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Board of Adjustment of the City of San Antonio v. Wende

Regardless of the court of appeal's determination that the common law and other cities' zoning ordinances require actual preannexation use to establish nonconforming rights, the proper focus is on the City's own legislative enactments.

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Argued on November 6, 2001

Justice Jefferson did not participate in the decision.

The issue is whether San Antonio’s Board of Adjustment (“the Board”) erred in finding that land leased but not used for quarry purposes before being annexed and subsequently zoned for residential use has a “pre-existing nonconforming use” as a quarry such that the residential zoning does not apply. The City of San Antonio’s Director of the Department of Building Inspections approved the lessee’s filing of a registration statement of nonconforming use based on the pre-existing leases. The Board approved the director’s determination, and, on writ of certiorari, the trial court affirmed the Board’s decision. The court of appeals reversed, holding that the Board misconstrued the City’s development ordinances in a manner that led to an absurd result and rendered a provision of the ordinances superfluous. 27 S.W.3d 162. Because we hold that the pre-existing leases establish nonconforming use rights under the City’s development ordinances, we reverse the court of appeals’ judgment and render judgment in favor of petitioners.

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