*1 symptoms occur”; and issues that DALLAS, Texas, disorders, CITY OF study” Board of Ad-

“DSM-TV on dissociative justment City Dallas, Texas study “very much within main- Raj Sharma, capacity in his stream psychology” recog- and is “well Building Official of the However, nized.” the doctor had generat- Dallas, Appellants, and, ed no report, written than briefly mentioning that he applied had DSM-IV, he did not explain on what other Doug VANESKO Grace “mainstream psychiatry” studies or tech- Vanesko, Appellees. relied,

niques he how he applied had those No. 05-03-00022-CV. studies or techniques appellant. Like- wise, the identify doctor did not the “his- Texas, Appeals Court of torical data” on opinion which he based his Dallas. concerning appellant’s mental state.21 On Nov. 2003. record, this we hold that the trial court did Rehearing Overruled Feb. 2004.

not abuse its in excluding discretion Dr. Altschuler’s testimony. Muhammad is because, case,

distinguishable in that

proffered expert specifically testified on

voir dire as to which applied, tests he what

the defendant’s results were under those

tests, and what conclusions he drew from id.,

those tests. See 46 S.W.3d at

We overrule issues two and three.

Conclusion affirm judgment

We of the trial

court. Appellant request. Appel- asked for a continuance in order but the denied that trial court prepare better to show that the doctor’s challenge ruling appeal. lant does not Daubert, Kelly opinion was reliable under *3 Bowers,

Christopher D. Assistant Dallas, Attorney, Appellants. for Roger Albright, Roger Law Offices of Dallas, Albright, Appellees. MOSELEY, Before Justices MARTIN RICHTER and FRANCIS.

OPINION Opinion by Justice MARTIN RICHTER.

This is a case. The Vaneskos sought a variance from local ordi- nance, Adjustment but the Board of re- fused to a variance. The Vaneskos application filed an for writ of certiorari trial court in order to seek review Adjustment decision. The the Board cause was tried to the court below without jury. evidence considered was Adjustment the record of the Board of return proceedings upon submitted of the writ of supplemental return certiorari. The trial reversed Adjustment Board of on the basis was an abuse of discretion decision proceedings for further consis- remanded Padre holdings tent with the of Town S.of nearing completion, (Tex.App.- As the home Island roof Christi, 2001, after structure’s steel truss Corpus pet.) no in, building- framed completely Adjustment thought that the that he Christi, 1984, inspector no stated (Tex.App.-Corpus writ). high. too Dallas, appeared roof two feet City of the Board of not advised or ordered Raj for the Vaneskos were construction, Sharma, but told to seek Building stop were capacity in his as the sup- , the Board. With the three variance from bring Official for the of Dallas1 office, issues, building inspector’s by port of claiming the trial court erred 1) for variance. abusing Vaneskos filed its discretion when remanded *4 the case the Board to consider Cantu for building inspector After first advised the 2) city inspec a and concluded appeared high, to be that the structure too approving building per in a tor’s mistake procedure seeking the for a variance unique mit was a re oppressive condition commenced, that parties the discovered sulting unnecessary in by the plans approved permit the 3) Vaneskos, findings of fact made in error. The building inspector were law ignored conclusions of that substantial zoning is in an R-10 supported evidence that the Board’s deci area, which for a maximum struc- provides sion. We affirm the decision of the height thirty Apparently, the ture of feet. court. city inspector’s in the office plan reviewer R-l R-2 lot to be in an

