Smart v. Lloyd, 7512

• Decision Date: 13 August 1963
• Docket Number: No. 7512,7512
• Citation: 370 S.W.2d 245
• Parties: A. C. SMART and Harold Stringer, Administrator of the Estate of Earl Story, Appellants, v. John J. LLOYD, Appellee.
• Court: Texas Court of Appeals

Page 245

370 S.W.2d 245

A. C. SMART and Harold Stringer, Administrator of the Estate of Earl Story, Appellants, v. John J. LLOYD, Appellee.

No. 7512.

Court of Civil Appeals of Texas, Texarkana.

Aug. 13, 1963.

Rehearing Denied Sept. 10, 1963.

Charles H. Clark: Lawrence & Lawrence, Tyler, for appellants.

Clapp & Beall, Henry L. McGee, Jr., Tyler, for appellee.

CHADICK, Chief Justice.

This is an appeal from an order granting a temporary injunction. The order is affirmed.

The appellant's brief referring to this appeal says, 'The question before the court is whether the City Commission can act upon the zoning change without first having received a recommendation from the City Plan Commission'. The narration of the facts will be restricted to those having relevancy to this question as far as practicable.

The owners of adjoining lots in the City of Tyler, Texas, filed a joint application with Tyler's City Plan Commission to amend Tyler's existing Master Zoning Ordinance to change the zoning of their two lots, 1-B and 2-B, Block 1010 South Broadway Addition, 'from 'R-1a' Residential District to 'R-3' Apartment District * * *.' The application was considered November 1, 1962, and was 'tabled for further study untile the next regular meeting * * *'. The Minutes of a regular meeting of the Plan Commission held Dec. 6, 1962, shows that an application for an identical change upon property of the same description was considered. This extract from the Minutes of this latter meeting is quoted to show a slight change made in the course of the hearing respecting the property considered, action taken by the Plan Commission, and other relevant aspects of the business transacted at that time.

(Quote) 'Mr. H. F. Ezell reiterated to the City Plan Commission statements made at a previous hearing and added that changes have been made in their plans in an attempt to eliminate the reasons for protest.

'Mr. Ezell requested that the application be reduced by 120 ft. on the east, extending from Colgate Avenue West, where he proposes to construct residences on the West side of Colgate Avenue to equal or exceed the homes in the vicinity, by doing so the number of apartments will be reduced by 25. He also stated * * *.

'Commissioner Caldwell moved that the application be rejected, since the change would result in spot zoning and this commission does not have the legal right to spot zone unless there is a public necessity for an apartment house in this location, and in his opinion no public necessity exists; further that in his opinion the zoning ordinance is so written that if the property is zoned for apartments a tourist court could be built under the same zoning classification; further that in the last 3 years there have been zoned 7 pieces of property for apartments and not one apartment has been built to date; further that land suitable and zoned for apartments is available all over Tyler at this time; further if applications of this nature are granted the City will be in a mess and courts could throw out the Zoning Board.

'The motion died for lack of a second.

'Commissioner Stringer disqualified himself from voting since he is the Administrator of the Estate of Earl Story, one of the applicants.

'Commissioner Leon Kent also disqualified himself from voting since he has a financial interest in a house in this area.

'Commissioner Burton requested of the Asst. City Attorney if a tourist court could be built in the same zoning classification as an apartment house, since the Zoning Ordinance states that a motel or hotel is classified as 'C-2' General Commercial District.

'Asst. City Attorney Henry L. McGee stated that there is some question regarding the definition of a multiple dwelling as defined in the Zoning Ordinance.

'Commissioner Burton moved that the City Plan Commission recommend to the City Commission that the application be approved, since zoning for similar apartments was granted directly across South Broadway, and in view of the fact that Mr. Ezell has agreed to construct residences on the West side of Colgate Avenue.

'This motion died for lack of a second.

'Due to the lack of a second for either motion, Chairman Kay stated that the City Plan Commission has no recommendation to make to the City Commission on this application.

'The applicants then asked what steps they should take in order to get approval or rejection for their application.

'The City Plan Commissioners requested a written opinion from the City Attorney's office as to whether or not the Commission can take action on a zoning application without first receiving a recommendation from the City Plan Commission, and requested an opinion regarding the zoning classification of apartments and tourist courts.'

The owner of one of the lots included in the application appeared before the Tyler City Commission the following day and advised the Commission of the zoning dilemma he considered himself to be in and thereafter discussed his problems with unidentified members of the Commission at various times prior to January 4, 1963. On the last mentioned date a regular session of the Tyler City Commission, by unanimous vote, enacted an amendment to the existing zoning ordinance, which changed the zoning designation applicable to the two lots, except 125 feet off the east end of each, from 'R-1a' Residential District to 'R-3' Apartment District.

The City Secretary, who serves also as Secretary of the City Plan Commission,...