Lubbock Court of Appeals affirmed board of adjustment condition to re-evaluate variance request after a set number of years
MVP Raider Park Garage, LLC. V Zoning Board of Adjustment of City of Lubbock, et al, 07-20-00261-CV (Tex. App. – Lubbock, Jan. 12, 2022)
This is a board of adjustment case where the Lubbock Court of Appeals affirmed the BOA’s denial of a variance request.
Raider Park owns a parking garage that provides student parking for Texas Tech University. Under the City of Lubbock’s Code of Ordinances, not more than ten percent of any wall may be devoted to wall signs in the zoning district. Raider Park sought a variance to allow 35 percent of all walls to be used for signage. The BOA ultimately conditionally granted the variance but required stipulations, including a seven-year review and revision requirement of the variance. At the seven-year review, the BOA denied the request to continue the variance permit. Raider Park sued. Both parties filed opposing motions for summary judgment. The trial court ruled in favor of the BOA. Raider Park appealed.
The court first noted the BOA had the authority to require a review and to treat the request to reauthorize the variance as a new request. The City’s ordinances specifically authorize this type of condition. When the Board granted the requested variance in 2012, it did so “subject to” conditions that were expressly stated on the Board’s decision form. The Board referred to the condition as an “experiment” to see if this type of review process worked better and allowed actual data and public reaction to be evaluated. The Board created an opportunity to revisit whether 35 percent coverage was “too much” and if the increase was determined to be unworkable, then the Board could adjust it in the future. The original variance was specifically designed to allow the Board to revisit and revise. The court noted the Board had the discretion to treat the review as a new request and hold public hearings to gauge public reaction. Further, the review process was never challenged as invalid. The court next determined the original variance was not a temporary variance but a variance subject to conditions. If the owner had a problem with the condition, the owner could have appealed the decision. Further, Raider Park points to no authority prohibiting the imposition of such a condition. As a result, the trial court order is affirmed.
If you would like to read this opinion click here. Panel consists of Justice Pirtle, Justice Parker and Justice Doss. Memorandum opinion by Justice Parker.