Opinion
Rehearing Denied May 8, 1957.
Ronald Smallwood, San Antonio, for appellant.
Bobbitt, Brite & Bobbitt, San Antonio, for appellee.
POPE, Justice
The Building inspector of the City of Castle Hills, Bexar County, Texas denied a permit to James W. Hill to construct a ten unit garage in a residential area. The Board of Adjustment and the District Court sustained that decision and Hill appeals.
Article 1011g, Vernon's Ann.Civ.Stats., grants the right of appeal to the Board of Adjustment, which in turn may grant exceptions or variances from the zoning ordinance. Courts in reviewing the Board's decision do not substitute their judgment, but determine whether the Board acted legally and in a proper exercise of discretion. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 64; Board of Adjustment of City of Fort Worth v. Stovall, 147 Tex. 366, 216 S.W.2d 171. Hill's application requested a permit to build a ten unit garage. The garage would provide shelter for six of his dump trucks, three family automobiles and a boat. Hill is in the business of hauling dirt and gravel. The trucks would be dispatched from the garage in the morning and would return at night. On those facts the denial of the permit was a sound exercise of discretion.
Hill claims that he has been discriminated against because other persons in the city are violating the ordinance. The implications from the judgment are that, factually, discrimination was not proved, and that the uses complained about were either non-conforming uses which antedated the zoning ordinance, or usual residence uses. Such findings have support in the evidence. Moreover, the fact that a zoning regulation has not been enforced does not work its repeal. 58 Am.Jur., Zoning, Sec. 192; 62 C.J.S. Municipal Corporations Sec. 266(13).
The judgment is affirmed.