Board of Adjustment has jurisdiction to hear second application once amended to be a materially different structure than the first application says 4th Court of Appeals

Board of Adjustment of the City of San Antonio v. Michael and Theresa Hayes 04-15-00021-CV (Tex. App. – San Antonio, February 24, 2016)

This is a board of adjustment case where the 4th Court of Appeals held the BOA had jurisdiction to hear a second, but materially different, appeal regarding a fence.

Director of the City’s Development Services Department revoked a permit issued for the construction of a metal railing citing the permit was issued in error because the Board of Adjustment (“BOA”) previously determined the railing would be a sports court/tennis court fence subject to a 20’ setback requirement. The homeowner, Torres, appealed to the BOA which unanimously rescinded the revocation and permitted the fence without the 20’ setback. Hayes, Torres’ neighbor, sued the BOA asserting it lacked authority to permit the fence without the setback because he had won the previous BOA appeal holding the fence was part of a sport’s court. The trial court held the BOA lacked jurisdiction over the appeal and reversed the BOA decision allowing the fence. The BOA appealed.

Judicial review of a BOA decision is by filing a writ of certiorari asserting the decision by the board of adjustment is illegal.  However, a BOA decision can be collaterally attacked by asserting the BOA lacked jurisdiction in the first place. The court interpreted the Hayes judicial review attach as a collateral attack because the Torreses failed to appeal the original decision in the trial court. However, although the second application for the railing was essentially the same as the first application, the Torreses amended the second application during the course of the Board of Adjustment’s proceeding altering its design. As a result, it became materially different than the first application and the trial court errored in concluding the BOA did not have jurisdiction to hear the change.

If you would like to read this opinion click here. Panel: Chief Justice Marion, Justice Barnard and Justice Alvarez. Memorandum Opinion by Chief Justice Marion.  The attorney listed for the City is Albert Lopez.  The attorneys listed for the Hayes are Elliott S. Cappuccio, Leslie Sara Hyman, and David Lawrence Earl.