McWhorter v. City of Winnsboro

• Decision Date: 12 June 1975
• Docket Number: No. 825,825
• Citation: 525 S.W.2d 701
• Parties: Mrs. M. D. McWHORTER et al., Appellants, v. The CITY OF WINNSBORO, Texas, et al., Appellees.
• Court: Texas Court of Appeals

Page 701

525 S.W.2d 701

Mrs. M. D. McWHORTER et al., Appellants, v. The CITY OF WINNSBORO, Texas, et al., Appellees.

No. 825.

Court of Civil Appeals of Texas, Tyler.

June 12, 1975.

Rehearing Denied July 24, 1975.

Paxton, Whitaker & Parsons, Melvin D. Whitaker, Frank B. Murchison, Palestine, for appellants.

Carlock & Taylor, Winnsboro, for appellee City of Winnsboro.

Roberts, Harbour, Smith, Harris, French & Ritter, Earl Roberts, Jr., Longview, for appellee Snider Industries, Inc.

DUNAGAN, Chief Justice.

This is a zoning case.

In 1965, the City of Winnsboro passed a comprehensive zoning law. In August, 1974, the City passed an amendatory zoning ordinance changing a R--900--F residential district to a B--2--F secondary highway business district. Mrs. M. D. McWhorter and others have brought suit asking that the ordinance be declared invalid and seeking a temporary injunction to prevent issuance of any building permits for the area. The trial court, sitting without a jury, denied all the relief that the plaintiff-appellants had sought and gave judgment to the city. Findings of fact and conclusions of law were requested and filed.

Appellants present seven points of error. The only attack upon the court's findings of fact is found in point of error number 7 wherein appellant asserts that 'the trial court's findings of fact No. 7(a) and (e)' has no support in the evidence and 'such findings are against the greater weight of credible evidence * * *.' The other points of error attack the court's conclusions of law. However, all the points are presented under a single argument, it being that the amendatory ordinance is illegal and void because it amounted to unauthorized spot zoning.

We affirm the judgment of the trial court.

In July, 1965, the city of Winnsboro enacted a comprehensive zoning law which created eleven different zones throughout the city. Seven of the zones created were residential and four were business zones. The block involved in this suit is in the city of Winnsboro and is bounded by East Pine Street on the south, Connie Mae Street on the east, Elm Street on the north and Beech Street on the west. The particular tract involved is approximately the northern two-thirds of this block consisting of 5.29 acres and is known locally as 'the Mullinax Homeplace.' Under the original 1965 zoning ordinance, this 5.29 acres was zoned R--900--F residential while the southern one-third, separated by a barbed wire fence, was zoned B--2--F, secondary business district. The areas to the north, east and west are all zoned for residential use and have been so since the original comprehensive act took effect in 1965. Southwest of the concerned areas and across Beech Street is an abandoned ice house which was in existence at the time the 1965 ordinance was enacted and is thus a prior non-conforming use. Directly north of the ice house on Beech Street are three residences which face the Mullinax homeplace. Across Pine Street to the north are residences also. The land directly across from the 5.29 acres on Connie Mae Drive is zoned for residential use but is presently vacant. South of the barbed wire fence which divides the Mullinax place from the B--2--F zone is the City Farmer's Market, a storage shed and a power substation. Four or five months prior to August 19, 1974, snider Industries purchased the Mullinax place with the intention of using the area as a woodyard and yard for the storage, distribution and shipment of timber, lumber and wood products. Original attempts to rezone the area to permit this use were made on June 10 and July 17, 1974, but those attempts were beset with difficulties in statutory procedure. However, on August 19, the City Council and the City Planning and Zoning Commission held a joint meeting and public hearing to determine the rezoning question. After the hearing, the City Council, with the advice of the Planning and Zoning Commission voted to rezone the 5.29 acres from R--900--F residential to a B--2--F secondary highway business district.