believed the Background I. Factual area, a zoning which would allow maximum height thirty-six of feet. The purchased Vaneskos their approved plans for a 38.25 provided The existing 1991 Dallas in and lived an height2. actually The house is 38.11 foot 1996, single family residence until when high. Although the house is feet feet 8.11 they into apartment moved an located high the per too garage. above their The then Vaneskos issue, substantially it in accor- built existing had the home demolished order city. plans the approved dance the to build a newer larger home. record indicates that this section of North it indicates that would cost evidence time, was, of “hotbed” $50,000 $100,000 between Vaneskos — redevelopment. Further, replace roof. to remove and neighbors surrounding 80% of the Doug designed his own home Vanesko property supported his general acted as own contractor. variance, remaining ex- while 20% contractor, Doug was a Realizing he novice opinion other than indicate pressed no an paid city building inspector Vanesko they unhappy with the were his money approve additional sum gotten point. had to that the situation plans. city only ap- construction not During hearings Board proved plans, periodic those also made before the but variance, Board inspections request to monitor the construction. only provid- collectively permit appellants re- 2. The asserts 1. The three will thirty-six height feet. ed for maximum However, "City." ferred to as When the Board permit is in the actual itself individually, will is referenced record, drawing although plan in the is denominated "Board.” record. specifically question instructed an assistant trial court must answer law, i.e., attorney to consider the fact that whether the board abused its Emulsions, had been issued in error or that Nur-Way discretion. See Inc. Gardens, already completely the home was built. Dalworthington (Tex.1981) Accordingly, 188, curiam); request (per denied the Groves, for a variance. Dengler (Tex.App.-Beaumont pet. de- II. Standard of Review nied). adjustment quasi- A board It is an of discretion for a abuse judicial body. Adjustment v. Bd. of arbitrarily board to act and unrea Flores, (Tex.App.-Cor sonably any guiding without reference to denied). pus Christi Section principles. Aqua rules or See Downer v. 211.011 government pro of the local code Inc., Operators, marine challenging

vides a means for an action (Tex.1985). adjustment 241-42 A board of city’s zoning adjust taken board if it fails to abuses its discretion ment. See Tex. Local Gov’t Code Ann. analyze correctly. law *5 (Vernon § 211.011 Supp.2003). This stat Packer, 833, Walker v. 827 S.W.2d 840 provides person aggrieved by ute that a a (Tex.1992) (original proceeding). zoning may petition board’s action long Board does not abuse its discretion as a court for writ of certiorari within ten proba as some evidence of substantive and days after the board’s decision is filed. support tive character exists to the board’s (b). 211.011(a), at See id. district Inc., Stock, Paper decision. See Southwest review, only court a court sits of and the 980 S.W.2d at 805-06. only question may by a that be raised petition legality for writ of certiorari is may The district court reverse or of the board’s order. See Tex. Local Gov’t affirm, modify in part, whole or 211.011(a) (Vernon § Supp. appealed. decision that is See Tex. Local Ann. Code 2003); City Angelo San v. Boehme Bak 211.011(f) (Vernon § Ann. Gov’t Code 286-87, 67, 281, 144 ery, Tex. 190 S.W.2d However, Supp.2003). the district (1945); Stock, Inc. v. Paper Southwest put adjustment cannot itself in the board’s Worth, Zoning Fort Adjustment Bd. position or substitute its discretion for that 802, (Tex.App.-Fort 980 S.W.2d Worth Adjustment of the board. See Board of denied). 1998, pet. order is board’s Flores, Corpus Christi v. 860 S.W.2d presumed legal, party to be at (Tex.App.-Corpus Christi writ establishing tacking it has the burden of Downer, denied); see also at illegality. its See 241-42. (Tex. Patel, Dallas v. denied).

