Board of Adjustment of City of Corpus Christi v. Flores, 13-92-248-CV

• Decision Date: 29 July 1993
• Docket Number: No. 13-92-248-CV,13-92-248-CV
• Citation: 860 S.W.2d 622
• Parties: BOARD OF ADJUSTMENT OF the CITY OF CORPUS CHRISTI, Appellant, v. Severiano FLORES, Sr., President and d/b/a Portairs Furniture and Appliance, Inc., Appellee.
• Court: Texas Court of Appeals

Page 622

860 S.W.2d 622

BOARD OF ADJUSTMENT OF the CITY OF CORPUS CHRISTI, Appellant, v. Severiano FLORES, Sr., President and d/b/a Portairs Furniture and Appliance, Inc., Appellee.

No. 13-92-248-CV.

Court of Appeals of Texas Corpus Christi.

July 29, 1993.

Rehearing Overruled Aug. 31, 1993.

Carol Estes Bray, Asst. City Atty., Legal Dept., Corpus Christi, for appellant.

Paul Dodson, Bryan Powers, David Herrman, White, Huseman, Pletcher & Powers, Corpus Christi, for appellee.

Before FEDERICO G. HINOJOSA, Jr., KENNEDY and DORSEY, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

The Board of Adjustment of the City of Corpus Christi denied appellee's request for a zoning variance. Pursuant to TEX. LOCAL GOV'T CODE ANN. § 211.011 (Vernon 1988), appellee sought a writ of certiorari in the district court, and the district court granted the writ. By ten points of error, the Board of Adjustment appeals, mostly challenging the district court's findings of fact and conclusions of law. We reverse the judgment of the district court and reinstate the order of the Board of Adjustment.

The zoning ordinance of the City of Corpus Christi requires a parking space for every 400 square feet of gross floor space, including warehouses and storerooms, for buildings located in an I-2 (light industrial) zone. Severiano Flores has owned Portairs Furniture Store, located at 4243 South Port Street in Corpus Christi, for over eighteen years. Portairs Furniture Store has not been required to comply with the City's parking space zoning requirement because the business was already in existence when the City enacted the zoning ordinance. Portairs Furniture Store has only 10 parking places for 13,029.5 square feet of floor space, instead of the required 33 parking places.

In 1991, Mr. Flores borrowed $100,000 to build 4,761.9 square feet of additional warehouse space at the Portairs Furniture Store. To be in compliance with the City's zoning ordinance, the improved facility needed 44 parking places, but Flores proposed having only 13 parking spaces. Thus, Flores requested a zoning variance from the Board of Adjustment.

The Board conducted a hearing and heard evidence from Flores that 1) Portairs Furniture Store desired to expand its warehouse space but not its showroom space, 2) no more than 3 or 4 customers were in the store at any given time, 3) Portairs Furniture Store had 20 to 25 employees, 4) Flores had obtained an agreement from a neighboring bank allowing Flores's 25 employees to park on its lot across the street from the store, 5) Flores had an agreement with two adjoining businesses to allow his customers to park on their lots, and 6) Flores would suffer substantial hardship if the Board denied his request for a zoning variance.

The parking agreements that Flores claimed he had with the bank and adjoining businesses were not evidenced by written contracts, and the businesses Flores claimed had agreed to allow his customers to park on their lots were more than 300 feet from the store. Under the zoning ordinance, written contractual parking arrangements are allowed in lieu of on-site parking if within 300 feet.

The City challenged 3 of Flores's 13 proposed parking spaces because one of the spaces contained a utility pole and the other two parallelled the right-of-way. The City presented photographs to the Board showing 11 vehicles parked on the store premises, including Portairs Furniture Store delivery trucks. The photographs also depicted vehicles parked in an empty lot next door and on the sidewalks. The City pointed out to the Board that the photographs showed the difficulty of the parking scheme currently existing at the store. The Board denied Flores's request for a zoning variance by a four-to-one vote.

Flores filed suit in district court and requested a writ of certiorari. The district court conducted a hearing, allowed the parties to describe the evidence submitted to the Board, and heard additional oral testimony. The district court granted Flores a writ of certiorari and made the following findings of fact and conclusions of law:

Following the receipt of evidence, the trial court makes the following findings of fact:

1. Plaintiffs are the owners of the property the subject of this action.

2. Plaintiffs operate a family-owned furniture business on the property the subject of this action.

3. Plaintiffs have applied for a variance from the minimum parking requirements. Plaintiffs' employees park with a bank across the street by permission of the bank. Plaintiffs sought a variance in connection with the addition of warehouse space, and the addition would not increase the need for parking for the business. Plaintiff's business does not bring more than four customers per day into the store. The parking which Plaintiffs can provide is adequate for the purposes of Plaintiff and fulfills the purposes of the City's zoning ordinances.

