City of Dallas v. Vanesko

127 S.W.3d 220, 2003 WL 22718824

• Court: Court of Appeals of Texas
• Decided: February 9, 2004
• Docket: 05-03-00022-CV
• Status: Published

Opinions

OPINION

Opinion by

Justice MARTIN RICHTER.

This is a zoning case. The Vaneskos sought a variance from a local zoning ordinance, but the Board of Adjustment refused to grant a variance. The Vaneskos filed an application for writ of certiorari in the trial court in order to seek review of the Board of Adjustment decision. The cause was tried to the court below without a jury. The only evidence considered was the record of the Board of Adjustment proceedings submitted upon the return and supplemental return of the writ of certiorari. The trial court reversed the Board of Adjustment on the basis that its decision was an abuse of discretion and remanded for further proceedings consistent with the holdings of Town of S. Padre Island v. Cantu, 52 S.W.3d 287 (Tex.App.-Corpus Christi, 2001, no pet.) and Board of Adjustment v. McBride, 676 S.W.2d 705, 709 (Tex.App.-Corpus Christi, 1984, no writ). The City of Dallas, the Board of Adjustment for the City of Dallas, and Raj Sharma, in his capacity as the Building Official for the City of Dallas¹, bring three issues, claiming the trial court erred by abusing its discretion when it 1) remanded the case for the Board to consider Cantu and McBride, 2) concluded a city inspector’s mistake in approving a building permit was a unique oppressive condition resulting in unnecessary hardship to the Vaneskos, and 3) made findings of fact and conclusions of law that ignored substantial evidence that supported the Board’s decision. We affirm the decision of the trial court.

I. Factual Background

The Vaneskos purchased their property in Dallas in 1991 and lived in an existing single family residence until 1996, when they moved into an apartment located above their garage. The Vaneskos then had the existing home demolished in order to build a newer and larger home. The record indicates that this section of North Dallas was, at the time, a “hotbed” of redevelopment.

Doug Vanesko designed his own home and acted as his own general contractor. Realizing he was a novice contractor, Doug Vanesko paid the city building inspector an additional sum of money to approve his construction plans. The city not only approved those plans, but also made periodic inspections to monitor the construction.

As the home was nearing completion, and after the structure’s steel truss roof was completely framed in, the building-inspector stated that he thought that the roof appeared two feet too high. The Vaneskos were not advised or ordered to stop construction, but were told to seek a variance from the Board. With the support of the building inspector’s office, the Vaneskos filed for a variance.

After the building inspector first advised that the structure appeared to be too high, and the procedure for seeking a variance commenced, the parties discovered that the permit and the plans approved by the building inspector were in error. The Vaneskos’ property is in an R-10 zoning area, which provides for a maximum structure height of thirty feet. Apparently, the plan reviewer in the city inspector’s office believed the lot to be in an R-l or R-2 zoning area, which would allow a maximum height of thirty-six feet.

The approved plans provided for a 38.25 foot height². The house is actually 38.11 feet high. Although the house is 8.11 feet too high as per the zoning ordinance in issue, it was substantially built in accordance with the plans approved by the city.

The evidence indicates that it would cost the Vaneskos between $50,000 — $100,000 to remove and replace the roof. Further, 80% of the neighbors surrounding the property supported the granting of the variance, while the remaining 20% expressed no opinion other than to indicate that they were unhappy with the City that the situation had gotten to that point.

During the hearings before the Board on the request for a variance, the Board was specifically instructed by an assistant city attorney to not consider the fact that the permit had been issued in error or that the home was already completely built. Accordingly, the Board denied the request for a variance.

