Citizens Active in San Antonio (C.A.S.A.) v. Board of Adjustment of City of San Antonio

• Decision Date: 13 April 1983
• Docket Number: No. 16541,16541
• Citation: 649 S.W.2d 804
• Parties: CITIZENS ACTIVE IN SAN ANTONIO (C.A.S.A.) and Amil M. Baker, Jr., Appellants, v. BOARD OF ADJUSTMENT OF the CITY OF SAN ANTONIO, Texas, and George Vann, Director of Building and Zoning for the City of San Antonio, Texas, Appellees.
• Court: Texas Court of Appeals

Page 804

649 S.W.2d 804

CITIZENS ACTIVE IN SAN ANTONIO (C.A.S.A.) and Amil M. Baker Jr., Appellants, v. BOARD OF ADJUSTMENT OF the CITY OF SAN ANTONIO, Texas, and George Vann, Director of Building and Zoning for the City of San Antonio, Texas, Appellees.

No. 16541.

Court of Appeals of Texas San Antonio.

April 13, 1983.

Marion T. Carson and Eugene H. Liech, San Antonio, for appellants.

Jake Talley, Jr., Asst. City Atty., Harvey L. Hardy, San Antonio, for appellees.

Before CADENA, C.J., and REEVES and TIJERINA, JJ.

OPINION

CADENA, Chief Justice.

Appellant, Citizens Active in San Antonio, sought review by certiorari in the district court of an order of appellee, Board of Adjustment of the City of San Antonio, upholding the issuance of a building permit by appellee, George Vann, director of building and zoning of San Antonio, to appellee, Lee-Jackson-Turner, Inc. The trial court, following a trial to the court, rendered judgment upholding the action of the Board. We affirm.

The facts are undisputed. Lee-Turner-Jackson, Inc., owner of a six-acre tract of land, obtained approval from City's planning commission of a plat of such tract as a single plot. The land in question is zoned "B-2", a classification designed for land and structures occupied by or suitable for "furnishing retail goods, such as groceries, drugs and such services as shoe repairing, to satisfy the household needs of surrounding residential areas." Regulations applicable to B-2 districts are designed to permit the development of the districts for their stated purposes and to protect the surrounding residential areas by requiring compliance with minimum yard standards. Multi-family dwellings are permitted in a B-2 district.

City issued to Lee-Jackson-Turner, Inc., building permits for a group of 33 buildings on the plot in question. Each building contained separate living units for two families. A building permit was also issued for the construction on the plot of a "community building."

This case does not involve application of the substantial evidence rule. The disposition of this case rests on the interpretation which is to be given the definition of "dwelling, multi-family" which is found in the zoning ordinance. If the project comes within such definition, the building permits were properly issued.

In order to perform its functions, the Board of Adjustment must, at times, interpret the provisions of the zoning ordinance. The interpretation of the ordinance is a question of law, and the courts, in reviewing the decision of the Board, are not bound by the interpretation adopted by that body. See Board of Adjustment v. Underwood, 332 S.W.2d 583, 585 (Tex.Civ.App.--San Antonio 1960, writ ref'd n.r.e.).

The ordinance defines "dwelling, multi-family" as "a dwelling or group of dwellings on one plot containing separate living units for three or more families, but which may have joint services or facilities."

Appellant argues that the ordinance requires that each structure, in order to qualify as a multi-family dwelling, must contain three or more separate living units. Appellees contend that since a multi-family dwelling may consist of "a group of dwellings on one plot containing separate living units for three or more families" the project in question comes within the definition found in the ordinance because the 33 structures are all on one plot and, taken together, contain separate living units for 66 families. The Board and the trial court agreed with appellees. So do we.

The ordinance contains no definition of "dwelling". However, the word, in its ordinary meaning, refers to a building used for human habitation, without regard to the number of units in a particular building. The term is broad enough to include multi-family dwellings and apartment houses. Annot., 94 A.L.R.2d 419, 426-27 (1964).

The zoning ordinance contains separate definitions of multi-family dwellings and apartments. It defines an "apartment house" as "a multi-family dwelling containing three or more family units within a single structure where the families live independently as...