App.-Amarillo Applicable III. Law law, adjustment If the court determines that testi Under state board mony necessary disposi “may specific is for the authorize cases variance proper matter, if may from the terms of a tion of the it take evidence. contrary inter- public variance is not Tex. Ann. Local Gov’t Code 211.011(e) (Vernon conditions, and, a literal Supp.2003). special § est due to Howev er, of the ordinance would result by of the board’s decision is not enforcement review unnecessary hardship, 144 in and so Bakery, trial de novo. See Boehme 286-87, ordinance is observed and spirit at 70. The of the Tex. justice by mandated ordinance. is done.” Tex. Local line substantial 211.009(a)(3) (Vernon at 288-89. § Id. Code Ann. Gov’t 1999). subsequently requested The Cantus adjustment. from the board variance Dallas, city,3 which is a home rule presented that at 289. Evidence was Id. decision-making authority in vari- Board’s pose a health protrusion did limited ordi- ance cases further risk, neigh- at least some of the safety gov- guiding principles nance. The which of a variance. supported bors in the decision are found ern Board’s variance, The board denied Id. Code, author- Development to the trial court appealed the Cantus grant izes the Board variances and, The trial court writ of certiorari. Id. “nec- zoning regulations if the variance is court, ultimately, determined the Cantu spe- essary permit development that the board abused discretion oth- cific land which differs from failing the variance. Id. being er of land of such area, shape, restrictive noted holding, In so the Cantu court developed cannot be in a manner commen- of the ordinance would enforcement development upon with surate substantially change appear the house’s parcels of land in districts the same make the house and ance and would zoning classification.” Tex., Dal- aesthetically Id. at 290. pleasing. area less (2000). 51A-3.102(d)(10) las court considered the rule The Cantu “A granted not be to relieve variance, justify in order to personal hardship, a self-created or nor for self-imposed nor financial must *6 only, financial nor reasons very for property and must relate to the any granted permit person privi- to i.e., sought, a condi variance is lege developing of land not unique, oppressive, tion not common permitted chapter this other Cantu, at property. 52 S.W.3d of land districts with the same Park, (citing Moody 290 Univ. of classification.” See id. (Tex.Civ.App.- n. 2 920 S.W.2d n.r.e.)). 1955,writ ref ’d Corpus appeals Christi has remarkably encountered a case similar that The Cantu court then determined the one before us. See Town Padre S. subject to a property was Cantu’s Cantu, (Tex.App.- Island 52 S.W.3d 287 condition, by the unique, oppressive caused pet.). no Corpus Christi The Cantus plans. acquiescence building to the town’s plans for the prepared construction ac- at 290. The court S.W.3d home to the them and submitted them knowledged permanent that substantial department approval. for Id. at building property, made to the improvements were a building permit knowledge 288. The town issued under its the town’s for construction accordance with The Cantu court conclud- supervision. Id. home was the na- plans submitted. Id. When the “altered improvements ed inspector Id. at 291. Once nearly complete, building property.” 80% ture of contin- portion their the authorization to informed the that a town withdrew Cantus subject construction, ue was protruded house two feet over setback (Tex.1993). e.g., 3. Dallas Merchant’s and Concession- S.W.2d aire’s Association v. Application unique oppressive to a condition because IV. Law to Facts the house longer completed could no issue, In first that claims designed without a variance. Id. trial court erred when it reversed the decision and Board’s remanded

The Cantu court relied on the case Bd. light Board to reconsider the case McBride, Adjustment v. 676 S.W.2d 705 Cantu, 52 Cantu and McBride. writ). (Tex.App.-Corpus Christi no 287; McBride, During Based facts similar to this case and to Board, hearing city before the Cantu, McBride held that a board ad- attorney Board that it advised the should justment vary zoning reg- is authorized to not consider whether the had been ulations when exists where erroneously issued or that the structure contrary the variance would not be already completed. Accordingly, public interest. at 676 S.W.2d consider, not permitted did not consider those factors. opinion, In the Cantu Cor conclude that the Board We pus Christi court referred to the relevant abused its discretion when it failed to ana code, government sections of the local but lyze law — Cantu did not set forth local ordinance. In a Walker, correctly4. See McBride — city, government home rule the local code 840. We further conclude preempts a local ordinance to the extent it the trial court did not substitute its discre conflicts with the statute. See Dallas tion for that of the Board. We overrule Merchant’s, see also first issue. 211.013(a) Tex. Local Gov’t Code Ann. issue, its second claims (Vernon Supp.2003). The fact that the trial court erred when it concluded legislature addressing has enacted a law subjected inspector’s mistake subject complete does not mean the sub unique oppressive to a condi- ject matter is completely preempted. Id. tion, unnecessary which resulted in hard- *7 (citing City Richardson v. Responsible ship to the note that the Vaneskos. We Owners, (Tex. 17, Dog 794 S.W.2d 19 local ordinance be construed to be 1990)). general A and a law than slightly more restrictive section repugnant will not be held to each other if 211.009(a)(3) government of the local code. leaving other reasonable construction in provides part The ordinance that both in effect can reached. Dallas “necessary must de- to Merchant’s, 852 at 491. The local velopment specific parcel of the of land government specifically provides code that parcels other of land which differs from a impose higher local ordinance can stan area, being shape, a restrictive or such dards. Tex. Local Gov’t Code Ann. developed that it cannot be 211.013(a) (Vernon § Supp.2003). Accord develop- manner commensurate with ingly, weigh this Court will section upon ment land districts 211.009(a)(3) government of the local code with the same classification.” Dal- in light and Cantu of the local ordinance at § las, Tex., 51A- Code 3.102(d)(10)(2000). issue in this case. However, already at

