City’s BOA within its discretion to grant variance due to situation where property was a prime target for “destruction or damage by the local . . . students”

Lenda Vogler v. City of Lamesa and April Vara 11-16-00168-CV (Tex. App – Eastland, May 24, 2018)

The Eastland Court of Appeals affirmed the City of Lamesa Board of Adjustment’s grant of a setback variance for a car port.

Vara sought a setback variance from the City of Lamesa Board of Adjustment (“BOA”) in order to build a car port in order to protect her antique cars. The variance was granted, but a neighbor (Vogler), opposed the variance. Vogler sued under Chapter 211 of the Texas Local Government Code to undo the variance. The trial court affirmed the BOA’s grant of the variance and Vogler appealed.

The trial court sits only as a court of review, and it may consider only the legality of the Board’s decision. bears the burden to establish that the Board’s action was illegal, and she must do so by a very clear showing that the Board abused its discretion by acting arbitrarily and unreasonably or without reference to any guiding rules or principles. Vogler first asserts the BOA’s variance amounted to a rezoning, however, the Board granted an area variance, not a use variance. Next, the record reveals that the location of the Varas’ property makes it a prime target for “destruction or damage by the local . . . students . . . who might lob rocks and bottles and cans and whatnot at them.” Such a condition appears to be unique to the Varas’ property. That the Varas’ own antique cars does not make the unique condition of the property a self-imposed hardship. As a result, the BOA was within its powers and discretion to grant the variance and Vogler failed to meet her burden.

If you would like to read this opinion click here. Panel consists of Justice Willson, Justice Bailey and Justice Wright. Opinion by Justice Wright. The attorney listed for Vogler, Lenda is Philip Mack Furlow. The attorneys listed for Vara, April is Vara, April.  The attorney listed for the City is Russell Casselberry