THE CITY OF MESQUITE, FROM A DISTRICT COURT APPELLANT, v. THOMAS HELMS, KENNETH M. HELMS, LESTER G. ELLIOTT, ELIZABETH A. ELLIOTT, JAMES ELLIOTT, DAN WHITE, JUDY WHITE, STEVEN R. SNOW, MISTY SNOW, FLOYD TEMPLETON, MARY TEMPLETON, and BILL E. BLAIR, APPELLEES

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-87-01247-CV
 
THE CITY OF MESQUITE, FROM A DISTRICT COURT
 
 
        APPELLANT,
 
 
v.
 
 
THOMAS HELMS, KENNETH M. HELMS,
LESTER G. ELLIOTT, ELIZABETH A.
ELLIOTT, JAMES ELLIOTT, DAN
WHITE, JUDY WHITE, STEVEN R. SNOW,
MISTY SNOW, FLOYD TEMPLETON, MARY
TEMPLETON, and BILL E. BLAIR,
 
 
        APPELLEES. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, BAKER AND THOMAS
OPINION BY JUSTICE THOMAS
JUNE 23, 1989
        The City Council of appellee, the City of Mesquite, granted Gary Cooper's application for a building permit and a certificate of occupancy which allowed him to build and operate a horse stable on property adjacent to the property of appellants, Thomas Helms, Kenneth Helms, Lester G. Elliott, Elizabeth A. Elliott, James Elliott, Dan White, Judy White, Steven R. Snow, Misty Snow, Floyd Templeton, Mary Templeton, and Bill E. Blair (hereafter referred to collectively as Helms).
        After a trial before the court, the trial court concluded that the City Council had acted unreasonably, arbitrarily and capriciously in granting Cooper permission to operate the horse stable because the City Council had failed to consider the future zoning of the area as the City ordinance required. Thus, Helms obtained a permanent injunction against the City, enjoining the City from issuing a certificate of occupancy and ordering the City to rescind the building permits. In four points of error, the City contends that the trial court erred: 1) in finding that the City Council's actions were arbitrary, capricious and unreasonable; 2) in finding that the City Council failed to consider the future zoning of the area; 3) in finding that the City Council has no authority to ratify property uses already in place; and 4) in rendering judgment against the City. We agree that the trial court erred. Accordingly, we reverse the trial court's judgment and dissolve the injunction.
FACTUAL BACKGROUND
        The City adopted a comprehensive zoning ordinance in 1973. Under section 05.06 of the zoning ordinance, newly annexed property is initially zoned as agricultural. Annexed property remains zoned agricultural until rezoning is initiated by petition of the property owners or sua sponte by the City. Cooper's property and Helms's property was annexed to the City in 1984. It has since that time retained its initial agricultural zoning. No one had sought to change that zoning prior to the trial of this cause.
        Section 05.06 of the zoning ordinance places certain restrictions on building in agricultural areas. The City Council must approve building permits for buildings other than single-family dwellings and accessory buildings. A property owner must make an application to the building inspector for any use of the property; if the application is for use other than a single-family dwelling or accessory building, the building inspector must refer the application to the Planning and Zoning Commission. The Commission then makes an advisory, nonbinding recommendation to the Council. Cooper applied for, and was granted, a building permit for a 2,400-square-foot barn, considered an accessory building, in November 1985. In June 1986, a building permit for another accessory building, a 13,500-square-foot pole barn, issued. Because the barns were considered accessory buildings, City Council approval was not required. In July 1986, a neighbor reported to the Planning and Zoning Commission that Cooper intended to use the barns as stables for horses. The Commission contacted Cooper, informing him that a stabling operation might not be a permitted use in that area. Cooper requested a letter outlining the permitted use for the area. On July 22, 1986, the Commission wrote Cooper a letter stating that commercial stables were not allowed in the area, but that a noncommercial stabling operation would be allowed in an agricultural area. Cooper halted construction on the large barn.
        In September 1986, neighbors complained that some horses were being stabled and that nonresident horse owners were seen on the property on weekends. The Commission contacted Cooper again in October to request documentation to verify that the operation was noncommercial. Cooper did not respond, and on November 17, the Commission again sent a letter stating that certain actions were necessary before the Commission could issue a certificate of occupancy. Cooper visited the Commission's offices on November 21 and submitted documents to substantiate that the use was noncommercial.
        The City attorney informed the Commission in December 1986 that the submitted documents were not sufficient to establish the use as noncommercial; the City attorney then reviewed with Cooper's attorney the type of documentation needed to establish the use as noncommercial. In February 1987, Cooper's attorney submitted documents showing that the horse stabling operation was a not-for-profit corporation called Mesquite Equestrian, Inc. The corporation operated the "Star 'C' Equestrian Club," whose members paid dues of $150 per month and stabled their horses at Cooper's property.
The City attorney reviewed the submitted documentation and concluded that it was sufficient to establish the use as noncommercial. Cooper was informed of this fact by the Commission on March 2, 1987.
        The Commission then requested that Cooper submit a site plan showing existing and proposed improvements so that steps for review and approval could be taken. Cooper submitted the site plan on April 1, 1987. Commission staff conducted a plan review and concluded that, although noncommercial riding stables were permitted in an agricultural area, Cooper's application should be denied. That conclusion was based upon the location, size and shape of the property, and upon the "permanent zoning to be applied to the area." The Commission staff noted that road access to the property, parking, fire service, and sewage were all potential problems with operating a horse stable at the site. The Commission recommended to the City Council that Cooper's application be denied. Nevertheless, the City Council approved Cooper's use of his property as a horse stabling operation on June 1, 1987. The City Council did, however, impose a number of restrictions, including a five-year limitation on use as a stabling operation.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
        After a bench trial, the court made the following relevant findings:
    10. Contrary to section 05.06, application for such building permits [for the barns] were never made to the City of Mesquite.
 
