concurring.
I concur in the result. I agree that the trial court’s judgment be reversed, that we render judgment vacating the order of the board and that we render judgment dissolving the trial court’s permanent injunction. I also concur in the majority’s disposition of Murmur’s claims for damages and attorney’s fees based on various alleged violations of both federal and state constitutions by the Board of Adjustment of the City of Dallas and the City of Dallas as urged in Murmur’s third, fourth and fifth points of error. I write to express the reasons I concur in the results reached by the majority in reversing the trial court’s judgment, vacating the board’s order and dissolving the trial court’s permanent injunction.
Appellants, Murmur Corporation and Murmur Leasing Corporation, appeal from a judgment in favor of appellees, the Board of Adjustment of the City of Dallas and the City of Dallas, Texas, rendered by a district court, as an appellate court, on writ of certiorari pursuant to TEX.REV.CIV.STAT.ANN. art. 1011g(k) (Vernon Supp. 1986). The judgment (1) affirmed a September 6, 1984 order of the board immediately terminating Murmur’s lead smelting use; (2) granted the city’s application for a permanent injunction against the smelting use; (3) denied Murmur’s application for a permanent injunction against enforcement of the board order; and (4) denied Murmur’s suit for damages against the city. In its second point of error, Murmur contends that the trial court erred in affirming the action of the board in terminating Murmur’s smelting use because the board failed to follow the proper standard for terminating the nonconforming use. Murmur argues that the board did not correctly apply the applicable provisions of the Dallas Development Code. I agree.
The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation. A similar assumption is made in the decisions upon the Fourteenth Amendment. When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But that cannot be accomplished in this way under the Constitution of the United States. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922), per Mr. Justice Holmes. The natural tendency of human nature to which Mr. Justice Holmes refers remains alive and well. The board heard the public outcry against the evils of lead smelters and allowed the City of Dallas to confiscate private property without compensation. The trial court permitted the confiscation by affirming the decision of the Board of Adjustment of the City of Dallas. I recognize the evils of lead smelters. Nevertheless, I cannot agree to the taking of private property under the guise of the police power. Before the board, Murmur’s private property disappeared. Tomorrow, another unpopular property owner may fall victim to the natural tendency of human nature noted by Mr. Justice Holmes. Consequently, I would sustain Murmur’s second point of error, reverse the judgment of the trial court, vacate the permanent injunction and render judgment declaring that the September 6, 1984 order of the board is void.
In considering the applicable provisions of the Dallas Development Code, I know that the board met on September 6, 1984, and terminated Murmur’s smelting use on that same date. The following provisions of the Dallas Development Code govern:
SEC. 51-3.102 BOARD OF ADJUSTMENT.
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(c) Powers and Duties. The board has the following powers and duties which *804must be exercised in accordance with this chapter:
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(4) to bring about the discontinuance of a nonconforming use under a plan whereby the full value of the structure can be amortized within a definite time period. ...
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SEC. 51-4.704. NONCONFORMING USES AND STRUCTURES.
(a) Termination of nonconforming uses.
(1) the board shall provide a termination date for nonconforming uses having due regard for the investment in the nonconforming use.
DALLAS, TEXAS, DALLAS DEVELOPMENT CODE §§ 51-3.102(c)(4), 51-4.-704(a)(1) (1983). I read the above provisions of the Dallas Development Code to require the board: first, to determine the “full value” of a “structure” located upon land, which “structure” is utilized for a purpose not permitted by an applicable zoning ordinance; second, to devise a plan to accomplish the purpose of amortizing that determined “full value” within a definite period of time; and third, to designate a date upon which the use not permitted shall cease, which date shall allow the owner to recoup the “full value” of that structure. Therefore, to my mind, “full value” as that phrase is used in section 51-3.102(c) is the “investment” to be allowed recoupment under section 51-4.704. Moreover, in my view, “investment” as that word is used in section 51-4.704 does not mean Murmur’s $25,000.00 purchase price. Since, in my view, the amount of Murmur’s purchase price is unimportant to disposition of the question before us, I do not extend this opinion with the background and details of Murmur’s acquisition of the smelter. In any event, the $25,000.00 purchase price might evidence a profitable acquisition. On the other hand, that purchase price might reflect poor judgment. Thus, under no circumstances can the $25,000.00 constitute the “investment” representing the “full value of the structure” which the board must determine. Hence, the $25,-000.00 cannot establish the fact to be determined by the board; to wit: “the full value of the structure.” With that background and viewpoint expressed, I now explain why I would sustain Murmur’s second point of error.
