                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00030-CV

CITY OF GATESVILLE, TEXAS,
                                                            Appellant
v.

LARRY HUGHES AND GLENDA HUGHES,
                                                            Appellees



                           From the 52nd District Court
                              Coryell County, Texas
                              Trial Court No. 40078


                          MEMORANDUM OPINION


      Larry and Glenda Hughes filed suit against the City of Gatesville seeking a

declaratory judgment to invalidate the City’s zoning ordinance. The zoning ordinance

reclassified certain property from single family residential to community facility. The

trial court entered judgment declaring the ordinance void. The trial court permanently

enjoined the City from enforcing the ordinance. The trial court further declared that the

property in question be zoned as single family residential. The City appeals from the

trial court’s judgment. We reverse the judgment of the trial court.
                                      Background Facts

        The property in question is known as the Rotunda and is located in the City of

Gatesville. For many years the property operated as a nursing home facility. The

Rotunda was in use as a nursing home facility at the time the property was zoned as

single family residential in 1995. The Rotunda ceased operating in approximately 2000.

The parties agree that the Rotunda property is in a state of disrepair and is a public

nuisance.     The Rotunda is littered with graffiti, has broken windows, exposed

insulation, and the ceilings are beginning to fall.

        The City, Coryell County, and Gatesville Independent School District acquired

the Rotunda property through tax foreclosure. The property was later conveyed solely

to the City. It was discovered that the Rotunda contained asbestos, and abatement of the

property was more expensive than the City anticipated. The City sought a grant to

assist in having the property abated. The City would receive more “points” in receiving

the grant if the project would benefit the community.

        The City and the Boys and Girls Club discussed the possibility of the Club

building a recreation center on the property. The property would need to be rezoned as

a community facility in order for the Club to operate a recreation facility on the

property.

        Larry and Glenda Hughes own a home on Lover’s Lane near the Rotunda. The

home is located on 134 acres of land that has been in the Hughes’s family for many

years. Larry and Glenda remodeled the house approximately fifteen years ago. In

October 2009, the Hughes bought a house next door to the Rotunda. Larry testified that

City of Gatesville, Texas v. Hughes                                               Page 2
they took up permanent residence in the house next door to the Rotunda in July 2010.

However, Larry and Glenda still own the house on Lover’s Lane and claim that home as

their homestead. Larry and Glenda opposed the rezoning of the Rotunda property.

                                         Analysis

        In the first issue on appeal, the City argues that the zoning ordinance did not

constitute illegal 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. City of Pharr v. Tippitt, 616 S.W.2d 173, 175

(Tex. 1981). The term is not a word of art, rather it is descriptive of the process of

singling out a small parcel of land for use classification different and inconsistent with

that of the surrounding area, for the benefit of the owner of such property and to the

detriment of the rights of other property owners. Burkett v. City of Texarkana, 500 S.W.2d

242, 244 (Tex. App.—Texarkana 1973, writ ref’d n.r.e.).

        Zoning is an exercise of a municipality's legislative powers. City of Pharr v.

Tippitt, 616 S.W.2d at 175. 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 as a valid exercise of the city's police power. City of Pharr v. Tippitt, 616 S.W.2d at

176; City of University Park v. Benners, 485 S.W.2d 773 (Tex. 1972); Hunt v. City of San

Antonio, 462 S.W.2d 536, 539 (Tex. 1971).

        A zoning ordinance is presumed to be valid and the burden is on the one seeking

to prevent its enforcement, whether generally or as to particular property, to prove that

City of Gatesville, Texas v. Hughes                                                    Page 3
the ordinance is arbitrary or unreasonable in that it bears no substantial relationship to

the health, safety, morals or general welfare of the community. City of Pharr v. Tippitt,

616 S.W.2d at 176; Thompson v. City of Palestine, 510 S.W.2d 579, 581 (Tex. 1974). An

“extraordinary burden” rests on the party attacking the ordinance. Thompson v. City of

Palestine, 510 S.W.2d at 581.

        The Court set out criteria for reviewing zoning ordinances and amendments in

City of Pharr v. Tippitt.

    1. The approved zoning plan should be respected and not altered for the special

        benefit of the landowner when the change will cause substantial detriment to the

        surrounding lands or serve no substantial purpose.

    2. The nature and degree of an adverse impact upon neighboring lands is

        important.

