HomeMy WebLinkAbout1984
Law
LL I
f ~
CITY F D.,V
} TON; TcXAS
OFFICE THE CITY AT i oPANEY
:
C.J. Taylor, Jr., City Attornev KE.NORANDU,u
Joe D. Morris, Assistant Clty Attorney
Robert B. ixunter,. trtant City Attorney AL 1 T 1984
1
DATE: July 17, 1984
TO: Mayor and Members of City Council
G. Chris Hartung, City Manager
FROM: Robert Hunter, AssiFtant City Attorney
SUBJECT: John Narsutis and Jim Neal, Jr., Vs. City of Denton,
Joe Alford, Mark Chew, Jim Riddlesperger, Ray
Stephens and Richard Stewart
As you recall, John Narsutis appealed the above-referenced
case to the Court of Appeals in Fort Worth after we obtained a
judgment in the trial court upbolding the Council's refusal to
rezone his property from single family to duplex use. We have now
filed our Appellees' Brief, a copy of which is provided for your
review. Please be advised that oral argument in this case is
scheduled for October 31 1984, at 9:00 a.m. in Decatur before
Associate Justices Hughes, Jordan and Ashworth.
ROBERT B. HUNTER
RBH:ab
Attachment
1 •
NO. 02-84-00028-CV
IN THE COURT OF APPEALS
FOR THE
SECOND SUPREME JUDICIAL DISTRICT OF TEXAS
FORT WORTH, TEXAS
JOHN NARSUTIS A'.JD JIM NEALE, JR.,
Appellants
VS.
CITY OF DENTON, Jr. RIDDLESP£RGER, MARK CHEST,
JOE ALFORD, RiCHA.~D STEWART AND RAY STEPHENS
Appellees
Appealed iron the 158th DiStrict Court
Linton County, Texas
BRIEF FOR APPELLEES
C. J, TAYLOR, JR.
j - CI'.:'Y ATTORNEY
STATE BAR Il0_._ 19736000
E D . XORR IS SISTAI4T CITY ATTORNEY
CA
-•.A1'S. BAY. N7 1$5~~0
/ROBERT B. HLNTER
/ ASSISTANT CITY ATTORNEY
STATE -EAR--i-IU.__103016.=
® 215 EAST PICKINNEY STREET
DENTON, TEXAS 76201
(317) 556-8333
ATTORNEYS FOR APPELLEES
CITY OF DENTON, TEXAS
NAMES OF INTERESTED PARTIES
APPELLANTS:
John Narsutis
Jim Neale, Jr.
APPELLEES:
City of Denton, Texas
Joe Alford
Mark Chew
Jim Riddlesperger
Ray Stephens
Richara Stewart
i
SUBJECT INDLEX
PACE
Names of Parties , • ,
This index , , , , ,
. . . . . . . . . .
.
Cross Index ,
• Vi ,
List of Authorities
• . . . . . . . . . . . .
• iv
Statement of the Case , , , ,
Preliminary Statement of Facts . ,
A. Description of The Property , , , ,
3
B. Zoning 0= The Property , , , , • • • . .
C. Decision Of .he City council , ,
Reply Point No. 1 (Court Correctly Found that
City Council Did Not Act
Arbitrarily, Capriciously
Or Unreasonably) , , , 1
Restated . , , ,
Statement, Argument and Authorities . • , , , , •
7
Reply Point No, 2 (Court Correctly Found Zoning
Ordinance Not Arbitrary
Nor Unrea::onable) , , , , • •
. 1
Restated • , , , • ,
Statement, Argument and Authorities . • , , , • • .
1'
Reply Point No, 3 (Court Correctly Refused
To Award Darraaes . , , , , • . ,
• 2
Restated ,
• 22
Statement, Argument and Authorities , , , , , • -
• 22
i. i
SUBJECT 7NDEX
PAGE
Reply Point No. 4 (Court Correctly Refused To
Award Attorneys Fee: . . , , , , , , , 2
Restated . . . . . . . . . . . . . . . . 25
Statement, Argument and Authorities . , • , , , 25
Conclusion . . . . . . . 27
. . . . . . . . . . . . . . .
Prayer . . . , , • , 9
Certificate of Service . , , 30
. . . . . . . . . . . . . .
