lit-hw-1-lp-v-the-town-of-flower-mound-texas-the-board-of-adjustment ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00070-CV
LIT HW 1, L.P. § From the 431st District Court
v.
The Town of Flower Mound, Texas,
The Board of Adjustment of the
Town Of Flower Mound, Texas,
Gavin Poston a/k/a Richard Gavin
Poston, in His Capacity as a Member
of the Board of Adjustment of the
Town of Flower Mound, Texas, Tina § of Denton County (2009-20305-158)
Murphy, in Her Capacity as a
Member of the Board of Adjustment
of the Town Of Flower Mound,
Texas, Alisa Rich, in Her Capacity as
a Member of the Board Of
Adjustment of the Town of Flower
Mound, Texas, Carlos Cabre, in His
Capacity as a Member of the Board
of Adjustment of the Town of Flower
Mound, Texas; Scott Baker, in His
Capacity as a Member of the Board § January 31, 2013
of Adjustment of the Town of Flower
Mound, Texas; Laile Neal, in Her
Capacity as a Member of the Board
of Adjustment of the Town of Flower
Mound, Kendra Stephenson, in Her
Capacity as a Member of the Board
of Adjustment of the Town of Flower
Mound, Texas, and Danny Hartz,
Building Official of the Town of
Flower Mound, Texas § Opinion by Justice Gabriel
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was error in part of the trial court’s judgment. It is ordered that the
judgment of the trial court is affirmed in part and reversed in part. We affirm that
portion of the trial court’s order granting summary judgment as to Flower Mound,
the building official, and the individual Board members, and LIT’s request that it
be awarded costs. We reverse that portion of the trial court’s judgment granting
summary judgment as to the Board and remand this case to the Board for further
proceedings consistent with this opinion.
It is further ordered that the parties shall bear their own costs of this
appeal, for which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Lee Gabriel
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00070-CV
LIT HW 1, L.P APPELLANT
V.
THE TOWN OF FLOWER MOUND, APPELLEES
TEXAS, THE BOARD OF
ADJUSTMENT OF THE TOWN OF
FLOWER MOUND, TEXAS, GAVIN
POSTON A/K/A RICHARD GAVIN
POSTON, IN HIS CAPACITY AS A
MEMBER OF THE BOARD OF
ADJUSTMENT OF THE TOWN OF
FLOWER MOUND, TEXAS, TINA
MURPHY, IN HER CAPACITY AS A
MEMBER OF THE BOARD OF
ADJUSTMENT OF THE TOWN OF
FLOWER MOUND, TEXAS, ALISA
RICH, IN HER CAPACITY AS A
MEMBER OF THE BOARD OF
ADJUSTMENT OF THE TOWN OF
FLOWER MOUND, TEXAS,
CARLOS CABRE, IN HIS
CAPACITY AS A MEMBER OF THE
BOARD OF ADJUSTMENT OF THE
TOWN OF FLOWER MOUND,
TEXAS; SCOTT BAKER, IN HIS
CAPACITY AS A MEMBER OF THE
BOARD OF ADJUSTMENT OF THE
TOWN OF FLOWER MOUND,
TEXAS; LAILE NEAL, IN HER
CAPACITY AS A MEMBER OF THE
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BOARD OF ADJUSTMENT OF THE
TOWN OF FLOWER MOUND,
KENDRA STEPHENSON, IN HER
CAPACITY AS A MEMBER OF THE
BOARD OF ADJUSTMENT OF THE
TOWN OF FLOWER MOUND,
TEXAS, AND DANNY HARTZ,
BUILDING OFFICIAL OF THE
TOWN OF FLOWER MOUND,
TEXAS
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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Appellant LIT HW 1, L.P. appeals the trial court’s order granting summary
judgment in favor of the appellees, the Town of Flower Mound, Texas; the Board
of Adjustment of the Town of Flower Mound, Texas; Danny Hartz, Building
Official of the Town of Flower Mound, Texas; and Gavin Poston a/k/a Richard
Gavin Poston, Tina Murphy, Alisa Rich, Carlos Cabre, Scott Baker, Laile Neal,
and Kendra Stephenson, in their capacities as members of the Board of
Adjustment of the Town of Flower Mound, Texas. We reverse in part and affirm
in part.
