City of Dallas v. Vanesko, 05-03-00022-CV.

• Decision Date: 19 November 2003
• Docket Number: No. 05-03-00022-CV.,05-03-00022-CV.
• Citation: 127 S.W.3d 220
• Parties: CITY OF DALLAS, Texas, Board of Adjustment of the City of Dallas, Texas and Raj Sharma, in his capacity as the Building Official of the City of Dallas, Appellants, v. Doug VANESKO and Grace Vanesko, Appellees.
• Court: Texas Court of Appeals

127 S.W.3d 220CITY OF DALLAS, Texas, Board of Adjustment of the City of Dallas, Texas and Raj Sharma, in his capacity as the Building Official of the City of Dallas, Appellants,
v.
Doug VANESKO and Grace Vanesko, Appellees.No. 05-03-00022-CV.Court of Appeals of Texas, Dallas.November 19, 2003.Rehearing Overruled February 9, 2004.

[127 S.W.3d 222]

Christopher D. Bowers, Assistant City Attorney, Dallas, for Appellants.

Roger Albright, Law Offices of Roger Albright, Dallas, for Appellees.

Before Justices MOSELEY, MARTIN RICHTER and FRANCIS.

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

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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-1 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

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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 Nu-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

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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 their 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...