dissenting.
I respectfully dissent and would affirm the trial court’s judgment denying the City the injunction it sought, because the City failed to persuade the trier-of-fact either that bingo was a property use inconsistent with the zoning of the Lodge’s property or that bingo, by its nature, required a special use permit.
The witnesses offered by the City conceded that the zoning ordinance, when written, did not attempt to zone for bingo, whether specifically or as a part of any “special use” provision. Nevertheless, the City sought to persuade the trial court that the terms of the zoning ordinance were broad enough to make bingo an excluded use, or, at least, that bingo requires a “special use” permit. Initially the City points out that its zoning ordinance forbids any use of property if such use is not specifically allowed by the terms of the ordinance. Consequently, since bingo was not named in the zoning ordinance as a permitted use, ipse dixit, such use was prohibited. I would hold that every property owner has the right to use his property as he sees fit unless the City can show that some particular use is so contrary to the health, safety, morals, or general welfare of the community, as to warrant the denial of that particular use. City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 48, 47 (1958). I would further hold that no zoning ordinance may turn the law around and merely give the property owner the use, or uses, of his property the City grants while denying all other uses whether or not such other and prohibited uses have or bear a reasonable and substantial relationship to the health, safety, morals, or general welfare of the community. I would reject the City’s first argument that bingo was prohibited because the zoning ordinance did not specifically permit such a use.
The City next argues that even if bingo was a permitted use, (since nowhere prohibited), bingo was still by its nature a use that required a special permit under the zoning ordinance. The City asserts that bingo is an “indoor recreation” as defined in Sec. 43.011 of the City’s zoning ordinance. Sec. 43.011 provides:
43.011 INDOOR AND OUTDOOR COMMERCIAL RECREATION: Any type of commercial recreation or amusement, including but not limited to baseball fields, swimming pools, skating rinks, golf driving ranges, drive-in theaters, miniature golf, carnivals and similar open-air facilities and all indoor facilities provided such establishments shall be a distance of at least one hundred (100) feet from any residential district and that any lighting used to illuminate any commercial recreation shall be so arranged as not to deflect onto any adjacent residential district and all coin-operated music and skill or pleasure machine shall not be exhibited within three hundred (300) feet of a church, school, or hospital....
The majority opinion holds that this section is construed to mean that “indoor commercial recreation means ‘any type of commercial recreation or amusement ... (in) all indoor facilities.’ ” I disagree. Indoor recreation alone bears no reasonable or substantial relationship to the health, safety, morals, or general welfare of the community. If, as with outdoor recreation, noise, congregations of people, parking of cars, night illuminations, and similar intrusions on the neighbors were generated, then the ordinance might bear that “reasonable and substantial relationship” warranting regulation. In this case, the City’s own witnesses testified that there was no observable effect — lights, people, cars, traffic, parking, noise, etc. — occasioned by bingo being played in the Lodge. These same witnesses were unable to factually distinguish the “indoor recreation” offered by the theatre (next door to the Lodge) without a special use permit and the “in*86door recreation” of the Lodge playing bingo which, the City urged, required a special use permit. Upon this testimony, I would hold that the City failed to show that bingo-playing in a Lodge located in a commercial area (including a theatre) without generating any noise, lights, traffic hazards, or personal safety hazards, bore any reasonable or substantial relationship to the health, safety, morals, or general welfare of the community so as to justify zoning of special use regulation. I would reject the City’s second argument.
In the absence of any specific use violation, or in the absence of any violation of the special use regulation under the facts, the City failed to make its case for injunction and the trial court properly entered judgment denying the City relief.
I further respectfully dissent to the majority holding that the trial court erred in granting the relief requested in the Lodge’s cross-action. The trial court enjoined the City from attempting to enforce the purported zoning or “special use” regulation, so that there would be no interference with the playing of bingo at the Lodge.
By the testimony of its own witnesses, the City proved the Lodge’s case in that no violation of zoning was shown and no special use permit could be reasonably required. While equity will not ordinarily enjoin the enforcement of a zoning ordinance, including its penal provisions, State v. Logue, 376 S.W.2d 567, 569 (Tex.1964); Kemp Hotel Operating Co. v. City of Wichita Falls, 141 Tex. 90, 170 S.W.2d 217, 219 (1943), there is a recognized exception when the zoning ordinance or its interpretation by the City is unconstitutional or otherwise void. Logue, 376 S.W.2d at 569; City of Austin v. Austin Cemetery Assn., 87 Tex. 330, 28 S.W. 528, 530 (1894). Here, the City sought to take the right of the property owner to play bingo, a lawful act, upon and within an area zoned for uses indistinguishable from bingo. Further, the City sought to exact from the owner the burden and fee for an “indoor recreation” special use permit when bingo did not produce the attributes of noise, lights, traffic, or danger which justified the “special use” regulation by its own terms. I would hold that the Lodge made out its right to equity’s relief from the testimony — nay, confessions — out of the mouths of the City’s own witnesses. Our record is silent as to any lawful justification, in the sense of the preservation of the health, morals, safety Or public welfare of the community, for the City’s effort to impose any restriction upon the Lodge’s conduct of bingo on its premises. The trial court so found; the evidence supports the trial court finding; and this Court is not authorized to substitute its findings for those of the trial court. Consequently, this Court should, and I would, affirm the judgment of the trial court in denying the City relief and granting the Lodge relief.