HomeMy WebLinkAbout10737 ORD - 03/08/19722- 21- 72:jkh
AN ORDINANCE
AMENDING THE ZONING ORDINAN 0 fc CITY OF RPUS
CHRISTI ADOPTED ON THE 27TH AUGUST, 7,
APPEARING OF RECORD INLUM 9, PAGES 5 ET SEQ,
OF THE ORDINANCE AND R LUTION RECORD AMENDED
FROM TIME TO TIME A P TICULARLY AA NDED BY pp
ORDINANCE NO. It h, AMENDED, UPQ PLICATION QF�
AMENDING THE Z_ I G MAP BY CUKNVlNG THE ZONITICIAN
JI I Vn IIV Inl� 1.111 1, 1— a.yy -m-
a
COU , T XAS, FROM 1 \PPII
TO ,u l ° APAR4MFT7T H FE
; KEEPING IN EFFECJj L OTHER
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PROVISIONS OF H EXISTING ORDINA AMENDED;
EPEALING ALL 2 11NANCES IN CONFj� HEREWITH;
` AND DECLARING EMERGENCY.
AS j(,�
�rl WH S THE PLANNING COM SiION HAS FORWARDED TO THE CITY
COUNCIL ITS REP 'S AND REC ME 110 CONCERNING THE APPLICATION OF
FOR AMENDMENT
TO THE ZONING MAP OF THE CI Y OF CORPUS CHRISTI; AND
WHEREAS, PUBLIC HEARING WAS HELD AT WHICH HEARING ALL PERSONS
WISHING TO APPEAR AND BE HEARD WERE HEARD, TO CONSIDER THE SAME BEFORE
THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, IN ACCORDANCE WITH PROPER
NOTICE TO THE PUBLIC, SAID PUBLIC HEARING HAVING BEEN HELD ON
15, ]q77 , AT Rrxmlar COUNCIL MEETING OF THE CITY
COUNCIL IN THE COUNCIL CHAMBER AT CITY HALL IN THE CITY OF CORPUS
CHRISTI; AND
WHEREAS, BY MOTION DULY MADE, SECONDED AND CARRIED, IT WAS
DECIDED BY THE CITY COUNCIL THAT TO APPROVE THE HEREINAFTER SET FORTH
AMENDMENT WOULD BEST SERVE PUBLIC HEALTH, NECESSITY AND CONVENIENCE AND
THE GENERAL WELFARE OF THE CITY OF CORPUS CHRISTI AND ITS CITIZENS:
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF CORPUS CHRISTI, TEXAS:
SECTION 1. THAT THE ZONING ORDINANCE OF THE CITY OF CORPUS
CHRISTI, TEXAS, PASSED ON THE 27TH DAY OF AUGUST, 1937, APPEARING OF
RECORD IN VOLUME 9, PAGES 565, ET SEQ, OF THE ORDINANCE AND RESOLUTION
RECORDS, AS AMENDED FROM TIME TO TIME, AND IN PARTICULAR AS AMENDED BY
ORDINANCE NO. 6106, AS AMENDED, BE AND THE SAME IS HEREBY AMENDED BY
MAKING THE CHANGE HEREINAFTER SET OUT.
1.0'737
SECTION 2. THAT THE ZONING OF all of Lots 10 and 11, Block 71
San Diego, Unit #1, in the City of Corpus Christi, Nueces County, Texas, by
and the same is hereby changed fran "R-lB" One Family Dwelling District to
"A -1" Apartment House District.
SECTION 3. THAT THE OFFICIAL ZONING MAP OF THE CITY OF CORPUS
CHRISTI, TEXAS, BE, AND THE SAME IS HEREBY, AMENDED AS HEREIN ORDAINED.
SECTION 4. THAT T14E ZONING ORDINANCE AND MAP OF THE CITY OF
-CORPUS CHRISTI, TEXAS, APPROVED ON THE 27TH DAY OF AUGUST, 1937, AS
AMENDED FROM TIME TO TIME, EXCEPT AS HEREIN CHANGED, SHALL REMAIN IN
FULL FORCE AND EFFECT.
SECTION 5. THAT ALL ORDINANCES OR PARTS OF ORDINANCES IN CON-
FLICT HEREWITH ARE HEREBY EXPRESSLY REPEALED.
