CITY OF DALLAS, Texas, Board of Adjustment of the city of Dallas, Texas, and Raj Sharma, in his capacity as the Building Official of the City of Dallas, Petitioners, v. Doug VANESKO and Grace Vanesko, Respondents.
No. 04-0263.
Supreme Court of Texas.
April 7, 2006.
Argued Feb. 15, 2005.
Because I believe the trial court‘s solution of forbidding further inquiry into the issue of seat belt bias was arbitrary and made without reference to the principles which should have guided the court‘s discretion, I would affirm the judgment of the court of appeals and remand this case for trial. Because the Court does not, I dissent.
Roger Albright, Law Offices of Roger Albright, Dallas, for respondents.
Maxine Aaronson, Angela Annette Hunt, McKool Smith, Julia F. Pendery, Jonathan G. Vinson, Jackson Walker L.L.P., Dallas, Snapper L. Carr, Texas Municipal League, Austin, for amicus curiae
Justice GREEN delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice WAINWRIGHT, Justice BRISTER, Justice MEDINA, Justice JOHNSON and Justice WILLETT joined.
In this zoning case, we determine whether a city can enforce a zoning ordinance against a property owner whose substantially completed new home has been built in violation of the ordinance, even though the city had given preliminary approval to the owner‘s building plans. We conclude that it can.
Dallas residents Doug and Grace Vanesko wanted a larger home, so they decided to tear down their existing house and build a new one in its place on the same lot. To save money, they also decided to design the new structure themselves, without the assistance of architects and engineers, and act as their own general contractor. When submitting their building plans to the City of Dallas for a permit, the Vaneskos paid an additional fee for the City to do a more extensive plan review to ensure that the plans were in compliance with all city building codes and ordinances. The City aрproved the plans as submitted and issued a building permit. During the following year, as the new house was being constructed, City inspectors frequently visited the site without complaint. Then, after the roof was framed in, an inspector advised the Vaneskos that the structure
The Vaneskos appealed the action of the Board by application for writ of certiorari to the Dallas County District Court, naming as defendants the City, the Board, and Rаj Sharma, in his official capacity as the Building Official of the City of Dallas.3 On a stipulated record, the district court reversed the Board‘s ruling and ordered the matter “remanded to the Board for further proceedings consistent [with] the holdings of Town of South Padre Island, Texas v. Cantu, 52 S.W.3d 287 (Tex.App.-Corpus Christi, 2001, no [pet.]) and Board of Adjustment v. McBride, 676 S.W.2d 705, 709 (Tex.App. - Corpus Christi, 1984, no writ).” A divided panel of the court of appeals affirmed. 127 S.W.3d 220, 228 (Tex.App.-Dallas 2003). We subsequently granted the City‘s petition for review. 48 Tex. Sup.Ct. J. 181 (Dec. 17, 2004).
I.
As a quasi-judicial body, the decisions of a zoning board are subject to appeal before a state district court upon apрlication for a writ of certiorari. See
The Vaneskos do not dispute that their home, as currently constructed, violates the applicable height restrictions for a single-family dwelling in an R-10 zoning area. See
authorize in specific cases a variance from the terms of a zoning ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the sрirit of the ordinance is observed and substantial justice is done....
[t]o grant variances from ... height ... regulations that will not be contrary to the public interest when, owing to special conditions, a literal enforcement of this chapter would result in unnecessary hardship, and so that the spirit of the ordinance will be observed and substantial justice done. The variance must be necessary to permit development of a specific parcel of land which differs from other parcels of land by being of such a restrictive area, shape, or slope that it cannot be developed in a manner commensurate with the development upon other parcels of land in districts with the same zoning classification. A variance may not be granted to relieve a self created or personal hardship, nor for financial reasons only, nor may a variance be granted to permit any person a privilege in developing a parcel of land not permitted by this chapter to other parcels of land in districts with the same zoning classification.
