The City of Dallas brought this suit seeking a mandatory injunction against Mike Gaechter, Gaechter Outdoor Advertising, Inc., and Ross J. Interrante to compel them to remove or lower an advertising sign erected in violation of the Dallas airport zoning ordinance. The trial court, sitting without a jury, denied plaintiff’s requested relief and ordered that the defendants maintain the sign at its present location and height, until the city grants defendants a permit to relocate the sign, on the same property, twenty-five feet nearer to the highway. On granting such a permit, the order requires defendants, at their own expense, either to move the sign to the permitted lоcation or to lower the sign by 17.58 feet. The city appeals, contending that it is entitled to the full relief prayed for. By cross-points, defendants assert that the court erred in granting the city any injunc-tive relief.
The land in question is located at 3760 West Northwest Highway in the city of Dallas. The defendants 1 obtained a permit from the building inspection department of the city of Dallas, to build the sign to a height of fifty feet above the ground level. After erection of the sign, the building inspection department discovered that the sign exceeded the maximum height permitted under the Airport Zoning Ordinance Number 6463 by 17.58 feet. The city did not appeal to the Board оf Adjustment of the City of Dallas, as permitted by the Airport Zoning Ordinance, but brought this suit in the trial court instead.
In its findings of fact the trial court found: (1) that lowering the sign 17.58 feet at its present location would destroy its utility and value because the view of the sign would be completely obstructed by other structures; (2) that it would cost defendants $15,000 to removе the sign; (3) that because of the great distance between the sign and the end of the runway at Love Field, the present location of the sign is not a hazard, danger or nuisance; and (4) that the height violation was caused by the negligent mistake of the building inspection department, without any fault of the defendants.
The trial cоurt concluded that it had discretionary equitable power under Tex.Rev. Civ.Stat.Ann. art. 46e-12 (Vernon 1969) and the general law and it additionally had powers coextensive with those of the Board of Adjustment to allow appropriate variances from the requirements of the zoning ordinance.
The city urges that neither altеrnative offered in the trial court’s judgment is acceptable. First, it contends that this sign should be altered or removed because it is in violation of the Airport Zoning Ordinance and the validity of that ordinance is not questioned by defendants. Secondly, the city contends that to allow the sign to be moved twenty-five feet closer to Northwest Highway would place the sign in violation of the Sign Standards Ordinance of the City of Dallas. In oral argument, the city conceded that the board would have had power to permit erection of the sign in its original location as a variance from the Airport Zoning Ordinance.
*402 Two key questions are presеnted by this appeal: (1) Was the trial court required by law to grant the mandatory injunctive relief sought by the City?; and (2) Does the district court have power to grant variances concurrent with that of the Board of Adjustment? We answer these questions negatively. Although we hold that the city was not entitled to the mandatory relief sought, we hоld that the trial court erred in permitting the sign to remain as a variance to the Airport Zoning Ordinance. Accordingly, we reverse the judgment of the trial court and deny all injunctive relief without prejudice to the city’s right to revoke the build'-ng permit and without prejudice to Gaechter’s right to appeal to the Board of Adjustment to obtain a variance.
MANDATORY INJUNCTIVE RELIEF
The city’s first point of error contends that the trial court erred in failing to grant it a mandatory injunction requiring defendants to remove the sign or reduce its height so it would comply with the provisions of the Airport Zoning Ordinance.
The city reasons that since the defendants are not contesting thе validity of the Airport Zoning Ordinance, and violation of that ordinance is shown, the trial court should have granted the requested mandatory injunction pursuant to Tex.Rev.Civ. Stat.Ann. art. lOllh (Vernon 1963) (hereinafter art. lOllh), which provides in part:
In case any building or structure is erected, constructed, reconstructed, altered, repairеd, converted, or maintained, or any building, structure, or land is used in violation of this Act or of any ordinance or other regulation made under authority conferred hereby, the proper local authorities of the municipality, in addition to other remedies, may institute any appropriate action or proсeedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, or use, to restrain, correct, or abate such violation, to prevent the occupancy of said building, structure, or land, or to prevent any illegal act, conduct, business, or use in or about such premises.
We hold that article lOllh does not remove all discretion from the trial court with respect to issuance of a mandatory injunction to enforce a zoning ordinance. The facts of the particular case must be considered by the trial court in reaching its decision as tо what would be appropriate action for the court to take. City of Snyder v. Cogdell,
In reaching this conclusion we do not accept the argument advanced by defendants that the city is estopped by the action of the building inspector on which defendants relied in erecting the sign. We reject this position for the following reasons: First, as a general rule a governmental unit exercising its governmental powers is not subject to estoppel. The zoning рowers of the city that are relevant to this case are police powers granted the city by the legislature, and such governmental functions are not subject to estoppel.
See
City of Hutchins v. Prasifka,
To permit an estoppel simply because the recipient of a permit may act upon some promise of the аdministrative officer, or even upon the permit itself prior to the expiration of the time for an appeal to the Board of Adjustment, would destroy the right of appeal. [Emphasis added.]