SECTION 6. THAT THE NECESSITY OF IMMEDIATELY MAKING AFORESAID
CHANGE FOR THE PURPOSE OF MAINTAINING AT ALL-TIMES A COMPREHENSIVE ZONING
ORDINANCE FOR THE CITY OF CORPUS CHRISTI CREATES A PUBLIC EMERGENCY AND
AN IMPERATIVE PUBLIC NECESSITY REQUIRING THE SUSPENSION OF THE CHARTER
RULE THAT NO ORDINANCE OR RESOLUTION SHALL BE PASSED FINALLY ON THE DATE
OF ITS INTRODUCTION AND THAT SUCH ORDINANCE OR RESOLUTION SHALL BE READ
AT THREE SEVERAL MEETINGS OF THE CITY COUNCIL, AND THE MAYOR HAYING
DECLARED THAT SUCH EMERGENCY AND NECESSITY EXIST, AND HAVING REQUESTED
THE SUSPENSION OF THE CHARTER RULE AND THAT THIS ORDINANCE BE PASSED
FINALLY ON TFC DATE OF ITS INTRODUCTION AND TAKE EFFECT AND BE IN FULL
FORCE AND EFFECT FROM AND AFTER ITS PASSAGE, IT IS ACCORDINGLY SO
ORDAINED, THIS THE DAY OF February, 1972
ATTEST:
CITY SECRETARY ^^//
DAY OF l 72"
CITY ATTORN
MAYOR
THE CITY OF CORPUS CHRISTI, TEXAS
CORPUS CHRISTI, TEXAS
DAY OF /. -(��� , '19_-Zu
TO THE MEMBERS OF THE CITY COUNCIL
CORPUS CHRISTI, TEXAS
FOR THE REASONS SET FORTH IN THE EMERGENCY CLAUSE OF THE FOREGOING
ORDINANCE, A PUBLIC EMERGENCY AND IMPERATIVE NECESSITY EXIST FOR THE SUSPEN-
SION OF THE CHARTER RULE OR REQUIREMENT THAT NO ORDINANCE OR RESOLUTION SHALL
BE PASSED FINALLY ON THE DATE IT IS INTRODUCED, AND THAT SUCH ORDINANCE OR
RESOLUTION SHALL BE READ AT THREE MEETINGS OF THE CITY COUNCIL; 1, THEREFORE,
REQUEST THAT YOU SUSPEND SAID CHARTER RULE OR REQUIREMENT AND PASS THIS ORDI-
NANCE FINALLY ON THE DATE IT IS INTRODUCED, OR AT THE PRESENT MEETING OF THE
CITY COUNCIL.
"RESPECTFULLY,
MAYOR
THE CITY OF CORPUS CHRISTI, TEXAS
THE CHARTER RULE WAS SUSPENDED BY THE FOLLOWING VOTE:
RONNIE SIZEMORE
CHARLES A. BONNIWELL
ROBERTO BOSQUEZ, M.D.
REV. HAROLD T. BRANCH
THOMAS V. GONZALES
GA BE LOZANO, SR.
J. HOWARD STARK
THE ABOVE ORDINANCE WAS PASSED BY THE FOLLOWING VOTE:
RONNIE SIZEMORE
CHARLES A. BONNIWELL
RoeERTO BosQUez, M.D.
REV. HAROLD T. BRANCH
THOMAS V. GONZALES
GABE LOZANO, SR.
J. HOWARD STARK � G
A-
OFFICE X� t` T
OF THE FILED NIS IIfC
CITY ATTORNEY
..Day Of.......-- .�.../ =J -. ,1.9.. %�
. .......... • 1 �s
Mn cH 8',\ 1972 Secretary. Cd7 04 Corrus Christi
LEGAL OBJECTION
TO
AMENDING THE ZONING ORDINANCE OF THE CITY OF CORPUS
CHRISTI ADOPTED ON THE 27TH DAY OF AUGUST, 1937,
APPEARING OF RECORD IN VOLUME-9, PAGES 565, ET SEQ,
OF THE ORDINANCE AND RESOLUTION RECORDS, AS AMENDED
FROM TIME TO TIME AND PARTICULARLY AS AMENDED BY
ORDINANCE N0. 61o6, AS AMENDED, UPON APPLICATION OF
DAVID BERLANGA, SR. BY AMENDING THE ZONING MAP BY
CHANGING THE ZONING ON LOTS 10 AND 11, BLOCK 7, SAN
DIEGO, UNIT #1, SITUATED IN THE CITY OF CORPUS CHRISTI,
NUECES COUNTY, TEXAS, FROM "R -1B" ONE FAMILY DWELLING
DISTRICT TO "A -1" APARTMENT HOUSE DISTRICT; KEEPING
IN EFFECT ALL OTHER PROVISIONS OF THE EXISTING ORDINANCE
AS AMENDED; REPEALING ALL ORDINANCES IN CONFLICT HEREWITH;
AND DECLARING AN EMERGENCY.
FOR THE REASONS HEREINAFTER STATED, LEGAL OBJECTION IS HEREBY FILED,
THROUGH THE CITY SECRETARY, WITH THE CITY COUNCIL TO THE CAPTIONED ORDINANCE,
PURSUANT TO CITY CHARTER, ARTICLE IV, SECTION 25(A), AND PRIOR TO ACTION UPON
SAID ORDINANCE BY THE CITY COUNCIL:
THE, ",REZONING TO BE EFFECTED BY THE CAPTIONED ORDINANCE CONSTITUTES
"SPOT ZONING ", OR IRRELEVANT ZONING, BY THE RULES OF HUNT V. CITY OF SAN
ANTONIO (TEX. SUP. CT., 1971), 1162 S.W.2D 536, AND AUTHORITIES CITED IN THE
ANNEXED SUBJECT- MATTER BRIEF NO. 72 -001, WHICH BY THIS REFERENCE IS INCORPORATED
HEREIN.
