Opinion
No. 04-05-00190-CV
Delivered and Filed: December 14, 2005.
Appeal from the 45th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-12382, Honorable Andy Mireles, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
San Antonio Conservation Society and Marcie Ince appeal the trial court's summary judgment in favor of the Board of Adjustment of the City of San Antonio in an action challenging the Board's approval of a special exception allowing the relocation of a portable classroom building. Pursuant to section 35.589 of the Unified Development Code, the Society and Ince claim that the granting of the special exception was an abuse of discretion because no evidence established that the portable classroom was a "house . . . comparable in size and quality of construction and in condition to the average of the other homes in the area." San Antonio, Tx., Unified Development Code § 35-589(b)(1). We affirm the trial court's judgment.
When a party challenges a zoning board's action by filing a writ of certiorari, the district court sits as a court of review to determine the sole question of the legality of the zoning board's order. City of Alamo Heights v. Boyar, 158 S.W.3d 545, 549 (Tex.App.-San Antonio 2005, no pet.). The board's order is presumed to be legal, and the party attacking the order has the burden of establishing its illegality. Id. To establish that an order of a zoning board is illegal, the party attacking the order must present a very clear showing that the board abused its discretion. Id. A board abuses its discretion if it acts without reference to any guiding rules and principles or clearly fails to analyze or apply the law correctly. Id.
The reviewing court must not, however, put itself in the position of the board and substitute its discretion for that of the board. Id. Whether a zoning board of adjustment abused its discretion is a question of law for the trial court that is appropriately determined by summary judgment. Id.; see also Harris v. Board of Adjustment of City of Fort Worth, No. 2-04-061-CV, 2005 WL 32316, at *2 (Tex.App.-Fort Worth Jan. 6, 2005, no pet.). In a summary judgment case, the issue on appeal is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that movant is entitled to judgment as a matter of law. Harris, 2005 WL 32316, at *2. When a trial court grants summary judgment in favor of a zoning board, the appellate court must determine whether the board established as a matter of law that it did not abuse its discretion with regard to the action taken by the board. Id.
In this case, the record contains the evidence considered by the Board in granting the special exception. The applicant's request for the special exception states his intent to rent the building moved onto the property as a single family residence. The application contains photographs of the building to be moved. The building is described as being in excellent condition with its current construction consisting of: "Interior Walls Sheetrock, Ceiling Sheet rocked [sic]; Wood Exterior; Composition Shingle Roof." The application describes additional proposed construction to both the interior and the exterior of the building. The minutes of the Board meeting reflect that the Board determined that the relocation of the building would "contribute to the development of the community while retaining the original character" and that the "residence to be relocated will be in keeping with the construction and character of the neighborhood." The minutes further reflect the Board's finding that "The proposed structure will be compatible with the surrounding buildings at the proposed sites in the district and in the neighborhood." No opposition was received from anyone who received notice of the requested special exception.
The photographs and the description of the building are evidence supporting the Board's determination that the building constituted a "house . . . comparable in size and quality of construction and in condition to the average of the other homes in the area." Accordingly, the trial court properly concluded that the Board did not abuse its discretion in granting the special exception. The trial court's judgment is affirmed.