Murmur’s argument that the board did not correctly apply the applicable provisions of the Dallas Development Code centers on its contention that the board included the value of the land in making certain determinations required of it under the Dallas Development Code. I agree with Murmur that the board did include the value of the land in its determination. The record before the board tells us that the board included the value of the land in its determination. The city relied solely upon the testimony of one of its employees, Mike Levinson, as an economics expert, to terminate immediately Murmur’s smelting use without any amortization period. I quote Levinson’s presentation before the board:
It’s my best professional opinion that the most appropriate technique for deriving a final amortization period for the nonconforming lead smelter is one that considers the amount of unrecoverable cost invested in the use. The unrecoverable cost invested in the use are derived by subtracting the value of the land if devoted to its conforming highest and best use from the value of the property in its present nonconforming use.
To determine the value of the present nonconforming use, it is my recommendation to you that the Board of Adjustment consider only the investment made by Murmur Corporation prior to the date said corporation was notified that the City Attorney’s Office was petitioning the Board of Adjustment to provide a termination date for the nonconforming use. Investments occurring after this date should be construed by this Board as an attempt artificially or to falsely induce amortization. I assert that a fair market price was paid for the property in its nonconforming use given the condition of sale and the fact that the proper*805ty was sold at a sale bid public auction to the highest bidder.
Based upon documentation provided to me by this Board and the City Attorney’s Office, the acquisition price for the lead smelter was $25,000. To the best of my knowledge, no additional investment was made prior to receiving notice of nonconforming use termination, and considering this fact, that this facility has yet to be operational, $25,000 should stand as the investment value of this nonconforming use. The value of the land, if devoted to a conforming highest and best use, has been determined by an appraiser to be $707,850 simply $2.50 a square foot times the amount of land dedicated to the lead smelter.
However, due to the unique nature of this case, the cost of preparing the — the costs of preparing the land for disposition must be subtracted from this appraised value. These costs are principally those associated with reconditioning of the soil, estimated at $504,000, as well as the cost of demolition estimated at $225,-000.
Finally, the salvage value of equipment estimated to be at least $500,000 must be added to the equation in an effort to capture the true value of the property in its conforming use. Therefore, the estimated value of its land in its conforming and highest and best use is $478,850. Given the estimate of the true value of the land in its conforming use at $478,-850, one must subtract that the investment of $25,000 from this figure. This difference is $453,850, representing potential before tax cash flow to the property owner from reversion, and therefore indicating that there are no unrecoverable costs to speak of. In the absence of unrecoverable cost, there is no justification for granting an amortization period for the nonconforming use. Thank you.
Thus, Levinson’s approach can be charted as follows:
Line 1 Value of smelter $25,000.00
Less: Value of land with smelter removed:
$707,850.00 Line 2 $2.50/square foot
-$504,000.00 Closure costs for 6.5 acre Line 3 smelter tract
-$225,000.00 Line 4 Demolition costs
+$500,000.00 Line 5 Salvage value
Line 6 Sum of Lines 2 through 5 Murmur’s investment in +$478,850,00
-$453,850.00 Line 7 use (Line 1 minus Line 6)
Furthermore, since the land in question was only a part of a larger tract owned by Murmur, the board made certain that the value of the land they used in their determination was only the value of the land devoted to the offending smelter use. This concern of the board appears from the following colloquy between Levinson and members of the board:
THE CHAIR: Mr. Levinson, could I ask you to clarify one thing? The price paid for the entire 26 acres is $25,000; however, the appraisal for the land that you gave us, $707,850, is that based on only the 6.5 acres of land where the smelter is?
