# City of Dallas v. Fifley

> Court of Appeals of Texas · June 1, 1962 · 359 S.W.2d 177

URL: https://www.frixlaw.com/law-library/cases/9772667

## Case

- **Full name:** CITY OF DALLAS Et Al., Appellants, v. Archie FIFLEY Et Al., Appellees
- **Court:** Court of Appeals of Texas
- **Decided:** June 1, 1962
- **Citations:** 359 S.W.2d 177; 1962 Tex. App. LEXIS 2625
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Williams, Young
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9772667

## Opinion text

ON MOTION FOR REHEARING
In his motion for rehearing Appellee, Archie Fifley, contends that since he was never a party before the Board of Adjustment and was not afforded a hearing until the trial in the District Court, that the effect of our opinion is to deprive him of his property without due process of law in violation of the Texas and Federal Constitutions. There is no merit to this contention. The record reveals that prior to the hearing before the Board of Adjustment notice of such hearing was sent to the interested property owners, including ap-pellee Archie Fifley. Fifley, while testifying in the District Court, admitted he received the notice of the hearing before the Board of Adjustment; that upon receipt of such notice he contacted Mr. Wheeler at 7-Eleven Stores, (operated by Southland Corporation) and asked him if it was necessary that he go down to the hearing; that Wheeler told him: “No, it will not be necessary for you to go”; and that such was the reason he did not appear at the hearing. It is apparent that Fifley’s failure to appear before the Board of Adjustment and participate in the hearing was of his own volition and choice and he now cannot be heard to complain that he was not afforded *184 an opportunity to be heard. He has waived any right to make such complaint by his own actions and admissions. Moreover, Fifley’s lessee, The Southland Corporation, made the application for the certificate of occupancy and also made the appeal to the Board of Adjustment upon such application being denied by the Building Inspector of the City of Dallas. Thus Fifley’s failure to be made a party to such application was a matter of choice between him and his lessee and under the terms of the lease itself Fifley’s rights are no greater than that of his lessee, The Southland Corporation.
The terms of the Zoning Ordinance of the City of Dallas, Art. 165-1 of Ordinance 5238 specifically provides that the act on the part of the City in regulating zoning is aimed at the use, rather than ownership, of the property. See also Village of Skokie v. Almendinger, 5 Ill.App.2d 522 , 126 N.E.2d 421 and O’Connor v. City of Moscow, 69 Idaho 37 , 202 P.2d 401 , 9 A.L.R.2d 1031 .
We find no merit in appellee’s motion for rehearing and the same is overruled.
YOUNG, J., not sitting.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9772667. Public record. Not legal advice.