Opinion
No. 04-01-00008-CV
Delivered and Filed: June 12, 2002
Appeal From the 150th Judicial District Court, Bexar County, Texas, Trial Court No. 1999-CI-16985, Honorable John J. Specia, Jr., Judge Presiding.
Reversed And Remanded
Deborah L. Klein, for appellant.
Seagal V. Wheatley and Julia W. Mann, for appellee.
Sitting: Phil HARDBERGER, Chief Justice, Paul W. GREEN, Justice, Karen ANGELINI, Justice.
The trial court granted summary judgment to appellee Arden Encino Partners, Ltd. (AEP) and permanently enjoined appellant City of San Antonio from implementing a zoning change to AEP's property. In this appeal, the City contends summary judgment was improper because it raised a fact issue regarding whether the zoning change was a proper use of its legislative authority. We reverse the judgment of the trial court and remand for further proceedings.
Background
In 1985, the City zoned a certain 22.453 acre tract of land located in far north San Antonio as B-2 ERZD, a designation which allows the development of multi-family apartment complexes. AEP acquired the property in 1994. In 1999, Councilman Bannwolf, who represented the district in which AEP's property is located, proposed that the City downzone the property's classification to O-1 ERZD, a designation which allows offices and other business development but no apartments. After an open hearing and deliberation, the City passed Ordinance 909000, downzoning the AEP property as proposed.
AEP filed a petition for declaratory judgment and for permanent injunction, asserting the City had no legitimate public concerns warranting a change in zoning. AEP claims Councilman Bannwolf had an ulterior motive for proposing the change because he endorsed another developer's apartment complex in the same area, drawing the ire of local homeowners. AEP also alleges the change amounts to impermissible "spot zoning." The trial court granted summary judgment for AEP, and the City filed this appeal.
Standard of Review
Zoning is a legislative function of municipal government. City of Pharr v. Tippitt, 616 S.W.2d 173, 175 (Tex. 1981). Thus, the courts must give deference to the city's action such that, "[i]f 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 as a valid exercise of the city's police power." Id. at 176. No property owner has a vested interest in particular zoning classifications, and a city may rezone as public necessity demands. City of University Park v. Benners, 485 S.W.2d 773, 778 (Tex. 1972); Williamson Pointe Venture v. City of Austin, 912 S.W.2d 340, 343 (Tex.App.-Austin 1995, no writ). A zoning ordinance is presumed valid, and the burden is on the one seeking to prevent its enforcement to prove the ordinance is arbitrary or unreasonable because it bears no substantial relationship to the public health, safety, morals or general welfare. Tippitt, 616 S.W.2d at 176. This extraordinary burden requires the complainant to show "that no conclusive, or even fairly issuable facts or conditions exist in support of [the city's] exercise of the police power." Benners, 485 S.W.2d at 779. The complainant has the same burden when seeking a summary judgment to invalidate an ordinance. Id. at 776.
Determining the reasonableness of a zoning ordinance is a question of law for the court. Houston T.C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, 653 (Tex. 1905). However, if the facts upon which that determination depends are in dispute, "they are to be determined like other matters of fact." Id. at 654. Therefore, to defeat summary judgment, the proponent of the zoning ordinance need only show some evidence of facts that tend to support passage of the ordinance. Bearing in mind the burden on the challenger of an ordinance, we review the summary judgment de novo, considering the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
See Benners, 485 S.W.2d at 781. A city council's decision need not be based on what is presented at the zoning hearing. Instead, after all parties have had an opportunity to be heard, the council may act on its own knowledge of the community and its own appraisal of the public welfare. TR Assoc., Inc. v. City of Amarillo, 688 S.W.2d 622, 627 (Tex.App.-Amarillo 1985, writ ref'd n.r.e.). Accordingly, we are not concerned solely with what facts were presented to the council at the time of the vote, but whether facts exist, as developed in the record, that would support passage of the ordinance. City of Glenn Heights v. Sheffield Dev. Co., Inc., 61 S.W.3d 634, 645 (Tex.App.-Waco 2001, pet. filed).
Discussion A. Substantial Relationship to Legitimate Public Interests
If, in response to AEP's motion for summary judgment, the City of San Antonio set forth facts showing any arguable government interest to support the zoning change, summary judgment was not appropriate. A broad range of governmental purposes and interests will support passage of a property regulation. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 934 (Tex. 1998). Courts have recognized legitimate public interests in: (1) protecting residents from the ill effects of urbanization; (2) enhancing quality of life; (3) protecting a beach system for recreation, tourism, and health; (4) preservation of agricultural uses of land; (5) controlling the rate and character of growth; and (6) discouraging conversion of open-space land to urban use. See id.; City of Glenn Heights, 61 S.W.3d at 645-46.
