Opinion

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-0263

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City

of Dallas, Texas, Board of

Adjustment of the City of Dallas, Texas, and Raj Sharma, in his capacity as the Building

Official of the City of Dallas, Petitioners

v .

Doug Vanesko and Grace

Vanesko, Respondents

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On Petition for Review from the

Court of Appeals for the Fifth District of Texas

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Justice O’Neill, dissenting

I

agree that a trial court’s power to review a board of adjustment’s decision is

limited, and the trial court in this case exceeded that power by ignoring the

specific city ordinance that controlled the board’s review of the Vaneskos ’ variance request. However, I am concerned

that the board of adjustment misunderstood the level of discretion that the

ordinance afforded. An attorney for the city admonished the board, I

believe incorrectly, that it must ignore evidence that (1) the city had

erroneously issued the permit upon which the Vaneskos

relied, (2) the house had been substantially built in accordance with the plans

the city had approved before the problem was discovered, (3) the cost to remedy

the problem would be significant, and (4) there might be an adverse aesthetic

effect on the neighborhood if the roof was torn off and re-pitched. Had

the board taken this evidence into account and nevertheless denied the Vaneskos ’ variance request, I believe that decision would

have been within the board’s considerable discretion. But from the record

it is impossible to tell whether the board felt constrained by its attorney’s

admonishment. As a result, I would remand the case to the board for

reconsideration of the Vaneskos ’ variance request

with the proper legal principles in mind. Because the Court does not

afford the board or the Vaneskos that opportunity, I

respectfully dissent.

Under

the Local Government Code, a board of adjustment may authorize a variance from

the terms of a zoning ordinance if it is not contrary to the public interest

and, due to special conditions, literal enforcement of the ordinance would

result in unnecessary hardship, and so that “the spirit of the ordinance is

observed and substantial justice is done.” Tex. Loc. Gov’t Code ' 211.009(a )( 3). This same language is echoed in the Dallas city ordinance,

which further limits the board’s decision-making authority, although not to the

extent that the Court determines today. That ordinance describes the

following parameters that govern the board’s discretion in considering variance

requests, which, for ease of reference, I have numbered [ 1]

through [3]. Specifically, the board may grant variances from height regulations

[1] that will not be contrary to the public interest when, owing

to special conditions, a literal enforcement of this chapter would result in

unnecessary hardship and so that the spirit of the ordinance will be observed

and substantial justice done. [2] The variance must be necessary to permit

development of a specific parcel of land which differs from other parcels of

land by being of such a restrictive area, shape, or slope that it cannot be

developed in a manner commensurate with the development upon other parcels of

land in districts with the same zoning classification. [3] A variance may not

be granted to relieve a self created or personal hardship, nor for financial

reasons only, nor may a variance be granted to permit any person a privilege in

developing a parcel of land not permitted by this chapter to other parcels of

land in districts with the same zoning classification.

Dallas City Code '

51A-3.102(d )( 10).

The

evidence that the board in this case was admonished not to consider is certainly

relevant to the elements described in clause [1]. Evidence was presented

at the board-of-adjustment hearing that the Vaneskos ’

neighbors, although understandably agitated by what had occurred, were not

opposed to the variance. And there was some discussion that, because of

the way the house was designed, a re-pitched roof

would make the house look disproportionate and less aesthetically pleasing to

the neighborhood. Thus, there was some indication, though not conclusive,

that the variance would not be “contrary to the public interest.”

Further, any assessment of “unnecessary hardship” and “special conditions”

necessarily requires a fact-specific inquiry that should allow the Vaneskos to explain, and the board to consider, how their

need for the variance arose.

The

Court, however, ignores the clause [1] elements because it reads clause [2] as

the ultimate requirement for a variance. I disagree, for if that were the

case there would have been no reason to include clause [1] in the

ordinance. Instead, I believe clause [2]’s plain language speaks to

parcels of land that have not yet been improved and, due to restrictions that

are inherent in the land itself, a variance is “necessary to permit development

. . . .” Clause [2] simply does not address the situation presented when

a structure has already been built on the land. I agree with the amici curiae homebuilders [1] that there is

a substantial difference between a hardship caused by the inability to build

something desired, and a hardship caused by having to remove a nearly completed

structure at considerable expense. I do not read the city ordinance here

to preclude consideration of that difference.

Finally,

I believe that the Court misinterprets clause [3]. The hardship here was

not entirely self-created, as the city inspector was at least equally

culpable. And although the hardship was in fact personal, there was some

evidence that the remedy necessary to effect compliance would require

eliminating trees and re-pitching the roof in a way that would be less

aesthetically pleasing C

something the neighbors might consider a hardship that they shared.

Nevertheless, interpreting the ordinance to mean that whenever personal

hardship is involved a variance is prohibited is surely wrong. It is hard

to imagine the need for a variance that does not in some way implicate personal

hardship. Rather, the logical interpretation is that personal hardship

cannot be the sole basis for a variance. If official error and

detrimental reliance are involved, the fact that personal hardship results

shouldn’t defeat the variance if other conditions are met, i.e ., the

variance is not contrary to the public interest and literal enforcement would

cause unnecessary hardship. Such a determination should be within the

board’s discretion.

I

agree with the Court that the court of appeals and the trial court erred in

tying the board’s discretion to Cantu and McBride , in effect

ignoring the strictures that the city ordinance imposed. See Town of S. Padre Island v. Cantu , 52 S.W.3d 287 (Tex. App. C Corpus

Christi 2001, no pet.); Bd. of Adjustment v. McBride , 676 S.W.2d 705

(Tex. App. C Corpus

Christi 1984, no writ). But I do not read the ordinance’s

strictures as divesting the board of any discretion at all, as the city’s

attorney appeared to advise . And while I agree

with the Court that “the mere issuance of a building permit does not render a

city’s zoning ordinances unenforceable, nor does the fact that a permit was

issued in error entitle the property owner to a variance in every case,” this

doesn’t answer the question of what evidence the board of adjustment could

consider in deciding the Vaneskos ’ variance

request. All needs for a variance that might arise after an erroneous

permit has been issued are not by definition self-created, personal hardships

for which variances may not be granted. If that were so, homeowners would

be strictly liable for city errors regardless of the circumstances,

marginalizing the need for boards of adjustment at all and rendering other

parts of the city’s ordinance meaningless. Because I believe the board of

adjustment may have reached its decision to deny the Vaneskos ’

variance request by “fail[ ing ] . . . to analyze or

apply the law correctly,” Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992), I would

afford the board and the Vaneskos another

chance. Accordingly, I would affirm the lower courts’ remand to the board

of adjustment for reconsideration, although on different grounds. Because

the Court does not, I respectfully dissent.

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Harriet O’Neill

Justice

OPINION DELIVERED: April 7, 2006.

[1] We received a joint amicus brief from the Home

Builders Association of Greater Dallas, the Greater Fort Worth Builders

Association, and Randall Goss.