AS STATED IN HUNT, REZONING IS TO BE MADE ON CHANGED CONDITIONS.
WEAVER V. HAM (TEX. SUP. CT., 1950), 232 3.W.2D 704.
THE MINUTES OF THE PLANNING COMMISSION HEARING ON BERLANGA DO NOT .
REFLECT CHANGED CONDITIONS SUFFICIENT TO MEET THE HUNT REQUIREMENTS AND THERE
IS A WANT OF SPECIFIC FINDINGS TO SUPPORT THE CONCLUSION OF CHANGE. THE
"BERLANGA FIELD TRIP NOTES ", ATTACHED, SHOW A DISTRICT COMMITTED To R -113.
THE BUILDING RECORD AT 2237 CAMPANA ( TARLTON) STREET SHOWS A CONTINUATION OF
ONE - FAMILY USE SINCE 1952, WHEN THE THEN OWNER - AGENTS ERECTED A ONE -CAR GARAGE,
A TWO - BEDROOM DWELLING, AND IN 1957, A CONNECTING BREEZEWAY. IN THE AREA AN
OPEN SHED WAS ATTACHED TO THE SINGLE- FAMILY DWELLING AT 2237 TARLTON BY THE
APPLICANT BERLANGA IN JUNE, 1969.
SIMILARLY, THE BUILDING RECORD AT 2241 CAMPANA ( TARLTON), OF
FEBRUARY, 1950, DELINEATES NEW CONSTRUCTION OF A SINGLE - FAMILY DWELLING.
THE SINGLE- FAMILY COMMITMENT OF THE LAND ON TARLTON HAS BEEN MORE
RECENTLY REFRESHED. IN FEBRUARY, 1967 A PERMIT FOR GENERAL REPAIRS WAS
ISSUED FOR 22+1 TARLTON, AND IN DECEMBER, 1968, THE APPLICANT BERLANGA
OBTAINED A PERMIT FOR PATIO ROOFING AT THE SAME ADDRESS. '
THERE HAS BEEN A SUBSTANTIAL AMOUNT OF REPAINTING IN THE DISTRICT
LATELY.
THE COMMISSION RECOMMENDATION CITES AS REASONS FOR CHANGE 1) THE
WIDENING OF TARLTON STREET, 2) CONSTRUCTION OF THE CROSSTOWN EXPRESSWAY,
3) THE BUCCANEER DRIVE -IN THEATRE IS DIRECTLY ACROSS THE STREET, AND 4) A
LOCAL "TAVERN" IS A "FEW" LOTS AWAY.
THERE IS NO EVIDENCE OF SUBSTANTIALLY INCREASED TRAFFIC FLOW SUCH
AS TO RENDER THE ABUTTING PROPERTIES UNSUITABLE FOR RESIDENCES. THIS SAME
CLAIM WAS MADE IN HUNT AND REJECTED. STREET WIDENING ALONE IS NOT A SUFFICIENT
CHANGE.
THE CROSSTOWN EXPRESSWAY IS A COMPARATIVELY RECENT CHANGE BUT THE
SUBJECT PROPERTY IS NEARLY TWO BLOCKS REMOVED FROM THAT ARTERY. IN FACT,
THE LOWER -COUNT SOUTH PORT AVENUE SEPARATES THE DISTRICT FROM THE HIGHWAY.
FURTHERMORE, THE "TAVERN ", SIGNED "HONK 'R HOLLER ", TOGETHER WITH THE BARBER-
SHOP NEXT DOOR, SERVES AS A BUFFER AND THE PREMISES THERE ARE WELL- MAINTAINED.
THE SUBJECT PROPERTY IS EIGHT LOTS AWAY FROM THESE PREMISES. THERE IS NO
EVIDENCE THAT THIS BUFFER -USE HAS BEEN INTRODUCED SINCE THE LAST ZONING OF
THE DISTRICT.
THE BUCCANEER DRIVE -IN THEATRE IS NOT A NEW USE IN THIS NEIGHBORHOOD.
IT HAS BEEN THERE MANY YEARS, WITH THE SCREEN BACKING TO THE CORNER OF PORT
AND TARLTON WITH A SIX -FOOT CORRUGATED METAL FENCE ALONG TARLTON SHIELDING
THE PREMISES.
IN SUMMARY, THERE APPEARS TO BE NO CONDITION CHANGE TO WARRANT
INCREASE IN THE USE INTENSITY OF THE SUBJECT PROPERTY. WITHOUT SUCH CONDITION
CHANGE, IT IS REASONABLE TO EXPECT THAT THE INFUSION OF FOUR FAMILY UNITS
(AS PERMITTED UNDER A -1 ON THIS PARTICULAR PROPERTY) WILL DOWNGRADE THE R -16
CHARACTER OF THE DISTRICT TO THE DETRIMENT OF THE GENERAL WELFARE. THIS IS
PROHIBITED IRRELEVANT ZONING. s
LEGISLATIVE ACTION IS SOLELY IN THE DISCRETION OF THIS HONORABLE
COUNCIL. THIS OBJECTION IS MANDATORY UNDER THE CHARTER, HOWEVER, IN A CASE
WHERE THE CITY ATTORNEY CONCLUDES HE CANNOT APPROVE AN ORDINANCE. IF THE
COUNCIL ELECTS TO PASS THE ORDINANCE IT WILL BE PRESUMED VALID IN LAW UNTIL
AND UNLESS A COURT OF LAW DECLARES IT INVALID.