4. We note that Cantu was handed down sub- McBride was decided sequent hearing to the Board in this case. that time.

227 Other neighborhood. ties in the evidence is a tract land. “parcel” A (7th ed. Dictionary at one rationale behind indicated that least Black’s Law 1999). as property” is defined land of trees. design preservation “Real was grow generally pres whatever is erected Board did not consider Although the upon affixed to San Antonio worthy land. to consider ervation of trees be a 636, Lang, Area “stretch,” Found. 35 S.W.3d at be a least one ation and to (Tex.2000). Although Code5 Property preservation held appeals court of has property, does not define real Probate legitimate concern when con trees be a including as property” defines “real or not to a vari sidering whether land, corporeal and interests in “estates Homeowner’s ance. Addition Southland equitable, other than incorporeal, legal or 710 S.W.2d Adjustments, Assoc. v. Bd. of chattels real.” Tex. Ann. Prob.Code writ (Tex.App.-Fort Worth 3(dd) (Vernon 2003). property Real is n.r.e.) ref ’d general for land. Black’s term Law Dic was not We conclude (6th 1990). property ed. Real tionaRY Vaneskos, merely personal but “land, that means is annexed realty. of the shape also linked to Steele, thereto.” Erwin v. structure at the time the error was discov- (Tex.Civ.App.-Dallas ref. parcel incap- ered rendered n.r.e.). Accordingly, we conclude that in a com- being developed able of manner with “parcel synonymous of land” “real of other development mensurate with Therefore, property”. “parcel the term To land area. parcels of permanent improvements. land” includes replaced roof with require the to be Cantu, e.g. fn. shallow-pitched much roof would more agree with the Cantu court We inappro- property cause the Vaneskos’ began, that once the home construction of amongst prop- out the other priately stand realty the nature of the affected be steeply pitched have more erties which cause the construction materials which is- second roofs. We overrule actually were be affixed sue. Id. part property. came Cantu court concluded that once town issue, com third con withdrew its authorization to continue plains the trial court abused its dis struction in accordance the erroneous by making findings fact cretion subject plans, real became ignored support evidence substantial unique condition because the oppressive However, decision. as Board’s completed designed home could not be consider, and did advised not to Board was without variance. *8 consider, permit had the fact that the logic in the instant applies same erroneously and that been issued case. already completed, structure to the substantial evidence ignored

Furthermore, there in the is evidence say its cannot contrary of decision. We replaced if the roof with record that were abused its discretion roof, that the trial court pitched a shallower would fact ad findings made that when it aesthetically pleasing inappro- and would factors. the Cantu and McBride proper- out the other dressed priately among stand 2003), (Ver Prop.Code generally 51.001-80 Prop.Code 5. See 1.001- § § Tex. Ann. Tex. Ann. Supp.2003), & Prop Supp.2003). (Vernon 21.040 &1995 Tex. non & Supp. (Vernon 21.041-50 § Code Ann. variances, I City argues may grant that ters within which it paragraph, one its dis- by finding grant the trial court erred that cannot conclude the Board abused ing pub the variance would not violate the cretion. Because I would sustain the issues, City argues conelusory judgment lic interest. The in reverse the of the City’s court, that a enter in judgement fashion few Board members were and favor City, I granting respectfully concerned the variance dissent. However, it might precedent. set a that actions the Board in well-settled BACKGROUNDFACTS granting prece a variance can never set a a variance is ability grant The Board’s dent. Dallas, Tex., Dallas Code governed by the Dallas Code. Sec- 51A-4.70-3(5) (2000). argu § No other tion 51A-3.102 of the Code creates City ments were advanced duties, powers forth Board and sets granting the variance would violate the in “which must be exercised accordance public interest. chapter.” this Tex., Cantu, Like there is no evidence 51A-3.102(d) (2000). pow- Those present that the variance would a health duty include the power ers duties issue, majority neighbors safety (10) ... grant To variances variance, supported and to not ... not be height regulations that will the variance would make the when, contrary public to the interest aesthetically general pleas area less conditions, owing en- special literal Ac ing. See chapter forcement of this would result cordingly, properly the trial court found unnecessary hardship, and so the variance would not be spirit of the ordinance will be observed contrary public interest. over We justice and substantial done. The vari- City’s

