Reichert v. City of Hunter's Creek Village

• Citation: 345 S.W.2d 838
• Decision Date: 13 April 1961
• Docket Number: No. 13508,13508
• Parties: W. E. REICHERT et al., Appellants, v. CITY OF HUNTER'S CREEK VILLAGE et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 838

345 S.W.2d 838

W. E. REICHERT et al., Appellants, v. CITY OF HUNTER'S CREEK VILLAGE et al., Appellees.

No. 13508.

Court of Civil Appeals of Texas, Houston.

April 13, 1961.

Rehearing Denied May 4, 1961.

Byron G. McCollough, Chas. W. Bell, John V. Singleton, Jr., Otto A. Yelton, Jr., Houston, Bell & Singleton, Houston, of counsel, for appellants.

Burke M. Martin, City Atty., Hunter's Creek Village, Carnes & Martin, Fulbright, Crooker, Freeman, Bates & Jaworski, Charles M. Haden, Houston, for appellees.

BELL, Chief Justice.

This is a rezoning case. The appellants are W. E. Reichert and Mrs. Irl F. Kennerly. The appellees are the City of Hunter's Creek Village, herein called City, and the members of its City Council. Appellants own adjoining tracts of land on Voss Road just south of U. S. Highway 90, usually called, and herein referred to, as Katy Highway. Under a comprehensive zoning ordinance designated Ordinance No. 11, passed March 25, 1955, appellants' property, which was vacant acreage, was included in Class B-Business. Under an amendatory ordinance passed December 2, 1957, and referred to as Ordinance No. 66, all of Reichert's and Mrs. Kennerly's property lying south of Briar Branch was zoned Class A-Single Family Dwelling.

Appellants attacked the validity of Ordinance No. 66 as being arbitrary. The basis of the assertion that the action of the City in rezoning was arbitrary was in substance that there has been no substantial change in the character of the City or the area in the vicinity of the property or in the subject property between the enactment of Ordinance No. 11 and Ordinance No. 66; that the rezoning was really made because of political pressure exerted on the City Council by property owners living near appellant's property who desired only to serve their selfish interests; that the appellants' property was not suitable for residential purposes and to so zone it would depreciate Reichert's property $60,000 and Mrs. Kennerly's $170,000.

Without noticing appellees' answer in detail, it is sufficient to note they contended the original zoning was a mistake; that the subject land is suitable for residential purposes; that the City is almost exclusively one of residences; that it is sufficiently served by neighboring business and the welfare of the City is best served by the use of the subject property for residences.

After a length hearing, the Trial Court upheld Ordinance No. 66. No attack was made by anyone on Ordinance No. 11 in the sense that it was contended that Ordinance No. 11 was unreasonable and arbitrary. Appellees merely contended it was a mistake to have originally classified the subject lands as Class B--Business and the welfare of the community would have best been served by classifying it for residential purposes.

The statement of facts is 1,600 pages. While we have read the entire statement, we think a fairly brief summary will suffice for the disposition of this appeal.

The City was incorporated in December, 1954. Shortly after incorporation Ordinance No. 10, a temporary zoning ordinance, was adopted and it zoned the subject property for business. Neither tract had theretofore been restricted in any manner. Thereafter, after extensive study by the Zoning Commission and the City Council, the Council on March 25, 1955 passes Ordinance No. 11 again zoning the subject property as Class B--Business. Nothing further occurred until in June, 1957, when Mr. Haden, one of appellees' attorneys, moved into residential property in the vicinity of the subject property. He commenced a movement to obtain a rezoning of the subject property to Class A--Single Family Dwellings. When Council was approached the matter was referred to the Zoning Commission. Too, it was suggested that petitions from residents be obtained asking for rezoning. Such petitions with some 500 signatures were obtained. At least two hearings were had. The Zoning Commission recommended against rezoning. The Council, however, on December 2, 1957, passed the ordinance rezoning the subject property. Appellants filed their opposition to rezoning.

