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Five Aces/SA, Ltd. v. River Road Neighborhood Association

Court of Appeals of Texas, Fourth District, San Antonio

July 12, 2017

FIVE ACES/SA, LTD., Reilly Brothers Property Co., LLC, Asher Reilly, and City of San Antonio Board of Adjustment, Appellants
v.
RIVER ROAD NEIGHBORHOOD ASSOCIATION and James A. Cullum, Jr., Appellees

          From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-02124 Honorable Larry Noll, Judge Presiding

          Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice

          OPINION

          Rebeca C. Martinez, Justice

         This appeal arises out of a request by the owners of the residence and property located at 112 Lindell Place, which is within the River Road Historic District, for approval of their proposed project involving renovation of the historic residence and new construction of a six-unit apartment complex on the undeveloped portion of the property. The City of San Antonio's Historic and Design Review Commission ("HDRC") and the City's Board of Adjustment ("BOA") approved the project and issued a Certificate of Appropriateness. The River Road Neighborhood Association and James A. Cullum, Jr. (collectively, "RRNA") sought judicial review of the approval in district court, and obtained a summary judgment in their favor. The property owners and developers, Five Aces/SA, Ltd., Reilly Brothers Property Co., LLC, and Asher Reilly (collectively, "Reilly"), and the BOA now appeal the trial court's judgment reversing approval for the project and withdrawing the Certificate of Appropriateness. We reverse the trial court's judgment and render judgment instructing the BOA to re-issue its Certificate of Appropriateness for the project.

         Facts and Procedural History

         The River Road Neighborhood Association ("RRNA") encompasses an historic neighborhood along the banks of the San Antonio River between Highway 281 and Brackenridge Golf Course. The neighborhood received its designation as a Historic District by the San Antonio City Council in 2010. Reilly purchased the property at 112 Lindell Place in 2009, before the historic designation. The property contains an open lot in the front and a 2, 400 square foot single family residence at the back of the property.

         First Application (Demolition & New Construction)

         In May 2011, Reilly filed an application to fully demolish the residence on the ground that the changes made to it had caused it to lose its historic significance. Reilly planned to construct a six-unit apartment complex in its place. The City of San Antonio's Historic Preservation Officer ("HPO") denied the demolition request for failure to comply with the requirements of section 35-614 of the City's Unified Development Code ("UDC") governing demolition applications. Reilly appealed the decision to the Board of Adjustment ("BOA"), which held a public hearing at which it received evidence in the form of photographs, diagrams, and testimony. The BOA upheld the HPO's denial of the demolition application. Reilly then sought judicial review of the BOA's decision in district court. The trial court granted summary judgment for Reilly holding the BOA had abused its discretion in denying the demolition request. The BOA appealed the trial court's judgment to this Court, and we reversed the summary judgment and entered judgment affirming the BOA's decision denying the request for demolition of the residence at 112 Lindell Place. See City of San Antonio Bd. of Adjustment v. Reilly, 429 S.W.3d 707 (Tex. App.-San Antonio 2014, no pet.).

         Second Application (Renovation & New Construction)

         In January 2015, Reilly filed a new application seeking approval to "renovate [the] existing rear structure [the residence] and add six units in a two story building" (the "Project"). The application was presented to the HDRC for conceptual approval and the proposed design and concerns of the neighborhood were discussed at meetings held on January 27, 2015 and February 4, 2015. At a third meeting held on March 24, 2015, the HDRC reviewed a modified site plan which addressed many of the neighborhood's concerns, including "preservation of a mature anacua tree, proposed parking and the proposed vehicular circulation." The Project received conceptual approval from the HDRC in April 2015.

         In November 2015, the HPO recommended that the HDRC give final approval to the Project, and issued findings in support of her recommendation. With respect to the "Item 1" request to "rehabilitate the existing structure at 112 Lindell place, " [1] the HPO found that, "[t]he existing structure at 112 Lindell was constructed circa 1950 and includes additions that have been subsequently added and have been determined to be non-contributing based on physical and historical documentation." Those additions were listed as "a rear addition on the east façade, a patio addition on the north façade, a consecutive front porch on both the west and north sides and a swimming pool located north of the patio addition." The findings noted that Reilly was proposing to "alter the existing structure by removing each of the previously noted non- contributing elements." In addition to recommending approval for removal of the non-contributing additions, the HPO also recommended approval for Reilly's proposal to (i) make repairs necessary to restore the façade of stucco covered masonry, stating it was consistent with the applicable guidelines, (ii) replace the existing shingle roof with a standing seam metal roof, stating the structure historically would not have had a metal roof but the use of a metal roof was appropriate in this setting, and (iii) preserve all existing window and door openings and replace original windows and doors that are no longer in place or are damaged beyond repair with those typical of the architectural style of the structure. Construing the work proposed under Item #1 as a "rehabilitation, " the HDRC issued the Certificate of Appropriateness approving the Project on November 18, 2015.

         The RRNA appealed the decision to the BOA, asserting that "the proposed work involves removal of one-third of the structure" and therefore constitutes a "demolition" under the UDC. RRNA stressed that no application for demolition was filed, and Reilly had presented no evidence of economic hardship or loss of significance as required to obtain approval for a demolition under the UDC. RRNA also argued that a separate application for a determination that any part of the structure was non-contributing was required under the UDC and not filed by Reilly. The BOA held a public hearing on January 11, 2016 and affirmed the issuance of the Certificate of Appropriateness.

         The RRNA then sought judicial review of the BOA's decision in district court. The RRNA asserted in the trial court that the BOA had acted without reference to the guiding rules and principles governing its decision and had incorrectly analyzed and applied the law. Specifically, the RRNA's petition alleged that the approval of the Project improperly permitted "partial demolition of a structure that was the principle dwelling on the lot at 112 Lindell Place" without a separate demolition application and approval. In addition, the RRNA asserted that, to the extent the HPO had found parts of the residential structure to be "non-contributing, " such finding was improper because a separate application for a "determination of non-contributing status" was required and had not been submitted. In essence, the RRNA's position in the trial court and on appeal in this Court is that separate applications for the "partial demolition" and for the determination of "non-contributing" status were required before the Certificate of Appropriateness for the Project could be legally issued. The trial court agreed with the RRNA and granted its motion for summary judgment, reversing the BOA's decision and withdrawing the Certificate of Appropriateness for the Project.

         Trial Court's Reversal of BOA's Certificate ...


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