4. It is not uncommon for variances to be granted from the minimum parking requirements. Plaintiffs have provided adequate parking within four hundred feet of their business, and this parking area is closer to the business than the parking provided at shopping malls in the community.

5. Not to grant Plaintiffs' request for a variance would cause unreasonable hardship to Plaintiffs and would serve no useful function, and would not serve any of the stated purposes of the Corpus Christi Zoning Ordinance.

6. Plaintiffs' business began operating prior to the institution of parking regulation by Defendant. Plaintiffs cannot expand their available parking by purchase of adjoining property. Plaintiffs have received a Small Business Administration loan to expand their warehouse. Defendant refused to consider the financial hardship of refusing to grant a parking variance. Refusal to grant a variance would cause Plaintiffs both a physical and a financial hardship. The failure to grant the variance would not promote public health, morals, safety or welfare.

7. The testimony, exhibits, and other evidence offered on behalf of Plaintiffs before this Court and before the Board of Adjustment was clear, compelling, and believable.

Based on the evidence and the foregoing findings of fact, the trial court makes the following conclusions of law:

1. The decision of the Defendant to deny Plaintiffs' requested variance was illegal.

2. The failure of the Defendant to grant Plaintiffs' requested variance constituted an abuse of discretion. The failure to grant the variance would not promote health, morals, safety or welfare.

3. Failure to grant Plaintiffs' requested variance would cause an "unreasonable hardship" under the zoning ordinances.

4. The 13 parking spaces provided by Plaintiffs shall be permitted as an exception or partial waiver to the parking requirements of the ordinances.

By its first point of error, appellant complains that the trial court erred by determining that a hardship existed and that the Board of Adjustment abused its discretion. By its second point of error, appellant complains that the trial court erred by rendering judgment for appellee since the Board did not abuse its discretion by finding that refusing to grant an exception would not cause a hardship to plaintiff, would serve a useful function, or would serve the purposes of the zoning ordinance. By its ninth point of error, appellant complains that the trial court erred by rendering its conclusions of law since the Board's decision was not illegal or an abuse of discretion. We will discuss these related points together.

The Board of Adjustment is a quasi-judicial body and the district court sits only as a court of review by writ of certiorari. TEX. LOCAL GOV'T CODE ANN. § 211.011 (Vernon 1988); see Currey v. Kimple, 577 S.W.2d 508, 512 (Tex.Civ.App.--Texarkana 1978, writ ref'd n.r.e.) (construing prior statute). The only question which may be raised by a petition for writ of certiorari is the legality of the Board's order. TEX. LOCAL GOV'T CODE ANN. § 211.011(a) (Vernon 1988); see City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67, 69 (Tex.1945) (construing prior statute); see also Board of Adjustment, City of Corpus Christi v. McBride, 676 S.W.2d 705, 706 (Tex.App.--Corpus Christi 1984, no writ). A legal presumption exists in favor of the Board's order, and the party attacking the order has the burden of proof to establish its illegality. Currey, 577 S.W.2d at 512. In order to establish that an order of a Board of Adjustment is illegal, the party attacking the order must present a very clear showing that the Board abused its discretion. Boehme Bakery, 190 S.W.2d at 69. The district court, when considering the legality of an order of a Board of Adjustment, must not put itself in the position of the Board and substitute its findings for that of the Board, even though the court concludes that the overwhelming preponderance of the evidence is against the Board's decision. Currey, 577 S.W.2d at 512. Review of a decision by a Board of Adjustment is not by trial de novo where facts are established; the district court must only answer a question of law, i.e., whether the Board of Adjustment abused its discretion. City of Lubbock v. Bownds, 623 S.W.2d 752, 755 (Tex.App.--Amarillo 1981, no writ) (construing prior statute). The district court shall consider the original papers before the Board, as well as evidence introduced before the court, and shall determine whether or not the Board abused its discretion. Boehme Bakery, 190 S.W.2d at 69; McBride, 676 S.W.2d at 706. Whether...