Edge v. City of Bellaire

• Decision Date: 13 February 1947
• Docket Number: No. 11848.,11848.
• Citation: 200 S.W.2d 224
• Parties: EDGE et al. v. CITY OF BELLAIRE et al.
• Court: Texas Court of Appeals

200 S.W.2d 224

EDGE et al. v. CITY OF BELLAIRE et al.

No. 11848.

Court of Civil Appeals of Texas. Galveston.

February 13, 1947.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Action by Gordon Edge and others against City of Bellaire, Tex., for an injunction restraining defendant city from interfering with operation of a restaurant and grill in a residential zone, wherein defendant, by cross-action, sought an injunction to restrain further violations of zoning ordinance and numerous property owners of city intervened asking that zoning ordinance be enforced. From a judgment non obstante veredicto enjoining them from using property for any purpose not permitted under zoning ordinance, plaintiffs appeal.

Judgment affirmed.

Fulbright, Crooker, Freeman & Bates and Stokes & Stewart, all of Houston, for appellants.

James V. Allred, of Houston, for appellees intervenor property owners.

Paul Strong, of Houston, for appellee City of Bellaire.

MONTEITH, Chief Justice.

This action was brought by appellants for an injunction restraining the City of Bellaire, its officers, agents and employees, from interfering with them in the operation of their restaurant and grill located on Lots Nos. 20, 21, and 22 in Block 2 of the City of Bellaire, Texas.

They alleged that the property involved was located in a de facto business area in the City of Bellaire at the time the zoning ordinance was enacted and that the action of the city commissioners, in placing the property in a residental zone, was unreasonable, discriminatory and arbitrary.

By cross-action the City of Bellaire sought an injunction to restrain further violations of the zoning ordinance. Thirty-seven property owners of the City of Bellaire intervened and asked that the zoning ordinance be enforced and upheld.

In answer to one special issue submitted a jury found that the action of the Bellaire City Commission in including said lots in a residental zone was unreasonable and discriminatory. After the return of the jury's verdict appellees moved for a judgment non obstante veredicto for numerous reasons, including the alleged fact that the plaintiffs had failed to discharge the burden imposed upon them of showing that the zoning ordinance in question was unreasonable, discriminatory or arbitrary at the time of its passage and that they had failed to plead or prove that there was no substantial evidence before the city commission at the time of the passage of such ordinance justifying the inclusion of said lots in the residental area.

After due notice and hearing on appellees' said motion the trial court rendered judgment non obstante veredicto enjoining and restraining appellants from in any way using the property in question for any purpose not authorized in a single family dwelling district under the provisions of the zoning ordinance of the City of Bellaire.

On May 7, 1939, the Bellaire city council passed an ordinance placing Lots 20, 21 and 22 in Block 2 of the City of Bellaire, in a residental zone, pursuant to Articles 1011a to 1011j, Vernon's Ann.Civ., Statutes. They caused a certificate dated July 16, 1942, signed by the Mayor and attested by the City Secretary, to be placed of record in the office of the County Clerk of Harris County for the purpose of placing the public on notice of the existence of such zoning ordinance and to advise the public of the regulations and restrictions in connection therewith.

At the time said ordinance was enacted C. L. Anderson owned the property and occupied it as his residence. From May, 1942, until November of that year he conducted a cafe thereon, and in December, 1944, he conveyed the lots involved to O. B. Snowden, who re-opened the cafe in the residence located thereon. On January 28, 1946, Snowden conveyed the property to appellant, Gordon Edge, by deed which recited that the conveyance was made subject to all the conditions, restrictions and covenants, if any, applicable to and enforceable against the property. Immediately after his purchase of the property, Gordon Edge, without attempting to secure a permit from the City, began the construction of an addition to the residence located thereon, changing its character from a residence to a business establishment. He made no attempt to secure a building permit from the City of Bellaire. The construction of the building was stopped by the City but later a building permit was issued to him with the understanding that the property was residental and that the issuance of the permit would not dedicate the property to business purposes. He accepted the permit, with the statement that appellants would take their chances. The permit was afterwards revoked.

Generally speaking, municipal corporations have the right, under the police power given them, to safeguard the health, comfort, and general welfare of their citizens by such reasonable regulations as are necessary for the purpose. City of Dallas v. Lively, Tex.Civ.App., 161 S.W.2d 895, writ of error refused; 30 Tex.Jur. 120, Sec. 58.

It is also well settled that zoning ordinances fall within the police power of municipalities, and that such power "may be exerted to regulate the use, and where appropriate or necessary prohibit the use, of property for certain purposes in aid of the public health, morals, safety, and general welfare, and...