Wende v. Board of Adjustment San Antonio

• Decision Date: 19 July 2000
• Docket Number: No. 04-99-00577-CV,04-99-00577-CV
• Citation: 27 S.W.3d 162
• Parties: (Tex.App.-San Antonio 2000) Steve WENDE, Charles Brown, and the City of Shavano Park, Appellants v. THE BOARD OF ADJUSTMENT OF THE CITY OF SAN ANTONIO and Martin Marietta Materials Southwest, Inc., Appellees
• Court: Texas Court of Appeals

Page 162

27 S.W.3d 162 (Tex.App.-San Antonio 2000)

Steve WENDE, Charles Brown, and the City of Shavano Park, Appellants v. THE BOARD OF ADJUSTMENT OF THE CITY OF SAN ANTONIO and Martin Marietta Materials Southwest, Inc., Appellees

No. 04-99-00577-CV

Court of Appeals, Fourth Court of Texas, San Antonio

July 19, 2000

Rehearing Overruled August 16, 2000

From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 99-CI-01584 Honorable Frank Montalvo, Judge Presiding

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Sitting: Phil Hardberger, Chief Justice Tom Rickhoff, Justice Karen Angelini, Justice

ON APPELLEES' MOTIONS FOR REHEARING

Opinion by Tom Rickhoff, Justice

The motions for rehearing of the Board of Adjustment of the City of San Antonio and Martin Marietta Materials Southwest, Inc. are granted. This court's opinion and judgment of December 8, 1999, are withdrawn and the following opinion and judgment are substituted therefor.

In this appeal, we must determine whether the Board of Adjustment of the City of San Antonio abused its discretion in allowing a quarry to operate as a nonconforming use. We conclude that the fact that land was leased for quarrying is insufficient to establish a nonconforming use. The Board abused its discretion in holding otherwise. The evidence does not establish as a matter of law a preexisting use of the land for quarrying, nor does the evidence establish as a matter of law that the diminishing asset doctrine applies in this case. Therefore, the Board's decision must be reversed.

Factual and Procedural Background

Martin Marietta Materials Southwest, Inc., formerly known as Redland Stone Products Company (Redland) operates the Beckmann Quarry, which is located to the east of Interstate 10, to the west of Northwest Military Highway, and to the north of Loop 1604 in Bexar County. In 1997, the City of San Antonio entered into nonannexation agreements with Redland and other quarry owners. These agreements provided that the quarry owners would pay an amount equal to the ad valorem taxes that would have been assessed against them if the quarries had been annexed. In exchange for these payments, the City agreed not to annex the quarries before July 1, 1998, to develop appropriate quarry zoning regulations before the annexation, and to initiate a zoning case recommending quarry zoning for the quarries after the first reading of the annexation ordinance.

In April 1998, Redland and the owners of two tracts adjoining the quarry, the Schoenfeld and Rogers tracts, entered into written lease agreements giving Redland the right to quarry on the tracts. Later that month, the first reading of the quarry annexation ordinance occurred. Although the ordinance included the Beckmann Quarry, it did not include the Schoenfeld and Rogers tracts. On July 5, 1998, the annexation of the Beckmann Quarry became effective. Three days later, the owners of the Schoenfeld and Rogers tracts petitioned to have these tracts annexed. The annexation of the tracts became effective in November 1998. The City Council then zoned the Beckmann Quarry as a quarry district, but zoned the Schoenfeld and Rogers tracts as residential.

Redland sought to establish its right to operate a quarry on the Schoenfeld and Rogers tracts as a nonconforming use by filing a registration of nonconforming use with the Director of the Department of Building Inspections (the Director). The Director approved Redland's registration statement. After a public hearing, the Board upheld the Director's decision. In its findings of fact and conclusions of law, the Board stated that the "preexisting lease[s] ... gave Redland ... nonconforming use rights."

Several San Antonio taxpayers and the City of Shavano Park, a municipality near the quarry, filed a petition for writ of certiorari in district court, challenging the Board's decision. The district court granted the writ and affirmed the Board's decision. The City of Shavano Park and two San Antonio taxpayers, Steve Wende and Charles Brown, now appeal to this court.¹

Standing

Redland argues, without citing any authority, that the appellants do not have standing to appeal the Board's decision. The statute governing judicial review of decisions of a board of adjustment grants a right of appeal to "a taxpayer." Tex. Loc. Gov't Code Ann. § 211.011(a)(2) (Vernon 1999). It is undisputed that appellants Steve Wende and Charles Brown are taxpayers in the City of San Antonio. As such, they are entitled to challenge the Board's decision under the express terms of the statute. It was not necessary for them to prove they suffered any particular damages. See Scott v. Board of Adjustment, 405 S.W.2d 55, 57 (Tex. 1966).

