them being the following: "3. I find as a fact that the evidence in this case does not show that the defendant Board of Adjustment of the City of San Angelo acted arbitrarily, fraudulently or capriciously in denying plaintiffs' application for a permit to erect the proposed additions to their bakery."

The conclusions of law were: "I conclude that the City Zoning Adjustment Board had legal authority to grant the permit and application filed by the plaintiffs but conclude that this court has no authority to disturb the findings of that administrative body on the record as made in this case, and therefore I affirm the decision of the zoning adjustment board and deny plaintiffs any relief."

On these findings and conclusions the trial court affirmed the order of the board.

The Court of Civil Appeals concurred in the holding of the trial court that the board of adjustment was not lacking in authority to grant the permit, had the facts justified it, but, on a ground to be stated below, reversed the case and remanded it to the trial court with instructions.

We agree with the holding that the board of adjustment possessed the power to grant the permit. The opinion of the Court of Civil Appeals on this question meets with our approval and, since it has been published further discussion of the question would serve no purpose. But we are not in accord with the holding of that court on the question made the basis of its judgment of reversal. It likened the procedure to an appeal from an order of the Railroad Commission granting or refusing a permit to drill an oil well, and the conclusion was drawn that the finding by the trial court that the evidence was overwhelmingly in favor of the granting of the permit was tantamount to a finding that the board had abused its discretion in refusing the permit. We are not in accord with this reasoning.

This proceeding is not strictly analogous to a proceeding before the Railroad Commission. It is a certiorari proceeding governed by the provisions of the statute on zoning above cited. The legality of that statute is not questioned. It is therefore the function of the court to construe its...