RESPECTFULLY I T D,
.TAMES R. RIGGS
CITY ATTORNEY
CC: R. MARVIN TOWNSEND, CITY MANAGER
WILLIAM ANDERSON, PLANNING DIRECTOR
CAPTAIN ACUFF, CHAIRMAN OF THE PLANNING COMMISSION
2/29/72
BERLANGA FIELD TRIP NOTES
S. PORT — REAR OF THE BUCCANEER DRIVE —IN SCREEN FACING ON TARLTON.
CORNER OF PORT AND TARLTON.
HONK —R— HOLLER DRIVE —IN ON CORNER.
2209 — ASBESTOS SINGLE— FAMILY — VACANT LOT NEXT DOOR.
CORRUGATED 6 FT. SCREENING FENCE ALONG DRIVE —IN ON NORTH
SIDE OF STREET.
BRICK FRONT, AFTER THE VACANT LOT, NEAT — 2221 — FRAME W/PORTE COCHERE AND
DETACHED GARAGE.
2225 — RECENTLY PAINTED FRAME.
2229 — FRAME — FAIR CONDITION.
2233 — FAIR CONDITION — FRAME.
2237 — FRAME IN GOOD CONDITION.
22 1 — STUCCO HOUSE AT FRONT — GOOD CONDITION
NEW CEDAR —SIDED AND CONCRETE BLOCK BOTTOM GARAGE — APT. AT REAR.
22115 — CORNER OF SARITA AND TARLTONp WOOD SHINGLE AND STUCCO — GOOD CONDITION.
VACANT LOT — AT INTERSECTION MACARTHUR AND TARLTON, BEHIND THE DRIVE —IN.
2501 — ON SOUTH SIDE, AT CORNER; FRAME — GOOD CONDITIONS HOUSE FACING MAC
ARTHUR ON OPPOSITE CORNER — GOOD CONDITION — FRAME.
3102 MAC ARTHUR — AT CORNER — PAINTED RECENTLY.
SARITA — 3100 BLK. — NOT IN GOOD CONDITION UNTIL 3113 WHICH IS IN GOOD CON-
DITION — RECENTLY PAbNTED.
2249 GUADALUPE — PERMASTONE.
22550 GUADALUPE — RECENTLY REFRONTED.
2246 GUADALUPE — RELATIVELY NEW HOUSE.
2245 GUADALUPE — GOOD ASBESTOS W/JALOUSIES
22141 GUADALUPE — EVIDENCE OF REMODELING LATELY.
2242 (BEHIND THE SUBJECT PROPERTY) ASBESTOS SIDING — GOOD CONDITION.
2237 & 2238 — FAIR CONDITION — BOTH ASBESTOS — MAINTENANCE NOT GENERALLY
AS GOOD AS REST OF BLOCK.
22114 IS ARCHITECTURALLY IMAGINATIVE, ROCK FRONT — STONE COLUMN AND STEEL
BAR FENCE, CONSIDERABLE SPECIAL EXERIOR DECORATIVE WOODWORK.
HONK —R— HOLLER INCLUDES A BARBER SHOP. WELL MAINTAINED.
�iCM ES R. 1 GGS
Ael
Yol, City Cmincil Meeting of Yebruary 16, 1972 -
�,.._
' 'l.OTv.,dG AA41 ?N1) it1I:N't 'S(Iiv1 A1AR }'
A)Jilication No. 17'2 -10 - David Bur)anga, Sr. (Owner) `
Rc_qucsL. %oning change from "R -113" One - family Dwelling District to "A -1"
Apartment House District.
Location: Au approximate 9, 450 square foot area located at 2237 Tarlton Street
cast of Sarita Street containing all of Lots 10 & 11, Block 7, San Diego
Unit ill.
Zoning of
Area; The subject property is presently zoned 1111-1B" One - family Dwelling
District as are all of the properties to the north, south, east and west;
there is some "B -4" General Business and "B -1" Neighborhood business
located along Port Avenue; farther to the north along McArthur Street is
some "A- 1" Apartment House zoning and "13-4" zoning.
Land Use
of Area: The subject pioperty is presently occupied with two single - family dwellings;
the entire surrounding areas are predominantly occupied with single - family
dwellings to the north, south and east; there is commercial property im-
mediately across the street, which is the Buccaneer Drive -in Theater; to
the cast along Port Avenue are also various business uses; there is a
scattering of vacant lots within the area.
Public Hearing Background - Planning Commission:
The Planning Commission public hearing was held on January 18, 1972, at
which time David Berlanga stated that he has lived at this location since
1952, and the construction of the Crosstown Expressway and other develop-
ments in this area have changed the character of this neighborhood. He
presently proposes to demolish the small dwelling on the front portion of
Lot 11 and convert the existing two -story dwelling on the rear portion into
one duplex apartment. In the future he also plans to convert his own home
on Lot 12 into another duplex. The reason for requesting "A -1" in lieu of
"R. -211 is because the lots are too small to construct two units -under this
zoning. No one spoke in opposition.
