Thompson v. City of Palestine, B

• Citation: 510 S.W.2d 579
• Decision Date: 05 June 1974
• Docket Number: No. B,B
• Parties: Harry THOMPSON et al., Petitioners, v. CITY OF PALESTINE et al., Respondents. --4398.
• Court: Supreme Court of Texas

Page 579

510 S.W.2d 579

Harry THOMPSON et al., Petitioners, v. CITY OF PALESTINE et al., Respondents.

No. B.--4398.

Supreme Court of Texas.

June 5, 1974.

Paxton, Whitaker & Parsons, Melvin D. Whitaker, Palestine, for petitioners.

A. D. Henderson, Palestine, for respondents.

DANIEL, Justice.

Petitioners are neighborhood property owners who appeal from judgments in favor of the City of Palestine upholding the validity of an amendatory zoning ordinance. As plaintiffs below, Harry L. Thompson, et al, sought to have the City's Ordinance No. 36--72, declared void and to enjoin its enforcement on the grounds that its attempted rezoning of a 4.1 acre tract within an area previously zoned for residential purposes amounted to proscribed spot zoning. The owner of the tract, and holders of an option to purchase it, intervened as defendants and sought to uphold the rezoning.

The trial court, sitting without a jury, denied the relief sought by plaintiffs. No findings of fact or conclusions of law were made. The Court of Civil Appeals affirmed. 502 S.W.2d 570. We reverse the judgments of the courts below and render judgment in favor of plaintiffs.

The facts are fully set forth in the opinion of the Court of Civil Appeals. We shall summarize rather than repeat them in detail. On September 26, 1960, the City of Palestine enacted Ordinance No. 23--60 as its basic comprehensive zoning ordinance. The property at issue is a 4.1 acre tract, rectangular in shape, at the intersection of Crockett Road and Huffsmith Street bounded on the north by Huffsmith Street and on the east by Crockett Road, which is also U.S. Highway 287 and State Highway 19. It is generally located in the southwest part of the southeast quadrant of the City, which area (including the tract at issue) was almost totally zoned for residential purposes by the 1960 ordinance. The tract is in the largest single residential area, which contains the nicer homes of the City. In 1960, two houses were located on the tract in question. They were removed by the owner in 1963. The tract is now vacant, and there was testimony on behalf of the City that it is not now suitable for residential purposes; that its highest and best use now is commercial; and that a proposed shopping center at the location would be a convenience to the surrounding residential area.

Although Crockett Road was in 1960, and is now, a heavily traveled State and Federal highway running in a northerly direction through this residentially zoned area, there are no non-conforming uses in the area except a church which predated the 1960 zoning, and a small beauty shop operated from a residence on a side street which intersects Crockett Road five blocks north of the tract in question. Surrounding the tract are residences for seven blocks to the north, five to six blocks west, ten to twelve blocks east, and six blocks south. Immediately to the north, across Huffsmith Street is a group of trees on a corner lot which lies between Huffsmith and the residence of one of the plaintiffs.

This is the third attempt to rezone the tract in question for commercial purposes. The first was an abortive attempt in 1965. Then on December 9, 1968, the original comprehensive zoning ordinance was amended, for the stated purpose of establishing a new comprehensive zoning plan. It left as residential the area surrounding the tract in question but purported to rezone the 4.1 acres as 'PD--NS--2,' being an abbreviation for Planned Development District-Neighborhood Service. In July of 1972 the District Court of Anderson County held the 1968 ordinance void insofar as it affected the 4.1 acre tract on the basis of inadequate notice, and held that the tract was still 'residential' under the City's 1960 comprehensive zoning ordinance. On August 17, 1972, the City passed the ordinance now in controversy, once again designating the tract as 'PD--NS--2,' under which the Court of Civil Appeals notes that it could be put to approximately 101 possible uses, ranging from multi-family dwellings and trailer camp or mobile home park to a warehouse or office center. At the time of trial, the City had approved the owners' plans for a shopping center on the tract.

At the outset it should be noted that this Court has consistently recognized that the adoption of a zoning ordinance by a city's governing body in accordance with Article 1011a et seq., is an exercise of its legislative discretion and therefore is presumed to be valid. ¹ City of University Park v. Benners, 485 S.W.2d 773 (Tex.1972); Hunt v. City of San Antonio, 462 S.W.2d 536 (Tex.1971); City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955). We have also held that an 'extraordinary burden' rests on the party attacking the ordinance to show that no conclusive or even controversial issuable facts or conditions exist which would authorize the City Council to exercise the discretion confided to it, and that if reasonable minds may differ as to whether or not a particular zoning ordinance has a substantial relationship to the public health, safety, morals or general welfare, no clear abuse of discretion is shown and the ordinance must...