Appeal of Zoning Decision

Land Use lawyer

Jul 15, 2013 — by Jeff Mundy
Tags: Land Use Law


A decision of a board of adjustment may be challenged by the filing of a petition in district court stating that the decision of the board is illegal in whole or in part and specifying the grounds of the illegality. Tex. Loc. Gov't Code Ann. § 211.011(a) (West 2008); Town of Bartonville Planning & Zoning Bd. of Adjustments v. Bartonville Water Supply Corp., No. 04-12-00483-CV, 2013 WL 2558272, at *6 (Tex. App.—San Antonio Mar. 27, 2013, no pet. h.); City of Alamo Heights v. Boyar, 158 S.W. 2d  545, 549 (Tex. App. San Antonio 2005, no pet.).  "On the presentation of the petition, the court may grant a writ of certiorari directed to the board to review the board's decision." Tex. Loc. Gov't Code Ann. § 211.011(c). If a writ is granted, the board must file a return concisely stating "any pertinent and material facts that show the grounds of the decision under appeal." Id. at § 211.011(d).

"The district court sits only as a court of review, and the only question before it is the legality of the [board of adjustment] order." City of Dallas v. Vanesko, 189 W.W.2d 771 (Tex. 2006); see also City of Alamo Heights, 158 S.W.3d at 549. "The board's order is presumed to be legal, and the party attacking the order has the burden of establishing its illegality." City of Alamo Heights, 158 S.W.3d at 549. To establish that the board's order is illegal, "the party attacking the order must present a very clear showing of abuse of discretion." City of Dallas, 189 S.W.3d at 771; see also City of Alamo Heights, 158 S.W.3d at 549. The board abuses its discretion if it acts without reference to any guiding rules and principles or clearly fails to analyze or apply the law correctly.City of Dallas, 189 S.W.3d at 771; City of Alamo Heights, 158 S.W.3d at 549.

With regard to factual matters, the reviewing court must not put itself in the position of the board and substitute its findings for those of the board, even if the overwhelming preponderance of the evidence is against the board's decision. City of Dallas, 189 S.W.3d at 771; Christopher Columbus Street Market LLC v. Zoning Bd. of Adjustments of the City of Galveston, 302 S.W.2d 408, 416 (Tex. App.—Houston [14th Dist.] 2009, no pet.);City of Alamo Heights, 158 S.W.3d at 549. A party attacking the legality of the board's order must establish that the board could reasonably have reached but one decision, and not the decision it made. City of Dallas, 189 S.W.3d at 771; Christopher Columbus Street Market LLC, 302 S.W.3d at 416. A board does not abuse its discretion "if it bases its decision on conflicting evidence and some evidence supports its decision." In re Barber, 982 S.W.2d 364, 366 (Tex. 1998); see also Christopher Columbus Street Market LLC, 302 S.W.3d at 416.

Whether a board of adjustment abused its discretion is a question of law for the trial court. City of Alamo Heights, 158 S.W.3d at 549. This court reviews a trial court's decision on a question of law de novo. Id. "When both sides move for summary judgment, as they did here, and the trial court grants one motion and denies the other, reviewing courts consider both sides' summary- judgment evidence, determine all questions presented, and render the judgment the trial court should have rendered." Gilbert Tex. Const., L.P. v. Underwriters at Lloyd's London, 327 S.W.2d 118, 124 (Tex. 2010).

Board of Adjustment for San Antonio v. Kennedy

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