the Town of Bartonville Planning and Zoning Board of Adjustments and Kristi Gilbert v. Bartonville Water Supply Corporation
2013 Tex. App. LEXIS 7162
| Tex. App. | 2013Background
- BWSC sought a building permit for an elevated water storage tower in Bartonville; site zoned RE-2, and tower use not allowed without a conditional use permit.
- Town Secretary/Building Official Gilbert denied the permit for lack of a conditional use permit.
- BWSC appealed to the Bartonville Board of Adjustment, which denied BWSC’s appeal.
- BWSC filed a petition for writ of certiorari in district court challenging the Board’s decision and Gilbert’s denial.
- The district court later granted BWSC relief, issuing a judgment reversing the Board and granting the permit; the Board appealed, arguing lack of subject-matter jurisdiction and authority to rule on Water Code preemption.
- The appellate court withdrew the prior opinion, reversed the district court, and remanded with instructions to dismiss or limit review to the legality of the Board’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court exceeded its limited certiorari review scope. | BWSC argues the court can review more broadly to determine Water Code preemption. | Board argues certiorari review only checks legality of the board’s order, not Water Code precedence. | Yes; district court exceeded its limited jurisdiction. |
| Whether the Board had authority to determine that the Water Code trumps the Bartonville ordinance. | BWSC contends Board could determine applicability of Water Code to BWSC. | Board had no power to legislate or determine Water Code preemption; must enforce ordinance. | Board exceeded authority; cannot determine Water Code preemption. |
Key Cases Cited
- El Dorado Amusement Co., 195 S.W.3d 238 (Tex. App.—San Antonio 2006, pet. denied) (board acts within authority; abuse of discretion when misapplies law)
- Sw. Paper Stock, Inc. v. Zoning Bd. of Adjustment, 980 S.W.2d 802 (Tex. App.—Fort Worth 1998, pet. denied) (district court review limited to legality of board’s order)
- City of Dallas v. Vanesko, 189 S.W.3d 769 (Tex. 2006) (district court reviews only legality of board’s order; very clear abuse shown)
- W. Tex. Water Refiners, Inc. v. S & B Beverage Co., 915 S.W.2d 623 (Tex. App.—El Paso 1996, no writ) (limits of board’s power; dynamic where board exceeds authority)
- Bd. of Adjustment v. Willie, 511 S.W.2d 591 (Tex. Civ. App.—San Antonio 1974) (board restricted to powers vested by statute and ordinance)