Rowton v. Alagood, 3024

• Decision Date: 22 May 1952
• Docket Number: No. 3024,3024
• Parties: ROWTON v. ALAGOOD et al.
• Court: Texas Court of Appeals

Page 264

250 S.W.2d 264

ROWTON v. ALAGOOD et al.

No. 3024.

Court of Civil Appeals of Texas, Waco.

May 22, 1952.

Rehearing Denied June 26, 1952.

Richey, Sheehy & Teeling, Waco, for appellant.

Sleeper, Boynton, Darden & Burleson, Wright, Tex.Civ.App., 280 S.W. 276, point torney, Waco, for appellees.

TIREY, Justice.

This is a zoning case. The City of Waco, in 1947, adopted a new comprehensive zoning ordinance under the provisions of Arts. 1011a to 1011j, inclusive, Vernon's Ann.Civ.Stats. In January, 1951, the Building Inspector of the City of Waco, acting upon the advice of the City Attorney, granted the request of Arthur Alagood for a designation of the property located at 3601 Bosque Blvd. as a valid, subsisting, non-conforming use, and further advised Alagood to the effect that he would issue a building permit to effect minor repairs to the property provided the repairs did not violate the zoning laws of the City of Waco. W. R. Holt and V. D. Rowton seasonably notified the Board of Adjustment of the City of Waco that they were dissatisfied with such decision and asked that the Board review and reverse the decision and declare said premises as being in the second residential district without non-conforming use under the zoning ordinance. The Board took jurisdiction of the matter and set it for hearing on March 28, 1950, at which time all the members were present, and there appeared attorneys for W. R. Holt and V. D. Rowton, and attorneys for Alagood, as well as attorneys for the City of Waco, at which hearing a court reporter made a stenographic report of the proceedings before said Board. The Board 'affirmed the decision of the Building Inspector designating the structure and premises located at 3601 Bosque Blvd. as a valid and subsisting non-conforming use, and affirmed the decision of the Building Inspector to grant a permit to Arthur Alagood to repair the building located at 3601 Bosque Blvd. in accordance with the building code and the zoning laws of the City of Waco.' Rowton, by virtue of a writ of certiorari, brought these proceedings to the 74th Judicial District Court for review. Holt did not join therein. The district court affirmed the decision of the Board and Rowton perfected his appeal to this court.

Appellant assails the judgment of the trial court on five grounds: One is to the effect that the evidence is uncontradicted that at the time W. R. Holt purchased the property it was being used for residential purposes and thereafter he made an effort to use the building for commercial purposes and was refused; that he permanently abandoned any intent to use the property other than for residential purposes; and that since the owner abandoned it for residential purposes the decision of the City Building Inspector and the Board to the effect that non-conforming use still existed was illegal and should be set aside. (2) There was no authority in the zoning ordinance for the Building Inspector to render a general decision to the effect that the property in question was entitled to be designated as a valid, subsisting, non-conforming use. (3) This ordinance does not authorize a change in non-conforming use and since the record shows that Alagood proposed to use the property for a flower shop, and since the property had never been used for a flower shop, the evidence showing that the previous non-conforming use was a cafe or grocery store, the designation by the Building Inspector of the property as a valid, non-conforming use so as to permit the alteration or use of such property for a flower shop was unauthorized. (4) Since the record showed without dispute that before Rowton purchased his property across the street (and built his home), he inquired of W. R. Holt, the then owner of the Alagood property, as to the use and intended uses of such property, and Holt represented that the property was for residential use only and could not be used for commercial purposes, and since Rowton purchased the property across the street for a home, W. R. Holt and those claiming under him are now estopped to deny that any non-conforming commercial use of the property has been discontinued and abandoned. (5) The trial court erred in rendering his decision solely upon the record of the proceedings before the Board and in denying appellant the right to place his witnesses on the stand and present evidence in the ordinary manner in a trial in the district court.

There was no request for findings of fact and conclusions of law and none was filed. In the decree we find this statement: 'And the court after having heard the pleadings and after considering the original papers acted upon by the Board of Adjustment of the City of Waco, and the verified return of the Board of Adjustment of the City of Waco, and the adoption thereof by the other defendants (respondents) and the written briefs and arguments of counsel for all the parties, and it appearing to the court upon the hearing that testimony was not necessary to a proper disposition of the matter, is of the opinion and it is hereby ordered, adjudged and decreed, that the decision of the Board of Adjustment of the City of Waco * * * be and it is hereby affirmed.' The decree of affirmance by the trial court is necessarily based upon the fact that the evidence tendered was sufficient to support the implied finding of the Board to the effect that the non-conforming use had not been abandoned and that the doctrine of estoppel in favor of Rowton was not tendered by the evidence. We have carefully considered the original papers presented to the Board and the transcript of the proceedings made by the reporter at said hearing, and we are of the...