Rosenthal v. City of Dallas, 13858.

• Decision Date: 02 April 1948
• Docket Number: No. 13858.,13858.
• Citation: 211 S.W.2d 279
• Parties: ROSENTHAL v. CITY OF DALLAS et al.
• Court: Texas Court of Appeals

Page 279

211 S.W.2d 279

ROSENTHAL v. CITY OF DALLAS et al.

No. 13858.

Court of Civil Appeals of Texas. Dallas.

April 2, 1948.

Rehearing Denied May 7, 1948.

Appeal from District Court, Dallas County; W. L. Thornton, Judge.

Suit by the City of Dallas against Samuel M. Rosenthal to enjoin alleged violation of zoning ordinances and the maintenance of alleged public and private nuisance, wherein 26 interested persons intervened. From a judgment awarding a permanent injunction, the defendant appeals.

Reversed and remanded for further proceedings.

Storey, Sanders, Sherrill & Armstrong, of Dallas, for appellant.

H. P. Kucera, City Atty., Carney W. Mimms and Robert L. Lattimore, Assts. City Atty., Thos. G. Murnane and W. R. Hemphill, all of Dallas, for appellees.

YOUNG, Justice.

The suit of City of Dallas charging violation by appellant of zoning ordinances and maintenance of a public and private nuisance on premises located at 3307 Lemmon Avenue, Dallas, was joined in by twenty-six interveners. Upon jury trial and verdict, judgment was rendered of permanent injunction, from which adverse action appeal is taken.

By comprehensive zoning ordinance of September 1929, the particular area had been designated an apartment district wherein commercial use of property was prohibited. Prior thereto, however, an ice factory had long been in operation on lots 12 and 13 of the premises in question, recognized at the time as a nonconforming use. In August 1944, appellant purchased these lots and old ice plant (which had ceased manufacturing ice about 1939 or 1940), obtaining a permit from the office of City Building Inspector for the operation at the same place of a cold storage plant "including meat storage and curing." In March and April 1946, the building inspector took steps looking to a revocation of aforesaid permit (also a second permit issued to appellant January 1946, for a 35' × 85' × 35' × 35' tile garage building on adjoining lots), and the lawsuit centers around this reversal of action by the named official, the City claiming invalidity of permits, necessitating their revocation; appellant pleading, on the other hand, res adjudicata or binding effect of the original permit on all appellees; that his use of the property was merely the continuance of a valid nonconforming use; estoppel to order revocation, in that vested rights had accrued because of valuable improvements made and eighteen months operation of plant with knowledge of City officials and interveners; that the threatened restriction of defendant's property to an apartment use would constitute a taking without due process of law, etc.; closing with a cross action for injunction as to all adversary parties against further molestation of or interference with his allegedly legal use.

Substance of the jury questions and answers in turn reflect all fact issues raised on behalf of complainants at the trial: (1) The processing of meats at defendant's plant causes offensive and obnoxious odors which spread to neighboring properties; (2) processing of meats at defendant's plant causes contamination of the air in the vicinity to such an extent (a) as to substantially impair the comfortable use and enjoyment of near residential properties by occupants thereof; (b) to materially interfere with the comfortable use and occupancy as a home by a person of ordinary habits, tastes and sensibilities of the property of interveners Misses Hemphill, located at 3226 Lemmon, apartment at 3227 and cottage at 3229 Lemmon Avenue; (c) similarly as to the residence property of interveners Thos. G. Murnane and wife; (3) operation of said plant requires the customary movement of a large number of trucks and vehicles, in and out, creating loud noises audible at the properties of other owners in the vicinity; and incidental to the plant operation is an habitual slamming, in opening and closing of building and vehicle doors; creating noises audible at homes and residences in the vicinity; (4) there was no loud talking or noise of grinding sausage at defendant's plant that was audible at neighboring homes and residences; (5) movement of trucks in and out of the plant and their loading and unloading, is accompanied by loud noises, both day and night, audible at homes and residences in the vicinity, of such a nature as materially to interfere with the comfortable use and occupancy as a home by a person of ordinary habits, tastes and sensibilities of the property and residences of interveners Hemphills and Murnanes; (6) raw meat and bones in open trucks are loaded, unloaded and parked at docks of said plant, and visible from residences in the vicinity, including homes of Misses Hemphill and Murnane and wife; (7) but which do not interfere with the comfortable use and enjoyment of the homes of said interveners by persons of ordinary sensibilities; (8) likewise the large advertising sign in front of defendant's plant should have no disagreeable effect on a person of ordinary sensibilities living in the vicinity; (9) operation of defendant's plant causes congestion of vehicular traffic and parking in vicinity of the Lemmon Avenue and Travis intersection; (10) the odors, noises, sights, and congestion of traffic taken together are of such a nature as to materially interfere with the comfortable use and occupancy as a home by a person of ordinary habits, tastes and sensibilities of the properties and residences owned by the Hemphills and Murnanes; (11) the manufacture of ice on lots 12 and 13 had been abandoned prior to the time said lots were acquired by defendant; the word "abandoned" being defined under said issue 33 as "the giving up or relinquishment of a right."