In its response to AEP's motion for summary judgment, the City presented the minutes from the council meeting approving the downzoning, along with excerpts from the depositions of Councilman Bannwolf and former Mayor Howard Peak. The minutes reflect three citizens spoke in favor of the downzoning to prevent overdevelopment of the Encino Park area, including: (1) the need for an appropriate buffer zone for the residential area, (2) aversion to placement of a three-story apartment building overlooking family residences, and (3) the collection of approximately 1,100 signatures from area residents opposed to apartment development on the tract. Councilman Bannwolf also spoke, noting the B-2 ERZD zoning did not reflect the original development plan for the area and downzoning the property to O-1 ERZD would be in line with the light commercial development originally proposed. Both Councilman Bannwolf and Mayor Peak, a former councilman for the Encino Park area, testified they were familiar with growth in the area, resulting in congested and dangerous traffic conditions around the ingress and egress points of the community to Highway 281 and stress on city services.
AEP complains the testimony of the council members is not valid summary judgment evidence. Although we agree the subjective intent or motive for an individual legislator's vote is irrelevant to our inquiry, the testimony of Bannwolf and Peak was properly offered to set forth facts regarding the change in conditions around the rezoned property.
AEP complains Councilman Bannwolf had an ulterior motive for recommending the downzoning because he previously recommended rezoning a nearby property from business to multi-family and needed to appease irate residents in the area. Councilmann Bannwolf's motives are irrelevant so long as the conditions of the area support the rezoning. Further, the fact that the City rezoned a property directly abutting the interstate highway to multi-family could be construed as part of a legitimate overall plan to congregate dense, traffic-heavy development closer to the interstate, decreasing the density of development to business and then to residential as the property in question gets farther from the highway.
A map of the disputed property provided by AEP shows its property is located just south of Encino Rio Road and immediately adjacent to the established Encino Park residential area. AEP's property has no direct access to Hwy. 281; therefore, all traffic for AEP's proposed apartment complex would enter and exit from small arterial roads giving access into Encino Park, creating more congestion for the residential area immediately east of AEP's project. An apartment complex would be directly behind single family homes. Property west of AEP's tract and immediately adjacent to Hwy. 281 is zoned B-3. Property south of AEP's tract and immediately adjacent to Hwy. 281 was recently rezoned to B-2. Property just north of Encino Rio Road and similarly situated to AEP's property in that it has no direct access to Hwy. 281 and abuts the residential area is zoned O-1.
The evidence presented by the City raises arguable issues of fact regarding potential adverse effects on the adjacent family homes, as well as congested and dangerous traffic conditions in the neighborhood that would be exacerbated by the development of a multi-family apartment complex on the AEP property. This evidence is sufficient to overcome summary judgment because AEP failed to meet its burden to show there are no conclusive or even controversial issuable facts or conditions supporting the City's exercise of its zoning authority. See Thompson v. City of Palestine, 510 S.W.2d 579, 582 (Tex. 1974) (discussing zoning opponent's burden of proof); Bell v. City of Waco, 835 S.W.2d 211, 215 (Tex.App.-Waco 1992, writ denied) (landowner did not discharge his burden to show ordinance was arbitrary, capricious, or unreasonable).
B. Spot Zoning
AEP claims the downzoning of its tract is impermissible "spot zoning." "Spot zoning" occurs when "a small area is singled out for different treatment from that accorded to similar surrounding land without any showing of justifiable changes in conditions." However, a city may amend its zoning ordinance even in the absence of a change in conditions if the amendment "bears a reasonable relation to the general welfare and to an orderly plan of zoning development." Benners, 485 S.W.2d at 780.
Thompson, 510 S.W.2d at 58. A claim of "spot zoning" is most often made when the rezoned area receives preferential treatment which has a substantial adverse impact on the surrounding land. See, e.g.,Tippitt, 616 S.W.2d at 177; Thompson, 510 S.W.2d at 582; City of San Antonio v. Lanier, 542 S.W.2d 232, 235 (Tex.App.-San Antonio 1976, writ ref'd n.r.e.). However, zoning changes to relatively small parcels of land have been overturned in cases where the change in zoning had a deleterious and unwarranted effect on the property at issue without substantial value to the city's overall zoning plan. See City of West University Place v. Ellis, 134 Tex. 222, 134 S.W.2d 1038,1041 (Tex. 1940) (single lot surrounded by businesses not suitable for residential zoning); City of Beaumont v. Salhab, 596 S.W.2d 536, 540-41 (Tex.App.-Beaumont 1980, writ ref'd n.r.e.) (partial tract entirely surrounded by business improperly rezoned residential); Barrington v. City of Sherman, 155 S.W.2d 1008, 1009-11 (Tex.Civ.App.-Dallas 1941, writ ref'd w.o.m.) (narrow strip surrounded by train tracks and business or industrial development improperly rezoned residential).
As previously noted, the record in this case contains some evidence of a change in conditions due to growth in the area of the rezoning. Additionally, the record indicates the rezoning resulted in the concentration of more heavily developed areas along the highway, with lighter business development acting as a buffer between the heavy commercial areas and the single family homes. Although the change to AEP's land may have some adverse impact on that property, the summary judgment record does not establish that the overall plan does not promote the good of the community. See id. Accordingly, AEP failed to carry its summary judgment burden to show no valid relationship between the rezoning and the public welfare.
Conclusion
Because AEP failed to meet its heavy summary judgment burden to show there are no arguable issues of fact in support of the zoning change, we sustain the City's points of error and reverse the judgment of the trial court. We remand the case for further proceedings.