32 notices were mailed, one received in favor and three in opposition.
Planning Commission Recommendation to City Council:
That "A -1" be approved because there has been a change in the character
of the neighborhood by the widening of Tarlton Street and construction of the
Crosstown Expressway; the fact that the Buccaneer Drive -in Theater -is
located directly across the street with a local tavern located a fete lots away
would make it difficult to sell this property for a single - family residential
use; and the only logical use would be for apartment development.
Motion carried, unanimously with one member absent.
_Planning Staff Recommendation to City Council:
This area is predominantly a single- family area and the proposed "A -111
zoning would create a single -use zone within this area. Because of this,
the Staff is of the opinion Out the lots are too small to adequately develop
apartments since each lot is only 4, 725 square feet in area. In order to
place a duplex on each lot, it will require "A -1" zoning since "R -2" will .
not permit a duplex on each lot. The request is also out of character with
the neighborhood and, therefore, the Staff recommends denial.
MAP ATTACHED
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S[MBJECT- MATTER
BRIEF 72 -001 February 29, 1972
63 Tex. Jur. 2d Sec. 31. "Spot Zoning ".
"In this state the term 'spot zoning' is ordinarily used where a zoning
ordinance is amended reclassifying one or more tracts or lots for a use pro-
hibited by the original zoning ordinance and out of harmony therewith."
"'Spot zoning' is the practice whereby a single lot or area is granted
privileges which are not granted or extended to other land in the vicinity in the
saire use district. . it is a word of opprobrium used by the courts to
describe or justify the result which they have reached in a particular situation,
rather than as the definition of a particular concept of law." -- Rathkopf, The
Law of Zoning and planning, 26 -1.
63 Tex. Jur. 2d Sec. 31.
"Spot zoning is generally condemned when the process of singling out a
small parcel of land for a use classification totally different fran that of the
surrounding area is effected for the benefit of the owner of this property and to
the detriment of other owners and is the very antithesis of planned comprehensive
zoning." (Citing Harimn v. Dallas (Civ. App.) 229 S.W.2d 825, reh. den., err. ref.
n.r.e., declaring spot zoning not authorized under law.) The pertinent inquiry
thus is not whether the particular zoning under attack consisted of areas fixed
within larger areas of different use [ although under Hunt v. San Antonio (Tex.
Sup. Ct., 1971), 462 S.W.2d 536 this factor is,in my opinion, of great y eight
ened importance] but whether it was accomplished for the benefit of individual
owners rather than pursuant to a comprehensive plan for the general welfare of
the commnity. [of power to change zoning] . . . it has been held that this
authority must be exercised with caution and that these changes are proper only
when the lic interest clearly requires the amendment. (citing Lo V. Co us
Christi Civ.App. j Jib Widen. , n.r.e. . . A spot zonng o nan�oe
cannot be 'sustained unless it is designed to serve the general welfare of the
community or to further other statutory objectives of the Zoning Enabling Act,
and not merely to benefit a particular individual or group of individuals.
[Citing Waxahachie v. Watkins, (Tex. Sup. Ct.) 275 S.W.2d 477, reh. den.; Skinner
v. Reed (Civ. App. ) 265 S.W.2d 850.] Along similar lines it has been held that
if there is a public need for the spot, the zoning enactment creating it is not
invalid. [Citing McNutt Oil & Refining Co. v. Brooks (Civ. App.) 244 S.W.2d
872.1)"
The semantic dilemma in Texas arising from the attempted distinction
between "legal" spot zoning and "illegal" spot zoning is vividly conveyed by
comparison of the Lone, Waxahachie, and Skinner case statements, aside fran the
applications, with that of McNutt and.,furtherwith the Hunt case. We prefer the
term "irrelevant zoning ", i.e., the zoning is not relevant to any substantial
relationship between the public health, safety, morals, or welfare. "Spot" is
further unfortunate in that it imparts the false idea that the vice attaches only
a geographically "shall" area. Northern and Eastern states, as will presently
be shown, with their longer experiences with zoning law, have by and large became
careful to avoid this misleading dichotomy through the appellation of "spot"
zoning only in cases of irrelevant uses. Irrevelant zoning is less often con-
fronted in largely undeveloped, vacant areas, as observed at 63 Tex. Jur. 2d
Sec. 31, p. 789:
"Thus, it has been held that an myendatory ordinance permitting retail
establishments in a previously practically undeveloped area in which several
hundred hares had been built, and in which the distance to the closest large
shopping center was nine blocks, did not constitute spot zoning, and could not
be considered as arbitrary, unreasonable, or bearing no relation to the general
welfare. (Citing Skinner, supra)."