iii
i
LIST OF AUT%ORITIES
Page Of Page Of
Cases This Brief Appellants' Brief
Agins v. City of Tiburon,
447 U.S. 255, 100 S.Ct. 2138,
65 L. Ed. 2d 106 (1980) . . . . . . . . . 24
Bernard v. City of Bedford, 593 S.W.2d
809 (Tex.Civ.App.---Ft. Worth 1980,
grit ef'd n.r.e. ) . . . . . . . . . . . . 11, 19
Brehmer V. City or Kerrville,
320 S.W.2d 193 (Tex.Civ.App.--
San Antonio 1959, no writ hist.) . . . . . 14 12, 14, 19
City of Bellaire V, Larnkin,
31; S.'W.2d 43 ITex. 1958) . . . . . . . . 8 111 12, 18
City of E1 Paso v. Donahue,
352 S.W.2d 713 (Tex. 1962) . . . . . . . . 23
City of Fort Wort',, v. Johnson,
399 S.W.2d 400 (Tex. 1964) . . . . . . . . 1)
City of Pharr v. Tlppitt,
616 S.W.2d 173 ('Tax. 1981) . . . . . . 15, 16, lip 18, 19
1i', 27, 28,
29
City of Rusk v. Cox, 665 S.'d.2d 233
(Tex.App. 12 Dist. 1984, writ
ref'd n.r.e . . . . . . . . . . . . . . . . 14, 15, 20
City of Waxahachie v. War.kins,
275 S.W.2d 477 (Tex. 1.955) . . . . . . . . 9
City of West. University Place ~,p. ?ilis,
134 S.W.2d 1038 (Tex. 1940; . . . . . . . 12, 13 12, 14, 16
Frost v. Village of Hilzhire village,
403 S.W.2d 8:36 (Tex .Civ.App. --:iouston
1966, writ ref'd n.r.e.) . . . . . . . . . 13, 16 12, 14, 16
Hernandez v. City of Lafayette, 643 F.2d
1188 (5th Cir. 1981) . . . . . , . . . . . 24 14, 16, 21
1iv
Cases Page of Page of
This Brief ARellants' Brief
Hunt Y. City of San Antonio
462 S.W,2d 536 (Tex. 1971) . . . . . . . 8, 14, 16,
17
Leach v. City of North Richland Hills,
627 S.W.2d 854 (Tex-App. 2 Dist.
1982, no writ hist.) . . . . . . . 25
Rimer v. McKinney, 649 S.W.2d 365
(Tex-App. 2 Dist. 1983,
,zo "rit hilt. ) . . . . . 26
Thompson v. City of Palestine, 510 S.W.2d 579
(Tex. 1974) . . . . . . . . . . . . . . . 13 13
• VIe3ver v. Tian, 232 S- .2d 704
(:ex. 1950) . . . . . . . . . . . . . 91 11
STATUTES
Articles 1011a-101le et seq., V.T.C.S. 81 27 11, )2
Article 2524-1, Section 10, V.T.C.S. . . 26
42 U.S.C. 551983 and 2.988 . . . . . . 22, 23
. 26 10, 16?
21, 2'L, 23
t'
CROSS INDEX
Page
Appellants' First Point (Present Zoning is
Confiscatory)
Reply Thereto . . . . . . . . . . . . . . . . . . . . . 1
Reply Restated . . . . . . . . . . . . . . . . . . . 7
Statement, Argument and Authorities . . . . . . . . . . 7
Appellants' Second Point (City Ccuncil Acted
Arbitrarily, Capriciously
Or Unreasonably In Refusing
To Rezone)
Reply Thereto . . . . . . . . . . . . . . . . . . . . . 1
Reply Restated . . . . . . . . . . . . . . . . . . . . 7
• Statement, Argument and Authorities . . . . . . . . . . 7
Appellants' Third Point (Denial Of Due Process
and Equal Protection)
Reply Tn reto . . . . . . . . . . . . . . . . . . . . . 1
Reply Restated . . . . . . . . . . . . . . . . . . . . 7
Statement, Argument and Authorities . . . . . . . . . . 7
Appellants' Fourth Point (Comprehensive Zoning
Ordinance Arbitrary
and Unreasonably)
Reply Thereto . . . . . . . . . . . . . . . . . . . . . 1
Reply Restated . . . . . . . . . . . . . . . . . . . . 17
Statement, Argument and Authorities . . . . . . . . . . 17
Appellants' Fifth Point (Comprehensive Zoning
Ordinance Fails to
Ccmply With Due Process)
Reply Thereto . . . . . . . . . . . . . . I
Reply Restated . . . . . . . 17
Statement, Argument lnd Authorities . . . 17
•
vi
CROSS INDEX
Page
Appellants' Sixth Point (Court Should Have Found
And Awarded Damages As
A Matter Of Fact)
Reply Thereto . . . . . . . . . . . . . . . . . . . . 2
Reply Restated , , , , , , , , , , , , , , , , , , , , 22
Statement, Argument and Authorities . . . . . . . . . 22
Appellants' Seventh Point (Court Shculd Have Found
And Awarded Damages As
A Matter Of Law)
Reply Thereto . , . ,
Reply Restated . . . 22
Statement, Argument and Authorities 22
• Appellants' Eighth Point (Court Should Have Awarder:
Attorney's Fees As a
Matter Of Fact)
Reply Thereto . . . . . . . . . . . . . . . . . . . . 2
Reply Restated . . . . . . . . . . . . . . . . . . . . 25
Statement, Argument and Authorities . . . . . . . . . 26
Appellants' Ninth Point (Court Should Awarded
Attorney's Fees As A
Matter Of Law)
Reply Thereto . . . . . . . . . . . . . . . . . . 2
Reply P.estated . . . . . . . . . . . . . . . . . . . . 25
Statement, Argument and Authorities . . . . . . . . , 26
Appellants' Tenth Point (Court Should Have Awarded
Attorney's Fees Under
42 U.S.C. 51988 And Article
2524-11 §lO, V,T.C.S.)
Reply Thereto . . . . . , , , , , , , , 2
Reply Restated . . . . . . . . . . . . . . . . . . . . 25
Statement, Argument and Authorities . , . , , . 26
vii
• TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellees agree that appellant' statement of the nature and
result or the case is correct.
REPLY POINTS
REPLY POINT NO. 1
(In Reply To Appellants' First, Second And Third Points of
Error)
The Trial court Correctly Found That The Denton City Council Did
Not act arbitrarily, Capriciously Or Unreasonably Nor Deprive
Appellants' Of Their Property Without Due Process Or Equal
Protection Of The Law in Refusing To Rezone Such Property.
REPLY POINT NO. 2
(In Reply To Appellants' Fourth And Fifth Points Of Error)
The Trial Court Correctly Found That Appellants Failed To Prove
That The Comprehensive Zoning Ordinance Of The City Of Denton
Bears No Substantial Relationship To The Health, Safety, Morals
Or General Welfare Of The Community And Therefore Is Not
Arbitrary Or Unr.zasonable Nor Does it Fail To Comply With
Standards Of Due Process Of Law.
BRIEF FOR APPELLEES-PAGE 1
REPLY POINT NO. 3
(In Reply To Appellants' Sixth And Seventh Points Of Error)
The Trial Court Correctly Refused To Award Damages To Appellants
Upon Tine Weight Of The Evidence Arid As A Matter Of Law.
