Murmur Corp. v. Board of Adjustment of City of Dallas

Decision Date11 September 1986
Docket NumberNo. 05-85-00528-CV,05-85-00528-CV
Citation718 S.W.2d 790
PartiesMURMUR CORPORATION and Murmur Leasing Corporation, Appellants, v. The BOARD OF ADJUSTMENT OF the CITY OF DALLAS and the City of Dallas, Texas, Appellees.
CourtTexas Court of Appeals

Robert L. Meyers, III, Barry R. Knight, Dallas, for appellants.

Donald R. Postell, Dallas, for appellees.

P. Michael Jung, Dallas, amicus curiae.

Before the court en banc.

GUITTARD, Chief Justice.

Murmur Corporation brought this suit in a district court of Dallas County to review an order of the Board of Adjustment of the City of Dallas terminating immediately Murmur's alleged nonconforming use of certain land as a lead smelter. Murmur also sought a declaratory judgment establishing its right to operate the smelter and damages for interference with its operation. The trial court denied all relief sought by Murmur and issued a permanent injunction restraining operation of the smelter. On this appeal Murmur asserts that operation of the smelter is not a nonconforming use subject to termination because the ordinance restricting the use is void for lack of the statutory notice and, alternatively, that, if valid, it does not apply to preexisting uses. Murmur further contends that if the restriction of the use is effective, the board's order is void because

it fails to allow a proper period for amortization of the value of the nonconforming structure before termination, as provided by the Dallas Development Code. We hold that the ordinance is valid and applicable to operation of the smelter, that Murmur is entitled to continue the use during the period required for recoupment of its investment in the nonconforming use, and that the board's order of immediate termination is an abuse of its discretion because there is no substantial evidence supporting an implied finding that Murmur has no investment in the nonconforming structure. Accordingly, we reverse.

Facts

In 1984 Murmur acquired 26.7 acres of land from RSR Corporation. The purchase included a lead-reclamation smelter on approximately 6.5 acres of the property, a battery-wrecking facility, and a lead-fabrication facility. The lead-reclamation smelter was operating before 1952, when the property was annexed by the city. In 1957 the property was zoned Manufacturing-2 (M-2) under the city's zoning ordinance. In 1965 this zoning classification was changed to Industrial-3 (I-3). Either classification permitted the operation of the plant. RSR acquired the property in 1971. Then, on October 2, 1974, the zoning ordinance was amended to require a specific-use permit for metal smelting and plating operations in I-3 zoned districts. The amendment was passed by the Dallas City Council as a republication of the comprehensive zoning ordinance; however, it is alleged that no notice of the amendment was given as required by article 1011f(b) of the Texas Revised Civil Statutes (Vernon Supp.1986). RSR continued to operate the plant without obtaining the specific-use permit required by the ordinance.

Meanwhile the Federal Trade Commission had begun an investigation of possible antitrust violations by RSR. In 1976 the FTC ordered that the property be sold to increase competition in the industry. No purchaser was found. After the divestiture order, RSR allowed the plant to deteriorate, and the emission level of pollutants rose above the environmental safety standards. In 1983, RSR was ordered by a district court of Dallas County to undertake certain clean-up activities and to install pollution-control devices. RSR declined to install the devices and closed the plant. On February 27, 1984, the court issued an order prohibiting RSR from operating the plant until the pollution-control devices were installed in compliance with the 1983 order.

On May 23, 1984, Murmur acquired the property for $25,000 at a public auction sale ordered by the FTC. The next day, May 24, the city announced its plans to request that the board of adjustment terminate the nonconforming use on the 26.7-acre tract. After a hearing on September 6, 1984, the board unanimously voted to terminate the use of the land as a lead smelter and determined the date of September 6, 1984, to be the termination date. Murmur then sought review by certiorari in the district court pursuant to article 1011g of the Texas Revised Civil Statutes (Vernon Supp.1986), and also sought damages and declaratory relief. At the trial the entire record before the board was introduced in evidence and Murmur presented additional testimony. The judge upheld the board's order and filed a written opinion stating his findings and conclusions.

