Clesi v. Northwest Dallas Imp. Ass'n, 14708

• Decision Date: 09 October 1953
• Docket Number: No. 14708,14708
• Citation: 263 S.W.2d 820
• Parties: CLESI et al. v. NORTHWEST DALLAS IMP. ASS'N et al.
• Court: Texas Court of Appeals

Page 820

263 S.W.2d 820

CLESI et al. v. NORTHWEST DALLAS IMP. ASS'N et al.

No. 14708.

Court of Civil Appeals of Texas, Dallas.

Oct. 9, 1953.

Rehearing Denied Dec. 11, 1953.

Saner, Jack, Sallinger & Nichols, H. P. Kucera, City Atty., and W. R. Allen, Asst. City Atty., and Jas. H. Martin, Dallas, for appellants.

Corenbleth, Thuss & Jaffe, Dallas, for appellees.

YOUNG, Justice.

This is a zoning case; appellees as petitioners in the trial court seeking injunctive relief against Brazil Clesi, Salvadore Clesi, the City of Dallas and its Building Inspector Farrell. Both plaintiffs and the Clesis own lots in Lovers Lane Heights Addition to the City of Dallas, which addition had been zoned since municipal annexation in 1941 for single family residential use (R-7.5). In January 1953 Dallas City Council by ordinance No. 5678 had rezoned the eleven Clesi lots together with twelve others facing on Inwood Road, west side, for Apartment-2 uses; validity of said ordinance being challenged in the instant suit. Upon hearing, the court found that plaintiffs were entitled to a temporary injunction as prayed, declaring the numbered ordinance to be 'wholly void'; and restraining Brazil and Salvadore Clesi from using their lots for any other than single family residential purposes until final hearing and determination of the cause, conditioned upon filing of a $7,500 bond payable to defendants. This order of restraint was duly excepted to and is here presented for review.

Lovers Lane Heights Addition embraces some 294 lots located in the north part of the Dallas municipality; the addition, so far as material here, facing on the west side of Inwood Road (a north and south street), and between Lovers Lane and University Boulevard, which streets run east and west. Portion of a zoning map in evidence sufficiently pictures the locality ¹:

By further reference to above map, it is seen that east-west streets between Lovers Lane and University Boulevard and intersecting Inwood are Newmore, Glenwick (or Locksley) and Emerson; that the green and brown areas at Inwood and Lovers Lane, and eastwardly facing the latter street, constitute Inwood Shopping Village, a business and apartment section; that going south, east side, facing Inwood to University Boulevard, are seen the following types of improvement: Across Newmore (or Boaz) is Longfellow School; across Glenwick, the block is one-half two-story duplex, the other of single residential construction, and similarly as to the lots between Emerson and University Boulevard. Beginning at the latter street and on Inwood, west side, are six residences; then going north are seen the eight lots of Brazil Clesi where he resides and maintains a nonconforming cold storage plant for use in his restaurant located elsewhere in the City of Dallas. Across Locksley (Glenwick) are the remaining 15 lots so rezoned; three owned by defendants, the others by persons who are neither parties to this suit nor appear as objecting to the ordinance in question. Across Newmore and facing Inwood to Lovers Lane are business structures beginning with an oil and gas station.

It is not disputed and in part stipulated that original restrictions relative to all lots in Lovers Lane Heights Addition limiting improvements thereon to single family residences expired in 1950; that in 1939 some 64% of property owners in the addition endeavored to extend said restrictions to the year 1965, but that said later covenants did not cover Lots 1 to 8, Block 16, belonging to B. Clesi; that, as already stated, the area was annexed to the City of Dallas and first zoned for residential use in 1941; also that when the Dallas Comprehensive Zoning Ordinance was re-enacted in September 1951, the then status of Lovers Lane Heights Addition as a residential area was continued.

