city-of-dallas-texas-board-of-adjustment-of-the-city-of-dallas-texas ( 2006 )

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-0263

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 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

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On Petition for Review from the

Court of Appeals for the Fifth District of Texas

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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 erroneously 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 board taken this evidence into account and nevertheless denied the Vaneskos’ variance request, I believe that decision would have been within the board’s considerable discretion.  But from the record it is impossible to tell whether the board felt constrained by its attorney’s admonishment.  As a result, I would remand the case to the board for reconsideration of the Vaneskos’ variance request with the proper legal principles in mind.  Because the Court does not afford the board or the Vaneskos that opportunity, I respectfully dissent.

 Under the Local Government Code, a board of adjustment may authorize a variance from the terms of a zoning ordinance if it is not contrary to the public interest and, due to special conditions, literal enforcement of the ordinance would result in unnecessary hardship, and so that “the spirit of the ordinance is observed and substantial justice is done.”  Tex. Loc. Gov’t Code  ' 211.009(a)(3).  This same language is echoed in the Dallas city ordinance, which further limits the board’s decision-making authority, although not to the extent that the Court determines today.  That ordinance describes the following parameters that govern the board’s discretion in considering variance requests, which, for ease of reference, I have numbered [1] through [3].  Specifically, the board may grant variances from height regulations

[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 hardship 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 classification. [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.

Dallas City Code ' 51A-3.102(d)(10).

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 when a structure has already been built on the land.  I agree with the amici curiae homebuilders^[1]     that there is a substantial difference between a hardship caused by the inability to build something desired, and a hardship caused by having to remove a nearly completed structure at considerable expense.  I do not read the city ordinance here to preclude consideration of that difference. 

Finally, I believe that the Court misinterprets clause [3].  The hardship here was not entirely 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 C something the neighbors might consider a hardship that they shared. Nevertheless, interpreting the ordinance to mean that whenever 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.CCorpus Christi 2001, no pet.); Bd. of Adjustment v. McBride, 676 S.W.2d 705 (Tex. App.CCorpus 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 attorney 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 variance 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 decision 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.

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Harriet O’Neill

Justice

OPINION DELIVERED: April 7, 2006.

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^[1]     We received a joint amicus brief from the Home Builders Association of Greater Dallas, the Greater Fort Worth Builders Association, and Randall Goss.