Weaver v. Ham
| Decision Date | 12 July 1950 |
| Docket Number | No. A-2606,A-2606 |
| Citation | 149 Tex. 309,232 S.W.2d 704 |
| Parties | WEAVER et al. v. HAM et al. |
| Court | Texas Supreme Court |
Parker, Smith & Rice (W. R. Smith, Jr.), San Antonio, for petitioner.
Maverick, Putman & Putman (Maury Maverick), San Antonio, for Roy S. Ham and Eva Rosow.
Hugh R. Robertson, Assistant City Attorney, San Antonio, for City of San Antonio.
This suit involves an amendatory ordinance adopted by the City of San Antonio no November 4, 1948, which amended the basic zoning ordinance adopted by the City of San Antonio on November 3, 1938. By the amendatory ordinance Block A-54, at the corner of McCullough Avenue and Bushnell Avenue, was changed from a Zone A single family residence district to a Zone D apartment house district.
Frances S. Weaver and others brought this suit against Roy L. Ham and others to annul and cancel the amendatory ordinance. The case was tried before the court without a jury, and the trial court rendered judgment annulling the amendatory ordinance and permanently enjoining the defendants from acting in any manner under the amendatory ordinance. The Court of Civil Appeals reversed the judgment of the trial court, and held that the amendatory ordinance was valid. 277 S.W.2d 286.
Petitioners attack the validity of the amendatory ordinance on numerous grounds, but the following are the principal ones:
1. That the amendatory ordinance is null and void because at the time of its passage the City Commission did not have any substantial evidence before it to justify the change in zoning purposes or uses of said Block A-54 as prescribed in the original zoning ordinance of November 3, 1938.
2. That the said amendatory ordinance constituted 'spot zoning,' and was unconstitutional and void, in that it was arbitrary and unreasonable, and had no substantial relation to the public health, safety, morals, or general welfare.
3. That if respondents Ham and Rosow are permitted to pursue the proposed enterprise of erecting a large apartment house, it would destroy the desirability for single private home purposes of the entire section of the City in which petitioners reside, would serve only the private interests of said Ham and Rosow, and would be detrimental to the interests of petitioners herein and the general public.
4. That there has been no substantial change of conditions in or near the neighborhood where the change is requested since the enactment of the original zoning ordinance, which would warrant the 'spot zoning' of Block A-54 and changing it from Zone A to Zone D.
Upon request the trial court made and filed its findings of fact and conclusions and law, and since they are very lengthy, only a summary of the controlling facts will be set out. The trial court found:
That on November 3, 1938, the City of San Antonio, acting through its Commission, duly passed and approved a comprehensive zoning ordinance, pursuant to the provisions of Articles 1011a to 1011j, inclusive, of Vernon's Revised Civil Statutes; that the ordinance provided for the division of the city into serveral types of districts, including three designated respectively as: A, single family residence districts; D, apartment house districts; and B, residence districts.
That Zone A was defined in Section 3 of said ordinance, which provided: 'In the A Single Family Residence District no buildings or land shall be used and no building shall be hereafter erected or structurally altered which is arranged or designed to be used for other than one or more of the following uses: (1) One-Family Dwelling; (2) Public Park or Play Ground; (3) Accessory buildings will be permitted, * * *.' (It contained other provisions not relevant here.)
That Zone B was defined in Section 4 of said basic ordinance, which provided:
That Zone D was defined in Section 5, jointly with Zones C and E, as follows: (And several other purposes, which are not relevant here.) (7) Multiple Dwellings, Apartment Houses or Group Houses, not including tourist or trailer camps, courts or lodges.'
The trial court further found that at the time of the adoption of said basic ordinance all structures in said Zone A district were one-family dwellings and their accessory buildings, with the exception of approximately four apartment house structures, and that Section 10 of said basic ordinance provided for these nonconforming uses.
The court found that by virtue of said Zoning Ordinance of November 3, 1938, all of the properties now respectively owned by petitioners and partly owned by respondents Ham and Rosow, including all of Block A-54, lay within the Zone A District; further, that Block A-54 is a tract of land near the center of the Zone A District, and is surrounded by said Zone A District; that Roy A. Ham and Eva Rosow own a vacant lot, 150 by 300 feet, out of said block, being about one-fifth of said Block A-54, and that the remainder of said Block A-54 is owned by two of the petitioners who opposed the passage of the amendatory ordinance.
It was found by the trial court that the tract of vacant land belonging to Ham and Rosow in Block A-54 is located at the corner of the intersection of McCullough Avenue and Bushnell Avenue, being one of the principal arteries of the City; that McCullough Avenue has been widened since the adoption of the basic ordinance, and that three blocks north of the Zone A District, up McCullough Avenue and lying north of Hildebrand Avenue, is located a commercial district; that the part of this commercial district lying east of McCullough Avenue was designated as commercial by the basic ordinance, and the part of same lying west of McCullough Avenue has been classified as commercial by subsequent amendment; that approximately one and one-half miles to the south of said Block A-54, McCullough Avenue at the time of the trial of this case was being extended through and into Kenton Avenue, then into Fifth Street, and ultimately crossing Broadway, Houston, and Commerce Streets; that since the date of the enactment of the basic ordinance the population of the City of San Antonio has about doubled, and there is now, and has been for some time, a strong demand for apartments and other kinds of places of human habitation, and that there are suitable apartment house sites within the Zone D District; that the vacant lot of Ham and Rosow has available all utilities such as transportation, water, lights, telephone, and paved streets.
The trial court found that on or about November 4, 1948, at the request of respondents Ham and Rosow, the City Commission passed and approved an amendment to said Zoning Ordinance, purporting to change the whole of said Block A-54 from a Zone A Family Residence Zone to a D Apartment Zone.
It was found that the basic ordinance at the time it was enacted bore substantial relation to the health, safety, morals, and general welfare of the community; that following the date of the enactment of the amendatory ordinance to the date of the trial there was no substantial change in the character of the Zone A District, or in the character of the structures therein, or of the uses thereof; that in the interval between the enactment of said two ordinances and the trial of the case no new structures were erected in the Zone A District, other than additional one-family dwellings, and that there was no change in the use of any property therein in violation of the basic ordinance. It was also found that there was no substantial evidence at the hearing which justified a change in the zoning properties or the uses of said Block A-54 from those prescribed by the basic ordinance; that the undisputed evidence was that the amendatory ordinance did not in fact bear any substantial relation to the public health, safety, morals, or general welfare; that there was no substantial evidence at the hearing that a change of the zoning classification of Block A-54 was demanded in the interest of the health, safety, morals, or general welfare of the community; and that no fairly debatable issue was raised by the evidence, either at the hearing or before the court, that would sustain the amendatory ordinance as being substantially in the interest of the health, safety, morals, or general welfare of the public.
The trial court found that the amendatory ordinance creates a small and unwarranted Zone D island in the center of the said Zone A District, which 'constitutes unjustifiable spot zoning.' The court then found, as a matter of law, that the action of the City of San Antonio, by and through its City Commission, constituted an abuse of its discretion; that the amendatory ordinance is arbitrary and unreasonable; that same is not substantially in the interest of nor to promote the health, safety, morals, or general welfare of the community; that the enactment of the amendatory ordinance was not within the scope of the police power of the City, and that the same is...
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