BOA did not abuse discretion in denying demolition permit in historic district says 4th Court of Appeals


The City of San Antonio and The City of San Antonio Board of Adjustment v. Asher Reilly and Five Aces, 04-13-00221-CV (Tex. App. – San Antonio, March 19, 2014).

This is an appeal from a trial court order which reversed the decision of the San Antonio Board of Adjustment (“BOA”) regarding the demolition of a building. The San Antonio Court of Appeals reversed holding the BOA holding was not a clear abuse of discretion.

Reilly owned property which he planned to demolish and build a six-unit apartment complex. He filed an application to demolish, but the historic preservation officer denied the request. Reilly appealed to the BOA which upheld the denial of a permit. Reilly filed suit and the trial court reversed holding a permit should have been granted. The BOA and City appealed.

Under San Antonio’s ordinances, to obtain a demolition permit in a historic district he must show either unreasonable economic harm or the property suffered a loss of significance. Based on the ordinances definitions, the Fourth Court of Appeals first held that Reilly had the burden to establish the property had undergone irreversible change causing it to lose historic, cultural, architectural, or archaeological significance.


At the BOA hearing, Reilly submitted evidence the structure had been altered, had structural and enclosure problems and did not possess architectural integrity. The City presented evidence it was located in a historic district and that all structures in the district contribute to the historic area. Other property owners in the district voiced their opposition to the demolition at the BOA. After the BOA voted against Reilly, his primary argument to the trial court was that all of the anecdotal evidence of the community members was irrelevant since they are not experts.  This reasoning requires the BOA to rely solely on the opinion of experts to determine significance. A BOA is not required to apply strict rules of evidence. Further, the rules of evidence allow a non-expert to supply opinion testimony when it is rationally based on his perception which can help on a factual issue. It was on Reilly to establish the property lost historic significance and the City presented sufficient information to establish the BOA felt some significance remained. It was not an abuse of discretion to deny the demolition permit. The trial court order was reversed.

If you would like to read this opinion click here.  Panel: Chief Justice Stone, Justices Angelini and Chapa.  Opinion by Justice Angelini. The attorneys for the City are listed as Michael Bernard and Albert Lopez.  The attorneys for Reilly are listed as E. Lawrence Vincent and Joe E. Staley.

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