Goddard v. Stowers, 14865
| Decision Date | 08 October 1954 |
| Docket Number | No. 14865,14865 |
| Parties | W. R. GODDARD et al., Appellants, v. Charles K. STOWERS et al., Appellees. |
| Court | Texas Court of Appeals |
A. J. Thuss, Jr., Dallas, for appellants.
Leake, Henry, Golden & Burrow and Duncan Boeckman, H. P. Kucera, City Atty., and Ted P. MacMaster, Asst. City Atty., Dallas, for appellees.
By Amendatory Ordinance No. 5760, of date April 7, 1953, the City of Dallas had changed the classification of the Stowers property (subject to a recognized nonconforming use) from residential to local retail; its validity being challenged by appellants in petition for injunction as unreasonable and arbitrary, having no relationship to public health, safety, convenience, or general welfare; in effect amounting to unjustifiable spot zoning. Upon hearing to the court, the measure was adjudged legal and valid; with denial of restraint and order that petitioners Goddard and Maxson take nothing. The appeal seeks a review of such adverse judgment. Background of the controversy, both in locale and subject matter involved, must first be stated.
In 1939 appellee Stowers had purchased the property so rezoned, approximately an acre of land and described as the northwest Lot lying at intersection of Northwest Highway, an east and west thoroughfare, and Midway Road, running generally north and south; erecting thereon a grocery store and filling station (oil and gas); in 1946 adding some grease racks. When acquired, the vicinity was undeveloped, with only farmhouses to the north on Midway. At time of purchase, the Stowers Lot faced 231 feet on Northwest Highway, 315 feet along Midway Road, and was outside the Dallas city limits. During the year 1943, the particular section, inclusive of the Stowers property, was annexed to the City; his business spot being then in active operation, representing an investment of some $18,000 and becoming a nonconforming use in connection with the residential classification affixed to such area. This residential status was carried forward in comprehensive City Ordinance No. 5238 passed August 28, 1951, Stowers continuing aforesaid commercial use of his property.
In the meanwhile, the entire northerly section of Dallas had undergone a tremendous change, with hundreds of houses built in the vicinity of the Stowers property, vehicular traffic on the two Highways, Northwest and Midway, likewise greatly increased and a City traffic light there installed. Accordingly in October 1951, Stowers made application to the City Plan Commission for a change in zoning of his Lot to local retail 2. This request after public hearing was denied, that body suggesting, however, that the application for a one-story masonry extension of his existing nonconforming use be referred to the Board of Adjustment. The latter agency on hearing denied the request; the Plan Commission then forwarding the original petition for zoning change to City Council, which body, after another hearing in January 1953, deferred action, with request to the Adjustment Board that it reconsider the application. Upon such reconsideration of the case by that Board and further public hearing, appellee Stowers was granted the relief sought; appellants Goddard and Maxson filing suit in District Court for writ of certiorari, Art. 1011g, V.A.C.S., to set aside this Board order. And the City Council, on March 24, 1953, having finally acted on the application for rezoning, granting to Stowers a local retail 2 classification, the ordinance under attack was passed; plaintiffs amending their petition in form of the instant suit.
The homes of appellants, acquired long subsequent to appellee's purchase, lie to the southeast on Northwest Highway, setting back some one hundred feet from the roadway, the other three intersecting corners of Midway and Northwest Highway being vacant. Here it should be noted that in conjunction with enactment of the amended ordinance, Stowers had donated to the City 36 feet at his corner for lessening of traffic hazards, also a 20-foot strip along Midway for widening purposes, confining his entrance way to such street. The prima facie case of appellants consisted largely of exhibits reflecting actions of the various municipal bodies leading up to amended ordinance No. 5760. Testimony of their witnesses had no particular bearing on allegations of arbitrary, unreasonable, and discriminatory conduct on part of the Council 1; the statement of Mr. Maxson that the ordinance in question would have the effect of depreciating the value of his property being merely offered for purpose of...
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