Opinion
No. 11-16-00168-CV
05-24-2018
LENDA VOGLER, Appellant v. CITY OF LAMESA AND APRIL VARA, Appellees
On Appeal from the 106th District Court Dawson County, Texas
Trial Court Cause No. 15-10-19674
MEMORANDUM OPINION
This is an appeal from a judgment in which the trial court affirmed a decision by the City of Lamesa Board of Adjustment to grant April Vara a variance to the setback provision of the City of Lamesa zoning ordinance. We affirm.
Vara requested a building permit from the City of Lamesa so that she and her husband, Albert, could build a 25-foot by 25-foot metal carport. Thus constructed, the carport would extend from their garage to the sidewalk. The City's zoning ordinance contained a 25-foot setback provision. A building inspector determined that, if the Varas constructed the carport at the proposed location, they would construct it in violation of the setback provisions of the ordinance by five feet. Therefore, the inspector did not issue the permit. After the building inspector declined to issue the permit, Vara requested a variance from the Board.
The Board met to consider Vara's request. Before the meeting, the Board sent a notice regarding the request to each person who owned property that was located within 200 feet of the Varas' property. Appellant responded to the notice and opposed the proposed variance because she was concerned that the carport would "box[] . . . off" the intersection next to the Varas' property. She was also concerned that the placement of the carport as proposed would result in a devaluation of her own property.
At the meeting, Appellant again voiced her concern that "the carport would create a nuisance leading to vehicular sight obstruction and decreased property value." The Board unanimously approved Vara's application. Appellant appealed the Board's decision to the 106th District Court of Dawson County.
The trial court held a hearing on the appeal. It heard testimony from each of the Board members who were present at the meeting, as well as from the building inspector. The trial court also heard testimony from Albert and from Appellant.
At the hearing in the district court, several of the Board members testified that the Board based its decision to grant the variance on findings that the carport would not block the view of or from the intersection about which Appellant was concerned. The Board also considered the fact that there were carports on other properties on the street. Further, the Board noted that there was a carport on the property "across the street." The Board had granted a variance for the construction of that carport, and there had been no objections lodged against that variance. Additionally, although constructed in accordance with the zoning ordinance, there was a carport on Appellant's own property; Appellant's property was located next door to the Varas' property.
The testimony also shows that the Board discussed the harm that the Varas would suffer if the variance was not granted. Albert testified that students at the high school across the street from the Varas' property had thrown eggs and trash from the school parking lot onto their property. The Varas owned three antique cars, two motorcycles, and a four-wheeler. These vehicles were kept in a two-car garage and in a shop located in the Varas' backyard. The Varas parked their pickup and an Envoy outside in the driveway. The Board discussed that, without the variance, these vehicles would be "out in the weather" and "possibly subject to . . . destruction or damage by the local . . . students . . . who might lob rocks and bottles and cans and whatnot at them." Further, each member of the Board who voted on the variance had personally inspected the property. Based on all of this evidence, as outlined in the minutes of the meeting, the Board granted the requested variance.
After the trial court had heard the evidence presented to the Board, and at the hearing, the trial court entered a judgment in which it affirmed the Board's decision to grant the variance. This appeal followed.
In the first of her two issues on appeal, Appellant, as we interpret the issue, presents two complaints. First, she complains that the trial court erred when it found that there was "any evidence" to support the Board's decision. Next, Appellant claims that the trial court erred when it upheld the Board's decision when the Board made no findings to support the variance. We will take up the latter complaint first, and then we will address the "any evidence" portion of the issue when we address Appellant's second issue on appeal.
Appellant complains of the Board's failure to make findings as provided for in Section 211.011(c)-(d) of the Texas Local Government Code. TEX. LOC. GOV'T CODE ANN. § 211.011(c)-(d) (West 2016). Appellant did not ask for, and the trial court did not issue, a writ of certiorari. That provision applies only to cases in which the trial court grants a writ of certiorari and, therefore, is not applicable here. See id. § 211.011(c); Tellez v. City of Socorro, 296 S.W.3d 645, 649 (Tex. App.—El Paso 2009, pet. denied). We overrule that portion of Appellant's first issue on appeal in which she claims otherwise.
We read the first part of Appellant's first issue on appeal to be an attack on the sufficiency of the evidence to support the Board's decision. In her second issue on appeal, Appellant specifically argues that the trial court should have found that the Board abused its discretion "because the request was not a special case, denial of the variance would not result in an unnecessary hardship, and granting the variance was not in observance of the spirit of the Zoning Ordinance."
We note at the outset that Appellant bears the burden to establish that the Board's action was illegal, and she must do so by a very clear showing that the Board abused its discretion. City of San Angelo v. Boehme Bakery, 190 S.W.2d 67, 70-71 (Tex. 1945). Appellant bears that burden in the face of a presumption that the action of the Board was legal. Bd. of Adjustment of Corpus Christi v. Flores, 860 S.W.2d 622, 625 (Tex. App.—Corpus Christi 1993, writ denied). The Board abuses its discretion when it acts arbitrarily and unreasonably or without reference to any guiding rules or principles. Town of South Padre Island Tex. ex. rel Bd. of Adjustment v. Cantu, 52 S.W.3d 287, 289 (Tex. App.—Corpus Christi 2001, no pet.).