REPLY POINT NO. 4
(In Reply To Appellants' Eighth, Ninth And Tenth Points of
Error)
l~
The Trial Court Correctly Refused To Award Attorney's Fees To
Appellants Both According To The Evidence And As A ;latter Of Law.
i
•
BRIEF FOR APPELLEES-PAGE 2
PRELIMINARY STATEMENT OF PACTS
A. Description Of The Property
Appellants John Narsutis and Jim Neale, Jr., purchased two
adjacent lots situated in the City of Denton in February of 1983.
(S.F. 28, L. 18-22; S.F. 151, L. 3-19) The lots are located in
an older, established neighborhood which is well-kept. (S.F. 193,
L. 1-14) The appellants' property is surrounded by single family
residential homes immediately to the north, east and south and
fronts on a public street, Carroll Boulevard, to the west. (S.F.
158, L. 16-23; S.F. 225, L. 9-11) Approximately one-quarter to
one--eighth of a mile south of appellants' property, Carroll
Boulevard is a major arterial street. (Cite of Denton Thorough-
fare Map, DX1; S.F. 233, L.11 to S.F. 234, L.1) Future plans to
widen and extend Carroll Boulevard north to Highway 77 past the
appellants' property have not been approved due to the need for
a more detailed professional impact study involving, in part,
considerations of neighborhood--environmental protection.
(Denton Development Guide, PX 26, p. 53-54, para e(2); S.F. 234,
L.2 to S.F. 235, L.4) On the other side of Carroll Boulevard
from the subject property there are two churches and a nursing
home in the area and, further to the south, the fair grounds.
• (S.F. 115, L. 16-20) According to the testimony of appellant
eRIEF POR APPELLEES-PAGE 3
Neale, the nursing home Sias built in the early 1960's and the
fair grounds have been there as long as he can remember. (S. F.
77, L. 11-17) Appellants' expect, !)avid Farrington, testified
that from a traffic standpoint, nursing homes and churches are
not considered high intensity uses and that it is not uncommon
at all to find them in Single family residential areas. (S. F.
115, L. 21 to S.E. 116, L. 25)
B. Zoning Of The Propery
in 1969, the City of Denton enacte,i a comprehensive zoning
ordinance (Ordinance No. 19-11 PX 4,7) which aivided the City
into eighteen zoning districts, specifying the uses permissiblea
in each district. Among the districts established were the
designations SF-7, one-family dwelling district for single family
homes and 2-F, two-family dwelling district for duplexes. (PX
27, Article 2) The ordinance was enacted for the expressed
purpose of promoting the health, safety, morals and general
welfare of the City and with a view toward conserving the value
of buildings and encouraging the most approporiate use of land
throughout the City consistent with a comprehensive plan. (PX
27, Article 1) Appellants' expert, David Farrington, testified
the ordinance is a typical zoning ordinance for a city the size
of Denton and he found nothing extremely unreasonable in it.
BRIEF FOR M)PELLEES-PAGE 4
(S.F. 130, L. 1-17) The subject property and the property imme-
diately to the north, west and east was zoned EF-•71 restricting
the use cf the property to single family dwellings. (S.F. 222,
L• 3-10).
When the appellants purchased the subject property in 1983,
they were both aware of the fact that the property was zoned for
single fa.nily residences and that duplexes were not permitted.
(Neale, S.F. 71, L. 12-24; Narsutis, S.F. 152, L. 9•-13) Appel-
lant Neale testified that no one misrepresented to hire that the
property would be zoned for anything other than single family
dwellings. (S.F. 72, L. 8-10) Appellant Narsutis testified he
was not given any information from the City staff that the pro-
perty would be rezoned, nor was he misled by the property owner
or anyone at City Hall. (S.F. 154, L. 2-11) Neale testified
that it is an accepted practice to purchase property subject to
the zoning being changed but that usually the seller: demands a
higher price for the property if he has to retain it until the
property is rezoned; appellants took a chance in purchasing the
property as zoned. (S.F. 72, L. 11-24)
C. Decision of the City Council
Although the City's Planning and community Development
Department and the Planning and Zoning Commission recommended
BRIEF FOR APPELLEES-PAGE 5
approval of appellants' request for a zoning change from single
family to duplex zoning (S. F. 92, L. 15 to S.F. 93, L. 3), the
City Council refused to change the existing zoning by a vote o€
5-2.
Charles S. Watkins, Senior Planner for the City, testified
that the existing zoning of single family on the subject property
is consistent with the comprehensive plan of the City, known a3
the Denton Development Guide. (S.F. 223, L. 14 to S.F. 224, L.
4) One of the basic objectives of the Denton Development Guid(_
is the protection of existing development, particularly residen-
tial development. (PX 26, p. 9, 52(a); S.F. 224, L. 18-22) The
existing development immediately to the north, east, and south
of appellants' property is single family residential. (S.F. 2250,
L. 3-15) The Denton Development Guide gives priority to older,
existing neighborhoods and puts the neighborhood and the public
on notice that zoning stability will be maintained. (PX 26, p.
31, §41 paragraph C.; S.F. 230, L. 3-20) Aayor Stewart testified
that he considered the Denton Development Guide in arriving at
nis decision to retain the existing single family zoning on
appellants' property, specifically with reference to the preser-
vation of existing, older neighborhoods. (S.F. 196, L. 4-24)
Councilmember Alford testified he referred to the Denton Develop-
ment Guide in making his decision, taking into consideration they
BRIEF VCR APPELLEES-PAGE 6
rl~■r - --............mod....... - _ - _ .
fact that the suoject property was in the middle of a singae
family residential Mock. (S.F. 143, L. ).6 to S.F. 143, L. 25)
Other members of the council voting to retrain existing zoning on
the property, cited sucn concerns as traffic, consideraT:ions of
health, the genera configuration of the neighborhood, the
desires of the people living in the area and what was felt to be
good for the health, safety and general welfare of the community.
