Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS: 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 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 (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 Dallas, appeal. HOLDING: The court affirms the decision of the trial court. The city claims that the trial court erred when it reversed the Board’s decision and remanded for the Board to reconsider the case in light of Cantu and McBride. During the hearing before the Board, the city attorney advised the Board that it should not consider whether the permit had been erroneously issued or that the structure was already completed. Accordingly, the Board was not permitted to consider, and did not consider those factors. The court concludes that the Board abused its discretion when it failed to analyze or apply the law � Cantu and McBride � correctly. The court further concludes that the trial court did not substitute its discretion for that of the Board. The city claims that the trial court erred when it concluded that the city inspector’s mistake subjected the property to a unique oppressive condition, which resulted in unnecessary hardship to the Vaneskos. The court notes that the local ordinance may be construed to be slightly more restrictive than section 211.009(a)(3) of the local government code. The ordinance provides in part that the variance must be “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). The court concludes that “parcel of land” is synonymous with “real property.” Therefore, the term “parcel of land” includes permanent improvements. The court agrees with the Cantu court that once construction of the home began, the nature of the realty was affected because the construction materials which were affixed to the property actually became a part of the property. The Cantu court concluded that once the town withdrew its authorization to continue construction in accordance with the erroneous plans, the real property became subject to a unique oppressive condition because the home could not be completed as designed without a variance. The same logic applies in the instant case. Furthermore, there is evidence in the record that if the roof were replaced with a shallower pitched roof, it would not be as aesthetically pleasing and would inappropriately stand out among the other properties in the neighborhood. Other evidence indicated that at least one rationale behind the design was the preservation of trees. Although the board did not consider preservation of trees to be a worthy consideration and to be a “stretch,”at least one court of appeals has held preservation of trees to be a legitimate concern when considering whether or not to grant a variance. Southland Addition Homeowner’s Assoc. v. Bd. of Adjustment, 710 S.W.2d 194 (Tex. App.-Fort Worth 1986, writ ref’d n.r.e.). The court concludes that the hardship was not merely personal to the Vaneskos, but was also linked to the realty. The shape of the structure at the time the error was discovered rendered the Vaneskos’ parcel incapable of being developed in a manner commensurate with the development of other parcels of land in that zoning area. To require the roof to be replaced with a much more shallow-pitched roof would cause the Vaneskos’ property to inappropriately stand out amongst the other properties which have more steeply pitched roofs. The city complains that the trial court abused its discretion by making findings of fact that ignored substantial evidence in support of the board’s decision. However, as the board was advised not to consider, and did not consider, the fact that the permit had been erroneously issued and that the structure was already completed, the board ignored substantial evidence to the contrary of its decision. The court cannot say that the trial court abused its discretion when it made findings of fact that addressed the Cantu and McBride factors. The city argues that the trial court erred by finding that granting the variance would not violate the public interest. The city argues in conclusory fashion that a few board members were concerned that granting the variance might set a precedent. However, it is well-settled that actions by the board in granting a variance can never set a precedent. No other arguments were advanced by the city that granting the variance would violate the public interest. Like Cantu, there is no evidence that the variance would present a health and safety issue, a majority of neighbors supported the variance, and to not grant the variance would make the property and the general area less aesthetically pleasing. Accordingly, the trial court properly found that granting the variance would not be contrary to the public interest. OPINION: Richter, J.; Moseley, Richter and Francis, JJ. DISSENT: Moseley, J. “The trial court found that the City of Dallas Zoning Board of Adjustment (“Board’) abused its discretion in denying a variance from a height restriction applicable to the property of appellees Doug and Grace Vanesko under the City’s zoning ordinances. On the City’s appeal, the majority overrules the City’s three issues and affirms this finding. Viewing the evidence before the trial court in the context of the Dallas City Code provision creating the Board and setting forth the parameters within which it may grant variances, I cannot conclude the Board abused its discretion. Because I would sustain the City’s issues, reverse the judgment of the trial court, and enter judgment in favor of the City, I respectfully dissent.”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.