While the first portion of subsection
Taken together, these restrictions impose significant barriers to obtaining a variance and sharply curtail the Board‘s discretion in issuing one. Nevertheless, the trial court found that all of the prerequisites for a variance set forth in subsection
Both the trial court and the court of appeals relied on Cantu and McBride, two cases they described as being “remarkably similar” to the case at bar. See 127 S.W.3d at 225-26. In both cases, a property owner who was constructing a house appealed the decision of a zoning board to deny him a variance from the mandatory setback line for the property. Bd. of Ad-justment v. McBride, 676 S.W.2d 705, 706 (Tex.App.-Corpus Christi 1984, no writ); Town of S. Padre Island, Tex. v. Cantu, 52 S.W.3d 287, 288-89 (Tex.App.-Corpus Christi 2001, no pet.). Like the Vaneskos, the McBrides and the Cantus had previously sought and received approval of their building plans from the city. McBride, 676 S.W.2d at 706-07; Cantu, 52 S.W.3d at 288. In McBride, the court of appeals held that the zoning board abused its discretion in denying the variance because the undisputed facts showed that a hardship would exist and that the exception would not adversely affect other interests. 676 S.W.2d at 709. Although the factual findings in Cantu were disputed, the court of appeals reached a similar result after reviewing the record of the proceedings before the zoning board. 52 S.W.3d at 291.
While Cantu and McBride bear some factual resemblance to the instant case, particularly in the sense that the property owners sought and received city approval of their building plans, neither case invоlved a zoning ordinance as restrictive as the Dallas ordinance. The governing ordinance in McBride permitted a variance for “other extraordinary and exceptional situations or conditions of such piece of property.”
Neither [ordinance] specifically prohibited variances for self-created or personal hardships, nor did they specify that a variance must be sought to resolve a hardship arising from a restrictive condition relating to the area, shape, or slope of the parcel. Thus, the ordinances governing McBride and Cantu were significantly broader than the Dallas code provision applicable here, and could be read as authorizing variances where the landowner built on the basis of an erroneously-issued permit.... [W]e can construe the Dallas City Code as authorizing a variance under the circumstances here only by largely ignoring its terms.
127 S.W.3d at 233-34 (Moseley, J., dissenting).5
Under the more rеstrictive scheme imposed by the Dallas City Code, we cannot conclude that the Board clearly abused its discretion by declining to grant the Vaneskos’ request for a variance from the applicable height restrictions. While the cost involved in re-pitching the roof of the structure may constitute a hardship, that hardship is not in any way related to the “area, shape, or slope” of the parcel. See
The Vaneskos contend the Board‘s decision was erroneously influenced by the city attorney‘s instruction that the Board could not consider whether a permit had been issued in error, or whether the structure had already been built. But the city attorney‘s actions are irrelevant to our analysis. The mere issuance of a building permit does not render a city‘s zoning ordinances unenforceable, nor doеs the fact that a permit was issued in error entitle the property owner to a variance in every case.6 Were this so, the City would never be able to correct errors in the permitting process. Furthermore, subsection
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Because we conclude both that the Vaneskos’ hardship was personal in nature and that the Board was not required to consider the erroneous issuance of a building permit, we cannot say on the facts before us that a clear abuse of discretion occurred. Accordingly, the judgment of the court of appeals is reversed, and judgment is rendered in favor of the City of Dallas.
Justice O‘NEILL filed a dissenting opinion.
Justice O‘NEILL, dissenting.
I agree that a trial court‘s power to review a board of adjustment‘s decision is limited, and the trial court in this case exceeded that power by ignoring the specific city ordinance that controlled the board‘s review of the Vaneskos’ variance request. However, I am concerned that the board of adjustment misunderstood the level of discretion that the ordinance afforded. An attorney for the city admonished the board, I believe incorrectly, that it must ignore evidence that (1) the city had errоneously issued the permit upon which the Vaneskos relied, (2) the house had been substantially built in accordance with the plans the city had approved before the problem was discovered, (3) the cost to remedy the problem would be significant, and (4) there might be an adverse aesthetic effect on the neighborhood if the roof was torn off and re-pitched. Had the
Under the
[1] that will not be contrary to the public interest when, owing to special conditions, a literal enforcement of this chapter would result in unnecessary hаrdship and so that the spirit of the ordinance will be observed and substantial justice done. [2] The variance must be necessary to permit development of a specific parcel of land which differs from other parcels of land by being of such a restrictive area, shape, or slope that it cannot be developed in a manner commensurate with the development upon other parcels of land in districts with the same zoning classifiсation. [3] A variance may not be granted to relieve a self created or personal hardship, nor for financial reasons only, nor may a variance be granted to permit any person a privilege in developing a parcel of land not permitted by this chapter to other parcels of land in districts with the same zoning classification.