* * *
    12. Although applications were never formally submitted by Mr. Gary Cooper, the City Planner's Office, in April, 1987, recommended that the application be denied.
The court also made the following conclusions of law FN:1 :
    1. The Mesquite City Council did not give due consideration to the type of permanent zoning to be applied to the area in which the subject five-acre tract is located pursuant to section 05.06 of the zoning laws of the City of Mesquite.
 
    2. The actions of the City Council in granting the permit of the applicant, Gary Cooper, on the subject five-acre tract were arbitrary, capricious, or unreasonable because the City did not follow the procedures prescribed in its own ordinances.
 
    3. Section 05.06 of the zoning laws of the City of Mesquite does not give the City Council the authority to ratify uses already in place, but requires that an applicant making application for a particular use must apply prior to the onset of the contemplated use.
 
    4. A particular use having been entered into without the application having been made and a permit having been issued in accordance with section 05.06, is invalid and cannot be validated by ratification of the City Council for the City of Mesquite.
STANDARD OF REVIEW
        There is much confusion concerning the role of the trial court and the role of this court in reviewing the actions of the City Council. Although the parties do not explicitly address the appropriate standards for review, the parties appear to believe, judging from their argument and the cases cited, that the abuse of discretion standard applies. This is consistent with the standard for reviewing the actions of boards of adjustment in zoning matters. See City of San Angelo v. Boehme Bakery, 144 Tex. 281, 286-87, 190 S.W.2d 67, 70 (1945); City of University Park v. Hoblitzelle, 150 S.W.2d 169, 171-72 (Tex. Civ. App.--Dallas 1941, writ dism'd judgmt cor.), cert. denied, 315 U.S. 781 (1942). Thus, we assume, without deciding, that the trial court's duty in this case was to review the action of the City Council to determine if the council abused its discretion, and that our duty is to review the trial court's determination to ascertain whether the trial court abused its discretion.
        Whether there was an abuse of discretion by the City Council is a question of law, not of fact. Boehme, 190 S.W.2d at 70. In deciding whether there is an abuse of discretion, the trial court is not to put itself in the position of the board and substitute its discretion for that of the board. Id. In Boehme, the trial court made the factual finding that the overwhelming preponderance of the evidence heard by it was in favor of the granting of the zoning application which the city had denied, but also reached the legal conclusion that the board of adjustment did not abuse its discretion. In noting the correctness of the trial court's conclusions, the supreme court stated:
    Considering these findings and conclusions together, we think they add up to this: The trial judge, had he been the board, would have granted the application, but, viewing the whole record, including the evidence heard and the verified return of the board, it could not be held that the board had abused its discretion.
 
