BOA reversed for using incorrect standard of review after attorney’s advice

LIT HW 1, L.P. v Town of Flower Mound et al.

LIT owns a warehouse in Flower Mound which it leases to an electrical component recycler.  The Town adopted the 2006 version of the International Building Code.  LIT did not have heating in the area its 6 employees worked, which the building official interpreted as a violation.  LIT appealed to the Board of Adjustment (“BOA”) which supported the building official’s determination.  LIT appealed but the trial court granted summary judgment for the BOA.

LIT first argued the BOA used the improper standard of review when the attorney told the Board it must determine if the official interpreted the code correctly or incorrectly and that LIT must prove its case to the Board.  LIT argues the BOA should have made the decision it thought should have been made, i.e. de novo.  The Court of Appeals for the Second Circuit held the attorney gave an incorrect instruction on the BOAs standard of review, but that the standard is dictated by the City’s Code.  The court reversed and remanded that portion of the MSJ dealing with the BOA’s decision (remanded directly to the BOA, not the district court).   The court sustained the MSJ ruling as to the City, the Building Official, and the individual BOA members. Only the BOA made the decision and none of the other parties could grant LIT the relief it desired.  Further, the limited review of appealing a BOA decision is only whether the BOA’s actions were legal or illegal under a writ of cert. So, none of the other parties were proper.   Finally, LIT sought costs of suit arguing the BOA acted with gross negligence or in bad faith.  The  court noted that “The record shows that the Board diligently sought to fulfill its duties and requested clarification of the proper standard of review. That it was given the wrong standard to apply by the town’s attorney cannot be attributed to some dereliction of the Board’s duty or malicious intent on behalf of the Board.”

What you should take away from this case is 1) attorneys need to know the proper standard of review under your own ordinances and 2) if your ordinances don’t specify a BOA standard of review, you should put one in there.  Double-checking your building officials understanding of the codes is also helpful, but the BOA has the ability to modify an order if it feels such is necessary.

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