The evidence shows that there is a strip of land on the south side of Katy Highway just north of Briar Branch and of Reichert's property which is about 200 feet in width at Voss Road, which road borders Reichert's property on the east. This strip is outside of the City and runs west along Katy Highway for about two miles. It varies in width from 200 feet at Voss Road to some 1,400 feet at some points. It is devoted to business purposes. It was excluded from the City because people feared the owners of the businesses might be effective, as they had before, in defeating incorporation. At the time of the passage of Ordinance No. 11 this property was unrestricted and was devoted largely to established businesses. Probably about 90% of the businesses were there prior to Ordinance No. 11. Mr. Reichert's property consists of about 12 acres. It is undivided acreage.

East of Voss Road, and bordering on it, is Mrs. Kennerly's property, which is a heavily wooded tract. Before the conveyance of right of way for the realignment of Voss Road it contained about 21 acres. After conveyance of right of way it contains about 16 acres. North of this tract is a strip of about 200 feet which runs easterly within the City limits some distance east. It lies between Briar Branch and Katy Highway. At the corner of Voss Road and Katy Highway on this strip just north of Mrs. Kennerly's property is a tourist court. The strip is zoned as business property though east of Voss Road there has been relatively little development. When Ordinance No. 11 was passed, as shown by the zoning map and by testimony, the proposed realignment of Voss Road was projected through Mrs. Kennerly's tract and it would run diagonally across it in an S curve from the southwest corner to the northeast corner, cutting the tract almost in half. Later Mr. and Mrs. Kennerly conveyed the right of way for this road. At the time of trial it had not been constructed.

Running along the north line of that part of subject tracts as rezoned for residential purposes is Briar Branch. It varies in width and depth and serves as a drainage facility. Oral testimony and pictures show it to be heavily lined with trees and underbrush. While the depth and width vary, in the vicinity of its crossing at Voss Road it is about 10 feet deep. The main bed of the stream is 3 or 4 feet deep. For some distance on either side of Voss Road the width from cut bank to cut bank is about 50 feet. The slope of the banks is gradual. We think there can be little question that it serves as a natural barrier desirable in the separation of business from residential property.

Voss Road is a heavily traveled thoroughfare running from the Southwest area of Houston to Katy Highway. Along Voss Road to the south of the subject property within the City are numerous homes. When realigned, Voss Road will tie in with Bingle Road lying to the north of Katy Highway. There will be an overpass on Katy Highway and Voss Road will pass under it. Katy Highway is designed to carry about 80,000 cars daily. It is the main highway between Houston and San Antonio.

To the south, east and west of the subject property is all property zoned for residences. About 400 feet from the east edge of Mrs. Kennerly's property is an elementary school. However, there is presently no connecting street or road between the two and the distance from the school is much greater if you go by street. As a matter of fact, that evidence shows there is relatively little business area in the City. The City is primarily one of homes. Actually, within the limits of the City there is an insignificant amount of land available for business.

However, the area on the south of Katy Highway adjoining the City and to the west of the west line of the City is the business district which extends from Voss Road west for about 2 miles. While witnesses vary in their characterization of the businesses, it appears there are filling stations, grocery stores, wearing apparel stores, restaurants, and hardware stores. These are strung out over the 2-mile area and this does not make shopping a real convenience. There are no large supermarkets or large department stores. This area can be reached rather conveniently without traveling Katy Highway by going west on streests within the City and thence north to the service road along the south of Katy Highway. There are shopping areas north of Katy Highway on Long Point Road, at Post Oak and Memorial and in Tanglewood that are from 2 miles to 4 1/2 miles from Voss Road and Katy Highway. They would serve some of the needs of some few of the residents of the City, but their location and character are such as to have little bearing on the question here involved. As we recall the testimony, about 90% of these businesses antedated the passage of Ordinance No. 11. About 10% were construced between it and Ordinance No. 66.

There was, among the witnesses who testified, a difference of opinion as to whether the property available in the immediate area for business was sufficient to meet the needs of the City. There was not as much available at the time of the passage of Ordinance No. 66 as there was when Ordinance No. 11 was passed because lands to the west of the City have since incorporated and have zoning ordinances. However, as to how much less is available we do not know.

With regard to the suitability of the subject property for residences or business, the testimony is in conflict. The opinion of some witnesses was that it was unsuitable for residences because of the location ...