MR. LEVINSON: That’s absolutely correct.
THE CHAIR: Would that explain the difference between the $1,800,000 figure that represents the entire 26 acres?
MR. LEVINSON: As I said, the piece of property I was asked to consider was that property upon which the nonconforming use existed or associated with this nonconforming use.
[MEMBER]: So it’s the 6.5 acres at the southeast corner?
MR. LEVINSON: Which is roughly 283,-000 square feet, if I figure that at $2.50 a square foot.
THE CHAIR: Thank you.
MR. LEVINSON: You’re welcome.
Moreover, to make certain that the board accepted Levinson’s analysis and included the value of the land in its determination, the city presented to the board the following testimony of Mike McClellan, a real estate appraiser. I quote McClellan’s presentation before the board:
[THE CITY ATTORNEY]: The next witness I would call would be Mr. Mike McClellan of McClellan and Massey.
*806MR. McCLELLAN: My name is Mike McClellan my address is 2974 LBJ Expressway, Suite 415, Dallas, 75234. I’m president of McClellan, Massey, Incorporated, a real estate appraisal and consulting firm. I am a member of the American Institute of Real Estate Appraisers and hold their MAI designation. I’m also a member of the Dallas Board of Realtors. I’ve been asked for the City of Dallas to render an opinion of market value for the 6.5 acres as if completely vacant and uncontaminated.
Market value is briefly defined as that price in dollars which a willing buyer would pay a willing seller. Neither party under any duress. The property having been on the market for a reasonable period of time, an arm’s-length transaction.
The market valve [sic] estimate I’ll talk about tonight will be at the most profitable use of the property, which I consider to be some type of industrial development after it has been cleaned up and is noncontaminated. I have handed out to you a summary of four land sales that we found in the area very near the subject property.
A real estate appraiser is merely an analyst. We go out into the marketplace and we find out what people pay or sell their land for. We take these land sales, compare them to the subject property, and from that we can come up with an opinion, and it is an opinion and it is an estimate of market value for a property such as the 6.5 acres.
You will note that the four sales, I have a summary sheet on the first page, the next four pages are detailed information concerning the sales, the last page is a little map showing you the location of the sales in reference to the subject property. The most pertinent information in these sales are sale number two and number three. These are very recent sales, they’re on Westmoreland, they’re just to the south of the subject property in the immediate vicinity, they are very current sales, both being within the last two or three months. They’re very similarly zoned, and they sold one for $2.50 a foot, the other for $2.70 a foot.
It’s my opinion, based on this market data, that a reasonable market estimate for the subject property, if vacant and uncontaminated, would be $2.75 a square foot which equates to about rounded $780,000. This differs from the memo because the memo was prepared before we found sale number three. And this market things happen pretty fast. That’s the reason for the discrepancy, sale number three was found after the memo. That’s my opinion of value and concludes my testimony.
THE CHAIR: Let me ask if any Board members have any questions. Mr. [.]•
[MEMBER]: Yes. Your valuation is based on the fact that there exists now a lead smelter on the property of question. Now, without a lead smelter in that neighborhood would not the property be worth more?
MR. McCLELLAN: Let me see if I understand. You’re saying that if it is removed would the [2.75] be more, is that—
[MEMBER]: You’re evaluating the property that we’re discussing here on the basis of — I realize your entire — I appreciate the fact that you said it was vacant land, but you’re going on the assumption that the value of the property is based on what land is selling for in that immediate vicinity right now, today?
MR. McCLELLAN: Yes.
[MEMBER]: I certainly appreciate that objectivity. My suggestion here to you, and I’m asking if that’s correct, would not that land sell for more per square foot if there was not a lead smelter there in that vicinity? ' Isn’t that a perhaps deterrent to higher prices of land in that immediate area?
