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HomeMy WebLinkAbout10738 ORD - 03/08/1972.2- 21- 72:jkh AN ORDINANCE a AMENDING THE ZONING 0 LE OF TH OF CORPUS � - CHRISTI ADOPTED ON TH 27TH DAY O, A 19 E 7SE APPEARING RERI VOLUME 9 5 5 OF THE OR IN NC RESOLUTIQ�4�� CORDS, A� A FROM TIME 0 AND PART itRLY AS AMEND ORDINANCE .106, ASI'AM�NPED, UPON APPLICATI N OF' c+r v r am / J . ✓, BY 2 D L1J 1241.1 1 LJ PROVISION OF THE EXISTING D tJANCE AS AMENDED; f REPEAL A L ORDINANCES NFLICT HEREWITH; / D RING AN E R !.I I, Y tQS, THE PLANNI G ISSION HAS FORWARDED TO THE CITY COUNCIL ITS REPORTS AND RECOMMENDATIONS CONCERNING THE APPLICATION OF Floyd H. TrUd08u FOR AMENDMENT TO THE ZONING MAP OF THE CITY OF CORPUS CHRISTI; AND WHEREAS, PUBLIC HEARING WAS HELD AT WHICH HEARING ALL PERSONS Y 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 FafiniAry 16. 1972 , AT ECRy]3r 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. 1.0'738 -, SECTION 2. THAT THC ZONING OF all of Lot 15, Bluff Estates, Unit #1, in the City of Corpus Christi, Nueces County, Texas, The and the same is hereby changed from "R -1B" One Family Dwelling District to "R-2" Two Family Dwelling 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 THE 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 I 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 HAVING I 6 DECLARED THAT SUCH EMERGENCY AND NECESSITY EXIST, AND HAVING REQUESTED THE SUSPENSION OF THE CHARTER RULE AND THAT THIS ORDINANCE BE PASSED j FINALLY ON THC DATE OF ITS INTRODUCTION AND TAKE EFFECT AND BE IN FULL i FORCE AND EFFECT -FROM AND AFTER ITS PASSAGE, IT IS ACCORDINGLY SO E ORDAINED, THIS THE DAY OF February, 1972 + ATTEST:, CITY SECRETARY MAYO - I p p R8ME8�1 Q6 r�is / ��� THE CITY OF CORPUS CHRISTI, TEXAS _ _DAY OF lfi CITY ATTORNEY CORPUS CHRISTI, TEXAS AiDAY OF , 19 72.) 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; I, 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, THE CITY OF CORPUS CHRISTI, TEXAS .....;"t THE CHARTER RULE WAS SUSPENDED BY THE FOLLOWING VOTE: RONNIE SIZEMORE CHARLES A. BONNIWELL RoBERTo BosouEz, M.D. REV. HAROLD T. BRANCH f THOMAS V. GONZALES / GABE LOZANO, SR. J. HOWARD STARK / THE ABOVE ORDINANCE WAS PASSED BY THE FOLLOW I =h7 l RONNIE SIZEMORE CHARLES A. BONNIWELL ROBERTO BOSQUEZ, M.D. ✓/ .. • I- Y lam (" ki REV. HAROLD T. BRANCH THOMAS V. GONZALES • GABE LOZANO, SR. / In � J. HOWARD STARK .....;"t 1 � OFFICE OF THE CITY ATTORNEY i'ay �D[........ ._- -- MARCH'. �.✓' 1972 .. .............. ht10 ... Seeeataty, C .Y Ct Cutetis C 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 NO. 6106, AS AMENDED, UPON APPLICATION OF FLOYD H. TRUDEAU BY AMENDING THE ZONING MAP BY CHANGING THE ZONING ON LOT 15, BLUFF ESTATES, UNIT #1, SITUATED IN THE CITY OF CORPUS CHRISTI, NUECES COUNTY, TEXAS, FROM "R -113" ONE FAMILY DWELLING DISTRICT TO "R -2" TWO FAMILY DWELLING 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), 462 3 .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 S.W.2D 704. THE MINUTES OF THE PLANNING COMMISSION HEARING ON TRUDEAU 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. ON THE CONTRARY, THE " TRUDEAU FIELD TRIP NOTES ", ATTACHED, SHOW A DISTRICT COMMITTED TO R -113 WITHOUT MATERIAL CHANGE SINCE 1954. VIABILITY OF THE PALOMA DISTRICT, WITH CONSISTENT DEVOTION TO SINGLE - FAMILY PURPOSES, IS DEMONSTRATED BY THE RE,SSIDING OF HOUSES AND ERECTION OF A GARAGE IN JANUARY, 1954. THIS IS ALSO THE LAST STRUCTURAL CHANGE PERMIT RECORDED BY THE BUILDING OFFICIAL IN THE 40O BLOCK OF PALOMA. A COPY OF THE ZONING AMENDMENT SUMMARY WITH MAP IS ATTACHED. THE FIELD TRIP REVEALS A STREET OF HOMES IN GOOD REPAIR, SOME RECENTLY PAINTED. THE SUBJECT PROPERTY IS A NON- CONFORMING USE AND, AGAIN, THERE IS NO EVIDENCE TO JUSTIFY, BY R -Z ZONINGS AN EXPANSION OF THE NON - CONFORMITY AND ITS PROLONGATION OF LIFE. THERE WAS TESTIMONY THAT THE PROPERTY IS AN "EYESORE11. INSPECTION REVEALS2 HOWEVER2 THAT THE COTTAGES ON THE LOT ARE IN REASONABLY GOOD EXTERNAL CONDITION, BEING OF ASBESTOS- SIDING CONSTRUCTION. THE DRAINAGE ON THE LOT IS NOT ADEQUATE BUT EVEN MODERATELY HEAVY RAINS DO NOT APPEAR TO RENDER IT IMPASSABLE. IF THE DRAINAGE DEFECT IS AN EYESORE2 ITS CORRECTION DOES NOT NECESSITATE R -Z ZONING. THE COMMISSION RECOMMENDATION STATES THAT H THESE LOTS ARE TOO DEEP FOR RESIDENTIAL DEVELOPMENT... II. THERE IS NO EVIDENCE THAT THESE LOTS HAVE BEEN LENGTHENED SINCE THE LAST ZONING OF THE DISTRICT, I.E., THERE HAS BEEN NO CHANGE OF CONDITION IN THIS RESPECT. TO DROP A SEVEN -PLEX HOUSING CONGREGATE INTO THE MIDDLE OF THIS SINGLE- FAMILY NEIGHBORHOOD IS THE TYPE OF REZONING CONDEMNED BY HUNT. IT IS THE VERY SORT OF UNWARRANTED MULTI - FAMILY INTRUSION THAT ASSURES THE FALL OF THE ONE- FAMILY HOUSE INTEGRITY OF THE DISTRICT IN THE "DOMINO' ACTION SO VIVIDLY DESCRIBED BY JUSTICE MCGEE IN HUNT. 