II. Standard of Review

A board of adjustment is a quasi-judicial body. Bd. of Adjustment v. Flores, 860 S.W.2d 622, 625 (Tex.App.-Corpus Christi 1993, writ denied). Section 211.011 of the local government code provides a means for challenging an action taken by a city’s zoning board of adjustment. See Tex. Local Gov’t Code Ann. § 211.011 (Vernon Supp.2003). This statute provides that a person aggrieved by a zoning board’s action may petition the court for a writ of certiorari within ten days after the board’s decision is filed. See id. at 211.011(a), (b). The district court sits only as a court of review, and the only question that may be raised by a petition for writ of certiorari is the legality of the board’s order. See Tex. Local Gov’t Code Ann. § 211.011(a) (Vernon Supp.2003); City of San Angelo v. Boehme Bakery, 144 Tex. 281, 286-87, 190 S.W.2d 67, 70 (1945); Southwest Paper Stock, Inc. v. Zoning Bd. of Adjustment of Fort Worth, 980 S.W.2d 802, 805 (Tex.App.-Fort Worth 1998, pet. denied). The board’s order is presumed to be legal, and the party attacking it has the burden of establishing its illegality. See Board of Adjustment of Dallas v. Patel, 882 S.W.2d 87, 88 (Tex.App.-Amarillo 1994, writ denied).

If the court determines that testimony is necessary for the proper disposition of the matter, it may take evidence. See Tex. Local Gov’t Code Ann. § 211.011(e) (Vernon Supp.2003). However, review of the board’s decision is not by trial de novo. See Boehme Bakery, 144 Tex. at 286-87, 190 S.W.2d at 70. The trial court must only answer a question of law, i.e., whether the board abused its discretion. See Nur-Way Emulsions, Inc. v. City of Dalworthington Gardens, 617 S.W.2d 188, 189 (Tex.1981) (per curiam); Dengler v. City of Groves, 997 S.W.2d 418, 420 (Tex.App.-Beaumont 1999, pet. denied).

It is an abuse of discretion for a zoning board to act arbitrarily and unreasonably without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A board of adjustment abuses its discretion if it clearly fails to analyze or apply the law correctly. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (original proceeding). The Board does not abuse its discretion as long as some evidence of substantive and probative character exists to support the board’s decision. See Southwest Paper Stock, Inc., 980 S.W.2d at 805-06.

The district court may reverse or affirm, in whole or in part, or modify the decision that is appealed. See Tex. Local Gov’t Code Ann. § 211.011(f) (Vernon Supp.2003). However, the district court cannot put itself in the adjustment board’s position or substitute its discretion for that of the board. See Board of Adjustment of Corpus Christi v. Flores, 860 S.W.2d 622, 625 (Tex.App.-Corpus Christi 1993, writ denied); see also Downer, 701 S.W.2d at 241-42.

III. Applicable Law

Under state law, a board of adjustment “may authorize in specific cases a variance from the terms of a zoning ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of the ordinance is observed and substantial justice is done.” Tex. Local Gov’t Code Ann. § 211.009(a)(3) (Vernon 1999).

In Dallas, which is a home rule city,³ the Board’s decision-making authority in variance cases is further limited by city ordinance. The guiding principles which govern the Board’s decision are found in the Dallas Development Code, which authorizes the Board to grant variances from zoning regulations if the variance is “necessary to permit development of the specific parcel of land which differs from other parcels of land by being of such a restrictive area, shape, or slope that it cannot be developed in a manner commensurate with the development upon other parcels of land in districts with the same zoning classification.” Dallas, Tex., Dallas City Code § 51A-3.102(d)(10) (2000). “A variance may not be granted to relieve a self-created or personal hardship, nor for financial reasons only, nor may a variance be granted to permit any person a privilege in developing a parcel of land not permitted by this chapter to other parcels of land in districts with the same zoning classification.” See id.

The Corpus Christi court of appeals has encountered a case remarkably similar to the one before us. See Town of S. Padre Island v. Cantu, 52 S.W.3d 287 (Tex.App.Corpus Christi 2001, no pet.). The Cantus prepared plans for the construction of them home and submitted them to the building department for approval. Id. at 288. The town issued a building permit for construction in accordance with the plans submitted. Id. When the home was nearly 80% complete, a building inspector informed the Cantus that a portion of their house protruded two feet over a setback line mandated by the zoning ordinance. Id. at 288-89.

The Cantus subsequently requested a variance from the board of adjustment. Id. at 289. Evidence was presented that the protrusion did not pose a health or safety risk, and at least some of the neighbors supported the granting of a variance. Id. The board denied the variance, and the Cantus appealed to the trial court by writ of certiorari. Id. The trial court and, ultimately, the Cantu court, determined that the board abused its discretion in failing to grant the variance. Id. at 289, 291.

