Some evidence supports Board of Adjustment holding so trial court abused its discretion in reversing says Fourth Court of Appeals.

Board of Adjustment for the City of San Antonio, et al v. Kennedy, et al., 04-12-00757-CV (Tex. App. – San Antonio July 3, 2013).

This is an appeal from a Board of Adjustment decision where the Court of Appeals did a detailed analysis of how the standard of review of such decisions should be utilized.

Trinity University acquired four houses located in a historic neighborhood. The zoning at the time listed single-family and college use as permissible uses. In 2001 the City changed the zoning to R-5 residential. Trinity asserted it was entitled to nonconforming use and development preservation status. Trinity wanted to use the houses for administrative offices and ultimately applied for certificates of occupancy for office use. The City issued the certificates but several homeowners appealed to the Board of Adjustment. The Board upheld the granting of the certificates and the homeowners filed suit in district court. The trial court granted the homeowners summary judgment motion and the City and Trinity appealed.

The Fourth Court of Appeals took significant time to explain how critical the standard of review of board of adjustment decisions should be. Even if the weight of the evidence is against the decision, as long as some evidence exists to support the decision, it must stand. The Board’s order is presumed to be legal, and the party attacking the order has the burden of establishing its illegality. A party attacking the legality of the order must establish that the Board could reasonably have reached but one decision, and not the decision it made. The specific factual details are outlined in the opinion.  The court makes several presumptions it concluded were necessary in order for the Board to have made the decision it made. Essentially, “college use” includes housing as well as offices and therefor Trinity had a nonconforming status to use for either, but was not required to have a registration.   Ultimately, the court determined it was not an abuse of discretion for the Board to have sustained the granting of the certificates as some evidence existed for each element necessary to uphold the decision. The court reversed and rendered a dismissal.

If you would like to read this opinion click here.

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