(S.F. 141, L. 2-1" and S.F. 146, i,. 1-14)
REPLY POINT NO. 1 (RESTATED)
t (In Reply To Appellants' First, Second And Third Points Of
Error)
The Trial Court Correctly Found That The Denton Citv Council
Did Not Act Arbitrarily, Capriciously Or Unreason-b' Nor
De rive A '
_ppellants Of Their. ?ro ert without Due Process Or
Equal Protection Of The Law In Refusing to Rezone Such Proce_rty,
STATEMENT, ARGUMENT AND AUTHORITIES
Unlike the vast majority of zoning cases reported in Texas
in w;-iich property owners have sought to invalidate an ordinance:
rezoning their property oz ocher property in their neighborilcod,
this case involves the refusal of the City Council to rezone
apoellants' property by amending the Cil:y's original zoning
BRIEF FOR APPELLEES-PAGE 7
ordinance. Therefore, appellants focus their attack on Ordinance
No. 69-1, the original comprehensive zoning ordinance of 1969
(PX 27), contending it is arbitrary and unreasonable and that the
City Council was arbitrary and unreasonable in declining to amend
i.t. Appellants, in the Plaintiffs' First Amended Original
Petition (Tr. P. 7) did not ask the trial court to rezone their
property for duplex use; instead they prayed that the City's
.
comprehensive zoninS ordinance be declared void.
The power of the City of Denton to enact its comprehensive
• zoning Ordinance No. 69-1 (PX 27) pursuant to the authority of
l
articles 101la-101le et seq., V.T.C.S., is not questioned.
Neither do appellants complain of any procedural irregularities
in adopting the ordinance. It is a well established legal
principle that a city ordinance is presumed valid and this pre-
sumption of validity applies not only to amendatory ordinances
but to a comprehensive zoning ordinance as well. Hunt v. Cif
of San Antonio, 462 S.W.2d 536, 539 (Tex. 1971). An "extra-
ordinary" burden rests on one attacking the ordinance to show
that no conclusive, or even controversial or issuable fact or
condition existed which would authorize the governing body to
exercise its legislative discretion. City_ of Bellaire v.
Lamkin, 317 S.W.2d 43, 45 (Tex. 1958). A comprehensive zoning
ordinance is law that binds the municipal legislative body
BRIEF FOR APPELLEES-PAGE 8
itself, City of Pharr V. Ti2pitt, 616 S.W.2d 173, 176 {Tex.
1981), and the power to vary the conditions of zoning ordinances
should be sparingly exercised only for the benefit of the public
with due regard foc the preservation of the rights of others
acquired under original zoning ordinances. Weaver v. Ham, 232
S.W.2d 704, 708 (Tex. 1950). The validity of a zoning ordinance
presents a question of law, not a question of fact, and in
i
deciding it the Court should have due regard to all the circum-
stances of the City, the object sougnt to be obtained and the
necessity existing for the ordinance, if there is an issualale
fast as to whether the ordinance :Hakes for the good of the
community, t:ie fact that it may be detrimental to some private
interest ii not material. City of Waxahachie v. Watkins, 275
S.W.2d 477, 481 (Tex. 1955).
Appellants argue that the City has failed to show how the
use of the subject property for duplexes would increase traffic
congestion, adversely affect the value of single family homes
surrounding the property on three sides or wculd be detrimental
to the health, safety, morals and welfare of the community.
They therefore argue that the denial of the request for rezoning
was arbitrary, capricious or unreasonable. The burden of proof,
however, is on the appellants to prove that the existing zoning
ordinance is arbitrary or unreasonable. As the Texas Supreme
BRIEF FOR APPELLEES-PAGE 9
Court stated in the City of Ft. Worth v. Johnson, 384 S.W.2d 400
(Tex. 1964) at 402:
''The Court of Civil Appeals seems to have based its
judgment of affirmance ...(1) because the City failed
to prove that use of the structure in violation of the
ordinance 'would damage it and ?.ts residents in their
health, safety, and welfare'...Tht first ground is
unsound because it fails to take cognizance of the
rule, firmly established in chis State, that a zoning
ordinance, duly adopted pursuant to Art's. 101la-1011k,
is presumed to be valid, and the burden is on one
seeking to prevent its enforcement, whether generally
or as to particular property to prove that the
ordinance is arbitrary or unreasonable in that it
bears no zuostantial relationship to the health,
safety, morals or general welfare of the community."
The City's expert, Charles S. Watkins, Senior Plann r, testi-
fied that the existing zoning of the property as single family
residential is consistent with the Denton Development Guide.
(S.F. 223, L. 14 to S. F. 224, L. 4) The 1981 Denton Development
Guide (PX 26) is not an ordinance but simply a guideline concern-
ing land use in the City. There is no requirerient that the Guide
BRIEF FGR APPELLEES-PAGE 10
•
be adopted by ordinance as a comprehensive land use plan,
Bernard v. City of Bed1ford, 593 S.W.2d 809, 812 (Tex.Civ.
App.--Ft. Worth, 1980, writ ref'd, n.r.e.), and appellants'
expert David Farrington testified that comprehensive or land
use plans should not be adopted by ordinance in order to give
the local governing body more flexibility in its zoning
decisions. (S.F. 119, L. 18 to S.F. 120, L. 20) Appellant
Narsutis testified that the Denton Development Guide is only a
guideline and that ttie City council is not bound to follow it
• in every particular. (S.F. 182, L. 4-13) Although appellants'
t
expert David Farrington testified that use of the sub, lots
Jact
for duplexes would be consistent with the Guide (S.F. 1041 L.
