Appeal from the 106th District Court Dawson County, Texas
Trial Court Cause No. 15-10-19674
consists of: Willson, J., Bailey, J., and Wright, S.C.J
WRIGHT SENIOR CHIEF JUSTICE
an appeal from a judgment in which the trial court affirmed a
decision by the City of Lamesa Board of Adjustment to grant
April Vara a variance to the setback provision of the City of
Lamesa zoning ordinance. We affirm.
requested a building permit from the City of Lamesa so that
she and her husband, Albert, could build a 25-foot by 25-foot
metal carport. Thus constructed, the carport would extend
from their garage to the sidewalk. The City's zoning
ordinance contained a 25-foot setback provision. A building
inspector determined that, if the Varas constructed the
carport at the proposed location, they would construct it in
violation of the setback provisions of the ordinance by five
feet. Therefore, the inspector did not issue the permit.
After the building inspector declined to issue the permit,
Vara requested a variance from the Board.
Board met to consider Vara's request. Before the meeting,
the Board sent a notice regarding the request to each person
who owned property that was located within 200 feet of the
Varas' property. Appellant responded to the notice and
opposed the proposed variance because she was concerned that
the carport would "box . . . off" the
intersection next to the Varas' property. She was also
concerned that the placement of the carport as proposed would
result in a devaluation of her own property.
meeting, Appellant again voiced her concern that "the
carport would create a nuisance leading to vehicular sight
obstruction and decreased property value." The Board
unanimously approved Vara's application. Appellant
appealed the Board's decision to the 106th District Court
of Dawson County.
trial court held a hearing on the appeal. It heard testimony
from each of the Board members who were present at the
meeting, as well as from the building inspector. The trial
court also heard testimony from Albert and from Appellant.
hearing in the district court, several of the Board members
testified that the Board based its decision to grant the
variance on findings that the carport would not block the
view of or from the intersection about which Appellant was
concerned. The Board also considered the fact that there were
carports on other properties on the street. Further, the
Board noted that there was a carport on the property
"across the street." The Board had granted a
variance for the construction of that carport, and there had
been no objections lodged against that variance.
Additionally, although constructed in accordance with the
zoning ordinance, there was a carport on Appellant's own
property; Appellant's property was located next door to
the Varas' property.
testimony also shows that the Board discussed the harm that
the Varas would suffer if the variance was not granted.
Albert testified that students at the high school across the
street from the Varas' property had thrown eggs and trash
from the school parking lot onto their property. The Varas
owned three antique cars, two motorcycles, and a
four-wheeler. These vehicles were kept in a two-car garage
and in a shop located in the Varas' backyard. The Varas
parked their pickup and an Envoy outside in the driveway. The
Board discussed that, without the variance, these vehicles
would be "out in the weather" and "possibly
subject to . . . destruction or damage by the local . . .
students . . . who might lob rocks and bottles and cans and
whatnot at them." Further, each member of the Board who
voted on the variance had personally inspected the property.
Based on all of this evidence, as outlined in the minutes of
the meeting, the Board granted the requested variance.
the trial court had heard the evidence presented to the
Board, and at the hearing, the trial court entered a judgment
in which it affirmed the Board's decision to grant the
variance. This appeal followed.
first of her two issues on appeal, Appellant, as we interpret
the issue, presents two complaints. First, she complains that
the trial court erred when it found that there was "any
evidence" to support the Board's decision. Next,
Appellant claims that the trial court erred when it upheld
the Board's decision when the Board made no findings to
support the variance. We will take up the latter complaint
first, and then we will address the "any evidence"
portion of the issue when we address Appellant's second
issue on appeal.
complains of the Board's failure to make findings as
provided for in Section 211.011(c)-(d) of the Texas Local
Government Code. Tex. Loc. Gov't Code Ann. §
211.011(c)-(d) (West 2016). Appellant did not ask for, and
the trial court did not issue, a writ of certiorari. That
provision applies only to cases in which the trial court
grants a writ of certiorari and, therefore, is not applicable
here. See id. § 211.011(c); Tellez v. City
of Socorro, 296 S.W.3d 645, 649 (Tex. App.- El Paso
2009, pet. denied). We overrule that portion of
Appellant's first issue on appeal in which she claims
the first part of Appellant's first issue on appeal to be
an attack on the sufficiency of the evidence to support the
Board's decision. In her second issue on appeal,
Appellant specifically argues that the trial court should
have found that the Board abused its discretion "because
the request was not a special case, denial of the variance
would not result in an unnecessary ...