The opinion
Conley Byrd, Justice, dissenting. The record shows that JFK Boulevard runs generally north and south. The first street west of JFK is Cypress. The appellants’ property is located at the corner of “D” and Cypress, adjacent to a service station and Church’s Fried Chicken. The next street to the north of “D” is “F” Street. Wash-Hale’s real estate business is located in a commercial building on the southwest corner of “F” Street and JFK. The land immediately west that borders on Cypress and “F” Street is a paved parking lot containing 43 parking spaces.
Charles Carpenter testified that Wash-Hale’s parking space was permitted because the zoning ordinance did not apply to parking lots. Reed McConnell testified that the zoning requested by appellant would increase the value of the residences in the area. The appellants offered to execute and place of record a bill of assurance limiting the use of their property to specific quiet businesses.
Since the proof shows that commercial businesses are maintaining parking lots in the same block, the traffic on the parking lot is greater than appellant’s use would generate, and the zoning would increase the value of the surrounding residential properties, then the legal issue should be: “What right does the City have to restrict this property to a residential use?”
This is not a case where the property owner seeks to extend a business district but one where the owner merely asks that his property adjacent to the heavy commercial use be used as a buffer type business zone.
The validity of zoning laws is ordinarily upheld under the police power on the theory that they protect property values, prevent fire hazards, and/or promote esthetics consideration. Since the proof is that the use here would generate less traffic than the Wash-Hale parking lot — a permitted use, would improve the value of the surrounding residential property and would not change the structure and thus not interfere with esthetic considerations, I can only conclude that the City is being arbitrary and capricious in continuing to restrict this property, adjacent to a service station and a fried chicken outlet, to a residential use.
For the reasons herein stated I respectfully dissent.
Brown, J., joins in this dissent.