Cook v. City of Addison, 05-82-00777-CV
| Decision Date | 10 August 1983 |
| Docket Number | No. 05-82-00777-CV,05-82-00777-CV |
| Citation | 656 S.W.2d 650 |
| Parties | Firman COOK, et al., Appellants, v. The CITY OF ADDISON, Texas, Appellee. |
| Court | Texas Court of Appeals |
J. Stanley Knight, Dallas, for appellants.
Wayne O. Woodruff, C. Michael Moore, Dallas, for appellee.
Before STOREY, WHITHAM and ROWE, JJ.
Appellants, Firman Cook, Pied Real Grundstueks GMB, Three G Food Corporation and David Albert, as owners of property abutting Belt Line Road in the appellee, City of Addison, Texas, brought this suit to contest paving assessments levied by the city against each of them for the improvement of that road. All parties sought summary judgment. The trial court denied the property owners' motion for summary judgment and rendered a take nothing summary judgment in favor of the city and against the property owners. In nine points of error the property owners contend that:
(1) the city did not have the right to assess the owners of property abutting Belt Line Road;
(2) the amount of the assessment was arbitrary and capricious;
(3) they were not afforded a fair and impartial public hearing on the assessments; and
(4) the paving assessment with respect to Albert was incorrectly calculated.
We find no merit in any of these contentions. Accordingly, we affirm.
The city's voters approved a $13.8 million bond program which included $11.4 million generally for "street improvements." Thereafter, the city issued and sold bonds in the amount of $5.4 million which included approximately $5 million for street improvements. When the bond proceeds were received, they were placed in the city's capital improvements fund. The bonds were not sold for the specific purpose of improving Belt Line Road and the proposition passed by the voters was for "the purpose of making permanent public improvements, to wit: street improvements, including drainage and sidewalk improvements incidental thereto...." Thereafter, the city council passed an ordinance which declared the necessity for the improvement of Belt Line Road, ordered the improvements and directed the city engineer to advertise for bids and to prepare an estimate of the total cost of the improvements and the amount of such costs to be paid by abutting property owners. That ordinance provided for an assessment in accordance with the front foot plan or rule in an amount not to exceed all of the cost of constructing the curbs and gutters and an amount not exceeding nine-tenths ( 9/10) of the estimated cost of the remainder of the Belt Line Road improvements. Thereafter, the city advertised for bids on the project and prepared the estimate of costs to be paid by abutting property owners. The construction contract was awarded to the H.B. Zachry Company.
Pursuant to Tex.Rev.Civ.Stat.Ann. art. 1105b (Vernon 1963 & Supp.1982-1983), the required public hearings were held. The appellants, Firman Cook, Pied Real Grundstueks GMB and Three G Food Corporation appeared before the city council and took advantage of the opportunity to be heard as afforded by Article 1105b, Section 9. The appellant Albert did not. At those hearings the city council heard presentations from the attorney for these three property owners and testimony from Cook and from a representative from Pied Real Grundstueks GMB. The property owners argued that the proposed improvements to Belt Line Road would not enhance the value of their property in excess of the amount of the assessment. The city council also heard evidence that the enhancement to the property owners' property as a result of the Belt Line Road improvements would be at least the proposed $81.00 per front foot assessment. Following the hearings, the city council passed an ordinance which closed the public hearing, overruled all objections to the assessments and levied an $81.00 per front foot assessment against all property abutting the improved portion of Belt Line Road; finding that such amount did not exceed the special benefits to the abutting properties. Further, the city council provided for certificates of special assessment to evidence the assessments and liens securing same. Construction of improvements began, and pursuant to its contract with Zachry, the city paid Zachry monthly progress payments as work was completed. The funds used for these monthly progress payments were obtained from the capital improvements fund. The improvements relative to the assessment program were satisfactorily completed and accepted by the city; paving certificates were issued to Zachry and reassigned back to the city, the present owner and holder of said certificates. As the Belt Line Road assessments were collected, they were deposited into a special assessments fund. These monies were then credited to the capital improvements fund for the purpose of repaying that fund for monies temporarily advanced to the Belt Line Road project to enable the city to go forward with the project, pay Zachry monthly progress payments and repurchase the paving certificates from Zachry.