rule the third issue. necessary ance must be devel- specific parcel land opment V. Conclusion from, parcels other land differs judgment affirm of the trial We area, by being of such restrictive court. that it cannot be devel- shape, oped in a manner commensurate with MOSELEY, J., dissenting. development upon parcels the same land districts with MOSELEY, Opinion By Justice A not be classification. dissenting. (sic) created granted to relieve self The trial court found that hardship, nor personal for financial Zoning Board of may a variance be only, reasons nor (“Board”) denying its discretion in abused permit any person privilege granted to height appli- a variance from a restriction per- of land not developing Doug appellees cable to the chapter mitted this to other under the zon- and Grace Yanesko with the same of land districts City’s appeal, ordinances. On the *9 classification. City’s issues majority overrules the three added). 51A-3.102(d)(10) (emphasis finding. Viewing the evi- Id. and affirms this Thus, the re- the variance meets trial court in the context unless dence before the above, Board has forth creating quirements set provision of the Dallas duty grant it. power neither the nor the setting parame- Board and forth the a of the Board’s decision.2 applied seeking The for a variance review Vaneskos regard- City’s zoning from the restrictions was tried to the court below The cause height newly-built of their house. jury. a The evidence before without on two application Their was based court was the record the district (1) grounds: they commenced construction upon the proceedings Board’s submitted City’s ap- in of the house reliance on of the writ supplemental return and return and did proval plans of their construction argued that in of certiorari. The Vaneskos that the house as built not become aware reaching decision the Board refused height restriction of the would violate building permit a the facts that consider until applicable after had issued and the house been had been roof) framed; (including house built. (2) their lot slope grade trial court held that the Board’s The exceeding resulted in the house the code discretion, decision constituted an abuse restrictions.1 The staff recommended decision, and re- reversed the Board’s granted, that the variance be but not on pro- the Board “for further manded it to ground the basis of either raised ceedings consistent with” Town South Rather, the staff recommenda- Vaneskos. Padre Island “largely tion due the site’s restrictive Christi, 2001, pet.) no (Tex.App.-Corpus area caused mature trees on the site and Board ... applicant pre- intends to Christi, (Tex.App.-Corpus hearing, hearing serve.” At an initial after writ). 1984, no The trial court also en- lawyer City’s from the Vaneskos’ findings of fact and conclusions of tered staff, the Board action on the deferred City appealed. law. The application allow the staff to gather more information. At the second OF REVIEW STANDARDS

hearing, the Board receiving the additional disagree I not with the statements do again information and heard from the opinion regarding applica- majority lawyer. staff and from the Vaneskos’ However, I ble standards of review. sum- At the hearing, conclusion the second to illustrate marize those standards here failed, grant motion to the variance how I would them this case. application. thus the Board denied the timely application person filed an contests a board’s Vaneskos When court, certiorari, timely for by filing writ of certiorari in the district action application Chapter 1. The Vaneskos' asked the Board ment of the would result in an request following reasons: unnecessary hardship. This variance spirit plans of the ordinance to for this residential construction would allow approved by justice were reviewed and done. be enforced and substantial November 1998. Construction was com- necessary to devel- The variance is nearing completion. menced and is Subse- property opment specific parcel of this time, quent to that has determined property which differs from other height that based on the definition of slope, by being a restrictive it can- of such conjunction slope with the of the developed in manner commensu- height of the house exceeds the development upon par- rate with the requirements Development of the Code as zoning. in R-10 cels of land slope. application result of the there- requests height fore a variance of the claims, which 2. The Vaneskos asserted other building. Such variance would the case below and are not were severed from owing contrary public to the interest since before us. enforce- of this literal *10 230 to or any guiding