3-13), there was considerable testimony that the existing
zoning of the property is compatible with the Denton Development
Guide. In keeping with the principle expressed by the Texas
Supreme Court in Weaver v. Ham, 232 S.W.2d 704, 708 (Tex. 1950),
the Guide recognizes the need for due regard of the rights of
others acquired under the original zoning ordinance and states
that one of its basic objectives is the protection of existing
development, particularly residential development. (PX 26, p. 9
S2(a); S.F. 224, 18-22) Priority is given to older, existing
neighborhoods to insure and put tk,.e public on notice that zoning
stability will be :iaintained. (PX 26, p. 31 S4(c); (S.F. 230,
BRIEF F09 APPELLEES-PAGE 11
L. 3-20) The Guide states that "the specific policy in terms
of protection of existing single family housing is found on
numerous pages throughout this guide. (PX 26, p. 50, Paragraph
F (1)(6) The Guide encourages maintaining neighborhood integ-
rity (PX 26, P. 27, paragraph B(1)(c); S.F. 228, L. 4-21) and
provides for "good site design transition between housing types'
through 'housing intensity gradation'. (PX 26, p. 28, §B(1)(c);
S.F. 228, L. 19-21) Housing intensity gradation would be
achieved by zoning from lower intensity to higher intensity in
. the same direction, that is, single family homes, then duplexes,
1
then four-plexes, then apartments to commercial. (S.F. 229, L.
1-4) Rezoning two Lots in the middle of a single family resi-
dential neighborhood for duplexes would be inconsistent with
the expressed policy of "housing intensity gradation". Reten-
tion of the single tamely zoning on the two lots owned by
appellants is consistent with the Denton Development Guide.
(S.F. 229, L. 22-24)
In appellants' argument under their points of error 1, 2
and 3, they refer to three tests to determine the validity and
enforceability of an ordinance. (Appellants' Brief, p. 12). It
is unclear from which authority these tests are derived. Appel-
lants cite City of West University Place v. Ellis, 134 S.W.2d
• 1038 (Tex. 1940). The facts in West University Place bear
BRIEF FOR APPELLEES-PAGE 12
little resemblance to the facts in the present case. Unlike
appellants Narsutis acid Neale, who purchased their property with
full. knowledge of the toning restrictions, the property owner in
West University Place acquired the property prior to its zoning
aG single family. Unlike the present case where the subject
property is bounden on three sides by single family residential
homes, the Ellis property was located within a few feet of a
drug store and liquor store to the west and a beauty parlor to
the east. As the Court in Frost v. Village of Hilshire Village,
403 S.W.2d 836, 842 (Tex.Civ.App.--Houston 1966, writ ref'd
n.r.e.) stated, in a case where t.ie property owners sought co
have their property rezoned from residential to commercial, that
the "facts in the instant case in no way place appellants within
the exceptional circumstances shown to exist in the Ellis case.
In Thompson v. City of Palestine, appellants cite to the lower
Court's opinion at 502 S.W.2d 574. While the Court of Civil
Appeals, Tyler, upheld an amendatory ordinance rezoning a tract
of land for commercial use when the area surrounding the tract
was residential, the Texas Supreme Court reversed at 510 S.W.2d
579 (Tex. 1974), holding that the rezoning of a 4.1 acre tract
located in a residential area to permit commercial use was not
justified by the widening of the road through area, change
• in str,.et lighting to commercial type lighting and substantial
BRIEF FOR A2PELLEES-PAGE 13
increase in traffic and that the amendatory ordinance singling
out the tract constituted unjustified spot zoning.
Appellants cite Brehmer v. City of Kerrville, 320 S.W.2d 193
(Tex.Civ.Apo.--San Antonio 1959, no writ hist.) as favorable to
their position. In that case no brief was filed on behalf of
the City of Kerrville nor is there any writ history. Appellees
consider, as more applicable, the later case of Hunt v, City of
San Antonio, 462 S.W.2d 536 (Tex. 1971), in whi::h the Texas
Supreme Court reversed the Court of Civil Appeal; in San Antonio
• and invalidated an ordinance rezoning two) lots in a single family
residential zone for apartment use as imp-open spot zoning. The
facts in Hunt are remarkably similar to tha -resent case as is
illustrated y the diagram provided by the Court at p. 538. In
that case, as in the present case, the two lots were in the
middle of a block with single family homes immediately to the
north, east and south. Across the street were nonresir-ntial
uses: a parking lot, clinic, play grounds and a Jr. High School.
The Supreme Court condemned the City's action in rezoning only
two lots for other than single family use as spoe zoning.
Similarly; in the recent case of City of Rusk v. Cox, 665 S.W.2d
233 (Tex.Apn. 12 fist. 1984, writ ref'd n.r.e.), the Court struck
down an amendatory ordinance which rezoned a 2.7 acre tract from
R--11 single family residential to B-2, general business as spot
BRIEF FOR APPELLEES-PAGE 1r
zoning. In that case the subject property adjoined a meat
processing plant to the north and all other properties on thaw
side of the street. were zoned residential. Across the street
from the subject property to the west the zoning was general
business. Applying the principles set forth in F.harr v.
Tippitt, 616 S.W.2d 173 (Tex. 1981), the Court, citing Just'ce
Pope, stated:
[S]pot zoning occurs when a small tract is rezoned
to permit uses thereon not allcwed on similar s.rrrourid-
. ir.g lands without proof or changes in conditions.
'Spot zoning' is, as stated by the Court, '...piece ,
meal zoning (which is) the antithesis of planned
zoning." City of Rusk v. Ccx, 665 S.W.2d -433, 235
(Tex.App. 12 Dist. 1984, writ ref'd n.r.e.).
Based upon the foregoing authority, had the Derton City
Council voted to rezone appellants' property for duplexes, the
City would have been subject to a s,Jit alleging arbitrary spot
zoning. The appellants' properLy is in the middle of a single
family residential block, surrounded by single family residences
on three sides and a public street to the east. (S.F. 158, r„
16-23; S.F. 225, L. 9-11) The ncnresidential uses in the area
to which appellants refer were in existence prier to the
BRIEF FOR APPELLES-PAGE 15
adoption of the City's comprehensive zoning ordinance 4n 1969
(PX 27). Appellant Neale testified that the nursing home in the
area was built in the early 1960's and "he fairgounds :o the
south of the property have been there as long as he can rememoer.
