Heard v. City of Dallas

• Decision Date: 22 May 1970
• Docket Number: No. 17466,17466
• Citation: 62 A.L.R.3d 190,456 S.W.2d 440
• Parties: William H. HEARD et ux., Appellants, v. CITY OF DALLAS, Appellee.
• Court: Texas Court of Appeals

Page 440

456 S.W.2d 440

62 A.L.R.3d 190

William H. HEARD et ux., Appellants, v. CITY OF DALLAS, Appellee.

No. 17466.

Court of Civil Appeals of Texas,

Dallas.

May 22, 1970.

Rehearing Denied June 19, 1970.

Stewart Frazer, Newman, Moore, Peterson & Frazer, Dallas, for appellants.

N. Alex Bickley, City Atty., Ted P. MacMaster, Asst. City Atty., Dallas, for appellee.

BATEMAN, Justice.

The appellee City of Dallas obtained a permanent injunction against the appellants William H. Heard and wife enjoining them from violating the City's Comprehensive Zoning Ordinance.

The property in question is a two-story single-family dwelling located in a zone designated as 'R-10 Single-Family Dwelling District 10,000 square feet.' Property in that area may also be used as a 'Church or Rectory' or as a 'School, Public or Denominational' without the necessity of a Special Use Permit. Such property may not be used as a 'Day Nursery or Kindergarten' except under a Special Use Permit. The said three uses are defined in the ordinance as follows:

'(28) Church or Rectory: The place of worship and religious training of recognized religions including the on site housing of ministers, priests, rabbis, nuns and similar staff personnel.'

'(40) School, Public or Denominational: A school and customary accessory uses under the sponsorship of a public or religious agency having a curriculum generally equivalent to public, elementary or secondary schools, but not including private, trade or commercial schools.'

'(31) Day Nursery or Kindergarten: An establishment where four (4) or more children are lift for care or training during the day or a portion thereof.'

There was no jury, and the trial court filed findings of fact and conclusions of law. He found as facts that beginning September 1, 1969 appellants operated on the property in question a Day Nursery or Kindergarten School without applying for a Special Use Permit, without securing a permit from the City Health Department 'to operate said child care facility as required by Ordinance', and without securing a Certificate of Occupancy from the City Building Inspector as required by said Ordinance. The trial court concluded that the operation was in violation of the Ordinance.

Appellants contend under their first and second points of error that they were not in violation of the zoning ordinance and should not have been enjoined because the property was being used as a rectory and as a denominational school, either of which uses is lawful without a Special Use Permit.

The Appellant Heard is the Vicar of the Good Samaritan Episcopal Church and he and his wife own and reside in the property in question. On July 15, 1969 Heard made formal application for a Certificate of Occupancy to use the premises as a 'Church school class, operation of the Episcopal Church of the Good Samaritan, teaching curricula equivalent to public elementary school.' On the same date he wrote a letter to the Building Inspector describing the proposed operation, in which he said it would consist of one class of twelve students only, ages 2 1/2 through 5 1/2, 'as the pilot class for a school extending through twelve grades.' In this letter he said the school would operate during three morning hours of five days a week and that the class would be 'characterized by the best standards of early childhood education, in contrast to institutions that provide care for the children of working mothers throughout the normal working day', that the curriculum would include 'religious instruction, reading, writing, mathematics, science, social studies, classical and contemporary literature, Spanish, music, art, and perceptual skills,' adding that divine worship services would be held each day. On August 4, 1969 Heard made application to the City's Health Department for a permit to operate what he describes as a 'child care facility (kindergarten).' He was then informed that this application could not be approved until he applied for a Specific Use Permit pursuant to the zoning ordinance and secured City Council approval for the 'child care facility inasmuch as the property involved herein is not presently zoned to permit such use,' and that certain other requirements, pertaining to fire and health protection, would have to be met. Appellants did not see fit to apply for the Specific Use Permit or to meet any of the other requirements.

This being a nonjury case, the trial court was the judge of the credibility of the witnesses and the weight to be given their testimony, and the trial court's findings of fact are entitled to the same weight and conclusiveness on appeal as a jury verdict. Redman v. Bennett, 401 S.W.2d 891, 895 (Tex.Civ.App., Tyler 1966, no writ). It is also the rule that the trial court's findings of fact must be upheld unless manifestly erroneous; they will be overruled only when there is no evidence of probative value to support them, or where they are so against the great weight and preponderance of the evidence as to be manifestly wrong; and in testing the sufficiency of the evidence to determine whether it will support the trial court's findings we must give credence only to the evidence and circumstances favorable to the findings, disregarding all evidence and circumstances to the contrary. Kolbo v. Blair, 379 S.W.2d 125, 130 (Tex.Civ.App., Corpus Christi 1964, writ ref'd n.r.e.); Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953).

Moreover, the findings of fact and the conclusions of law will be construed together; and if the findings of fact are susceptible of different constructions, they will be construed, if possible, to be in harmony with the judgment and to support it. Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 301 (Tex.1963).

Appellants do not specifically attack the trial court's finding that they used the property for the operation of a Day Nursery or Kindergarten. There was ample evidence to support the finding, and it must therefore be upheld. The trial court made no specific findings with reference to whether the operation was that of a rectory or a denominational school, and appellants made no request for additional or amended findings pursuant to Rule 298, Vernon's Texas Rules of Civil Procedure.

The definitions of uses in the ordinance, it is noted, say nothing about the ages of the children contemplated, and to that extent the ordinance may be said to be ambiguous. The definition of 'School, Public or Denominational', however, does require such a school to have 'a curriculum generally equivalent to public, elementary or secondary schools.' The City argues that this necessarily refers to children who are at least six years of age at the beginning of the school term. That is the minimum age limit under the rule of the Dallas Independent School District pursuant to the statute. ¹ On the other hand, appellants argue, and introduced evidence to the effect, that the schooling of children may and should begin at an earlier age and that, in fact, the Dallas Independent School District has inaugurated an experimental kindergarten program in 17 of its 133 elementary schools in which preschool training is offered. The City points out, however, that even in those experimental kindergartens the child must be at least five years and eight months of age to be eligible; that the public schools offer no curriculum for children younger than that.

Certain well settled rules of construction should here be noticed. 'The same rules of construction apply to municipal ordinances as apply to statutes.' Reed v. City of Waco, 223 S.W.2d 247, 254 (Tex.Civ.App., Waco 1949, writ ref'd). The courts tend to adopt the construction placed upon statutes and ordinances by those authorized to administer the same. State ex rel. Richmond Plaza Civic Ass'n v. City of Houston, 270 S.W.2d 235, 238 (Tex.Civ.App., Galveston 1954, writ ref'd n.r.e.); 53 Tex.Jur.2d, Statutes, § 177, p. 259. It is also held that if the meaning of a statute be doubtful or ambiguous, the construction placed upon it by the agency charged with its administration in entitled to weight. Calvert v. Kadane, 427 S.W.2d 605, 608 (Tex.1968). Such construction has even been said to be entitled to 'great weight'. Tarry Moving & Storage Co. v. Railroad Commission, 359 S.W.2d 62, 67 (Tex.Civ.App...