TRIAL COURT’S POWER TO GRANT A VARIANCE
We also hold that the trial court does not have independent power to grant a variance, and therefore we sustain the city’s fourth point оf error.
Tex.Rev.Civ.Stat.Ann. art. lOllg (Vernon Supp.1974) provides in § (d) that appeals to the Board of Adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality affected by any decision of the administrative officer. Section (g) of article lOllg provides the Board оf Adjustment shall have the power “to hear and decide appeals where it is alleged that there is error in any order, requirement, decision, or determination made by any administrative official in the enforcement of this Act or of any ordinance adopted pursuant thereto.” 2 Sections (j, k, 1, m) and (n) provide fоr appeal by writ of certiorari to a district court from a decision of the Board of Adjustment.
In City of San Angelo v. Boehme Bakery,
The court is not to put itself in the position of the board and substitute its discretion for that of the board. In giving the power to take evidence it was clearly not intended to authorize the court to exercise that power just as if it were the board itself.
The defendants urge that the trial court properly concluded it had powers coextensive with those of the Board of Adjustment to allow variances, on two grounds.
Defendants’ first ground is that if the instant case had come to the district court as an appeal from the Board of Adjustment under Tex.Rev.Civ.Stat.Ann. art. 46e — 11 (Vernon 1969) (hereinafter article 46e — 11), the court could have determined indеpendently whether an exception or variance was appropriate. Defendants’ contention is wrong for the reason that article 46e — 11 is not applicable in this case, as this is not an *404 appeal to the district court on the ground “that a decision of a Board of Adjustment is illegal.”
Defendants’ second ground is that the city had the right to appeal the issuance of defendants’ permit to the Board of Adjustment and that board could have granted a variance. Thus, defendants argue that when the city sought direct relief in the district court, that court “was thereby clothed with the power to do that which the Board of Adjustmеnt could have done had the city exercised its right to appeal to the Board of Adjustment.” As support for this position, defendants cite the case of City of Dallas v. Rosenthal,
Having pled that the rulings of its Building Inspector and issuance of the permits in question were in violation of zoning laws, the City, perforce of Art. lOllh, Vernon’s Ann.Civ.Stat., was amply authorized to maintain the instant suit filed May 22, 1946; the latter article constituting a cumulative remedy independently and regardless of the provisions of Art. lOllg requiring an appeal to the Board. Art. lOllg requires any person aggrievеd, or officer, etc., to appeal from any decision of the administrative officer “within a reasonable time.”
We do not regard that case as standing for the principle that article lOllh clothes the district court with power concurrent to that of the Board of Adjustment. In
Ro-senthal,
this court held that the issuance of the permit by the building inspector was a decision reviewable by the Board of Adjustment at the instance of the city, and in absence of such a review, the board’s decision was held to be conclusive. This holding was consistent with an earlier decision of this court in the same litigation. In Rosenthal v. City of Dallas,
The governing concept in this area is best stated by Chief Justice Dixon of this court in Sparks v. Bolton,
The law is that when a building inspector is acting within the scope of his legal authority, [the] party aggrieved by his decision must exhaust his administrative remedy by appealing to the Board of Adjustment before he may sue in а court for redress. But this rule does not apply if the building inspector is acting under ordinances or orders which are void. Ordinances or administrative orders which are void may be attacked in a direct, independent proceeding in court without resort to appeal to the Board of Adjustment.
The Bolton opinion limits the circumstances in which a party may proceed to *405 district court without appealing to the Board of Adjustment to the situation where the party is complaining that the building inspector acted under a void ordinance. With regard to a complaint of a void permit issued under a valid ordinance, Bolton holds that a “party aggrieved by his [building inspector] decision must exhaust his administrative remedy by appealing to the Board of Adjustment before he may sue in a court for redress.”
We, therefore, conclude that when the applicability of an ordinance is questioned, administrative remedies afforded by article lOllg must be exhausted before redress can be obtained from the courts. Thomas v. City of San Marcos,
In summation, we hold the trial court did have discretion to deny the city’s request for a mandatory injunction, but that the trial court does not have powers concurrent with those of the Board of Adjustment to issue variances. We, therefore, reverse the decree of the trial court and render judgment denying injunctive relief without prejudice to the right of the city to appeal the issuance of defendаnt’s permit to the Board of Adjustment, or to the right of defendants to apply to the board for a variance under the ordinance. So ordered.
Notes
. Defendant Ross J. Interrante is the owner of the property upon which the sign is located and he filed no answer and made no appearance in the trial cоurt. Defendants Gaechter and Gaechter Outdoor Advertising signed a lease with defendant Interrante on December 5, 1972, for construction and maintenance of the sign in question.
. The issuance of defendants’ permit can be appealed to the board of adjustment by the city. City of Amarillo v. Stapf,
. Indeed, it has been hеld that petitioners are not entitled to enjoin the use of property in violation of zoning ordinances where the ordinance provides such questions are to be resolved by a board of adjustment — even when the city council has not formed the board of adjustment! Instead, the petitioner should mandamus the city council to perform their ministerial duty of establishing the board of adjustment so petitioners might appeal the building inspector’s issuance of the permit. Sams v. Dema,