the court as a court of review without reference rules district sits question legal analyze to determine sole to or principles or failed ity Downer, of order. correctly. board’s See apply the law See 701 Tex. 211.011(c) (Vernon Walker, Loc. 241-42, at S.W.2d 827 S.W.2d Code Ann. Gov’t Supp.2004); City Angelo Boehme San v. 840. of 286-87, 281, 144 Tex. 190 Bakery, S.W.2d 67, (1945); Stock, Inc. v. Paper 70 S.W. Analysis Worth, Adjustment Zoning Bd. Fort of of City on appeal. The asserts three issues 802, (Tex.App.-Fort 980 805 S.W.2d Worth First, it its contends trial abused denied). 1998, pet. The board’s order ease by remanding discretion “with at presumed legal, parties to be instructions to consider the Vaneskos’ self- (here Vaneskos) tacking it have the or when evaluat- created financial establishing illegality. burden of its See Second, request their for variance.” Patel, Adjustment Bd. Dallas v. 882 of of City The the trial court contends abused 1994, 87, (Tex.App.-Amarillo S.W.2d 88 it found that the its discretion when denied). subjected building inspector’s mistake adjust To that a board of establish unique oppressive to a condition attacking illegal, party order is ment’s that this condition resulted and concluded present very must clear show order to the Vanes- unnecessary hardship in an its ing that the board abused discretion. Third, the trial kos. contends Bakery, (citing Id. Boehme 190 S.W.2d making find- court abused its discretion 71). adjustment of its A board abuses ings ignore of fact that substantial evi- to if it reference discretion acts “without of Board’s decision. support dence rules Down guiding principles,” or see issues, City argues that these Within Inc., 701 Aquamarine Operators, er v. entering findings of the trial court erred (Tex.1985), 238, “clearly S.W.2d 241-42 through fact 5 8. Because of interre- correctly.” analyze fails the law to issues, I will lated nature of Packer,

See Walker v. 827 S.W.2d 840 together. address them (Tex.1992) (original proceeding). Whether judgment trial is based court’s adjustment zoning board of abused 5, 7, fact and 8: findings of part question of law for the trial discretion is Inc., Emulsions, v. Nu-Way court. See (sic) Vaneskos Gardens, Dalworthington subject unique oppressive condition to (Tex.1981); Murmur City’s acquiescence caused Corp. Bd. building house could no plans since the (Tex.App.- A completed designed. longer be n.r.e.). 1986, writ ref ’d review We an necessary prevent variance was the trial court’s on questions decisions unnecessary hardship that was not self- Dep’t Transp. law de novo. Texas personal created or Vaneskos. (Tex.2002) Needham, novo); May (questions of law de reviewed ap- [the Vaneskos’] Sunnyvale,

hew v. Town (Tex.1998). height for a variance would be Thus, plication court’s development of a reversed, necessary judgment should be land differs from specific deny Board’s decision being of of land such upheld, unless the record before area, shape acted restrictive the trial court shows *11 cannot in set forth in each such developed requirements be the manner com- cise with the development upon mensurate ordinance. other in land districts with the persuasive. is not It is argument This

same classification. an argument ignore that the courts should granting 8. The ap- [the Vaneskos’] language city’s govern- the of a plication for a height variance would not ing a variance. standard personal relieve a self-created or hard- applicable the context of standard ship. review, that, it is an assertion in determin- at hearing ing As made clear before the whether the Board acted “without ref- argument any guiding principles” trial court and at oral before erence to or rules Court, this and as majority “analyze shown or failed to or opinion, findings correctly,” ignore basis for these law the courts should very (undisputed) the fact that a text of the law constitutes employee “guiding principles” rules or that the reviewing plans the Vaneskos’ construction analyze, apply, Board must and follow. erroneously building issued a Downer, 241-42, See at assuming wrong Walk- legal height maximum er, for a structure on the This fact property. problems.

