BOA had authority to grant hardship variance after neighbor found survey discrepancy

Glen Sumner v. Board of Adjustments of the City of Spring Valley Village, et al, 01-14-00888-CV (Tex. App. – Houston [14th Dist.] October 20, 2015)

This is an appeal from a Board of Adjustment (“BOA”) order granting a variance in which the Houston Court of Appeals for the 14th District affirmed the granting of the City’s Plea to the Jurisdiction in a very long opinion.

Sumner’s neighbors, the Khans, purchased an adjacent lot and sought a variance to construct a second story onto the existing house, which the City granted. Sumner then discovered an apparent error in the conveyance history resulting in a one-foot strip of land discrepancy. This meant the second story addition was approximately six inches closer to the property line than the eight feet permitted by the Building Setback Ordinance. As a result, the Khans applied to the BOA for a variance, which was granted. Sumner also complained about various other alleged problems with the Khans including complaints about their air conditioner location and roof height restrictions.  Sumner requested a hearing in front of the BOA on his height restriction complaint.  He was told the measurements for the heights were only to certain points on the roof and the Khans were in compliance. Sumner sued appealing the BOA’s decisions including the original set-back variance and the subsequent hearing on the height restrictions. The suit went up and down from state to federal court and back again. Upon return to state court the City and BOA filed a motion for summary judgment, motion to dismiss and plea to the jurisdiction, which the trial court granted. Sumner appealed.

The court first determined Sumner waived his argument on the finality of the trial court’s order since he did not properly brief it. Sumner had the burden of proof to establish the illegality of the Board’s order. Whether a hardship exists is a question of fact to be determined by the Board. The Board heard testimony the six-inch discrepancy was inadvertent in the surveys and allowing the variance did not harm the public. Testimony confirmed the setback violation remained undiscovered until construction of the Khans’ addition was substantially complete. As a result, the BOA was within its authority to grant a hardship variance. Additionally, the court incorporated the federal judge’s holding that “[t]here is simply no protected property interest in having a zoning ordinance enforced against one’s neighbors.” Sumner also did not have a right to cross-examine witnesses at the BOA meetings. He was not a party and did not take advantage of the BOA procedure entitling him to submit questions the Board would ask of applicants. Finally, the City was well within its authority to amend its ordinances after Sumner began his complaints. It is settled law that a city may rezone or amend its ordinances “as long as the action is not arbitrary, capricious and unreasonable.” Sumner presented no evidence to meet this burden. The trial courts order was affirmed.

If you would like to read this opinion click here.  Panel: Justice Jennings, Justice Higley and Justice Brown. Memorandum Opinion by Justice Brown.  The attorneys listed for the City and BOA are Scott Bounds, John H. Hightower, and Andrea Chan.  The attorneys listed for Sumner are William R. Sudela, J. Daniel Long, and Elizabeth Harris

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