Urban Renewal Agency of City of Austin v. Georgetown Sav. & Loan Ass'n, 12118

• Decision Date: 24 April 1974
• Docket Number: No. 12118,12118
• Citation: 509 S.W.2d 419
• Parties: URBAN RENEWAL AGENCY OF the CITY OF AUSTIN, Appellant, v. GEORGETOWN SAVINGS AND LOAN ASSOCIATION et al., Appellees.
• Court: Texas Court of Appeals

Page 419

509 S.W.2d 419

URBAN RENEWAL AGENCY OF the CITY OF AUSTIN, Appellant, v. GEORGETOWN SAVINGS AND LOAN ASSOCIATION et al., Appellees.

No. 12118.

Court of Civil Appeals of Texas,

Austin.

April 24, 1974.

Rehearing Denied May 15, 1974.

Paul D. Jones, Johnson, Jones & Sheppard, Austin, for appellant.

Douglass D. Hearne, Stayton, Maloney, Black, Hearne & Babb, Austin, for appellees.

PHILLIPS, Chief Justice.

The Urban Renewal Agency of the City of Austin sought to condemn a tract of land owned by Georgetown Savings and Loan Association subject to a contract of sale with Pat Cain and Wayne D. Rodgers. The trial court rendered judgment vesting title to the property in the Urban Renewal Agency (hereinafter referred to as the Agency), and awarded the appellees $31,500 based on the jury's answer to special issues. The appellant Agency has duly perfected its appeal to this Court. We reverse the judgment and remand the cause for a new trial.

I.

Appellant is before us on twenty-six points of error which present three main questions.

The first question is whether the court erred in admitting the testimony of appellees' witness concerning the proposed uses of the subject property which were prohibited by a building code of the City of Austin. We hold that the admission of the testimony under the circumstances, hereinafter described, was error.

The lot in question has a total of 8832 square feet of which nearly 7300 square feet, or approximately 82% Of the area, is within the bed and banks of Waller Creek. The entire width of Waller Creek crosses this property diagonally from the northwest to the southeast, and the south boundary line of this property is within the banks of Waller Creek. This lot is located at the northwest corner of East 14th and Neches Streets. Where the south property line of the lot coincides with the north right-of-way line of East 14th Street, the middle of Waller Creek is about 16 feet below the street level and the traffic level of a concrete bridge traversing the creek. The only access the property has to any street is a distance of approximately 72 feet along unpaved Neches Street extending southerly from the northeast corner of the lot. At the time of taking a frame structure was situated on the 1500 square feet of the property not within the creek, which, according to both appraisers for the appellees, had no value. Neches Street, along the east side of the property, is unpaved, uncurbed, and dead-ends at East 14th Street where it encounters Waller Creek. The property was zoned for 'B' Residence use.

Appellees' case was centered on the proposition that the entire tract was suitable for use and development as an office site. Throughout the presentation of appellees' case, this was the assumption made, and it was on the basis of this assumption that appellees' witnesses testified as to the market value of the tract.

Section 29-2 of the Austin City Code of 1967 states: 'It shall be unlawful for any person to place, or cause to be placed, any obstruction of any kind in any creek, branch, drainway or watercourse within the city.' Although this restriction is not a zoning ordinance, it falls within the same general type of regulation as zoning and, as such, is unquestionably an exercise of the police power of the City. Consequently, the appellees were under the burden of proving the Probability that the restriction would be lifted by the City and that they would be allowed to place the building, or a portion thereof, in the creek bed. City of Houston v. Johnny Frank's Auto Parts Co., 480 S.W .2d 774 (Tex.Civ.App.1972, writ ref. n. r. e.); City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954). The record discloses that the appellees offered no evidence to show a reasonable probability that the construction restrictions imposed by Section 29-2 of the Austin City Code of 1967 would be changed to accommodate use of the creek bed for an office building.

II.

The second question presented by this appeal is whether the court erred in admitting preliminary drawings of a proposed office building for the lot where the drawings were objected to as being purely speculative. We hold that the admission of the drawings under the hereinafter described circumstances was error.

Appellees' witness Stahl, an architect, was allowed to testify at length concerning plans for an office structure to be built on piers placed in the bed of the creek. However, he testified that nothing had been done to develop the property except the preparation of these preliminary rough sketches which were shown to the jury as evidence that the property was suitable for the proposed office building. The error of admitting these sketches to show the highest and best use of the property is in the fact that the feasibility of using the creek bed for the building, or any part thereof, was not reasonably proved. The evidence discloses that the Director of the City Department of Engineering, whose duty it is to review plans for construction around waterways, testified that the City Code, Section 29-2, was intended not only to protect occupants of the property in question, but also those upstream, downstream, and in the area that might be affected by any change in the flow of water along the channel of the creek. The witness testified that to make any alteration in a creek of the magnitude of Waller Creek, a detailed study by a professional engineer competent to practice in the field of hydrology must be submitted and approved by the City. Consequently, under the present state of the record, it has not been shown from an engineering view point that it is feasible to erect an office building on the site. The proposed office building then falls under the 'wholly speculative nature' of the evidence proscribed...