In their first four points, the property owners contend that the city did not have the right to assess because (1) of the city's use of general street improvement bond proceeds, (2) application of the front foot plan or rule would be arbitrary and capricious and (3) the evidence establishes that the assessments were intended by the city for use in improving other streets in the city.
First, we consider the city's use of general street improvement bonds. The property owners assert that the city cannot assess a portion of the costs against the abutting property owners because the city used general street improvement bond proceeds to pay for the improvements during the construction phase. Relying on four cases, the property owners argue that it was never the intention of the city to pay for any part of the improvements through assessments of abutting property owners because the summary judgment proof conclusively shows that the city intended to pay for the improvements through the proceeds of the sale of bonds and money received from the county. Bush v. City of Denton, 284 S.W. 251 (Tex.Civ.App.--Ft. Worth 1926, writ ref'd); Celaya v. City of Brownsville, 203 S.W. 153 (Tex.Civ.App.--San Antonio 1918, writ ref'd); Alford v. City of Dallas, 35 S.W. 816 (Tex.Civ.App.1896, no writ); City of Dallas v. Ellison, 30 S.W. 1128 (Tex.Civ.App.1895, writ ref'd). Each of the cases relied on by the property owners was decided prior to the enactment of Article 1105b and none discusses the power of a home rule city to make an assessment of a portion of the costs against the abutting property owners. Accordingly, we conclude that they are not applicable in the present case.
The city asserts that, as a home rule city, it has the power to pay for street improvements with other available municipal funds (the proceeds of street improvement bonds) and then reimburse itself by thereafter imposing paving assessments under Article 1105b. We agree. The city is incorporated as a home rule city under Art. XI, Section 5 of the Constitution of the State of Texas. The city charter expressly authorizes the city council to exercise exclusive domain, control and jurisdiction over the public streets and to provide for street improvements by special assessment as provided in Article 1105b. It is established that:
A home rule city derives its power not from the Legislature but from Article XI, Section 5, of the Texas Constitution. Accepting cities and towns of more than 5,000 population have
Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 643 (Tex.1975). Thus the city has full power of local self-government, subject to the limitation that its charter and ordinances shall contain nothing inconsistent with the Constitutions of the United States and the State of Texas or with the general laws enacted by the Legislature; however, the intention of the Legislature to impose such limitations must "appear with unmistakable clarity." Id. at 645 (emphasis added). Therefore, the city's actions in connection with the financing, construction and assessment of the Belt Line Road improvements would be within the scope of its lawful powers unless the property owners can establish that the city somehow acted inconsistently with the Constitutions of the United States or the State of Texas or the statutes of the State of Texas. The property owners do not direct this Court to any constitutional or statutory limitations which, with "unmistakable clarity," prohibit the city from financing, constructing and assessing street improvements by the method employed in the present case. To the contrary, Article 1105b, provides in pertinent part as follows:
Sec. 3. That the governing body of any city shall have power to determine the necessity for, and to order, the improvement of any highway, highways, or parts thereof within such city, and to contract for the construction of such improvements in the name of the city, and to provide for the payment of the cost of such improvements by the city, or partly by the city and partly by assessments as hereinafter provided.
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Sec. 6. Subject to the terms hereof, the governing body of any city shall have power by ordinance to assess all the cost of constructing, reconstructing, repairing, and realigning, curbs, gutters, and sidewalks, and not exceeding nine-tenths of the estimated cost of such improvements, exclusive of curbs, gutters, and sidewalks, against property abutting upon the highway or portion thereof ordered to be improved, and against the owners of such property, and to provide the time, terms, and conditions of payment...
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