Rathkopf arrives at a similar conclusion (26 -23):
"Where the zoned area was shown to be still in the process of change
and growth and was not a fully developed residential section, it has been held
that zoning of a particular parcel for uses inconsistent with the zoning of the
surrounding area would not per se be invalid since the rezoning could not
serlously dislocate a maturel established residential zone.', further noting
the Statement in Ward V. Montgomery Township, Sup. N.J., 28 N.J. 529, that "there
is no requirement in the law that zoning be imanutable, particularly in
„ndf-UP10ped A—g." [Also cited, Barry v. Town of Glenville (App. Div. N.Y. 1959)
192 N.Y.S. 2d 8451.
There is a rebuttable presumption of the validity of a rezoning ordi-
nance, but the burden is on the objector. Weaver v. Ham (Tex. Sup. Ct.) 232
S.W. 2d 704; Hunt, supra.
zoning protection of residential districts is, of carman knowledge, the
historically grime reason for the canprehensive zoning plan and, for reasonable
consideration in such protection is the conservation of the prevailing aesthetic
of the hone neighborhood, one of the few areas of city police power regulation
where aesthetic is not disregarded. Connor v. University Park (Civ. App.) 142
S.W. 2d 706, err. ref.
Adverting again now, with this introduction, to the more specific
standards of spot (irrelevant) zoning deternunation, the definition in Rodgers
V. Village of Tarrytom (Cost of Appeals of State of Newyork) 96 N.E. 731, is
noteworthy: "As the process of singling out a small parcel of land for a use
classification totally different fran that of the surrounding area, for the
benefit of the owner of such property and to the detriment of other owners. .
A restatement of this definition is found in Clark V. City of Boulder
(Sup. Ct. Colo., 1961) 362 P. 2d 160, which bears on the test of prorating the
canprehensive plan rather than merely relieving a particular property of restric-
tions. Freeman v. Yonkers, 129 N.Y.S. 2d 703, 205 Misc. 947. The Freeman case
is also cited in Sant[nyers v. Town of Oyster Bay, (Sp. T., N.Y.) 16� 2d
59, which rezoned a small corner, acammodating three houses, from residential
to oanmerci.al, held invalid: "all the (other) resident owners are severely
limited in the use of their lands, but these . . . are beneficial . . . the very
restrictions give protection. There must be no piecemeal tearing away of the
protections of the [comprehensive zoning] ordinance." Rathkopf, in his comment,
notes that applicants falling into irrelevant zoning often fail because they do
not recognize more restrictive, intermediate uses available that would be can -
patible with surrounding residential.
Of the same tenor is Appeal of Mulac,, 418 Pa. 207, 210; 210 A. 2d 275.
Here the Supreme Court of Pennsylvania announced the most determinative test as
"whether the parcel in question is being singled out for treatment unjustifiably
differing fran that of similar surrounding land, thereby creating an island
having no relevant difference from its neighbors.
-2-
With more emphasis on the smallness of area are Reskin V. City of
Northlake (Ill. Apps.) 204 N.E. 2d 600 and Lancaster Dev: Its. v. village of
River Forest (Ill. App. Ct., 1967) 228 N.E. 2 526, which enumerated smallness
of area and disharmony with the oamprehensive plan.
The Court of Appeals of Kentucky in Hodge v. Luckett, 357 S.W. 2d 303
enumerated the conditions that may save rezoning from invalidity:
1. Substantial change of conditions in the vicinity;
2. Reclassification pursuant to "coordinated plan" designed to pro-
mote zoning objectives.
3. Conditions of the lot itself appreciably distinguish it from the
surrounding lands. The Court here places special emphasis on the
insufficiency of a difference existing at the time of the original
zoo' Such does not avail him or his successors. "True, his
property ought not to be forever consigned to oblivion, but if he
has remained silent when he should have spoken it is no injustice
to impose ." the requirement that he today show no substantial
resulting detriment to others.
One of the leading cases, from the Supreme Court of Maryland, Cassel v.
Mayor and City Council of Baltimore, 73 Atl. 2d 486, declares:
"It is, therefore, universally held that a 'spot zoning' ordinance,
which singles out a parcel of land within the limits of a use district and marks
it off into a separate district for the benefit of the owner, thereby permitting
a use of that parcel inconsistent with the use permitted in the rest of the dis-
trict, is invalid if it is not in accordance with the comprehensive zoning plan
and is merely for private gain." Does this rezoning actually pramote the
neighborhood over and above the benefit to the owner of the tract in question?
Thus it is that Rathkcpf concludes:
"The uniform rule as set out in all of the cases is that
between the treatment accorded the parcel rezoned and the scheme o
PARTICULAR FACTORS
IN IRREGE(TANT ZONING
Rathkcpf sets forth these items collected from the court opinions:
1. Surrounding land same as rezoned land in character.
2. Legislative body evidenced no consideration of the other uses
included and permissible under the specific proposal evidenced
in the rezoning application.
3. No evidence of consideration of appropriateness of rezoning a
larger area inclusive of the rezoned plat.
4. Where lot is rezoned more restrictively on initiative of the
legislative body only, the existence of evidence of planned
condemnation (eminent domain) falsifies the basis for rezoning.
5. Absence of substantial change in the rezoned property or in the
general area.
-3-
It was observed, too, in Kozesnik v. Montc�arexy Tp., 24 N. S. 152,
that size of the rezoned tract alone is no control] ng test.
