Opinion
NO. 02-17-00107-CV
01-11-2018
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 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
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' 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.
The appellants either are adjacent neighbors of the Schusters or live in the Schusters' immediate neighborhood and, therefore, have standing to complain of the Board's actions. See Tex. Loc. Gov't Code Ann. § 211.011(a) (West 2016); Galveston Historical Found. v. Zoning Bd. of Adjustment of City of Galveston, 17 S.W.3d 414, 418 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). Appellants Benge R. Daniel Jr. and Jackie L. Daniel noticed their nonsuit without prejudice of their claims in the trial court; however, because they are specifically named as giving notice of their intent to appeal in the appellants' notice of appeal, we have included them as named appellants. But because the Daniels do not attack the nonsuit on appeal, we affirm the trial court's order of partial nonsuit without prejudice regarding the Daniels' claims. See Tex. R. App. P. 43.2(a). Two other plaintiffs below—John C. Tucker and Suzanne B. Tucker—also noticed their nonsuit in the trial court, but they were not included in the list of appellants in the notice of appeal as giving notice of their desire to appeal. We have not included them as appellants. In this opinion, we will collectively refer to all plaintiffs in the trial court except for the Daniels and the Tuckers as "the appellants."
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. 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 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.
An older residence had straddled lots A and B, but it had been demolished earlier in 2013 before the Schusters bought lots A and B.
The Board's staff described the lots' shape as "generally a rectangle with approximately 95 feet in width that flares to approximately 175 feet at the front property line."
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. 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.
Most of the houses in the immediate vicinity of lots A and B were built in the 1950s—before the setback ordinance was enacted.
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. 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 Schusters also sought an area variance regarding fence height and type of fencing material, which were also the subject of neighbor complaints; however, those two additional variance requests, which the Board granted, were not challenged in the trial court or in this appeal.
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; andFort 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:
(e) The granting of a variance will be in harmony with the spirit and purposes of this zoning ordinance.
The board of adjustment may:
. . . .
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 and reviewing board's denial under ordinance requirements).
. . . 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 . . . .
Almost fifty neighbors and interested parties attended the hearing and submitted registration-of-interest forms to lodge either their support or nonsupport of the variance. In advance of the hearing, the Board's staff prepared an "Information Report" regarding the Schusters' variance request that recounted the characteristics of lots A and B, including their shape, the floodplain, and the easement. See generally Fort Worth, Tex., Code of Ordinances app. A, ch. 2, § 2.101(g) (2014) (providing that Board staff members act as "technical advisors" to the Board). During the hearing, the Schusters' attorney and builder spoke in favor of the variance, showing the Board a slide presentation. Schreiber, who also relied on visual aids, spoke in opposition. Appellant F. Walter Owen briefly stated his opposition to the variance. After the hearing was closed to further comment, only one of the nine Board members voted against the variance. See Tex. Loc. Gov't Code Ann. § 211.009(c). Emotions ran high during the hearing, which is apparent even from the pages of the cold record, prompting the Board's chairman to threaten to have some attendees forcibly removed from the hearing room. The day after the hearing, the Board sent the Schusters and Bureau Veritas written notification of the variance approval.
Approximately ten supported the variance, with the remainder being opposed.
C. WRIT OF CERTIORARI
On February 26, 2016, the appellants challenged the Board's decision by filing a verified petition and requesting that a writ of certiorari be issued to the Board. See id. § 211.011(a)-(c). They asserted that the "undisputed facts" showed that the Schusters' variance request did not meet the required factors stated in section 3.403, rendering the Board's decision to grant the variance "illegal." The Board answered the petition, and the Schusters filed a petition in intervention based on their justiciable interest in the subject matter of the appellants' petition. See Tex. R. Civ. P. 60-61. The trial court ordered the clerk to issue the writ to the Board for the Board to submit "certified or sworn copies of all proceedings and evidence taken at a hearing before the Board . . . on February 17, 2016 . . . approving a variance" to the setback ordinance on the Schusters' property.
