Posted by: Patricia Salkin | June 21, 2012

Texas Court of Appeals reverses Zoning Board’s Decision to Impose Setback Requirements on Zoning Boundaries

Southern Development of Mississippi, Inc. (SDM), purchased a lot in which the northern part was zoned C-2 for retail business and the southern part R-1 for single-family residential. After beginning construction the city determined that the planned structure was being constructed too close to the residential portion and issued an order to stop construction.

SDM argued that the Board abused its discretion and its action was illegal. The City of Marshall Zoning Ordinances provide only for setback requirements based upon property lines, not zoning lines. The Board argues that Section 23 of the ordinance requires the C-2 part of the lot to have setback of twenty percent of the lot depth.

Pursuant to the Zoning Ordinance, a twenty percent setback is required as rear yardage when R-1 and C-2 properties intersect. However, the court points out that with the way the ordinances are currently written, there is a requirement of a property boundary for a rear yard to exist. According to the ordinance, a “rear line” is defined as a “boundary line…” SDM’s lot has two property boundaries that are not side lines, both abutting streets; therefore it does not have a rear.

The Board also argued that a rear yard exists since a property line formerly existed along the zoning line and a lot cannot be merged to avoid requirements of the ordinances. In this instance, the Court found that the issue is of little significance since the property line did not exist at the time the ordinances were adopted, leaving no possibility of the lots being merged with the intent to avoid ordinances. The Court reversed the Board’s decision and rendered judgment in favor of SDM.

Southern Development of Mississippi, Inc. v. Zoning Board of Adjustment of the City of Marshall, 2012 WL 1563906 (TX Ct of App 5/4/2012)

The opinion can be accessed at:

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