BOA properly interpreted “adjacent” meaning under zoning ordinance says Dallas Court of Appeals.

The Board of Adjustment of the City of University Park, Texas v. Legacy Hillcrest Investments, LP, 05-13-01128-CV (Tex. App. – Dallas, December 8, 2014).

This is a Board of Adjustment appeal where the Dallas Court of Appeals reversed the trial courts judgment granting relief to Legacy Hillcrest Investments (“Legacy”) in a zoning dispute.

Legacy owns property within the City which is surrounded by single-family, multifamily, parking, and office zones. Legacy sought zoning changes over a span of ten years to allow a planned development.  In the last proposal in 2011 Legacy filed a permit application for an above ground parking next to a single family zone. The Board of Adjustment (“BOA”) denied the permit and Legacy brought a writ of certiorari appeal in district court. After a three day hearing the trial court ruled in favor of Legacy, issued a permanent injunction against violating the Texas Open Meetings Act (“TOMA”), and awarded attorney’s fees. The BOA appealed.

Under the City’s code an above ground parking structure cannot be “adjacent” to a single family zone. Legacy asserts “adjacent” can have only one meaning that of being “contiguous” and it is undisputed the parking structure’s location does not touch the boundary line although it is within 100 feet. The court held the plain and ordinary meaning of “adjacent” means “to lie near, border or, not distant or far from, nearby but not touching.”  Additionally, the districts, by definition, go to the center of the streets, which caused a touching of lines by district.  As a result, the BOA properly interpreted its own code and denied the permit. The evidence did show the BOA did not take any minutes of work sessions to comply with TOMA  but has since started. As a result, a permanent injunction serves no purpose and Legacy was not able to demonstrate imminent harm or irreparable injury. The court held TOMA does not specify the term “convene” so it is not necessarily a violation when the board meets in closed session for work sessions without first opening the meeting publically by some formalized process. Additionally, the evidence established the subject of the closed meetings was to properly seek advice from their attorney regarding pending matters and is therefore an authorized subject for executive session. Finally the court reversed the attorney’s fees award and rendered judgment for the BOA.

If you would like to read this opinion click here. Panel:  Justices Francis and Myers and Chief Justice Thomas.  Opinion by Justice Francis. The attorneys listed for the BOA are J. Richard Tubb, James B. Harris and Scott P. Stolley.  The attorneys listed for Legacy are Eric T. Stahl, Frank L. Branson and Arthur J. Anderson.