(S.F. 771 L. 11-17) Churches in the neighborhood are a permissi-
Ole use in a residential addition. Frost v. Village of Hilshire
Village, 403 S.W.2d 836, 840 (Tex.Civ-App .--Houston 1966, writ
re€'d r..r.e.). As the Texas Supreme Ccurt observect in the 'CiLZ
?f_PhL,rr v. Ti itt, 616 s.W.2d 173 (Tex. 1981);
'Amendatory ordinances which have rezonea a single city
lot when there have been no intervening changes or
other saving characteristic, have alnost always been
voided in Texas." ID at 177.
Appellants have failed to prove that no conclusive or even
controversial issuable facts or conditions existed which would
have authorized the City Council to exercise its legislative
discretion in zoning appellants' property by Ordinance No. 69-1
and refusing to amend such ordinance. Hunt Y._
City of San
Antonio, 401 S.W.2d 536, 539 (Tex. 1971). Stated another way,
appellants have failed to prove that nine City Council could not
exercise 4ny discretion because no facts or conditions existed
which would authorize ^uch action, Furthermore, if reasonable
BRIEF FOR APPELLEES-PAGE 16
i
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 stand as a valid exercise of the
City's police power. Hunt v. City of San Antonio, 462 S.W.2d
536, 539 (Tex. 1971); City cif Pharr v. Tippitt, 616 S.W.~d 173
(Tex. 19al).
REPLY POINT NO. 2 (RESTATED)
(In Reply To Appellants' Fourth And Fifth Points Of Error)
The Trial Court
Correctly , Found That Appellants Failed '.-Lo
Prove That The Comprehensive 22ninc Ordinance Of The City! Of
Denton Bears No Substantial RelationshiL_To The Health, Safety,
Morals Or General Welfare Of The Community And Therefore is Not
Arbitrary Or Unreasonable Nor Does It Fail To Comply with
Standards of Due Process Of Law.
STATEMENT, ARGUMENT AND AUTHORITIES
(Because the appellants presented argument in support of
their attack upon the validity of the City's comprehensive zonin:r
ordinance No. 69-1 (pX 27) corcolidated under their first, second
ana third points of error, appellees will endea•.or not to repeal-
BRIEF FOR APPELLEES--PAGE 17
their argument in reply thereto, but incorporate such by
reference).
Appellants contend that the comprehensive zoning ordinance -
(Ordinance No. 69•-1, PX 27) which zones the entire City of
Denton should be declared void because it sets forth no specific
standards for rezoning decisions. In support of this claim,
appellants presented the testimony of their expert, David
Farrington, who is a registered professional engineer and a
certified planner in Texas, authorized to prepare comprehensive
plans for the overall development of a city's land use. (S.F.
99, L. 6-23) tor. Farrington has written zoning ordinances for
the City of Ft. Worth, Forrest Hill, Springtown, Justin and
Little Elm, to name a few. (S.F. 101, L. 9-18) Mr. Farrington,
on cross examination, stated he ha) reviewed the City of
Denton's comprehensive zoning ordinance and found it to be a
typical zoning ordinance for a City the size of Denton and that
he found nothing "extremely unreasonable" in it. (S.F. 130, L.
1-17) He further testified that the lack of specific criteria
for evaluation of a request for rezoning in the City's ordinance
was not unusual in that only the minority of ordinances have
such criteria. Appellants3 cite no authority which requires zon-
ing ordinances to contain such :specific; criteria nor have
• appellees found any such authority. To the contrary, however,
BRIEF FOR APPELLEES-PAJF, 18
in Bernard v. city of Bedford, 493 S.W.2c, 809 (Tex.Civ.App.--Ft.
Worth, 1980, writ ref'd n.r.e.), irk an opinion by Justice
Spurlockf the Court held there is no requirement that a single
comprehensive ordinance be passed to constitute a comprehensive
plan. The Court states, at 812:
'In holding that there is no requirement that a city
adopt a single comprehensive zoning ordinance as a
comprehensive lance use plan we recognize the City's
need for flexibility. Should the actual growth of the
City or a change in the plan require amendment, the
City should not be shackled by the existence of a
comprehensive zoning ordinance which was never
intended to be the plan. What is important in this
case is the appearance that the ordinances were passed
with forethought to a plan or design rather than being
adopted in some chaotic fasnion or as the result of
some special interest.'
Appellants complain that the City's zoning decisions are
based on the will of the people and that the City Council has
allowed duplexes near single family homes in other areas. The
argument seems to be that if the City Council has arbitrarily
® and capriciously spot zoned other areas in the City, then the
BRIEF FOR APPELLEE'.;-PAGE 19
•
Council should arbitrarily and capriciously spot zone appellants'
two lots for duplexes.
First, the fact that other areas may have been zoned ,:o allow
duplexes to coexist with single family homes bears no relevance
co the particular property involved in this case. Each case
involving possible .3pot zoning must be decided by an examination
of the fact:. in the particular case. City_ of Rusk v. Cox' 665
S.W.2d 233 (Tex.App. 12 Dist. 1984, writ ref'd n.r, e.), Many
factors are involved in determining whether a zoning change is
• warranted on a particular piece of property including its
location, character of the neighborhood, and size of the cract.
No two cases involve identical facts. The evidence introduced
by appellants involving zoning of other parcels of land in the
City was not sufficient:( developed to determine whether those
properties were similarly situated in regard to appellants'
property anc whether those cases involved arbitrary spot
zoning. Even if other properties in the City were spot zoned,
appellees know of no authority and appellants have cited none
which would entitle appellants to have their particular lots
spot zoned for duplexes.
Secondly, appellants' own evidence negates the theory that
the City Council always adheres to the will of r.he majority of
people in determining rezoning cequests. Zoning File Z-15951,
BRIEF FOR APPELLEES-PAGE 20
introduced by appellants as PX 19, shows a request for a zoning
change. from two family to office category. Appellants' expert,
Farrington, testified there were three persons in favor of the
zoning change and none against. (S.F. 109, L. 19 to S.c 111, L.
