Board of Adjustment of the City of San Antonio v. Michael and Theresa Hayes, 04-15-00021-CV

Background

Property owner Michele Pauli Torres sought permits to install a ~40" metal railing and a temporary netting system around a residential tennis court; the City Development Services Director issued a general repair permit for the railing and treated the netting as not requiring a permit.
Neighbors Michael and Theresa Hayes appealed the Director’s decisions to the San Antonio Board of Adjustment (BOA). On January 13, 2014 the BOA reversed the Director as to a combined railing/netting system; on April 21, 2014 the BOA granted Torres’s appeal of the Director’s rescission of the railing permit (and did not decide a variance application because the BOA modified the Director’s decision).
The Director initially issued a railing permit (Feb 13, 2014) then rescinded it (Mar 4, 2014), citing perceived conflict with the BOA’s January ruling; Torres again appealed the rescission and alternatively applied for a variance.
The Hayeses filed a writ of certiorari in county court challenging the BOA’s April 21 decision. They argued (1) the writ was timely and (2) the BOA lacked jurisdiction because Torres had failed to exhaust administrative remedies from the January decision and the BOA was precluded from granting a variance.
The county court found the BOA lacked jurisdiction (on unspecified basis), denied the BOA’s plea to the jurisdiction, and reversed the BOA’s April 21 decision; the BOA appealed to the Fourth Court of Appeals.

Issues

Issue	Plaintiff's Argument (Hayes)	Defendant's Argument (BOA / Torres)	Held (trial court ruling under appeal)
Timeliness of writ — when 10‑day appeal period begins	The 10‑day period began when city staff indicated minutes would be available (May 6–7); Hayes filed within 10 days of receiving/being given copies	BOA: the 10‑day clock starts when the BOA’s approved minutes are filed in the BOA office (May 5); Hayes’ writ (May 16) was 11 days after filing and thus untimely	County court denied BOA’s plea and accepted Hayes’ timing argument (treated writ as timely)
Whether BOA could address alleged failure to exhaust administrative remedies	Hayes: BOA (and court) should hold Torres forfeited review because she failed to pursue judicial review of the January decision first; thus BOA exceeded jurisdiction	BOA: Chapter 211 authorizes BOA to hear appeals from administrative officers; BOA lacked authority to decide exhaustion question and should not be barred from hearing Torres’ appeal	County court found BOA exceeded jurisdiction (reversed BOA); BOA now challenges that ruling
Whether BOA’s April 21 action mooted or foreclosed the variance application	Hayes: BOA was jurisdictionally precluded from granting variance or modifying prior ruling	BOA: BOA modified the Director’s decision and approved the railing as not a sport‑court fence, rendering the variance request moot; alternatively if court affirms jurisdictional error, remand to BOA to decide variance is appropriate	County court reversed BOA without deciding variance; BOA seeks reversal or remand to allow variance consideration

Key Cases Cited

Abbott v. City of Paris, 429 S.W.3d 99 (Tex. App. 2014) (discusses administrative‑remedy/jurisdiction principles)
Christopher Columbus St. Mkt. LLC v. Zoning Bd. of Adjustments of Galveston, 302 S.W.3d 408 (Tex. App. 2009) (scope of judicial review of board decisions)
City of Alamo Heights v. Boyar, 158 S.W.3d 545 (Tex. App. 2005) (presumption of board legality and abuse‑of‑discretion standard)
City of Dallas v. Vanesko, 189 S.W.3d 769 (Tex. 2006) (role of reviewing court limited to legality of board order)
In re Barber, 982 S.W.2d 364 (Tex. 1998) (board decision supported by some evidence is not an abuse of discretion)
Sanchez v. Bd. of Adjustment, 387 S.W.3d 745 (Tex. App. 2012) ("decision" for § 211.011 timing purposes means approved minutes/records filed in board office)
Town of Bartonville Planning & Zoning Bd. of Adjustments v. Bartonville Water Supply Corp., 410 S.W.3d 23 (Tex. App. 2013) (neither BOA nor trial court may decide certain jurisdictional/threshold challenges beyond their statutory review role)
Essenburg v. Dallas County, 988 S.W.2d 188 (Tex. 1998) (exhaustion rule and judicial remedies)
Lufkin v. McVicker, 510 S.W.2d 141 (Tex. Civ. App. 1973) (limits on quasi‑judicial administrative authority)
West Texas Water Refiners, Inc. v. S&B Beverage Co., 915 S.W.2d 623 (Tex. App. 1996) (challenge to a board’s jurisdiction may be collateral and litigated outside writ of certiorari)
City of San Antonio v. El Dorado Amusement Co., 195 S.W.3d 238 (Tex. App. 2006) (scope of certiorari review of board decisions)
Winn v. City of Irving, 770 S.W.2d 10 (Tex. App. 1989) (exhaustion required before court review of certain local administrative zoning matters)