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. RESPE FULLY S IT D� JAMES R, RIGGS // CITY ATTORNEY CC: R. MARVIN TOWNSEND, CITY MANAGER WILLIAM ANDERSON, PLANNING DIRECTOR ' CAPTAIN ACUFF, CHAIRMAN OF THE PLANNING COMMISSION NOTE: THE COMMISSION MINUTES OF JANUARY 18 SHOW THAT THE FOUR DWELLINGS HAVE BEEN ON THE SUBJECT PROPERTY FOR MORE THAN 13 YEARS. 'x/29/72 TRUDEAU FIELD TRIP NOTES STUCCO HOUSE AT CORNER OF PALOMA AND JARVIS. MOVING "R -2" TO FRONTAGE AND SUBJECT 9 UNITS. (REVISED TO 7.) TWO HOUSES TO REAR ASBESTOS SIDING. 409 PALOMA 405 - NEXT DOOR, RECENTLY PAINTED WHITE FRAME. 410 - PERMASTONE FRONT, ACROSS STREET. 414 - PART BRICK. 418 - PART BRICK. 429 - CATHEDRAL CEILING BRICK, WITH WELL LANDSCAPED HOUSE NEXT DOOR - 435. 441 - ARCHITECTURALLY STRIKING. 447 - ALL BRICK. 453 - FIRST CLASS CONDITION - FRAME. BRICK APARTMENTS ACROSS (A -1) FROM 465. LOT 14 -D ON JARVIS (4913 JARVIS) BRICK CATHEDRAL CEILING CONSTRUCTION. CAPE HATTERAS - 310 - IN OPPOSITION, IS IN $90,000 -UP RANGE. 318 - ALL BRICK, $40,000 -UP RANGE. LOT 14 -C ON JARVIS, ALTHOUGH VACANT, IS APPARENTLY BEING PUT TO A STORAGE -TYPE USE. J/(MES R. I GGS �: .....y u wiccung of L. euruary Io, lylL - Y.0 —NG AA•11;N131\JENT SU_ MMARY;`"�A�'' "1 :�I?Llicalion No. 172 -7 - Floyd 11. 7'rudeau (Owner) 1�� R <:clucst: Zoning chanl;c frorn "R -113" Onc- family Dwelling District to "R -2" Two - family Dwelling District. Location: An approximate 37, 1.14 square foot area located in the 900 Block of Palorna Street between Jarvis Drive and South Alameda. St'rc_et,. containing all of Lot 15, Bluff Estates, Unit %1. ' - Zoning of Area: The subject property is presently zoned "R- 113" One - family Dwelling District as are all the properties to the south and west; immediately to the cast and farther to the north is "R -1A" which is'also a one - family dwelling district; there are some "13-1" Neighborhood Business District, A -2" Apartment House District, and "AB" Professional Office District fronting on South Alameda Street farther to the south. Land Use of Area: The subject property presently has four single - family dwellings on it -there is a vacant portion ho\vever; properties 'in the surrounding areas are mostly developed with single- family dwellings - there is a scattering of vacant lots however; there is an apartment use located to the south fronting on South Alameda Street. Public Hearing Back 'P- - Planning Commission: The =•fanning Commission public hearing was held on January 18, 1972, at which time Floyd Trudeau stated that there are presently four dwellings - on the subject property consisting of one 3- bedroom house and three 1- bedroom cottages; he proposes to remove these dwellings and construct seven town house units. He further pointed out that the existing 1111-1B" One - family Dwelling District allows only one dwelling unit per lot and since this property is a nonconforming use with four dwelling units, he is unable to enlarge or alter the structures in any way. There were three other persons who appeared in favor of this project, stating that the subject property has alwaysbeen an "eye sore" and that the proposed development would be a great improvement because it would attract a higher class tenant than now live in the small cottages. They further felt that the proposed townhouses would enhance the neighborhood. No one spoke in opposition. 37 Notices were mailed, three received in favor and 10 in opposition. Planning Commission Recommendation to City Council: That "R -2" be approved because there has been a change in the character of the neighborhood, these lots are too deep for residential development, and "R -2" could revitalize this area due to the depth of the lots along Paloma Street in the Bluff Estates Subdivision. Motion carried with sbc members voting for, one abstaining, and one member absent. Staff Comments and Recommendation: The entire surrounding areas are all single - family dwellings, and the "R -2" i zoning would be a silRle purpose none within this area which would permit construction of up to 11 units. The zoning request is contrary to the ADC Land Use Plan, and since the subject property could be replatted into four single - family lots, which would be more in keeping with the area, the Staff recom- mends denial. MAP ATTACHED 41 O�v wi t� - - ,� �T tee,• o.. ..! SUIiJl✓C:1'- MEYl'1'1.lt .. 