    The record justifies the court in that conclusion.
Id.
        Further, in cases involving the exercise of discretion on the part of city councils the burden of defending the exercise of discretion is not upon the city government; rather, the extraordinary burden rests upon the party complaining of the council's action to show that no conclusive, or even controversial or issuable, facts or conditions existed which would have authorized the governing board of the municipality to exercise the discretion confided to it by a valid ordinance in determining a matter of purely governmental policy. Driggs v. City of Denison, 420 S.W.2d 446, 448 (Tex. Civ. App.--Dallas 1967, no writ); Stearman v. City of Farmers Branch, 355 S.W.2d 541, 543 (Tex. Civ. App.--Dallas 1962, writ ref'd n.r.e.); King v. Guerra, 1 S.W.2d 373, 376 (Tex. Civ. App.--San Antonio 1927, writ ref'd).
        With these standards in mind, we examine the trial court's findings and conclusions complained of by the City.
FAILURE TO FOLLOW THE ZONING ORDINANCE
        In point of error one, the City contends that the trial court "erred in finding as a matter of law that the actions of the Mesquite City Council were arbitrary, capricious, or unreasonable because the City did not follow the provisions of Section 05.06 of the City's zoning ordinance." The City notes that the court's conclusion was apparently based in part upon his factual findings that Cooper did not make application for permit as the ordinance required. To the extent that this conclusion is based upon the court's finding that the City Council failed to give due consideration to the future zoning of the area, we will reserve our discussion of that matter for point of error two. To the extent that this conclusion is based on a finding that Cooper failed to seek approval prior to building the barns, we will address that contention in considering point of error three.
        Section 05.06 of the comprehensive zoning ordinance provides as follows:
    All territory annexed to the City of Mesquite hereafter shall be temporarily classified as "AG" Agricultural only until permanently zoned by the governing body of the City of Mesquite. The City Council may, as soon as practicable after annexation of any territory to the City of Mesquite, institute proceedings on its own motion to give the newly annexed territory a permanent zoning, and the procedure to be followed shall be the same as is provided by law for the adoption of original zoning regulations. In an area temporarily classified as "AG" Agricultural, no permit for the construction of a building other than a single-family dwelling or accessory building shall be issued by the building inspector until such permit has been specifically authorized by the City Council under the following conditions: An application for any use shall be made to the building inspector, said application to show the use contemplated, a plat showing the size of lot or tract of land being used, and the location of and size and type of buildings to be constructed; and if such application is for other than a single-family dwelling or accessory building related thereto, it shall be referred by the building inspector to the Planning and Zoning Commission for consideration and recommendation to the City Council, after giving due consideration to the type of permanent zoning to be applied to the area in which the application is located. Whenever such a recommendation is filed with the City Council, it shall be advisory only, and the City Council may grant or deny as the facts justify.
        Roger Hanz, Mesquite City Planner, testified that when Cooper sought a building permit to build his two barns, there was no requirement that application be made to the City Council because the barns were considered accessory buildings under section 05.06. He conceded, however, that Cooper did need City Council approval for use of the barns as riding stables. He testified further:
    [Attorney]: And, in fact, did you eventually require him [Cooper] to try to seek approval under Section 506 [sic]?
 
    [Hanz]: Yes.
 
    [Attorney]: Did you have him file an application under Section 506 [sic]?
 
    [Hanz]: Yes. He filed documents to process for approval under that Section.
 
    [Attorney]: Well, let me ask you this. Did he file an application per se pursuant to that statute?
 
    [Hanz]: He filed a site plan, and we had documents concerning the non-commercial nature of his business on hand.
 
    [Attorney]: But you did not have a form per se called an application under 506 [sic]?
 
    [Hanz]: No we do not have a form.
 
    [Attorney]: In fact, isn't it true that this is the first time you have ever had a 506 [sic] application in the City of Mesquite?
 