The Board filed its return and attached all evidence it considered in determining the Schusters' variance request, all of which it asserted supported its decision. The Schusters then filed a motion for summary judgment, arguing that because they established through some evidence each factor required by section 3.403, the trial court had no discretion but to affirm the Board's determination based on the trial court's applicable standard of review—a clear abuse of discretion. The appellants responded and filed a competing summary-judgment motion, contending that the Schusters failed to proffer substantive and probative evidence of each element required to grant a variance under section 3.403. In their motions, the Schusters and the appellants relied on the evidence attached to the Board's return—all evidence that had been before the Board when it made its decision on the variance request. The Schusters replied and responded to the appellants' motion, again relying on the evidence attached to the Board's return but also attaching a news article "containing interview with City of Fort Worth" and a video of an interview "with City of Fort Worth." The appellants objected to portions of the Schusters' summary-judgment evidence, most of which had been before the Board, but also objected to the article because it had not been considered by the Board and to the video because it was untimely under rule 166a(d). See Tex. R. Civ. P. 166a(d).
On January 29, 2017, the trial judge issued a letter ruling to the parties explaining that she was granting the Schusters' motion because the Board's decision was supported by some evidence:
In this case, literal reams of evidence were submitted to this court in support of the summary[-]judgment motions, including the City of Fort Worth's file on this matter, all of the evidence submitted by both sides including, photos of the Schusters' house from the vantage point of the plaintiffs' homes, the details of the [ordinance] at issue, as well as [a] dormant easement running through the property, the location of other homes in the neighborhood, as well as evidence of the amount of money spent by the Schusters to construct the home. I read the entire file, including all e-mails submitted by residents [to the Board], petitions signed by [neighbors] for and against the variance, as well as the transcript of the hearing at the Board . . . . Without a doubt, there is no winner in this situation.
However, in making the ruling for which I am tasked, I must consider one issue only—are Plaintiffs able to establish as a matter of law that there was NO evidence presented to the Board to support its decision (to grant the variance to the [ordinance]). . . .
. . . .The trial judge also overruled most of the appellants' objections to the Schusters' summary-judgment evidence in the letter ruling, but she sustained the objection directed to the article and expressly did not rule on the objection to the video because she "did not consider it in reaching this decision." On February 17, the trial court entered a formal order denying the appellants' motion, granting the Schusters' motion, overruling most of the appellants' evidentiary objections, sustaining the objection to the article, and declining to rule on the objection to the video. Although the trial court did not expressly dispose of the Board as a defendant in its order, the order disposed of all parties and issues before the trial court. See Pick-N-Pull Auto Dismantlers v. Zoning Bd. of Adjustment of City of Fort Worth, 45 S.W.3d 337, 339 n.1 (Tex. App.—Fort Worth 2001, pet. denied).
Plaintiffs do not deny that the Schusters presented evidence to the Board. Thus, we must presume that the Board considered and relied upon the evidence. The plaintiffs also submitted evidence to the Board. We can also presume that the Board considered and relied upon Plaintiffs' evidence. I believe the Board made its decision (whether I agree with it or not) based upon competent, probative, and substantive evidence coming from both sides.
. . . .
Based upon the foregoing, I find there are no fact issues for a jury to decide. The review of the Board is a matter of law, and as such I find as a matter of law that the Board made its decision based upon substantive and probative evidence. Therefore, Intervenors' Motion for Summary Judgement is hereby GRANTED.
Similarly, we have not relied on either the article or the video.
After filing its answer to the appellants' petition and filing the return, the Board took no further action in the trial court, presumably based on the Schusters' intervention.