4 - - - 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 same 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 from 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 Harmon 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 community. [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 amendmment. (citing Long V. Co us CI risti LCmv.App. 31�� , den., n.r.e. . . . A spot zoning o"ce carrot 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 irrvalid.[Citing McNutt Oil & Refining Co. v. Brooks (Civ. App.) 244 S.W.2d 872.1)" The saoantic dilemma in Texas arising from the attempted distinction between "legal" spot zoning and "illegal" spot zoning is vividly conveyed by comparison of the Long, Waxahachie, and Skinner case statements, aside from the applications, with that of McNutt and,fi=er, with 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 "small" area. Northern and Eastern states, as will presently be shown, with their longer experiences with zoning law, have by and large become 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 amendatory ordinance permitting retail establishments in a previously practically undeveloped area in which several . -=Ak hundred hones 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. (Cities 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 zone of the ndux3 surrou area would not per se be invalid sumo the —7-4— J��— w oivGa�e a nazurel estaDlisnect residential zone. ", further noting e statement in Ward v. Montganery Towns p, Sup. N.J., 28 N.J. 529, that "there is no requirement in the law that zoning be immutable, paiticalarly in relatively unAe„eI oped araag," [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 cannon knowledge, the historically prime reason for the comprehensive zoning plan and, for reasonable consideration in such protection is the conservation of the prevailing aesthetic .of- the- ihanec- mighborhood,i- 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 determination, the definition in Rodgers n Village of Tarrytown (Court of Appeals of State of New York) 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 promoting the comprehensive 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 Santmyers v. Town of Oyster Bay, (Sp. T., N.Y.) 163 N.Y.S 2d 59, which rezoned a small corner, accommnodating three houses, from residential to co mnercial, 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 moist be no piecemeal tearing away of the protections of the [comprehensive zoning] ordinance." Rathkcpf, 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 com - 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 Pennsytvam.a announced the most determinative test as "whether the parcel in question is being singled out for treatment unjustifiably differing from 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 Raskin v. City of Northlake (1ll. Apps.) 204 N.E. 2d 600 and Lancaster Dev: Lts. v. yi.l a3 ge of !Ever Forest (I11. App. Ct., 1967) 228 N.E. 2d 526, which enumerated smallness of area and disharmony with the comprehensive 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 zoning. 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: 'tIt.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 promote the neighborhood over and above the benefit to the owner of the tract in question? Thus it is that Rathkopf concludes: "The uniform rule as set out in all of the cases is that consistency between the treatment accorded the parcel rezoned and the scheme of zoning set out in the general or comprehensive lam is the essential test." PAIUICULAR FACTORS IN IRRELEVANT 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. Fvuhere 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�ane., 24 N. S. 152, that size of the rezoned tract alone is no controlling test. Markedly growing population density in a district and the using up, by improvenents 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. 