MR. McCLELLAN: There’s really—
[MEMBER]: Without a lead smelter perhaps the land would be worth more. Certainly not less?
*807MR. McCLELLAN: There’s no way actually to prove it in the market but I would say the probability does exist, yes, sir.
[MEMBER]: About how much more do you think?
MR. McCLELLAN: I have no opinion. Without some market data, I have no opinion on it.
[MEMBER]: Thank you.
[SECOND MEMBER]: I have a question.
THE CHAIR: Yes, Mr. [__].
[SECOND MEMBER]: It seems that I heard you say at the start that your estimate was based on if the land was vacant and if the land was cleaned up— already cleaned up. If that takes out the other bit of the lead smelter, did I hear you correctly there?
MR. McCLELLAN: Yes, sir. It was as if vacant and uncontaminated.
[SECOND MEMBER]: Then if it were cleaned, there was no lead smelter there, your estimate would be the same $2.70?
MR. McCLELLAN: That’s without the lead smelter being on it. Absolutely vacant and uncontaminated.
THE CHAIR: Thank you, sir.
[THE CITY ATTORNEY]: That concludes the witnesses we intend to present at this time.
Therefore, before the board, land value was the name of the game. The board had to consider land value in order to determine an “investment” by Murmur of zero. The board needed a zero figure to avoid an amortization period, otherwise, with an amortization period, the smelter would continue to operate for the period of amortization. For political reasons, the board could not allow the smelter to continue to operate for any future period of time. Thus, the board meets on September 6, 1984, and terminates Murmur’s smelting use on that same date. If the reader doubts political reasons, consider this description before the trial court of what went on at the board hearing:
The atmosphere at the hearing was much like a carnival. The press was there with television cameras and lights. Boisterous interest groups were in attendance. Applause was loud and consistent virtually every time a speaker in favor of immediate termination took the podium. At least three members of the City Council were present: Council members [.., .. and ..-]. All three appeared to spend much of their time at the hearing caucusing anti-Murmur speakers and groups. Twice during the proceedings I personally observed Councilman [— ...] parading through the aisles in the audience section of the hall with a white plastic respirator over his nose and mouth. Such behavior was in plain view of the Board members, who sat facing the audience, and in view of the press.
The city council appoints the members of the board.
Indeed, on the evidence before it, the board could not avoid using land value to reduce Murmur’s investment in the structure. Consider application of Levinson’s presentation:
Closure costs $504,000.00
and demolition costs 225,000.00
$729,000.00
cannot be paid out of salvage value 500,000.00
-$229,-
000.00
deficit of $229,000 must then come out of land value $707,850.00
229,000.00
$478,850.00
$25,000 purchase price of smelter must come out of balance of value of land $478,850.00
25,000.00
$453,850.00
Thus, it cannot be disputed that the board included the value of the land in making the determination required of it under the above sections of the Dallas Development Code.
Furthermore, the trial court compounded the error of including land value. In finding that the board’s decision was supported by substantial evidence, the trial court adds a new component to Levinson’s approach, i.e., $321,667.00 for other acquisition costs of Murmur in acquiring the plant. I quote *808the trial court’s approach from its memorandum opinion and order:
10. Summary. There was substantial evidence before the Board to support the following conservative analysis:
Investment in smelter:
Amount paid $25,000.00
Other acquisition costs $321,667.00 $346,667.00
Less: Value of tract with smelter removed:
$2.75/square
foot $781,390.17
Closure —$504,926.00
Demolition —$225,000.00
Salvage -$500,000.00 . $551,464,17
Murmur’s investment in the nonconforming use = —$204,797.17
Even with the adjustments the Court concludes should have been made in Lev-inson’s analysis, there was substantial evidence before the Board that Murmur had no unrecoverable investment in the smelter. The Board’s decision to terminate the smelter operation effective September 6, 1984, was therefore supported by substantial evidence.