The evidence that the board in this case was admonished not to consider is certainly relevant to the elements described in clause [1]. Evidence was presented at the board-of-adjustment hearing that the Vaneskos’ neighbors, although understandably agitated by what had occurred, were not opposed to the variance. And there was some discussion that, because of the way the house was designed, a re-pitched roof would make the house look disproportionate and less aesthetically pleasing to the neighborhood. Thus, there was some indication, though not conclusive, that the variance would not be “contrary to the public interest.” Further, any assessment of “unnecessary hardship” and “special conditions” necessarily requires a fact-specific inquiry that should allow the Vaneskos to explain, and the board to consider, how their need for the variance arose.
The Court, however, ignores the clause [1] elements because it reads clause [2] as the ultimate requirement for a variance. I disagree, for if that were the case there would have been no reason to include clause [1] in the ordinance. Instead, I believe clause [2]‘s plain language speaks to parcels of land that have not yet been improved and, due to restrictions that are inherent in the land itself, a variance is “necessary to permit development....” Clause [2] simply does not address the situation presented whеn a structure has already been built on the land. I agree
Finally, I believe that the Court misinterprets clause [3]. The hardship here was not entirеly self-created, as the city inspector was at least equally culpable. And although the hardship was in fact personal, there was some evidence that the remedy necessary to effect compliance would require eliminating trees and re-pitching the roof in a way that would be less aesthetically pleasing—something the neighbors might consider a hardship that they shared. Nevertheless, interpreting the ordinance to mean that whenevеr personal hardship is involved a variance is prohibited is surely wrong. It is hard to imagine the need for a variance that does not in some way implicate personal hardship. Rather, the logical interpretation is that personal hardship cannot be the sole basis for a variance. If official error and detrimental reliance are involved, the fact that personal hardship results shouldn‘t defeat the variance if other conditions are met, i.e., the variance is not contrary to the public interest and literal enforcement would cause unnecessary hardship. Such a determination should be within the board‘s discretion.
I agree with the Court that the court of appeals and the trial court erred in tying the board‘s discretion to Cantu and McBride, in effect ignoring the strictures that the city ordinance imposed. See Town of S. Padre Island v. Cantu, 52 S.W.3d 287 (Tex. App. - Corpus Christi 2001, no pet.); Bd. of Adjustment v. McBride, 676 S.W.2d 705 (Tex.App.-Corpus Christi 1984, no writ). But I do not read the ordinance‘s strictures as divesting the board of any discretion at all, as the city‘s аttorney appeared to advise. And while I agree with the Court that “the mere issuance of a building permit does not render a city‘s zoning ordinances unenforceable, nor does the fact that a permit was issued in error entitle the property owner to a variance in every case,” this doesn‘t answer the question of what evidence the board of adjustment could consider in deciding the Vaneskos’ variance request. All needs for a varianсe that might arise after an erroneous permit has been issued are not by definition self-created, personal hardships for which variances may not be granted. If that were so, homeowners would be strictly liable for city errors regardless of the circumstances, marginalizing the need for boards of adjustment at all and rendering other parts of the city‘s ordinance meaningless.
Because I believe the board of adjustment may have reached its deсision to deny the Vaneskos’ variance request by “fail[ing] ... to analyze or apply the law correctly,” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992), I would afford the board and the Vaneskos another chance. Accordingly, I would affirm the lower courts’ remand to the board of adjustment for reconsideration, although on different grounds. Because the Court does not, I respectfully dissent.