The court's judgment is quite lengthy, but, pursuant to above jury findings and other evidence recited therein as uncontradicted and presenting no issue of fact, defendant Rosenthal was permanently enjoined from using lots 10 to 16 inclusive, block 1/973, City of Dallas, for any purpose other than permitted in an apartment district under zoning laws; from using lots 11, 12 and 13 for any nonconforming commercial use such as ice manufacture or cold storage; in short, being required to tear down and remove all buildings, machinery, equipment and accessories placed on the ground for meat storage and processing; the perpetual restraint extending to all foregoing aspects of nuisance and holding invalid and as violative of City ordinances the two building permits in question.

Material and undisputed facts antecedent to the instant controversy are these: The old ice factory on lots 13 and 12 was adjacent to the highly embanked MK&T right of way and Lemmon Avenue underpass. According to defendant's pleading, before consummating a purchase of the ice factory with its commercial use of more than forty years, he had visited the Dallas City Hall to determine whether the site could be used for his meat processing plant, talking with Assistant Building Inspector Hanson and Assistant City Attorney Dillard. Defendant Rosenthal did not testify at the trial, but, from Hanson's testimony, the application was for a cold storage plant, ancillary to which was the handling of meat along with usual side lines of sausage-making and meat products — no slaughtering of any kind. Mr. Dillard also testified that the discussion involved a cold storage operation with the making or packing of sausages as an accessory, such activity to be substituted for the nonconforming ice factory use; he advising the two (Hanson and Rosenthal) that cold storage was in the same commercial classification as ice manufacturing; that Inspector Hanson should determine as a fact question whether the old factory owners or successors had a valid nonconforming use of the property; if so, they had a right to change over to cold storage with sausage-making as an accessory, in event Hanson should further determine that such was customarily incident to a cold storage plant; also warning against any use such as would create a nuisance or hazard of smoke, "and that was agreed."

Application was filed and permit issued August 7 (property purchased August 21, 1944), the first application signed by Samuels & Company, Packers, reciting in part: "I hereby submit this application for a building permit and certificate of occupancy for (Describe all work to be done, as permit will cover only work applied for) Submit plans in duplicate: Partitions and equipment for cold storage plant * * * Building to be used for (Give all uses to which building is to be put — * * * Cold storage * * * cost of all work to be done under this permit (Include value of all labor and materials) * * * Plumbing & Fixtures $600.00 Wiring & Fixtures $400.00 Total Cost $4,000.00 * * * I have carefully examined and read the completed application and know the same is true and correct and hereby certify and agree that if a permit is issued, all the provisions of the Building Ordinances and State Laws will be complied with whether herein specified or not. * * *." The forthcoming permit carried the same data, along with these provisions in print: "This permit is issued on the basis of information furnished in the application noted by number hereon, and is subject to property restrictions, provisions of the Building Code, Zoning Ordinances and all other governing ordinances which must be complied with, whether or not herein specified. This permit is subject to cancellation upon notice as provided in the Building Code. * * * Certificate of occupancy is required for all buildings or change in use thereof." On back of defendant's Exhibit 13 (receipt for permit fee) was the printed statement: "Important: Read Building Code carefully before starting work. The permit is granted on the express condition that the building or structure shall conform to the Building and Zoning Ordinances of the City of Dallas and to all deed restrictions. * * * If at any time during construction the extent of the work exceeds the cost or value...