Posted by: Patricia Salkin | May 27, 2014

TX Appeals Court Finds No Abuse of Discretion if Board Relies on Non-Expert Opinion of Neighbors in Demolition Decision in Historic District

Editor’s Note: This posting originally appeared on the Preservation Law Digest here:

Reilly sought a permit from the City historic preservation officer to demolish a house in a historic district in San Antonio. When the permit was denied, Reilly appealed to the Board of Adjustment, which also denied the demolition permit. Reilly appealed that decision in court, and the court overruled the Board. The Board then appealed to the Court of Appeals.
To obtain a demolition permit for a structure in the historic district, the City’s Unified Development Code requires the owner to establish “by a preponderance of the evidence that the structure or property has undergone significant and irreversible changes which have caused it to lose historic, cultural, architectural, or archaeological significance.” (Note that the Code authorizes the denial of a demolition permit, not merely a demolition delay.) The issue at trial and on appeal was whether the Board abused its discretion by finding that Reilly did not meet this burden.

At the Board’s hearing, Reilly presented evidence that the house had lost its significance. Local residents testified in opposition, offering information about the property’s past and current significance to the community. On appeal, Reilly’s primary argument was that the evidence presented by the residents was not relevant or competent because the residents were not experts. Reilly argued the Board was required to rely on the opinions of experts to evaluate loss of significance.

The court upheld the Board and the denial of a demolition permit, and overturned the lower court decision. The court held that the Board did not act improperly to listen to the non-expert testimony of the residents and to use it as a legitimate factor to decide that the house retained significance. The court wrote that the board was not required to apply strict judicial rules of evidence, and that even under those rules, the residents’ testimony was “in all likelihood permissible” (“A non-expert witness may offer opinion testimony when it is rationally based on his perception and helpful to a clear understanding of his testimony or the determination of a fact issue”). Further, the court noted that the City Code requires demolition decisions to be based on the Secretary of the Interior’s standards and guidelines for archaeology and historic preservation, and that the Guidelines “emphasize the overall importance of public participation in the historic preservation process…”

The court’s own decision making process followed cited precedents that the board’s decision is presumed to be legal; the party attacking it bears the burden of establishing that the board clearly abused its discretion; a trial court may not substitute its judgment for the judgment of the board as to factual findings; and – most significantly – that a party challenging a board’s factual findings “must establish that the board could have reasonably made only one decision, and not the decision it made.” [Emphasis added]

San Antonio Board of Adjustment v. Reilly, 2014 WL 1033493 (TX App. 3/19/2014)

The decision is available at:

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