Persons v. City of Fort Worth

• Decision Date: 31 May 1990
• Docket Number: No. 2-88-180-CV,2-88-180-CV
• Parties: C. Martin PERSONS, M.D., Appellant, v. The CITY OF FORT WORTH, Appellee.
• Court: Texas Court of Appeals

Page 865

790 S.W.2d 865

C. Martin PERSONS, M.D., Appellant, v. The CITY OF FORT WORTH, Appellee.

No. 2-88-180-CV.

Court of Appeals of Texas Fort Worth.

May 31, 1990.

Gould, Broude & Nelson, Susan J. Wilson, Warren H. Gould and Janna Ward Clarke, Fort Worth, for appellant.

Wade Adkins, City Atty., and William W. Wood, Deputy City Atty., Fort Worth, for appellee.

Before WEAVER, C.J., and LATTIMORE and MEYERS, JJ.

OPINION

WEAVER, Chief Justice.

Appellant, C. Martin Persons, M.D., appeals from the judgment of the trial court which denied his request for injunctive and declaratory relief against the City of Fort Worth ("City"), appellee. We affirm.

This dispute grew out of certain actions or planned actions by the City respecting the erection of certain facilities and the expansion of the City zoo located in a City park. Appellant alleged that the activities of the City had been undertaken without compliance with compulsory notice and hearing provisions of Chapter 26 of the Texas Parks and Wildlife Code ("Chapter 26"), and without compliance with and in violation of the City's zoning ordinances. Appellant sought to have the City enjoined from proceeding further with such activities during the pendency of the suit and thereafter until the City complies with the provisions of both Chapter 26 and its own zoning ordinances. He asked for a declaratory judgment holding that the City was required to comply with both the notice and hearing provisions of Chapter 26. He also sought a court order requiring the City to return the parkland to the state in which it existed prior to construction.

The City, by its cross-action, sought a declaratory judgment holding that the appellant had no standing to complain of the alleged failure of the City to comply with the provisions of Chapter 26 and with the provisions of the City's zoning ordinances; that the provisions of Chapter 26 do not apply when a city approves a project which involves its own public lands or when the plan proposes land used for a park purpose be used for another park purpose; that the proposed plan for the Forest Park Zoo is a park use; and that a judicial review of a project, subject to Chapter 26, is barred unless the petition for review is filed within thirty days after the approval or disapproval is announced.

The trial court issued a temporary restraining order and a temporary injunction enjoining the City from conducting certain construction activities and from issuing certain certificates of occupancy for the Texas Diorama during the pendency of the trial. Following a bench trial, the trial court dissolved the temporary injunction against the City; denied all declaratory and injunctive relief sought by the appellant; granted the declaratory judgment sought by the City to the extent that Chapter 26 does not apply when the subject plan or program proposes public land presently used for park purposes be used for another park purpose, and to the extent that the construction, operation, maintenance, and expansion of the Forest Park Zoo, including the Texas Diorama, as proposed by the Master Zoo Plan, is a park use. The trial court denied the recovery of attorney's fees by each party. The appellant brings five points of error and the City raises three cross-points.

The actions of the City which are here under attack by appellant involved its plans for expanding the City zoo and for developing the City zoo and park, known as Forest Park. This park was established in 1909, and consists of 233 acres of public land owned by the City and located near downtown Fort Worth. The City zoo is located in the park and has likewise been a part of the park since it was established.

Prior to the approval and implementation of these plans, the zoo was situated on thirty-one acres. The zoo area was fenced and will continue to be fenced after the expansion. It has limited access for which an admission fee is charged, and it has limited hours of operations and limited activities which can be pursued within its boundaries. The remainder of the park was unfenced, with free access to the public, subject to the City curfew ordinances. Located in this portion of the park were numerous wooded and open areas, streets and parking facilities, and various recreations facilities such as baseball diamonds, soccer fields, volleyball courts, tennis courts, picnic areas, a swimming pool, a miniature train, and children's rides. It also contained an area known as the Log Cabin Village situated on 2.7 acres.