    [Hanz]: To my knowledge that is correct.
Hanz's testimony was the sole information before the court concerning whether Cooper made application pursuant to section 05.06 for use of his property as a noncommercial riding stable. It is clear that Cooper followed those procedures set up by the City. It is equally clear that the City believed that Cooper had followed its procedures as required by the ordinance. Courts tend to adopt the construction placed upon statutes and ordinances by those authorized to administer the same. Heard v. City of Dallas, 456 S.W.2d 440, 443 (Tex. Civ. App.--Dallas 1970, writ ref'd n.r.e.).
        We conclude that the trial court's finding that the City Council failed to follow the application procedure set out in section 05.06 is contrary to the only evidence before the court. Thus, we hold that the trial court abused its discretion in concluding that the City Council's actions were arbitrary, capricious and unreasonable. We sustain point of error one.
FAILURE TO CONSIDER FUTURE ZONING
        In its second point of error, the City contends that the trial court "erred in concluding as a matter of law that the Mesquite City Council failed to comply with Section 05.06 of the City's zoning ordinance by failing to give due consideration to the permanent zoning to be applied to the area in question." Both parties assume that the ordinance requires the City Council to give due consideration to the type of permanent zoning to be applied to annexed property when deciding applications for any use other than single-family dwellings or accessory buildings. A close reading of section 05.06 reveals, however, that the provision concerning due consideration to the permanent zoning refers to either the action of the building inspector in referring the matter to the Planning and Zoning Commission or the action of the Commission in making a recommendation to the City Council:
    [A]nd if such application is for other than a single-family dwelling or accessory building related thereto, it shall be referred by the building inspector to the Planning and Zoning Commission for consideration and recommendation to the City Council, after giving due consideration to the type of permanent zoning to be applied to the area in which the application is located.
The ordinance further provides that the recommendation is not binding on the Council and that the Council is to "grant or deny as the facts justify."
        Nevertheless, case law suggests that a municipality is to consider long-range plans when amending zoning ordinances. See City of Pharr v. Tippitt, 616 S.W.2d 173, 176-77 (Tex. 1981). Further, because the parties agree that the City Council should have given due consideration to the type of permanent zoning which was to be applied to the tract, we will assume, without deciding, that the ordinance so requires.
        Helms argues that the evidence offered at trial clearly established that the City Council failed to give due consideration to the permanent zoning to be applied to the area because the Mesquite Development Guide and the City Zoning Map classify the subject tract as one which will be zoned residential. Helms further contends that a riding stable is inappropriate use in a residential area. Thus, Helms concludes that reasonable minds could not have reached the conclusion the City Council must have reached in order to justify its action and that the Council, therefore, abused its discretion. Citing Board of Adjustment of Corpus Christi v. Whitlock, 442 S.W.2d 437, 439 (Tex. Civ. App.--Corpus Christi 1969, writ ref'd n.r.e.). The City counters that it is not the court's role to "look inside the mind of each council person to try to reconstruct their thought process." Rather, the court is to determine if there existed arguable or issuable facts over which reasonable minds could have differed, and if such facts existed, then the court cannot conclude that the governing body abused its discretion. Citing Stearman, 355 S.W.2d at 543.
        We agree with the City that we cannot examine the thought processes of members of the Mesquite City Council. We can, however, examine the information before the City Council to determine whether there was evidence before the Council which raised issues over which reasonable minds could differ. Id.; see also Baccus v. City of Dallas, 454 S.W.2d 391, 392 (Tex. 1970). We further agree with the City that if reasonable minds could differ, then the City Council did not abuse its discretion. Stearman, 355 S.W.2d at 543.
        Testimony developed at trial revealed that at the time of the City Council meeting, the Council had before it the City Zoning Map, the Mesquite Development Guide, the minutes of the Planning and Zoning Commission meeting concerning the Cooper property, the Commission staff's plan review and recommendation, and photographs of the area. Further, residents of the area, including Helms, testified before the Council concerning their property and the residences surrounding the Cooper tract. From the videotape of the council meeting, we discern questions from the council members which indicated that they were concerned with the future zoning of the area and which even referenced the Mesquite Development Guide. One council member stated that he had been out to the subject tract and walked around the property.
        We conclude that there was evidence before the Council concerning the present condition of the property and the future residential zoning of the area. We note further that Hanz, the city planner, testified at trial that he believed that noncommercial riding stables were a permitted conditional use in residential areas. As additional proof that the City Council considered the future zoning of the area, we note that the Council approved Cooper's use of the property as a riding stable for only five years and imposed significant conditions upon his use of the property as horse stables. Thus, there was evidence raising issues upon which reasonable minds could differ.
        We hold that the trial court abused its discretion in concluding that the City Council did not give due consideration to the type of permanent zoning to be applied to the area containing the subject tract. Thus, the trial court was in error in concluding that the City Council abused its discretion. Point of error two is sustained.
