Nichols v. City of Dallas

• Decision Date: 12 May 1961
• Docket Number: No. 15894,15894
• Citation: 347 S.W.2d 326
• Parties: Weeden B. NICHOLS et al., Appellants, v. CITY OF DALLAS, et al., Appellees.
• Court: Texas Court of Appeals

Page 326

347 S.W.2d 326

Weeden B. NICHOLS et al., Appellants, v. CITY OF DALLAS, et al., Appellees.

No. 15894.

Court of Civil Appeals of Texas, Dallas.

May 12, 1961.

Rehearing Denied June 9, 1961.

Harold B. Sanders, Dallas, for appellants.

H. P. Kucera, City Atty., N. Alex Bickley, Asst. City Atty., Saner, Jack, Sallinger & Nichols, Strasburger, Price, Kelton, Miller & Martin and Royal H. Brin, Jr., Dallas, for appellees.

DIXON, Chief Justice.

Appellants Weeden B. Nichols and seven other property owners as plaintiffs brought this suit for permanent injunction against appellees City of Dallas and Ray Cummings, City Building Inspector, charging that Ordinance No. 8289, enacted December 7, 1959, rezoning certain property by special permit, is unconstitutional and is also illegal and invalid for other reasons.

Daniel Gevinson and Jesuit High School of Dallas, Inc., intervened as owners respectively of the equitable and legal title to the real property primarily affected.

The property, about 21 acres in extent, is City Block No. 1345 and is known also as the Jesuit High School property. Prior to the passage of Ordinance No. 8289 it was zoned under the classification R-75 for single family dwellings. However, since 1906 it has been used by the Jesuit Order in the operation either of an orphans home or of schools, both college and high school.

Ordinance No. 8289 by its terms authorizes the issuance, subject to certain conditions, of a 'special permit' allowing Block 1345 to be used for 'Multiple Story Apartments, Hotels, Retail Shops and Office Buildings.'

Appellants allege that they are the owners of nearby properties lying within distances, exclusive of street widths, varying from 20 feet to less than 200 feet of Block 1345. They assert that they have made valuable residential improvements on their properties pursuant to deed restrictions and in reliance on the zoning of R-75 in Block 1345. They contend that the values of their respective properties would be greatly decreased if permits were issued and buildings constructed pursuant to Ordinance No. 8289.

The case was tried before the court without a jury. Judgment was rendered denying appellants an injunction. Findings of fact and conclusions of law were not requested

Arts. 1011d, 1011e, and 1011f, V.A.C.S.

Arts. 1011d, 1011, and 1011f, V.A.C.S. provide procedures to be followed by a city in adopting and amending a zoning ordinance. Art. 1011f provides that a city shall appoint a commission to hold hearings and submit a report and recommendation to the city legislative body as to zone boundaries, districts and regulations. The Commission in this instance is the Dallas City Plan Commission; the legislative body is the Dallas City Council. The Council may not hold hearings or take action to amend existing zoning ordinance until it has received a report from the Commission.

In their first point on appeal appellants allege that the trial court erred in holding that valid hearings were held before the City Plan Commission, as required by Art. 1011f, V.A.C.S. Their chief complaint under this point is that the hearings were not held before the Commission as a whole, which is composed of fifteen members, but were held before committees composed of only five members.

The record reveals that written rules and regulations governing the actions, proceedings and deliberations of the City Plan Commission have been adopted. A copy of these rules and regulations was introduced in evidence. They provide for the appointment of fourteen standing committees including four zoning committees. Committees may be composed of three or more members but the minimum number of members to constitute a quorum of any committee holding a public hearing shall be three. The duties of a committee are to hold necessary public hearings, to review, investigate and report to the Commission on all matters submitted to the committee. After the committee report is filed with the Commission, the whole Commission makes a decision as to the recommendation to be made to the City Council.

The proceedings leading up to this litigation began as far back as March 14, 1956. In a chronology appellees in their brief enumerate 29 events which occurred between March 14, 1956, when architect George M. Dahl applied for a special permit, and May 30, 1960, when the Dallas City Council adopted a substitute plat in connection with Ordinance No. 8289. Some of these events are referred to in a stipulation of agreed facts entered into by the parties. Other events are shown by the record evidence. We shall list only a few of them.