12) Despite this fact, the Council denied the request. Farrington
agreed this did not indicate a pattern by the City Council of
counting heads ;:o make its zoning decisions. (S.F. 126, L. 15 to
S.F. 127, L.. 4) Appellant Narsutis testified that he did not re-
call more than or,3 person speaking in opcosition to his rezoning
request at the public hearing before the City Council. (S.F. 165,
L. 13 to S.F. 366, L. 18)
Mayor Stewa::t testified he physically inspected the property
prior to making his decision. (S.F. 191, L. 25 to S.F. 192, L. 2)
He observed that the subject property was located in an older,
established, residential neighborhood which was well kept. (S.F.
193, L. 1-14) He stated he considered the Denton Development
Guide and its goal of protecting older neighborhoods. (S.F. 196,
4-24) Although he indicated that the Council "generally" goes
along with the wishes of a neighborhood (S.F. 200, L. 19-25), that
was not one of his primary considerations in this particular case.
Councilme,mber Joe Alford testified he made an independent investi-
gation, an on-site inspection of the subject property. (S.F. 142,
L. 22 to S.F. 143, L. 10) He checked the Denton Development Guide
BRIEF FOR APPELLEES-PAGE. 21
and noted the area was designated as low intensity; the property
was in the middle of a single family residential block. (S.F.
143, L. 11-23) Councilmember Riddlesperger testified he con-
sidered the general configuration of ti . area, concerns of the
neighborhood, traffic and health. (S. F. 141, L. 2-17) He
further testified he did not assign points to various factors
but made a legislative decision on the basis of what is good for
the health, safety and general welfare of the community. (S.F.
146, L. 1-14)
Based upon the foregoing, the trial court correctly refused
t
to find the City's Comprehensive Zoning Ordinance No. 69-1
invalid.
REPLY POINT NO. 3 (RESTATED)
(In Reply To Appellants' Sixth And Seventh Points Of Error)
The Trial Court Correctly Refused To Awatd Damages To Appel-
lants Upon The Weight Of The Evidence And As A Matter Of Law.
STATEMENT, ARGUMENT AND AUTHORITIES
Appellees agree that the onJ.y testimony as to value of
appellants' property was from appellant Neale, valuing the lots
at 421500.00 each as presently zoned and $11,500.00 to $14,[:-0.00
• each as duplex lots. (S.F. 66, L. 13-25) Appellants' expert
Farrington testified the lots were not worthless as presently
BRIEF FOR APPELLEES-PA,GE 22
zoned, although development of the lots as two-family would be
more profitable. (S.F. 123, L. 2-18) In the City of El Paso v.
Donohue, 352 S.W.2d 713 (Tex. 1962), landowners brought suit to
have the zoning ordinance declared invalid as to their property,
contending the property was not suitable for residential as
zoned and that the refusal to rezone the property for business
use was confiscatory. Real Estate witnesses testified the market
value of the subject lots wa.; $500.00 to $750.00 each under the
present zoning but would be worth from $2,500.00 to $5,000.00 per
lot if zoned commercial. The Texas Supreme Court held, at 717:
"In the instant case the property in question was in a
residential area when first zoned as residential and
the area is still predominately residential, with resi-
dential property on three sides and even with residences
on soma of the property itself. Furthermore, there was
evidence that this property has substantial value under
the present zoning. The evidence, however, was uncon-
troverted that it would be much more valuable if changed
from residential to commercial zoning. This in itself
does not amount to confiscation."
Therefore, :.n view of the foregoing authority, appellants
ha;e established by their own evidence that the present zoning
is not confiscatory so as to entitle them to any damages.
BRIEF FOR APPELLEES-PAGE 23
•
Appellants next contend they have lost a sale of the
property because of the City's refusal to rezone. A careful
reading of the record, however, reveals that this contention is
not warranted by the evidence. Appellant Neale testified as
follows:
Q. (By Mr. narsutis) Has than. ,,ale been lost?
A. I would fear it has. I haven't really been in recently
to' conduct any further discussions with the clients
becaUSe of the situation we are in.
Based upon, the testimony, appellants' allegations of lost
profits are speculative at best.
Appellants further contend that changed market conditions
have lowered the vaI•se o* their property since their recuest
for rezoning. Such damages, if any, are not recoverable ~:nder
Hernandez v, Lafayette, 643 F.2d 1183 (3th Cir. 1981). There
the Court, citing mains v. City of .iburon, 447 U.S. 2551 100
S.Ct. 2138, 65 L.Ed.2d 106 (1980), held that mere fluctuations
in value during the process of governmental decisionmaking,
arsent extraordinary delay, ace incidents of ownership and
cannot be considered a taking unle:•s the City has an intention
to appropriate. Such an intent to appropriate does not occur
until the City is -put on notice that its zoning regulations
affect a denial of any economically viable use of the property.
SRT M
.:,F FOR APPELLEES-PAGE 24
Hernandez V. Lafayette, 643 F. 2d 1188, 1200 (5th Cir. 1981).
Appellants purchased the subject property in 1983 with
knowledge that it was restricted to single family dwellings by
the 1969 zoning ordinance. (Neale, S.F. 71 12-24; Narsutis,
S. F. 152, L. 9-13) No one misrepresented to either appellant
that the property would be zoned for anything other than single
family dwellings. (Neale, S.F. 72, L. 8-10; Narsutis, S.F. 154,
L. 2-11) According to Leach v. City of Northland Hills, 627
S.W.2d 854 (Tex.App. 2 Dist. 1982, no writ history), homeowners
• filed an action in 1980 to challenge the City's 1967 comprehen-
sive zoning ordinance and the 1969 amendments thereto. In the
opinion ny Justice Jordan, she homeowners who purchased their
property lcnc after tcce 1969 ordinances did so with notice and
cannot be heard to now complain. Similarly, the appellants in
the present case do not have standing to seek damages in this
case filed in 1983 to invalidate a 1969 zoning ordinance.
