Connor v. City of University Park

• Citation: 142 S.W.2d 706
• Decision Date: 08 June 1940
• Docket Number: No. 13002.,13002.
• Parties: CONNOR v. CITY OF UNIVERSITY PARK et al.
• Court: Texas Court of Appeals

142 S.W.2d 706

CONNOR v. CITY OF UNIVERSITY PARK et al.

No. 13002.

Court of Civil Appeals of Texas. Dallas.

June 8, 1940.

Rehearing Denied July 6, 1940.

Appeal from District Court, Dallas County; John A. Rawlins, Judge.

Proceeding by Dr. T. V. Connor, Jr., against the City of University Park and its officials to review the action of the Board of Adjustment in affirming building engineer's refusal to grant petitioner permit authorizing the remodeling of the interior of family residence in the single-family dwelling district in the city for use as an office for the practice of dentistry, and to compel the officials to issue a permit for such purposes, and to enjoin interference with the use of part of residence for the practice of dentistry. From an adverse judgment, plaintiff appeals.

Affirmed.

Burford, Ryburn, Hincks & Charlton, Logan Ford, and W. M. Taylor, Jr., all of Dallas, for appellant.

Percy C. Fewell, of Dallas, for appellees.

LOONEY, Justice.

Dr. T. V. Connor, Jr., the appellant, instituted this proceeding against the City of University Park and its officials, under the provision of Art. 1011g, Vernon's Ann. Civ.St., to review the action of the Board of Adjustment of said City in affirming the building engineer's refusal to grant appellant a permit, authorizing the remodeling of the interior of his family residence, in the single-family dwelling district of said City, for use as an office for the practice of dentistry, praying that mandamus issue, compelling the proper officials of said City to issue a permit for such purposes, and to enjoin the enforcement officers of the City from interfering with or molesting appellant or his patients in utilizing the left wing of his residence as a private office for the practice of his profession.

In their verified answer, appellees (defendants below) set out, somewhat at length, the zoning ordinance, alleging its reasonableness, the necessity for its enactment, its constitutional validity as applied to appellant and his property, alleging that, more than twenty million dollars had been invested in single-family homes in the vicinity surrounding Southern Methodist University; that there had been built up, and was being maintained, a cultural, homelike environment and atmosphere; that the classification, restrictions and regulation as to the use of property in said district, involving the property in question, are parts of a complete, comprehensive plan of zoning for the entire City of University Park; and that, to relax its enforcement, as sought by appellant, would seriously imperil the entire zoning plan and program, produce anxiety and confusion among property owners and residents of the district disturbing to their peace of mind, pleasure and confidence, creating a feeling of insecurity in regard to home ownership in said district, and causing the loss of property values, exceeding many times the value of appellant's property; would invite the entry into the district of other similar and kindred professions and occupations, increasing traffic and other hazards, also the cost of operating the municipality, that would be a menace to the public health, safety and general welfare of the community; alleging further, that appellant is misrepresenting his intentions, in that, if granted the permit sought, he intends to and would use his residence to operate a dental office in such a way as to constitute the carrying on of a business, and not merely as an incident to the use of the property as a home; that the proposed use of the property is neither essential nor incidental to the enjoyment of a bona fide home; wherefore, appellees prayed that the relief sought by appellant be denied.

After an exhaustive hearing, the court found the issues in favor of appellees, denying the relief sought by appellant, from which he appealed. Although the statement of facts is quite lengthy (700 pages), no findings and conclusions were requested, or filed by the trial court; hence it is our duty to affirm the judgment, if sustained upon any reasonable theory supported by the evidence and authorized by law.

Cities and incorporated towns and villages find their authority for the enactment of zoning ordinances in Arts. 1011a, 1011b and 1011c of Vernon's Ann.Civ.St. For the promotion of the health, safety, morals and general welfare of the community, governing bodies of these municipalities are authorized to enact zoning ordinances, providing restrictions and regulations in regard to the size of buildings, structures, their construction, alteration, regulate density of population, the use of buildings for trade, industry, residence, or other purposes; also regulations and restrictions in regard to the character of the district, its peculiar suitability for particular uses, "with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality", and that, such regulations shall be uniform for each class or kind of buildings throughout each district.