(1) On March 14, 1956 a petition for rezoning was filed in behalf of present and prospective owners of the property. A public hearing was held April 17, 1956 before a zoning committee of the Commission. There were three members of the committee present. Appellants' attorney, who is himself an appellant, and three others of appellants appeared and spoke at this hearing. On May 16, 1956 the City Plan Commission recommended to the City Council that the change in zoning be adopted.

(2) On July 15, 1958 another hearing was held with five members of the committee present. The purpose of the hearing was to consider proposed site plans. Two of appellants including appellants' attorney, appeared in opposition. At the request of appellants' attorney the hearing was adjourned until after October 1, 1958.

(3) On March 11, 1959 a public hearing was held before a committee with five members present. The hearing was for the purpose of considering the application of Jesuit High School and Daniel Gevinson for a special permit. Three persons spoke in favor of the issuance of the permit, ten persons spoke in opposition, and one person spoke conditionally in favor. On a show of hands 30 persons were in favor and 50 persons were opposed to the issuance of the permit.

(4) On March 19, 1959 the Commission discussed the application and the proposed site plan, but deferred action until further information could be obtained.

(5) On April 9, 1959 the Commission decided to approve the application for a special permit. On April 29, 1959 the Commission made an addition to its report and amended some of the conditions on which the plan was approved.

(6) On December 7, 1959 the City Council, after a hearing before the full council, adopted Ordinance No. 8289 granting the special permit.

(7) On April 21, 1960 the Commission adopted a revised site plan and recommended additional screening before a permit should be issued. On May 9, 1960 the City Council adopted the revised site plan.

We are of the opinion that under the circumstances reflected in the record before us the holding of public hearings before a Zoning Committee of the City Plan Commission rather than before the whole Commission was not reversible error. Art. 1011d, V.A.C.S. provides that the legislative body of a municipality shall provide the manner in which zoning boundaries and changes shall be determined, established and enforced. One of the stipulations of fact agreed upon by the parties here is that hearings held before Zoning Committees are governed by the Rules and Regulations of the City Plan Commission. It is undisputed that these Rules and Regulations were complied with in this case. Several hearings were held, at one of which 80 persons were present and expressed their views. Appellants did not complain at any of these hearings because the hearings were before a Zoning Committee rather than before the whole Commission. After receiving and considering the reports of the Zoning Committee, the City Plan Commission as a whole made its recommendations to the City Council.

It is to be borne in mind that the City Plan Commission acts only in an advisory capacity. It merely recommends. It has no legislative power. Only the City Council may adopt or amend an ordinance. The record shows that Ordinance No. 8289 was passed by the City Council only after a recommendation was received from the City Plan Commission and only after a public hearing before the whole City Council.

We have found no case exactly in point with the facts presented by the record. However, in Herring v. Stannus, 169 Ark. 244, 275 S.W. 321, 322, the fact that public hearings were helf before a 'civic affairs committee' of the City Council rather than before the whole Council did not vitiate the later granting of a permit for a service station where the whole Council, acting upon the Committee's recommendation, granted the permit. See also Carr v. City of El Dorado, 217 Ark. 423, 230 S.W.2d 485; Clesi v. Northwest Dallas Improvement Ass'n, Tex.Civ.App., 263 S.W.2d 820; Prince v. W. H. Cothrum & Co., Tex.Civ.App., 227 S.W.2d 863; and 101 C.J.S. Zoning Sec. 105.

In Luse v. City of Dallas, Tex.Civ.App., 131 S.W.2d 1079, it was held that no one has a vested right in any given mode of procedure--due process of law is not being denied so long as a substantial and efficient remedy remains or is provided.

As we see it appellants' rights have not been invaded and they have suffered no harm because of the procedure complained about in their first point. Their first point is overruled.

In their second point appellants allege error on the part of the trial court in holding that appellants were accorded hearing before the City Council of the City of Dallas as required by Art. 1011d, V.A.C.S.

The record refutes appellants' claim. At least two public hearings were held. The parties have in writing stipulated as a fact that one of these hearings took place. Paragraph No. X of the written stipulation is as follows:

'In June of 1959, the City Council caused notices to be mailed to the interested property owners announcing a public hearing to be held by the City Council on June 29, 1959. The public hearing was held as announced and after due consideration the City Council closed the hearing and took the matter under consideration. (A copy of the minutes of said meeting are attached...