Lombardo v. City of Dallas

• Decision Date: 30 June 1934
• Docket Number: No. 6251.,6251.
• Citation: 73 S.W.2d 475
• Parties: LOMBARDO v. CITY OF DALLAS et al.
• Court: Texas Supreme Court

Page 475

73 S.W.2d 475

LOMBARDO v. CITY OF DALLAS et al.

No. 6251.

Supreme Court of Texas.

June 30, 1934.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by V. A. Lombardo against the City of Dallas and others. Judgment for defendants

was affirmed by the Court of Civil Appeals [47 S.W.(2d) 495], and plaintiff brings error.

Affirmed.

W. S. Bramlett, J. T. Kelly, and Angelo Piranio, all of Dallas, for plaintiff in error.

James J. Collins, Hugh S. Grady, H. P. Kucera, A. A. Long, and W. Hughes Knight, all of Dallas, for defendants in error.

CURETON, Chief Justice.

This case is before us by writ of error and involves primarily the validity of the zoning statutes of the state and the zoning ordinance of the city of Dallas. Both were upheld by the Court of Civil Appeals in an able opinion by Associate Justice Looney. 47 S.W.(2d) 495. We refer to that opinion for a sufficient statement of the case.

The legislative act, by virtue of which the zoning ordinance was adopted, was enacted in 1927 (Acts 40th Legislature, p. 424, c. 283), and may be found as articles 1011a to 1011j, Vernon's Ann. Civ. St. The first three of the articles are the ones which contain the grants of power and are vitally involved in the case before us. These three articles read as follows:

"Art. 1011a. For the purpose of promoting health, safety, morals, or the general welfare of the community, the legislative body of cities and incorporated villages is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.

"Art. 1011b. For any or all of said purposes the local legislative body may divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this Act; * * * and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land. All such regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts.

"Art. 1011c. Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality, and it is hereby provided that this Act * * * shall not enable cities and incorporated villages aforesaid to require the removal or destruction of property, existing at the time such city or incorporated village shall take advantage of this act, * * * actually and necessarily used in a public service business."

The articles of the statute which follow the above contain elaborate provisions relative to the exercise of the power of zoning by a municipality; but since these are not involved, except as they are a part of the ones we have previously quoted, we shall not quote them, nor make a full statement with reference thereto. It is to be observed from the articles quoted that the zoning power is to be exercised for the purpose of promoting health, safety, morals, or the general welfare of the community, and that the zoning power of the municipality is to be exercised in accordance with some comprehensive plan designed:

(a) "To lessen congestion in the streets."

(b) "To secure safety from fire, panic and other dangers."

(c) "To promote health and general welfare."

(d) "To provide adequate light and air."

(e) "To prevent the over-crowding of land."

(f) "To avoid undue concentration of population."

(g) "To facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements."

By the terms of article 1011b it is obvious that the city may exercise the powers granted by dividing the municipality into districts and within the districts "it may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land," etc. It is clear from a reading of this statute that the insistence that it is not broad enough to authorize the exclusion of business enterprises or gasoline filling stations from a residential district is untenable. The language employed is sufficient for such purpose. Dillon on Municipal Corporations (5th Ed.) vol. 2, § 665, p. 1002; Village of Buffalo v. Webster, 10 Wend (N. Y.) 100; Cronin v. People, 82 N. Y. 318, 37 Am. Rep. 564; Ex parte Byrd, 84 Ala. 17, 4 So. 397, 5 Am. St. Rep. 328; State v. Beattie, 16 Mo. App. 131; City of Jacksonville v. Ledwith, 26 Fla. 163, 7 So. 885, 9 L. R. A. 69, 23 Am. St. Rep. 558; People v. Pratt, 129 N. Y. 68, 29 N. E. 7. See also many additional cases cited by Dillon. City of Chicago v. Stratton, 162 Ill. 494, 44 N. E. 853, 35 L. R. A. 84, 53 Am. St. Rep. 325; St. Louis v. Russell, 116 Mo. 248, 22 S. W. 470, 20 L. R. A. 721.

The city of Dallas in compliance with the statute, and in accordance with a comprehensive plan, zoned the city. In the first section of the zoning ordinance the city declares: "Section 1. Purpose. The zoning regulations and districts as herein established have been made in accordance with a comprehensive plan for the purpose of promoting health, safety, morals and the general welfare of the community. They have been designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. They have been made with reasonable consideration, among other things, to the character of the district, and its peculiar suitability for the particular uses; and with a view of conserving the value of buildings and encouraging the most appropriate use of land throughout the community."

Section 2 of the ordinance divided the city into zones and declared that except as provided in the ordinance no building should be erected or structurally altered except in conformity with the regulations prescribed for the use or area district in which such building was located. This section, in part, reads: "Section 2. General. Zoning regulations and districts as herein set forth are approved and established. The City of Dallas is hereby divided into six classes of use districts, termed respectively, Dwelling Districts, Apartment Districts, Local Retail Districts, Commercial Districts, First Manufacturing Districts, and Second Manufacturing Districts; and into six classes of area districts, termed respectively, A Area Districts, B Area Districts, C Area Districts, D Area Districts, E Area Districts and F Area Districts; all as shown on the zoning map which accompanies this Ordinance and is hereby declared to be a part thereof."

Following this section of the ordinance the various districts designated are defined. Section 3 defines a dwelling district, the one primarily involved in this litigation, as follows:

"Section 3. Dwelling District. In a dwelling district no building or premises shall be used, and no building shall be erected or structurally altered which is arranged or designed to be used, for other than one or more of the following uses:

"(1) One-family dwelling. Two-family dwelling.

"(2) Church. School or college. Library.

"(3) Private club, excepting a club the chief activity of which is a service customarily carried on as a business. Little Theatre operated as an educational institution and not for profit.

"(4) Public park or playground. Golf course. Public recreation building. Public museum. Community building.

"(5) Telephone exchange, providing no public business office and no repair or storage facilities are maintained. Fire station.

"(6) Water Supply reservoir, filter-bed, tower or artesian well.

"(7) Railway passenger station or railway right-of-way, not including railway yards.

"(8) Farm. Truck garden. Nursery. Greenhouse.

"(9) Accessory buildings, including one private garage when located not less than 60 feet from the front lot line, and not less than 20 feet back from any other street line, or located in a compartment as an integral part of the main building.

"(10) Uses customarily incident to any of the above uses when located upon the same lot and not involving the conduct of a business; including customary home occupations engaged in by the occupants of the dwelling on the premises and including also the office of a physician, surgeon, dentist, musician, or artist when situated in the same dwelling used by such physician, surgeon, dentist, musician, or artist as his or her private dwelling; provided no name plate exceeding one square foot in area, containing the name and occupation of the occupant of the premises, and no sign exceeding eight square feet in area appertaining to the lease, hire or sale of a building or premises; and no commercial advertising sign of any other character shall be permitted in a dwelling district."

Following this, Apartment House Districts and the other districts named above are described. Area Districts are also regulated and defined, but we deem...