Lawton v. City of Austin, 11406

• Decision Date: 15 June 1966
• Docket Number: No. 11406,11406
• Citation: 404 S.W.2d 648
• Parties: Leonard LAWTON et al., Appellants, v. The CITY OF AUSTIN et al., Appellees. . Austin
• Court: Texas Court of Appeals

Page 648

404 S.W.2d 648

Leonard LAWTON et al., Appellants, v. The CITY OF AUSTIN et al., Appellees.

No. 11406.

Court of Civil Appeals of Texas.

Austin.

June 15, 1966.

Rehearing Denied July 6, 1966.

Sneed & Vine, Houghton Brownlee, Jr., Forrest N. Troutman, Austin, for appellants.

Johnson, Jones & Sheppard, Paul D. Jones, Pearce, johnson, Austin, Clark, West, Keller, Clark and Ginsberg, William L. Keller, Allen Butler, Dallas, Doren R. Eskew, City Atty., H. Glenn Cortez, Asst. City Atty., Brown, Sparks & Erwin, Will G. Barber, Austin, for appellees.

HUGHES, Justice.

Earl L. Dolifka, J. E. Berryman and Leonard Lawton, appellants, by an amended pleading sued the City of Austin, Safeway Stores, Inc., Nash Phillips, Clyde Copus and R. B. Lewis for a declaratory judgment invalidating three ordinances passed by the City of Austin making changes in its zoning ordinances.

Trial was non-jury. Judgment was rendered declaring the ordinances attacked to be valid and denying appellants any relief, the Court reciting 'that plaintiffs have failed to prove by a preponderance of the evidence that the enactment of' the ordinances by the City 'has had or will have any effect upon plaintiffs' property.'

The three ordinances in suit amended existing zoning ordinances so as to change the areas described from a classification of residential 'A' to commercial 'G.R.' zoning.

Each of appellants owned residential property which, it was alleged, would suffer a diminution in value as a result of the enactment of one or more of such ordinances. On this issue the evidence was disputed and the trial judge made the finding, above noted, that no loss of value was proved. Appellants have no point questioning the validity of this finding. Their first point, however, is that the 'Trial Court erred in holding (if it did so hold) that plaintiffs were under the burden of proving irreparable injury to their property as a resulting fact from the passage of the subject ordinances.'

We believe that a discussion of this point would be academic because it does not present a point of error which could be determinative of this appeal.

The enactment of zoning laws is an exercise of the police powers of the State by the legislative branch of the government. The State of Texas has delegated some of this legislative authority to municipalities. Arts. 1011a--1011j, Vernon's Ann.Tex.Civ.St. The Legislature, of course, may put such restrictions on and provide the manner in which municipalities may exercise the delegation of this authority as it sees fit. See Smart v. Lloyd, Tex.Civ.App., 370 S.W.2d 245, Texarkana, n.w.h.

Our problem here is, as we see it, twofold, (1) to determine if the City has substantially tracked the statutes under which it derived authority to enact the ordinances in suit and (2) whether the notice provisions of Art. 1011f are constitutional.

The statute of primary concern here and the only one the partial validity of which is assailed is Art. 1011f which we quote, in part:

'Art. 1011f. Zoning commission

In order to avail itself of the powers conferred by this Act, such legislative body shall appoint a commission, to be known as the Zoning Commission, to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. Such Commission shall make a preliminary report and hold public hearings thereon before submitting its final report, and such legislative body shall not hold its public hearings or take action until it has received the final report of such Commission; provided, however, that any city or town, by ordinance, may provide for the holding of any public hearing of the legislative body, after published notice required by Section 4 of this Act, jointly with any public hearing required to be held by the Zoning Commission, but such legislative body shall not take action until it has received the final report of such Zoning Commission. Where a City Plan Commission already exists, it may be appointed as the Zoning Commission. Written notice of all public hearings before the Zoning Commission on proposed changes in classification shall be sent to owners of real property lying within two hundred (200) feet of the property on which the change in classification is proposed, such notice to be given, not less than ten (10) days before the date set for hearing, to all such owners who have rendered their said property for city taxes as the ownership appears on the last approved city tax roll. Such notice may be served by depositing the same, properly addressed and postage paid, in the city post office.'

Sec. 4 referred to in the above statute, is Art. 1011d, which reads:

'Art. 1011d. Method of procedure

The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established, and enforced, and from time to time amended, supplemented, or changed. However, no such regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least 15 days' notice of the time and place of such hearing shall be published in an official paper, or a paper of general circulation, in such municipality.'

Art. 1011e, provides, in part, that, 'The provisions of the previous section relative to public hearing and official notice shall apply equally to all changes or amendments.'

On the issue of constitutionality of the notice provisions of the above statutes, appellants cite authorities for the rule that notice to satisfy the requirements of due process must be 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'

We hold that the notice provisions of the statutes referred to above are valid for two reasons. The first reason is that the enactment and amendment of zoning laws is legislative in character and due process of law does not require notice of such proceedings. The second reason is that the notice provisions of these statutes are constitutionally adequate even if notice is required.

Our first reason is sustained by these authorities. 66 C.J.S. Notice § 14, p. 652, Burke v. Board of Representatives of Stamford, 148 Conn. 33, 166 A.2d 849, 16A C.J.S. Constitutional Law § 569(5), p. 580, n. 20. Among the cases cited in this note is Willapoint Oysters v. Ewing, 174 F.2d 676, U.S. Court of Appeals, Ninth Circuit, cert. denied 338 U.S. 860, 70 S.Ct. 101, 94 L.Ed. 527, rehearing denied, where the Court stated, 'However in legislation, or rule-making, there is no constitutional right to any hearing whatsoever.' Cited to support this holding was the following language from an opinion by Justice Holmes, 'Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.'

In Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, the Court sustained the constitutionality of our zoning laws which at that time provided only for notice by publication as prescribed in Arts. 1011d and 1011e, supra.

This type of notice in zoning matters has been upheld in many cases. See Annotation in 96 A.L.R.2d, p. 459.

It is true that the publication notice required by the statutes does not necessarily apply to hearings before the Zoning Commission and that the written notice provisions apply only to such hearing. We concede that the right to appear before the Zoning Commission is of great importance, and that we should preserve and protect it insofar as the Legislature has authorized or directed its preservation and protection. We consider this right to be a mere legislative right as distinguished from a constitutional right. The Legislature may have directed that notices of the public hearing before the Zoning Commission be sent to persons owning property in the area as disclosed by the deed records of the County or whose identity could be ascertained in any other reasonable manner. The point is that it has not done so, and it, the Legislature, was not required to provide for any notice of such hearing. We have no hesitancy in saying, however, that the Legislature has wisely, fairly and reasonably provided for a method of notice which places on property owners some measure of responsibility which he assumes when acquiring the status of an owner of real property in the City, that of rendering his property for taxation.

It is also true that the written notice provisions are not perfect in that when there is a change of ownership so that the last approved tax roll may not reflect the owner at the time written notice of the hearing are sent. Perfection is difficult of attainment. If this imperfection is to be remedied, it must be accomplished by the Legislature. ¹ It is enough for us to determine that this inadequacy does not afford grounds for granting appellants the relief they seek. It would not benefit appellants if we held this notice provision invalid. It would, theoretically at least, harm him and those similarly situated for the reason that if some property owners within this limited area receive written notices of a hearing before the Zoning Commission which affects their property the more likelihood that all, including those who have not received such notice, will hear of it. Nor do we believe that appellants can complain that the Legislature has provided for an...