The opinion
ON MOTION FOR REHEARING
DIES, Chief Justice
(dissenting).
I respectfully dissent. City’s brief declares :
“The Board of Adjustment and Appeals has operated in the past under the mistaken assumption that a simple majority was all that was required to grant a variance.”
So, the practical effect of the majority opinion is to hold void all such previously granted variances. Just how many there are, we do not know; but just a little imagination can lead one to foresee what chaos in the City of Lufkin could result from this holding.
The majority opinion states:
“But, in order to procure relief, to secure the variance from the zoning ordinance itself, defendant labored under the burden of proving by the minutes that the variance was granted by the concurrence of four members of the Board.”
I feel that a fair interpretation of the minutes reflects that a variance was granted.
The trial court found:
“6. That on motion made by member Anderson and seconded by member Smith, a variance was granted to Appel-lee, McVicker, on April 16, 1970.
“9. That chairman Mrs. W. A. Mitchell concurred in the decision of the board by her failure to vote yes or no.”
I see no reason to disregard these findings. Citations concerning abstentions given by City and noted in the majority opinion are not in point because Mrs. Mitchell’s failure to record a vote and a positive abstention are two different things.
Since a variance was granted, the majority opinion has misplaced the burden of proof. It devolved on City under the substantial evidence rule. Swain v. Board of Adjustment of City of Univ. Park, 433 S.W.2d 727 (Tex.Civ.App., Dallas, 1968, error ref. n. r. e.) and Zoning Board of Adjustment v. Marshall, 387 S.W.2d 714 (Tex.Civ.App., San Antonio, 1965, error ref. n. r. e.).
The majority opinion treats the Board’s decision as a judgment. I do not believe the Legislature ever intended to clothe it with such powers. Otherwise, an irregularity creating a “void judgment” of the Board could be complained of years later by any person or entity enumerated in Art. lOllg, § (j), Vernon’s Ann.Civ.St.
*147 It is from this statute that this Board derives its authority. The statute requires appeals to be taken “within a reasonable time.” Art. 101 lg, § (d), V.A.C.S. The city ordinance involved requires that “[s]uch appeals shall be taken within fifteen (15) days’ time after the decision has been rendered by the administrative office.” It is not reasonable here to permit City to file this suit and in effect appeal the Board’s action some nineteen months later.
Even assuming the Board did not grant a variance, it has not refused one either, so the matter at least for the present, rests where it has been since the appeal— before the Board. “An appeal stays all proceedings in furtherance of the action appealed from. . . . ” Art. 101 lg, § (e), V.A.C.S.