Markedly growing population density in a district and the using up,
by improvements for a specific use in a district, can support rezoning of a
single tract where it is compatible with or, better, an extension of, an adjacent
use.
Ill. White Plains Corp. v. Village of Hastings on Hudson, 180 N.Y.S. 2d.
13.
Rezoning from R -IB to business; one lot of 1.5 acres fronting on one
heavy thoroughfare and on a street joining this thoroughfare to another heavy
arterial; 150 ft. frcin this acreage both sides of street zoned business; within
the 150 feet four duplexes; and no vacant land in the village remaining business -
zoned. The court upheld the rezoning to business as a nearly inescapable exten-
sion. Cn a less firm base is the McNutt case, supra (Texas).
THE ERA CF STRICTER TEST CF REZONING IN TEXAS:
Hunt v. City of San Antonio. The Supreme Court of Texas in February,
1971, issued the Hunt opinion, noting that it is a sequel to Weaver v. Ham (Tex.
Sup. Ct., 1950), 232 S.W. 2d 704, wherein ". . . the integrityyo t ee AA zone
(single - family dwelling) classification of this area (San Pedro Avenue) has
previously been protected by this Court. . (See attached maps.)
-4-
{
> 538 Tex. 462 SOUTH WESTERN REPORTER, 2d SERIES
West Summit Street. Plaintiff owns a across Summit and down the street a few
,i home in the immediate vicinity of the lots, houses. (See plat). The San Antonio
•„ Zone D Zone A
Houses Houses $
NORTH •..Houses - Houses j
, 11
i 1
Houses Houses 1
a
}� a 3263 3260 r
r,
c a Parking �t'
', Cllnie 9 Apt 11 0" 0 0 0 Houses 1
1. t• j) aZ 1,
%at
SiDD1IT gTRREP
• I Houses
Houses {
3
i s`
Playgrounds 261
' Houses Houses e
L -- ------7 AQARZTA
Twain Houses Houses
Bh
-- -� 3D59
Parking: ,
i Area Houses Houses
Zone P ! !
Zone B _
r" -1ne D , Zone F I Zone A ,
Comprehensive Zoning Ordinance was en- were all zoned for "A" use. The only
_ acted in 1938. The block containing the non- conforming use in this "A" zone was j
lots in question (3264), as well as the and is a small apartment house located on li
blocks to the north (3263), northeast the northeast corner of the intersection of }
(3260), east (3261) and southeast (3059), San Pedro and Summit, directly north of !�
"The only distinction, if it is one," Justice Sears McGee declared
for the unanimous court in reversing here the Court of Civil Appeals, "between
the facts in (Weaver) and this case is that the lots there involved were in
the center of 'A' zone district, whereas the lots in this case are on the
perimeter. We feel that this is a distinction without a difference. If the
zoned area may be encroached upon from the edge, the effect thereof is to
cause the comprehensive plan to collapse like the fall of a row of dominoes
when the first in the row is knocked over." (p. 540)
Iots 1 and 2 (shaded area) are vacant lots on the corner of San
Pedro and Summit and were rezoned in the Hunt ordinance from "A" to "D- Apartments."
The small apartment house across Summit was a non- conforming use in existence
in 1938 when San Antonio adopted its comprehensive map.
Prior to 1959 the clinic existed on the northwest corner. The
attempt of clinic doctors that year to also use the lots in question as
non - commercial parking on Board of Adjustment exception met invalidation by
the Bexar County District Court. In 19651he two lots were rezoned to
"D- Apartments." This San Antonio district includes hospital, clinic, apart-
ment, private club, fraternity - sorority house, child and day care nursery
uses, among others. The Alamo City "A" uses involve garage apart[ents,
public parks, playgrounds, schools and colleges, as well as single - dwellings
and accessory uses. Justice McGee then states: (pp. 539 -40): "The city
relies on the following changes occurring after 1959 [court: The parties
stipulated that there had not been any material change prior to 1959 which
would justify rezoning] in the area surrounding the 2 lots...: (1) a parking
lot had been built on the NW corner of San Pedro and Summit... (2) a theatre
parking lot has been built one block south of the lots; (3) enrollment has
increased at the junior high school across San Pedro and to the South of the
lots; (4) San Pedro Avenue has been widened to accommodate four lanes of
traffic; (5) traffic has increased on San Pedro Avenue in the vicinity of the
lots."
It is then recorded that all the "changes" rung by the city were in
"D" zones and the uses permissible therein, leaving only the street widening
and traffic increase for consideration as possible material changes to justify
rezoning.
The Court adverted to Weaver, where it was held that the widening
of McCullough Street and traffic increase, "no doubt because the population
of San Antonio had pore than doubled since the enactamnt of the comprehensive
plan," generated no issuable fact to support rezoning. And, in Hunt: "These
last two chancres standing alone, in our ooinicn, are insufficient to iusHFT-the
`What, combined with the street - traffic change, might be sufficient?
It would seem that a major change in the physical character of Block 3264
(San Pedro Agarita- Belknap- Summit square) by demolition or razing would
suffice as the added factor.