In so holding, the Cantu court noted that enforcement of the ordinance would substantially change the house’s appearance and would make the house and the area less aesthetically pleasing. Id. at 290. The Cantu court considered the rule that in order to justify a variance, a hardship must not be self-imposed nor financial only and must relate to the very property for which the variance is sought, i.e., a condition unique, oppressive, and not common to other property. Cantu, 52 S.W.3d at 290 (citing Moody v. City of Univ. Park, 278 S.W.2d 912, 920 n. 2 (Tex.Civ.App.-Dallas 1955, writ ref’d n.r.e.)).

The Cantu court then determined that the Cantu’s property was subject to a unique, oppressive condition, caused by the town’s acquiescence to the building plans. Cantu, 52 S.W.3d at 290. The court acknowledged that substantial permanent improvements were made to the property, with the town’s knowledge and under its supervision. Id. The Cantu court concluded that the improvements “altered the nature of the property.” Id. at 291. Once the town withdrew the authorization to continue construction, the property was subject to a unique oppressive condition because the house could no longer be completed as designed without a variance. Id.

The Cantu court relied on the case Bd. of Adjustment v. McBride, 676 S.W.2d 705 (Tex.App.-Corpus Christi 1984, no writ). Based on facts similar to this case and to Cantu, McBride held that a board of adjustment is authorized to vary zoning regulations when hardship exists and where the variance would not be contrary to the public interest. McBride, 676 S.W.2d at 709.

In the Cantu opinion, the Corpus Christi court referred to the relevant sections of the local government code, but did not set forth any local ordinance. In a home rule city, the local government code preempts a local ordinance to the extent it conflicts with the statute. See Dallas Merchant’s, 852 S.W.2d at 491, see also Tex. Local Gov’t Code Ann. § 211.013(a) (Vernon Supp.2003). The fact that the legislature has enacted a law addressing a subject does not mean the complete subject matter is completely preempted. Id. (citing City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17, 19 (Tex.1990)). A general law and a city ordinance will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached. Dallas Merchant’s, 852 S.W.2d at 491. The local government code specifically provides that a local ordinance can impose higher standards. Tex. Local Gov’t Code Ann. § 211.013(a) (Vernon Supp.2003). Accordingly, this Court will weigh section 211.009(a)(3) of the local government code and Cantu in light of the local ordinance at issue in this case.

IV. Application of Law to Facts

In its first issue, the City claims that the trial court erred when it reversed the Board’s decision and remanded for the Board to reconsider the case in light of Cantu and McBride. Cantu, 52 S.W.3d 287; McBride, 676 S.W.2d 705. During the hearing before the Board, the city attorney advised the Board that it should not consider whether the permit had been erroneously issued or that the structure was already completed. Accordingly, the Board was not permitted to consider, and did not consider those factors.

We conclude that the Board abused its discretion when it failed to analyze or apply the law—Cantu and McBride—correctly⁴. See Walker, 827 S.W.2d at 840. We further conclude that the trial court did not substitute its discretion for that of the Board. We overrule the City’s first issue.

In its second issue, the City claims that the trial court erred when it concluded that the city inspector’s mistake subjected the property to a unique oppressive condition, which resulted in unnecessary hardship to the Vaneskos. We note that the local ordinance may be construed to be slightly more restrictive than section 211.009(a)(3) of the local government code. The ordinance provides in part that the variance must be “necessary to permit development of the specific parcel of land which differs from other parcels of land by being of such a restrictive area, shape, or slope that it cannot be developed in a manner commensurate with the development upon other parcels of land in districts with the same zoning classification.” Dallas, Tex., Dallas City Code § 51A-3.102(d)(10) (2000).