1
See Tex. R. App. P. 47.4.
4
Background Facts
LIT owns a warehouse in Flower Mound, which it leased to Electronic
Recyclers International (ERI). ERI is an electronic waste recycler; it receives
electronics, six employees disassemble and sort the components, and the pieces
are then hauled away to a crushing facility. In June 2009, ERI filed an
application with Flower Mound for a certificate of occupancy for LIT’s building.
Flower Mound has adopted the 2006 edition of the International Building
Code. Section 1204.1 of the code requires “[i]nterior spaces intended for human
occupancy” to be provided with heating systems unless the primary purpose of
the space “is not associated with human comfort.” International Building Code
(2006) § 1204.1. Flower Mound’s building official interpreted section 1204.1 to
mean that the portion of LIT’s warehouse where the employees worked must be
heated. Because LIT did not have a heating system installed, the building official
denied the certificate of occupancy.
LIT appealed the building official’s decision to the Board of Adjustment,
arguing that the building official incorrectly interpreted the building code. The
Board voted three to two to deny the appeal. LIT then filed a petition for certiorari
in the trial court.2 LIT’s petition alleged that the Board’s decision was a clear
2
The Board of Adjustment is a quasi-judicial body authorized to hear and
decide appeals regarding determinations by an administrative official in the
enforcement of an ordinance adopted under subchapter 211 of the local
government code. See Tex. Loc. Gov’t Code Ann. § 211.011(a)(1) (West 2008).
The Board’s decisions are subject to appeal before a state district court, county
court, or county court at law upon petition for a writ of certiorari. Id.
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abuse of discretion because (1) a letter from the International Code Council (ICC)
stated that section 1204 “is not intended to apply to spaces where manufacturing
and assembling work is performed” and (2) the code does not require mixed-use
industrial buildings to be equipped with heating systems that satisfy section
1204.1. The writ issued, and the appellees filed a return.
The appellees then filed a motion for summary judgment. They noted that
the district court sits only as a court of review and the only question before the
court was the legality of the Board’s decision. It argued that because there was
no clear abuse of discretion, the district court must uphold the Board’s decision.
LIT responded, claiming that a statement made by Flower Mound’s
attorney at the hearing before the Board instructed the Board to use an incorrect
standard of review. LIT implied that another statement by the attorney that was
“irrelevant, inflammatory apparent hearsay” prejudiced Board member Neal and
swayed his vote. LIT also argued that an affidavit from its expert witness Carroll
Lee Pruitt established that the building official’s interpretation of section 1204.1
was without reference to guiding rules or principles and was arbitrary and
unreasonable.
After a hearing, the trial court granted the appellees’ motion for summary
judgment and dismissed LIT’s claims against them. LIT filed a motion for new
§ 211.009(a)(1); Flower Mound, Tex., Code of Ordinances § 78-84(e) (2002),
available at http://www.municode.com/Library/TX/Flower_Mound; Pick-N-Pull
Auto Dismantlers v. Zoning Bd. Of Adjustment of the City of Fort Worth, 45
S.W.3d 337, 339–40 (Tex. App.—Fort Worth 2001, pet. denied).
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trial, arguing again that Flower Mound’s attorney’s statement at the hearing
regarding the standard of review meant that “the Board clearly failed to apply the
correct standard of the exercise of its authority.” The trial court denied LIT’s
motion for new trial, and LIT filed this appeal.
