Austin Independent School District v. City of Sunset Valley

POPE, Justice

(concurring).

I concur in the result, not by reason of the School District’s immunity from the police regulations embodied in the municipal ordinances, but by reason of the unassailed findings and conclusions of the trial court that the School District acted reasonably.

It is the duty of cities, not school districts, to enact ordinances in the exercise of their police powers. Neither schools nor any other person or entity should be free from such regulations in the usual situation, as we have already held. In Port Arthur Independent Sch. Dist. v. City of Groves, 376 S.W.2d 330 (Tex.1964) we wrote: “The state chose to fulfill its duties of providing education through the local school districts and to discharge its duties of protecting the health, safety and property of the people by delegating such to the municipalities.” Compliance with reasonable minimum standards of construction, we said, may be required of school buildings the same as other buildings.

Zoning regulations are grounded upon the reasonable exercise of police powers. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 , 47 S.Ct. 114 , 71 L.Ed. 303 (1926) set that issue at rest. See also, Nectow v. City of Cambridge, 277 U.S. 183 , 48 S.Ct. 447 , 72 L.Ed. 842 (1928); Gorieb v. Fox, 274 U.S. 603 , 47 S.Ct. 675 , 71 L.Ed. 1228 (1927); Lombardo v. City of Dallas, 124 Tex. 1 , 73 S.W.2d 475 (1934). In Euclid, a suburban municipality enacted an ordinance which zoned areas for particular uses, including residences, *676 schools, churches and businesses. The court recognized that residential zoning was within the police powers of the city because zoning concerned such matters as safety and security of home life, the avoidance of street accidents, overcrowding, the reduction of traffic and resulting confusion in residential sections, the decrease of noise, the accessibility of fire equipment, and the preservation of a more favorable environment in which to raise children.

A school’s immunity from reasonable police regulations should be limited by a rule of reasonableness. This was the approach taken by the Supreme Court of New Jersey in Rutgers, The State University v. Piluso, 60 N.J. 142 , 286 A.2d 697 (1972). The court ruled that such immunity must not be exercised unreasonably so as arbitrarily to override all important legitimate local interests. See also, City of Newark v. The University of Delaware, 304 A.2d 347 (Del.Ch.1973) ; Township of Washington v. Village of Ridgewood, 26 N.J. 578 , 141 A.2d 308 (1958) ; City of Richmond v. Board of Supervisors, 199 Va. 679 , 101 S. E.2d 641 (1958); Annot., 36 A.L.R.2d 653 , Zoning-Schools (1954). An important consideration, among others, in determining the reasonableness of an ordinance which excludes a school from a particular site is whether the ordinance permits schools at other alternative locations and the suitability of alternate sites. Porter v. Southwestern Public Service Company, 489 S.W.2d 361 (Tex.Civ.App.1973, writ ref’d n.r.e.). In such cases the burden of proof should be on the party who seeks to avoid the zoning regulation and would require that party to prove the reasonableness of the claimed immunity. Governmental Immunity From Local Zoning Ordinances, 84 Harv.L.Rev. 869 at 883-886 (1971); Sales, The Applicability of Zoning Ordinances to Governmental Land Use, 39 Texas L.Rev. 316 , at 328-329 (1961).

I concur in the result.

WALKER, J., joins in this concurring opinion.