In its calculation, the trial court increased the value of the land from $2.50 a square foot to $2.75 a square foot to adjust Levin-son’s presentation to the board with McClellan’s corrections. Then, having thus increased the value of the land, the trial court proceeded to utilize land value to dispose of Murmur’s other acquisition costs also. Therefore, the trial court also used land value to arrive at a zero figure. Needless to say, it makes no difference whether the zero figure is calculated to be a negative $452,850, per the board approach, or to be a negative $204,797.17, per the trial court’s approach. Both negative amounts are less than zero and both negative amounts take into account the value of the land. Hence, each erroneous approach to zero justified to both the board and the trial court the immediate termination of nonconforming use.
All this striving to find a zero figure ignores what the board is required to do under the above provisions of the Dallas Development Code. The requirements are easy to understand. For emphasis, I repeat what I said at the beginning. The above provisions of the Dallas Development Code require the board: first, to determine the “full value” of a “structure” located upon land, which “structure” is utilized for a purpose not permitted by an applicable zoning ordinance; second, to devise a plan to accomplish the purpose of amortizing that determined “full value” within a definite period of time; and third, to designate a date upon which the use not permitted shall cease, which date shall allow the owner to recoup the “full value” of that structure. The board and the trial court failed to take even the first step and determine the “full value” of a “structure” located upon land. Indeed, the attitude of the board and the trial court is that no such first step is necessary because a “structure” cannot have “value” if the land upon which it is situated has a greater value.
I turn now to consider the effect of the board’s consideration of the value of the land. A Board of Adjustment is restricted in its decisions to the powers vested in it by the legislature and city council. It may not materially alter the specific intent and extent of the zoning ordinance as this power is within the province of the city council. Board of Adjustment of San Antonio v. Willie, 511 S.W.2d 591, 593 (Tex.Civ.App.—San Antonio 1974, writ ref’d n.r.e.). Accord Swain v. Board of Adjustment of University Park, 433 S.W.2d 727, 731 (Tex.Civ.App.—Dallas 1968, writ ref’d n.r.e.), cert. denied, 396 U.S. 277, 90 S.Ct. 563, 24 L.Ed.2d 465 (1970). Any judgment [order] in excess of an ordinance under which a Board of Adjustment operates is void. Board of Adjustment of San Antonio v. Nelson, 577 S.W.2d 783, 785 (Tex.Civ.App.—San Antonio), writ ref'd n.r.e. per curiam, 584 S.W.2d 701 (Tex.1979).
In considering the language of a prior version of the above Dallas Development Code sections, this court held that such provisions require the discontinuance of a nonconforming use under a plan whereby full value of the structure can be amortized within a definite period of time taking into *809consideration the general character of the neighborhood and the necessity for all property to conform to the regulations of the ordinance. White v. City of Dallas, 517 S.W.2d 344, 348 (Tex.Civ.App.—Dallas 1974, no writ). In approving the amortization period, this court in White further emphasized the focus on “full value of the structure” when it stated “[t]he buildings, and other property located on the land in question was of such a nature as could obviously be removed during the twelvemonth period.” White, 517 S.W.2d at 349.
The technique of amortization of “the full value of the structure” is a valid exercise of the police power. See City of University Park v. Benners, 485 S.W.2d 773, 777 (Tex.1972), appeal dismissed, 411 U.S. 901, 93 S.Ct. 1530, 36 L.Ed.2d 191 (1973). The usual approach to the “amortization” technique rests on the principle that there is not a legally significant difference between existing and prospective uses in land and that the required termination of a preexisting land use, with allowance for re-coupment, is no different in kind from restrictions upon future land use alternatives. Benners, 485 S.W.2d at 777. Thus, termination does not constitute a “taking” in the eminent domain sense, but an exercise of the police power in the public interest. Benners, 485 S.W.2d at 777-78.