D. APPEAL
In five issues on appeal, the appellants argue that the trial court "erred" by affirming the Board's decision and granting the Schusters judgment as a matter of law because the evidence did not support the Board's actions and because the Board did not properly analyze or apply the law. Specifically regarding their issues attacking the lack of evidentiary support, the appellants contend that the substantive and probative evidence did not support a finding that a hardship justified the variance, that the variance would not injure the existing or permitted uses of adjacent properties, or that the variance was in harmony with the spirit and purposes of the City's zoning ordinances. They raise no argument attacking the trial court's rulings on their objections to the Schusters' summary-judgment evidence. Because each issue relates to the propriety of the Board's decision to grant the Schusters a variance under each requirement of section 3.403, we will address the issues together as the appellants essentially do in their opening brief.
II. STANDARD OF REVIEW
As we have already stated and as is explained in the trial court's letter ruling, our standard of review dictates the end result. In reviewing the Board's decision to grant the Schusters a variance, the trial court was to decide the single issue of whether the Board's determination was illegal. See Vanesko, 189 S.W.3d at 771. A legal presumption exists in favor of the Board's decision, whether that decision was to grant or to deny the variance request, which should be upheld on any possible theory of law regardless of the reasons assigned by the Board in reaching its decision. See Bd. of Adjustment of City of Piney Point Vill. v. Solar, 171 S.W.3d 251, 255 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); Murmur Corp. v. Bd. of Adjustment of City of Dall., 718 S.W.2d 790, 799 (Tex. App.—Dallas 1986, writ ref'd n.r.e.). The Board's determination may be found to be illegal only if the appellants "present[ed] a 'very clear showing of abuse of discretion.'" Vanesko, 189 S.W.3d at 771 (quoting City of San Angelo v. Boehme Bakery, 190 S.W.2d 67, 71 (Tex. 1945)); see also id. at 771 n.4 ("[T]he standard of review in a zoning case requires a 'clear' abuse of discretion to warrant a reversal of the zoning board's decision."). In short, the appellants bore the burden to establish that the Board "could only have reasonably reached one decision." Id.; see Sw. Paper Stock, Inc. v. Zoning Bd. of Adjustment of City of Fort Worth, 980 S.W.2d 802, 805 (Tex. App.—Fort Worth 1998, pet. denied).
For better or worse, the trial court could not re-examine the weight or persuasiveness of the evidence placed before the Board in a review of its ultimate decision. See Vanesko, 189 S.W.3d at 772. Indeed, the trial court could not reverse the Board's decision even if the trial court were to conclude that the overwhelming preponderance of the evidence was against the Board's decision. See Sw. Paper, 980 S.W.2d at 805. It follows, then, that a decision based on conflicting evidence is not an abuse of discretion. See Christopher Columbus St. Mkt. LLC v. Zoning Bd. of Adjustments of City of Galveston, 302 S.W.3d 408, 416 (Tex. App.—Houston [14th Dist.] 2009, no pet.). As long as the entirety of the record reveals some evidence of a substantive and probative character supporting the Board's decision, there can be no clear abuse of discretion. See Sw. Paper, 980 S.W.2d at 805-06.
And in our review of the trial court's summary judgment, we are also governed by the abuse-of-discretion standard. See Christopher Columbus, 302 S.W.3d at 418-19. We must determine whether the Schusters proved as a matter of law that the Board did not abuse its discretion. See Pick-N-Pull Auto, 45 S.W.3d at 340. "In other words, if there is some evidence of substantive and probative character supporting the Board's decision, the trial court did not abuse its discretion by granting [the Schusters'] motion for summary judgment." Id.
III. SOME EVIDENCE SUPPORTS THE BOARD'S DECISION
A. THE IMPORT OF VANESKO
Before we discuss the evidentiary support for the Board's decision under section 3.403, it is necessary to discuss Vanesko, which both the appellants and the Schusters argue squarely supports their respective appellate arguments. In that case, the Vaneskos designed their new home themselves "without the assistance of architects and engineers" and acted as their own general contractor. 189 S.W.3d at 770. The city issued a building permit even though the Vaneskos' submitted plans showed that the home would exceed the city's height ordinance by eight feet. See id. at 771 n.1. Once the Vaneskos framed the roof, city inspectors determined that the home was too tall, and the Vaneskos sought a height variance from the ordinance. See id. at 770-71. The city's board of adjustment denied the variance. See id. at 771 & n.2. The trial court, in a writ of certiorari proceeding, reversed the board's determination, which the court of appeals affirmed. See id. at 771.