Standard of Review
As stated above, the only question that may be raised by a petition for writ
of certiorari to the district court in an appeal of a board’s order is the legality of
the order. Tex. Loc. Gov’t Code Ann. § 211.011(a); Pick-N-Pull, 45 S.W.3d at
340. To establish that an adjustment board’s order is illegal, the contesting party
must make a “very clear showing” that the board abused its discretion. SWZ,
Inc. v. Bd. of Adjustment of City of Fort Worth, 985 S.W.2d 268, 270 (Tex. App.—
Fort Worth 1999, pet. denied). The issue of whether the Board abused its
discretion is a question of law that is appropriately determined by summary
judgment. Pick-N-Pull, 45 S.W.3d at 340. A legal presumption exists in favor of
the Board’s order, and the party attacking it has the burden of establishing its
illegality. SWZ, Inc, 985 S.W.2d at 270; Sw. Paper Stock, Inc. v. Zoning Bd. of
Adjustment of City of Fort Worth, 980 S.W.2d 802, 805 (Tex. App.—Fort Worth
1998, pet. denied).
The test for abuse of discretion is whether a board acted “without
reference to any guiding rules or principles; in other words, whether the act was
arbitrary or unreasonable.” Sw. Paper Stock, 980 S.W.2d at 805 (quoting
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)). The district court cannot
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put itself in the board’s position or substitute its discretion for that of the board.
Pick-N-Pull, 45 S.W.3d at 340. An abuse of discretion does not occur as long as
some evidence of substantive and probative character exists to support the
board’s decision. Sw. Paper Stock, 980 S.W.2d at 805–06.
Discussion
I. The Board’s abuse of discretion
In its first issue, LIT argues that that the Board failed “to consider or apply
its proper standard of review.”3 Section 78-84 of Flower Mound’s Code of
Ordinances states,
In exercising its powers, the board of adjustment may, in conformity
with the provisions of the state statutes, as existing or hereafter
amended, reverse or affirm, wholly or partly, or may modify the
order, requirements, decision[,] or determination appealed from and
make such order, requirement, decision[,] or determination, in the
board’s opinion, as ought to be made and shall have all the powers
of the officer from whom the appeal is taken.
Flower Mound, Tex., Code of Ordinances § 78-84(a). LIT argues that this
section provides the standard of review for appeals to the Board; specifically, that
the Board should “make such order, requirement, decision[,] or determination, in
the board’s opinion, as ought to be made.” Id.
3
This is not a ground of illegality specified in LIT’s petition for writ of
certiorari filed in the trial court. However, the supreme court has held that this
defect is procedural, not jurisdictional, and may be waived. See Tellez v. City of
Socorro, 226 S.W.3d 413, 414–15 (Tex. 2007) (reversing the dismissal of
Tellez’s appeal on the basis that his petition did not specify the grounds of
illegality because the city did not object in the trial court). The appellees did not
object in the trial court and thus waived any objection. See id.
8
At the hearing before the Board, Flower Mound’s attorney stated that “the
Board must decide if the Building Official interpreted the code correctly or
incorrectly. He said [LIT] had the burden to establish that the interpretation was
incorrect.” LIT did not object to this statement but “accepted that [it] had to make
[its] case” and argued that the evidence it had provided had “prove[n] [its] case.”
Vice Chair of the Board, Alisa Rich, asked Flower Mound’s attorney what criteria
the Board should use in making its decision. The attorney responded, “[T]he
Board should make [its] determination in the same type of standard that would
apply in a court of law in respect to a civil matter. The Board must decide if [LIT]
has met the burden of proof.”
After the conclusion of the evidence, the Board members deliberated. The
record states the following comments by Board members:
BOARD MEMBER STEPHENSON . . . said she did not see that [LIT]
had proven [its] case.
CHAIR MURPHY . . . said she was not totally convinced by [LIT].
VICE CHAIR RICH said the mandate was to determine whether the
Building Official’s interpretation was in error. . . . [T]he Board
needed to focus on the Building Official’s interpretation and if it was
properly administered.
A vote was then taken, and Murphy voted against the motion that the building
official had not properly applied section 1204.1. Rich voted for the motion.
Stephenson was an alternate and did not vote.