AUTHORITY TO RATIFY USES IN PLACE
        In point of error three, the City claims that the trial court "erred in finding as a matter of law that the Mesquite City Council does not have the authority to ratify uses all ready [sic] in place." The trial court concluded that section 05.06 of the zoning ordinance does not give the City Council the authority to ratify uses already in place, but requires that an applicant make application for a particular use "prior to the onset of the contemplated use." We agree that the ordinance requires application before the use commences. However, we do not agree that the City could not ratify use already in place.
        The City cites Fausett v. King, 470 S.W.2d 770, 773 (Tex. Civ. App.--El Paso 1971, no writ) and Stirman v. City of Tyler, 443 S.W.2d 354, 359 (Tex. Civ. App.--Tyler 1969, writ ref'd n.r.e.), for the proposition that the City Council could "ratify" Cooper's use after his use commenced. As the court states in Fausett:
    [G]enerally, a municipal body may effectively ratify what it could theretofore have lawfully authorized in the first place if the action was of a nature within the power of the governmental body to have made in the first place. Irregular acts may be ratified at a subsequent meeting and ratification after the act is said to be as potent as authority before the act.
Fausett, 470 S.W.2d at 773. As can be plainly seen by the language quoted above, the "ratification" here referred to is ratification of a municipality's irregular act. Here, the City attempts to apply this doctrine so that the City may ratify Cooper's irregular act. Helms does not dispute the City's power to ratify Cooper's irregular act; rather, Helms argues that the City is only authorized to ratify what it could lawfully authorize, and that it could not lawfully authorize Cooper's use because the council failed to follow the requirements of the ordinance. We have already determined that there was no abuse of discretion in any failure to follow the requirements of section 05.06. Nevertheless, we do not believe that the cases cited by the City support its ratification proposition.
        Although there is no case authority explicitly on point, we conclude that a city has the discretion to legitimate unauthorized uses of property that are already in place. We are persuaded by the logic of the City's argument:
    [T]here is no prohibition against the approval of a noncomplying use in the City's comprehensive zoning ordinance. In fact, there are several instances in various City functions in which approval after the fact can occur. If an individual constructs a building and upon completion it is discovered that the building violates a setback regulation, he may still be able to obtain a variance and does not first have to take his building down. If he had initially begun construction without having obtained a building permit, once he discovered the need for a permit, he would not be required to tear down what he had already completed before he could apply for or obtain a permit. Under the trial court's reasoning, the individual in the above situations would be required to remove his building before he could attempt to obtain relief from the City.
We find relevant the settled maxim, "Lex nil frustra jubet," the law will not require the doing of a vain and useless thing. See Mackey v. Lucey Prod. Corp., 150 Tex. 188, 191, 239 S.W.2d 607, 608 (1951); City of Austin v. Cahill, 99 Tex. 172, 188-89, 88 S.W. 542, 547 (1905); see also Shell Oil Co. v. McKnight, 204 F. Supp. 159, 164 (E.D. Tex. 1961), aff'd, 302 F.2d 731 (5th Cir. 1962), cert. denied, 372 U.S. 968 (1963). We conclude that the ordinance does not prohibit the City Council from approving a noncomplying use even after its commencement. The courts should not countenance a requirement that Cooper cease his noncomplying use prior to seeking approval which the City Council has the authority to grant, for to do so would require the doing of a vain and useless thing.
        We hold that the trial court abused its discretion in determining that the City Council lacked the authority to ratify, or approve, noncomplying uses already in place. We perceive no abuse of discretion on the part of the City Council in approving Cooper's application made after he commenced his noncomplying use. We sustain point of error three.
RENDERING JUDGMENT AGAINST THE CITY
        In its fourth and final point of error, the city avers generally that the trial court "erred in rendering judgment against the City of Mesquite." The City contends that the trial court substituted its judgment for that of the City Council and that the City Council acted properly within its discretion under a valid ordinance. We agree. It matters not that the trial court would have denied Cooper's application or that this court would have denied Cooper's application. We are not to put ourselves in the position of the City Council or substitute our discretion for that of the Council. Boehme, 190 S.W.2d at 70. After reviewing the information before the City Council and the evidence adduced at trial, we conclude that the trial court abused its discretion in holding that the City Council abused its discretion. Thus, we sustain point of error four. We reverse the judgment of the trial court, vacate the order commanding the City Council to withdraw or rescind the building permits, and dissolve the permanent injunction enjoining the City from issuing a certificate of occupancy.
                                                                                                                   LINDA THOMAS
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
87-01247.F
 
FN:1 We note that these statements are termed conclusions of law by the court. The primary disputed issue at trial appeared to be whether the City Council considered the future zoning of the subject tract. This factual dispute is resolved only in the "Conclusions of Law". Nevertheless, the designation of findings as legal conclusions does not change their essential character and is not binding on appeal. Ray v. Farmers State Bank, 576 S.W.2d 607, 608 n.1 (Tex. 1979). We will treat those conclusions which resolve factual disputes as findings of fact. Id.
File Date[01-02-89]
File Name[871247]