Validity of Ordinance

Murmur's only attack on the validity of the zoning ordinance is its contention that the city failed to give the statutory notice required by article 1011f(b) of the Texas Revised Civil Statutes (Vernon Supp.1986) when it adopted the 1974 amendment to the Dallas zoning ordinance. We conclude that the ordinance is not subject to attack in this ground. Since the adoption of the 1974 amendment, the legislature has enacted four validating statutes. TEX.REV.CIV.STAT.ANN. arts. 974d-22 § 4, 1174a-10 § 2(b), 1174a-11 § 2(b), 1174a-12 § 2(b), (Vernon Supp.1986). Murmur argues that the validating acts were Moreover, Murmur, as a subsequent purchaser of property subject to a nonconforming use, had no standing to complain of lack of notice to the former owner. Leach, 627 S.W.2d at 857.

                designed only to validate city enactments that otherwise complied with state law, but were invalid because of defects in the cities' charters.  We disagree.  "Validation acts are remedial and are to be liberally construed."  Leach v. City of North Richland Hills, 627 S.W.2d 854, 858 (Tex.App.--Fort Worth 1982, no writ).  They apply to adoption of amendatory zoning ordinances.  Leach, 627 S.W.2d at 857;  City of Hutchins v. Prasifka, 450 S.W.2d 829, 833 (Tex.1970).  Although validation statutes may not cure constitutional defects, they may cure defects that do not render the ordinance unconstitutional.  Id.  The right to have notice and appear before a zoning commission is a statutory right, not a due-process requirement.   Eudaly v. City of Colleyville, 642 S.W.2d 75, 77 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.).  Because the irregularity in the adoption of the 1974 amendment to the zoning ordinance did not affect a constitutional right, we conclude that it was the intention of the legislature to cure this type of defect and that the ordinance was validated.  City of Hutchins v. Prasifka, 450 S.W.2d 829, 833 (Tex.1970)
                
Prospective Operation of Zoning Amendment

Before 1974, metal smelters were permitted in districts zoned I-3. By an amendment of that year to the Dallas Zoning Ordinance, "Smelting and Plating of Metals" was specifically listed for the first time in section 10-220, entitled "Approved New and Unlisted Uses." This section permits "Smelting and Plating of Metals" in an I-3 district, but requires a specific-use permit.

Murmur contends that this amendment was intended to apply only prospectively and, therefore, did not apply to the pre-existing smelter in question. We do not agree. The ordinance applies by its terms to all uses described. It is prospective in the sense that it requires specific-use permits to be obtained for future operations, although that requirement applies to existing uses as well as new uses. Although the smelting operation was not a "new use," it was otherwise an "unlisted use," and, therefore, was appropriately listed among "Approved New and Unlisted Uses" in section 10-220.

Murmur further contends that an intention not to apply section 10-220 to existing uses is shown by section 10-1401 of the same ordinance under the caption "Classification of New and Unlisted Uses." This section provides:

It is recognized that new types of land use will develop and that forms of land use not anticipated will seek to locate in the City of Dallas. In order to provide for such changes and contingencies a determination as to the appropriate classification of any new or unlisted form of land use shall be made as follows: ....

Then follow provisions concerning the procedure for classifying "any new or unlisted form of land use."

We conclude that section 10-1401 only provides a procedure for classifying uses not otherwise classified. It does not limit or qualify the provisions of section 10-220 classifying "Smelting and Plating of Metals" as permitted in I-3 districts and requiring a specific-use permit.

Of course, even though the 1974 amendment required a specific-use permit for existing smelting operations, such a requirement could not be enforced against a preexisting operation without an order terminating the nonconforming use as otherwise provided by the ordinance. Thus the operator of a smelter could lawfully continue that operation without a specific-use permit until that use was terminated by order of the Board of Adjustment. We hold that the zoning ordinance as amended applies to the preexisting use of the property as a lead smelter and establishes this as a nonconforming use subject to termination unless a specific-use permit is granted.

Termination of Nonconforming Uses--The General Law

Murmur attacks the board's order on the ground that it failed to follow the proper standard for terminating the alleged nonconforming use. It argues that the board is authorized to terminate a nonconforming use only after allowing the use to continue for a sufficient time to recover the "full value" of the nonconforming structure, which it interprets to mean market value or replacement value, and, therefore, that the board could not properly limit the allowance to Murmur's actual investment in the nonconforming use. Upon consideration of the applicable provisions of the Dallas Development Code in the light of the general law of zoning, we conclude that recoupment of the investment is a permissible...

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