City of University Park v. Benners

• Decision Date: 04 October 1972
• Docket Number: No. B--3321,B--3321
• Parties: The CITY OF UNIVERSITY PARK, Texas, et al., Petitioners, v. Ruth Hagaman BENNERS, Executrix, Respondent.
• Court: Texas Supreme Court

Page 773

485 S.W.2d 773

The CITY OF UNIVERSITY PARK, Texas, et al., Petitioners, v. Ruth Hagaman BENNERS, Executrix, Respondent.

No. B--3321.

Supreme Court of Texas.

Oct. 4, 1972.

Rehearing Denied Nov. 8, 1972.

Dick P. Wood and Dick P. Wood, Jr., Dallas, for petitioners.

Fred H. Benners, Dallas, for respondent.

STEAKLEY, Justice.

This case concerns a comprehensive zoning ordinance of the City of University Park of Dallas County enacted under authority of Art. 1011a, ¹ et seq, which would terminate the nonconforming commercial use of two lots. ² The property is part of the estate of Mrs. Cecil L. Simpson and was purchased by her husband in 1926. Mrs. Ruth Hagaman Benners is the Executrix of the estate of Mrs. Simpson and in such capacity was plaintiff below and is respondent here. The trial court granted the motion of the City for summary judgment but this was reversed by the court of civil appeals. The intermediate court ruled the ordinance invalid as it applied to the lots and permanently enjoined the City from enforcing its provisions. 477 S.W.2d 326. We reverse the judgment of the intermediate court and affirm that of the trial court.

The commercial use of the lots in question commenced in 1925 prior to enactment in 1926 of the statutes authorizing cities to exercise zoning powers. In 1929, the City of University Park adopted a zoning ordinance under which the lots were zoned for commercial use. This classification was carried forward in subsequent amendments until September 18, 1940, when the City adopted a successor comprehensive zoning ordinance which, among other things, changed the classification of the lots, together with certain other like property in the area, from business to 'C' two-family dwelling district. The ordinance included this provision:

'All buildings located in the 'A' Single-Family Dwelling District, 'B' Single-Family District, 'C' Two-Family Dwelling District, or 'D' Apartment District, that are used as a nonconforming use for commercial or industrial purposes at the time of the passage of this ordinance shall be removed or converted and their premises thereafter devoted to uses permitted in the district in which they are located prior to the first day of January, 1965.'

On October 20, 1952, the City adopted its current zoning ordinance and the property in question remained in a 'C' two-family dwelling district. This ordinance also carried forward the provision for termination of nonconforming uses prior to January 1, 1965.

On January 6, 1965, respondent was directed to discontinue the nonconforming commercial use of the property, whereupon she appealed to the Board of Adjustment to overrule the order or, in the alternative, to grant a variance under which the business use of the two lots would be continued. After hearing all relief sought was denied by the Board. Respondent then filed this suit in the nature of a petition for certiorari in the district court seeking a review of the action of the Board of Adjustment and a declaration that the ordinance in question was invalid. Respondent states that the Board of Adjustment is only an incidental party and the question presented is the validity Vel non of the zoning changes as to the two lots in question. The appeal from the denial of a variance has in effect been abandoned.

Both parties filed motions for summary judgment. The trial court sustained the City's motion for summary judgment and we copy in the margin the portions of the record which the court found 'to constitute competent Summary Judgment evidence for purposes of these proceedings in accordance with the practice and procedures authorized by the Court herein.' ³

As stated, the judgment of the trial court was reversed by the court of civil appeals and judgment there rendered for the respondent; the court thereby, in effect, sustained respondent's motion for summary judgment. See Baccus v. City of Dallas, 454 S.W.2d 391 (Tex.1970), where we wrote that '. . . the burden is on a contestant to show that no conclusive or even controversial facts or conditions exist which offer support for action of a city's governing body in amending a zoning ordinance . . .. A contestant has the same burden when he seeks a summary judgment invalidating an ordinance.'

The City as petitioner her argues its power to require discontinuance of the nonconforming use in question after allowing the property owners a reasonable period of time for what is termed 'amortization' of their investment. The City also says that respondent did not show an abuse of administrative discretion but that, to the contrary, the summary judgment proofs established that conditions either affirmatively support passage of the ordinance or make that action issuable.

