City of San Antonio v. TPLP Office Park Properties, A Texas Limited Partnership; Intervenor, MSDW Southwest Partners, L.L.P.--Appeal from 150th Judicial District Court of Bexar County

Appellant

v.

TPLP OFFICE PARK PROPERTIES, LTD.

and MSDW Southwest Partners, L.L.P.,

Appellees

From the 150th Judicial District Court, Bexar County, Texas

Trial Court No. 99-CI-12469

Honorable John Specia, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Dissenting opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: September 29, 2004

This case is about the right of the City of San Antonio ("the City") to block the ingress and egress of high volume commercial traffic through a residential area. While it is undisputed that the City has the authority to do so by virtue of its police powers to protect the health, safety and welfare of its citizens, it is contended in this case that the City acted arbitrarily in attempting to exercise its power. The trial court and the majority agree. I respectfully dissent.

Since 1971, the City has denied repeated requests by the developer of the Park Ten Business Park to allow commercial traffic to access Freiling Drive, a residential street, because of the detrimental effect that high volume commercial traffic would have on the subdivision and its residents. In spite of this, the developer achieved access to Freiling anyway by building a driveway across property it acquired in the adjacent city of Balcones Heights ("the Freiling Driveway"). In 1999, in response to repeated complaints about the high volume of traffic entering and exiting the business park via the Freiling Driveway, the City sought to enforce its prior zoning ordinances by erecting a barricade across the driveway in the City's right-of-way. And in 2001, the City passed a new ordinance for the "enforcement of prior ordinances by closure of the street/access connection between Freiling Drive and Park Ten Boulevard." (emphasis added). The owners of property interests within the Park Ten Business Park ("TPLP") sued to enjoin the City's action.

The 2001 ordinance cites potential safety hazards to school children and others, and a general nuisance to the residential neighborhood, as the basis for closing access to Freiling Drive via the Freiling Driveway. The action is also supported by the City traffic engineer who testified there is a design policy to separate commercial traffic from residential traffic. He said people who live in residential neighborhoods expect the volume of traffic to be consistent with that of a residential area. He further said the existence of the Freiling Driveway results in high traffic counts in the residential area that adversely affects the residents' quality of life, which justifies closing the driveway.

TPLP acknowledges the City has the power to close the driveway, but says that in this instance the City exercised its power arbitrarily. The basic complaint is that closure of the Freiling Driveway will result in material and substantial impairment of access to TPLP's property interests in violation of its substantive due process rights.

In Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998) the supreme court said:

A court should not set aside a zoning determination for a substantive due process violation unless the action has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense. A generally applicable zoning ordinance will survive a substantive due process challenge if it is designed to accomplish an objective within the government's police power and if a rational relationship exists between the ordinance and its purpose. This deferential inquiry does not focus on the ultimate effectiveness of the ordinance, but on whether the enacting body could have rationally believed at the time of enactment that the ordinance would promote its objective. If it is at least fairly debatable that the decision was rationally related to legitimate government interests, the decision must be upheld. The ordinance will violate substantive due process only if it is clearly arbitrary and unreasonable.

Id. at 938. (quotations and citations omitted)(italics in original). Also, in City of San Antonio v. Arden Encino Partners, 103 S.W.3d 627 (Tex. App.-San Antonio 2003, no pet.), we emphasized the deferential approach that must be given to a city's zoning decisions:

Zoning is a legislative function of municipal government. Thus, the courts must give deference to the city's action such that 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. No property owner has a vested interest in particular zoning classifications, and a city may rezone as public necessity demands. 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. 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. Courts may not interfere unless a challenged ordinance is shown to represent a clear abuse of municipal discretion or unless there is conclusive evidence that a zoning ordinance is arbitrary either generally or as to particular property.

964 S.W.2d at 930. (quotations and citations omitted)

TPLP contends these authorities are inapplicable because it claims not to be challenging the ordinances that form the basis for the City's action. But that cannot be so. The 2001 ordinance clearly provides for "closure of the street/access connection between Park Ten Boulevard to Freiling Drive," and TPLP failed to prove that "no conclusive, or even fairly issuable facts or conditions exist in support of the city's exercise of the police power."

The City's decision to close the Freiling Driveway is supported by more than enough evidence to justify the exercise of its police power. TPLP failed to conclusively prove that the City's action was arbitrary, or resulted in material and substantial impairment of access to TPLP's property interests. Because the City's action was arguably based on concerns over the safety and well-being of residents in the adjoining residential neighborhood, it was not an arbitrary and unreasonable exercise of its police powers.

The trial court's judgment should be reversed. Because the majority affirms, I respectfully dissent.

Justice Paul W. Green