The activities of the City were approved under two separate plans. The first was the Fort Worth Zoo Master Plan which was adopted by the City Council on September 23, 1986. This plan provided that approximately nine acres of the adjoining parkland be added to the zoo. The plan also provided for the construction of various facilities depicting Texas heritage and culture, known as the Texas Exhibit or the Texas Diorama ("Diorama").

Construction on the Diorama was commenced in the summer of 1987. Subsequent to that time, the City Council approved certain changes in the plans for the Diorama so as to include nine buildings instead of six buildings as initially approved, and so as to increase the size of the park area to be added to the zoo from the initial nine acres to approximately eleven acres.

Construction was continuing on the Diorama at the time appellant filed this suit on May 3, 1988. The structures that had been completed or which were then being constructed under the Diorama plan included a family center (a replica of an old Texas saloon, including a restaurant and an auditorium), a barn, ranch house, schoolhouse, blacksmith shop, chicken coop, windmill, and a gazebo. The testimony shows that these facilities are to be used for recreational and educational purposes in conjunction with the operations of the zoo.

The second plan is the Forest Park Master Plan. This plan was submitted to the City by the Fort Worth Zoological Association on October 6, 1987. The plan, with modification, was adopted by the City Council on November 10, 1987. The modified plan, known as the Forest Park Plan, provides for further expansion of the zoo area, in addition to the eleven acres previously taken for the Diorama, and includes, among other things, proposals for an African Savannah, World of Rivers, South American Exhibit, and a maintenance complex.

The areas of the park which will be brought into the zoo had previously contained tennis courts and various other recreational facilities, some of which have been or will be destroyed or removed under the plans and which will no longer be available for free access to the public. The City maintains that such recreational facilities can be situated in other areas of the park.

The fenced area of the zoo, as expanded, divides the remainder of the park into two separate portions. One portion is referred to as North Forest Park, being the large portion of the park located north of the zoo. The other portion is referred to in the testimony as South Forest Park, the equivalent of a neighborhood park, with some picnic tables, located on a narrow strip on the south side of the zoo. The zoo fence prevents free access directly between the north and south portions of the remaining park area.

STANDING

We will first consider the City's cross-point of error number one which challenges appellant's standing to seek injunctive and declaratory relief regarding alleged violations of Chapter 26 and cross-point of error number two which attacks the appellant's standing to bring this action with respect to alleged violation of the City's comprehensive zoning ordinances. The trial court heard testimony bearing on appellant's standing, and concluded that the appellant met the traditional concepts of standing. The City claims that the trial judge abused his discretion in holding that appellant had standing.

Unless standing is conferred by statute, the common-law rule in Texas is that a person seeking to enjoin the actions of a governmental body must plead and prove that he has suffered "special injury," i.e., he must allege and show how he has been damaged or injured other than as a member of the general public. Scott v. Board of Adjustment, 405 S.W.2d 55 (Tex.1966). The City cites Crump v. Perryman, 193 S.W.2d 233 (Tex.Civ.App.--Dallas 1946, no writ) as authority for applying the same standard regarding standing for seeking relief from an alleged violation of the City's zoning ordinances. The City claims that appellant has failed to sustain this burden.

In response to these cross-points, we have searched the record to determine whether appellant has pled and proved that any harm or injury or damages suffered by appellant, as a result of the City's actions, are special or peculiar to him, separate and apart from those suffered by the general public, so as to afford him standing in this case.

Appellant's pleadings do not allege that he suffered any special injury or has been damaged or injured other than as a member of the general public. His pleadings do contain the following statements or allegations:

The park has served as "a place to which the public at large has resorted for recreation, air and light."

"The violation of [Chapter 26] will lead to irreparable harm to the Plaintiff by depriving him of the right to use and enjoy Forest Park without the due process afforded by law...."

Plaintiff as an individual, uses the park and enjoys the park and "the beneficial use made of the park by other citizens of Fort Worth."

"Plaintiff, and others similarly situated, will no longer be able to use the park for its prior uses...."

"[T]he citizens of the City of Fort Worth are entitled to rely on the zoning ordinance of the City...."

He also alleged that the change in use of the parkland will cause substantial detriment to the surrounding parkland and adjacent neighborhood, and that his individual property will be depreciated. However, there is no proof in the...