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Vogler v. City of Lamesa

Court of Appeals of Texas, Eleventh District

May 24, 2018

LENDA VOGLER, Appellant
v.
CITY OF LAMESA AND APRIL VARA, Appellees

          On Appeal from the 106th District Court Dawson County, Texas Trial Court Cause No. 15-10-19674

          Panel consists of: Willson, J., Bailey, J., and Wright, S.C.J .[1]

          MEMORANDUM OPINION

          JIM R. WRIGHT SENIOR CHIEF JUSTICE

         This is 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.

         Vara 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.

         The 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.

         At the 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.

         The 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.

         At the 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.

         The 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.

         After 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.

         In the 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.

         Appellant 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 otherwise.

         We read 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 ...


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