Posted by: Patricia Salkin | January 26, 2015

TX App. Court Holds Board of Appeals Properly Interpreted “Adjacent” Meaning Under Zoning Ordinance, Reversing Trial Court; Court Also Finds no Open Meetings Violation

Legacy Hillcrest Investments, LP sought to develop the property by rezoning the lots as PD or planned development. In 2001, Legacy proposed a 270,500–square–foot building for office, restaurant, and bank use, along with the City library and YMCA, with an underground parking garage structure. The Planning and Zoning Commission denied the request, since under the City Code an above ground parking structure cannot be “adjacent” to a single family zone. Rather than appeal the Board’s decision to the City Council, Legacy filed a writ of certiorari in district court. The trial court found the Board erred by overturning Corder’s interpretation of the zoning ordinance, concluded the Board’s actions were “arbitrary and capricious, an abuse of discretion and … not supported by the law or evidence,” and reversed the Board’s decision, and the Board appealed. The Board claimed the trial court erred by (1) reversing the Board’s decision regarding the City’s zoning ordinance, (2) finding violations of the Texas Open Meetings Act and granting a permanent injunction against the Board to prohibit future violations of the same, and (3) awarding Legacy attorney’s fees.

The Board argued it has the power to interpret and apply the zoning ordinance and is not required to defer to staff views or opinions. The Board further contended that the P-zoned lot in question was adjacent to a single-family district and, therefore, a multi-level parking garage may not be built there under the City’s zoning ordinance. The court agreed and found that because the City’s zoning ordinance provided that only surface parking lots may be located “near” or “close” to a single-family district, the Board correctly determined a multi-level, above-ground parking garage structure was not allowed on the Haynie lot zoned “P” and that only a surface parking lot may be located there.

Next, the Board claimed that there was no evidence to support the trial court’s findings that the Board did not keep minutes of its work sessions, formally convene its work session, or properly meet in closed session as required by Texas Open Meetings Act, and the chairman of the Board did not identify the applicable sections of TOMA at the conclusion of the work session. Here, even though the Board did not keep minutes of its work sessions it corrected that deficiency, and thus a permanent injunction was not needed. Accordingly, the court reversed the trial court’s judgment and rendered a judgment reinstating the Board’s order.

Board of Adjustment of the City of University Park v Legacy Hillcrest Investments, LP, 2014 WL 6871403 (TX App. 12/8/2014)

The opinion can be accessed at: http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=52c89527-3f45-4fed-90d3-090c93104c29&MediaID=fcaaabd1-aea4-4b44-8e26-5f1117916113&coa=%22%20+%20this.CurrentWebState.CurrentCourt%20+%20@%22&DT=Opinion


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