The material facts are these: In December, 1929, the governing body of the City of University Park adopted a zoning ordinance, creating, among others, a single-family dwelling district, which was amended in September, 1938, before appellant purchased the residence involved, which, at the time, was being used as a single-family residence, and has never been used for any other purpose. The pertinent provisions of the ordinance, as amended in 1938, are these: "In a single-family dwelling district no building or premises shall be used, and no building shall be erected or structurally altered which is arranged or designed to be used, for other than one or more of the following uses:", naming single-family dwellings and accessory buildings, also certain institutions of a public nature, such as public utilities and institutions or places for education, culture, worship, pleasure and recreation, and, further, as follows: "(8) Uses customarily incident to any of the above uses, when located upon the same lot and not involving the conduct of a business; including customary home occupation engaged in by the occupants of the dwelling on the premises and including one private office of a physician, surgeon, dentist, musician, or artist, when situated in the same dwelling used by such physician, surgeon, dentist, musician, or artist as his or her private dwelling and incidental to the enjoyment of such premises as a bona fide home, provided, however, that nothing herein shall be construed to permit the establishment, operation or maintenance of a clinic or the carrying on of any business in such district * * *".

The above represents the status of the regulations at the time appellant made his application for the permit; however, in September, 1939, after the institution of the suit, but before the hearing, the governing body of the City again amended the ordinance, providing that, in a single-family dwelling district, no building or premises could be used for other than one or more of the following uses, to-wit: A single-family dwelling used as the residence of a single family, also certain accessory buildings and public institutions for worship, education, culture, and a telephone exchange; also "(c) The following, but only the following, incidental uses may be permitted in a single-family dwelling district: As a secondary use, but never as a principal use, when indispensably necessary to the enjoyment of premises for any one of the uses permitted by this section and actually made of the premises, but not otherwise, not more than one room or compartment when located upon the same lot, may be subjected to uses customarily (according to the then prevailing custom in the area and adjacent areas which are exclusively residential in character) incident to any one use authorized by this section, which is actually made of the premises; provided, however, nothing herein shall authorize or be construed to permit the use of any part of premises within a single-family dwelling district for the purpose of conducting or carrying on the business, trade, or professional practice, or for carrying on the business or practice of the rendering of personal, trade or professional service for which a charge is made or any kind of remuneration is required or received by the occupant of the premises except that professional services may be rendered in unusual and occasional emergency cases, when such service is essential to the preservation of life or to the rendering of first-aid; * * *."

It is conceded, and the fact entered into the discussion, that on January 2, 1940 (since the trial of the case), the governing body of the City of University Park again amended the portion of the ordinance under consideration, expressly prohibiting the use of any part of the premises within a single-family dwelling district, for the purpose of conducting or carrying on any business, trade, or professional practice, or giving any professional advice.

With reference to the authority of the governing body of the City to amend the ordinance, the statute (Art. 1011e, Vernon's Ann.Civ.St.) provides that: "Such regulations, restrictions, and boundaries may from time to time be amended, supplemented, changed, modified, or repealed * * *"; therefore, we think, the governing body of the City, in the proper exercise of the police power, was authorized, pending the litigation, to amend the ordinance in the respects mentioned, as appellant acquired no vested right by reason of having filed an application for a permit to remodel and use the residence as an office for the practice of dentistry. It follows therefore, that, if either of the last two amendments adopted is valid, the rights of the parties are to be determined as of the present time, rather than the time the application for a permit was made. See Munn v. People of Illinois, 94 U.S. 113, 24 L.Ed. 77; City of University Park v. Rahl, Tex.Civ.App., 36 S. W.2d 1075; Ware v....