A zoning ordinance is an exercise of the legislative power of the City Council and must be presumed to be valid. City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43 (1958). An 'extraordinary burden' rests on a party attacking an ordinance to show that no conclusive or even controversial issuable facts or conditions exist which would authorize the City Council to exercise the discretion confided to it. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (Tex.Sup., 1955). This presumption of validity applies as well to an amendatory ordinance. City of Waxahachie v. Watkins, supra. However, a zoning regulation should be amended only when public interest requires the amendment, i.e., only when the amendment has a substantial relationship to the health, safety or general welfare of the community. Reichert v. Hunter's Creek Village, 345 S.W.2d 838 (Tex.Civ.App., Houston, 1961, writ ref., n.r.e.); Lubbock v. Stubbs, 278 S.W.2d 519 (Tex.Civ.App., Amarillo, 1954, writ ref., n.r.e.). The determination of when the public interest does require an amendment of a zoning ordinance is within the legislative discretion of the municipality and if reasonable minds may differ as to whether or not the amendatory ordinance has substantial relation to the public health, safety, morals or general welfare, no clear abuse of discretion is shown, and the amendatory ordinance must stand as a valid exercise of the city's power. Nichols v. Dallas, 347 S.W.2d 326 (Tex.Civ.App., Dallas, 1961, writ ref., n.r.e.).

On the other hand, the Supreme Court has condemned spot zoning, where a small area is singled out for different treatment from that accorded to similar surrounding land without any showing of justifiable changes of condition and especially when such preferential treatment is given in an amendatory ordinance which is contrary to a long-established comprehensive zoning plan. Thompson v. City of Palestine, 510 S.W.2d 579 (Tex.Sup., 1974).

Each case involving possible spot zoning must be decided by an examination of the facts in the particular case. Hunt v. City of San Antonio, 462 S.W.2d 536 (Tex.Sup., 1971); Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704 (1950). However, in those cases in which unjustifiable spot zoning has been determined, a common element present is that each has an area singled out for treatment differing from that of similar surrounding land, thereby creating an island having no relevant difference from its neighbor. Thompson v. City of Palestine, supra; Weaver v. Ham, supra.

In Thompson, the area concerned was surrounded by residences for seven blocks to the north, five to six blocks west, ten to twelve blocks east and six blocks south. In Weaver, the concerned block A--54 was a '* * * tract of land near the center of the Zone A district, and is surrounded by said Zone A District * * *.'

The case of major distinction and one relied on by appellants is Hunt v. City of San Antonio, supra. There, the area concerned was on the perimeter of the 'A' zone, but was separated from the adjoining 'D' zone by a busy, four-lane thoroughfare. In its determination that the concerned area could not be rezoned from 'A' to 'D' without creating illegal spot zoning, the court held, when considering the location of the area,

'* * * that this is a distinction without a difference. If the zoned area may be encroached upon from the edge, the effect thereof is to cause the comprehensive plan to collapse like the fall of a row of dominoes when the first in the row is knocked over.'

This court is of the opinion, however, that a difference does in fact exist distinguishing this case from Hunt. Here, there is no major thoroughfare dividing one zone from another. The 5.29 acre tract is actually a part of an entire block, which is divided only by a barbed wire fence, such fence serving as the boundary between the B--2--F zone to the south and the R--900--F zone. Consequently, the rezoning of the R--900-F area is but an extension or enlargement of the B--2--F zone and not an area Surrounded by land of different use classification as in Thompson v. City of Palestine, supra; Weaver v. Ham, supra; Goodard v. Stowers, 272 S.W.2d 400 (Tex.Civ.App., Dallas, 1954, no writ); and Burkett v. City of Texarkana, 500 S.W.2d 242 (Tex.Civ.App., Texarkana, 1973, writ ref., n.r.e.).

In City of Waxahachie v. Watkins, supra, suit was brought to have declared void two amendatory zoning ordinances of the City of Waxahachie rezoning a tract of land adjacent to a local retail district from residential to business district. The Supreme Court, in upholding the validity of the rezoning, discussed several factors considered in its decision, one being 'its contiguous relation and unitization with the tract lying immediately to the east already zoned for business purposes.' While several other factors were also considered by the court, we feel it significant that the contiguous relation with other business property was one of the elements considered by the court in upholding the amendments.

Several other jurisdictions also consider a contiguous relation the controlling factor in determining whether the amendatory zoning ordinance constitutes spot zoning. In Putney v. Township of Abington, 176 Pa.Super. 463, 108 A.2d 134, the Pennsylvania Court held that the mere extension of an existing commercial area is not spot zoning. The South Carolina Supreme Court held in Job Jones University, Inc. v. City of Greenville, 243 S.C. 351, 133 S.E.2d 843 (1963), that the granting of a special zoning permit extending an area zoned for commercial use to embrace adjacent property zoned for residential use does not constitute spot zoning. Similar holdings are found in Georgia and Maryland. Neal v. City of Atlanta, 212 Ga. 687, 94 S.E.2d 867; Eckes v. Board of Zoning Appeals, 209 Md. 432, 121 A.2d 249.

With these considerations in mind and remembering the factual distinction of the instant case from Hunt...