Based upon the foregoing, the trial court correctly refused
to award damages upon the weight of the evidence and as a matter
of law.
i
REPLY POINT NO. 4 (RESTATED)
(In Reply ro Appellants' Eighth, Ninth And Tenth Points Of
Error) -
BRIEF FOR APPELLEES-PAGE 25
The Trial Court Correctl Refused To Award Attorneys Fees To
Appellants Both According 'Io The Evidence And As A Matter Of Law.
STATEMENT, AR.GUM£'.~ AND AUTHORITIE'S
Appellees agree that the declaratory judgment act as amended
in 1981, Art. 2524-1 V.T.C.S., authorizes the Court to make su"h
awara of costs and necessary attorneys fees as may seem equitable
and dust. However, the Court in R'_mmer v. McKinney, 649 S.W.;2d
365 ;:ex.App. 2 Dist. 1983, no writ hist.), opinion by Justice
Ashworth, observed that it is necessary to employ an attorney in
order to recover attorneys fees and held in that case as a
utter of late that it was necessary for the plaintiff to retain
an attorney to clear ti'-']e to her progercv. ;n the present
case, the record reflects r-hat appellant Narsutis appeared pro
se. (S.F. 4, L. 3-5) There is no evidence in the record t:zat
appellant Narsutis was retained by anyone nor is there any
evidence appellant Narsutis ,uomitr.ed any bill for his services.
There is no rational reason for allowing 3n attorney, who is
representigg himself and protecting his own interest, to recover
attorr,eys fees whereas a citizen appearing pro se but unlicensed
to practice law could not recover such fees. Nor are appellants
entitled to attorney's fees pursuant to 42 U.S.C. 591953 and
1986 for the above and foregoing reasons and because that section
BRIEF FOR APPELLEES--rAGE 26
restricts the Court's discretion to award attorney's fees only
to the prevailing party. The trial court correctly held, as a
matter of law and upon the weight of the evidence, that appel-
lants were not entitled to recover attorney: °ees.
CONCLUSION
Appellants, who purchased their property in 1983 with notice
of the zoning restrictions imposed by the City's Comprehensive
Zoning Ordinance enacted in 1969, lack standing to now attack
the validity of such zoning ordinance. If the appellants do
have standing, then applying the four criteria of the Texas
Supreme Court in City of Pharr v. Tippitt, 610' S.W.2d 173 (lex.
1981), tae De;trin Citv Council did not act arbitrarily,
capriciously or unreasonably .n refusing to change the zoning
on appellants' property from single family to duplex zoning.
The criteria are applied as follows:
Criteria No. 1: 'A comprehensive zoning ordinance is law
that binds the municipal legislative body itself." Pharr, at
176.
Fact: The subject property was zoned as single family
in 1969 by ordinance duly adopted pursuant to the authority of
Arts. 101la-101le, et seq., V.T.C.S.
BRIEF FOR APPELLEES-PAGE 27
Criteria No. 2: "The nature and degree of an adverse impact
upon neighboring lands is important. Lots that are rezoned in a
way that is substantially inconsistent with the zoning of the
surr:ounding area, whether mere or less restrictive, are likely
to oe invalid." Pharr, at 177.
Fact: Appellants' two lots are in the middle of a single
family residential block, surrounded by single family residences
to the north.. east and south and a public street to the west,.
Zoning for duplexes is less restrictive than single family
residential zoning.
Criteria No. 3: "The suitability or unsuitability of the
tract for use as presently zoned is a factor.' Pharr, at 177.
Fact: According to the appellants' own testimony, the
lots as presently zoned for single family are worth 42,500.00
each. The lots h:-le substantial value as zoned; they are not
worthless.
Criteria No. 4: "The amendatory ordinance must bear a
substantial relationship to the public health, safety, morals or
general welfare or protect and preserve historical and cultural
places and areas.' Pharr, at 177.
Fact: The Comprehensive Zoning Ordinance No. 69-1 which
zoned the subject property is typical of the majority of zoning
ordinances for a City the size of Denton and was duly enacted,
ti
BRIEF FOR APPELLEES-PACE 28
under the powers granted the City by the Legislature, for the
expressed purpose of promoting the health, safety, morals and
general. welfare of the City.
"If reasonable minds may differ as to whether 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 stand as a valid
exercise of the city's police power." Pharr, at 176.
Should the Court invalidate the Comprehensive Zoning
Ordinance as applied to appellants' property, they could then
out the property to any use they chose from duplexes to a hog
farm. Should the Court invalidate the City's Comprehensive
Zoning ordinance generally, that City would than have no zoning
control and tt.e result would be chaos.
PRAYER
WHEREFORE, Appellees respectfully pray that the Judgment of
the District Court be affirmed.
RESPECTFULLY SUBMITTED,
C. J. TAYLOR, JR.
CITY :ATTORNEY
STATE BAR NO. 19736000
JOE D. MORRIS
ASSISTANT CITY ATTORNEY
STATE BAR NO. 14488500
BRIEF FOR AIPPELLE S-PAGE 29
ROBERT B. HUNTER
ASSISTANT CITY ATTORNEY
STATE BAR NO. 10301600
ROBERT B. HUNTER
215 EAST MCKINNEY STREET
DENTON, TEXAS 76201
(817) 566-8333
ATTORNEYS FOR APPELLEES
CITY OF DENTON, TEXAS
CERTIFICATE OF SERVICi:
a
1, Robert B. Hunter, Assistant city Attorney for the City of
Denton, do hereby certify that on the 10th day of July, 1964, a
copy of the foregoing brief was mailed by United States Mail,
certified and postage prepaid, to John Narsutis, 1121 Dallas
Drive, P. O. Box 50271, Denton, Texas 76201, Attorney for
appellants.
ROBERT 8, HU14TER
BRIEF FOR APPELLEES-PAGE 30