Richard L. Allen v. City of Mesquite, Texas, and City of Mesquite Board of Adjustment--Appeal from 68th District Court of Dallas County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00137-CV

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RICHARD L. ALLEN, Appellant

V.

CITY OF MESQUITE, TEXAS, AND

CITY OF MESQUITE BOARD OF ADJUSTMENT, Appellees

On Appeal from the 68th Judicial District Court

Dallas County, Texas

Trial Court No. 02-05985-C

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

The barn Richard L. Allen wants to build on his agriculturally zoned property in Mesquite, Texas, (the City) would enclose 6,400 square feet // 5,400 square feet larger than that allowed by city ordinance and more than triple the largest special exception allowed in the City in the last ten years. Allen's proposal was rejected by the City's building inspector, and his request for a special exception to the ordinance was then rejected by the City's Board of Adjustment (the Board). Allen appealed the Board's decision to the district court, which granted the City's motion for summary judgment. We affirm the summary judgment.

In his two points of error, Allen contends (1) material fact issues exist that preclude summary judgment in favor of the City, and (2) the evidence before the trial court showed the Board's decision was arbitrary, capricious, and an abuse of discretion. Because the two issues are interrelated, we will address them together.

Mesquite City Ordinance 2-602(A) provides that, on property with agricultural zoning, "accessory structures," such as the barn in question, shall be no larger than 1,000 square feet. Allen wants to build a storage building encompassing 6,400 square feet for his tractors, hoes, rakes, and other equipment. He told the Board he would also, from time to time, use the barn to store equipment for his commercial plumbing business, which Allen operates from his home.

A board of adjustment is a quasi-judicial body. Bd. of Adjustment of City of Corpus Christi v. Flores, 860 S.W.2d 622, 625 (Tex. App. Corpus Christi 1993, writ denied). A district court may review a board's decision only on writ of certiorari. Tex. Loc. Gov't Code Ann. 211.011 (Vernon Supp. 2004). In Flores, the Thirteenth Court of Appeals explained the purpose and scope of a district court's review of a board of adjustment's decision:

The only question which may be raised by a petition for writ of certiorari is the legality of the Board's order. Tex. Local Gov't Code Ann. 211.011(a) (Vernon 1988); see City of San Angelo v. Boehme Bakery, 190 S.W.2d 67, 69 (Tex. 1945) (construing prior statute); see also Board of Adjustment, City of Corpus Christi v. McBride, 676 S.W.2d 705, 706 (Tex. App. Corpus Christi 1984, no writ). A legal presumption exists in favor of the Board's order, and the party attacking the order has the burden of proof to establish its illegality. Currey v. Kimpell, 577 S.W.2d 508, 512 (Tex. Civ. App. Texarkana 1978, writ ref'd n.r.e.). In order to establish that an order of a Board of Adjustment is illegal, the party attacking the order must present a very clear showing that the Board abused its discretion. Boehme Bakery, 190 S.W.2d at 69. The district court, when considering the legality of an order of a Board of Adjustment, must not put itself in the position of the Board and substitute its findings for that of the Board, even though the court concludes that the overwhelming preponderance of the evidence is against the Board's decision. Currey, 577 S.W.2d at 512. Review of a decision by a Board of Adjustment is not by trial de novo where facts are established; the district court must only answer a question of law, i.e., whether the Board of Adjustment abused its discretion. City of Lubbock v. Bownds, 623 S.W.2d 752, 755 (Tex. App. Amarillo 1981, no writ) (construing prior statute). The district court shall consider the original papers before the Board, as well as evidence introduced before the court, and shall determine whether or not the Board abused its discretion. Boehme Bakery, 190 S.W.2d at 69; McBride, 676 S.W.2d at 706. Whether or not the Board abused its discretion is a matter of law, and the district court is not to substitute its discretion for that of the Board. Boehme Bakery, 190 S.W.2d at 70; McBride, 676 S.W.2d at 706.

Flores, 860 S.W.2d at 625.

Allen appeals from a summary judgment. A summary judgment movant has the burden of demonstrating that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). There is no fact issue concerning whether the Board abused its discretion on Allen's request for a special exception if the Board's decision was based on conflicting evidence, that is, if the Board's decision is supported by at least some substantive and probative evidence. Southwest Paper Stock, Inc. v. Zoning Bd. of Adjustment, 980 S.W.2d 802, 805 06 (Tex. App. Fort Worth 1998, pet. denied). "In other words, if there is some evidence of substantive and probative character supporting the Board's decision, the trial court did not abuse its discretion by granting the Board's motion for summary judgment." Pick-N-Pull Auto Dismantlers v. Zoning Bd. of Adjustment of City of Fort Worth, 45 S.W.3d 337, 340 (Tex. App. Fort Worth 2001, pet. denied). The Board's decision denying Allen's requested special exception is based on substantive and probative evidence.

First, there was evidence in this case that the proposed structure of 6,400 square feet was more than 5,000 square feet larger than a structure permissible under the City's zoning ordinances. The Board also had before it evidence that, in the past decade, only four special exceptions had been granted by the Board, and the largest exception so granted was for a structure that was 2,100 square feet. Thus, Allen's requested special exception would have been for a structure three times the size of the largest exception permitted during the previous decade.

Second, there was evidence Allen intended to use the barn for commercial purposes, although the property was zoned for agricultural and residential use. If the City granted Allen a permit to build a barn for commercial purposes, such action would be inconsistent with the zoning ordinances because the effect would have been to permit a substantial commercial use of property that had been designated for residential use.

Third, there was evidence from Allen's neighbor that the barn would devalue the neighbor's property. John Bass owned two large lots of land (both in excess of fifty acres each) adjoining Allen's property. Bass told the Board he was planning to develop the land for residential use (presumably some type of housing development). Bass, adopting his testimony from the hearing on the first request for a special exception, told the Board that Allen's planned barn would not be good for Bass' planned development of his own, adjoining property. The City's zoning laws permit the Board to grant special exceptions to the accessory buildings limitations only "where it [the Board] determines that the exception will allow greater use and enjoyment of property without creating adverse impacts on adjacent properties and that it will be compatible with the neighborhood." Mesquite, Texas, Ordinance 2-604 (Apr. 3, 1989).

From the evidence available before both the Board and the trial court, we must conclude there is at least some evidence of substantive and probative character supporting the Board's denial of Allen's request for a special exception. The trial court therefore did not err by granting the City's motion for summary judgment. We overrule Allen's points of error and affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: March 29, 2004

Date Decided: March 30, 2004