4th Court of Appeals holds BOA has no authority to hold ordinance is superseded by statute

Bartonville Planning and Zoning Board of Adjustment v Bartonville Water Supply District, No. 04-12-00483-CV, (Tex. Civ. App. – San Antonio, March 27, 2013)

The Bartonville Water Supply District attempted to erect a new water tower within the Town of Bartonville and argued the Texas Water Code superseded the Town’s ordinances, exempting it from zoning and building permit requirements.  The building inspector denied their permit request and the Board of Adjustment (“BOA”) affirmed. The trial court reversed holding the Texas Water Code exempted the BWSD from such regulations. The Fourth Court of Appeals reversed and remanded.

After going through an analysis of the basics behind why a city can zone, why a city can requiring building permits, the role of the BOA and the role of the trial court on appeal, the 4th Court held the BOA has no authority to make determinations of whether a statute “trumps” an ordinance, but only to enforce.  The Court went on to say that if the BOA had attempted to make such a determination, that determination would be null and void. And since it was not within the BOA’s jurisdiction, it also was not in the trial court’s jurisdiction.

However, it should be noted that the 4th Court, in a footnote, stated that while BWSD also had a declaratory judgment case against the City going on simultaneously under a different cause number, it non-suited that litigation.  It also did not amend its BOA appeal to include a declaratory judgment action. This could be used to imply that the proper way for BWSD to have challenged whether the Texas Water Code exempts it from zoning regulations is through a declaratory judgment action.

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