City of Waxahachie v. Watkins

• Decision Date: 18 February 1954
• Docket Number: No. 3134,3134
• Parties: CITY OF WAXAHACHIE v. WATKINS et al.
• Court: Texas Court of Appeals

Page 843

265 S.W.2d 843

CITY OF WAXAHACHIE v. WATKINS et al.

No. 3134.

Court of Civil Appeals of Texas, Waco.

Feb. 18, 1954.

Rehearing Denied March 18, 1954.

Warwick H. Jenkins, Waxahachie, for appellant.

Stuart B. Lumpkins, Waxahachie, for appellee.

HALF, Justice.

This is a zoning case. Appellant, the City of Waxahachie, acting in response to the application of Eldon Berry, adopted two amendatory ordinances, one on February 5th and one on February 28th of 1952, each purporting to amend the basic zoning ordinance adopted by the governing body of the city on April 6, 1937, the effect of each amendment being to change a vacant lot belonging to Berry from a 'dwelling' to a 'local retail' zone. Appellee, Milton Watkins, owns and occupies as his homestead the house and lot which adjoins the vacant lot belonging to Berry. On March 27, 1952, appellees brought this suit against appellant and Berry to cancel and annul both of the amendatory ordinances and to enjoin Berry from acting under the same. The case was tried without a jury and resulted in judgment for appellees decreeing both of the amendatory ordinances under attack to be null and void and enjoining Berry from making use of his lot for any purpose other than 'dwelling' as specified in the basic zoning ordinance originally adopted by appellant.

Upon proper request, the trial court made and filed extensive findings of fact and conclusions of law which cover 32 pages in the Transcript. Among other things, the court found and concluded in substance (1) that the amendatory ordinance or February 5th was void because it was not read at the council meeting at which it was passed, the description of the property to which it related was too indefinite and it was never published as required by the charter of the city; (2) that the ordinance of February 28th was void because it had not been published as required by the charter of the city within a reasonable time after its passage and notice and hearing was not had before the Zoning Commission in regard to the same as required by Art. 1011f of Vernon's Tex.Civ.Stats.; and (3) that both of the amendatory ordinances were void because the passage of each constituted an arbitrary and unreasonable abuse of discretion on the part of the governing body of appellant, each amounted to unjustifiable spot zoning and neither was substantially related to the promotion of the health, safety, morals, or general welfare of the community involved. For the sake of brevity, we shall hereafter refer to the foregoing as the trial court's findings and conclusion Nos. 1, 2 and 3, respectively.

Eldon Berry did not appeal from the judgment rendered against him. Although appellant makes no complaint of the trial court's findings and conclusions No. 1, as above referred to, it asserts that findings and conclusions Nos. 2 and 3 are each erroneous on numerous grounds. Points one to eight, inclusive, in its brief are grouped and presented together, the substance of the contentions urged under these points being that the court's findings and conclusions No. 3, as refered to above, are erroneous because the findings therein are without support in the evidence and the holdings of the court are contrary to the applicable law.

Appellant is a home rule city. On April 6, 1937, its city council duly passed and approved a comprehensive zoning ordinance pursuant to the provisions of Arts. 1011a to 1011j of Vernon's Tex.Civ.Stats. By the terms of this basic ordinance the territorial area within the corporate limits of the city was divided into four types of use districts, viz.: (1) dwelling, (2) local retail, (3) commercial, and (4) manufacturing. The property belonging to appellees herein and the property belonging to Eldon Berry which is the subject of the two amendatory ordinances here under attack was classified and zoned in the original zoning ordinance for dwelling use as therein defined. The property belonging to Milton Watkins fronts south on Sycamore Street which extends in an east-west direction and intersects Ferris Ave. at a point approximately 287 feet east of the southeast corner of the Watkins property. The property of Eldon Berry is immediately east of the property of Milton Watkins, being described in the amending ordinance of February 28th as beginning at a point 138 feet west from the intersection of the west line of Ferris along the north line of Sycamore, thence west along the north line of Sycamore 149.6 feet, thence north 200 feet, thence east 54 feet, thence in a southeasterly direction to the point of beginning.

On May 23, 1950, appellant's city council duly passed and adopted a comprehensive amendment to the basic zoning ordinance of April 6, 1937, which changed a large area within the territorial limits of the city from dwelling to local retail use. The evidence shows that numerous changes had been transpiring within the city during that interval of time in the prevailing conditions of business, traffic and population which fully justified the adoption of the amending ordinance. The classification of various parcels of property abutting on both sides of Ferris Ave. in the vicinity of its intersection with Sycamore Street, and other properties in other sections of the city, had been changed from time to time by spot zoning from dwelling to local retail use. However, none of the property belonging to any...