The CITY OF SAN ANTONIO BOARD OF ADJUSTMENT, Appellant v. Asher REILLY and Five Aces/SA, Ltd., Appellees, 429 S.W.3d 707

Background

Reilly (Asher Reilly & Five Aces/SA Ltd.) owns 112 Lindell Place in the River Road Historic District and sought a demolition certificate to replace a house with a six-unit apartment building.
The City’s historic preservation officer denied the demolition request after the historic design and review commission recommended denial; Reilly appealed to the City of San Antonio Board of Adjustment, which upheld the denial after a public hearing with expert and lay testimony and documentary evidence.
Reilly filed for writ of certiorari in district court, alleging only that the Board’s decision was illegal because he met the Unified Development Code’s “loss of significance” standard (preponderance of the evidence showing significant, irreversible changes causing loss of historic/cultural/architectural/archaeological significance).
Both parties moved for summary judgment on whether the Board clearly abused its discretion by denying demolition; the trial court granted Reilly’s motion and reversed the Board. The Board appealed.
The Fourth Court of Appeals reviewed whether the Board’s decision was a clear abuse of discretion, applying the presumption of legality for board decisions and requiring a very clear showing to overturn factual determinations.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Reilly proved "loss of significance" by a preponderance, so the Board clearly abused its discretion	Reilly: alterations, poor workmanship, additions and loss of architectural integrity showed loss of significance; lay opposition evidence was incompetent	Board: conflicting evidence existed; testimony from residents and commission supported denial; Reilly failed to show the Board had no reasonable choice	Court: Board did not clearly abuse its discretion; some competent evidence supported upholding denial
Whether lay resident testimony was inadmissible or insufficient to show historic/cultural significance	Reilly: only expert opinion should govern loss-of-significance determinations; lay testimony irrelevant	Board: quasi‑judicial body not bound by strict evidence rules; lay perceptions about neighborhood character are relevant and helpful	Court: lay testimony was permissible and relevant; public input is contemplated by preservation standards
Whether the trial court could substitute its judgment for the Board on factual questions	Reilly: trial court found only one reasonable result—loss of significance	Board: trial court must defer to board’s factual findings unless no reasonable basis existed	Court: trial court erred; appellate standard forbids substituting judgment when some evidence supports board
Whether Reilly may raise procedural complaints about officer/commission roles on appeal	Reilly: historic preservation officer should have acted without commission recommendation	Board: procedural complaints not pled below	Court: procedural contention not raised in petition/summary judgment is beyond scope and not considered

Key Cases Cited

Tellez v. City of Socorro, 296 S.W.3d 645 (Tex. App.—El Paso 2009, pet. denied) (writ of certiorari purpose and board return requirements)
City of Dallas v. Vanesko, 189 S.W.3d 769 (Tex. 2006) (trial court reviews legality of board decisions; presumption of legality)
Town of Bartonville Planning & Zoning Bd. v. Bartonville Water Supply Corp., 410 S.W.3d 23 (Tex. App.—San Antonio 2013, pet. denied) (standards for appellate review of board decisions)
Bd. of Adjustment for the City of San Antonio v. Kennedy, 410 S.W.3d 31 (Tex. App.—San Antonio, pet. denied) (board need not resolve conflicting evidence in favor of challenger)
Pick-N-Pull Auto Dismantlers v. Zoning Bd. of Adjustment of the City of Fort Worth, 45 S.W.3d 337 (Tex. App.—Fort Worth 2001, pet. denied) (some probative evidence precludes abuse of discretion)
Sw. Paper Stock, Inc. v. Zoning Bd. of Adjustment of the City of Fort Worth, 980 S.W.2d 802 (Tex. App.—Fort Worth 1998, pet. denied) (summary judgment on abuse-of-discretion appropriate)
In re Barber, 982 S.W.2d 364 (Tex. 1998) (board does not abuse discretion if some evidence supports decision)
City of Alamo Heights v. Boyar, 158 S.W.3d 545 (Tex. App.—San Antonio 2005, no pet.) (burden on challenger to show clear abuse of discretion)
Bd. of Adjustment of the City of San Antonio v. Willie, 511 S.W.2d 591 (Tex. Civ. App.—San Antonio 1974, writ ref’d n.r.e.) (board as quasi‑judicial body not bound by strict evidence rules)