McCall v. Presley
Decision Date | 27 June 1974 |
Docket Number | No. 7575,7575 |
Citation | 512 S.W.2d 693 |
Parties | Gene McCALL et al., Appellants, v. B. F. PRESLEY, Appellee. |
Court | Texas Court of Appeals |
Barney Knight, City Atty., Gerald M. Brown, James L. Carroll, Temple, for appellants.
J. W. Thomas, Jr., Temple, for appellee.
This is an apeal from an order of the trial court granting a mandamus requiring the issuance of a building permit. The parties will be referred to here as they were in the trial court.
Plaintiff, B. F. Presley, applied for a building permit from the City of Temple, which application was denied. Appeal was taken to the Board of Appeals of the City of Temple, and, after evidence was heard, the appeal was denied. This action for mandamus was then filed naming Gene McCall as 'building official' and the City of Temple as defendants. Trial was before the court, and findings of fact and conclusions of law were made and filed by the trial court.
Plaintiff and his wife purchased two lots in the Riverside Park Addition to the City of Temple, in July, 1972. Plaintiff then made the application for the permit in question in August, 1972, which was denied on the grounds that: (1) a sanitary sewer was not available, and an approval from the Health Department had not been acquired; (2) adequate water was not available; and (3) no curb and/or gutter was installed.
The chief bone of contention in the hearing before the Board of Appeals was the adequacy of the water supply. The City of Temple enacted the National Building Code containing the following provision:
The trial court's Finding of Fact No. 3 read as follows:
In Conclusion of Law No. 11, the trial court found that the finding by the Board of Appeals that water was not available within the meaning of the National Building Code was not reasonably supported by substantial evidence. Then, in Conclusion of Law No. 17, the trial court found that water was available within the meaning of the National Building Code under the arrangement in which Mrs. Atara Cryer gave plaintiff permission to connect the proposed construction to the Cryer two-inch line.
One of the landmark cases announcing the 'substantial evidence rule' is Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939). It is there stated, in essence, that the administrative board is to determine any controverted fact question necessary or proper to be determined in passing upon applications. At page 82 we find the following:
As restated in City of San Antonio v. Texas Water Commission, 407 S.W.2d 752 (Tex. 1966), the orders of the Commission are presumed to be legal and valid, and the burden is on the party appealing from the Commissioner's order to show that the order are not reasonably supported by substantial evidence. Therefore, in the case before us, we must determine if plaintiff sustained the burden of showing that the orders appealed from were not supported by substantial evidence. In making such a determination, neither the trial court nor this court can substitute its discretion for that committed to the Board of Appeals by the Legislature.
The Supreme Court of Texas gave the Courts of this state some guidelines to use in Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 at 441, as follows:
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...Civil Service Commission of San Antonio, 524 S.W.2d 88, 90 (Tex.Civ.App. San Antonio 1975, no writ); McCall v. Presley, 512 S.W.2d 693, 695 (Tex.Civ.App. Beaumont 1974, writ ref'd n. r. e.). The burden was upon the appellant to show the "unlawful procedure" of which it complains, i. e., fai......
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