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Schreiber v. Board of Adjustment of City of Fort Worth

Court of Appeals of Texas, Second District, Fort Worth

January 11, 2018

CHRISTI SCHREIBER, ARENDIJUS MEJERAS, T.C. CALLENDER, DIANNE CALLENDER, ALEXANDER COTHRAN, VIRGINIA P. COTHRAN, STEVEN E. CRUDUP, LAURA L. CRUDUP, BENGE R. DANIEL JR., JACKIE L. DANIEL, MARTHA J. FRY, RICHARD C. GASSER, MARILYN L. GASSER, ROBERT R. GASSER, MARC M. GOLDMAN, STACIE F. GOLDMAN, MELVIN R. HAAS JR., LAURA J. HAAS, MICHAEL J. HILL, SARAH R. HILL, ALAN LEACH, SUSAN LEACH, GREG D. MORSE, F. WALTER OWEN, SHEILA OWEN, RICHARD D. YENTIS, AND EDITH T. YENTIS APPELLANTS
v.
BOARD OF ADJUSTMENT OF THE CITY OF FORT WORTH, SARA SCHUSTER, AND SCOTT SCHUSTER APPELLEES

         FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 153-284091-16.

          PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ.

          MEMORANDUM OPINION [1]

          LEE GABRIEL JUSTICE

         In this appeal, we are asked to review the trial court's determination that the appellees-Board of Adjustment of the City of Fort Worth (the Board), Sara Schuster, and Scott Schuster (the Schusters)-were entitled to judgment as a matter of law regarding the appellants'[2] challenge to the Board's administrative determination to grant the Schusters a variance from a setback ordinance. While the property issues involved such as floodplains, platting, residential setbacks, easements, and governing city ordinances initially appear complex, they are easily decided based on our standard of review. Under this standard, a reviewing court must uphold the Board's determination if some evidence, no matter its weight, supported it. As such, we are compelled to conclude that the Board did not abuse its discretion in granting the Schusters a variance from the setback ordinance and, therefore, that the trial court did not err by granting summary judgment in their favor or by denying the appellants' competing motion.

         I. BACKGROUND

         A. Factual

         On December 20, 2013, the Schusters bought two lots-lot A and lot B- located at 2607 Simondale Drive in Fort Worth, Texas (the City), to build their home.[3] Appellants Christi Schreiber and Arendijus Mejeras live at 2603 Simondale Drive, which is lot C and is on the northeast side of lot B. Appendix 1 to this opinion shows the location and shape of lots A, B, and C. Lots A and B roughly form an almost one-acre pie shape[4] and include an eight-foot utility easement, which bisected the back portion of the Schusters' lots and ended approximately ninety feet from the front property line. The rear forty feet of lots A and B are in the floodplain. Appendix 2 to this opinion shows lots A and B and the location of the easement.

          In 2014, the Schusters hired Hull Homes to build their home, and Hull Homes hired Bureau Veritas North America Inc. to act as a third-party inspection service. Bureau Veritas, under a contract with the City, was authorized to provide plan reviews and inspection services for construction projects "to ensure timely services to permit applicants." Although Bureau Veritas provided the same inspection services as those provided by an inspector for the City, the contract provided that Bureau Veritas "representatives are not employees or subcontractors of City" and authorized the City to conduct site visits to review Bureau Veritas's work.

         The City's setback ordinance was revised in 2004 and 2006 and became applicable to lots A and B when the prior residence was demolished in 2013.[5]The ordinance provides that residential front-yard setbacks must "be the greatest of" (1) the platted building line, (2) the setback for the applicable zoning district, or (3) the setback of the nearest building on either side that is the closest to the street to a "maximum setback of 50 feet provided that said setback is not the result of a variance granted by the board of adjustment." Fort Worth, Tex., Code of Ordinances app. A, ch. 6, § 6.101(d)(1) (2013). The setback for the applicable zoning district is twenty feet. The Schreiber and Mejeras house on lot C is set back forty-one feet-as shown on Appendix 3-but the platted building line for lots A and B is thirty feet. The house on the other side of lots A and B is set back more than fifty feet from the property line, as shown on Appendix 3. Two homes directly across the street from lots A and B are set back twenty-two and thirty feet from the property line, which also is reflected on Appendix 3.

         When Bureau Veritas applied for a building permit from the City on October 10, 2014, it included only lots A and B and showed that the proposed construction consisted of a 10,000-square-foot home with a pool cabana and five-car garage to the rear of the home. The submitted plan specified on it that it was subject to third-party inspections and the applicable setback ordinance. On October 31, 2014, the City issued a building permit for lots A and B "with third[-]party plan review and inspection." In applying for the permit, Bureau Veritas "chose not to submit the setbacks of the adjacent properties, with the understanding that the established front[-]yard setback would be noted at the first inspection" performed by Bureau Veritas.

         After fifteen months of construction when the house was 60% completed- the foundation had been poured and the house and roof had been framed- several neighbors lodged complaints with the City about the visible violation of the setback ordinance. Indeed, the setback of the Schuster home ranged from thirty feet to thirty-five feet. A City inspector visited the property and issued a stop-work order in December 2015.

          B. Administrative Proceeding

         On December 23, 2015, Bureau Veritas, on behalf of the Schusters, applied with the Board for an area variance from the setback ordinance.[6] See Tex. Loc. Gov't Code Ann. § 211.009(a) (West 2016). Over 100 neighbors from the surrounding neighborhoods signed petitions both in support of and against the requested variance. The Board also received direct correspondence from neighbors voicing both support and opposition. The Tanglewood Neighborhood Association, located adjacent to the neighborhood containing lots A, B, and C, sent a letter to the Board opposing the variance request. The Schusters also submitted a brief and supporting evidence to the Board in support of their variance request.

         The Board set a hearing on the variance request for February 17, 2016. In passing on the variance request, the Board was governed by a City ordinance, which dictated that it "shall" grant the variance "only" if the Board determines that:

(a) Literal enforcement of the regulations in this zoning ordinance will create an unnecessary hardship or practical difficulty in the development of the affected property;
(b) The situation causing the hardship or difficulty is unique to the affected property;
(c) The situation or hardship is not self-imposed;
(d) The relief sought will not injure the existing or permitted use of adjacent conforming property; and
(e) The granting of a variance will be in harmony with the spirit and purposes of this zoning ordinance.

Fort Worth, Tex., Code of Ordinances app. A, ch. 3, art. 4, § 3.403 (1999); see also Tex. Loc. Gov't Code Ann. § 211.008(a) (West 2016) (authorizing municipality to create boards of adjustment and to place "conditions and safeguards" on the boards' power to vary terms of an ordinance if they are consistent with purpose and intent of ordinance and with ordinance's applicable rules). Therefore if the Board determined each requirement was met, the Board was required to grant the variance; but if any of the requirements were not met, the Board had no authority to grant the variance. Section 3.403 imposed more restrictions on the Board's discretion to grant a variance than the discretion vested in such boards by statute:

The board of adjustment may:
. . . .
. . . authorize in specific cases a variance from the terms of a zoning ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of the ordinance is observed and substantial justice is done . . . .

Tex. Loc. Gov't Code Ann. § 211.009(a)(3). See generally City of Dall. v.Vanesko, 189 S.W.3d 769, 772 (Tex. 2006) (concluding city ordinance was more restrictive than section 211.009(a)(3) on board of adjustment's authority to determine variance request ...


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