The trial court sits only as a court of review, and it may consider only the legality of the Board's decision. Flores, 860 S.W.2d at 625. The trial court must not substitute its judgment for that of a board of adjustment. Bd. of Adjustment of Piney Point Village v. Amelang, 737 S.W.2d 405, 406 (Tex. App.—Houston [14th Dist.] 1987, writ denied).
We also review the legality of the Board's decision to determine whether the trial court abused its discretion when it affirmed the Board's order. Boehme Bakery, 190 S.W.2d at 70. We review the entire record, and we presume that the challenged order is valid. Tellez, 296 S.W.3d at 649. "If the evidence as a whole is such that reasonable minds could have reached the same conclusion as that made by the Board of Adjustment, no abuse of discretion is shown." Id. Therefore, we will reverse the decision of the Board only if the facts are such that the Board could have reached only one decision—that decision being contrary to the one that it made. See Flores, 860 S.W.2d at 626.
The Board is a quasi-judicial body and is authorized to make "special exceptions" to the provisions of zoning ordinances if the exceptions are "consistent with the general purpose and intent of the ordinance." LOC. GOV'T § 211.008(a); see Flores, 860 S.W.2d at 625. Further, the Lamesa Code of Ordinances requires that any exceptions "render full justice and equity to the general public." Lamesa, Tex., Code of Ordinances, ch. 14, art. 14.02, § 14.02.002 (1998). The Board may grant a variance only if (1) the variance is consistent with the public interest and the spirit of the ordinance, (2) special conditions on the property exist, (3) literal enforcement of the ordinance would result in an unnecessary hardship, and (4) the issuance of the variance would result in substantial injustice. LOC. GOV'T § 211.009(a)(3).
As a part of her second issue on appeal, Appellant briefly argues that the variance is so extensive that it amounts to a rezoning of the Varas' property. However, the Board granted an area variance, not a use variance. Vara sought, and the Board granted her, the right to deviate from the standard terms of the zoning ordinance as to a setback. The Board did not grant a "use" variance that would have allowed a change in the designated, permissible use of the property. Ferris v. City of Austin, 150 S.W.3d 514, 517 n.2 (Tex. App.—Austin 2004, no pet.). To the extent that Appellant makes the rezoning claim in her second issue on appeal, it is overruled.
In her second issue on appeal, Appellant devotes the main part of her discussion to the third element set out above: that literal enforcement of the ordinance would result in an unnecessary hardship. Whether a hardship exists is a question of fact to be determined by the Board as factfinder. Id. at 521. The question on review is not whether the hardship exists, but whether, as a matter of law, the trial court could conclude that there was substantive and probative evidence before the Board such that the Board could conclude that "a literal enforcement would result in an unnecessary and unique hardship." Id. However, a hardship that is self-imposed does not constitute an unnecessary hardship sufficient to support a variance request. Bd. of Adjustment of Piney Point Village v. Solar, 171 S.W.3d 251, 255 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Rather, the hardship "must relate to the very property for which variance is sought, i.e., a condition unique, oppressive, and not common to other property." Cantu, 52 S.W.3d at 290.
Here, the record reveals that the location of the Varas' property makes it a prime target for "destruction or damage by the local . . . students . . . who might lob rocks and bottles and cans and whatnot at them." Such a condition appears to be unique to the Varas' property. That the Varas' own three antique cars, an additional two vehicles, two motorcycles, and a four-wheeler does not make the unique condition of the property a self-imposed hardship any more than the construction of a swimming pool or tennis court. See Solar, 171 S.W.3d at 255; see also Currey v. Kimple, 577 S.W.2d 508, 513 (Tex. App.—Texarkana 1978, writ ref'd n.r.e.). The unique hardship is related to the location of the property, not anything that the Varas did to it. There is no evidence that any other property in the area is subject to the same hardship.
In the closing portions of her brief, Appellant argues, without citation to authority or the record, that the variance is contrary to the public interest, that there is no unnecessary hardship, and that the spirit of the ordinance is violated by the issuance of the variance. Except for the unnecessary hardship issue, which was briefed separately, these arguments have been waived. TEX. R. APP. P. 38.1; see San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.). But even if Appellant did not waive the arguments, the record contains substantive, probative evidence sufficient to support the decision of the Board. Appellant has failed to meet her burden to overcome the presumption that the Board's decision was legal. We overrule both of Appellant's issues on appeal.
We hold that substantive, probative evidence exists, as outlined above, to support the Board's approval of the setback variance and that Appellant has not met her burden to show otherwise. The trial court did not err when it ruled that the Board did not abuse its discretion when it granted the variance.
We affirm the judgment of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE May 24, 2018 Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.