Further stipulations of fact material to the controversy were entered into by the parties, the substance of which must here be stated: That over the past several years B. Clesi had made numerous applications to the Dallas Plan Commission and City Council seeking a change to Retail Zoning from the R-7.5 classification on Lots 1 through 8, Block 16, several of these applications likewise including his lots in Blocks 8 and 12, which were denied; that after a 1951 refusal, Clesi had brought suit in the District Court, contesting such adverse municipal action; the city answering the cause in allegations that 'The property of the plaintiff is suitably situated for the purpose for which it is zoned * * *' (residential), which suit was later dismissed; that in July 1952, upon another application, the City Council overruled the City Plan Commission and recommended to Clesi a change of zoning to LR-3; which action was later rescinded, City Council referring the whole matter back to the Plan Commission for further study and recommendations; the latter body then disapproving a change to LR-3 uses; that hearings then began before the City Council, after which A-2 (apartment) usage was recommended by unanimous vote, which council action became the January 1953 Ordinance 5678, assailed as void and of no effect.

This ordinance is too lengthy for inclusion here; its caption in part reciting: 'That a special permit shall be granted for Apartment-2 uses, save and except convalescent homes and old peoples' homes, with reference to the herein described property, subject, however, to the special conditions hereinafter more fully expressed; that the property shall be improved according to the plans and specifications submitted therefor and shall be approved by the City Plan Commission and the City Council; providing for a penalty; and declaring an emergency.' Then follow express conditions in accordance with the City Zoning Code, Art. 165-22, which in turn provides: '(22). Where the City Plan Commission is considering a change in zoning from a residential or apartment zoning to a lower classification and the area in question involves three or more acres under one or more owners, or if it contains lesser area and would constitute the extension of an existing district whereby the provision of off-street parking facilities, screening walls, fences or planting and open space would create a protective transition between a lesser and a more restricted district, or if it would constitute the extension of an existing special permit, the City Plan Commission may, within its discretion, make the following recommendations to the City Council: (A) Recommend against the change in zoning. (B) Recommend a change in zoning. (C) Recommend that a special permit for such area be granted, together with its recommendations as to requirements for the paving of streets, alleys and sidewalks, means of ingress and egress to the public street, provisions for drainage, parking space and street layouts, and protective screening and open space. (23) Every special permit granted under the provisions of this article shall be considered as an amendment to the zoning ordinance as applicable to such property. In granting such permit the City Council may impose conditions which shall be complied with by the grantee before certificate of occupancy may be issued by the building inspector for the use of the buildings on such property pursuant to said special permit; and such conditions shall not be construed as conditions precedent to the granting of the special permit or the change in zoning of such property, but shall be construed as conditions precedent to the granting of the certificate of occupancy.' In the same connection Art. 165-31, captioned 'Changes and Amendments,' provides: 'The governing body may from time to time amend, supplement, or change by ordinance the boundaries of the districts or the regulations herein established.'

It was agreed that the area covered by ordinance 5678 was of more than three acres; that pursuant to an earlier bond issue, Inwood Road was widened in 1952, consisting of a six-lane divided highway; the traffic thereon between Lovers Lane and University Boulevard having doubled since 1948; that on Lovers Lane at Inwood Road is a large shopping center of many commercial activities; in particular, dress and men's clothing shops, stores, such as liquor, shoe shops and repair, drugs, variety and general merchandise, cleaning and pressing, photographic, frozen food lockers, among other businesses, same extending to Newmore Street one block south; that there are practically no business structures, however, on Inwood Road south until Lemmon Avenue is reached, a distance of 1 1/2 miles; that some of the plaintiffs reside no lots immediately to the rear and west of the lots covered by the amended ordinance; that the section known as Inwood Shopping Village and business surroundings have been developed since the particular area was annexed to the city; and that if real estate experts were called on to testify concerning use of the involved lots, either for business or residential, there would be a reasonable dispute among them on the subject; some saying the lots were suitable for Apartment-2 purposes, others that they were not suited to such use or for business; and likewise, if individuals owning houses in the vicinity were called on to testify, they would say that residential values would be adversely affected by the rezoning of the subject lots for A-2 uses.

Some of the plaintiffs, testifying, stated that the rezoning of the Clesi lots would adversely affect values of adjoining property in the addition; Mr. Port Stages, living on Glenwick, two doors off Inwood Road, saying, however, that 2 1/2-story apartment construction would be 'acceptable,' but still detrimental on account of resulting congestion. Anything over a six-unit apartment on each lot, he said, would congest the area; that the lots subject to damage by A-2 zoning of defendants' lots would be those which back up on the west and those lying immediately to the south; but that it was just a matter of individual opinion as to...