raises several second, gave The Vaneskos alternative First, the condition the variance seeks to question type answer to the remedy, inability area, complete (i.e., the house restrictive condition condition of designed, involving as is not a shape, slope) applied condition “a or to their variance area, restrictive shape, slope” application. They for which stated the relevant may grant the Board a variance under the condition could be construed to be one of area, lot, Code. in See that because of the size of the Dallas, Tex., 51A-3.102(d)(10) (emphasis illegal add- struc- presence existing Code ed). It is clear from the precluded building record ture the owners from area, another, shape, complying analy- the Vaneskos’ lot structure. This does not materially differ from that of the sis is incorrect its face. Vaneskos’ neighborhood; they lots neither lot has area it the same did before was there evidence before the Board or constructed their house. And as noted above, the trial court physical gives condition nothing about lot’s area difficulty of the Vaneskos’ hardship hardship develop- creates a rise to a ability develop according according zoning. their the tract to its code, would, followed, applicable zoning logic i.e. construct a if lead to (or single-family residence. the result that a variance should could) granted least situation Court, During argument before this lot, involving improved an as in almost Vaneskos type were asked which of condi- every presence existing of an case (i.e. area, shape, tion condition of the landowner preclude structure would slope) applied application. to their building. erecting another First, gave replies. they two Vaneskos Second, above, although stated that of indi- noted the ordinance ordinances governing governing specifies vidual cities contain a variance variances language that differs from that in to relieve a granted section code, government person- 211.009 of the local that is that is either self-created or owner, interpreting cases those ordinances do not al to the or for financial reasons § 51A- “parse pre- only. these ordinances down” to the Tex., *12 3.102(d)(10). Moreover, satisfy hardship sought To if the to require- these even ments, finding trial found in inability the court to construct the be relieved—the inability to hardship fact 5 that the designed house as not self-created —the —was designed construct the house as Vaneskos, on its it is by the face —“was personal or to the self-created Vaneskos.” hardship them. It personal that is to ex- “The Similarly, finding of fact 8 states: ists, not of a endemic to because condition for application of [the Vaneskos’] own, to they land but happen the height a self- variance would relieve surrounding because the circumstances personal hardship.”3 or created con- the review Vaneskos’ plans to the and their failure tell struction However, it is a persons maxim all planned was Vaneskos that their structure presumed are to the know law. Greater zoning applicable too tall under the classi- Tramp. Phillips, Houston v. Co. (Tex.1990) yet another on fication. This is basis (citing n. 3 the have denied the E.H. Sch. which Board could Mfg. Co. Wichita Stafford Co., application for a variance. Supply 118 Tex. Vaneskos’ (1930)). includes presumption This request summary, the Vaneskos’ was knowledge applicable laws. See involving re- not based on a condition “a Johnson, City Fort Worth area, shape, slope,” required or strictive (Tex.1964) (ignorance of City Although the Code. some enjoin to ordinance no defense to suit vio- Vaneskos, equities indisputably favor the lation). findings ignore The trial court’s have the the Board could reached conclu- house, “as de- the fact that hardship sion the Vaneskos’ was “self- signed”, height violated the restrictions “personal” that it was created” and More- applicable zoning ordinance. Thus, the to Board’s decision Vaneskos. over, parties stipulated as the before deny the was not made “without variance court, plan approval trial review and any guiding princi- to rules reference paid for which the additional Vaneskos Downer, 701 at 241-42. ples.” See money City for to determine “clearly can it said that the Board Nor complied with the Con- plans whether the analyze to the law correct- fail[ed] Code, (i.e., Development struction not the Walker, ly.” See 827 S.W.2d at 840. zoning) Code. The Construction Code Therefore, I would conclude Plan stated: “Plan review Review Waiver holding Board abused its erred required Development for will still denying re- the Vaneskos’ discretion Code, may be for Fire required Code and quest for variance. Code, Department Heath Mechanical- problems that arise get To around Electrical-Plumbing Code the text of section 51A- applying Thus, Departments.” the record discloses 3.102(d)(10) Code, of the Dallas a clear for the Board have denied basis Vaneskos, court, majority the trial based on conclusion application was, great emphasis all opinion place at least that the Vaneskos’ Corpus opinions court’s Cantu part, Christi self-created. court, presented finding respect evi- the trial Vaneskos 3. The trial court made no with compli- bringing requested dence that the house into whether variance $100,000. only.” pre- cost more than Never- ance would “financial reasons Vaneskos theless, I leave issue as it would will aside sented evidence at the Board that $50,000 sought for financial house whether the variance was cost at least to re-construct requirements. only. height purposes At comply (in case Indeed, Corpus in the Christi and McBride. the trial court’s Cantu) the Dallas are than decision broader reverses the Board’s judgment applicable to Vanes provisions re- Code the Vaneskos’ variance and remands request. proceed- “for further kos’ quest to the Board holdings of’ the ings consistent with the in McBride governing in those Corpus opinions Christi court’s *13 for “other extraordi- permitted a variance cases, majority’s opinion dis- two condi- nary exceptional situations or and describing as length, them at them cusses piece property.”4 of such of tions us. remarkably similar to the case before Cantu merely in- governing Chapter the fact situations in Cantu corporated provisions and agree I turn, McBride are similar facts here. of the Local Government Code.5 to the adjust- 211 authorizes a board of Chapter affirmed trial courts’ rever- Both cases “if the variance is grant ment to a variance deny decisions to variances sals of board and, interest due contrary public building setback restrictions because conditions, a literal enforcement approved special cities had reviewed and to result in unneces- building plans or site before of the ordinance would landowners’ spirit and of the sary hardship, construction. so 290-91; 706-07, jus- ordinance is observed and substantial 676 S.W.2d at However, Tex. Loc. distinguish- 709. both cases are tice is done.” Code Ann. Gov’t (Vernon 1999). 211.009(a)(3) § Neither governing able because the ordinances prohibited vari- granting municipality specifically of variances the Town of South McBride) (in personal or hard- Padre Island the case of and ances for self-created convenience, Zoning profit, Ordinance, § or ca- 29- or reasons Corpus Christi, Tex., (10th ed.) provision price. 5.01 That reads in its entirety as follows: provision The record indicates this was the parties applicable in McBride. Section 29-5 The Board of to Variances. Adjustment power grant shall have to According to the record before the following variances: court, applicable Cantu the ordinance to vary regulations any 29-5.01 To dis- reads: trict so as to relieve difficulties or hard- where, ships by in cases when and reason adjustment; Appeals. Sec. 20-17 Board of narrowness, shallowness, exceptional Adjustment ap- There be a Board of shape specific piece or of a pointed by pursuant Aldermen the Board of regu- the time for the enactment of such Chapter Government to 211 of the Local restriction, lation or or reason of ex- Code, Adjustment gov- to be said Board ceptional topographical or conditions to, by, acting pursuant Law. said erned extraordinary exceptional situ- Adjustment may, pursuant to Said Board of piece ations or conditions of such Law, special exceptions make said property, application the strict of each harmony Ordinance in with its terms of this regulation or restriction would result in accor- general purposes and intent and in practical peculiar exceptional diffi- general specific or rules herein dance to, hardship upon, exceptional culties may, Adjustment contained. The Board of property. the owner of such Such pursuant said Law and bound comply, nearly or variance shall as as thereof, ap- provisions entertain and decide every respect spirit, possible, in with the by any person aggrieved peals intent, purpose zoning plan; of the officer, board, department, or bureau of the being purpose provision of this by any decision of the admin- Town affected authorize the of variation istrative officer. excep- for reasons of demonstrable and hardship distinguished tional as from var- Ordinances, Island, Tex, Code of South Padre sought by purposes applicants for 20-17. iations ships, they specify might prop did that a and harsh its [be nor effect owners,]” sought must erty to resolve a aris- cannot estop City from relating from a restrictive condition legally enforcing valid ordi area, shape, parcel. nances. See Swain Bd. of Thus, governing Park, the ordinances McBride City Univ. significantly Cantu were broader than (Tex.Civ.App.-Dallas ref’d here, applicable n.r.e.). the Dallas code provision authorizing

