Heritage Society of Washington County v. Neumann , 771 S.W.2d 563 ( 1989 )

OPINION

JUNELL, Justice.

The Heritage Society of Washington County appeals from the trial court’s reversal of an order by the Board of Adjustment in Brenham, Texas. In two points of error appellant claims (1) the trial court erred in refusing to vacate its judgment because the Board of Adjustment had no jurisdiction to decide the applicability of the special use permit; and (2) the trial court failed to apply the proper standard of review in reviewing the Board of Adjustment’s action. We affirm.

On November 15, 1977, the City Commission of the City of Brenham granted a special use permit to appellants, the Heritage Society of Washington County. The special use permit was granted as a nonconforming use in an area zoned for single family residential housing. The purpose of the permit was the restoration and reconstruction of the Giddings-Stone Mansion Buildings. The permit gives the Heritage Society an option to reconstruct a carriage house on the grounds of the mansion, but includes a proviso stating that the exterior dimensions and design of the carriage house shall conform as closely as possible to those of the original carriage house.

On July 31, 1986 Brenham’s Building Official/Building Inspector issued Building Permit No. 003792 authorizing construction of the carriage house. Appellees, Fritz Neumann and other property owners, appealed the issuance of the building permit to Brenham’s Board of Adjustment. The property owners alleged that the building permit was not validly issued because there was no proof that an original carriage house existed; therefore, a reconstruction would be impossible. They further alleged that the proposed carriage house was actually a new building and, as such, did not comply with the special use permit. The board affirmed the issuance of the building permit.

Mr. Neumann and the other property owners then filed a petition for writ of certiorari to the district court. The district court granted the writ of certiorari and determined that the decision of the Board of Adjustment in affirming the issuance of the building permit was illegal, and that the City of Brenham, through its Building Official/Building Inspector, erred as a matter of law in issuing the building permit.

In its first point of error the Heritage Society contends the Board of Adjustment lacked jurisdiction to review the issuance of the building permit, and, in turn, the trial court lacked jurisdiction to review the action taken by the Board of Adjustment. The Heritage Society bases their argument on the following provision in the Brenham Code:

The board of adjustment shall not have jurisdiction to hear, review, reverse, or modify any decision, determination, or ruling with respect to the granting, extension, revocation, modification or any other action taken relating to such special use permit.

Brenham Code § 15.02(5).

The Heritage Society claims the Board of Adjustment’s action in affirming the issuance of the building permit was an “action taken relating to such special use permit,” and therefore, was not an action within the board’s authority. The Board of Adjustment’s action cannot be characterized as such. The action taken by the board was the result of an appeal of the City Building Official/Building Inspector’s issuance of the building permit. The Bren-ham Code provides for such an appeal:

Appeals based on error: The board [of adjustment] shall have the power to hear and decide appeals where it is alleged there is error of law in any order, requirement, decision or determination made by the building inspector in the enforcement of this ordinance.

Brenham Code § 19.03(2).

The State Local Government Code also provides for such an appeal. The appellate jurisdiction of a Board of Adjustment is governed by § 211.009(a)(1) of the Texas Local Government Code Annotated (Vernon 1988) (codification of art. lOllg Tex.Rev. Civ.Stat.Ann.) which empowers the board “to hear and decide an appeal that alleges error in an order, requirement, decision, or determination made by an administrative official in the enforcement of this subchap-ter or an ordinance adopted under this sub-chapter.”

The building inspector of Brenham issued the building permit for the construction of the carriage house. The issuance of the building permit is an action taken relating to the special use permit. The property owners then appealed the building inspector’s issuance of the building permit to the Board of Adjustment. The Board of Adjustment affirmed the Building Official/Building Inspector’s issuance of the building permit. The affirmance of the action taken relating to a special use permit cannot be characterized as a prohibited act under section 15.02(5) of the Brenham Code. The Board of Adjustment did not hear and review an action relating to the special use permit. Rather, the Board of Adjustment heard an appeal where an error was alleged in the issuance of the building permit.

The claim brought by Mr. Neumann and the other property owners to the Board of Adjustment was that the building permit allowed construction of a building that did not conform to the special use permit. The proposed carriage house did not conform to the exterior design and dimensions of an original carriage house as provided by the special use permit. A claim to a nonconforming use under zoning ordinances is uniformly determinable by appeal to a Board of Adjustment from an order of the Building Inspector or similar administrative official and then by certiorari to the district court. Washington v. City of Dallas, 159 S.W.2d 579, 580 (Tex.Civ.App—Dallas 1942, no writ); Tex.Local Gov’t Code Ann. §§ 211.008 & 211.009 (Vernon 1988). Therefore, the Board of Adjustment and the district court had jurisdiction to review the issuance of the building permit. The Heritage Society’s first point of error is overruled.

In its second point of error the Heritage Society claims the trial court failed to apply the proper standard of review to the evidence before the Board of Adjustment. The standard of review by a district court of a Board of Adjustment’s action is an abuse of discretion standard. We conclude that the trial court properly applied that standard to the evidence before the Board of Adjustment.

A Board of Adjustment is a quasi-judicial body and the district court sits only as a court of review by writ of certiorari. Tex. Local Gov’t Code Ann. § 211.009 (Vernon 1988). At the district court level the complaining party carries the burden of proof to show the decision of the Board of Adjustment is illegal, and to establish illegality, the complaining party must show that the Board of Adjustment abused its discretion. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67, 70 (1945); Currey v. Kimple, 577 S.W.2d 508, 512 (Tex.Civ.App.—Texarkana 1978, writ ref’d n.r.e.).

On appeal we are also limited to an abuse of discretion standard of review. We must review the legality of the board’s action in affirming the issuance of the building permit. If the evidence before this Court is such that reasonable minds could have reached the same conclusion as made by the Board of Adjustment, we must sustain the board’s action. See Texans To Save The Capitol v. Board of Adjustment, 647 S.W.2d 773, 777 (Tex.App.—Austin 1983, writ ref’d n.r.e.). We conclude that the property owners have shown that the Board of Adjustment abused its discretion in affirming the issuance of the building permit.

The issue before the Board of Adjustment and the district court was whether the proposed carriage house would be a reconstruction of the original carriage house as allowed by the special use permit. The evidence before the Board of Adjustment shows that the proposed carriage house is not a reconstruction of an original carriage house because there is no physical or pictorial evidence that an original carriage house ever existed at the mansion. The Building Official/Building Inspector who issued the permit testified that he was not provided any information with regard to an original carriage house that existed at the mansion. He further stated that, at the time the permit was issued, he made no determination whether the exterior dimensions and design of the building were that of the original carriage house.

The Heritage Society introduced evidence that a number of houses of the same character as the Giddings-Stone Mansion in the county and throughout the United States had Carriage houses, and many of those houses were not as grand as the Giddings-Stone Mansion; therefore, a house as grand as the Giddings-Stone Mansion would likely have had a carriage house. Additionally the Heritage Society introduced into evidence a letter from an architect which stated that houses with the same character as the Giddings-Stone Mansion most likely had carriage houses.

We conclude that reasonable minds could not have reached the same conclusion as made by the Board of Adjustment. The record presents no evidence of an original carriage house. Therefore, the Board of Adjustment abused its discretion in affirming the issuance of Building Permit No. 003792. Hence the trial court did not err when it reversed the board’s action. The Heritage Society’s second point of error is overruled.

The judgment of the trial court is affirmed.

SEARS, J., dissents and files an opinion.