The record of the Board hearing shows that Flower Mound’s attorney
instructed the Board to apply an incorrect burden of proof on LIT. He told the
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Board that LIT “had the burden to establish that the interpretation was incorrect,”
and that “[t]he Board must decide if [LIT] has met the burden of proof.” Flower
Mound’s Code of Ordinances places no such burden on the party applying for an
appeal. It provides only that the Board shall hear and decide appeals, and in
doing so, may “make such order, requirement, decision[,] or determination, in the
board’s opinion, as ought to be made.” Flower Mound, Tex., Code of Ordinances
§§ 78-83(1), 78-84(a). It is evident from the Board members’ comments that at
least some of the Board members applied the incorrect standard to LIT. At least
one voting member voted against the motion because “she was not totally
convinced by [LIT].” The application of the burden of proof on LIT was contrary
to the Board’s guiding principles, as set forth in the code of ordinances. The
Board therefore abused its discretion. Because we sustain LIT’s first issue as to
the Board, we do not need to address LIT’s second or fifth issues. See Tex. R.
App. P. 47.1.
II. Proper parties
In LIT’s third issue, it argues that summary judgment was improper as to
Flower Mound, the building official, and the individual Board members on the
grounds that they are not proper parties to the appeal. As previously stated, the
only question that may be raised by a petition for writ of certiorari to the district
court in an appeal of a board’s order is the legality of the order. Tex. Loc. Gov’t
Code Ann. § 211.011(a); Pick-N-Pull, 45 S.W.3d at 340. The appellees argued
in their motion for summary judgment that LIT’s petition did not allege that any
10
actions by Flower Mound, the building official, or the individual Board members
were abuses of discretion; it only complained of the Board’s decision. They also
noted that LIT’s prayer did not request relief from any party but the Board in the
form of a reversal of its decision.
LIT argued in its response to the appellees’ motion for summary judgment
that Flower Mound, the building official, and the individual Board members
should not be dismissed because “[m]any such proceedings in Texas have
included municipalities as parties” and because the appellees “cite[d] no authority
holding that an individual sued in his official capacity should be dismissed when
the governmental entity he serves remains a party.” LIT makes an identical
argument on appeal.
A. The building official
LIT makes no argument addressing the appellees’ contention that the
building official is not a proper party. LIT made no allegations against the
building official, nor did it seek any relief from the building official. Summary
judgment was therefore proper as to the building official.
B. The Town of Flower Mound
In support of its argument, LIT points to similar cases in which the city was
included as a party. See Nu-Way Emulsions, Inc. v. City of Dalworthington
Gardens, 610 S.W.2d 562 (Tex. Civ. App.—Fort Worth 1980), writ ref’d n.r.e.,
617 S.W.2d 188 (Tex. 1981); City of San Angelo v. Boehme Bakery, 144 Tex.
281, 190 S.W.2d 67 (Tex. 1945). In those cases, either there was a claim
11
directly against the city, see Nu-Way Emulsions, 610 S.W.2d at 563 (addressing
appellant’s claim seeking a declaration that the city’s ordinance was
unconstitutional), or the city was sued instead of the board, see Boehme Bakery,
190 S.W.2d at 283. LIT pointed us to no case, nor have we found one, in which
the applicant sought and was granted relief against both the city and the board.
In Pick-N-Pull, the appellant had filed its petition against both the board and the
city, but the court of appeals noted that Pick-N-Pull had not sought separate relief
against the city. 45 S.W.3d at 339 n.1. The court of appeals noted that because
the only relief the trial court could have granted was reversal or modification of
the board’s decision, the grant of the board’s motion for summary judgment
“dispose[d] of all parties and issues in this appeal.” Id. Here, LIT sought no
separate relief from Flower Mound. Flower Mound had no authority to review the
Board’s decisions. See Flower Mound, Tex., Code of Ordinances § 78-84(e)
(providing the process for appealing a board’s determination to the court).
Summary judgment was therefore proper as to Flower Mound.
