Swain v. Board of Adjustment of City of University Park

• Decision Date: 27 September 1968
• Docket Number: No. 17125,17125
• Parties: Jack R. SWAIN et al., Appellants, v. BOARD OF ADJUSTMENT OF the CITY OF UNIVERSITY PARK, Texas, et al., Appellees. . Dallas
• Court: Texas Court of Appeals

Page 727

433 S.W.2d 727

Jack R. SWAIN et al., Appellants, v. BOARD OF ADJUSTMENT OF the CITY OF UNIVERSITY PARK, Texas et al., Appellees.

No. 17125.

Court of Civil Appeals of Texas Dallas.

Sept. 27, 1968.

Rehearing Denied Oct. 25, 1968.

Duncan Boeckman, of Golden, Burrow, Potts & Boeckman, Dallas, for appellants.

Dick P. Wood, Dallas, for appellees.

CLAUDE WILLIAMS, Justice.

This is an appeal from a summary judgment denying a variance of a zoning ordinance and upholding an order of the Board of Adjustment of the City of University Park directing the discontinuance of use of the property in question as a gasoline filling station.

The material antecedent facts are without dispute. The subject property is located at 5801 Hillcrest in the City of University Park, Texas and being the northwest corner of the intersection of Hillcrest Boulevard and Potomac Avenue. On December 17, 1929 the City of University Park, a general law city of the State of Texas, enacted a comprehensive zoning ordinance pursuant to authority of Articles 1011a-1011j, Vernon's Ann.Civ.St. of Texas, and by the terms of said ordinance the City was divided into separate areas for businesses, apartments and private residences. The real estate in question was in an area restricted to apartments and the ordinance specifically provided that no buildings should be erected in the area to be used for other purposes than those designated. Gasoline filling stations were restricted to retail business districts. The ordinance created, by authority of Art. 1011g, V.A.C.S., a Board of Adjustment having the powers granted by and expressed in the terms of the statute.

In 1933 the property was owned by Edward T. Moore, who filed an application with the Board of Adjustment for a permit to build a filling station on the land. Following a hearing before the Board the application was first denied but later granted. Thereafter Mr. Moore completed the construction of a filling station on the property and operated or permitted the same to be used and operated as a business of selling gasoline, oils, and allied products.

On September 18, 1940 the City Council of the City of University Park enacted another comprehensive zoning ordinance in which the property in question was set aside as a two-family dwelling district . By the specific terms of this ordinance the operation of any 'business, trade or professional practice on the premises' was prohibited within the single-family and two-family residence area. As to nonconforming uses and extinguishment thereof, the ordinance provided:

'All buildings located in the 'A' Single-Family Dwelling District, 'B' Single-Family Dwelling District, 'C' Two-Family Dwelling District or 'D' Apartment District, that are used as a nonconforming use for commercial or industrial purposes at the time of the passage of this Ordinance shall be removed or converted and their premises thereafter devoted to uses permitted in the district in which they are located prior to the first day of January, 1965.'

Thereafter, on October 20, 1952, the City adopted its present ordinance and again specified that the property in question would be in a 'C' two-family dwelling district. The ordinance contained the same provision with reference to extinguishment of nonconforming uses, as above quoted, with the exception that the word 'business' was included immediately before the word 'commercial'.

On April 26, 1954 Mr. Jack Swain, one of appellants, purchased the property but admittedly did not personally investigate or cause to be investigated the terms of the zoning laws prior to the time he acquired same. Thereafter Dunlap-Swain Tire Company, Inc., the other appellant, operated the filling station as lessee thereof, selling gasoline, oil, tires and allied products. On January 6, 1965 the City Engineer of the City of University Park addressed a letter to Mr. Swain in which formal notice was given that the property in question was being used in violation of ordinances of the City of University Park and directing that necessary steps be taken to comply with the section of the ordinance providing for the discontinuance of nonconforming use. On January 9, 1965 Jack R. Swain and Dunlap-Swain Tire Co., Inc. filed a petition with the Board of Adjustment of the City of University Park in which they prayed that the order of the City Engineer be overruled and, in the alternative, that the Board grant to the applicants a variance from the terms of the comprehensive zoning ordinance so as to allow the property to be continued in use as a business. The Board heard the proponents and opponents of the application and rendered its decision that a literal enforcement of the zoning ordinance with reference to discontinuance of the nonconforming use would not result in unnecessary hardship to applicants and that the granting of the application for variance would be contrary to the spirit of the zoning ordinance. Accordingly the Board denied the request for a variance and ordered that the gasoline service station be removed from the premises in question.