The statute also grants a right of appeal to "a person aggrieved by a decision of the board." Tex. Loc. Gov't Code Ann. § 211.011(a)(1). The Code Construction Act defines "person" to include a "government or governmental subdivision or agency." Tex. Gov't Code Ann. § 311.005(2) (Vernon 1998). Therefore, the City of Shavano Park is "a person." A person is "aggrieved" by the board's decision if the decision adversely affects the person in a manner different from the way in which it affects a member of the general public. See Scott, 405 S.W.2d at 56. The Mayor of the City of Shavano Park testified at the hearing before the Board that Redland's blasting shakes his house and creates dust and noise. He and other residents of Shavano Park testified that Redland's blasting has damaged their property. The Mayor noted that he has received numerous complaints from residents regarding the effects of the blasting. This evidence is sufficient to establish that the City of Shavano Park is "aggrieved" by the Board's decision to allow Redland to expand its quarrying activities. Accordingly, both the individual appellants and the City of Shavano Park have standing to pursue this appeal.

Standard and Scope of Review

A board of adjustment is a quasi-judicial body. Board of Adjustment v. Flores, 860 S.W.2d 622, 625 (Tex. App.--Corpus Christi 1993, writ denied). The district court may review the legality of a board's decision by writ of certiorari. See Tex. Loc. Gov't Code Ann. § 211.011(a), (c) (Vernon 1999). Several principles guide both the district court's and this court's review.

There is a presumption in favor of the board's decision, and the party attacking the decision has the burden to establish its illegality. Flores, 860 S.W.2d at 625. The question is not whether the board's decision is supported by substantial evidence. See Nu-Way Emulsions, Inc. v. City of Dalworthington Gardens, 617 S.W.2d 188, 189 (Tex. 1981). Instead, the question is whether the board abused its discretion. See City of San Angelo v. Boehme Bakery, 144 Tex. 281, 286-87, 190 S.W.2d 67, 70 (1945); Flores, 860 S.W.2d at 625.

The abuse of discretion analysis requires a reviewing court to consider whether the questions presented pertain to factual, legal, or mixed issues. See Flores, 860 S.W.2d at 626. As a quasi-judicial body, a board of adjustment has no discretion in determining what the law is or in applying the law to the facts. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Citizens Active in San Antonio v. Board of Adjustment, 649 S.W.2d 804, 806 (Tex. App.--San Antonio 1983, no writ). In other words, a clear failure to analyze or apply the law correctly is an abuse of discretion. See Walker, 827 S.W.2d at 840. With respect to factual matters, however, a reviewing court may not substitute its decision for that of the board. See id. at 839-40; Flores, 860 S.W.2d at 626.

Because the Board is a quasi-judicial body, its decisions may be upheld on any possible theory of law, regardless of the reasons given by the Board in rendering its decision. See, e.g., Murmur Corp. v. Board of Adjustment, 718 S.W.2d 790, 799 (Tex. App.--Dallas 1986, writ ref'd n.r.e.). The Board's findings and conclusions only cite one reason for granting Redland nonconforming rights--the preexisting leases. But Redland argued two alternative theories before the Board--actual, preexisting use and the diminishing asset doctrine. Redland argues that under Murmur, we must uphold the Board's decision if there is evidence from which the Board could have granted nonconforming rights based on the latter two grounds, even though the Board only cited the preexisting leases in its findings and conclusions. We rejected this argument on original submission and held instead that we may affirm on a ground not cited by the Board only if we conclude that ground applies as a matter of law. See Flores, 860 S.W.2d at 626 (holding that a reviewing court is not to substitute its decision for that of the board).

In their motions for rehearing, Redland and the Board attack our interpretation of the standard and scope of review, arguing that we improperly shifted the burden to the winning party to uphold the Board's decision and ignored the appellants' burden to convince nine members of the Board that the Director's decision was erroneous, see San Antonio, Tx., Unified Development Code § 35-3037(b) (1987). We are not persuaded. Our interpretation is well-supported by precedent. See, e.g., Gulf Land Co. v. Atlantic Ref. Co., 134 Tex. 59, 131 S.W.2d 73 (1939); Public Util. Comm 'n v. Southwestern Bell Tel. Co., 960 S.W.2d 116, 121 & n.7 (Tex. App. Austin 1997, no pet); Hernandez v. Texas Workforce Comm'n, 18 S.W.3d 678, 682-83 (Tex. App San Antonio Jan. 26, 2000, no pet.).

In Gulf Land Co., the court reviewed a Railroad Commission order granting a drilling permit. The permit was granted on the ground that it was necessary to prevent confiscation of property. The holder of the permit sought to sustain it on appeal on the ground that it was necessary to prevent waste. The court held, "In this case we are unable to uphold this permit on the waste theory, because the Commission made no finding on that...