Nu-Way Emulsions, Inc. v. City of Dalworthington Gardens

617 S.W.2d 188 (1981)

NU-WAY EMULSIONS, INC., Petitioner, v. The CITY OF DALWORTHINGTON GARDENS, Respondent.

No. C-173.

Supreme Court of Texas.

June 17, 1981.

*189 Hill, Heard & Oneal, Frank M. Gilstrap, Arlington, for petitioner.

Stanley E. Wilkes, Jr., Arlington, for respondent.

PER CURIAM.

Nu-Way Emulsions, Inc. sought a zoning permit to enlarge its asphalt emulsion plant in the City of Dalworthington Gardens. Nu-Way's plant constituted a non-conforming use of property within an area zoned for single family dwelling. The facts are further set out in the opinion of the Court of Civil Appeals. 610 S.W.2d 562.

The zoning board of the City denied the application of Nu-Way because it constituted an enlargement of the non-conforming use in violations of the City's ordinance against enlargement. Nu-Way appealed to the district court which upheld the position of the City. The Court of Civil Appeals affirmed.

We are of the opinion that the result reached by the Court of Civil Appeals was correct. We do not agree with the portion of the opinion of that court which states that the decision of the zoning board is to be tested by the substantial evidence rule. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67 (1945). By emphasizing this holding by the Court of Civil Appeals, we do not wish to be understood as adopting other portions of the opinion.

The application for writ of error is refused, no reversible error.