Respondent's essential position is two-fold. She first says, in essence, that she and her predecessors in ownership held a vested right to use the lots for commercial purposes which could not be constitutionally abridged by a subsequently enacted zoning ordinance, regardless of the reasonableness of the exercise of the police power and of the period allowed for recoupment of the investment in the commercial improvements. She says there is a taking of property without compensation, contrary to Art. I, Sec. 17 of the Texas Constitution, Vernon's Ann.St., when she is required to terminate a pre-existing use rendered nonconforming by zoning regulations. She further says that the current ordinance, and its 1940 predecessor, were unreasonable and not required in the public interest because there were no changes in conditions that justified reclassification of the lots from business to residential. She argues particularly that her property and that of the entire neighborhood was developed in accordance with the initial 1929 zoning ordinance and was fully developed prior to the September 1940 comprehensive zoning ordinance which changed the classification. She concludes her brief in this Court with the summary copied in the margin. ⁴

A nonconforming use of land or buildings is a use that existed legally when the zoning restriction became effective and has continued to exist. Swain v. Board of Adjustment of the City of University Park, 433 S.W.2d 727 (Tex.Civ.App.1968, writ ref'd n.r.e.).

The power of a municipality to require the termination of existing uses of property rendered nonconforming under zoning regulations has been exhaustively examined. See 8A E. McQuillin, Municipal Corporations § 25.190 (3d ed. 1965); note, 44 T.L.R. 368 (1965); 2 E. Yokley, Zoning Law and Practice § 16--14 (3d ed. 1965); Katarincic, Elimination of Non-conforming Uses . . .--Concept Versus Law, 2 Duquesne U.L.Rev. 1 (1963); Comment, Non-Conforming Uses Under Zoning Ordinances, 7 Baylor L.Rev. 73 (1955); Comment, The Abatement of Pre-existing Nonconforming Uses under Zoning Laws: Amortization, 57 Northwestern U.L.Rev. 323 (1962); Anno. Validity of Provisions for Amortization of Nonconforming Uses, 22 A.L.R.3rd 1134. There is division among outside jurisdictions but the prevailing view recognizes the reasonable use of what is termed the 'amortization' technique as a valid exercise of the police power. See Standard Oil Co. v. City of Tallahassee, 183 F.2d 410 (5th Cir. 1950) cert. den. 340 U.S. 892, 71 S.Ct. 208, 95 L.Ed. 647; National Advertising Company v. County of Monterey, 1 Cal.3d 875, 83 Cal.Rptr. 577, 464 P.2d 33 (1970); Board of Supervisors of Cerro Gordo County v. Miller, 170 N.W.2d 358 (Iowa--1969); Spurgeon v. Board of Commissioners of Shawnee County, 181 Kan. 1008, 317 P.2d 798 (1957); Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363 (1957); Naegele Outdoor Advertising Company of Minnesota v. Village of Minnetonka, 281 Minn. 492, 162 N.W.2d 206 (1968); Wolf v. City of Omaha, 177 Neb. 545, 129 N.W.2d 501 (1964); Lachapelle v. Town of Goffstown, 107 N.H. 485, 225 A.2d 624 (1967); Harbison v. City of Buffalo, 4 N.Y.2d 553, 176 N.Y.S.2d 598, 152 N.E.2d 42 (1958); City of Seattle v. Martin, 54 Wash.2d 541, 342 P.2d 602 (1959); Village of Gurnee v. Miller, 69 Ill.App.2d 248, 215 N.E.2d 829 (1966). ⁵

The usual approach rests on the principle that there is not a legally significant difference between existing and prospective uses in land; and that the required termination of a pre-existing land use, with allowance for recoupment, is no different in kind from restrictions upon future land use alternatives. So it is concluded that termination does not constitute a 'taking' in the eminent domain sense but an exercise of the police power in the public interest; and that such an enactment is subject to the same tests of validity as other legislative acts, i.e., whether it is reasonable and bears a fair relationship to the object sought to be obtained. See Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475 (1934); and Chicago, B. & Q.R. Co. v. Illinois ex rel. Grimwood, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596 (1906).

This Court has considered constitutional attacks upon ordinances requiring cessation of nonconforming uses of property. City of Corpus Christi v. Allen, 152 Tex. 137, 254 S.W.2d 759 (1953); Swain v. Board of Adjustment of the City of University Park, 433 S.W.2d 727 (Tex.Civ.App.1968, writ ref'd n.r.e.); City of Dallas v. Fifley, 359 S.W.2d 177 (Tex.Civ.App.1962, writ ref'd n.r.e.).

Allen presented an ordinance adopted by the City of Corpus Christi in 1948 which required the cessation of certain nonconforming uses on January 1, 1950. The property in question had been used as an automobile wrecking yard prior to the adoption of the ordinance. It was in an area zoned as a 'light industrial district' which was a nonconformity because such business under the ordinance could be operated only in a 'heavy industrial district.' There was no intrusion of a business in a residential area. This Court held the ordinance unconstitutional as applied to the facts there. It was emphasized that the nonconforming use did not appear harmful in any...