The supreme court reversed the reviewing courts and affirmed the board's decision based on the applicable standard of review:
Under the more restrictive scheme imposed [on ordinance variances] by the Dallas City Code [as opposed to section 211.009(a)(3) of the local government code], we cannot conclude that the Board clearly abused its discretion by declining to grant the Vaneskos' request for a variance from the applicable height restrictions.Id. at 773, 774. Although the supreme court pointed out the self-imposed nature of the height violation and the irrelevance of the building permit, it did so in the context of pointing out the evidence supporting the board's decision to deny the variance. See id. at 773-74. In other words, the supreme court was careful to state that the evidence it recounted showed that the board had not clearly abused its discretion by denying the variance; the court was not holding as a matter of law that a city's issuance of a permit or that a building error could never support a board's decision to grant a variance request. As such, our review focuses on the entirety of the record to support the Board's decision, whether that decision was to deny or to grant a variance, indulging a presumption in favor of that decision. We do not decide the merits of the Schusters' variance request but rather whether the Board could have reached the decision it reached based on any probative evidence before it. We, therefore, disagree with the appellants that Vanesko gave the Board no discretion other than to deny the Schusters' variance request.
. . . .
Because we conclude both that the Vaneskos' hardship was personal in nature and that the Board was not required to consider the erroneous issuance of a building permit, we cannot say on the facts before us that a clear abuse of discretion occurred.
B. REQUIRED ELEMENTS UNDER SECTION 3.403
1. Hardship
The appellants argue that the Schusters' claimed hardship was self-imposed and could not be established by relying on (1) the City's issuance of the building permit, (2) Bureau Veritas's failure to properly inspect the property, (3) the utility easement, (4) the difficulty in measuring the front setback based on the shape of lots A and B, or (5) their desire to keep two trees located in the back of lots A and B in the floodplain. In short, they contend that the Schusters "submitted no evidence that enforcement of the front yard setback [ordinance] would create a hardship or difficulty in the development of the Schuster Property [and] submitted no evidence that even hinted at the proposition that they could not have easily designed and built a home that met the . . . setback had they chosen to do so." See generally Town of S. Padre Island ex rel. Bd. of Adjustment v. Cantu, 52 S.W.3d 287, 290 (Tex. App.—Corpus Christi 2001, no pet.) (holding hardship to justify variance from city ordinance could not be self-created, could not be merely financial, and must result from unique condition of the property). The Schusters respond that the hardship arose from "conditions unique to the Schusters' property"—"the unusual shape of the Schusters' lot[s], the utility easement on the property, and the flood plain covering the rear 40 feet"—"as well as the hardship created by mistakenly issued permits."
Based on our standard of review, we do not address all of these arguments. Because we find some evidence of a probative nature supporting each of the section 3.403 requirements, we need not review the probity of all of the proffered evidence. See Tex. R. App. P. 47.1.
Indeed, the Board heard evidence that the City issued more than twenty permit approvals during the Schusters' fifteen-month construction, including an approval of the survey showing the proposed placement of the foundation. The builder explained that he relied on those permits in building the house and that moving the foundation of the home back eleven feet would cost approximately one million dollars in addition to the three million dollars the Schusters had already spent on developing lots A and B.
But the Schusters' evidence did not rely solely on the financial burden or the issued permits. The Board also heard evidence that lots A and B themselves created development difficulties that were unique to those lots. Although the appellants argue that the utility easement shown on Appendix 2 was abandoned and could not contribute to the hardship, the Board's information report reflected that the easement was an "existing condition," which would not change unless lots A and B were replatted into a single lot and the Schusters asked the City either to move or to abandon its easement. There is no evidence in the record showing that Lots A and B have been replatted.