    3. The suitability or unsuitability of the tract for use as presently zoned is a factor to

        be considered.

    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.

    See City of Pharr v. Tippitt, 616 S.W.2d at 176-177.

Substantial Detriment to Surrounding Lands

        The most recent use of the Rotunda property was as a nursing home facility. The

use of the property was consistent with that of a community facility. Therefore, the

amendment will not cause a substantial detriment to the surrounding lands. The City

City of Gatesville, Texas v. Hughes                                                     Page 4
owns the land, and the amendment was not for the special benefit of a landowner. The

amendment serves a substantial purpose in helping the City acquire more points on a

grant to help with the removal of asbestos.

Adverse Impact Upon Neighboring Lands

        Lots that are rezoned in a way that is substantially inconsistent with the zoning

of the surrounding area, whether more or less restrictive, are likely to be invalid. City of

Pharr v. Tippitt, 616 S.W.2d at 177. The Rotunda property consists of four lots and the

property immediately contiguous to the Rotunda is zoned as single family residential.

However, a half block from the Rotunda is the school bus barn where school buses are

stored. There is an elementary school located across from the bus barn.              These

properties are both zoned as community facility.

        The Rotunda is located approximately two blocks from the business district for

the City. An Atmos gas company facility is located “catty-corner” from the Rotunda.

That property is zoned as single family residential, but is in use as business commercial.

The zoning amendment is consistent with the previous use of the property and the

surrounding area.

Suitability or Unsuitability as Presently Zoned

        Although previously zoned as single family residential, the Rotunda property

was also previously used as a community facility.         There is no evidence that the

Rotunda property has ever been used for single family residential purposes.             The

building on the property contains asbestos.        Use of the property as single family

residential would require appropriate removal of the asbestos and the nursing home

City of Gatesville, Texas v. Hughes                                                   Page 5
facility. The City is in a better position to receive grants to aid in the removal of the

asbestos if the property is zoned as community facility. The location, previous use, and

condition of the property make it more suitable as a community facility.

Relationship to Public Health, Safety, Morals or General Welfare

        The property has deteriorated and is in a state of disrepair. In addition to the

asbestos, the ceiling of the building is caving in and the windows are broken out. The

property has been vandalized and is an eyesore in the community. The city manager

testified that the property is unsafe. The removal of the deteriorating building and

asbestos would benefit the general welfare of the community. As previously stated, the

City sought grants to help with the costs of abating asbestos hazard on the property and

would receive more favorable consideration if the property is zoned for the benefit of

the community. A rezoning ordinance may be justified if a substantial public need

exists, even if the private owner of the tract would also benefit. City of Pharr v. Tippitt,

616 S.W.2d at 177. The zoning amendment bears a substantial relationship to the public

health, safety, morals, or general welfare.

        Applying the criteria as set out in City of Pharr v. Tippitt, the Hughes did not meet

their extraordinary burden to prove that the City acted unreasonably or arbitrarily in

enacting the zoning ordinance. See City of Pharr v. Tippitt, 616 S.W.2d at 179. The

zoning ordinance bears a reasonable relation to the general welfare, and the City could

make the amendment without showing a change in conditions. See City of San Antonio

v. Arden Encino Partners, Ltd., 103 S.W.3d 627, 632 (Tex. App.—San Antonio 2003, no

pet.); Burkett v. City of Texarkana, 500 S.W.2d at 245. We find that the zoning ordinance

City of Gatesville, Texas v. Hughes                                                    Page 6
is valid and is not impermissible spot zoning. We sustain the City’s first issue on

appeal. Having found that the zoning ordinance is valid and that the Hughes did not

meet their extraordinary burden to show that the ordinance was unreasonable or

arbitrary, we need not address the City’s remaining issues on appeal. TEX. R. APP. P.

47.1.

                                       Conclusion

        We reverse the trial court’s judgment declaring the Ordinance Number 2010-07

to be void and permanently enjoining the City of Gatesville from enforcing the

Ordinance. We render judgment that Ordinance Number 2010-07, adopted September

14, 2010, is valid and may be enforced by the City of Gatesville.



                                         AL SCOGGINS
                                         Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and rendered
Opinion delivered and filed August 17, 2011
[CV06]




City of Gatesville, Texas v. Hughes                                            Page 7