and could be as read variances where the built on the landowner basis Conclusion erroneously-issued permit. an As dis- above, For the reasons detailed the rec above, cussed we can construe the Dallas ord does show when authorizing variance under *14 Board denied the Vaneskos’ variance re by largely circumstances here quest, reference to acted without its ignoring terms. guiding principles rules or failed reading Vaneskos’ broad Cantu analyze correctly. law See by accepted majority, Downer, 241-42, Walker, would lead to the result that a variance if at 840. we would S.W.2d Even inspector must granted anytime city outcome, reach a different courts erroneously grants permit owner should not disturb Board’s exercise of permit. house builds the in reliance on the deciding grant its discretion whether to words, permit In other the unauthorized Thus, I request. would hold by estoppel, precluding creates a variance trial find issuing that the court erred enforcing zoning city its ordi 5, 7, ings fact and 8.6 I hold that would However, law nance. is well-settled in concluding the trial court erred a city estopped cannot from enforc denying Board abused its discretion its ordinances the unautho variance, re entering judgment and in rized employees issuing acts versing the Board’s decision remand building permit. Amarillo v. ing the case for further con proceedings Stapf, 129 Tex. Thus, I sistent with Cantu McBride. Abilene, (1937); Davis v. judgment reverse the of the trial would (Tex.Civ.App.-Eastland judgment affirming court enter ref’d). inspector building A ruling of the Board. power authority have does not grant issuing permit; only a variance power has the vari

ances. Tex. Loc. Gov’t Code Ann. See 211.009; § Dallas, Tex., 51A-

3.102(d); City Prasifka, Hutchins v. (Tex.1970) (city could not amend or mere resolution valid

dinance). it is unfortunate that the While building inspectors issued action, unjust

improperly, “however issue, however, findings, I 47.1. Were I to reach this Based on these I would need trial did not err in court erred in would find that the address whether finding. finding entering this entering fact Tex.R.App. P.