Lots A and B combined to form an oddly shaped rectangle as shown in Appendix 2, with the widest portion of the lots being located at the front. A significant portion of the back of the lots was burdened by the easement, and forty feet to the back of the lots were located in the floodplain. These conditions contributed to the hardship leading to the setback violation and belie the appellants' argument that the hardship was personal in nature. Cf. Vanesko, 189 S.W.3d at 773 ("[T]he hardship is personal in nature because it arose from decisions the Vaneskos made in designing their home, as opposed to the nature and configuration of the lot in question."). Further, there was evidence before the Board that the curvature of the street and the front portion of lots A and B, as shown on Appendices 1, 2, and 3, made it difficult to ascertain from where the setbacks should be measured. Adding to the difficulty of determining the proper setback was the fact that houses across the street from lots A and B were closer to their property lines than was the Schusters' house, which is depicted in Appendix 3.
This evidence was probative and constituted some evidence that the enforcement of the setback ordinance would create an unnecessary hardship or practical difficulty in developing lots A and B, which was unique to lots A and B and was not self-imposed. See Fort Worth, Tex., Code of Ordinances, supra, § 3.403(a)-(c). The appellants point to evidence they submitted to the Board— the Schusters' plan to build a pool directly over the easement, a "substantial" home previously sat on lots A and B without violating the setback ordinance, the setback was not difficult to measure, and the Schusters' dubious desire to keep only two trees situated at the rear of the lot—and argue that this evidence required the Board to deny the variance request under section 3.403. Again, our inquiry is whether there was some evidence to support the Board's decision—not overwhelming evidence, not substantial evidence, not a preponderance of evidence, and not even persuasive evidence. We only need find some probative evidence, which is merely evidence that serves to prove the asserted proposition and that is more than surmise or suspicion. See Bailey Cty. Appraisal Dist. v. Smallwood, 848 S.W.2d 822, 825 (Tex. App.—Amarillo 1993, no writ). As recognized by the trial court, the appellants essentially attack the weight and sufficiency of the evidence and ask us to reconsider the Board's decision. This we cannot do. We conclude that some evidence of a probative nature supported the Board's decision regarding the three hardship factors in section 3.403. See, e.g., Sumner v. Bd. of Adjustments of the City of Spring Valley Vill., No. 01-14-00888-CV, 2015 WL 6163066, at *7-8 (Tex. App.—Houston [1st Dist.] Oct. 20, 2015, pet. denied) (mem. op.); Ferris v. City of Austin, 150 S.W.3d 514, 521-22 (Tex. App.—Austin 2004, no pet.); Cantu, 52 S.W.3d at 290-91; Currey v. Kimple, 577 S.W.2d 508, 512-13 (Tex. Civ. App.—Texarkana 1978, writ ref'd n.r.e.).
2. No Injury to the Existing or Permitted
Use of Adjacent, Conforming Property
The appellants argue that the uncontroverted evidence showed that the variance will injure adjacent, conforming property, requiring the Board to deny the requested variance. See Fort Worth, Tex., Code of Ordinances, supra, § 3.403(d). They point to an email from Alan Pursley, an appraiser, to Schreiber in which the appraiser stated that after he drove by Schreiber's house—lot C—and taking a "quick look" at the structure on lots A and B, he could not quantify any damage to lot C because such damage is "very rare and extremely difficult to quantify particularly with paired sales analysis." The appellants also reference an email from another appraiser, Allen Gartner, who informed Schreiber that an assumed setback violation "would be considered a negative external influence on the use, enjoyment, marketability and value of your property." Gartner could not quantify the loss but stated that "there is damage to your property if the negative external influence is allowed to stay."