Benners, therefore, brings us to the heart of what is so wrong about the board’s order. Benners allows the technique of amortization of “full value of the structure” as a valid exercise of the police power because under that technique nothing is “taken” from an owner by government. No “taking” occurs because amortization over a designated period of time theoretically permits the owner to recover the dollars he has invested in the structure, and the owner still retains the full value of his land. Hence, the owner loses nothing of value in the eminent domain sense by inverse condemnation, i.e., uncompensated taking of property. The technique of amortization of “the full value of the structure,” however, loses its nature as an exercise of police power when the owner’s investment in the land is used, in whole or in part, to erase “the full value of the structure” from consideration, as was done in the present case. In that instance, the owner’s own dollars in land are used to pay for the owner’s own dollars in the structure situated upon the land. That situation occurs in the present case. In my view, use of the owner’s dollars in land to “pay off” the owner’s dollars in the structure constitutes a “taking” in the eminent domain sense. “While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.... We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Mahon, 260 U.S. at 415-16, 43 S.Ct. at 160. Therefore, to my mind, the board’s approach and the trial court’s approach destroy the basis upon which the technique of amortization of the full value of the structure has been permitted as a valid exercise of the police power.
In the present case, the board included the value of the land in making the determination required of it under the above sections of the Dallas Development Code. In light of Benners and White, I would hold that the “amortization” approach in the Dallas Development Code presumes existing and future values of unimproved land to be the same. Hence, in my view, amortization of “the full value of the structure” alone is reasonable and bears a fair relationship to the object sought to be obtained. See Benners, 485 S.W.2d at 777-78. It follows, and I would so hold, that the board was not authorized to consider land value in making the determination required of it under the above sections of the Dallas Development Code.
Since the board included the value of the land in terminating the nonconforming use, the board failed to follow the applicable provisions of the Dallas Development Code adopted by the City of Dallas to govern the board’s authority and duties. Therefore, the board entered an order in excess of an ordinance under which it operates. Conse*810quently, its order is void. Nelson, 577 S.W.2d at 785. Therefore, I would reverse the judgment of the trial court, vacate the permanent injunction and render judgment declaring that the September 6, 1984 order of the Board of Adjustment of the City of Dallas is void.
I would not, however, preclude new proceedings before the board to terminate Murmur’s nonconforming use. In light of the disposition I would make of the present case, it is unnecessary to address Murmur’s remaining points of error. More particularly, this court need not address Murmur’s claims for damages and attorney’s fees in light of the remand to the trial court.
Although I need not address Murmur’s remaining points of error, I am compelled to touch upon an error I note in the trial court’s treatment of “substantial evidence.” In Swain, 433 S.W.2d at 730, this court perceived the standard of review applicable to orders of a board of adjustment as follows:
Briefly, these governing legal principles may be summarized: (1) The only question which may be properly raised in a review of the decision of the Board of Adjustment by writ of certiorari is that of the legality of the board’s order; (2) a legal presumption exists in favor of the board’s order and the burden of proof to establish its illegality rests upon those who attempt to overcome its presumption of validity; (3) the principal issue on appeal from such order of the board is whether or not there is any substantial evidence affording reasonable support for the findings and order entered, such being a question of law, and not one of fact. If the evidence before the court, as a whole, is such that reasonable minds could have reached the conclusion that the board must have reached in order to justify its action, then the order must be sustained.
I cannot agree, however, that a judicial finding of substantial evidence affording reasonable support for the findings and order entered by a board of adjustment makes legal a board of adjustment order which is void. For example, a board of adjustment order dissolving a court would be void and no amount of substantial evidence that the court should be dissolved can make such a board of adjustment order valid. Therefore, substantial evidence supporting a void board of adjustment order cannot overcome the illegality of a board of adjustment order. Thus, a substantial evidence “bootstrap” technique cannot justify a board of adjustment’s failure to comply with an ordinance adopted by a city council to govern the board of adjustment’s authority and duties.
HOWELL, J., joins in this concurring opinion.