211. White Plains Corp. v. Village of Hastings on Hudson, 180 N.Y.S. 2d. 13. Rezoning from R -1B 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. from 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. On a less firm base is the McNutt case, supra (Texas). THE ERA OF 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 VQeaver v. Ham (Tex. Sup. Ct., 1950), 232 S.W. 2d 704, wherein ". . the integrity of�A zone (single - family dwelling) classification of this area (San Pedro Avenue) has ,previously.been. protected by this- Court. . (See attached maps.) -4- i 538 Tex. 462 SOUTH WESTERN REPORTER, 2d SERIES West Summit Street. Plaintiff owns a across Summit and down the street a few home in the immediate vicinity of the lots, houses. (See plat). The San Antonio Zone D Zone A j Houses Houses lionl •••Houses Houses - 6 1 r i Houses Houses ` f a' 26 3260 Parking p Q009000 • � Clime 5 Apt Houses t•' ))1 vZ SUKKIT STAHI;T ' k 1 i • {i Houses Housee < 1 1 , hl 1 1 261 - � Playgrounds I 1964 1 Housee Houses i - L--- - - -_ -1 ADARITA T ryn ; Houses E.- :-:-e Bh --i o5 i erkin9 ; i Area Houses Houses i ' 1 Zone F r- -- - - - - -- - --- Zone H Z Zone D 1 one P - 1 Zorn A Comprehensive Zoning Ordinance was en- were all zoned for "A" use. The only E 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 oil i blocks to the north (3263), northeast the northeast comer of the intersection of 1 i (3260), east (3261) and southeast (3059), San Pedro and Summit, directly north of ( i 7 1 "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 raw of dominoes when the first in the row is knocked over." (p. 540) Lots 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 nonconforming use in existence in 1938 when San Antonio adopted its conprehensive 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 1965 the 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 apartments, 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 world 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 ac=miodate 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 naterial changes to justify rezoning. The Court adverted to haver, where it was held that the widening of McCullough Street and traffic increase, "no doubt because the population of San Antonio had more than doubled since the enactment of the comprehensive plan," generated no issuable fact to support rezoning. And, in Hunt: "These last two chances standing alone, in our opinion, are insufficient to justify 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 enphasizes 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 enohasis) lots in the large 'A' zone on which San Pedro borders been rezoned ?" The case of Clesi v. Northwest Dallas Improvement Assn., 263 S.W.2d 820 (Civ. App.) 1953) n.r.e., is decidedly distinguished fran Hunt. "Tremendous increase in traffic," as sole justification for rezoning, is accepted as true, for purposes of argument only, by Justice McGee, to differ- entiate that, unlike Hunt, "...several blocks 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 question_ of fact. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955). The presumption that an amendatory ordinance is valid, however, disappears if it is shown that a city acted arbitrarily and unreasonably rather than on the basis of changed conditions (often referred to as the 'issuable facts'). Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704 (1950). Spot zoning is widely condemned. Whaver 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 conditions " -It 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 are written in one 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 acoaTnodates) periodic review and revision; accordingly, an amendment would be given such a strong presump- tion of validity that a successful attack must 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 judicially forced 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 we in Hunt that smacks of planning; there is an abundance of strict applica- tion of the settled zoning law of Texas announced an 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 A'est side San Pedro zoning, the "D" districts. It pointed the Fray 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 detrinent to adjoining owners. For the balance of his comment, Professor Mixon argues for a pre - sumgticn 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 "ccniprehensive- zoning -of- the - week." 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- bottaTed legally and, in my opinion, reassures us that the Supreme Court of Terms will counte- nance rezoning only where there has been a genuine change of conditions that reclassification will fit as a solution to the planning dilanma and the property - rights adjustment. Its result is to raise the bar higher for he who would hurdle the existing zoning. James R. Riggs City Attorney