The lots in the Schusters' zoning district are zoned as single-family, residential lots. Several homeowners in that zoning district wrote the Board in support of the requested variance because the Schusters' proposed home would enhance the value of all homes in the district. The Schusters' builder also wrote to the Board and expressed his similar opinion that the home would enhance surrounding property values:
I understand the general objection of size compared to the neighbors, however there is no restriction for size in this
neighborhood. From talking to neighbors it is clear the size argument is based on personal opinion that varies whether you desire an increased value in your neighborhood or whether you want things to stay the same with no new construction.This is some competing evidence that the Schusters' home would enhance the value of the adjacent, conforming properties.
If we are allowed to continue you will see us complete a beautiful home that enhances the value and beauty of the neighborhood.
Even so, section 3.403 focuses on injury to the existing or permitted use of the adjacent properties, which is residential, and not on injury to value. See Fort Worth, Tex., Code of Ordinances, supra, § 3.403(d). In their brief, the appellants point to no evidence that shows the Schusters' variance will injure the surrounding homeowners' ability to use their property as single-family residences. Further, the wide variation of setbacks in the district contradicts the appellants' claim that the variance on lots A and B would have a different impact on adjacent, conforming properties than the impact caused by the surrounding, nonconforming setbacks.
3. Harmonious With the Spirit and Purposes of Zoning
The final factor required for an area variance is that the "granting of a variance will be in harmony with the spirit and purposes of this zoning ordinance." Id. § 3.403(e). These purposes are "the promotion of safety, health, convenience, comfort, prosperity or general welfare." Fort Worth, Tex., Code of Ordinances app. A, ch. 1, § 1.100 (1999). The appellants assert, with no citation to any authority or to the record, that by allowing varying front-yard sizes and building setbacks, the purposes of the setback ordinance are defeated. They further surmise, again without caselaw or record support, that "[a]llowing the Schusters to violate the adjacent property setback by eleven feet could allow the next buyer of [lot C] to build even with the Schuster house without a variance[,] totally eviscerating the purpose and intent of the regulations and building ordinances." But the Schusters argued to the Board, relying on evidence of the varying setbacks in the immediate area, that their requested variance would "enable development that is completely consistent and compatible with other development in the neighborhood and would have no adverse impact whatsoever on anyone." This was some evidence supporting the Board's decision on this factor. Cf. Swain v. Bd. of Adjustment of City of Univ. Park, 433 S.W.2d 727, 731-32 (Tex. Civ. App.—Dallas 1968, writ ref'd n.r.e.) (recognizing Board's action in granting use variance that allowed residential property to be used as a business violated spirit and purpose of zoning law). See generally Ferris, 150 S.W.3d at 517 n.2 (distinguishing between a use variance and an area variance and recognizing that a board may not grant relief from the uses permitted by an ordinance).
IV. CONCLUSION
We have found some evidence of a probative nature supporting each element required for the Board to grant a variance from the setback ordinance. Therefore, we cannot conclude as the appellants urge that the Board did not properly apply the law. Although the appellants argue that their evidence weighed more than the Schusters' and dispute the weight of the Schusters' competing evidence, such arguments are not part of our inquiry. See, e.g., Vanesko, 189 S.W.3d at 772 ("[T]he trial court . . . concluded that the Board clearly abused its discretion in denying the variance. In doing so, we believe the trial court [impermissibly] substituted its own judgment for that of the Board."). We look only for some evidence to support the Board's determination and, once found, may not inquire further. We conclude that the Board did not clearly abuse its discretion by granting the variance based on this found evidence and that the appellants have failed to establish that the Board could have only reached one decision—to deny the variance—on the basis of the record before us. Similarly, the trial court did not abuse its discretion by granting the Schusters' judgment as a matter of law. We overrule the appellants' issues arguing otherwise, and affirm the trial court's judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ. KERR, J., files a concurring opinion DELIVERED: January 11, 2018 Appendix 1
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Image materials not available for display. Appendix 3
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