Following this decision of the Board appellants filed their petition for certiorari in the district court of Dallas County. The Board and the City of University Park complied by filing the entire record of the matter with the court. Thereafter the City and its Board filed a motion for summary judgment, supported by the statement of facts of the proceedings held before the Board of Adjustment, together with other documentary summary judgment evidence. Appellants also filed their motion for summary judgment. The trial court granted the motion of appellees and rendered judgment upholding the action of the Board of Adjustment and denying appellants any relief. From this judgment appellants have perfected this appeal. We affirm.

OPINION

Consideration and resolution of appellants' points of error assailing the legality of the order of the Board of Adjustment is governed by firmly established rules which were enumerated by us in Jacobson v. Preston Forest Shopping Center, Inc., 359 S.W.2d 156 (Tex.Civ.App., Dallas 1962, writ ref'd n. r. e.). Briefly, these governing legal principles may be summarized: (1) The only question which may be properly raised in a review of the decision of the Board of Adjustment by writ of certiorari is that of the legality of the board's order; (2) a legal presumption exists in favor of the board's order and the burden of proof to establish its illegality rests upon those who attempt to overcome its presumption of validity; (3) the principal issue on appeal from such order of the board is whether or not there is any substantial evidence affording reasonable support for the findings and order entered, such being a question of law, and not one of fact. If the evidence before the court, as a whole, is such that reasonable minds could have reached the conclusion that the board must have reached in order to justify its action, then the order must be sustained. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67 (1945); Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420 (1946).

Both before the Board of Adjustment and this court appellants vigorously contend that since the Board granted to their predecessor in title an exception authorizing the erection and use of the property as a filling station in 1933, such property did not fall within the category of a nonconforming use at the time of the passage of the comprehensive zoning ordinance in 1940, and again in 1952, which is now sought to be enforced by the City. Appellants argue that the ordinance now sought to be enforced, even if valid, only applies to nonconforming uses and since the City itself, acting through its agency, had previously granted an exception to the use of the property such action removed the subject property from the classification of nonconforming use. The position taken by appellants postulates the legality of the action of the Board in granting the original permit in 1933.

The term 'nonconforming use' as used in the law of zoning has been defined as the use of land or buildings that existed legally when the zoning restriction became effective and that has continued to exist since that time. 63 Tex.Jur.2d, Zoning, § 110, p. 875; Town of Highland Park v. Marshall, 235 S.W.2d 658 (Tex.Civ.App., Dallas 1950, writ ref'd n. r. e.).

Variances and exceptions are distinguishable from nonconforming uses. The owner of a lawful nonconforming use existing at the time of the enactment of the zoning ordinance is said to have the right to continue that use, subject to exceptions hereinafter noted.

'On the other hand, a use or structure that may be authorized as a special exception to the zoning ordinance is one not in existence at the time the ordinance was passed and that is prohibited by the ordinance without first procuring a permit authorizing it after a showing of facts necessary to warrant its issuance Within the specific exception provision of the applicable regulation. Similarly, a variance of a zoning regulation is authorized to permit a use not in existence at the time the zoning ordinance was passed and that is prohibited by the ordinance after a showing that owing to special conditions, a literal enforcement of the zoning ordinance would result in unnecessary hardship.' (Emphasis supplied.) 63 Tex.Jur.2d, Zoning, § 127, p. 900.

The City of University Park is confined in its exercise of power to pass a comprehensive zoning ordinance to the express authority granted it by the Legislature. This authority is found in Articles 1011a et seq., V.A.C.S. Art. 1011c, V.A.C.S., states the purposes of such regulations as being, Inter alia, to promote health and the general welfare of the community. It is expressly provided that:

'Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a...