A “parcel” is a tract of land. Black’s Law Dictionary 1137 (7th ed. 1999). “Real property” is defined as land and generally whatever is erected or growing upon or affixed to land. San Antonio Area Found. v. Lang, 35 S.W.3d 636, 640 (Tex.2000). Although the Property Code⁵ does not define real property, the Probate Code defines “real property” as including “estates and interests in land, corporeal or incorporeal, legal or equitable, other than chattels real.” Tex. Prob.Code Ann. § 3(dd) (Vernon 2003). Real property is a general term for land. Black’s Law DictionaRY 1218 (6th ed. 1990). Real property means “land, and that which is annexed thereto.” Erwin v. Steele, 228 S.W.2d 882, 885 (Tex.Civ.App.-Dallas 1950, writ ref. n.r.e.). Accordingly, we conclude that “parcel of land” is synonymous with “real property”. Therefore, the term “parcel of land” includes permanent improvements. See e.g. Cantu, 52 S.W.3d at 291, fn. 1.

We agree with the Cantu court that once construction of the home began, the nature of the realty was affected because the construction materials which were affixed to the property actually became a part of the property. Id. The Cantu court concluded that once the town withdrew its authorization to continue construction in accordance with the erroneous plans, the real property became subject to a unique oppressive condition because the home could not be completed as designed without a variance. Cantu, 52 S.W.3d at 291. The same logic applies in the instant case.

Furthermore, there is evidence in the record that if the roof were replaced with a shallower pitched roof, it would not be as aesthetically pleasing and would inappropriately stand out among the other properties in the neighborhood. Other evidence indicated that at least one rationale behind the design was the preservation of trees. Although the Board did not consider preservation of trees to be a worthy consideration and to be a “stretch,” at least one court of appeals has held preservation of trees to be a legitimate concern when considering whether or not to grant a variance. Southland Addition Homeowner’s Assoc. v. Bd. of Adjustments, 710 S.W.2d 194, 196 (Tex.App.-Fort Worth 1986, writ ref’d n.r.e.)

We conclude that the hardship was not merely personal to the Vaneskos, but was also linked to the realty. The shape of the structure at the time the error was discovered rendered the Vaneskos’ parcel incapable of being developed in a manner commensurate with the development of other parcels of land in that zoning area. To require the roof to be replaced with a much more shallow-pitched roof would cause the Vaneskos’ property to inappropriately stand out amongst the other properties which have more steeply pitched roofs. We overrule the City’s second issue.

In its third issue, the City complains that the trial court abused its discretion by making findings of fact that ignored substantial evidence in support of the Board’s decision. However, as the Board was advised not to consider, and did not consider, the fact that the permit had been erroneously issued and that the structure was already completed, the Board ignored substantial evidence to the contrary of its decision. We cannot say that the trial court abused its discretion when it made findings of fact that addressed the Cantu and McBride factors.

In one paragraph, the City argues that the trial court erred by finding that granting the variance would not violate the public interest. The City argues in conelusory fashion that a few Board members were concerned that granting the variance might set a precedent. However, it is well-settled that actions by the Board in granting a variance can never set a precedent. Dallas, Tex., Dallas City Code § 51A-4.70-3(5) (2000). No other arguments were advanced by the City that granting the variance would violate the public interest.

Like Cantu, there is no evidence that the variance would present a health and safety issue, a majority of neighbors supported the variance, and to not grant the variance would make the property and the general area less aesthetically pleasing. See Cantu, 52 S.W.3d at 291. Accordingly, the trial court properly found that granting the variance would not be contrary to the public interest. We overrule the City’s third issue.

V. Conclusion

We affirm the judgment of the trial court.

MOSELEY, J., dissenting.

1 . The three appellants will be collectively referred to as the "City." When the Board of Adjustment is referenced individually, it will be denominated the "Board.”

2 . The City asserts that the permit only provided for a maximum height of thirty-six feet. However, the actual permit itself is not in the record, although the plan drawing is in the record.

3 . See e.g., Dallas Merchant’s and Concessionaire’s Association v. City of Dallas, 852 S.W.2d 489, 490 (Tex.1993).

4 . We note that Cantu was handed down subsequent to the Board hearing in this case. However, McBride was already decided at that time.

5 . See generally Tex. Prop.Code Ann. § 1.001-21.040 (Vernon 1984 & Supp.2003), Tex. Prop Code Ann. § 21.041-50 (Vernon 2000 & Supp.2003), Tex. Prop.Code Ann. § 51.001-80 (Vernon 1995 & Supp.2003).