C. The individual Board members
LIT notes that the appellees cited no authority for their argument that the
Board members should be dismissed. LIT, however, cites no authority that the
Board members should not be dismissed. The only case LIT mentions did not
involve an appeal from a board’s decision, and is therefore inapposite here. See
Lindig v. City of Johnson City, No. 03-08-00574-CV, 2009 WL 3400982, at *1
(Tex. App.—Austin Oct. 21, 2009, no pet.) (mem. op.). In Lindig, Johnson City,
12
the city’s building official, and the individual members of the Board of Adjustment
were parties. Lindig, however, was a suit instigated by the city for a temporary
injunction after the Lindigs refused to pay a building permit fee, and the Lindigs
made various counterclaims against the other parties. Id.
LIT filed its petition against the Board members solely in their capacity as
Board members. “It is fundamental that a suit against a state official is merely
‘another way of pleading an action against the entity of which [the official] is an
agent.’” Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007)
(quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 3105 (1985)).
A suit against an official in his official capacity “actually seeks to impose liability
against the governmental unit rather than on the individual specifically named
and ‘is, in all respects other than name, . . . a suit against the entity.’” Id. (quoting
Kentucky, 473 U.S. at 165, 105 S. Ct. at 3105). LIT makes no complaint of any
acts of any individual Board members and seeks no relief other than relief from
the Board’s decision. LIT filed its petition against the Board, and the Board
remains a party to this case. The individual Board members are therefore not
necessary or proper parties to this suit. Summary judgment was therefore proper
as to the individual Board members. We overrule LIT’s third issue.
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III. Gross negligence, bad faith, or malice
In LIT’s fourth issue, it argues that it should be awarded costs of this
action. Under section 211.011 of the local government code, costs may be
assessed against the Board if “the court determines that the board acted with
gross negligence, in bad faith, or with malice in making its decision.” Tex. Loc.
Gov’t Code § 211.011(f) (West 2009).
LIT made no allegation in its petition that the Board acted with gross
negligence, in bad faith, or with malice. In its response to the appellees’ motion
for summary judgment and on appeal, it claimed that that Board “considered,
discussed[,] and applied considerations which are obviously irrelevant and
prejudicial.” It referred specifically to a slide in a PowerPoint presentation made
to the Board in which the building official stated, “I believe the cost of [the heating
equipment] is one of the real driving forces in the opposition of heating the
space,” and the building official’s testimony that “he had been originally told that
the workers in the factory considered themselves lucky to have a job.”
LIT appears to argue that the Board acted with gross negligence, in bad
faith, or with malice by simply having heard the statements by the building
official. We are not persuaded that by doing so, the Board “proceed[ed] with
conscious indifference to the rights, safety, or welfare of others,” or that it had the
“specific intent . . . to cause substantial injury” to LIT. Tex. Civ. Prac. & Rem.
Code Ann. § 41.001(7), (11) (West 2008) (defining malice and gross negligence).
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Neither are we convinced that by applying the wrong standard of review,
the Board acted with gross negligence, in bad faith, or with malice. The record
shows that the Board diligently sought to fulfill its duties and requested
clarification of the proper standard of review. That it was given the wrong
standard to apply by the town’s attorney cannot be attributed to some dereliction
of the Board’s duty or malicious intent on behalf of the Board. We overrule LIT’s
fourth issue.
Conclusion
Having overruled LIT’s third and fourth issues, we affirm the trial court’s
summary judgment as to Flower Mound, the building official, and the individual
Board members and as to LIT’s request that it be awarded costs of the action.
Having sustained LIT’s first issue in regards to the Board, we reverse that part of
the trial court’s judgment granting summary judgment as to the Board. We
remand to the Board for further proceedings consistent with this opinion. See
Pearce v. City of Round Rock, 78 S.W.3d 642, 651 (Tex. App.—Austin 2002, pet.
denied) (remanding to the board for further proceedings consistent with the
proper applicable definitions as held by the court of appeals); J.B. Adver., Inc. v.
Sign Bd. of Appeals of City of Carrollton, 883 S.W.2d 443, 449 (Tex. App.—
Eastland 1994, writ denied) (remanding because board refused to allow
appellants the right to cross-examine witnesses at the board hearing).
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LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
DELIVERED: January 31, 2013
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