Certainly the next sentence in the opinion emphasizes the great
importance of the Rathkopf factors:
-5-
1. Should a larger, including area have been appropriately con-
sidered by the legislative body for rezoning?
2. Is the change truly substantial and, if only one physical element
is relied on, e.g., traffic, dramatic?
The sentence reads:
"Plaintiff (Hunt) quite rightly asks why, if increased traffic is
an issuable fact, have only two (Court's eipbasis) lots in the large 'A' zone
on which San Pedro bor rezoned ? ""
The case of Clesi v. Northwest Dallas Improvement Assn., 263
S.W.2d 820 (Civ. App.) 1953) n.r.e., is decidedly distinguished from Hint.
"Tretendous increase in traffic," as sole justification for rezoning, is
accepted as true, for purposes of t onl by Justice DL -Gee, to differ-
entiate that, unlike Hunt, "...several bl of lots [all of which paralleled
the street on which traffic had tremendously increased] were rezoned." (p.540)
The Hunt Court observes:
"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 stand ... An 'extraordinary burden' rests on one attacking the
ordinance to show that no conclusive or even controversial issuable facts or
conditions exist... This query presents a question of law, not a sticn of
fact. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 19555.
The presumption that an aTendatory ordinance is valid, however, disappears
if it is shown that a city acted arbitrarily and unreasonably rather than on
the basis of than ed conditions (often referred to as the ' issuable facts').
Weaver v. Ham, 49 Tex. 309, 2 2 S.W.2d 704 (1950). Spot zoning is widely
con Weaver v. Ham, supra; Barrington v. City of Sherman, 155 S.W.2d
1008 (Tex. Civ. App. 1941, writ ref. w.o.m.)"
Hunt, it seems quite evident, tightens the standardscE "changed
conditicosn -lt indicates strongly that the breadth of factors, as well as
area, and their chronology, is to be enlarged in making the rezoning decision.
In Zoning Digest, 23 ZD 221, (May, 1971) page 163, Professor John
Mixon, College of Law, University of Houston, criticized the Hunt rationale
as follows:
"This case may indeed have represented arbitrary action by the San
Antonio City Council. However, the court's decision seems to be an over-
reaction and puts the Texas judiciary squarely into the planning business.
"The Hunt court assumes that the first plan and first ordinance
Fe written in stale and that any change is highly suspect. If a change
involving a small tract cannot be justified by the city, it will be branded
'spot zoning' and nullified. This approach makes zoning amendments a tricky
business and entices the judiciary into a• wholesale business in land -use
decisions.
-6-
"An alternative view is to assume that planning and zoning form a
continuing process which requires (or at least accoamdates) periodic review
and revision; accordingly, an amendment would be given such a strong presimrp-
tion of validity that a successful attack mast establish irrational or corrupt
behavior by the legislative body. A strong presumption may be sometimes
irritating to an aggrieved citizen, but it leaves the city free to update
its plans and respond to current demands with relative freedom from judicial
planning.
"In a variation of the ' changed - conditions' theme, courts could
assume that any time a lot owner can show that conditions around him have
changed, he is entitled to a change of zone. Although the Hunt case did not
deal with judic=Tyfoorced change, the court's attitude could lead in that
direction."
in the Mixon comment is the wholly unpremised proposition that Texas
courts have gone "into the planning business." There is nothing visible to
me in Hunt that smacks of planning; there is an abundance of strict applica-
tion of the settled zoning law of Texas announced in Weaver and Waxahachie.
The allusion to the zones being "written in stone" is wholly un-
warranted. The Court distinctly enunciated its acceptance of the changes that
had been made in West side San Pedro zoning, the "D" districts. It pointed
the way to procedure that would avoid the bane of irrelevant zoning, i.e.,
zoning by blocks, zoning by considerationcf the comprehensive plan, the
first principle of sound planning and good zoning law, long established.
Incidentally, this is not, of course, to say that all one -lot
rezonings are invalid but the larger the areal extent of rezoning and higher
the percentage of vacant surrounding land the less likelihood of violation of
the comprehensive or detriment to adjoining owners.
For the balance of his comment, Professor Mixon argues for a pre-
sumption of validity in rezoning so strong that only "irrational or corrupt
behavior" of a zoning body would overturn it. It is submitted' that fixing
standards for zoning "irrationality" is exactly what the legal precedents of
"spot" zoning cases has done. Such a "strong presumption" would not only be
often "irritating to an aggrieved citizen ": it would open the door to
systematic, statist flaunting of the rights of surrounding Property owners
and invite "comprehensive- zoning- of- +_he -%-a ." Dr. Mixon closes on a con-
trariety in admitting that the Hunt court did not "...deal with judicially
forced change... ".
In conclusion, the Hunt case is well- reasoned, well- bottomed legally
and, in my opinion, reassures us that the supreme Court of Texas will counte-
nance rezoning only where there has been a genuine change of conditions that
reclassification will fit as a solution to the planning dilemma and the
property - rights adjustment. Its result is to raise the bar higher for he
who would hurdle the existing zoning.
i y/�- V/e-
Janes
✓ R. Riggs
City Attorney